PLJ 2009 Karachi 1
Present: Bin Yamin, J.
Miss SHAISTA SHAMS--Petitioner
versus
Mst. SEEMA BEGUM through constituted Attorney
and 2 others--Respondents
Constl. P. No. S-446 of 2007, decided on 11.6.2008.
Constitution of Pakistan, 1973--
----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), S. 15--Constitutional petition--Ejectment of tenant--Relationship of landlord and tenant--Tenant resisted on the basis of execution of agreement to sell by landlord in her favour--Ejectment application was allowed and passed eviction order, which was maintained by Lower Appellate Court--Validity--After execution of sale agreement, no registered sale-deed was executed in favour of tenant by landlord, thus sale agreement executed between both the parties had no legal value without registration of documents on the basis of sale agreement--Tenant admitted that she had not paid any rent to landlord--Unless and until registered sale-deed was executed between the parties, relationship of landlord and tenant existed between them--Tenant could not get benefit of sale agreement and avoid payment of rent--Orders passed by Rent Controller as well as by First Appellate Court were in accordance with the law and based on material available on record, hence both orders did not require any interference by High Court--Petition was dismissed. [P. 6] A
1990 SCMR 1070; 1990 CLC 1003; 2000 SCMR 556; 2002 CLC 1; PLD 2005 Kar. 521; PLD 1991 SC 242 and PLD 1999 SC 1101 ref.
Mr. Abdul Karim Siddiqui, Advocate for Petitioner.
Mr. Ghulam Ali Khokhar, Advocate for Respondent No. 1.
Date of hearing: 11.6.2008.
Order
This order will dispose of above-noted Constitution Petition filed by Ms. Shaista Shams daughter of Shamsuddin against the judgment, dated 7-9-2007 passed by learned 1st Additional District and Sessions Judge, Karachi Central, in F.R.A. No. 240 of 2006, directing the petitioner to vacate the premises in her possession and hand over the same to the Respondent No. 1. Through the afore-noted order passed in appeal, the learned Judge has upheld the judgment dated 29-9-2006, passed by learned IInd Senior Civil Judge and Rent Controller, Karachi-Central in Rent Case No. 22 of 2003.
Brief facts of the case are that Respondent No. 1 is the owner and landlady of building known as `Seema Estate', constructed on Plot No. 1-K-7, situated at Nazimabad No. 1, Karachi. That attorney of the respondent had entered into an agreement of the sale dated 26-5-1980 with the petitioner for Flat No. 24, First Floor of the aforesaid building (hereinafter referred to as the flat in question) for total sale consideration of Rs. 1,60,000. That under the aforesaid agreement the petitioner had paid Rs.60,000 as earnest money at the time of execution of agreement and further amount of Rs.40,000 in instalments by cheques and cash. That the balance amount of Rs.60,000 was to be paid on execution of sale-deed. That the sale-deed was to be preferred by vendee at her own cost, as stamp duty for execution of the sale-deed was to be borne by the vendee. That the petitioner was/is ready and anxious to perform her obligations for getting a sale-deed executed and registered by virtue of the terms and conditions under the aforesaid sale agreement and had been repeatedly contacting the Respondent No. 1 and her attorney that the Respondent No. 1 and her attorney avoided to do the needful on one pretext or the other, with mala fide intention to defeat the right, of the petitioner. That in this regard, some correspondence / exchange of notices also took place but the Respondent No. 1 did not execute the registered sale-deed in the name of the petitioner. That subsequently Respondent No. 1 through her husband and attorney, Syed Razi Ahmed filed Ejection Application No. 22 of 2003 against the petitioner in the Court of IInd Senior Civil Judge and Rent Controller, Karachi-Central. That the said case was decided in favour of Respondent No. 1 without considering the fact that she through her attorney had executed sale agreement in favour of the petitioner. That the Rent Controller during trial framed following issues in the mater:--
(1) Whether there exists no relationship of landlady and tenant in between the parties and the rent ejectment application is not maintainable?
(2) Whether opponent has committed willful default in payment of rent?
(3) What should the order be?
That the learned Rent Controller, Karachi-Central decided the rent application against the petitioner and directed her to vacate the premises in question and hand over its possession to the Respondent No. 1 vide his order dated 29-9-2006.
That feeling aggrieved with the order of learned Rent Controller, petitioner preferred F.R.A. No. 240 of 2006, which was dismissed by the learned 1st Additional District & Sessions Judge, Karachi-Central under her order dated 7-9-2007.
Through the instant Constitution Petition, the petitioner has challenged the findings of the learned appellate Court as well as learned Rent Controller, Karachi Central and has prayed as under:--
(a) To declare that the impugned orders dated 29-9-2006 and 7-9-2007 passed by the learned Respondents Nos.2 and 3 respectively are not sustainable both on facts as well as in law and are liable to be set aside.
(b) That the aforesaid impugned orders be set aside allowing cost to the petitioner.
(c) Granting any further and better relief to the petitioner to which this Honourable Court deems fit and proper in the circumstances of the case.
Heard Advocate for petitioner and Advocate for Respondent No. 1, who has appeared in pursuance of the pre-admission notice as ordered by this Court on 9-10-2007, also perused case papers.
Learned counsel for the petitioner submitted that after execution of sale agreement, the petitioner remained in occupation of the disputed premised as owner. She has paid about Rs. 1,00,000 towards the sale consideration. That thus after the payment of the said amount, the relationship of landlord and tenant did not exist between the parties. That the learned Rent Controller as well as appellate Court while deciding the matter have not taken this fact into considerations, thus they committed gross illegality in deciding the case. He further submitted that after filing of affidavit-in-evidence, the husband/ attorney of the Respondent No. 1 did not appear in Court for his cross-examination, therefore, the learned Rent Controller closed side of the Respondent No. 1 under his order dated 2-8-2006. That as the attorney of the Respondent No. 1 has not appeared in Court for cross-examination, therefore, his affidavit has got no evidentiary value. That this fact has also not been taken into consideration by the learned Rent Controller as well as by the learned 1st Additional District and Sessions Judge, Karachi Central. Thus they have committed serious error of non-reading and mis-reading of the evidence on the record. That the learned lower Courts have also failed to consider the other material available on the record while passing the impugned orders. He therefore, requested for admission of this Constitution petition for regular hearing. In support of his contentions, he relied upon the cases of Anis Ahmed v. Government of Pakistan and 3 others PLD Karachi 709, Haji Mohibullah & Co. and others v. Khawajabahuddin 1990 SCMR 1070, The Deputy Registrar, Cooperative Societies v. Mst. Zulekha and 4 others 1990 CLC 1003, Barkat Ali v. Muhammad Ehsan & another 2000 SCMR 556, Amina Nuzhat Babar v. Khan Sher 2002 CLC 1 and Mushtaq Ahmad v. Mst. Ismat Faiz Khan PLD 2005 Karachi 521.
On the other hand, learned counsel for Respondent No. 1 has disputed the contentions of learned counsel for the petitioner and submitted that the alleged sale agreement executed in between the parties has got no value in the eye of law, as in pursuance of that sale agreement, the petitioner failed to perform her part of agreement, therefore, the same stands nullified in the eye of law and no force can be attached to the same. He further contended that in case the petitioner was interested to get the sale agreement concluded then even in case of failure of the Respondent No. 1 her attorney to execute registered sale-deed in her favour, she was required to have filed a suit for specific performance against the Respondent No. 1 but till date she has not filed any suit for specific performance of the contract. This shows that even the petitioner herself was not interested in fulfilment of the sale agreement.
He further contended that the petitioner in her cross-examination has admitted that "it is correct to suggest that applicant has succeeded as new owner and I, remained her tenant when applicant purchased the building in question where the flat in question is situated. It is correct that from May, 1982 I had not paid rent to the applicant, voluntarily says that since I had purchased the flat in question from applicant, as such, there was no question of payment of rent to her."
Thus as per admission of the petitioner, she remained tenant of the Respondent No. 1 and since May, 1982 she has not paid any rent to the Respondent No. 1, thus as per her own admission, she has committed default in payment of rent. She also admitted that lawyer of the Respondent No. 1/applicant had sent a legal notice to her for payment of remaining sale consideration. This shows that Respondent No. 1 was always willing to perform her part of contract, and it is the petitioner who failed to perform her part of the contract. She also admitted that she cannot say as to whether any legal proceedings were initiated against the applicant for non-performance of sale contract. She also admitted that she is not in possession of any registered instrument of the ownership of the flat in question. The learned counsel while continuing his arguments, submitted that when the petitioner as per her own admission has remained tenant of the Respondent No. 1. She has not paid any rent since 1982 and even at the time of her cross-examination. She was not in possession of any title document with regard to the flat in question, then there was no choice before the learned Rent Controller, but to order for ejectment of the petitioner from the premises in question. That the order of the learned Rent Controller as well as the order of the appellate Court are quite appropriate, correct and legal and no exception can be taken to the same. The learned counsel further submitted that the orders passed by learned Rent Controller as well as learned 1st. Additional District & Sessions Judge, Karachi Central are based on the material available on the record, therefore, the same does not require any interference by this Court, while exercising its constitutional jurisdiction. That the scope of the Constitutional jurisdiction with regard to rent cases is very limited, and this Court has only to see that the order passed is not without jurisdiction and further the order passed is not the result of non-reading or misreading of the material available on the record. That the orders passed in this case are appropriate and do not require any interference. He, therefore requested for dismissal of the instant Constitution petition in limine. In support of his contentions, he relied upon the case of Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101.
I have considered the contentions raised by the learned counsel for the parties and have also perused the material available on the record.
It is admitted position that after execution of the sale agreement, no registered sale-deed was executed in favour of petitioner by the Respondent No. 1. Thus the sale agreement executed in between the parties has no legal value without registration of the documents on the basis of sale agreement. Furthermore, as per admission of the petitioner, she remained tenant of the Respondent No. 1 and has not paid any rent since 1982. In the decided cases, referred to above, it is clearly laid down that unless and until registered sale-deed is executed in between the parties, the relationship of tenant and landlord exists in between the parties. The tenant cannot get benefit of sale agreement and avoid payment of rent. The orders passed by learned Rent Controller, Karachi Central as well as by the learned 1st. Additional District & Sessions Judge, Karachi Central are in accordance with the law and based on the material available on the record, hence both orders do not require any interference by this Court. Finding no merits in this Constitution Petition. I hereby dismiss the same in limine.
(R.A.) Petition dismissed
PLJ 2009 Karachi 6
Present: Nadeem Azhar Siddiqi, J.
SHELL PAKISTAN LTD. through Attorney--Plaintiff
versus
AERO ASIA INTERNATIONAL (PVT.) LTD. through Chief Executive and another--Defendants
Suit No. 1338 of 2007, decided on 12.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, R. 1--Arbitration Act, (X of 1940), S. 34--Stay of proceedings--Suit for recovery of money--Defendant sought stay of proceedings on the basis of arbitration agreement between both the parties--Validity--For deciding application under S.34 of Arbitration Act, the pleadings in the suit were to be considered--Cause of action pleaded in the plaint was based on dishonoured cheques which was an independent cause of action not related to dispute under arbitration clause in the agreement--Proceedings were not stayed.
[P. 7, 8 & 10] A & B
2007 MLD 1424; 2002 CLD 624 and 1995 CLC 1024 ref.
Negotiable Instruments Act, 1881 (XXVI of 1881)--
----Ss. 79, 80 & 118(a)--Civil Procedure Code, 1908 (V of 1908), O. XXXVII, Rr. 1 & 2--Suit for recovery of money--Negotiable instrument--Suit was based on negotiable instruments/ dishonoured cheques and presumption would be that the same were issued against consideration unless rebutted by defendant. [P. 11] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 34, O.XXXVII, Rr. 1 & 2--Negotiable Instruments Act, (XXVI of 1881), Ss.79 & 80--Suit for recovery of money--Dishonoured cheques--Amount of decree--Determination--Inclusion of interest in decree-- Plaintiff sought recovery of his money on the basis of dishonoured cheques issued by defendants in favour of plaintiff--Despite service of process in the name of defendants, no body appeared on their behalf-- Plaintiff sought decree against company and private defendant--Validity--From pleadings it appeared that specific amount was included in the sum of Rs. 3,47,19,297 as private defendant had issued cheque on behalf of defendant company as personal guarantee--High Court decreed the suit of plaintiff against both the defendants jointly and severally but liability of private defendant would not exceed Rs.20 million in any case, with interest at the rate of 6% per annum in accordance with Ss.79 and 80 of Negotiable Instruments Act, from the date of filing of suit till the date of decree--High Court also included interest in the decree at the rate of 10% per annum from the date of decree to the date of payment in accordance with S. 34, C.P.C.--Suit was decreed. [P. 12] D & E
1996 SCMR 1530; PLD 1990 SC 497 and 2004 MLD 988 ref.
Mr. Khalid Jawaid Khan and Noman Jamali, Advocates for Plaintiff.
Nemo for Defendants.
Date of hearing: 15.5.2008.
Judgment
The plaintiff has filed this suit under Order XXXVII, Code of Civil Procedure, for recovery of Rs.34,719,297 from Defendant No. 1 and Rs. 20,000,000 from Defendant No. 2.
Brief facts necessary for disposal of the above case are that the plaintiff is a public limited company engaged, inter alia, in the business of supply of fuels to airlines while the Defendant No. 1 is a private limited company licensed as a commercial airline by the Civil Aviation Authority and was operating domestic as well as international flights and the Defendant No. 2 is its Director/Chief Executive Officer.
The plaintiff and Defendant No. 1 entered into an aviation fuels agreement dated 1st June, 1995 whereunder the plaintiff was to provide Jet A-l fuel to the Defendant No. 1 for its aircrafts at different airfields on deferred payment basis as the payment for such fuel was to be made by the Defendant No. 1 after seven days of supply and the Defendant No. 1 was to provide bank guarantee in the sum equivalent to 15 days fuel requirements of the Defendant No. 1 Accordingly, the Defendant No. 1 provided a bank guarantee in the sum of Rs.10 million (Rupees Ten Million) to the plaintiff. In the year 2005 the Defendant
No. 1 defaulted in making payment as per the agreement and, therefore, its liabilities crossed the agreed limit. The Defendant No. 1, at the request of the plaintiff, provided two more bank guarantees to the plaintiff respectively in the sum of Rs. 9,000,000 (Rupees Nine Million) and Rs.6,000,000 (Rupees Six Million). In September, 2006 the Defendant No. 1 cleared part of the accumulated liabilities by making a payment of Rs.35,000,000 (Rupees Thirty Five Million). However, from December, 2006 onwards the Defendant No. 1 again stated defaulting in making payments to the plaintiff for the fuel supplied and the cheques issued by the Defendant No. 1 to the plaintiff were dishonored on presentation as funds were not available. On 13th April, 2007 a meeting was held between representative of the plaintiff and Defendant No. 2 wherein the Defendant No. 2 assured that the cash flow problems are temporary and agreed to provide a further bank guarantee in the sum of Rs. 10,000,000 (Rupees Ten Million) the same day and Defendant No. 1 would issue a cheque in the sum of Rs. 21,474,996 the next day. The Defendant No. 1 also agreed to give his personal cheque for Rs.20,000,000 (Rupees Twenty Million) as personal guarantee for the pending amounts against Defendant No. 1. Accordingly, cheque for Rs. 21,474,996 was issued by the Defendant No. 1 but the bank guarantee was not provided as agreed. The Defendant No. 2, however, sent his personal cheque for the said amount. The cheque issued by the Defendant No. 1 was, however, dishonoured on presentation. Similarly, the cheque issued by the Defendant No. 2 was also dishonored on presentation. Vide letter dated 2nd May, 2007, the defendants acknowledged to the plaintiff that an amount of Rs.58,000,000 (Rupees Fifty Eight Million) is due and payable by them to the plaintiff. Against this admitted amount the Defendant No. 1 had furnished bank guarantees in the sum of Rs. 25,000,000 (Rupees Twenty Five million). The Defendant No. 1 requested it will pay the balance amount in six half monthly instalments over a period of three months through post-dated cheques. The plaintiff, vide letter dated 16th May, 2007 called upon the Defendant No. 1 to provide bank guarantee for the un-secured amount of about 35,000,000 (Rupees Thirty Five Million) and the amount may be paid in three instalments, through pay orders of Rs. 20 million, Rs. 10 million and Rs. 5 million respectively. However, despite repeated reminders the defendants failed to pay or secure the said amount of Rs. 34,719,297. Therefore, the plaintiff encashed the bank guarantees provided by the defendants. Since no efforts were made by the defendants to clear the balance unpaid amount, the plaintiff also deposited the cheques issued by the defendants but the same were dishonored on the grounds that sufficient funds were not available. Since the Defendant No. 1 has stopped its commercial flights and the defendants are trying to dispose of their assets with a view to defraud their creditors, the plaintiff had filed this suit for recovery of its outstanding amounts as stated above.
The summons of the suit under Order XXXVII, Rule 2, C.P.C. was issued to the defendant which was duly served on the defendants on 30th October, 2007. On 11th January, 2008, Mr. Ali Gohar Masroof, Advocate, filed power on behalf of the defendants. The defendants filed an application under Section 34 of the Arbitration Act (bearing C.M.A. No. 444/08). However, no leave to defend application was filed by the defendants within the statutory period and, accordingly, the case was fixed in Court for final disposal.
Perusal of the file reveals that an urgent application was filed by the plaintiff praying for early hearing of the application filed by the defendants under Section 34 of the Arbitration Act, However, no efforts were made by the learned counsel for the defendants to proceed with his said application. Even otherwise, the application is without any merits as the present suit has not been filed on account of any dispute between the parties but has been filed by the plaintiff under Order XXXVII. C.P.C. for recovery of amounts under Negotiable Instruments.
I have heard the learned counsel for the plaintiff. None appeared on behalf of the defendants.
First I will take application bearing CM.A. No. 444/08 under Section 34 of the Arbitration Act by which the defendant has prayed for stay of proceedings and direction to the plaintiff to settle the dispute through arbitration.
Mr. Khalid Jawaid Khan, learned counsel for the plaintiff, submits that he will argue the application without filing any counter-affidavit. He submits that the suit has been filed on the basis of negotiable instruments and the application is not maintainable. He then submits that there is no dispute between the parties which can be referred to arbitration. He then referred to the letter dated May 2, 2007 addressed by the defendant to the plaintiff and submits that the liability to the extent of Rs. 58 million has been admitted by the defendant and against the admitted liability cheques were issued and there is no need to refer the matter to arbitration. The learned counsel has relied upon the following reported cases:--
(1) Messrs Shell Pakistan Ltd. v. Messrs Bhoja Air (Pvt.) Ltd., 2007 MLD 1424, (2) Mst. Suriya Waseem Usmani v. L&M Int. (Pvt.) Ltd. 2002 CLD 624, and
(3) Cotton Export Corporation of Pakistan v. Asif Cotton Ginners, 1995 CLC 1024.
The dispute between the parties is payment of amount. The amount has been admitted by the defendant in its letter dated May 2, 2007 and against the admitted amount of Rs. 58 million the defendants have issued cheques and bank guarantees. Admittedly, the suit is not founded on any controversy covered by the arbitration clause in the agreement executed between the parties. Controversy is payment of admitted outstanding amount covered by dishonored cheques. For deciding the application under Section 34 of the Arbitration Act the pleading in the suit are to be considered. From the contents of the plaint it appears that the cause of action pleaded in the plaint is based on dishonored cheques which is an independent cause of action not related to dispute under the arbitration clause in the agreement.
In the reported case Messrs Shell Pakistan Limited (supra) it has been held that no disputes of the nature claimed by the defendant in his application under Section 34 of the Arbitration Act has arisen. Suit is simply founded on dishonored cheques, therefore, the application under Section 34 of the Arbitration Act is dismissed.
In another reported case of Suriya Waseem Usmani (supra) it has been held that when the suit is based on promissory note for the recovery of amount claimed against the defendant in summary manner no dispute between the parties could be assumed which could be referred to arbitration in terms of agreement between the parties.
In view of the above I find no merits in the application under Section 34 of the Arbitration Act which is dismissed.
During the course of arguments learned counsel for the plaintiff placed on record the original cheques along with memorandums of the bank showing that the same were dishonored as "funds not available".
Learned counsel for the plaintiff submits that the defendants, though duly served, did not file any application for obtaining leave to defend and as such, the suit is liable to be decreed as prayed. He further submits that the plaint is on oath and the original cheques issued by the defendants to the plaintiff have been submitted along with memorandums issued by the bank which prove that the defendants have failed to repay the amounts to the plaintiff.
The learned counsel for the plaintiff has relied upon the following reported cases:--
(1) Naeem Iqbal v. Mst. Zarina, 1996 SCMR 1530, (2) Ahmed Autos v. Allied Bank of Pakistan, PLD 1990 SC 497, and
(3) Mian Muhammad Amjad Amin v. Rana Bashir Ahmed, 2004 MLD 988.
The claim of the plaintiff that it had supplied fuel to the Defendant No. 1 on deferred payment basis under the agreement for payment whereof cheques were issued by the defendants which have been dishonored, has gone unrebutted and unchallenged. The plaintiff has also produced the dishonored cheques and the memorandums issued by the bank to prove his case. The defendants through letter dated May 2, 2007 has also admitted their liability to the extent of Rs. 58 million. Although Mr. Ali Gohar Masroof Advocate filed power on behalf of the defendants but the defendants neither filed any leave to defend application nor obtained any leave to defend. However, an application under Section 34 of the Arbitration Act was filed but, as discussed above, it has no bearing on the case and was dismissed.
This is a suit filed under Order XXXVII, C.P.C. Sub-rule (2) of Rule 2 of Order XXXVII, C.P.C. provides that where the defendant does not apply for leave or defaults in appearance and defence after obtaining leave, the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. This is a suit based on negotiable instruments/dishonored cheques and the presumption would be that the same were issued against consideration and the defendants have not come forward to rebut the presumption.
In the reported case of Naeem Iqbal (supra) it has been held that as per sub-rule (2) of Rule 2 of Order XXXVII, C.P.C, if a defendant after being served with summons of a summary suit, does not obtain leave to appear and defend the suit, the allegation in the plaint shall be deemed to have been admitted and the plaintiff shall be entitled to a decree.
The plaintiff has prayed for a decree for Rs. 3,47,19,000 against Defendant No. 1 and for Rs. 20,00,000 against Defendant No. 2. From the pleadings it appear that the amount of Rs. 20,00,000 is included in the sum of Rs. 3,47,19,297 as the Defendant No. 2 has issued the cheque on behalf of Defendant No. 1 as personal guarantee.
In view of the above of the suit of the plaintiff is decreed in the sum of Rs. 3,47,19,297 against the defendants, jointly and severally, but the liability of Defendant No. 2 will not exceed Rs. 20 Million in any case, with interest at the rate of 6 % per annum in accordance with Sections 79 and 80 of the Negotiable Instruments Act from 2-5-2007 to the date of the suit and at the same rate from the date of the suit till the date of the decree. The plaintiff is also entitled to interest at the rate of 10% per annum from the date of the decree to the date of payment in accordance with Section 34 of the C.P.C. with costs of the suit.
Office is directed to prepare the decree in the above terms.
(R.A.) Suit decreed.
PLJ 2009 Karachi 12 (DB)
Present: Azizullah M. Memon and Arshad Noor Khan, JJ
NATIONAL BANK OF PAKISTAN--Appellant
versus
Messrs FARRUKH CORPORATION through Legal Heirs
and others--Respondents
High Court Appeal No. 220 of 1989, decided on 30.5.2008.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Civil Procedure Code, (V of 1908), O. VII, R. 2--Intra Court Appeal--suit for recovery--Joint liability--Suit was filed by plaintiff bank against his borrower and godown owner with whom stock of the borrower were pledged--Borrower committed default of the loan and bank auctioned stocks of the borrower--Owner of godown failed to deliver full quantity of stocks pledged with him, therefore, bank suffered loss which was sought to be recovered from the owner of the godown jointly--Plea raised by bank was that both the defendants were jointly responsible for the loss caused to the bank, therefore, suit should have been decreed against both the defendants jointly--Validity--Trial Court did not appraise the evidence in its true perspective and wrongly found that there was no privity of contract between plaintiff bank and owner of the godown--If there was no privity of contract between plaintiff bank and owner of godown, the owner could not be absolved from the responsibility of keeping of particular quantity of the stock at his godown and its return in the manner in which it was kept in his godown to the bank or its nominee--If any shortfall had occurred, the owner of godown was responsible for such shortfall and was liable to pay the loss and damages caused to the stock kept by him in his godown--Owner of godown could not be let free in case of any loss or shortfall of the stock kept in his godown--Owner of godown was liable to pay the losses incurred because of his negligence to the stock kept by him at his godown--Trial Court was not justified in absolving owner of godown from such responsibility--High Court modified the judgment and decree passed by trial Court and suit was also decreed against owner of godown--Appeal was allowed. [Pp. 19 & 20] A, B & C
Mr. Mansoor-ul-Arfin, Advocate for Appellant.
Nemo for Respondents.
Date of hearing: 13.5.2005.
Judgment
Arshad Noor Khan, J.--This appeal has been directed under Section 3 of the Law Reforms Ordinance, 1972 filed by the appellant against the judgment whereby the Suit No. 373/1972 National Bank of Pakistan v. Farrukh Corporation and another, has been decreed against Respondent No. 1 and dismissed against Respondent No. 2 vide judgment dated 3-7-1989 and decree dated 22-8-1989 passed by the learned Single Judge of this Court.
Facts leading rise to the present appeal, in brief, are that the appellant filed suit for recovery of Rs. 1,56,250 against the respondents for payment jointly and severally, stating therein that the appellant is a banking company incorporated under the Companies Acts, 1913, having its registered office at Baghdadul Jadid, a Central Office at PIDC House, Karachi and a branch relevant for the purpose of the suit, known as Exchange Branch, near Denso Hall, Bunder Road, Karachi. That one Muhammad Munir Shaikh son of Muhammad Latif, who subsequently expired, was a customer of the appellant who reportedly expired in January, 1970, was the recipient of financial accommodation referred to herein appeal. The Respondent No. 2 is a Clearing and Forwarding Agent and inter alia, stored the goods (Pledged by the said deceased as security to repayment of the packing cash credit allowed to him) in their godowns certified the quantity, quality and value which formed the basis of advances allowed to the said deceased. The deceased had an account with the appellant at its Exchange Branch, Karachi under the name and style of his sole proprietary concern. Messrs. Farrukh Corporation, which account continued in the same name even after the death of the deceased. That on or about 31-5-1967, the appellant at the request of the deceased granted him a Packing Cash Credit Limit of Rs. 50,000. The said facility was utilized by the deceased to the extent of aforesaid limit from his account from time to time and deposited various amounts in the said account from time to time. The limit was operated in the following manner:--
(i) That the said limit was to be operated after the receipt of advice of a foreign Letter of Credit in favour of the said deceased for the supply of goods;
(ii) That upon receipt of such L/C advice and/or an L/C the said deceased delivered to the Defendant No. 2 goods for the purpose of export against L/C or L/Cs;
(iii) That the Defendant No. 2 for sufficient consideration accepted the said goods by way of pledge and as security for financial accommodation granted by the plaintiff and verified the quantity, quality and value of such goods as declared on the pledge form and after such verification gave a certificate in regard to the quantity, quality and value of the goods as delivered to him;
(iv) That upon receipt of pledge letter duly certified by the Defendant No. 2, as aforesaid, the plaintiff allowed the Defendant No. 1 to overdraw to the extent of 60% of the said value certified by Defendant No. 2;
(v) That the Defendant No. 2 was declared agent of the plaintiff and was responsible for any negligence or misdeclaration which might have mislead the plaintiff into giving more advances than required on basis of quantity, quality and value of the pledged goods.
On or about 26-9-1967, the aforesaid Packing Cash Credit Limit of
Rs. 50,000 was enhanced to Rs. 75,000 at the request of the deceased, which was allowed and the deceased utilized the enhanced limit in the same manner as stated above and continued to be the godown-keeper and certifier of the quality, quantity and value of the pledged goods on the basis, the limit was to be utilised. As a security for re-payment of the said cash credit and/or any balance which might at any time be found due and payable by the deceased to the appellant. The deceased also executed promissory note, dated 26-9-1967 for Rs. 75,000 payable on demand to the appellant or order with interest at 5% above bank rate minimum 10% per annum with monthly rests. That as further security in regard to the enhanced limit, the said deceased executed an agreement of pledge of goods, dated 26-9-1967. The deceased subsequently in addition to the aforesaid agreement also from time to time acknowledged his liability through his letters dated 28-8-1968, 19.9.1968 and 4-2-1969. It is further stated in the plaint that on 30.6.1969 a sum of Rs. 1,14,739,41 accumulated due and payable against the deceased, the deceased acknowledged the said liability vide confirmation letter dated 30-6-1969. It is further stated in the plaint that Respondent No. 2 certified the quality, quantity and value of the goods pledged by/the said deceased as security for payment of the aforesaid dues and all several and progressive dues. The Respondent No. 2 also confirmed and certificated Bone-meal 100 tons Rs. 400 per tone amounting to Rs. 40,000; Horns & Hoofs 100 tons Rs. 400 per ton amounting to Rs. 40,000 and Blood-meal 100 tons Rs. 600 per ton amounting to Rs. 60,000, total amount to Rs. 1,40,000. Since the deceased failed to fulfil obligation on his part, as such, the appellant sold the pledged stock, the total quantities delivered by Respondent No. 2 to the purchasers and the value obtained was Bone-meal, horns and hoof. 135 tons at Rs. 18,955.44 and Blood-meal 18 CWT at Rs. 281.25; total amount of Rs. 19,236,69, duly credited in the account of the deceased towards partial adjustment of his liability to the plaintiff. The aforesaid sale was made in consultation with the Respondent No. 2 and quantities were weighed and delivered by the Respondent No. 2. The Respondent No. 2 is liable for the difference in certified stock and the stock actually found and sold from his possession. The Respondent No. 2 vide his letters dated 3-7-1969 and 8-12-1970 sent evasive reply about the shortfall in quantity and value, which is an acknowledgment of his liability within the meaning of Section 19 of the Limitation Act. The appellant therefore, filed the suit as stated above. The respondents were served with the notice. The Respondent No. 1 did not contest the suit in spite of service, however, Respondent No. 2 contested the suit by filing of written statement, inter alia, admitted therein, to be a Clearing and Forwarding Agent of the appellant and deposit of the pledged goods at his godown, but according to him the quality, quantity and value of the pledged goods were not certified by him. He further denied the assertion that there was any short fall in the stock pledged by the Respondent
No. 1 with the Respondent No. 2 and kept in his godown and has further stated that he had returned all the goods on the advice/order of the appellant and that there exists no privity of contract, as such he was not liable for any liability towards payment as claimed by the appellant. On pleadings of the parties, the following issues were framed:--
(1) Whether the Defendant No. 2 certified the quantity, quality and value of the goods stored with them by the Defendant No. 1?
(2) Whether Defendant No. 2 is liable for difference in the value of the certified stock in its position and the value on which this stock was sold, and were the stocks weighed in the presence of the Defendant No. 2?
(3) Whether all the goods had been delivered by the Defendant No. 2 to the plaintiff?
(4) Whether there is a privity of contract between the Defendant No. 2 and the plaintiff?
(5) To what decree the plaintiff is entitled to, and against which defendant?
(6) Whether the suit is bad for misjoinder of the Defendant No. 2, if so, to what extent?
After framing the issues, the parties led their evidence in pro and contra to their respective claims and filed all the relevant documents in respect of their claims. The learned Single Judge after hearing of learned counsel for the parties, was pleased to dismiss the suit against Respondent No. 2 and decreed the suit against Respondent No. 1.
The appellant being highly aggrieved and dissatisfied with the judgment and degree passed against Respondent No. 2 has preferred the present appeal, whereas the Respondent No. 1 has not challenged the judgment and decree, impugned herein, as such decree passed against them has attained finality.
We have heard Mr. Mansoor-ul-Arfin, Advocate for the appellant. The respondent in spite of service, chooses to remain absent.
Mr. Mansoor-ul-Arfin, Advocate for the appellant vehemently contended that the evidence available on record fully establish the claim of the appellant against the Respondent No. 2 also and Respondent No. 2 has not led the evidence of any independent witness to controvert the claim of the appellant as such the claim of the appellant against the Respondent No. 2 has also been established on the basis of evidence available on record and the learned Single Judge did not apprise the evidence available on record in its true perspective and misread the evidence while holding that there exits no privity of contract and the Respondent No. 2 was not liable for any losses allegedly caused to the appellant. He has further contended that Section 176 of the Contract Act, in any way is not applicable to the circumstances of the present case, as Section 176 of the Contract Act applies against the Respondent No. 1, who pledged the stock with the appellant and said stock was kept in the godown of the Respondent No. 2 after his certification as to the quantity, quality and value of the goods and the stock reports Exhs.5/4 and 5/5 are the conclusive proof of certification of quantity, and value of the goods which were subsequently found shortfall for which Respondent No. 2 could not be absolved from his responsibility for the losses caused to the appellant as such the evidence available on record has been misconstrued by the learned trial Court while dismissing the suit against Respondent No. 2 as such, the findings of the learned trial Court against the Respondent No. 2 may be reversed and the suit may also by decreed against Respondent No. 2.
We have considered the arguments advanced on behalf of the appellant and have gone through the entire evidence available on record.
For the purpose of determination of the present appeal, the point for consideration would be that whether there was shortfall in the stock pledged by the Respondent No. 1 with the appellant and kept in the godown of Respondent No. 2 in spite of the certificate regarding quantity and value of the stock and the Respondent No. 2 is equally responsible for the losses caused by him to the appellant.
In support of their respective claims, both the parties have led their oral as well as documentary evidence. The appellants have examined their officers namely; Fareed Qazi as P.W. 1, who stated that the loan facility was allowed to the deceased, who pledged this stock with the appellant and the pledge stock was kept in the godown of the Respondent No. 2 being Clearing and Forwarding Agent of the appellant and the said stock was certified with regard to quantity and value of the same by the Respondent No. 2. The Respondent No. 2 in his written statement has admitted the fact that he was acting as Clearing and Forwarding Agent of the appellant and kept the stock pledged by Respondent No. 1 with the appellant, in his godown, but has denied that the said stock was weighed any quantity and was certified for value also. The said denial of Respondent No. 2 about the certification regarding the quantity, quality and valuation of the stock vide stock reports Exhs.5/4 and 5/5, and has stated in his evidence that he had not confirmed the said stock but his employee Haroon had checked the stock. The evidence led by the Respondent No. 2 in this respect is very clear. In his evidence before the learned trial Court he stated that he was not present when the stock were brought to his godown but his staff was present and that there was no reading the said stock when brought to their godown and one Anwar, Export Officer of the said bank used to escort the said stock to their godown and said Anwar was arrested in a case of fraud but not related to this consignment. He further stated in his examination-in-chief that he prepared stock report of the goods at the time, when the same was brought to their godown and then submitted to the bank. He confirmed in his examination-in-chief that stock reports Exhs. 5/4 and 5/5 were prepared by his staff and has stated that the said stock report bears the signature of Haroon, one of the members of staff. He while replying the question of the Court stated that writing in the column "approximate value" circled in red mark as Exh. 5/4/A is not in the handwriting of Haroon. In his cross-examination the Respondent No. 2 admitted that in fact the goods used to be pledged in the bank before the same were brought to his godown. He further admitted to a suggestion in his cross-examination that they were taking the goods in their possession on behalf of the bank. He further ratified that stock report Exh.5/5 was prepared by his office and bears the signature of his representative Haroon and has further admitted at the bottom of Exh.5/5 his signature. He further stated in his cross-examination that Anwar, officer of the bank also used to be present and his representative used to be there for opening the godown and storing the goods. He further admitted the suggestion in cross-examination that he had not informed the bank immediately after taking delivery of the goods and that they have not been weighed by us. He further admitted the suggestion in his cross-examination that the stock reports Exhs. 5/4 and 5/5 are correct.
The evidence of Respondent No. 2 as discussed above, without any iota of doubt, shows that Respondent No. 2 had kept the stock at his godown but no where he stated that he ever reported to the bank about any shortfall of the stock. He has admitted that stock reports 5/4 and 5/5 have been prepared by his staff member namely Haroon and at the bottom of these reports his signatures are present. A perusal of the stock reports shows that the same were prepared by the Respondent No. 2 through his staff and in view of such admission of Respondent No. 2 the averment contained in such stock report, duly signed by him, remained undisputed. The said stock report, therefore, appears to be a certificate regarding quantity, quality and value of the stock kept by the appellant in the godown of Respondent No. 2 and Respondent No. 2 could not be absolved from his liability for return of the pledged goods in the manner and quantity in which it was kept in his godown. The shortfall of the stocks has been admitted by Respondent No. 2 which strengthen the claim of the appellant. In view of the stock reports Exhs.5/4 and 5/5 the Respondent No. 2 was duty bound to return the whole quantity of the stock kept in his godown which he miserably failed to do and the learned trial Court did not appraise the evidence in its true perspective.
The learned trial Court has observed that Respondent No. 2 could not make responsible for any loss caused to the appellant in absence of any notice under Section 176 of the Contract Act. Section 176 of Contract Act 1982, in our humble opinion, does not attract to the circumstances of the present case as the Respondent No. 2 neither pledged the goods nor was owner or Pawnee and was simply an agent who kept the pledged stock at his godown. As such Section 176 of the Contract Act is not attracted to the circumstances of the present case, therefore, finding of the learned trial Court on this view of the matter, is contrary to the evidence available on record.
Respondent No. 2 has not controverted the evidence of P.W. 1 Fareed Qazi regarding keeping of the stock in his godown, which is completely in consonance with the averment contained in the plaint but in his cross-examination the claim of the appellant regarding keeping of the stock in the godown of Respondent No. 2 and its shortfall has not been seriously disputed, denied or challenged but a new story has been introduced by Respondent No. 2 by suggesting to P.W. 1 Fareed Qazi that the stock was initially kept in the godown at Landhi which was subsequently shifted to seven seas Godown West Wharf, Karachi, but the said plea has not been taken by him in his written statement nor he was stated about shifting of the stock from the godown at Landhi to Seven Seas Godown, West Wharf in his evidence before this Court, which shows that the Respondent No. 2 has taken divergent pleas with regard to shortfall of the stock kept in his godown. Learned trial Court accused the said Anwar to be responsible for the shortfall but fact remains that the burden to discharge the said point heavily lies on the Respondent No. 2 to show that the said Anwar was responsible in any manner in causing shortfall to the stock kept in the godown of the Respondent No. 2. Respondent No. 2 in his evidence before the learned trial Court, has admitted that the case of fraud was not registered against the said Anwar, and has also admitted that whenever the godown was being opened for delivery of stock, his employee and Anwar used to remain present and, in case, if his employee used to remain present, how the said Anwar could be responsible for removal much more stock than the order issued by the appellant and, in case, if it was allegedly so, what was the responsibility of his employee in whose presence the said stock was allegedly removed, even the said Haroon who had prepared the said stock reports Exhs.5/4 and 5/5 and other documents have not been examined by the Respondent No. 2 in support of his claim and non-examination of the said Haroon is of much significance which adversely reflects on the defence taken by Respondent No. 2.
The learned trial Court did not appraise the evidence in its true perspective, as discussed above and wrongly held that there was no privity of contract in between the appellant and Respondent No. 2. In case, if there was no privity of contract in between the appellant and Respondent No. 2 the responsibility of Respondent No. 2 could not be absolved with regard to keeping of the particular quantity of the stock at his godown and its return in the manner in which it was kept in his godown, to the appellant or his nominee and, in case, if any shortfall occurs, he is responsible for the said shortfall and is liable to pay the loss and damages caused to the stock kept by him in his godown. From this angle, also the responsibility of Respondent No. 2, which has been admitted by him regarding keeping stock in his godown, he could not be let free, in case of any loss or shortfall of the said stock kept in his godown. He is, therefore, fully liable to pay the losses incurred because of his negligence to the stock kept by him at his godown. The point is, therefore, answered in affirmative.
The appraisal of whole evidence available on record, therefore, fully establishes that Respondent No. 2 is equally responsible for all the losses and damages caused by him to the stock kept in his godown by the appellant as such learned trial Court was not justified in absolving him from such responsibility.
The result of the aforesaid discussion is that the appeal is allowed, the judgment and decree passed by the learned trial Court is modified and is decreed against the Respondent No. 2 also, as prayed, with costs.
(R.A.) Appeal allowed
PLJ 2009 Karachi 20
Present: Khalid Ali Z. Qazi, J
ABDUL GHANI and others--Plaintiffs
versus
ABDUL RASHID and others--Defendants
Suit No. 1273 of 2002, decided on 23.6.2008.
Administration of Justice--
----Technicalities not to create hurdles in way of substantial justice-- Principles--Cases of parties should be decided on merits--If a party upon evidence brought on record, has established his case on merits, then such party should not be knocked out on technical grounds--Technicalities should not create hurdles in the way of substantial justice--Mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. [P. 35] D
2003 SCMR 1553 rel.
Partnership Act, 1932 (IX of 1932)--
----Ss. 43 & 44--Suit for dissolution of partnership and rendition of account--Validity--Partnership may be dissolved by any partner by giving a notice u/S. 44 of Partnership Act--Said ground was repelled by Division Bench--Held: Court can dissolve a firm at the suit of any partner. [P. 32] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XL, R. 1--Partnership Act, (IX of 1932), Ss. 43, 44 & 46--Suit for dissolution of partnership and rendition of accounts--Nazir of the Court appointed as Commissioner/Receiver to prepare report about the accounts and assets of the property of the firm submitted that in spite of repeatedly asking the defendants to produce the accounts of the firm, no such accounts and layout plan of the Scheme were produced, as such, it was not possible for the Nazir to prepare the accounts of partnership--Defendants admitted in their written statement and affidavit-in-evidence and cross-examination that they were conducting the affairs of partnership business as managing partners but in spite of that admission and the direction of the Court they failed to tender accounts to the plaintiffs and in spite of directions of the Court they, as managing partners, failed to provide and submit accounts of the partnership firm, bank statements, approved plan, allotment orders of the plots in the Housing Scheme and monies received from the allottees of the plots and all the accounts in respect of partnership firm but the managing partner fraudulently, mala fide and dishonestly failed to produce all such accounts and documents--High Court, ordered the office to prepare final decree in terms of O.XX, R.13, C.P.C. and appointed the Nazir as Receiver as well as Commissioner to take over the business and all the assets of the partnership firm moveable or immovable and recover from the defendants including unutilized land of the Housing Scheme (Partnership business) and after taking over all the assets and properties of the partnership firm, he was further directed to sell the same through public auction on `as is where is' basis and to distribute the sale proceeds amongst the partners in accordance with their respective shares. [Pp. 32, 33 & 35] B & E
Partnership Act, 1932 (IX of 1932)--
----S. 30--Admission of minor in partnership--Scope--Minor may be a partner in a firm with the consent of all the partners for the time being and he may be admitted to the benefits of the partnership.
[P. 35] C
PLD 1955 Lah. 350 ref.
Mr. Mubarak Ahmed, Advocate for Plaintiffs.
Syed Ashfaq Hussain Rizvi, Advocate for Defendants.
Dates of hearing: 20.11.2007, 5.12.2007 and 15.1.2008.
Judgment
This is a suit for dissolution of partnership and rendition of accounts filed by plaintiffs Abdul Ghani & others sons and daughters of Shaban in respect of certain immovable properties consisted of Survey Nos: 254, 255, 264, 288, 291, 292, 299, 300, 482, 483, 484, 485, 486, 496, 497, 513, 514, 516 and 791, Deh Thano, Tappo Thano Taluka and District Malir, Karachi. All such properties have already been mutated in the names of the plaintiffs and defendants according to their shares. The plaintiffs have prayed for judgment and decree to the effect that:
"(a) to direct the Defendants Nos. 1 and 2 to tender the account from the very inception of the tenancy of Defendant No. i.e. Messrs Shaban Corporation, Suit No. 1-4, D/6, Block-7 & 8, Shaheed-e-Millat Road, Karachi from 10-4-1984.
(b) To dissolve the partnership dated 10-4-1984.
(c) To appoint a Receiver. .
(d) Cost of the suit.
(e) Any further relief in the circumstances of the case this Honourable Court may deem fit and proper."
The Defendants Nos. 1 and 2 for launching a project i.e. Shaban Town obtained an office on Pugri basis. The Defendants Nos. 1 and 2 were paying money out of the proceeds against receipt the accounts of which are kept by them, but the accounts of the firm were never made available to the plaintiffs in spite of repeated requests. The Defendants Nos. 1 and 2 launched the project after obtaining necessary permission from the relevant authorities and made crores of rupees but never paid a single penny to the plaintiffs nor tendered any accounts of the business. On account of failure of Defendants Nos. 1 and 2 to tender the accounts of the business concern, the plaintiffs served a legal notice on them at their business address, but they refused to accept it. The plaintiffs due to loss of faith are no more interested to continue the partnership and seek dissolution of partnership.
The cause of action is shown to have arisen firstly on 10.4.1984 when the partnership was entered into between the parties and on 3-10-2002 when the legal notice was served upon the defendants and since then it continues till the accounts are settled and partnership is dissolved.
In response to the summons issued by this Court, defendants filed their written statement through their attorney Defendant No. 1, wherein it is stated that the said project was not only proposed by the Defendants Nos. 1 and 2 but it was proposed by the plaintiffs and defendants as all were running short of money. It is submitted that Defendants Nos. 1 and 2 are young, educated and well conversant with the management of business and accounts and have initiative to work for better prospects. It is admitted that the plaintiffs and defendants are the partners of the firm, but added that there is a great difference between sleeping partner and active partner and as such they cannot be at par with each other. It is denied that the accounts of the firm were not made available to the plaintiffs and they were paid by the defendants more than their share. It is also admitted that by mutual consent of the partners who are real brothers and sisters appointed Defendants No. 1 who is an educated person and Advocate by profession, to manage to dispose of few acres of lands for the prosperity of entire family. It is further submitted that Defendant No. 1 gave up his legal profession and struggled hard in view of the worst financial condition.of the family. It is further stated in the written statement that the market value of the said land is much less than the value as estimated by the plaintiffs in the plaint and they were made more than their shares, being real brother and sisters proper receipts have not been taken regularly, which does not mean that the plaintiffs have been deprived of their legal shares. It is submitted that the total land of the project comprising of 7 acres and three ghuntas, and out of the above land only 3.48 acres have been utilized. The break up of the utilized land is as under:
"(a) Plots of 120 sq. yds = 12
(b) Plots of 8-0 sq. yds = 23
(c) Commercial plots of 80 sq. yds=20
A. Land utilized 13,440 sq. yds.
B. Land utilized 1840 sq. yds.
C. Land utilized 1600 sq. yds.
Total land utilized 16,880 sq. yds."
It is denied that the defendants refused any notice issued by this Honourable Court. It is submitted that late Taj Bibi Plaintiff No. 3 had received approximately double of her share and she has issued receipt of Rs. 545,000 and Abdul Ghani has issued receipt of payment of share Rs. 1,87,000 and Mrs. Habib had issued receipt of Rs. 62,000, these payments are in addition to more payments for which they have not issued receipts as such all the plaintiffs have taken their due shares out of sale proceeds. It is further stated that the plots in question were sold at the rate of Rs. 1000 per sq. yds. commercial plots, although the rates fixed by KBCA/City District Government were a little more but the plaintiff had to sell the plots on the above said rates as no purchasers were available to purchase the plots more than the said amount. It is also submitted that the Defendants Nos. 1 and 2 being the acting directors of the company drawing only Rs. 12,000 each per month inclusive conveyance and little remuneration and Rs. 10,000 for miscellaneous expenses of the company since establishment of project in 1993. It is denied that any instalment against the plots are due as the deal of the plots have almost completed and dissolution of partnership at this stage may create severe hardships to the purchasers of the plots and may disturb the further dealings in progress. It is specifically submitted that the Plaintiff No. 1 is uneducated person and is under influence of Plaintiff No. 2, who is real sister of Defendants Nos. 1 and 2 and Plaintiff No. 2 is absolutely under influence of her husband who is instigating the Plaintiff No. 2 to institute this case only for reacting harassment for getting maximum benefits from in-laws of the defendants. It is also denied that no cause of action has accrued in favour of the plaintiffs against the defendants and prayed for dismissal of suit with compensatory costs.
In order to prove the case, the plaintiffs examined Mohammad Azhar Baloch, the attorney of the plaintiffs and son of the Plaintiff No. 2, who filed his affidavit-in-evidence as Exh.l and virtually reiterated the contents of the plaint and asserted that the averments made in the written statement are to be strictly proved by the Defendants Nos. 1 and 2 and also examined Plaintiff No. 3 Mohammad Shoaib son of late Taj Bibi the predecessor of Plaintiffs Nos. 3 to 13 who filed affidavit-in-evidence as Exh.2 both were cross-examined. The affidavit-in-evidence filed by Mohammad Azhar Baloch Exh.A General Power of Attorney has also been marked as Exh.B photocopy of statement of alleged payment has been produced as Exh.B and photocopy of statement of payment as Exhs.C and D. In cross-examination it was suggested that partnership Deed can only be dissolved by three contributing male members. The notice was given to the defendants through Advocate for the plaintiffs. It was denied that the shares of all the partners were paid. The witness was asked that he is living in the house of his maternal grandmother, which is denied and stated that he is living in his father's house. Mohammad Shoaib, the Plaintiff No. 3, was also cross-examined and he denied the payment of his mother Taj Bibi, predecessor of Plaintiffs Nos. 3 to 13 and also denied suggestion that he was paid Rs. 2,60,000.
The Defendant No. 1 filed his affidavit-in-evidence as Exh.D. The photocopies of Annexures were not exhibited, as original were not produced. He reiterated the contents of written statement, in para-5 of affidavit-in-evidence he introduced a new payment of Rs. 2,60,000 to Mohammad Shoaib, Plaintiff No. 3, and as such he was examined. In para.7 of the affidavit-in-evidence he stated that as Director the Defendant No. 1 and Defendant No. 2 as Acting Director were drawing Rs. 12,000 each per month and in addition to the remuneration a sum of Rs. 10,000 towards expenses per month since 1993. He further stated in affidavit-in-evidence that he received Rs. 8,00,000 from Mr. Sarwar Shaikh on account of investment of Rs. 5,00,000 and Rs. 3,00,000 of service charges from incorporation till 1998 and rest of the averments are repeated from the written statement.
In cross-examination the following admissions are made by the Defendant No. 1;
-- He is not on roll of Advocates now;
-- Notice under Order XII Rule 12, C.P.C. admitted to have been received;
-- Partnership Deed admitted;
-- Sisters are uneducated and brothers are under Matric;
-- Partnership Deed first denied having been got prepared by him then admitted that Partnership Deed was drawn under instructions of Defendants Nos. 1, 2 and 4;
-- Admitted that the clauses of Partnership Deed were not explained to the other members;
-- Admitted that in Para-5 of Partnership Deed share of male members were 14 Paisa and female members are 5 Paisa;
-- Admitted that according to Partnership Deed the shares of male members are 12« Paisa and 6-1/2 for sisters;
-- Business started from 1993-94;
-- He admitted that there is no other business except the partnership;
-- He admitted that office of partnership is being used for computer network;
-- He admitted 3 visiting cards Exhs.0/4, 0/5 & 0/6 which show that the premises of office is used by Ghulam Murtaza, Ghulam Sajjad and Ghulam Habib Shaban for their business;
-- No contribution is made to the partnership for using premises;
-- The telephone mentioned in the cards are of partnership business but no payment is made to the partnership business;
-- Telephone bills and Electric charges, mentioned in affidavit-in-evidence are correct and the payments are made by the partnership;
-- Brothers and nephews whose cards produced did not contribute to the partnership;
-- Witness admitted there were no minutes recorded of meeting of partnership;
-- It is admitted that no permission was obtained from other partners for running other business;
-- The witness stated that from 1997 till now i.e. 14-2-2005 he has not posed himself as an Advocate;
-- He admitted that Safar Jamal lodged a case under Sections 468 & 471, P.P.C. the F.I.R. No. 96/2004;
-- He admitted that Bail application was moved by him and in Para-4 of Bail Application he stated that he is an Advocate of KBA;
-- The witness admitted that the male members have invested Rs. 20,000 and female members Rs. 10,000 which was received by him;
-- The witness shows his ignorance whether he opened Bank account of company of the account so received;
-- He admitted that no register of account in the office as such cannot be produced;
-- After the Preliminary Decree the office used only for getting mail;
-- The witness admitted that he has not produced any copy of the receipt of monies received from plot holder; .
-- Witness produced certain account books;
-- Witness admitted that Register No. 7, Exh.7, pertains to September, 1993 to June, 1994 accounts;
-- Other Register pertains to the accounts upto 1999 and these accounts prepared by accountant Hayder Abbas;
-- Hayder Abbas left service in 1999 or 2000;
-- No accountant appointed after Hayder Abbas;
-- Account Books are not signed by the Accountant;
-- The witness produced 12 Register as Exhs. 1 to 12;
-- The witness admitted that on Exhs. 1 to 12 there are no signatures of the witness, accountant Hayder Abbas or of any concerned person;
-- The witness admitted that these Registers are in one handwriting and in one ink;
-- The witness shows his ignorance about Exhs. 1 to 12 whether these are new register or old;
-- The witness denied that these Registers are prepared now;
-- The witness admitted no reconciliation accounts were prepared as he is not aware;
-- The witness shows his ignorance about maintaining the accounts of firm from 1984 till 93;
-- The accounts of Rs. 1,60,000 were received in 1984 from the parties cannot be prepared;
-- The witness further admitted that the accounts from July 1999 were not maintained;
-- The witness admitted that Defendants Nos. 1 and 2 have drawn loan of Rs. 8,60,000 and Rs. 9,50,000 respectively;
-- The witness admitted that no permission or consent of the plaintiffs taken for obtaining above loans;
-- He clarified that it was not loan and wrongly mentioned in books as loan;
-- The witness admitted that he and Defendant No. 2 drawing Rs. 14,000 per month each from 1994 and thus total amount drawn by Defendants Nos. 1 and 2 comes to Rs. 47,94,000 over 14 years;
-- The witness had shown his ignorance whether income tax returns were submitted or not;
-- The witness admitted that Rs. 7,50,000 was paid to Faiz Mohammad Palari who has given his office to the company but this account was only for the furniture and specially denied that no Pugri was paid to Mr. Palari but further payment of Rs. 7,50,000 is shown in accounts having been paid to Mr. Faiz Palari;
-- The witness admitted that the receipts of payment were not confronted to the witness of the plaintiffs;
-- The witness admitted that various receipts of payments made through cheques;
-- The witness admitted that the female members are illiterate and Pardanashin ladies;
-- First the witness stated that the plaintiffs are illiterate and females are Pardanashin and they have not any bank account but thereafter stated he is not aware but no bank reconciliation statement produced to prove the encashment or cheques alleged to have been paid to the plaintiffs;
-- The witness failed to produce file of KDA and KBCA in respect of Shaban Corporation as the Plaintiff No. 1 took all the files three years ago;
-- The witness admitted that he received instalments form the allottees;
-- The witness admitted that the affidavit-in-evidence was filed after the incident of taken away the files by the Plaintiff No. 1;
-- The witness admitted that Photostat of documents filed with affidavit-in-evidence in absence of original documents;
-- The witness admitted Rs. 7,50,000 to Mr. Faiz Palari before 30-6-1995 on account of furniture;
-- The witness shows his ignorance about further payment of Rs. 7,50,000 to Faiz Palari. He has returned Rs. 8,00,000 to Mr. Sarwar on account of investment and service charges;
-- The witness admitted that no partner can be inducted without permission of all the partners;
-- The witness further admitted that no permission taken in writing from the plaintiff to induct Mr. Sarwar Shaikh as partner in partnership;
-- The witness further admitted that no notice of induction of Mr. Sarwar as partners was given to Registrar of firms;
-- The witness admitted that he has no proof of induction of Mr. Sarwar as partner;
-- The witness admitted that he has not produced any original document as per list given in the affidavit-in-evidence;
-- The witness admitted that he has not produced documents in respect of allotment of plots and receipt of payment received from the allottees;
-- The witness admitted that the value of the plots comes to Rs. 2,06,70,260;
-- The witness denied the value of project was Rs. 6,65,00,000;
-- The witness admitted that the shares of the plaintiffs amounting to Rs. 1,62,50,000 was not paid to the plaintiffs.
I have heard Mr. Mubarak Ahmed Bar-at-Law, learned counsel for the plaintiffs and Mr. Syed Ashfaq Hussain Rizvi learned counsel for the defendants and with their able assistance examined the record and evidence produced by the parties.
Mr. Mubarak Ahmed learned counsel for the plaintiffs has reiterated the same facts as stated in the plaint, affidavits and counteraffidavits filed by the parties and evidence of the parties, and argued that Plaintiffs Nos. 1 and 2 and predecessor of the Defendants Nos. 3 to 13 Mst. Taj Bibi and the defendants are legal heirs of late Shaban son of Shamal, who left number of properties which were duly mutated in the name of the parties. He contended that in this suit preliminary decree was passed on 14-4-2004, whereby the partnership firms was dissolved with effect from 23-12-2002 and Nazir of this Court was appointed as Commissioner/Receiver in respect of the assets and properties of the partnership firm and to carry out investigation and inquiry including the receivable and to determine the share of each of the partner. Nazir was further directed that after taking accounts from all the partners to determine their respective entitlement in terms of partnership deed and to record evidence. He contended that against the preliminary decree dated 14-4-2004 the defendants filed H.C.A. No. 94/2004, which was dismissed in limine. The Nazir recorded the evidence and submitted his report dated 2-8-2007, wherein share is determined as per partnership deed. According to which male members have double share and female members have single share which position was admitted by both the parties. He further contended that despite repeated opportunities to Defendant No. 1 he failed to produce documents of the accounts and lay out plan in respect of the partnership firm, therefore, the Nazir could not prepare the accounts of partnership firm.
Mr. Mubarak Ahmed, learned counsel for the plaintiff further submitted that defendants admitted in their written statement and evidence that Defendants Nos. 1 and 2 were conducting the affairs of partnership business as Managing Partners but they malafidely and dishonestly failed to tender the accounts to the plaintiff and in spite of direction of this Court the Defendant No. 1 as Managing Partner failed to provide accounts of the partnership firm, bank statement, approved plan, allotment orders of the plots and sums received from the allottees.
Mr. Mubarak Ahmed learned counsel for the plaintiff also argued that according to the defendants they have used only 3-45 acres of land out of 7.3 acres as such rest of 3-45 acres of land remained unutilized. The Nazir of this Honourable Court could not take over the business and assets of partnership firm as the Defendant No. 1 has not provided the accounts of assets of the firm. He submitted that the alleged payments made to the plaintiffs were not confronted to the witnesses of the plaintiffs and even not proved as provided under the Qanun-e-Shahadat. Therefore, no notice of these payments can be taken. He urged that the Defendants Nos. 1 and 2 have admitted to have received Rs. 12,000 each per month and in cross-examination Defendant No. 1 admitted to have received Rs. 14,000 each per month without permission or consent of the plaintiffs. The total amount on this score comes to Rs. 23,84,000 each from 1994 to 2007, which means both of Defendants Nos. 1 and 2 dishonestly appropriated the funds of the firm which amounts comes to Rs. 47,68,000. He also contended that the defendants have further shown to have spent the amounts on various account such as Electricity, Salaries to staff, Telephone General Admin. Miscellaneous, Development, Office Rent, Advertising and publicity, payment to Sarwar Shaikh, Salaries to Defendants Nos. 1 and 2 and drawing of partners. He argued that all theses expenses are not supported as per requirement of law under Qanun-e-Shahadat and that the office premises was used by the Defendants Nos. 1 and 2 and their sons and nephews for their personal business but no payment has been made to the partnership firm this is to be taken notice by Nazir as Receiver. The Defendants Nos. 1 and 2 have further drawn Rs. 40,00,000 but no other partner has been paid their share. He has further submitted that the Defendant No. 1 committed fraud, misrepresentation and irregularities whereby the monetary benefits obtained from the partnership. He has prayed that the final decree be passed with a direction to the Nazir to take over the assets of business of partnership firm moveable and immovable more specifically the unutilized land and to recover the above amounts from the Defendant No. 1, as detailed below:--
(i) Rs. 47,68,000 Drawn by Defendants Nos. 1 and 2 as salaries.
(ii) Rs. 8,00,000 Paid to Mr. Sarwar Shaikh
(iii) Rs. 40,00,000 Received by Defendants Nos. 1 and 2 partner share.
(iv) Rs. 15,80,000 Drawn by Defendant No. 1 as expenses.
Total Rs. 1,11,48,000
In addition to the above, the Nazir directed to obtain accounts of all the payments mentioned above from Defendant No. 1.
Mr. Syed Ashfaq Hussain Rizvi Advocate for the Defendants Nos. 1 to 9 have controverted the arguments of Mr. Mubarak Ahmed, learned Advocate for the plaintiff and reiterated the facts as stated in the written statement. Mr. Syed Ashfaq Hussain Rizvi, raised the legal objections about the maintainability of the suit on the ground that partnership was entered into between the parties on 10-4-1984 and legal notice was allegedly received on 3-10-2002 and suit was filed on 23.12.2002 therefore it was filed after six (6) years hence it is being hit by Articles 106 and 120 of the Limitation Act, (IX of 1908). He further submits that the legal notice could not be treated as fresh cause of action. He further contended that no letter of administration has been produced by the legal representatives of deceased. He also submits that one minor could not become a partner even through guardian under Section 30 of the Partnership Act (XI of 1932). In support of his case, learned Advocate has relied upon PLD 1955 Lahore 350.
I have given due consideration to the arguments advanced by the learned counsel for the parties, gone through the material placed on record, relevant law and the case-law cited at the bar. In this case preliminary decree was passed on 14-4-2004, whereby the partnership firm was dissolved w.e.f. 23-12-2002 and Nazir of this Court was appointed as Commissioner/Receiver in respect of the assets and properties of the partnership firm and to carry out investigation and inquiry including the receivable and to determine the share of each of the partner. Nazir was further directed that after taking accounts from all the partners to determine their respective entitlement in terms of partnership deed and to record evidence.
On perusal of record it reveals that in the H.C.A. No. 94/2004 it was pleaded by the defendants that in terms of Clause 14 of the partnership deed for dissolution of the firm three contributing members can give three months notice in writing and as such the dissolution of firm by learned Single Judge is improper. This ground specifically repelled by Honourable Division Bench as according to Section 43 of Partnership Act partnership may be dissolved by any partner by giving a notice under Section 44 of the Partnership Act. It was held that the Court can dissolve a firm at the suit of any partner. It was further held in view of written statement filed by the defendants the partnership between the partners has not been denied and as such the partnership was rightly dissolved and appeal was dismissed in limine. The Nazir recorded the evidence and submitted his report dated 2-8-2007 wherein the share is determined as per Partnership Deed. According to which male members have double share and female members have single share which position was admitted by both the parties. The Nazir further submitted that Defendants No. 1 has not produced documents of the accounts and lay out plan in respect of the partnership firm. The defendant contented that all the record taken away by the Plaintiff No. 1 but no proof of such allegation has been produced. The Nazir served a notice to Defendant No. 1 to produce accounts of partnership and assets i.e. movable and immovable on 27-12-2006. The Nazir further submitted that in spite of repeatedly asking the Defendant No. 1 to produce the accounts of firm but no such account and layout plan of Shaban Town were produced by the Defendant No. 1 as such it is not possible for the Nazir of this Court to prepare the account of partnership. It appears from the record that the defendants admitted in their written statement and affidavit-in-evidence and cross-examination that Defendants Nos. 1 and 2 were conducting the affairs of partnership business as Managing Partners but they failed to tender the accounts to the plaintiffs and in spite of directions of this Court the Defendant No. 1 as Managing Partner failed to provide and submit accounts of the partnership firm, bank statement, approved plan, allotment orders of the plots and monies received from the allottees and all the accounts in respect of partnership firm but the Defendant No. 1 fraudulently, malafidely and dishonestly failed to produce all such accounts and documents.
On perusal of record and evidence produced by the parties, the arguments advanced by Mr. Mubarak Ahmed have some force.
The contentions raised by Mr. S. Ashfaq Hussain Rizvi are misconceived as it is very clear in Article 106 of the Limitation Act, 1908 that period of limitation is three years which is being counted from the date of dissolution of partnership. In the present case partnership has been dissolved by this Court by preliminary decree. As regards Article 120 of the Limitation Act, 1908 the period is six years from the date of when the right to sue accrues. In the present case both these Articles are not attracted. Therefore, the suit as filed is within time. He further contended that no letter of administration has been produced by the legal representatives of the deceased, this contention as well has no force as it is admitted position, therefore, it was not necessary to file the letter of administration in the present case. He further submits that one minor could not become a partner even through guardian under Section 30 of the Partnership Act (XI of 1932). Section 30 of the Partnership Act, 1932 is reads as under:--
"30. Minors admitted to the benefits of partnership.--(1) A person who is a minor according to the law to which he is subject may not be a partner in a firm, but, with the consent of all the partners for the time being, he may be admitted to the benefits of partnership.
(2) Such minor has a right to such share of the property and of the profits of the firm as may be agreed upon, and he may have access to and inspect and copy any of the accounts of the firm.
(3) Such minor's share is liable for the acts of the firm, but the minor is not personally liable for any such act.
(4) Such minor may not sue the partners for an account or payment of his share of the property or profits of the firm, save when severing his connection with the firm, and in such case the amount of his share shall be determined by a valuation made as far as possible in accordance with the rules contained in Section 48:
Provided that all the partners acting together or any partner entitled to dissolve the firm upon notice to other partners may elect in such suit to dissolve the firm and thereupon the Court shall proceed with the suit as one for dissolution and for settling accounts between the partners, and the amount of the share of the minor shall be determined along with the shares of the partners.
(5) At any time within six months of his attaining majority, or of his obtaining knowledge that he had been admitted to the benefits of partnership, whichever date is later, such person may give public notice that he has elected to become or that he has elected not to become a partner in the firm, and such notice shall determine his position as regards the firm:
Provided that, if he fails to give such notice, he shall become a partner in the firm on the expiry of the said six months.
(6) Where any person has been admitted as a minor to the benefits or partnership in a firm, the burden of proving the fact that such person had no knowledge of such admission until a particular date after the expiry of six months of his attaining majority shall lie on the person asserting that fact.
(7) Where such person becomes a partner,--
(a) his rights and liabilities as a minor continue up to the date on which he becomes a partner, but he also becomes personally liable to third parties for all acts of the firm done since he was admitted to the benefits of partnership, and
(b) his share in the property and profits of the firm shall be the share to which he was entitled as a minor.
(8) Where such person elects not to become a partner,--
(a) his rights and liabilities shall continue to be those of a minor under this section up to the date on which he gives public notice, (b) his share shall not be liable for any acts of the firm done after the date of the notice, and
(c) he shall be entitled to sue the partners for his share of the property and profits in accordance with sub-section (4).
(9) Nothing in sub-sections (7) and (8) shall affect the provisions of Section 28."
A bare reading of Section 30 clearly shows that a minor may be a partner in a firm with the consent of all the partners for the time being and he may be admitted to the benefits of partnership. In the present case the defendant himself admitted the factual position and raised no objection in respect of partnership of the minor in place of the deceased. The facts of the cited judgment are also distinguishable from the facts of the case in hand.
It is well-settled proposition of law that cases of parties should be decided on merits. If a party upon evidence brought on record, has established his case on merits, then such party should not be knocked out on technical grounds. The technicalities should not create hurdles in the way of substantial justice. Mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. Reliance may be placed on 2003 SCMR 1553 (Nasir Hamid Qureshi v. Abbasi Begum). Learned counsel was also provided an opportunity to file the written arguments. If he so desired, but no written arguments in addition to the above contentions have been filed by the learned counsel for the Defendants Nos. 1 to 9.
In view of the above, preliminary decree passed on 14-4-2004 is confirmed. Office is directed to prepare final decree in terms of Order XX Rules 13, C.P.C. The Nazir is appointed as Receiver as well as Commissioner to take over the business and all the assets of the partnership firm moveable or immovable and recover from the Defendants Nos. 1 and 2 including unutilized land of 3.45 acres of Shaban Town. After taking over the all assets and properties of the partnership firm, Nazir is directed to sell the same through public auction on as is where is basis and to distribute the sale proceeds amongst the partners in accordance with their respective shares.
The suit is decreed in the above terms.
(R.A.) Order accordingly
PLJ 2009 Karachi 36
Present: Arshad Noor Khan, J.
ABDUL SALAM JATOI--Applicant
versus
ANWAR HUSSAIN and 8 others--Respondents
J.M.A. No. 76 of 2005 in Civil Suit No. 1241 of 2003, decided on 19.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O.XXIII, R.3--Consent decree--Application u/S. 12(2) of C.P.C. alleging that decree was obtained by misrepresentation and fraud by respondent--Applicant was put under threats for obtaining his signatures on the compromise application, as such, the consent decree was not free and binding on him--Validity--Application
u/S. 12(2), C.P.C. was filed after one year and ten months from the date of passing of the consent decree--Any misrepresentation was made by the respondent or any fraud was practised it was not shown as to what were the circumstances which compelled him to remain silent for such a long period from the date of passing of the decree--Application was completely silent to show that what type of the influence had been practised by respondent to compel him to sign the compromise application--Held: Applicant was required to set forth each and every detail of allegations which according to him were necessary to establish the case of setting aside a consent decree but he failed to do so--Application was dismissed.
[Pp. 40, 41 & 42] A, B, D & E
1992 CLC 777; 1993 MLD 1617, 1993 SCMR 710 and
PLD 2006 SC 773, distin.
2003 SCMR 1050; 2002 MLD 19 and 2003 CLC 719 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIII, R.3--Compromise decree--Status quo in any way does not prohibit the parties to the litigation to enter into compromise during the pendency of the lis--Order XXIII, R. 3 of C.P.C. speeks about compromise of the dispute between the parties at any stage of the proceedings even before the Appellate Court. [P. 42] C
Mr. Shahab Sarki, Advocate for Applicant.
Mr. Abdul Wajid Wyne, Advocate for Respondent No. 1.
Nemo for Remaining Respondents.
Date of hearing: 19.6.2008.
Order
By this application under Section 12(2), C.P.C. read with Section 151, C.P.C, applicant prays for setting aside of the consent decree dated 24-2-2004 passed in Suit No. 1241 of 2003 Anwar Hussain v. Abdul Salam and others.
In pursuance of the said transaction, the possession of the land was handed over by the applicant to the Respondent No. 1 with all rights, titles and legal character occurring in the said land and the title documents of the land in question were also handed over by the applicant to the Respondent No. 2. The land was leased out by the Respondent No. 1 to the applicant by order dated 23-12-1991 which was initially for thirty years and subsequently enhanced to the period of 99 years. It is further asserted in the plaint that the applicant thereafter did not execute the sale-deed, therefore, the Respondent No. 1 constrained to file the suit as stated above. The present applicant as well as the respondents were served with the notice of the suit. The notice was served. After service of notice the applicant and the Respondent No. 1 settled their dispute and thus filed application under Order XXIII, Rule 3, C.P.C. vide C.M.A. No. 96 of 2004 stating therein the terms and conditions on which they had settled their dispute. The notice of the application was served on Advocate General Sindh as well as on the remaining defendants also. The application was finally heard and accepted on 24-2-2004 and the suit was decreed in terms of compromise application and decree was then prepared on 10-3-2004.
The applicant has filed the present application on 17-10-2005 stating therein that the consent decree was obtained by misrepresentation and fraud by the Respondent No. 1 as the applicant was put under threats for obtaining his signature on the compromise application as such the consent of the applicant was not free and binding on him. It is further stated in the present application that Suit Nos. 173/92, 193/92 and 218/92 were also pending adjudication in between the parties wherein on 2-3-1993 all the interlocutory applications were decided in Suits No. 193/92 and Suit No. 218/92 and the said order passed on 2-5-1993 was challenged in H.C.A. No. 99 of 1993 Jamiat-e-Punjabi Saudagrane Delhi Society v. Abdul Salaam and others which was disposed of on 14-2-2003 by the DB which was disposed of by consent order dated 14-2-2003 whereby all the parties were directed to maintain status quo till disposal of three suits pending before the learned Single Judge on the Original Side as such the consent decree would not have been passed in the present case if the said fact had to brought in the knowledge of Court, which has, therefore, been obtained by the Respondent No. 1 by exercising fraud and misrepresentation before the Court.
The notice of the present application has been served on all the parties and the Respondent No. 1 has appeared and filed his objection to this application wherein he stated that the compromise was effected with free consent of both the parties and no fraud or misrepresentation was committed by him. All the allegations contained in the application by the applicant have been refuted by the Respondent No. 1 in his objection.
I have heard Mr. Shahab Sarki, Advocate for the applicant and Mr. Abdul Wajid Wyne, Advocate for the Respondent No. 1.
The learned counsel for the applicant vehemently contended that at the time of passing the consent decree, the status quo was operating in civil suit which was passed in H.C.A. No. 99/93 as such the parties could not enter in the compromise in view of the prohibitory orders passed by the learned DB of this Court which fact has been concealed by the Respondent No. 1 while obtaining consent decree which tantamounts to misrepresentation and fraud on his part. He further contended that the applicant was pressurized by the Respondent No. 1 for his signature on the compromise application and because of fear of the Respondent No. 1, applicant had signed the compromised application therefore, the applicant was not free to sign the compromise application. He further contended that the allegation of misrepresentation and fraud require recording of evidence as such after framing the issue on this point to arrive at substantial decision of the matter. In support of his contention he relied upon the case of Abdul Aziz Khan Niazi and others v. Mrs. Salama Rahman and another 1992 CLC 777, Muhammad Qasim v. Abdul Karim 1993 MLD 1617, Lal Din v. Muhammad Ibrahim 1993 SCMR 710, Muhammad Akram v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 and Mobina Begum v. The Joint Secretary Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others (sic).
Mr. Abdul Wajid Wyne, Advocate for the Respondent No. 1 has vehemently refuted the contention advanced by the learned counsel for the applicant and has contended that the compromise in between the parties was arrived at freely and voluntarily and the applicant was not pressurized by the Respondent No. 1 any manner whatsoever to obtain the consent decree. He further contended that the Respondent No. 1 has not committed any act of misrepresentation or fraud in obtaining the consent decree as the parties had admitted it before the learned Single Judge at the time of acceptance of the said application and, in case, if the applicant was under any threat or duress, it was very easy for him to refuse to accept the compromise application before the learned Judge prior to its acceptance. He further contended that the application does not bear any cogent or plausible reasons to interfere in the consent decree passed by this Court and the application has been filed malafidely for certain ulterior motives and that no issue is required to be framed not the evidence is required to be recorded. In support of his contention, he has relied upon the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 Water and Power Development Authority through Chairman and 5 others v. Messrs Sea Gold Traders 2002 MLD 19 and the Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719.
I have considered the arguments advanced on behalf of the parties and have gone through the entire material available on record as well as the case law cited on the subject.
The admitted facts of the present application are that the Respondent No. 1 had filed a suit for specific performance of the contract, declaration, cancellation, injunction and damages with regard to the suit property. The present applicant was served with the notice of the suit, who appeared and engaged Mr. Mazhar Ali B. Chohan, Advocate to represent him and defend the suit who filed his vakalatnama on his behalf. Mr. Nooruddin Sarki, advocate and Company also filed vakalatnama on behalf of the present applicant in original suit on 15-10-2003 and Mr. Mazhar Ali B. Chohan advocate filed his vakalatnama on his behalf on 31-1-2004. Record of the main suit also shows that the parties filed their application under Order XXIII, Rule 3, C.P.C. on 31-1-2004 duly signed by them as well as by their counsel. The said application was fixed in Court on 13-2-2004 when notice to the A.G. and remaining defendant was ordered which was also served and thereafter the matter was fixed on 24-2-2004 in Court and on which date the parties, their counsel as well as A.G. were present and A.G, pointed out to the Court that now suit property in question, has been resumed by the Provincial Government vide Order 2 of 2001(sic) and prayed that compromise be allowed only subject to final outcome of the enquiry carried out by the Government of Sindh. The compromise application was, therefore, accepted. The consent order shows that both the parties as well as their counsel were also present at the time of acceptance of the compromise application and the NIC of the parties were also perused by the learned Judge before accepting the said application and the application was conditionally accepted with the observation that in the circumstance the application is allowed and the suit is decreed in terms thereof subject to the condition that the rights and the obligations of the parties as per decree would be finally adjudicated by committee formed under the aforesaid Ordinance 2 of 2001 (sic). The suit against the Respondent Nos. 2 to 8 was dismissed as withdrawn. The said circumstances show that the compromise application was not allowed hurriedly on the day of its presentation but it took sufficient time from the date of its presentation and acceptance and, in case, if the applicant was forced, intimidated or coerced by the Respondent No. 1 to sign the said application so many opportunities were available to him to escape from the said compromise and finally on the day when he was present in Court before the learned Single Judge of this Court, in whose presence the applicant instead of disclosing any reservations and fear, states his no objection for acceptance of the said compromise application. It is, therefore, evident that at the time of acceptance of the compromise application and consent decree, the applicant, in any way was not under the affairs of influence, threat or coercion as such the plea of misrepresentation and fraud seems to be after thought to deprive of the Respondent No. 1 from the fruit of the decree.
In his application, nowhere the applicant stated about the particulars of misrepresentation or fraud allegedly practised by the Respondent No. 1 in obtaining consent decree. The applicant is under obligation to state the particulars of misrepresentation and fraud or even the nature of the influence basing on which he allegedly signed the compromise application. The present application is completely silent to show that what type of the influence had been practised by the Respondent No. 1 to compell him to sign the compromise application. For the purpose of consideration of the application under Section 12(2), C.P.C., the applicant is required to set forth each and every detail of the allegation which according to him are necessary to establish the case of setting aside a consent decree but the application is completely silent on this aspect of the matter and simply the applicant has stated in Para 14 of the present application that he was pressurized by law-enforcing agencies and particularly through one Mr. Bhohiou, Inspector, National Accountability Bureau but neither any particulars of said allegation have been brought on record nor even any certificate issued by the NAB Authorities to the effect that Mr. Bhohiu ever remained as Inspector in National Accountability Bureau, has been filed, furthermore the said call by Inspector Bhohio has not been stated by the applicant in his affidavit filed in support of the present application. The record also shows that the present application was filed by the applicant after the expiry of one year and ten months from the date of passing of the consent decree and, in case, if any misrepresentation was made by the Respondent No. 1 or any fraud was practised, what were those circumstances which compelled him to remain silent for such a long period from the date of the passing of the decree which also remains unexplained by the applicant.
The contention of the learned counsel for the applicant is that status quo was operating at the time of passing the consent decree which fact has been concealed by the respondents before the Court and, in case, the same had been pointed out, the compromise application would had not been accepted. The contention raised by the learned counsel for the applicant seems to be devoid of any force as the status quo was not operating thereby prohibiting the parties not to get their matter decided amicably before the Court nor it could be pleaded by the learned counsel for the applicant that the said status quo was operating against acceptance of any compromise application. The status quo in any way does not prohibits the parties to the litigation to enter in compromise during the pendency of the lis. Rule 3 of Order XXIII, C.P.C. speaks about compromise of the dispute between the parties at any stage of the proceedings even before the appellate Court as such the parties to this status quo is in any way could not be said to had been restrained to get their lis decided amicably. The learned counsel for the applicant has, therefore, failed to point out that the parties were restrained by the learned DB of this Court who passed order regarding the status quo, not to arrive at amicable settlement throughout proceedings of the suit. The interpretation of the terms status quo put forward by the learned counsel for the applicant in my humble opinion is, therefore, quite wrong and misleading even the learned counsel for the applicant has failed to point out the said order dated 14-2-2003 passed in H.C.A. No. 99/93 on the record of the present application or on the record of main suit.
The learned counsel for the applicant has also argued that the applicant was under the fear of the Respondent No. 1 before the signing the said compromise application but, as discussed above, no such illegal influence has been proved on the basis of allegation brought on record. The applicant had sufficient opportunities to refuse the acceptance of the terms of compromise application, if really he was under intimidation, duress or threat at the hands of the Respondent
No. 1. The contention raised by the learned counsel for the applicant, therefore, seems to be devoid of any force.
The contention of the learned counsel for the applicant that the issue with regard to misrepresentation and fraud played by the respondent may be framed and evidence may be recorded but the application, itself is not maintainable in absence of specific allegations of misrepresentation and fraud which require recording of the evidence as such the said contention of the learned counsel for the applicant has equally no substance. The case-law relied upon by the learned counsel for the applicant in my humble opinion are completely distinguishable from the circumstances of the present case as none of the authorities cited by the learned counsel for the applicant speaks about the proposition that the consent decree could subsequently be challenged by the Judgment-debtor on the allegations of misrepresentation and fraud and that too after the span of more than one year and ten months.
For all the aforesaid reasons and circumstances I do not find any merit in the present application which is hereby dismissed with no order as to cost.
(R.A.) Application dismissed
PLJ 2009 Karachi 43
Present: Khawaja Naveed Ahmad, J
MUHAMMAD ANWAR ANSARI--Petitioner
versus
Mst. NAZIA SHAMIM and 2 others--Respondents
Const. P. No. S-235 and C.M. A. No. 1814 of 2007, decided on 15.5.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5, Sched. & S. 12-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for maintenance, divorce and recovery of dowry articles--Method emphasized by High Court to be adopted by Family Courts--Cases qua to the maintenance of children, khula/divorce as well as return of dowry articles should be tried and decided on priority basis--If possible, the trial Court should fix these cases every week and should see that on each date of hearing some progress is made in the case and in case progress is not made, the party who created hurdles in progress of the matter should be asked to pay the costs, for that particular day for delaying the matter--In our society, there are certain persons, who make the lives of their ex-wives and children miserable by showing arrogance and indifferent behavior towards them--These people when sit in their private gatherings, express their sentiments by uttering tall words meaning thereby that they are above the law and they will ruin the lives of their ex-wives and will teach lesson to their ex-in-laws--Judges of trial Court should be vigilant about such arrogant and ruthless persons, who are trying to make their wives run in the Court even five years after the divorce just to collect their own dowry articles, which their parents had given to them from their hard earned money. In spite of amendment in Family Courts Act, 1964 has been made in the year, 2002, which bound the courts to dispose of such matters within six months, the courts below have not taken any serious steps to follow the law in respect of expeditious disposal of family cases--High Court expressed displeasure over delay caused in disposal of family cases. [Pp. 44 & 46] A & B
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 12-A & 13--Execution proceedings, expeditious disposal of-- Method--High Court emphasized on Family Courts to fix such proceedings on weekly basis and try to dispose of same within one month from date of its filing. [P. ] C
Mr. Mehmood Hassan, Advocate for Respondent No. 1.
Date of hearing: 15.5.2008
Order
This Constitutional petition has been filed by the petitioner Muhammad Anwar Ansari on 28-5-2007, impugning the concurrent findings of both the Courts below.
Brief facts of the case are that Mst. Nazia Shamim had filed Family Suit No. 1042 of 2004 against the petitioner on 15-9-2004 for recovery of her dowry articles. She was married with the petitioner at Karachi on 7-11-1998 against the dower amount of Rs. 25,000 and from this wedlock one child namely Master Usama was born on 20-12-1999, who is presently with Respondent No. 1. The marriage was dissolved between the parties by way of divorce, which was confirmed by the Nazim of UC-9, North Nazimabad, Karachi. Respondent No. 1 had filed Family Suit No. 1042 of 2004 for recovery of her dowry articles. This suit was decided and decreed by the learned 1st Civil Judge, Karachi Central by judgment and decree dated 18-3-2005. The petitioner had preferred appeal against this judgment viz. Family Appeal No. 26 of 2005. The learned V-Additional District Judge, Karachi Central was pleased to dismiss the appeal as the same was time-barred by five months. The operative portion of the order of learned V-Additional District Judge, Karachi Central is reproduced hereunder:--
"I have considered the arguments advanced by the learned counsel for both parties and perused the record and proceedings with care. On perusal of record it indicates that prior to 29.7.2006 instant appeal was dismissed for non-prosecution on 28-1-2006 however, same was restored with the consent of respondent. It is pertinent to mention here that in instant application the appellant has taken plea that due to serious ailment of his mother he could not pursue instant appeal however, in his application he has not given specific date of ailment of his mother or specific date of admission of his mother in hospital. Contrary to the above he appended order dated 8.1.2007 passed by his Lordship Mr. Justice S. Zawwar Hussain Jaffery (as the then he was) in C.P. No. S-512/2006 which reveals that the appellant presented C.P. before the Honourable High Court of Sindh at Karachi on 30-11-2006 whereas certificate which was submitted by the appellant was suffered from severe back ache and she was under treatment from 5.7.2006 to 7-1-2007 and she was advised strict bed rest. It is pertinent to mention here that certificate which was being produced at later stage did not indicate that there was any serious illness which constrained the appellant not to approach the Court of law to pursue his case before any Court of law. Besides above the filing of petition before Honourable High Court of Sindh at Karachi dated 30-6-2006 itself negates the contention of appellant that he was remained with his mother or she was admitted in hospital for her treatment. It is also pertinent to mention here that the appellant filed instant application on 24-1-2007 whereas the instant appeal was dismissed for non-prosecution on 29-7-2006 and he filed application after lapse of more than 5 months and he has failed to disclose any plausible reasons for such delay. Therefore under such circumstances instant application is misconceived hence dismissed having no force."
This matter is pending in High Court since 28-5-2007. Neither the petitioner nor his counsel is present today. It appears that the petitioner is not serious in pursuing the matter.
I have heard the learned counsel for Respondent No. 1 Mr. Mehmood Hassan and have perused the record.
This constitutional petition is in a case of recovery of dowry articles after the divorce between the spouses. Proceedings were initiated by the wife in the year 2004. I am of considered opinion that cases pertaining to the maintenance of children, Khula/divorce as well as return of dowry articles should be tried and decided on priority basis. If possible, the trial Court should fix these cases every week and should see that on each date of hearing some progress is made in the case and in case progress is not made, the party who created hurdles in progress of the matter should be asked to pay the costs, for that particular day for delaying the matter. In our society, there are certain persons, who make the lives of their ex-wives and children miserable by showing arrogance and indifferent behavior towards them. These people when sit in their private gatherings, they express their sentiments by uttering tall words meaning thereby that they are above the law and they will ruin the lives of their ex-wives and will teach lesson to their ex-in-laws. The learned Judges of trial Court should be vigilant about such arrogant and ruthless persons, who are trying to make their wives ruin in the Court even five years after the divorce just to collect their own dowry articles, which their parents had given to them from their hard-earned money. In spite of the fact that amendment in Family Courts Act has been made in the year, 2002, which bound the Courts to dispose of such matters within six months, the Courts below have not taken any serious steps to follow the law in respect of expeditious disposal of family cases. I take serious
view of delay caused in disposal of family cases and express
my displeasure on it. While parting with this order I feel it my duty to record my observation that after passing of the final judgments in the cases and expiry of appeal period, considerable time is consumed in execution of the Court orders. I hereby direct to all the trial Courts that all execution proceeding in family matters should be fixed by Family Courts on weekly basis and Courts should try to dispose of execution proceedings within one month from the date of filing of the same unless there are some exceptional circumstances causing delay in disposal of the execution.
With the above observation this Constitutional Petition having no merits is dismissed.
(R.A.) Petition dismissed
PLJ 2009 Karachi 47
Present: Khawaja Naveed Ahmad, J.
SAAD AMANULLAH KHAN--Petitioner
versus
IVTH-SENIOR CIVIL JUDGE, (SOUTH), KARACHI
and 3 others--Respondents
C.P. No. S-279 of 2008, decided on 29.7.2008.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973--Arts. 199 & 187--Constitutional petition--Custody of minor--Visitation right--Scope--Law favour right of visitation of a parent to remain intact even if custody is awarded to the other parent. [P. 60] A
PLD 1973 Lah. 442; PLD 1975 Lah. 334; PLD 1978 Lah. 1389; PLD 2004 SC 357 and 1998 SCMR 1593 rel.
Constitution of Pakistan, 1973--
----Arts. 199 & 187--Guardians and Wards Act, (VIII of 1890), S. 25--Custody of minor--Statement of ward--Validity--Where children had remained under complete supervision of mother and maternal parents/relatives to the complete exclusion of father and his part of family for the last 8 to 9 years, statements of such children were a result of tutoring and brain washing--Statements of such children could not be accepted. [P. 61] B
2006 YLR 2215 and PLD 1975 Lah. 86 rel.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan (1973), Arts. 199 & 187--Constitutional petition--Custody of minor--Welfare of minor--Right of visitation--Implementation of decision of Supreme Court--Custody of minor children was finally decided by Supreme Court on the basis of a compromise filed by the parties--According to the compromise, custody of minors was handed over to their mother while their father was given a right of visitation--Grievance of father of minors was that mother of minors was not complying with the decision of Supreme Court--Validity--Allegations and counter allegations both father and mother had lost sight of the fact that in ultimate result, the losers were children as their welfare was in the fact that both the parents should have an effective say in upbringing and children should be attached to both the parents--High Court appointed Deputy Registrar (Judicial) with the task to see implementation of the order in letter and spirit and either party might approach the official for its implementation--High Court permitted the official so appointed to seek police aid in case the same would be required to get the order implemented--High Court warned the parties concerned that nothing should be done to disobey the order and all efforts should be employed to implement the same in letter and spirit failing which High Court would adopt effective measures--High Court further directed Deputy Registrar (judicial) to take such steps to create an environment whereby children would be enabled to meet their parents smoothly--Petition was disposed of. [Pp. 63 & 64] C & D
1986 SCMR 427; PLD 2002 SC 267; 1994 MLD 1098; 1980 CLC 1802; 1988 SCMR 1359; 2000 YLR 3046; 2003 YLR 1105; 1991 CLC Note 148; 1980 CLC 1955; 2007 MLD 658 and 1988 CLC 2196 ref.
1986 SCMR 426 fol.
Dr. Muhammad Farogh Naseem, Advocate for Petitioner.
Nemo for Respondent No. 1.
Mr. Haider Waheed, Advocate for Respondents Nos. 2, 3 and 4.
Wards Sara Saad Amanullah and Ameen Saad Amanullah (present in person).
Date of hearing: 15.7.2008.
Judgment
This petition has been filed under Article 199 of the Constitution read with Articles 187(2), 190 and 203 of the Constitution. The brief facts giving rise to the present petition are that the petitioner out of wedlock with the Respondent No. 2 was blessed with two children i.e. Sarah Saad Amanullah (born on 17-4-1991) and Ameen Saad Amanullah (born on 7-11-1993). It is alleged that in view of certain difference between the petitioner and the Respondent No. 2, the marriage between them had broken. This entailed a very long battle in the Courts of law with regard to custody and visitation rights in respect of the children. According to the petitioner he preferred Guardian and Ward Case No. 371/1995 for the custody of the children which suit was decreed ex parte in his favour on 1-10-1995. The Respondent No. 2 whereafter moved an application to set aside the decree, which was granted by order 29-1-1996 by the Guardian and Ward Judge. It is alleged by the petitioner that the order dated 29-1-1996 was obtained by the Respondent No. 2 with some connivance so much so that he was even prevented from obtaining a certified copy of the order and to file appeal thereagainst, which resulted in him filing C.P. No. S-10/1996 before this Court wherein this Court vide order dated 31-1-1996 allowed the custody to remain with the petitioner. Thereafter once the certified copy of the order dated 29-1-1996 was made available, the petitioner preferred family Appeal No. 1/1996 before the District Judge who vide order dated 26-3-1996 while dismissing the petitioner's appeal allowed him to have the custody of the children from 9-00 a.m. to 6-00 pm. of every Friday and for 14 days during the summer vacations. Being dissatisfied with the latter order, the petitioner preferred Civil Revision No. 58 of 1996 before this Court which was again dismissed vide order dated 19-5-1996, while this Court was pleased to increase the duration of the visitation to two full days per week i.e. Fridays and Saturdays in addition to 15 days during summer vacations.
"AGREEMENT
R/Sheweth:-
The parties above named have reached the following settlement and prayed that the petition be disposed of in terms of the following agreement:--
(1) It is settled that during the week the father will be entitled to take the custody of both the minors after 6-00 p.m. on Thursdays and return them punctually before 10-00 a.m. on Saturday.
(2) That during the summer vacation the father will be entitled to the children for the first two weeks and the last two weeks and last one week in the winter vacation except of the present summer vacation in which it will be one week.
(3) By consent Khula' will be granted within 7 days from today and withdrawal of the suit for restitution of conjugal rights and G.W. Application No. 371/1995.
(4) That on 22-6-1996 the children will be handed over to the mother by the father.
(5) That the father agrees to pay maintenance of the minors at the rate of Rs. 10,000 per month to the mother and also provide full medical cover to the minors.
(6) That on the night before the day of Eid the father will collect the son and daughter and will return them in the evening on Eid Day.
(7) The petition is disposed off by the consent on the above basis, which would be permanent.
(Sd.)
PETITIONER (SAAD AMANULLAH KHAN)
(Sd.)
Advocate for the Petitioner (RAJA QURESHI)
(Sd.)
Advocate for the Respondent (KHALID ANWAR)
Islamabad
Dated: 18-6-1996
Certificate to be true copy
(Sd.)-
Court Associate
Honourable Supreme Court of Pakistan
Islamabad."
It is alleged by the petitioner that the order dated 18-6-1996 was being implemented in. the normal/routine course, when suddenly in March 1997 the Respondent Nos. 2 and 3 (the Respondent No. 3 being the mother of Respondent No. 2) refused the petitioner to see or meet his children. Against this the petitioner preferred a contempt application before the Honourable Supreme Court being Criminal Original Petition No. 6/1997. (It seems that in the meanwhile on 2-4-1997 the Respondent No. 2 had also filed an application before the G and W Judge being case No. 146/1997 claiming the petitioner to have sexually abused the Ward No. 1 i.e. Sarah Saad Amanullah and on such ground it was claimed that the petitioner was disentitled to even have the visitation rights as were ordered by the Honorable Supreme Court on 18-6-1996). The contempt proceedings (i.e. Cr.O.P. No. 6/1997) were heard by the Honourable Supreme Court on 6-5-1997, 22-5-1997 and 20-10-1997 before a bench headed by Mr. Justice Saeed-uz-Zaman Siddiqui, as he then was. In these orders it has been clearly provided that no ground existed to amend the compromise endorsed by the Honourable Supreme Court on 18-6-1996. The Criminal Original Petition No. 6/1997 was disposed of in the latter terms.
After the order of the Honourable Supreme Court dated 6-5-1997 (cited supra) the petitioner again commenced meeting the children. However, the Respondent No. 2 filed CM.A. 500/98 in the disposed off Civil Petition No. 225/96 before the Honourable Supreme Court on the basis of a report of one Dr. Parveen Kanji (Gynecologist) to the effect that the Ward No. 1 had been sexually abused by the petitioner and hence the order of the Honourable Supreme Court dated 18-6-1996 was required to be amended so as to stop the petitioner meeting the children. The said CM.A. 500/98 was disposed off by the Honourable Supreme Court vide order dated 5-6-1998 wherein the Honourable Supreme Court did not interfere with the order/compromise dated 18-6-1996 but rather left the said Respondent No. 2 to move the G and W Court.
In the pursuance of the above on 16-7-1998 the Respondent No. 2 filed another application before the G and W Judge praying the suspension of the order of the Honourable Supreme Court dated 18-6-1996. The said application was dismissed by the G and W Judge vide order dated 2-11-1998 where against the Respondent No. 2 preferred family Appeal No. 45/98. It is alleged that on the first date of hearing the learned IInd Additional District Judge vide order dated 21-11-1998 ordered for the production of the children against which the petitioner, fearing bias preferred CP No. S-464/98 before this Court in which this Court by order dated 24-11-1998 restrained the IInd Additional District Judge from passing any final order. Despite this, the learned IInd Additional District Judge vide order dated 27-11-1998 went on to amend the arrangement/order of the Honourable Supreme Court dated 18-6-1996 holding that in future the Ward No. 1 would meet the petitioner in the lounge of the Defence Club instead of the petitioner's house. Apparently, this was done on account of some "serious allegations" levelled by Ward No. 1 but actually the record only shows that the Ward No. 1 has only said that "Aba ganday hein". The petitioner in person has narrated that due to the impossible and insulting behaviour of the maternal grand mother i.e. the Respondent No. 3, the meetings at the Defence club were disrupted. It is alleged that the Respondent No. 3 during such meetings had loudly called the petitioner different names.
In the meanwhile the Honourable Court in CP No. S-464/98 ordered the production of the children on 7-12-1998 it was observed that the children were keen to visit their father and grand mother and had no compliant against their father. As such the custody of both the wards were ordered to be handed over to the petitioner immediately. Ultimately CP No. S-464/98 was dismissed by this Court vide order dated 25-1-1999 on the ground that the order of the IInd Additional District Judge dated 27-11-1998 was only an interim order. The petitioner assailed the order of this Court dated 25-1-1999 in CPLA 47-L/99 before the Honourable Supreme Court which was disposed of vide order 9-2-1999 with the observations that since the main appeal before the Additional District Judge was pending the same had to be decided first, however, the request of the petitioner's counsel to transfer the appeal to another Additional District Judge was accepted.
The appeal before the Additional District Judge was then transferred to Vth Additional District Judge who heard and reserved the matter to be announced on 3-4-1999. It seems that on 3-4-1999 the Respondent No. 2 moved an application for transfer to some other Judge which was dismissed by the District Judge on that very date i.e. 3-4-1999. The main appeal by the Respondent No. 2 was also dismissed by the Vth Additional District Judge on 3-4-1999.
The petitioner alleges that after 3-4-1999 the Respondent
No. 2 committed blatant contempt of order of the Honourable Supreme Court dated 18-6-1996 and did not allow the petitioner to meet the children. Simultaneously, the Respondent No. 2 preferred CP No. S-161/1999 before this Court, challenging the order of the Vth Additional District Judge dated 3-4-1999. Finally, vide order 22-5-2000 CP No. S-161/1999 was allowed and the orders of the G and W Court dated 2-11-1998 and Vth Additional District Judge dated 2-4-1999 were set aside, and G and W Judge was directed to decide the case within three months.
Aggrieved against the order dated 22-11-1998 the petitioner preferred a Review Application Bearing No. 433/2000 (in CP. No. S-161/1999) which was disposed of by this Court vide order 6-7-2000 clarifying that the order of the Honourable Supreme Court dated 18-6-1996 was unaffected and the petitioner could seek its implementation in accordance with law.
Against the order dated 22-5-2000 the petitioner also preferred C.P.L.A. No. 380-K/2000 before the Supreme Court which was disposed of vide order dated 27-12-2002 directing the G and W Court to decide the matter expeditiously, preferably within three months. Regrettably the G' andW' Court till date has not finally disposed of the matter despite clear directions having been given by this Court so also by the Honourable Supreme Court.
In view of orders dated 4-1-2001 and 27-1-2001 passed by G and W Judge the petitioner preferred CP No. S-148/2001 in this Court. Since in the meanwhile the Honourable Supreme Court vide order dated 27-12-2002 had disposed of CPLA No. 380-K/2002 the petitioner did not press CP No. S-148/2001. Such withdrawal is recorded in the order dated 9-4-2004 passed by this Court in CP No. S-148/2001.
As its stand today Guardian and Ward Cases Nos. 146 of 1997 (filed by the Respondent No. 2) and 486 of 1998 (filed by the petitioner) are pending before G and W Judge, being Respondent No. 1 i.e. IVth SCJ Karachi (South). These are cross-suits filed by the petitioner and Respondent No. 2 in respect of the custody of the children. Both the petitioner and Respondent No. 2 have filed two applications before the G and W Judge. The petitioner in his application has sought the direction to admit the children to the best of educational institutions, while Respondent No. 2 in her application seeks the relief that the children be examined in the chamber and having reached the age of discretion the two suits be disposed in terms of their statement. It was in this backdrop that the present petition was filed seeking, inter alia, the relief of implementation of the order of the Honourable Supreme Court dated 18.6.1996, so also an arrangement whereby the children would meet the petitioner in the presence of a Court Commissioner.
In the background of the case Dr. Farogh Naseem, the learned counsel for the petitioner, has argued that the order of the Honourable Supreme Court dated 18-6-1996 is still in the field arid this Court has the power to implement such a decision under Article 187 of the Constitution. He has further contended that since 3-4-1999 the Respondents Nos. 2 to 4 have prevented the children to meet the petitioner and hence statement of the children showing their reluctance to meet the father is a result of tutoring and brain washing and this Court in the interest and welfare of the children is not bound by such statement. The learned counsel has also contended that allegations against the petitioner are patently false and belied by the record and having been cooked up by the Respondent No. 2 with a view to non-suit the petitioner from having custody of the children and from even meeting them. In support of this contention the learned counsel had placed reliance upon Syed Maqsood Ali v. Sofia Naushaba 1986 PSC 427, Javed Akhter v. Nasreen Akhtar 2006 YLR 2215 and Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267. On the other hand Mr. Haider Waheed, learned counsel for the Respondents Nos. 2 to 4 has taken the plea that the order of the Honourable Supreme Court dated 18-6-1996 is no longer in the field and the petition is not maintainable due to disputed questions of facts being involved in the matter and also in view of pendency of the G and W cases, which constitutes alternate remedy. Mr. Haider Waheed, learned counsel appearing for Respondents Nos. 2, 3, 4 and wards, has insisted that the Court should go through the counter-affidavits filed by. Mst. Ayesha Tahir, Respondent No. 2. She in her two counter-affidavits filed in reply of application under Order XXXIX, Rules 1 and 2, C.P.C. and application under Section 151, C.P.C. has stated that the contents of Paragraphs 1, 2 and 3 of the affidavit in support of the petition are false and misleading. She has vehemently denied the same. She has stated that the petitioner with deliberate mala fide intention is trying to mislead the Court by suggesting that the compromise agreement dated 18-6-1996 was in fact part of the Honourable Supreme Court's Order dated 18-6-1996. It is stated that the said agreement comprised of undertaking given by one private party to another. She has stated that such undertaking was never made to the Honourable Supreme Court. She has further stated that the Supreme Court has merely recorded the said compromise and as a result thereof disposed of Civil Petition for Leave to Appeal No. 225 of 1996 vide order dated 18-6-1996. She has also stated that as per clause 5 of the said compromise agreement the petitioner agreed to pay maintenance of the minors at the rate of Rs. 10,000 per month to the mother and also to further provide full medical cover to the minors. She urged that the petitioner never fulfilled his aforesaid obligations. It is specifically denied by the Respondent No. 2 that she has defied any order of the Honourable Supreme Court. Her case is that the compromise referred to by the petitioner is not part of any order of the Honourable Supreme Court. She further stated that it was merely an agreement between the parties, which subsequently was negated by the conduct of the parties. She has emphasized that the sexual abuse of the petitioner had prevented the children from continuing the compromise agreement. Mr. Haider Waheed, learned counsel for the respondents, in his arguments has attacked the character of the petitioner and placed emphasis on sexual abuse and immorality towards the children. He submitted that the allegation of sexual abuse are the children's owns version of the tragic events and any wrong doing/tutoring on the part of the Respondents Nos. 2, 3 and 4 is vehemently denied. Respondent No. 2, Mst. Ayesha in her counter-affidavit has denied that the children even felt love and affection for the petitioner. She has stated that they were crying and screaming at the prospect of meeting the petitioner.
Mr. Haider Waheed, in support of his arguments has relied upon 1994 MLD 1098 (Zainab Bibi v. Rehmat Ali). In this authority it has been observed by a learned Single Judge of the Lahore High Court that:--
Neither the Guardian Judge nor the lower appellate Court ascertained the wishes of the minors. As the minors in the present case have admittedly attained the age of discretion, such an exercise should have been undertaken."
It has further been observed in the referred judgment that the judgment of the appellate Court given without ascertaining the discretion of minors was unlawful and of no legal effect. The Court had remanded the case for fresh decision. In another authority 1980 CLC 1802 (Tassadiq Hussain Shah v. Surraya Begum) the Honourable Supreme Court, Azad Jamu and Kashmir, has observed that:--
"10. The minor lived all this period with his mother and for that reason his ways must be entirely different from the ways of the appellant. Apart from it, the appellant had remarried and has children from his second wife. The proverbial maltreatment of the step-mother outweighs the presumption that the welfare of the minor lies with the father."
In another authority 1988 SCMR 1359 (Nazir Ahmad v. Additional District Judge III, Sahiwal), the Honourable Supreme Court has observed as under:--
".......She appears to be aged about 14 years now and studies in the sixth class of a Convent school. She appears to be an intelligent girl. We asked her if she would be willing to reside with her father but she categorically stated that since she had been from her childhood brought up by her maternal-grandparents she would only like to stay with them and not with the petitioner. The petitioner before us levelled the allegation that not only the maternal-grandparents were old and infirm and could not look after her but they make her work in their house as a servant and did not give her proper education. In reply Mst. Farzana told us that these allegations were false. She did not work as a servant in her maternal-grandparents' house but regularly went to her studies it was only because the petitioner has been a constant disturbance for her.
We have heard learned counsel for the parties. In the light of what has been stated above, in our considered opinion the custody of Mst. Farazana should remain with her maternal-grandmother as ordered by the Lahore High Court Bahawalpur Bench vide judgment dated 23rd May, 1987 in Writ Petition No. 1166 of 1986/BWP."
In another authority 2000 YLR 3046 (Farah Waqar v. Waqar Ahmad Khan) a learned Single Judge of the Lahore High Court has observed that:--
"Wishes of minor were to be taken into consideration while deciding the custody."
In another authority 2003 YLR 1105 (Barkat Bibi v. Zahida Parveen), a learned Single Judge of the Lahore High Court has observed that:-
"While settling the matter of custody of minor the supreme consideration is the welfare and betterment of minor rather than the claims and wishes of the respective contenders. Wishes of minors have also to be kept in view by the Court, if the minor is grown up enough to form an intelligent opinion."
Mr. Haider Waheed has also cited 1991 CLC Note 148 (Kaniz v. Noor Muhammad). In this case, the minors were aged 17 and 15 years and they were grown up during litigation. The Court has observed that:--
"Minors' welfare would lie in the continuation of their present associations for the remaining period because their removal from well accustomed environment would in all probability act to their detriment."
Lastly, the learned counsel for Respondents Nos. 2, 3 and 4 has cited 1980 CLC 1955 (Surraya Begum v. Tassadiq Hussain Shah) a learned Single Judge of Azad Jammu and Kashmir has observed as under:--
"Compelling child to be out of custody of mother amounts to depriving him of affection of mother. Father although natural guardian after 7 years of age of minor yet Court concerned with welfare of minor irrespective of age of minor."
I heard both the learned counsel and have perused the entire case file, which is quite voluminous. I had an opportunity of meeting both the children Sarah Saad Amanullah and Ameen Saad Amanullah in presence of their parents and their counsel for more than two hours in my chamber on Saturday, 15-7-2008, from 3 p.m. to 5 p.m. I had met the minors, their parents and the learned counsel appearing for them. They all remained sitting comfortably in my chamber and I had lengthy conversation with them in order to resolve this matter amicably to the satisfaction of both the parties and their counsel. I have no hesitation in admitting that I miserably failed in my attempt to pass a consent order. My earnest desire was that this matter along with all the pending cases in the lower Courts should be ended amicably with only one page consent order, which I could not do in spite of efforts made by me. The main reason was adamant behaviour of the children refusing to meet their father. I have observed that on certain occasions the children were getting aggressive while their mother remained silent throughout and did not disturb the proceedings. Petitioner has brought two photo albums containing photographs of the children during the period when they were used to visit him. There were hundreds photographs showing that the children were very happy with the father. He had also displayed a video of children at his laptop computer, which he had brought with him. The video was seen by the children, myself as well as their Counsel and mother of the children. Children were seen playing with their father very happily and the video was self-speaking. The case law cited by Mr. Haider Waheed is in respect of custody of minors. I am in agreement with Mr. Haider Waheed as well as the judgments quoted by him and I am of clear view that at this age the custody of the minors cannot be given to the father by the Court of law against the consent of minors. However, under no law, the visiting rights can be denied to the father.
In my opinion the precise question which is required to be addressed is whether the order of the Honourable Supreme Court/Compromise dated 18-6-1996 hold the field or whether the same has been modified. Admittedly, Civil Petition No. 225/96 in the Honourable Supreme Court was disposed of on 18-6-1996 in terms of the compromise agreement dated 18-6-1996 between the parties. Clause 7 of the said compromise dated 18-6-1996 is of paramount importance according to which the said compromise would be permanent. Apart from this the Honourable Supreme Court vide its orders dated 6-5-1997, 22-5-1997 and 20-10-1997 in Criminal Original Petition No. 6/97 refused to amend or modify its order/compromise dated 18-6-1996. Even in its order dated 5-6-1998 on C.M.A. 500/98 in CPLA 225/96 the Honourable Supreme Court did not amend its order/compromise agreement dated 18-6-1996 but only allowed the Respondent No. 2 to move an appropriate application before G and W Judge. This order cannot be interpreted so as to assume that the Honourable Supreme Court had allowed modification of the order dated 18-6-1996. It is needless to mention that the order of the Honourable Supreme Court can only be modified or altered by Honourable Supreme Court itself and not by any other Court. One fails to understand that as to how and on what basis the learned IInd Additional District Judge vide order dated 27-11-1998 could have amended the order of the Supreme Court dated 18-6-1996. The fact that the order of the Honourable Supreme Court dated 18-6-1996 was unaltered can be further inferred from the fact that in its order dated 9.2.1999 in CM.A. 47-K/99 and the last order of the Honourable Supreme Court dated 27-12-2002 in Civil Petition No. 380-K/2000 the Supreme Court did not alter or amend its earlier order dated 18-6-1999. Furthermore, vide order passed by this Court in the Review Application (No. 433 of 2000) dated 6-7-2000 in C.P. No. S-161 of 1999 it has been clearly observed that the order of the Supreme Court dated 18-6-1996 remained unaffected and unaltered and petitioner could seek its implementation in accordance with law. The Respondent No. 2 has not questioned such order dated 6-7-2000 which has attained finality. Even otherwise the order dated 6-7-2000 is based upon a sound principle that it is the Supreme Court alone which can amend/alter/modify its own order. This being so, the contention of Mr. Haider Waheed that the order of the Honourable Supreme Court/compromise dated 18-6-1996 has been altered and does not hold the field is devoid of any force.
The next question is that since order of the Honourable Supreme Court/Compromise dated 18-6-1996 is still in the field, what is the course available to the petitioner to seek its implementation? The petitioner's counsel has relied upon Article 187 of the Constitution which clearly provides that any direction/order/decree of the Supreme Court shall be executed by the High Court in whole jurisdiction the implementation is sought. I have been able to lay my hands on Khushi Muhammad v. IG, Police 1999 SCMR 2868 and Umar Gul v. GOS 2007 YLR 3191 which provide that under Article 187 of the Constitution the orders of the Honourable Supreme Court are to be implemented by the High Court. This being the clear position in law, I have no doubt in my mind that this petition, principally seeking implementation of the order of the Honourable Supreme Court/compromise dated 18-6-1996, is maintainable. On this score the next objection of Mr. Haider Waheed is also hereby over-ruled.
The next objection raised by Mr. Haider Waheed is that any arrangement of visitation sought by the petitioner in respect of the children cannot be ordered as the children themselves are in no mood to see their father. It is correct that in the chamber meeting on 15-7-2008 the children had clearly stated that they did not wish to see their father. Mr. Waheed has stated that there is plethora of case law to the effect that once the children reach the age of discretion the custody matters are to be disposed of in terms of their wishes which itself will constitute their welfare. There is no cavil with this proposition and there are many judgments to that effect. In the judgment relied upon by Dr. Farogh Naseem reported as Syed Maqsood Ali v. Sofia Naushaba 1986 SCMR 426 it has been clearly mentioned by the Supreme Court that where the parents were involved in litigation for a long period of time and children had remained with the mother, it cannot have been ruled out that the children were acting under the influence of their mother. In the case the Honourable Supreme Court refused to go by the statement of the children and instead directed the parties to come up with viable formula. With the assistance of the counsel the parties in that case submitted a compromise . statement for interim arrangement which was to continue for six months so that a conducive relationship could be developed between the father and children. This judgment seems to be applicable to the facts of the present case also. I have myself been able to lay my hands on Mukhtar Ahmad Khan v. Mst. Aziza Begum PLD 1975 Lahore 86 wherein Muhammad Afzal Zullah J, as he then was, was pleased to observe that the desire expressed by a minor to live with either of the parents was not sufficient by itself to control the question of custody. Even otherwise in the present proceedings the petitioner is only seeking visitation rights in respect of the minors and their implementation, which rights have already been determined by the Honourable Supreme Court in its order/compromise dated 18-6-1996. The question of final custody and visitation rights are distinct in nature. As stated above even in the question of custody, the statement of the minors may not always be conclusive, the same will have very low probative value in relation to visitation rights. In Nemat Ullah Qureshi v. Mst. Bilqis Sitara PLD 1973 Lahore 442 it was observed that pending final adjudication of custody, a parent could seek the access in respect of the children by way of a temporary measure. In Mrs. Parveen v. Kh. Muhammad Ashar PLD 1975 Lahore 334 it was observed that estrangement between parents and children should be avoided at all costs and mere allegation by the husband that the woman was of immoral character was not sufficient to refuse interim custody to the mother. In Ghulam Sakina v. Ghulam Abbas PLD 1978 Lahore 1389 it was observed that a bare allegation of a party imputing unchastity to the mother of the minor cannot inspire confidence and custody orders were made. In Sardar Hussain v. Mst. Parveen Umer PLD 2004 SC 357 the Honourable Supreme Court although did not interfere with the orders of the custody made by the G and W Court, it was pleased to observe that father could still get visitation rights in respect of the children. To similar effect is Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593. Thus it is clear that the law favours the right of visitation of a parent to remain intact even if the custody is awarded to the other parent.
As discussed earlier in preceding paragraphs of this judgment, I have seen the photographs in two albums so also the video film in the laptop of the petitioner. These photographs and video films clearly show that the children were very attached to their father i.e. the petitioner. Even the order of this Court dated 5-12-1998 in CP S-464/98 clearly recorded that the children were very keen to visit their father and the paternal grand mother had no complaint against the father. It was in view of this that the Court had passed the order of custody. During the course of hearing on 15-7-2008 in my chamber the petitioner had clearly stated that in the hearings before the Supreme Court on 6-5-1997, 22.5.1997 and 20-10-1997 Saeed-uz-Zaman Siddiqui J, as he then was, had met the children who had clearly shown their keenness to be with the father. It is true that this fact has neither been recorded in the said Supreme Court order neither the same has been pleaded in the petition, the oral assertions by the petitioner (in person) to this effect have not been denied before me by the Respondent No. 2 who was also present before the said Supreme Court hearing. The Court in these proceedings has to reject any technicalities as held in Hameed Mai v. Irshad Hussain PLD 2002 SC 267. It can also be fairly gathered from the language of the order dated 6-5-1997 wherein the Supreme Court had allowed the children to be kept by the petitioner for some period. Order of the Supreme Court dated 22-5-1997 shows that the children had met in the Judges chamber on that day, whereafter the Judges ordered that the arrangement dated 18-6-1996, should not be disturbed, clearly implying that the children were happy with the father. In fact vide order dated 20.10.1997 the Honourable Supreme Court had clearly observed that the order of the Supreme Court/compromise dated 18-6-1996 would not be amended.
In light of the above, one can safely come to the conclusion that this is not a fit case where the statement of the children could be accepted since having remained under the custody and complete supervision of the mother and maternal parents/relatives to the complete exclusion of the petitioner and his part of the family for the last 8 to 9 years, the statement of the children are a result of tutoring and brain washing. At the end of the day the welfare of the children as held in Mukhtar Ahmad Khan v. Mst. Aziza Begum (cited supra) would mean that the children should be attached to both the parents. Even recently in Javed Akhtar v. Nasreen Akhtar 2006 YLR 2215 it has been mentioned that the total deprivation of the children from association with the father would not bring any healthy state of mind.
This brings me to the last contention raised by Mr. Haider Waheed, Advocate that there are serious allegations against the petitioner for having sexually abused the Ward No. 1 Sarah Saad Amanullah and being violent and therefore he cannot be allowed any visitations rights. These allegations are vehemently denied by the petitioner. In order to finally resolve the veracity of these allegation for the purposes of determining the right of final custody proper inquiry and evidence is required to be led (see 2007 MLD 658 and 1988 CLC 2196). Since these allegations are being levelled by the Respondent No. 2 to even deny the visitation rights to the petitioner, the Court will have to decipher from the available record as to what would be the merit of such far reaching allegations. These allegations were levelled by the Respondent No. 2 for the first time on 2-4-1997 before G and W Judge when an application bearing No. 146/97 was made seeking to alter the visitation arrangement finalized as per the order of the Supreme Court/compromise dated 18-6-1996. Very importantly when the Supreme Court in Criminal Original Petition No. 6/1977 had passed order dated 6-5-1997, 22-5-1997 and 20-10-1997, the said allegations had already been levelled by the Respondent No. 2 and the Honourable Supreme Court took a conscious decision of not amending the arrangement through its order dated 18-6-1996. In other words these allegations were not found to be believable by the Supreme Court. In the litigation a great stress has been placed by the Respondent No. 2 on the reports of one Gynecologist Dr. Parveen Kanji dated 9-2-1998 and 14.5.1998 available at Pages 369 and 373. Interestingly, the same Gynecologist has changed her report on 1-8-1998 available at page 375, observing that the Ward No. 1 has changed her story. Reference is again invited to the order of this Court dated 7-12-1998 in CP No. 464/98 wherein the Respondent No. 2 had agreed to surrender the custody of the children to the petitioner on the condition that she would get visitation rights. If the petitioner had sexually assaulted the Ward No. 1 and such fact was recorded by the Gynecologist as claimed by the Respondent No. 2 on 9-2-1998 and 14-5-1998 then why on 7-12-1998 the said Respondent No. 2 had agreed to hand over the custody of the children to the father/petitioner? The order of this Court dated 15.12.1998 in CP No. S-464/98 further belie the stance of the Respondent No. 2. Again the video films are from April till November 1998 showing immense love and affection between petitioner and children. The photographs in the album show the children with the petitioner in hill stations which the petitioner has stated to be during the summer vacations of 1996, 1997 and 1998. During the Chamber hearing on 15-7-2008 the petitioner had broken down into tears expressing his unconditional love for the children. The very fact that the petitioner is still pursuing the matter leads credence to his stance.
In light of the above I am of the considered view that for the purposes of stopping the visitation of petitioner the allegations against him are not substantiated. On the contrary, from the record and discussion above it is pretty clear that the allegations have only been made so as to prevent a father from even meeting the children. Also the statements of the children do not inspire any confidence since the allegations pertain to a time when the Ward No. 1 was too young much time has lapsed and all along the children have remained under the influence of the Respondent No. 1, who allowed their tender minds to be brain washed.
I am of the considered view that the welfare of the children lies in meeting with their father, who should have a clear say in the affairs and upbringing of the children, in particular, the education of the son and marriage of the daughter. Mr. Haider Waheed, learned counsel for the Respondents Nos. 2 to 4 stated that these proceedings have been going on since 1996-97 and it was about time that not only the present case but the two suits pending before the G and W Judge should also be finally decided. I fully agree with the contention raised by Mr. Waheed and while granting visitations rights to the petitioner, this is a fit case where the final custody should be granted to the Respondent No. 2 who has already kept the kids all along. This arrangement should also be in keeping with the order/compromise of the Honourable Supreme Court dated 18-6-1996 according to which the visitation rights of the petitioner as spelt out in the compromise will be on permanent basis as per clause 7 of the said compromise agreement and the custody case i.e. G and W Case No. 371/95 filed by the petitioner would be withdrawn, thereby clearly implying that the final custody would rest with the mother i.e. Respondent No. 2. Despite such final determination by the Supreme Court both the petitioner and Respondent No. 2, filed cross Suits No. G and W cases Nos. 146/97 and 486/98. The Respondent No. 2 had filed case No. 146/97 with a view to amend the visitation rights having been given to the petitioner and petitioner had filed case No. 486/98 with a view to claim final custody in respect of the children. In this long legal battle with allegations and counter allegations both the father and mother lost sight of the fact that in the ultimate result the losers were the children as their welfare lay in the fact that both the parents should have an effective say in their upbringing and the children should be attached to both the parents. The report cards of the Ward No. 2 are also not very impressive and perhaps one reason being that the father has no role in his education. Once again this calls for providing for visitation rights to the petitioner.
As already stated above, I am impressed with the arguments of Mr. Haider Waheed that both the custody cases pending before the trial Court should be finished and accordingly I order both the said cases i.e. GW Suit/cases Nos. 146/97 and 486/98 pending before the Respondent No. 1 (IVth SCJ, Karachi, South) and the present petition to be disposed of in terms of the order of the Supreme Court/compromise dated 18-6-1996 whereby the final custody will rest with the Respondent No. 2 and the petitioner shall get visitations rights in terms of the said agreement dated 18-6-1996, except that the words "Thursday" and Saturday" appearing in clause (1) of the said agreement shall be read as "Friday" and "Sunday" respectively.
Before parting I am constrained to make the following observations:--
(a) Mr. Moinuddin Ahmed, learned Deputy Registrar (Judicial) shall be entrusted with the task to seek implementation of the present order in letter and spirit and either party may approach him for its implementation. Mr. Moinuddin Ahmed shall have permission to seek police aid in case the same is required to get the order of this Court implemented. Each time Mr. Moinuddin Ahmed is called upon to take any step, he may himself determine a reasonable fee and recover the same (without seeking any approval from the Court) from the petitioner and Respondent Nos. 2 to 4, as the case may be i.e. whoever approaches him;
(b) all the concerned parties i.e. the petitioner and Respondent Nos. 2, 3, and 4 are warned that nothing should be done to disobey this order and all efforts should be employed to implement the same in letter and spirit failing which this Court shall adopt effective measures;
(c) following the guidelines given by the Supreme Court in Syed Maqsood Ali v. Mst. Sofia Naushaba 1986 SCMR 426 according to which steps should be taken to create an environment whereby the children are enabled to meet their parents smoothly, for the first twelve weeks from today, prayer (b) in the petition is allowed whereby both the wards i.e. Sarah Saad Amanullah and Ameen Saad Amanullah would meet the petitioner twice a week for two hours on each meeting in the presence of Mr. Moinuddin Ahmed, Deputy Registrar (Judicial) and to the exclusion of everyone else in the room of Mr. Moinuddin Ahmed in the High Court premises. Mr. Moinuddin Ahmed shall have all' the powers to implement the orders including the option to seek police aid. For every such meeting Mr. Moinuddin Ahmed's fee shall be Rs. 1500 payable by the petitioner directly to Mr. Moinuddin Ahmed;
(d) it is expected that both the learned counsel shall fully apprise their respective clients of the contents of this order so also the sanctity of the Court orders. An extra effort shall be made by the learned counsel for the respondents to also apprise the Wards of the true meaning of this order. Both counsel shall make every effort to explain to their clients (and the wards) of the necessity to abide by the Court orders and the consequences which may result in case there is violation of Court orders;
(e) in the manner as aforesaid there shall be no order as to costs.
(R.A.) Order accordingly
PLJ 2009 Karachi 65 (DB)
Present: Khilji Arif Hussain and Bin Yamin, JJ.
Haji AMIN--Petitioner
versus
PAKISTAN TRADING CORPORATION (PVT.) LTD.
and another--Respondents
Const. P. No. 2129 of 2007, decided on 30.9.2008.
Contract Act, 1872 (IX of 1872)--
----S. 2(a) & (h)--"Binding contract"--Tender for the sale or purchase of property, was not an offer, but an invitation of an offer and when accepted, it would constitute a binding contract; and unless the contract came into existence, the mutual rights and obligations would not arise. [P. 66] A
Constitution of Pakistan (1973)--
----Art. 199--Constitutional jurisdiction--Scope--Normally a petition for the enforcement of a contractual obligation, was not maintainable, however, State and a functionary acting under the State had to act in a fair and transparent manner; and if disputed questions of facts were not involved, relief, in exercise of power under Art. 199 of the Constitution, in appropriate matters could not be denied, merely because issues in the matter related to contractual obligation.
[P. 66] B
AIR 1990 Orissa 26 and AIR 1922 Madras 486 ref.
Mr. M. Anwar Tariq, Adovcate for Petitioner.
Mr. Salman Hamid, Advocate for Respondents.
Date of hearing: 17.9.2008.
Order
Khilji Arif Hussain, J.--The Respondent No. 1 is a corporation though registered as limited company but owned and controlled by Respondent No. 2, Federation of Pakistan Ministry of Commerce and Trade. The Respondent No. 1 invited tenders for purchase of 1000 M.T. of Irri-6 white rice. The petitioner also participated in the bid and had offered a bid of Rs.29,000 per M.T. besides freight of Rs.7,000 per M.T. for supply of the rice and enclosed a Pay Order of Rs.6,00,000 being 2% of the total bid amount along with the tender. The Respondent No. 1 awarded contract to one M/s. Cornwill Pakistan being the lowest bidder but despite request of the petitioner, refused to refund the amount of Rs.6,00,000 which was paid along with the tender form. Correspondences were exchanged between the parties and Respondent No. 1 through the letter dated 16-7-2007 informed since petitioner had backed out from the tender by increasing original quoted price in the tender Respondent No. 1 had forfeited bid amount deposited by the petitioner. Parawise comments were filed by Respondent No. 1 besides taking various legal objections, it is stated that after giving offer at the rate of Rs.20,900 per MT. respondent filed parawise comments and stated that the petitioner submitted bid of Rs.20,950 per MT and C&F and not for Rs.29,000 per M.T. as alleged in the petition. It was further stated that after opening of the tender the petitioner changed/revised the bid amount Rs.26,950 per MT on C&F. vide letter dated 25-6-2007 and petitioner giving offer at the rate of Rs.20,950 per M.T. And since the petitioner back out from the tender by increasing original quoted price in the tender Respondent No. 1 had no option but to award the contract to the second lowest bidder at the price of Rs.23,690 PMT.
Heard Mr. M. Anwar Tariq, learned counsel for the petitioner and Mr. Salman Hamid learned Advocate for the Respondent No. 1.
Mr. Salman Hamid learned advocate for the Respondent No. 1 after verifying the record frankly conceded that the acceptance letter in respect of the price initially quoted by the petitioner was not issued by the Respondent No. 1. It is contended by the learned counsel for the Respondent No. 1 that since the petitioner had revised the bid after opening of the tender the Respondent No. 1 in the circumstances issued acceptance letter to second bidder.
Tenders for the sale or purchase of property is not an offer but an invitation of an offer and when accepted constitutes a binding contract, and unless the contract comes into existence the mutual rights and obligations do not arise.
In the case of Executive Engineer, Sundargrah R&B, Divisions and others v. Mohan Prasad Sahu, AIR 1990 Orissa 26, it was held that unless the highest bid of a tenderer is accepted by the competent authority and the acceptance is communicated to the tenderer, the contract not be said to be concluded between the parties.
In the case of Joravarmull Champalal v. Jeygopaldas Ghamshamdas AIR 1922 Madras 486 Court laid down the following principle;
"By taking what is, to my mind, the plain common sense view, a person who bids at an auction, thereby does not conclude a contract but states an offer by which until he withdraws it himself, he becomes legally liable for amount of his bid. But on the other hand, we think that like all other offers it is subject to the ordinary incidents of law that, until accepted, it is open to the offerer to withdraw it and make it as if had not been made."
Normally a writ for the enforcement of a contractual obligation is not maintainable. However State and any functionary acting under the State has to act in a fair and transparent manner and, if disputed question of facts are not involved relief in exercise of power under Art. 199 of the Constitution of Islamic Republic of Pakistan 1973 in appropriate matters have not been denied, merely because issues in the matter relates to contractual obligation.
Since the Respondent No. 1 had admittedly not issued letter of acceptance to the petitioner on revised rate or on original rate and accepted bid of another person the Respondent No. 1 a government organization cannot withhold the bid money deposited by the petitioner. The petition as prayed is granted however no order as to costs.
(R.A.) Petition allowed.
PLJ 2009 Karachi 67
Present: Khalid Ali Z. Qazi, J.
Ms. BEHNAZ NAUSHERWAN MARFATIA--Petitioner
versus
ARASH BURJOR SETHNA--Respondent
Divorce Petition No. 1 of 2008, decided on 28.10.2008.
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----S. 32(g)--Dissolution of marriage on ground of desertion--Entitlement of decree--Delegates, statements of--Scope--Wife sought divorce on the plea of desertion and notices were issued to delegates-Out of 28 delegates, 12 were present before the Court--Effect--In view of no objection raised by husband and opinion of acting delegates, Court dissolved the marriage under S.32(g) of Parsi Marriage and Divorce Act, 1936--Petition was allowed. [P. 69] A & B
PLD 1960 (W.P.) Kar. 178 rel.
Ms. Danish Zuberi, Advocate for Petitioner.
Mr. Saadat Yar Khan, Advocate for Respondent.
Date of hearing: 28.10.2008.
Order
The petitioner has filed this petition for dissolution of marriage against the respondent on the ground that she has been deserted by the respondent without any reasonable cause for a period of more than three years within the meaning of Section 32(g) of the Parsi Marriage and Divorce Act (III of 1936).
The brief facts of the case are that the marriage between the petitioner and the respondent was solemnized on 19-12-2003 and out of this marriage no children were born. It is submitted that immediately after the marriage the parties resided together in rented premises located at 34 Parsi Colony, Flat No. 4, opposite Holy Family Hospital, Karachi. It is submitted that after some time of the marriage it was clear to the petitioner that the respondent was not interested in continuing with the marriage upon one pretext or the other. But the petitioner tried her best to make her marriage work and after successive period of separation, the respondent asked the petitioner to move out their matrimonial home on 15-5-2005 without any reasonable cause. The petitioner against her will moved into her parents home at the insistence of the respondent and she started living separately from the respondent since 15-5-2005. It is also submitted that about one year back the respondent has moved to Qatar for his employment. It is urged that under the provisions of clause (g) of Section 32 of the Parsi Marriage and Divorce Act, 1936, any married person may sue for divorce on the ground that the respondent has deserted the petitioner for at least three years. It is urged that respondent has withdrawn from all his marital obligations and the petitioner is fully maintaining herself and since the respondent has deserted the petitioner for over a period of three years the petitioner is entitled for dissolution of marriage in terms of clause (g) of Section 32 of the Parsi Marriage and Divorce Act, 1936.
On the last date of hearing when this petition came up for orders before the Court first time, the respondent has appeared in Court along with his counsel, who waived notice of this petition and has recorded his no objection for grant of this petition. However, as Parsi Law notices were issued to all the 28 delegates. Out of them only 12 delegates are present in Court.
The following persons acted as delegates:
Rubina Hansotia CNIC No. 42000-0411043-8
Farida Patail CNIC No. 42301-0827843-4
Rustam Kharsi Gara CNIC No. 42201-4975281-5
Parsi Gazder CNIC No. 42201-4975281-5
Berozenso Khambata CNIC No. 42201-0355113-8
Aspi Homi Sethana CNIC No. 42201-2497028-7
Nausherwan Shavax Mistri CNIC No. 42301-0891350-9
The above named delegates were of the opinion that the petitioner is entitled to a decree for dissolution of marriage on the ground of desertion. The respondent also filed his no objection in writing for grant of this petition.
I have heard Ms. Danish Zuberi, learned counsel for petitioner and Mr. Saadat Yar Khan, learned counsel for respondent and perused the case record. I have also gone through the judgment authored by Wahiduddin Ahmad, J. (as his lordship then was) in the case of Khorshed Aspi Jamula v. Aspi Dossabhoy Jamula PLD 1960 (W.P.) Karachi 178).
Under the circumstances and in view of the no objection raised by the respondent and particularly the opinion of the acted delegates, I am inclined to accept same. Accordingly, I accept their opinion and grant the petitioner a decree for divorce under Section 32(g) of the Parsi Marriage and Divorce Act III of 1936. The petition is allowed as prayed with no order as to costs.
Office is directed to prepare the decree and send a copy of the same to the concerned Registrar of Marriages appointed under Section 7 of the Parsi Marriage and Divorce Act, 1936.
(R.A.) Petition allowed.
PLJ 2009 Karachi 69
Present: Nadeem Azhar Siddiqi, J.
MUHAMMAD JAMEEL KHAN and 10 others--Applicants
versus
MUHAMMAD ALI ZAKI KHAN and 4 others--Respondents
J.M. No. 20 of 2007 in Suit No. 554 of 1987 and C.M.A. No. 4865 of 2007, decided on 28.8.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)----Scope--Decree was obtained by fraud, misrepresentation or want of jurisdiction--Application for setting aside judgment and decree--Maintainability--Judgment was passed by High Court which judgment was maintained by High Court in exercise of appellate jurisdiction and also by Supreme Court--Applicants had assailed the judgment before of High Court, as trial Court--Validity--Word "final" as appearing in S.12(2) C.P.C. had been defined as last in the series of judgment, decree or order which was no longer alterable by Court passing that judgment, decree or order and had attained finality--In case of appeal, decree of trial Court, except in exceptional cases, merged in the decree passed by appellate Court and was capable of execution--Merger took place irrespective of fact whether decree of trial Court was affirmed or reversed--Judgment passed by High Court in exercise of appellate jurisdiction was challenged but Supreme Court merely reaffirmed the judgment of appellate Court by refusing its leave to appeal--Final judgment and decree was passed by High Court in exercise of appellate jurisdiction--Application under S.12(2) C.P.C. filed in High Court as trial Court was not maintainable--Application was dismissed. [Pp. 71 & 72] A, B & C
1997 CLC 1260; 2005 CLC 1821; 2000 SCMR 900; 1993 SCMR 1171; PLD 1991 SC 197; PLD 1995 SC 564 and 1999 SCMR 1516 ref.
M. Qaiser Qureshi, Advocate for Applicants/Petitioners.
Respondent No. 1 (present in person).
Date of hearing: 28.8.2009.
Order
By this application (CM.A.No. 4865 of 2007) the applicants have prayed for setting aside the judgment dated 29-5-2006 and decree passed thereunder in Suit No. 554 of 1987 by which the suit was decreed in favour of plaintiff M.A. Razi Khan.
The learned counsel for the applicants submits that the applicants are the legal heirs of Mst. Kausar Perveen and Mst. Tanveer Islam who were the legal heirs of deceased Muhammad Ali Naqi Khan who died in 1976 leaving behind the Property Being No. 33-B, Block 6, PECH Society, Karachi. He submits that the plaintiff and defendants in Suit No. 554 of 1987 have obtained the judgment and decree in collusion with each other on the basis of fraudulent and manoeuvred documents. He then submits that the predecessor-in-interest of the applicants were not impleaded in the proceedings and on the basis of a forged gift deed the decree was obtained. He submits that at the time of gift one son was minor and was not legally entitled to accept the gift and that the gift was never complete as the possession of the property was not delivered to the donees. He then submits that after the alleged gift deed the deceased owner has mortgaged the property with the bank from which it was clear that no such gift was ever executed. The learned counsel has relied upon the following reported cases:-
(1) Abdur Rehman Khan v. Muhammad Altaf and others 1997 CLC 1260;
(2) Abdul Waheed v. Pervez Akhtar and others 2005 CLC 1821;
On the other hand respondent M.A. Razi Khan, who is present in person, submits that the judgment and decree has been properly obtained without any fraud and collusion. He submits that against the judgment and decree H.C.A. No. 255 of 2006 was filed which was dismissed and order in appeal was challenged before the Hon'ble Supreme Court in C.P.L.A. Nos. 17 and 18 of 2007 which were dismissed on 15-1-2007. He then submits that the mothers of the applicants during the life time have never claimed any inheritance in the property as they were aware about the gift made by the deceased owner in favour of his four sons and the applicants after the death of their mothers have filed this application as an afterthought. He has referred to the order passed in H.C.A. No. 68 of 1985 and submits that the predecessors-in-interest were the parties to the proceedings in which the question of gift was arose and they have not taken any exception or objection to the gift. He then submits that the application is not maintainable and is liable to be dismissed.
From the perusal of record it appears that on 31-8-2007 the. Court has passed the order directing the defendant/applicant No. 9 to satisfy the Court with regard to the maintainability of application.
I have heard the learned counsel for the applicants and M.A. Razi Khan, respondent in person. No other respondent is present.
The application under Section 12(2), C.P.C. can be filed to challenge the judgment, decree and order obtained by fraud, misrepresentation or want of jurisdiction. The application can be made before the Court which passes the final judgment, decree or order. In this matter after the judgment of the learned Single Judge the judgment was challenged in H.C.A. No. 255 of 2006 which was dismissed and a detailed judgment was passed. The matter was also referred to Hon'ble Supreme Court who has also dismissed the same. Now the question is in which Court the present application can be filed. Sub-section (2) of Section 12, C.P.C. provides that application can be filed in Court which passes the final judgment, decree or order. The word "final" has been defined as last in the series of judgment, decree or order which is no longer alterable by Court passing the said judgment, decree or order and has attained finality. In case of appeal, decree of trial Court except in exceptional cases merges in the decree passed by appellate Court and is capable of execution. It is pertinent to point out that merger takes place irrespective of fact whether the decree of trial Court was affirmed or reversed. In this matter.the order of the appellate Court was challenged before the Hon'ble Supreme Court but the Hon'ble Supreme Court has merely reaffirmed the judgment of the Appellate Court by refusing its leave to appeal. In this case the final judgment and decree was passed by the Appellate Court in H.C.A. No. 255 of 2006. At this stage when the judgment and decree which was confirmed by the Appellate Court if the same is set aside, it amounts to setting aside the judgment of Appellate Court also which is not permissible. In the reported case of Abid Kamal v. Muddassar Musatafa and others 2000 SCMR 900 the Hon'ble Supreme Court placing reliance upon the earlier judgments reported as Secretary, Ministry of Religious Affairs v. Syed Abdul Majid 1993 SCMR 1171, Government of Sindh v. Ch. Fazal Muhammad PLD 1991 SC 197. Mubarak Ali v. Fazal Muhammad PLD 1995 SC 564 and Khawaja Muhammad Yousuf v. Federal Government through Ministry of Kashmir Affairs 1999 SCMR 1516 has held as under:--
".......In both the cases i.e. 1993 SCMR 1171 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of Section 12(2), C.P.C. will be of the High Court and not of the Supreme Court, and if, however, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C."
In view of the above the application under Section 12(2), C.P.C. is not maintainable before this Court and the same is dismissed along with the pending applications.
(R.A.) Application dismissed.
PLJ 2009 Karachi 72
Present: Farrukh Zia G. Shaikh, J.
EXECUTIVE DISTRICT OFFICER/AGRICULTURE
and 3 others--Appellants
versus
ALLANA SHAIKH and 4 others--Respondents
1st CAs. Nos.24 and 25 of 2003, heard on 24.10.2008.
West Pakistan Civil Courts Ordinance, 1962 (II of 1962)--
----Ss. 2, 5
& 7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)--Civil Procedure Code, (V of 1908), S.96-- First appeal--Jurisdiction of
Court of District Judge--Contention of--Original jurisdiction of the Court of
District Judge in civil suits and proceedings would be without limit of the value thereof, that original jurisdiction in civil suits and proceedings of the value exceeding 5 Lac, would be exercised by High Court; and that under provisions of S. 5 of West Pakistan Civil Courts Ordinance, 1962 [as amended], all suits, appeals and proceedings of the value, not exceeding original or appellate jurisdiction of the District Judge, outside Karachi respectively in the High Court before commencement of the Sindh Civil Courts (Amendment)
Ordinance, 2002, would stand transferred to concerned District Judge for disposal--Validity--Words civil suits' andproceedings' u/S. 7 of West
Pakistan Civil Courts Ordinance, as amended by Sindh Civil Courts (Amendment)
Ordinance, 2002 had to be given an ejusdem generis interpretation; and word
"proceedings" would include the word "appeal"--Such being the case, the proper forum for appeals would be the District Court which had jurisdiction to entertain the same--District Judge, was directed to dispose of appeals. [Pp. 74 & 75] A
PLD 2002 Kar. 511; 2003 CLC 1183 and 2004 SCMR 1622 ref.
Mr. Lachmandas G. Rajput, Advocate for Appellants (in 1st Civil Appeal No. 24 of 2003).
Mr. Imtiaz Ali Soomro, Asstt. A.G., Sindh for Appellants (in civil Appeal No. 25 of. 2008).
Mr. Parya Ram M. Vasvani and Muhammad Imran Shamsi, Advocate for Respondents.
Date of hearing: 24.10.2008.
Judgment
By this common Order I intend to dispose of 1st Civil Appeals Nos.24 and 25 of 2003, as same point of jurisdiction is involved in both these Appeals.
It has been contended by the learned counsel appearing on behalf of the appellants in 1st Civil Appeal No. 24 of 2008 that Sindh Civil Court Ordinance, 1962 was amended in the year, 2002, wherein, the District Courts had pecuniary jurisdiction. In this context, he has relied upon PLD 2002 Karachi 511, 2003 CLC 1183 and 2004 SCMR 1622. His further arguments are fortified by Section 2 of the Sindh Civil Courts Ordinance, 1962, as amended by Section 7, which states that the original jurisdiction of the Court of District Judge in Civil Suits and Proceedings, shall be without limit of the value thereof except in Karachi Districts, the original jurisdiction in Civil Suits and Proceedings of the value exceeding Rs.500,000 shall be exercised by High Court. Reliance is also placed on Section 5 ibid that all suits, appeals and proceedings of the value not exceeding original or appellate jurisdiction of the District Judge outside Karachi respectively in the High Court before the commencement of this Ordinance, shall stand transferred to the concerned District Judge for disposal. He has further relied on the direction dated 28-9-2006 issued from the Office of Solicitor Department Government of Sindh to the effect that the Appeals may be returned with the prayer to allow the same to be filed before the Court of District Judge, Ghotki, immediately. It is further contended by the learned counsel that by virtue of sub-section (2) of Section 107 of the Civil Procedure Code, it is clear that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
On the other hand, the learned counsel for the respondents has stressed that the original Section 7 of the Sindh Civil Courts Ordinance, 1962, states that the Court of District Judge shall have jurisdiction in original suits without limit as regards of the value. Section 18 of the same concerns Appeals and states that in Appeal from a Decree or Order of Civil Judge shall lie to the High Court if the value of the original Suit in which Decree or Order was made exceeds Rs.50,000. It is an admitted position that amendment was made in the year, 2002 in Sindh Civil Courts Ordinance, 1962.
The learned counsel for the appellants is of the view that the words "Civil Suits and Proceedings" mentioned in Section 7 of the amended Ordinance, do not incorporate the word Appeal and as such an Appeal is not part of proceedings.
Learned counsel for respondents states that it is not mentioned anywhere that the appeal is for a limited amount. It is further contended that 1st Civil Appeal No. 24 of 2003 has been filed by the Appellants Executive District Officer Agricultural and others against respondent Allana Shaikh and others whereas another 1st Civil Appeal No. 25 of 2003 has been filed by the Government of Sindh against respondents Allana Shaikh and others. He has also pointed that if the situation would have been different than 1st Civil Appeal No. 25 of 2003 would not have been filed after 1st Civil Appeal No. 24 of 2003 by the Government of Sindh and others.
Under the circumstances of the case as far as the words Civil Suits and Proceedings mentioned in amended Section 7 of Sindh Civil Courts Ordinance, 2002 is concerned, the words Civil Suits and Proceedings have to be given an ejusdem generis interpretation and word "Proceedings" shall include the word "Appeal". That being the case, then the proper forum for the Appeals would be to file the same before the District Judge, Ghotki, which has jurisdiction to entertain the same.
The learned District Judge, Ghotki, is directed to dispose of both these appeals within a period of three months positively and report compliance.
(R.A.) Order accordingly.
PLJ 2009 Karachi 75 (FB)
Present: Dr. Rana Muhammad Shamim, Farrukh Zia G. Shaikh and Khawaja Naveed Ahmed, JJ
FAHAD MALIK through Attorney--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan, Islamabad and 20 others--Respondents
C.P. No. D-91 of 2008, decided on 9.4.2008.
Per Dr. Rana Muhammad Shamim, J, Khawaja Naved Ahmed, J. agreeing [Majority view]
Constitution of Pakistan (1973)--
----Arts. 199 & 225--Constitutional petition--Election matter--Efficacious remedy--Election result was assailed before High Court by petitioner--Validity--Once process of election had commenced, disputes relating to election were to be challenged before election tribunal under Art.225 of the Constitution--Judges of High Court had been nominated as members of election tribunals, therefore, proper and efficacious remedy available with petitioner was to approach election tribunal--In case election tribunals were not constituted, petitioner could approach election commission for redressal of his grievance--High Court declined to interfere with the election result--Petition was dismissed. [P. 77] A
PLD 1993 SC 173 and PLD 1989 SC 396 fol.
Per Farrukh Zia G. Shaikh, J--[Minority view]
Constitution of Pakistan, (1973)--
----Art. 199--Constitutional petition--Election dispute--Grave irregularities, fraud and misrepresentation on polling day had been noticed--F.I.R. was registered against culprits who had rigged the election--Effect--High Court declared election of the constituency as null and void and ordered for re-polling and re-election of the constituency-High Court directed law enforcing agencies to take all necessary preventive measures to ensure conduct of election as free, fair, transparent and peaceful--High Court directed election commission to announce date of re-election in the constituency and to de-notify result of the constituency, if the same had been announced by the Commission--Petition was allowed. [Pp. 77 & 78] B
Per Khawaja Naveed Ahmed, J.--
Constitution of Pakistan (1973)--
----Art. 199--Constitutional petition--Election matter--Notification of election result--Effect--Notification of success of respondent as returned candidate had been made and he had already taken oath in Assembly--Respondent was attending National Assembly session and had given vote for election of Prime Minister, Speaker and Deputy Speaker, thus the petition had become infructuous--Petitioner could agitate all the points mentioned in petition before Election Tribunal specially constituted for such purpose--Petition was dismissed.
[P. 78] C
PLD 1993 SC 473 and PLD 1989 SC 396 fol.
Mr. Shafqatullah Shaikh, Advocate for Petitioner.
Date of hearing: 13.3.2008.
Judgment
Dr. Rana Muhammad Shamim, J.--Learned counsel for the petitioner submits that the petitioner contested election as a member of National Assembly from Constituency of NA 208, Jaccobabad-I, Sindh. The elections were held on 18-2-2008 and after election in non-official results as well as in official results he was declared as unsuccessful candidate by the Respondents Nos. 1 to 3 whereas the Respondent No. 8 was declared returned candidates. He submits that approximately 42,000 bogus votes were polled by the Respondent No. 8 in his favour. He further submits that the Respondent No. 8 with active assistance of polling personnel of different polling stations arranged Ballot Papers which were subsequently recovered from his possession. The said recovered ballot papers were found duly stamped in favour of the Respondent No. 8 with intention to use in his favour. He also alleged that on the election day the Respondent No. 8 arranged deceitfully more than 15000 blank ballot papers from the Presiding Officers in Ghari Khairo which were later on duly stamped and used in his favour and stepped in ballot boxes. He also submits that the Respondent No. 8 also got arranged over 10,000 identity cards of fake voters which were subsequently utilized at Polling Stations Nos. GPS-93, GPS-94, GPS-95, and GPS-96 in his favour. He submits that the result sheet so provided clearly established about rigging the election on the polling day by the Respondent No. 8 with the assistance of the Presiding Officers. He prays that the Respondents Nos. 2 to 4 be restrained from announcing the official results and be further directed for re-polling in Constituency No. NA-208 Jaccobabad-I, Sindh.
We have heard the learned counsel for the petitioner. In our considered view the petition is not maintainable as the official results have already been announced and notified by the Respondent No. 1. Consequently Respondent No. 8 was declared returned candidate from the Constituency N.A.208 Jaccobabad-I. Further the question of disputed facts are involved in this petition which requires recording of evidence. The factual controversies could not be decided by this Court in exercise of its writ jurisdiction under Article 199 of the Constitution. While saying so, I am fortified by judgment in a case of Mian Muhammad Nawaz Sharif v. President PLD 1993 SC 473 and a case of Election Commissioner v. Javed Hashmi PLD 1989 SC 396 wherein the Hon'ble apex Court has held that once process of election commences, the disputes related to election are to be challenged before the Election Tribunal under Article 225 of the Constitution. Eight Honourable Judges of this Court have been nominated as members of the Election Tribunals, therefore, proper and efficacious remedy is available with the petitioner to approach the said Election Tribunals. In case the Election Tribunals are not constituted, petitioner may approach the Respondent No. 1 for redressal of his grievance, if so desires.
The petition is dismissed in limine along with listed applications.
Farrukh Zia G. Shaikh, J.--With profound respects to my learned, Honourable, Senior Law Lord, for reasons mentioned herein below, I allow this constitutional petition.
Granted.
Granted subject to all just exceptions.
3&4. It is contended by the learned counsel for the petitioner that the petitioner contested election as a candidate of PML(Q) from NA 208, Jaccobabad-I, Sindh and the Respondents Nos, 8 to 18 are the remaining candidates from the said constituency. It has been pointed out by the above mentioned counsel that there have been grave irregularities, fraud and misrepresentations on the polling day and as a consequence thereof F.I.R. No. 6 of 2008 had been lodged at Police Station Garhi Hassan against the culprits who had rigged the elections, therefore, I declare the election of Constituency No. 208 Jaccobabad-I, Sindh as null and void, and order for re-polling and re-election of the said constituency with direction to Law-Enforcing Agencies to take all necessary preventive measures to ensure the conduct of the election as free, fair, transparent and peaceful. I also direct the Election Commission of Pakistan i.e. Respondent No. 1 to announce the date of re-election in the Constituency No. 208 Jaccobabad-I, Sindh, denotifying result of the constituency if the same is announced by the Commission.
I also restrain the Respondent No. 1, its agents, its servants, subordinates, employees and anybody else acting through or under it from notifying the name of Respondent No. 8 as returned candidate or otherwise allowing the Respondent No. 8 to take oath as returned candidate to the Constituency, NA-208 Jaccobabad-I, Sindh.
COURT ORDER
Since we have different views i.e. the petition is dismissed in limine by me (Dr. Rana Muhammad Shamim J.) and his Lordship Mr.Justice Farrukh Zia G. Shaikh, has allowed the petition, same may be referred and placed before Honourable Chief Justice for appointment of a Referee Judge.
Khawaja Naveed Ahmed, J.--This matter has been placed before me in chamber with the conflicting judgments of my brother Judges Mr. Justice Dr. Rana Muhammad Shamim and Mr. Justice Farrukh Zia G. Shaikh. I have perused the judgments of both the learned Judges. Now the notification in respect of success of the respondent Mir Ijaz Hussain Jakhrani, the returned candidate of the Pakistan Peoples Party Parliamentarian has been made and he has already taken oath in the Assembly and is attending the National Assembly Session. He has given vote for the election of Prime Minister, Speaker and Deputy Speaker. In the circumstances in my humble opinion this petition has become infurctuous. However, since I have been asked to give my opinion. I agree with the opinion of Mr. Justice Dr. Rana Muhammad Shamim, which is based on the case law reported in PLD 1993 SC page 473 Mian Muhammad Nawaz Sharif v. President of Pakistan and case reported in PLD 1989 SC page 396, Election Commissioner v. Javed Hashmi.
Without touching the merits of the case I am of the considered that the petitioner can agitate all the points mentioned in the present petition before Election Tribunal specially constituted for this purpose.
With above observation C.P. No. D-91/2008 (Sukkur) is disposed of.
(R.A.) Petition dismissed.
PLJ 2009 Karachi 79
Present: Mrs. Qaiser Iqbal, J.
Ms. MAHNAZ BAKHTIAR--Petitioner
versus
FAROOKH R. MEHRI--Respondent
Divorce Petition No. 1 and C.M.A. No. 241 of 2009, decided on 4.3.2009.
Parsi Marriage and Divorce Act, 1936 (II of 1936)--
----S. 32--Dissolution of marriage by wife on plea of desertion by the respondent without any cause for a period of three years--Petitioner had been living away from the husband since specified period--Delegates had opined that the petitioner was entitled to a decree for dissolution of marriage on the ground of desertion--When the husband had extended no allegation and the delegates were also of the opinion that it would be impossible for the parties to live together under one roof, the petitioner had made out a case for the grant of divorce petition--Petition for divorce was granted by High Court in view of the consent of husband and the opinion of the delegates--Decree for divorce was allowed under S.32(g) of the Parsi Marriage and Divorce Act, 1936. [P. 80] A, B & C
PLD 1960 (W.P.) Kar. 178 and PLD 2009 Kar. 114 rel.
Mr. Saadat Yar Khan, Advocate for Petitioner.
Mr. Abdul Majeed Khoso holding brief for Khalid Mehmood Siddiqui for Respondent.
Respondent present in person.
Date of hearing: 4.3.2008.
Order
The petitioner has filed this petition for dissolution against the respondent on the ground that she had been deserted by the respondent without any reasonable cause for a period of three years within the meaning of Section 32(g) of the Parsi Marriage and Divorce Act, 1936.
The facts give rise to the petition are that the parties had solemnized the marriage on 8th April, 1983, out of wedlock one son namely Pooya was born in the month of January, 1986. The parties live together for sometime, they realized within a short span that they could not, make a happy marriage at home however petitioner decided to continue with the marriage in a hope that the situation might change with the passage of time. It is averred that during 18 years of marriage the respondent showed his lack of responsibility towards the petitioner as well as his son. The relationship became strained and the parties started residing in separation. So much so that in the year 1991 the petitioner had taken up full responsibility of maintaining the house as well as her son. On account of strained relationship between the parties the respondent deserted the petitioner in the year 1991 whereby reconciliations were held after the lapse of three years they started living separately. It is averred that the petitioner has been living away from the respondent since 15th June, 2001 and respondent has withdrawn all the obligation rested upon him therefore the petitioner has resorted to file petition for dissolution of marriage.
After the petition was admitted for hearing notices were issued under the Parsi Law to all the 28 delegates out of which following delegates have appeared in person:--
(1) Mr. Percy Noshir Gazder -- 42201-4975281-5
(2) Mr. Homi Dhun Ghjandialy -- 42301-4740600-7
(3) Mrs.Ruby Cawas Noshirwani -- 42000-0438231-2
(4) Mr. Aspi Sethna -- 42201-2497028-7
(5) Mrs. Aban Aga -- 42301-0808359-4
(6) Mr. Farrokh Mavalvala -- 42301-0909509-3
(7) Mr. Rustom Khursigara -- 42201-0507262-5
The above delegates have opined that the petitioner is entitled to a decree for dissolution of marriage on the ground of desertion.
The respondent has appeared in person and has filed no objection in writing to the effect that on account of desertion of the petitioner the parties have been living separately, the petition be granted.
I have heard Mr. Saadat Yar Khan learned counsel for petitioner and Mr. Abdul Majeed Khoso for respondent, perused the record of the case.
In support of the above contention learned counsel for petitioner has placed reliance in case of Khorshed ASPI Jamula v. ASPI Dossabhoy Jamula PLD 1960 (W.P.) Karachi 178 which has been approved in the report of Behnaz Nausherwan Marfatta v. Arash Burjor Sethna PLD 2009 Kar. 114, in the aforesaid circumstances when the respondent has extended no objection and the delegates were also of the opinion that it will be impossible to the parties to live together in one roof therefore the petitioner has made out a case for the grant of the petition. In view of the consent of the respondent and the opinion of the delegates mentioned above the petition is granted, a decree for divorce is allowed under Section 32(g) of the Parsi Marriage and Divorce Act II of 1936. The office is directed to prepare the decree and send a copy to the Registrar of Marriages appointed under Section 7 of the Parsi Marriage and Divorce Act, 1936. The petition is allowed in above terms. Parties are left to bear their own costs.
(R.A.) Petition allowed.
PLJ 2009 Karachi 81 (DB)
Present: Ali Sain Dino Metlo and
Syed Shafqat Ali Shah Masoomi, JJ.
Mst. SHAHZADI--Petitioner
versus
SAIFULLAH BUGHIO, S.H.O. KETI MUMTAZ, LARKANA
and 6 others--Respondents
Const. P. No. D-213 and M.A. No. 507 of 2009, decided on 25.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Recovery of detenu--Quashing of F.I.R. and proceedings--Police Officials along with others unidentified persons in civil dress, trespassed into petitioner of house and took away detenu and some valuable articles--Police Official stated that detenu was arrested as 1100 grams charas was recovered from him and that F.I.R. was registered against him--F.I.R. recorded by the Police Official (S.H.O.) against the detenu one day after filing petition by the petitioner was fabricated by him to cover his act of illegally detaining the detenu--When petition was filed by the mother of the detenu, she could not possibly know that S.H.O. would arrest the detenu and recover charas from him on next day--Detenu, could not be said to be preparing a false defence in advance--Case against the detenu, on the face of it, was fabrication on the part of the Police--No useful purpose, would be served to allow the case to pass through investigation and trial; on the contrary, it would be abuse of the process of law as well the Court--F.I.R. recorded against the detenu on allegation that detenu injured himself to attempt to commit suicide was also fabricated--F.I.R. and proceedings were quashed.
[Pp. 82 & 83] A, B & C
Mr. Javed Ahmed Deenari, Advocate for Petitioner.
Mr. Abdul Hamid Bhurgri, Addl. A.-G. and Azizul Haque Solangi, Asstt. A.G. for State.
SIP Ali Nawaz S.H.O., P.S. Naudero, S.-I, Saifullah S.H.O., P.S. K.T. Mumtaz, SIP Zamir Hussain SIO, P.S. KT Mumtaz, A.S.-I. Mabtab Shah, IB K.T. Mumtaz, A.S.-I. Muhammad Zaman, SIO Civil Line, PC Muhammad Ali i/c of Mujahid No. 5 and P.C. Haroon P.S. K.T.Mumtaz present.
Alleged detenu Shoukat Ali Memon, produced by Superintendent, Central Prison, Larkana.
Date of hearing: 25.3.2009.
Order
According to petitioner Mst. Shahzadi, mother of detenu Shoukat Ali, S.-I. Saifullah, S.H.O. of Police Station, KT Mumtaz (Respondent No. 1), along with Respondents Nos.2 to 4 and 12 other unidentified persons in civil dress, all armed with deadly weapons, trespassed into her house, took away her son, detenu Shoukat Ali, and some valuable articles. The petition was filed on 16-3-2009 and notices were issued to the respondents on the same day.
According to the Respondent No. 1, the detenu was arrested by him on 17-3-2009, at 1000 hours, at the bridge of Shandan Wah during patrol and charas weighing 1100 grams was recovered from him. Such F.I.R. Bearing No. 13/2009 was registered against him on the same day at 1100 hours.
There is force in the argument of learned counsel for the petitioner that F.I.R. No. 13/2009 was fabricated by the S.H.O. mainly to cover his act of illegally detaining the detenu. On 16-3-2009 the petitioner could not possibly know that the S.H.O. would arrest the detenu and recover charas from him on 17-3-2009 at the bridge. It cannot, therefore, be said that the detenu through the petitioner, was preparing a false defence in advance. On the face of it, the case against the detenu is fabrication on the part of the police. In such circumstances, no useful purpose will be served to allow the case to pass through the mill of investigation and trial. On the contrary, it will be abuse of the process of law as well as of Court. Therefore, the F.I.R., Bearing No. 13 of 2009 of Police Station K.T. Mumtaz is quashed.
An other F.I.R. Bearing No. 29/2009, was registered against the detenu at Police Station Civil Lines, Larkana on 14-3-2009 alleging therein that on the same day i.e. on 17-3-2009 in the lock-up of the police station he injured himself in his abdomen with a piece of plate and thereby attempted to commit suicide. He was taken to C.M.C. Hospital Larkana but after giving him some treatment he has returned back to police as the injury was minor one. According to the learned counsel for the petitioner, F.I.R. No. 29/2009 was also a fabrication on the part of police to cover its act of maltreating the detenu.
Even if version of police is accepted that the detenu had injured himjself, no case of attempt to commit suicide is made out against him. It cannot be said that he attempted to commit suicide by causing himself one minor injury. If he really wanted to commit suicide he would have caused more injuries to himself, as there was none to prevent him from doing so in the bathroom of the lockup. At the most, it can be said that he wanted to deter police and save himself from police torture. Causing injury to oneself, which does not amount to attempt to commit suicide is not an offence.
In such circumstances, it will again be abuse of the process of law as well as of Court to allow the case of the so-called attempt to commit suicide to pass through the mill of investigation and trial. Therefore, F.I.R. No. 29/2009 of Police Station Civil Lines, Larkana is also quashed. The detenu is directed to be released immediately.
(R.A.) F.I.R. Quashed
PLJ 2009 Karachi 83
Present: Nadeem Azhar Siddiqi, J.
ALMAS KHAN--Petitioner
versus
Mrs. BANO through Attorney and 2 others--Respondents
Const. P. No. S-599 of 2008, decided on 13.4.2009.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Non-payment of rent--Validity--Landlord's attorney had stated on oath that tenant had not paid rent from the specified period--Burden shifted on tenant to prove that before tendering rent through money order, he tendered rent' every month to landlord personally, who refused to accept the same--Due to non-availability of any date on coupon of money order, same would be presumed to have been sent in September, 2002 after committing default for May and June, 2002--Tenant had not produced any evidence to discharge burden of proof--Ejectment petition was accepted. [P. 86] A & C
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Non-payment of rent by tenant--Burden of proof--Payment of rent being positive fact could be proved by evidence--Non-payment of rent being a negative fact, thus, for proving same, there could be no evidence. [P. 86] B
PLD 1992 Kar. 314 and PLD 1991 Kar. 239 rel.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Bona fide personal need--Attorney of landlord in cross-examination giving account of all shops owned by landlord--Tenant's failure to establish availability of any vacant shop--Effect--Mere statement of tenant without evidence would not be sufficient that other shops were available with landlord--Prerogative of landlord to select shop and nature of business--Ejectment petition was accepted. [Pp. 86 & 87] D
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Non-payment of rent by tenant--There would be no default on his part, if arrears of rent were allowed to be adjusted from pugri amount paid to previous owner of demised shop--Entitlement to claim benefit of Pugri--Validity--Pugri not being an advance rent, could not be adjusted towards arrears of rent to save tenant from consequences of default in payment of rent, if committed by him and proved by landlord--Landlord could not be made to suffer for unlawful doings of others i.e. receipt of pugri by previous owner--Tenant's plea was repelled and ejectment petition was accepted.
[Pp. 87 & 88] E, F & G
1997 SCMR 1819; 1987 SCMR 307 and 2000 SCMR 498 rel.
Mr. Mobarak Ahmed, Advocate for Petitioner.
Raja Riaz Ahmed, Advocate for Respondent No. 1.
Date of hearing: 13.4.2009.
Judgment
Through this petition the petitioner has called in question the judgment dated 19-11-2008 passed by learned District Judge, Karachi Central in F.R.A. No. 115 of 2008 whereby the said F.R.A. was dismissed and the order dated 4-8-2008 passed by the learned Rent Controller in Rent Case No. 636 of 2007 was upheld.
Brief facts of the case are that the Respondent No. 1/landlady filed an application under Section 15(2)(ii) and (iii) of the Sindh Rented Premises Ordinance, 1979 against the petitioner/tenant in respect of Shop No. 8, constructed on Plot No. A-1/9, Block 9, Dastgir Colony, Federal "B" Area, Karachi on the ground of default in payment of rent as well as personal bona fide use. Notices were issued to the petitioner/tenant who filed his written statement denying the claim of the respondent. The Respondent No. 1/landlady filed her affidavit-in-evidence through attorney and also of one Shakeel Ahmed while the petitioner filed his affidavit-in-evidence and also of Rehmatullah and Fazal Ahad. The petitioner has also examined the previous landlord, namely, Irshad Ahmed. The learned Rent Controller, after hearing the parties, passed the judgment dated 4-8-2008 whereby he allowed the rent case and directed the petitioner/tenant to hand over vacant possession of premises to the Respondent No. 1/landlady within sixty days of that judgment. Against that judgment the petitioner filed F.R.A. No. 115 of 2008 which was also dismissed by the learned District Judge, Karachi Central vide judgment dated 19-11-2008, as stated above. Hence, this petition.
I have heard learned counsel for the parties and have gone through the record and the case law relied before me.
Learned counsel for the petitioner submitted that no default was committed by the petitioner as admittedly rent upto April, 2002 was paid by the petitioner to the Respondent No. 1/landlady and, thereafter, on refusal of the landlady to accept the rent, the same was tendered through money order and then was deposited in MRC No. 311/2003 and that since then the petitioner is regularly depositing the rent in the said MRC. He also submitted that since other shops were available to the Respondent No. 1/landlady in the same vicinity/building, the ground of personal bona fide need was not available to her. He also submitted that Pugri has been paid to the previous owner and the petitioner is entitled to adjust the same from the arrears of rent and in case the adjustment is allowed the petitioner has committed no default. He submitted that the judgments of the two Courts below are perverse and without jurisdiction and are liable to be set aside.
On the other hand, learned counsel for Respondent No. 1 has submitted that the petitioner has not tendered rent before tendering the same through money order and thus, has committed default in payment of rent. He also submits that the demised premises is required for the personal bona fide need of the Respondent No. 1 for running a stationery shop therein by her son and submits that it has come on record that no other vacant shop is available for the use of the son of Respondent No. 1. He then submitted that the two Courts below have passed concurrent judgments against the petitioner/tenant which cannot be disturbed under the constitutional jurisdiction of this Court. He then submitted that no Pugri has been paid to the Respondent No. 1 and the same cannot be adjusted from the arrears of rent.
I have heard the learned counsel for the parties and perused the record made available before me.
The ejectment application was filed on the ground of default in payment of rent from May 1992 onwards and on the ground of personal bona fide need of the landlady. The Respondent No. 1 claims that rent from May, 2002 till filing of the ejectment application has not been paid. The petitioner claims that he tendered the rent from May, 2002 to September, 2002 as usual but the applicant refused to accept the same and demanded increase in rent and the petitioner has tendered the rent through money orders. The petitioner in his cross-examination has pleaded ignorance regarding date of sending money order. The Respondent No. 1's attorney on oath stated that the rent from May, 2002 onwards was not paid. The burden was shifted upon the petitioner to prove that before tendering the rent for the period from May, 2002 to September, 2002 through money order the rent was personally tendered to the Respondent No. 1 every month, who refused to accept the same. It is the duty of the tenant to pay rent in accordance with the provisions of Sindh Rented Premises Ordinance, 1979. Admittedly, the rent for May, 2002 to September, 2002 was sent collectively and since no date is available on the money order coupon it can be said that the same was sent in the month of September, 2002 after committing default for the months of May and June, 2002. The petitioner has failed to discharge the burden as no evidence has been produced by him to show that rent for every month was tendered before sending the same by money order. The payment of rent is a positive fact and can be proved by evidence whereas non-payment of rent is negative fact and there can be no evidence for providing a negative fact. I am fortified in my view by the reported case of Muslim Commercial Bank Ltd. v. Yaqinuddin (PLD 1992 Karachi 314) and the case of Mr. Afia Baig v. Pakistan State Oil (PLD 1991 Karachi 239). The Rent Controller has properly discussed the evidence available on record before reaching the conclusion that default has been committed and both the Courts below have recorded finding of facts which is not suffering from any perversity and illegality and is strictly in accordance with law.
Regarding personal need it has come on record that no other vacant shop is available. The attorney of the Respondent No. 1/Landlady in his cross-examination has given the account of all shops in the building and the petitioner has failed to establish that any vacant shop is available. Mere statement in this regard without evidence is not sufficient to hold that other shops are available. Even otherwise it is the prerogative of the landlady to select the shop and the nature of business. The Courts below have rightly recorded the finding of facts and no exception can be taken in this regard.
To prove the payment of Pugri the petitioner has examined the previous owner of the demised premises. The previous owner in his cross examination stated that petitioner paid Rs.5,000 at the time of inception of tenancy and after 15 years paid Rs.45,000 as Pugri amount. Law does not recognize payment of Pugri and on the basis of payment the tenant cannot save his ejectment if the landlady proves one of the grounds of ejectment of tenant. In the reported case of Azizur Rehman v. Pervaiz Shah (1997 SCMR 1819) the Honourable Supreme Court had held that, payment of Pugri not forming terms and conditions of tenancy and being contrary to public policy, and supra contractual arrangement which negated tenancy could not affect maintainability of eviction proceedings. In the other reported case of Sh. Muhammad Yousuf v. District Judge, Rawalpindi (1987 SCMR 307) the Honourable Supreme Court has held that the payment of Pugri being mutual agreement between the parties, would not debar the landlady from instituting eviction proceedings on the ground of bona fide personal need. It may be added that Pugri has never received any legal recognition and the tenant is not entitled to claim benefit of the same. Pugri is not an advance rent and cannot be adjusted towards arrears of rent to save the tenant from the consequences of default in payment of rent if committed by him and proved by the landlady. So far as the contention of the learned counsel for the petitioner that the petitioner has paid pugri to the previous owner is concerned, reference may be made to the reported case of Muhammad Ashraf v. Ismail (2000 SCMR 498), wherein Kamal Mansur Alam, J (as he then was), expressing the view of the DB, observed as under:--
"Even assuming, for the sake of argument, that Pugri had been paid to the previous owner, as contended by the learned counsel, then too no adjustment of the arrears of rent against such Pugri can be claimed, when the property has already been sold to the present respondent; surely these respondents cannot, by any stretch, be made to suffer for the unlawful doings of others. In the result, we find no merit in the petition which is accordingly dismissed and leave is refused."
In view of the above observation of a Division Bench of the Honourable Supreme Court, the contention of the learned counsel has no force and is repelled.
(R.A.) Petition dismissed.
PLJ 2009 Karachi 83
Present: Nadeem Azhar Siddiqi, J.
ALMAS KHAN--Petitioner
versus
Mrs. BANO through Attorney and 2 others--Respondents
Const. P. No. S-599 of 2008, decided on 13.4.2009.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Non-payment of rent--Validity--Landlord's attorney had stated on oath that tenant had not paid rent from the specified period--Burden shifted on tenant to prove that before tendering rent through money order, he tendered rent' every month to landlord personally, who refused to accept the same--Due to non-availability of any date on coupon of money order, same would be presumed to have been sent in September, 2002 after committing default for May and June, 2002--Tenant had not produced any evidence to discharge burden of proof--Ejectment petition was accepted. [P. 86] A & C
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Non-payment of rent by tenant--Burden of proof--Payment of rent being positive fact could be proved by evidence--Non-payment of rent being a negative fact, thus, for proving same, there could be no evidence. [P. 86] B
PLD 1992 Kar. 314 and PLD 1991 Kar. 239 rel.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Bona fide personal need--Attorney of landlord in cross-examination giving account of all shops owned by landlord--Tenant's failure to establish availability of any vacant shop--Effect--Mere statement of tenant without evidence would not be sufficient that other shops were available with landlord--Prerogative of landlord to select shop and nature of business--Ejectment petition was accepted. [Pp. 86 & 87] D
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Non-payment of rent by tenant--There would be no default on his part, if arrears of rent were allowed to be adjusted from pugri amount paid to previous owner of demised shop--Entitlement to claim benefit of Pugri--Validity--Pugri not being an advance rent, could not be adjusted towards arrears of rent to save tenant from consequences of default in payment of rent, if committed by him and proved by landlord--Landlord could not be made to suffer for unlawful doings of others i.e. receipt of pugri by previous owner--Tenant's plea was repelled and ejectment petition was accepted.
[Pp. 87 & 88] E, F & G
1997 SCMR 1819; 1987 SCMR 307 and 2000 SCMR 498 rel.
Mr. Mobarak Ahmed, Advocate for Petitioner.
Raja Riaz Ahmed, Advocate for Respondent No. 1.
Date of hearing: 13.4.2009.
Judgment
Through this petition the petitioner has called in question the judgment dated 19-11-2008 passed by learned District Judge, Karachi Central in F.R.A. No. 115 of 2008 whereby the said F.R.A. was dismissed and the order dated 4-8-2008 passed by the learned Rent Controller in Rent Case No. 636 of 2007 was upheld.
Brief facts of the case are that the Respondent No. 1/landlady filed an application under Section 15(2)(ii) and (iii) of the Sindh Rented Premises Ordinance, 1979 against the petitioner/tenant in respect of Shop No. 8, constructed on Plot No. A-1/9, Block 9, Dastgir Colony, Federal "B" Area, Karachi on the ground of default in payment of rent as well as personal bona fide use. Notices were issued to the petitioner/tenant who filed his written statement denying the claim of the respondent. The Respondent No. 1/landlady filed her affidavit-in-evidence through attorney and also of one Shakeel Ahmed while the petitioner filed his affidavit-in-evidence and also of Rehmatullah and Fazal Ahad. The petitioner has also examined the previous landlord, namely, Irshad Ahmed. The learned Rent Controller, after hearing the parties, passed the judgment dated 4-8-2008 whereby he allowed the rent case and directed the petitioner/tenant to hand over vacant possession of premises to the Respondent No. 1/landlady within sixty days of that judgment. Against that judgment the petitioner filed F.R.A. No. 115 of 2008 which was also dismissed by the learned District Judge, Karachi Central vide judgment dated 19-11-2008, as stated above. Hence, this petition.
I have heard learned counsel for the parties and have gone through the record and the case law relied before me.
Learned counsel for the petitioner submitted that no default was committed by the petitioner as admittedly rent upto April, 2002 was paid by the petitioner to the Respondent No. 1/landlady and, thereafter, on refusal of the landlady to accept the rent, the same was tendered through money order and then was deposited in MRC No. 311/2003 and that since then the petitioner is regularly depositing the rent in the said MRC. He also submitted that since other shops were available to the Respondent No. 1/landlady in the same vicinity/building, the ground of personal bona fide need was not available to her. He also submitted that Pugri has been paid to the previous owner and the petitioner is entitled to adjust the same from the arrears of rent and in case the adjustment is allowed the petitioner has committed no default. He submitted that the judgments of the two Courts below are perverse and without jurisdiction and are liable to be set aside.
On the other hand, learned counsel for Respondent No. 1 has submitted that the petitioner has not tendered rent before tendering the same through money order and thus, has committed default in payment of rent. He also submits that the demised premises is required for the personal bona fide need of the Respondent No. 1 for running a stationery shop therein by her son and submits that it has come on record that no other vacant shop is available for the use of the son of Respondent No. 1. He then submitted that the two Courts below have passed concurrent judgments against the petitioner/tenant which cannot be disturbed under the constitutional jurisdiction of this Court. He then submitted that no Pugri has been paid to the Respondent No. 1 and the same cannot be adjusted from the arrears of rent.
I have heard the learned counsel for the parties and perused the record made available before me.
The ejectment application was filed on the ground of default in payment of rent from May 1992 onwards and on the ground of personal bona fide need of the landlady. The Respondent No. 1 claims that rent from May, 2002 till filing of the ejectment application has not been paid. The petitioner claims that he tendered the rent from May, 2002 to September, 2002 as usual but the applicant refused to accept the same and demanded increase in rent and the petitioner has tendered the rent through money orders. The petitioner in his cross-examination has pleaded ignorance regarding date of sending money order. The Respondent No. 1's attorney on oath stated that the rent from May, 2002 onwards was not paid. The burden was shifted upon the petitioner to prove that before tendering the rent for the period from May, 2002 to September, 2002 through money order the rent was personally tendered to the Respondent No. 1 every month, who refused to accept the same. It is the duty of the tenant to pay rent in accordance with the provisions of Sindh Rented Premises Ordinance, 1979. Admittedly, the rent for May, 2002 to September, 2002 was sent collectively and since no date is available on the money order coupon it can be said that the same was sent in the month of September, 2002 after committing default for the months of May and June, 2002. The petitioner has failed to discharge the burden as no evidence has been produced by him to show that rent for every month was tendered before sending the same by money order. The payment of rent is a positive fact and can be proved by evidence whereas non-payment of rent is negative fact and there can be no evidence for providing a negative fact. I am fortified in my view by the reported case of Muslim Commercial Bank Ltd. v. Yaqinuddin (PLD 1992 Karachi 314) and the case of Mr. Afia Baig v. Pakistan State Oil (PLD 1991 Karachi 239). The Rent Controller has properly discussed the evidence available on record before reaching the conclusion that default has been committed and both the Courts below have recorded finding of facts which is not suffering from any perversity and illegality and is strictly in accordance with law.
Regarding personal need it has come on record that no other vacant shop is available. The attorney of the Respondent No. 1/Landlady in his cross-examination has given the account of all shops in the building and the petitioner has failed to establish that any vacant shop is available. Mere statement in this regard without evidence is not sufficient to hold that other shops are available. Even otherwise it is the prerogative of the landlady to select the shop and the nature of business. The Courts below have rightly recorded the finding of facts and no exception can be taken in this regard.
To prove the payment of Pugri the petitioner has examined the previous owner of the demised premises. The previous owner in his cross examination stated that petitioner paid Rs.5,000 at the time of inception of tenancy and after 15 years paid Rs.45,000 as Pugri amount. Law does not recognize payment of Pugri and on the basis of payment the tenant cannot save his ejectment if the landlady proves one of the grounds of ejectment of tenant. In the reported case of Azizur Rehman v. Pervaiz Shah (1997 SCMR 1819) the Honourable Supreme Court had held that, payment of Pugri not forming terms and conditions of tenancy and being contrary to public policy, and supra contractual arrangement which negated tenancy could not affect maintainability of eviction proceedings. In the other reported case of Sh. Muhammad Yousuf v. District Judge, Rawalpindi (1987 SCMR 307) the Honourable Supreme Court has held that the payment of Pugri being mutual agreement between the parties, would not debar the landlady from instituting eviction proceedings on the ground of bona fide personal need. It may be added that Pugri has never received any legal recognition and the tenant is not entitled to claim benefit of the same. Pugri is not an advance rent and cannot be adjusted towards arrears of rent to save the tenant from the consequences of default in payment of rent if committed by him and proved by the landlady. So far as the contention of the learned counsel for the petitioner that the petitioner has paid pugri to the previous owner is concerned, reference may be made to the reported case of Muhammad Ashraf v. Ismail (2000 SCMR 498), wherein Kamal Mansur Alam, J (as he then was), expressing the view of the DB, observed as under:--
"Even assuming, for the sake of argument, that Pugri had been paid to the previous owner, as contended by the learned counsel, then too no adjustment of the arrears of rent against such Pugri can be claimed, when the property has already been sold to the present respondent; surely these respondents cannot, by any stretch, be made to suffer for the unlawful doings of others. In the result, we find no merit in the petition which is accordingly dismissed and leave is refused."
In view of the above observation of a Division Bench of the Honourable Supreme Court, the contention of the learned counsel has no force and is repelled.
(R.A.) Petition dismissed.
PLJ 2009 Karachi 88
Present: Nadeem Azhar Siddiqi, J.
HASAN ALI--Petitioner
versus
MUHAMMAD FARHAN AHMED and another--Respondents
C.P. No. S-168 and CM.A. No. 487 of 2009, decided on 17.4.2009.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Ejectment petition--Non-payment of water and other charges by tenant--No agreement existed between parties regarding his liability to pay such charges--Validity--Tenant could not plead against specific provision of law--Onus would lie upon tenant to prove that he was not liable to pay such charges, but his mere words to such effect would not be sufficient to discharge such burden. [P. 91] A
2000 CLC 1813 rel.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----Ss. 15 & 16(1)--Constitution of Pakistan (1973), Art. 199--Ejectment petition--Non-payment of utility charges by tenant--No agreement existed between parties regarding his liability to pay such charges--Decision of such question by Rent Controller at a stage of passing order u/S. 16(1) of Sindh Rented Premises Ordinance, 1979--Scope--Such factual question could be decided only after recording of evidence, but not at such stage or in constitutional petition.
[P. 92] B & D
1989 MLD 2294 and 2000 CLC 1813 ref.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintainability--Questions of fact as to contractual liabilities of parties--High Court in writ jurisdiction could not decide such questions--Principles--Factual controversies cannot be decided in writ jurisdiction of High Court. But where the question is purely legal and also settled by the superior Courts, then writ jurisdiction can be pressed into service--Writ jurisdiction can only be invoked where it is shown that the order is perverse or while passing the order, the subordinate Courts have committed some illegality and irregularity. The disputed questions of facts as to the contractual liabilities of the parties cannot be adequately resolved in writ jurisdiction. [P. 92] C
Mr. Mirza Waqar Hussain, Advocate for Petitioner.
Date of hearing: 17.4.2009.
Order
By filing this petition the petitioner has challenged the order dated 22-1-2009 passed by the learned VI Rent Controller, Karachi Central in Rent Case No. 366 of 2008 on an application under Section 16(1), Sindh Rented Premises Ordinance, 1979 filed by the Respondent No. 1, allowing the same.
In short, the facts of the case are that Respondent No. 1 filed ejectment application under Section 15 of the Sindh Rented Premises Ordinance, 1979 for the ejectment of the petitioner on the ground of default in payment of rent, electric charges, water, conservancy and fire charges and on the ground of personal need of the Respondent No. 1. The petitioner filed written statement and denied the averments made in the ejectment application and stated that the water, conservancy, fire and sewerage charges being not agreed by the petitioner even with his out going landlord, and as there is no privity of contract for payment of such charges by the petitioner with Respondent No. 1 he is not liable to pay such charges. During the pendency of ejectment application an application under Section 16(1) of the Ordinance was filed by Respondent No. 1 which was allowed vide order dated 22-1-2009 and the petitioner was directed to deposit the utility charges amounting to Rs.28,564 and monthly rent as under:
"The opponent has contended that there is no rent agreement making him liable to pay the charges of water, sewerage and conservancy and other utility charges however, no such agreement has been produced between the applicant and outgoing owner excluding the opponent from such liability. In absence of any document from the opponent side, I am of the considered view that the opponent who is running the Dry Cleaners business in the two shops and he is consuming the water and [using] the sewerage, cannot be said not liable to pay any charges and free from such liability. The applicant's counsel has produced the notice issued by the Karachi Water and Sewerage Board and in case the applicant fails to make payment of such charges, the opponent and the other tenant would naturally suffer from not supply of water. In my considered view the opponent is liable to pay such utility charges which are calculated by the applicant at the rate of Rs.28,564. Let opponent make such payment within one month's time. As far as the arrears of monthly rent are concerned, the opponent had paid Rs.26,000 at the rate of Rs.2000 p.m. and the first payment is dated 28-5-2008 Rs.6000 (sic). The opponent claims to have paid the monthly rent to the out going owner for the month of February 2008, thus the applicant is at liberty to withdraw such rent deposited in M.R.C. No. 338/2008. However, the opponent is directed to deposit the monthly rent at the rate of Rs.2000 in future in this case on or before 10th of each Calendar month and he shall also continue to pay the utility charges being share against the shops in his possession out of 7 shops in the building, without any default. The application stands disposed of in the above terms."
It is against the above tentative rent order that the petitioner has filed this petition.
The learned counsel for the petitioner states that since there was no agreement between the parties to the effect that the tenant/petitioner was not liable to pay any other charges except rent, the learned Rent Controller has no jurisdiction to pass the tentative rent order directing the petitioner to pay water, conservancy and fire charges and in absence of a specific agreement between the parties for payment of such charges by the tenant is against the law and is perverse.
Learned counsel further submitted that the Respondent No. 1 had acquired the demised property from its previous owner in February, 2008 and notice under Section 18 of the Ordinance was given to the petitioner/tenant in April, 2008 in which also there was no mention about any agreement between the petitioner and the previous owner with regard to payment of such charges by the petitioner/tenant. He then submits that the learned Rent Controller was impressed by the fact that the petitioner is running dry-cleaning business in the demised premises and directed the petitioner to pay the said charges.
In support of his contention the learned counsel for the petitioner relied upon a DB judgment of this Court in the reported case of Muhammad Alam Baloch 1989 MLD 2294 and a judgment of a learned Single Judge of this Court in the reported case of State life Insurance Corp. v. Mrs. Surraya Sajjad (2000 CLC 1813).
I have heard the learned counsel for the petitioner and have perused the record.
The dispute is with regard to the direction issued by the learned Rent Controller to the petitioner for depositing water, conservancy and fire charges. In the impugned order the learned Rent Controller has observed that the petitioner in support of his contention that he is not liable to pay the charges as above has not produced any agreement which excludes him from payment of such liability. It was further observed in the said order that in the absence of any document from the tenant's side the petitioner/tenant, who is running dry cleaning business in the two shops and is consuming the water and sewerage cannot say that he is not liable to pay any charges in that regard and is free from such liability.
Admittedly, there is no written agreement between the parties regarding payment or non-payment of utility charges. From perusal of the definition of rent provided in the Ordinance it appears that the expression "rent" includes water charges, electricity charges and such other charges which are payable by the tenant. From the definition it appears that the water and other charges were made part of the rent and the tenant is liable to pay the same.
The definition of the term "rent", as provided in the Sindh Rented Premises Ordinance, is a under:
"rent" includes water charges, electricity charges and such other charges which are payable by the tenant but are not paid."
The petitioner claims that there is no agreement between the parties to the effect that the petitioner/tenant is liable to pay such other charges as defined in the definition of the term "rent". The petitioner is pleading against the specific provision of law and onus is upon him to prove that he is not liable to pay the same and his mere words are not sufficient to discharge this burden.
In the reported case of State Life Insurance (supra), it has been held as under:
"Moreover, the word, "includes" indicates that when such charges are to be payable by the tenant they are deemed to constitute part of rent. It would thus, follow that unless the agreement expressly required payment of water charges in addition to the agreed rent to be paid by the tenant the composite amount stated to be rent of the premises would include such charges. In either case therefore, I am satisfied that there is no separate obligation on the part of the respondent to pay water charges in terms of the definition of the expression `rent' and the agreement between the parties."
The facts of the above case are distinguishable from the facts of the present case. The judgment in the cited case was pronounced in a rent appeal and not in a constitutional petition. Secondly, in that case there was an agreement between the parties fixing the liabilities of the parties, whereas in this case there is no written agreement fixing the liabilities between the parties. The landlord claims that the charges are part of rent while the petitioner denies that the same form part of rent. This controversy at the stage of passing of the order under Section 16(1) of the Ordinance cannot be decided and appears to be a factual dispute which can only be decided after recording evidence. Such factual controversy cannot be decided by filing this petition as factual controversies cannot be decided in writ jurisdiction of this Court.
In the other reported case of Haji Muhammad Alam Baloch (supra), the matter in dispute was whether the Rent Controller can pass order for deposit of time barred rent. In that context the learned DB of this Court has held as under:
"The only point on which we are inclined to exercise constitutional jurisdiction is that in view of the clear pronouncement by the Honourable Supreme Court and this Court that Rent Controller is not competent to order the deposit of time-bared rent, the Rent Controller could not have passed the impugned order and, therefore, patently they are without jurisdiction or in excess of jurisdiction."
While making the above observations the learned DB has held that constitutional jurisdiction cannot be pressed into service where dispute relates to question of rate of rent or the period of the arrears of rent when it is within the limitation period or even the question of relationship as these are disputed questions of fact. But where the question is purely legal and the question is also settled by the superior Courts writ jurisdiction can be pressed into service. It is now settled law that writ jurisdiction can only be invoked where it is shown that the order is perverse or while passing the order the subordinate Courts have committed some illegality and irregularity. The disputed questions of fact as to the contractual liabilities of the parties cannot be adequately resolved by filing writ petitions.
The question whether the tenant is liable to pay other charges is a disputed question of fact and cannot be resolved in this petition.
In view of the above, this petition has no merits and is accordingly dismissed in limine along with the listed application.
(R.A.) Petition dismissed.
PLJ 2009 Karachi 93 (DB)
Present: Anwar Zaheer Jamali, C.J. and
Muhammad Karim Khan Agha, J.
HAKIM ALI and another--Petitioners
versus
PROVINCE OF SINDH through Secretary, and 10 others--Respondents
Const. P. No. D-1659 of 2008, decided on 8.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B, 344 & 346/34--Criminal Procedure Code (V of 1898), S. 561-A--Constitutional petition--Quashing of proceedings--Conversion of constitutional petition into petition under S. 561-A, Cr.P.C.--Petitioner/alleged abductee had alleged that as her father wanted to marry her against her will, she was compelled to leave her home and seek assistance of legal consultant--Said Advocate brought her before a Justice of the Peace where she swore-an affidavit of her free will--Other petitioner (Female) thereafter contracted marriage with the petitioner and Nikah was performed--Nikahnama was registered by Registrar concerned--According to the petitioners, respondent/father of female petitioner allegedly lodged a false F.I.R. against female petitioner and his relations for abduction of the female petitioner--Police Surgeon had reported that age of petitioner alleged abductee was 19 years--Petitioner (female) had reached the age of puberty which was evidenced by the birth of her son and her statement on oath before the High Court that she married out of her free will, was corroborated by her affidavit earlier sworn by her before Justice of Peace/Judicial Magistrate--F.I.R. in the case was registered after a delay of 7 months after the alleged incident of abduction--Challan had revealed that the investigation had found hardly any thing to support the allegation in the F.I.R. against the petitioner/accused--High Court found that there was no probability of conviction of accused in the case arising out of F.I.R.--Treating the constitutional petition as a petition for quashing of proceedings under S.561-A, Cr.P.C, proceedings were quashed and the petitioners were declared legally married as husband and wife based on their own free will.
[Pp. 97 & 98] A, B, C, D & E
2006 SCMR 276; 2008 SCMR 76; PLD 2007 SC 189; 1995 MLD 615; PLD 1999 Kar. 123 and 2003 MLD 1557 rel.
Mr. Muhammad Ibrahim Sahto, Advocate for Petitioner.
Mr. Muhammad Nawaz Shaikh, Advocate for Respondnet No. 8.
Mr. Miran Muhammad Shah, Addl. A.-G. Sindh for others Respondent.
Date of hearing: 8.4.2009.
Order
Muhammad Karim Khan Agha, J.--According to Petitioner No. 2 (Ms. Farzana) her father (Respondent No. 8) intended to marry her against her will which compelled her to leave her home and seek assistance of an Advocate.
On 18-1-2008 the Advocate brought her before a Justice of the Peace/Judicial Magistrate where she swore an affidavit of freewill. Thereafter Petitioner No. 2 contracted marriage with Petitioner No. 1 (Mr. Hakim Ali) and Nikah was performed. The Nikahnama was registered by Registrar Lyari Town Karachi.
In retaliation and as a matter of revenge according to the petitioners Respondent No. 8, allegedly in collusion with police officials, on 19-7-2008 lodged a false F.I.R. No. 54/08 under Sections 365-B, 344, 364/34, P.P.C. against Petitioner No. 1 and his relations for abduction of Petitioner No. 2 on 7-1-2008 at Police Station Guddu Taluka Kashmore.
As a result of this allegedly false F.I.R. police officials in collusion with Respondent No. 8 arrested a relative of Petitioner No. 1 and refused to release him unless Petitioner No. 1 surrendered to the police. According to the petitioners they also came to know that Respondent No. 8 and other relatives had declared them Kari and Karo and intended to kill them both.
Under these circumstances the petitioners have approached this Honourable Court with the following prayer:-
(a) To declare the petitioners being legally married husband and wife in exercise of their right conferred upon them by the law, Constitution and Sharia, have a right to pass their marital life according to their wish and the private respondents have no right to interfere with such rights. The filing of F.I.R. is therefore mala fide, illegal, motivated to harass the petitioner, hence liable to be quashed.
(b) To declare further that the threats of murder of petitioner as Karo and Kari issued by the private respondent and other relations are not only illegal but amount to cause harassment to the petitioners and in violation of their fundamental right of liberty.
(c) To direct the Respondents Nos.2 to 7 to provide full protection to the persons and properties of the petitioners against private respondents enabling them to perform their daily pursuits and move freely with further direction to the Respondents Nos.l and 2 to ensure compliance of such directions by the notice.
(d) To quash the F.I.R. No. 54/08 lodged by Respondent No. 8 against Petitioner No. 1 and his relations, being false, in collusion with the Respondent No. 7 to harass and blackmail the Petitioner No. 1 and his relations by putting them in fear through Respondent No. 7.
(e) To award cost of petition.
(f) To grant any other relief, which the Honourable Court deems fit and proper in view of the above facts for protection of petitioners and in the insteret of justice.
Respondent No. 8 on the other hand strongly refutes the contents of the petition and claims that Petitioner No. 2 is a minor who has been kidnapped by Petitioner No. 1 and is being kept in unlawful confinement. As such his F.I.R. is based on the truth and is neither false nor fabricated.
He claims that his daughter's affidavit of free-will is false and that she is not 19 years as claimed but instead is a minor who is unable to exercise her right of free will. Furthermore, the Nikahnama is also false and that his daughter is being kept under duress.
Learned counsel for Respondent No. 8 has submitted that the F.I.R. has been filed, the case has now been challaned and that this Honourable Court in its writ jurisdiction is precluded from quashing the F.I.R. According to him the proper approach is for a quashment application to be made before the trial Court where the matter is now pending.
In support of his contention learned counsel has placed reliance on Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR page 276) and Dr. Ghulam Mustafa v. The State and others (2008 SCMR page 76). It is true that the above authorities support the contention that normally the High Court in its writ jurisdiction should not quash an F.I.R. however as mentioned in Ghulam Mustafa's case as referred to above the Supreme Court held that this rule is not absolute.
Furthermore, Section 561-A, Cr.P.C. provides as under:--
"561-A. Saving of inherent power of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
"Power as conferred upon High Court under S. 561-A, Cr.P.C. is required to be exercised in exceptional cases, where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice."
"Powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 561-A, Cr.P.C. can be invoked to quash the proceedings in exceptional cases where trial of an accused would amount to unnecessary harassment but the Court ought not to resort to said provisions of law if on the basis of any allegation made by the prosecution, a prima facie case is made out against the accused. The procedure laid down by Criminal Procedure Code, the authority vested in the High Court under Article 199 of the Constitution and under such-like other provisions of law, are meant to prevent harassment of an accused but within the premises to secure the ends of justice and not to defeat."
"Object of S. 561-A.--Cr.P.C. whereby inherent powers were conferred on High Court to secure ends of justice, powers of High Court were very wide for invoking jurisdiction of High Court under S. 561-A, Cr.P.C. it was not a condition precedent that trial Court must be moved in each and every case in first instance in absence of any evidence against accused no useful purpose would be served by dragging accused in case before trial Court and accused was bound to be let off."
"If this portion of the allegation is ousted from the contents of the F.I.R. then Mst. Naureen Akhtar being sui juris was entitled to contract marriage with her free will and consent and she has exercised her right by marrying with the petitioner. No offence in such circumstances has been committed by the petitioner. As this petition remained pending in this Court since 17-7-2000, the sending of the petitioner again to the learned trial Court for filing an application under Section 265-K, Cr.P.C. will not be in the interest of justice and it is a fit case where this Court can exercise powers under Section 199 of the Constitution as also under Section 561-A, Cr.P.C. for the quashment of proceedings proved to be abuse of process of law."
In this case both the petitioners are present as well as Respondent No. 8. The matter involves a short controversy namely whether the Petitioner No. 2 is old enough to give her consent and whether that consent was freely given. The petitioner can give a statement under oath before this Court and the Respondent No. 8 will have the opportunity to cross-examine his daughter. Documents on the Courts file can also assist in determining this matter. As such this Court is in a position to determine the matter now.
On the other hand the Court can hand over custody of Petitioner No. 1 to the police where he can face trial in Kashmore. Petitioner No. 2 can also be asked to return home to Kashmore with her father.
As indicated in the above cited authorities on which this Court places reliance this Court in its writ jurisdiction has an overriding duty to prevent the abuse of process of any Court or otherwise secure the ends of justice.
Based on the facts and circumstances of this case where there is a serious apprehension that harm may be caused to the petitioners if the Court were to dismiss there petition the Court considers that the circumstances of this case dictate that it would serve the ends of justice if it takes up this petition as an exception to the general rule preventing High Courts from quashing F.I.R.'s. Furthermore, to use the Courts as a means for harassing and persecuting the petitioners with a view to putting their lives at serious risk can be viewed not only as an abuse of the process of the Court but also of the criminal justice system.
Accordingly, Petitioner No. 2 gave sworn testimony before this Honourable Court that although she does not know the exact date of her birth she knows that she is 19. She has stated that before marriage she appeared before a Magistrate and swore an affidavit of free will. That she is happily married to Petitioner No. 1 with whom she lives and that they have had a son together. She further stated that she was not abducted by the petitioner or Dani Bux and that she left with the petitioner on her own free-will. During cross-examination by Respondent No. 8 Petitioner No. 2 stuck to her evidence.
The Court record shows that on 17-9-2008 the police surgeon reported that the age of the petitioner was 19. The petitioner has also now reached the age of puberty, which is evidenced by the birth of her son. Her statement under oath before this Court that she married out of free will is corroborated by her affidavit of free will dated 18.1.2008 on the Courts record. The F.I.R. itself was registered after a delay of 7 months after the alleged incident of abduction. The challan was prepared on 28-8-2008 and reveals that the investigation has found hardly anything to support the allegations in the F.I.R. against the accused. In fact, the challan seems merely to repeat the allegations contained in the F.I.R. without shedding any further light on the alleged crimes.
Based on the above the Court finds that there is no probability of conviction of the accused in this case arising out of F.I.R. No. 54/08 registered at Police Station Guddu Kashmore.
Mindful of the fact that at the time of institution of this petition, quashment of the F.I.R. was sought by the petitioners, but during its pendency on 28-8-2008, a challan has been submitted, the relief claimed is required to be amended as per changed circumstances, we have therefore, treated this petition as a petition for quashment of proceedings under Section 561-A, Cr.P.C. and accordingly, ordered quashment of the proceedings in connection with the crimes arising out of F.I.R. 54/08 dated 7-1-2008 registered at Police Station Guddu Taluka Kashmore.
Furthermore, we declare that the petitioners are legally married as husband and wife based on their own free-will.
These are the reasons of short order dated 7-4-2009.
(R.A.) Proceedings quashed.
PLJ 2009 Karachi 99 (DB)
Present: Khilji Arif Hussain and Arshad Noor Khan, JJ.
COOPER & CO. (PVT.) LTD. through Authorized Chairman--Appellant
versus
LAUREL NAVIGATION (MAURITIUS) LTD. and another--Respondents
H.C.A Nos. 304 and 305 of 2008, decided on 6.3.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Interim injunction, grant of--Duty of Court--For the purposes of grant of interim injunction, Court has to consider the existence of good prima facie case in favour of the plaintiff and balance of inconvenience lies in his favour and he will suffer irreparable loss and injury, if the injunction is refused. [P. 106] A
Specific Relief Act, 1877 (1 of 1877)--
----Ss. 42 & 54--Contract Act, (IX of 1872), Ss.201 & 202--Civil Procedure Code, (V of 1908), O.XXXIX, Rr. 1 & 2--Suit for declaration and permanent injunction--Agreement for looking after business of defendant by plaintiff on payment of commission over services rendered by him--Termination of agreement by defendant without issuing 90 days advance notice to plaintiff--Application for temporary injunction to restrain defendant from acting upon termination letter--Plea of plaintiff that he had interested in agency; and that he had invested huge amount on arranging containers, trailers, heavy machinery and staff to manage affairs of business, which investment would be ruined in case of refusal of injunction--Validity--Agreement executed between parties was that of principal and agent--Agreement did not speak about status of plaintiff having any interest in agency, except as a commission agent--According to agreement, such containers, trailers, machinery were assets of principal and payment of salaries to staff employed by plaintiff was to be made from income of business--Nothing on record to show that plaintiff from his own fund had arranged containers, trailers, machinery and staff to promote business of defendant--Such agreement did not provide any clause containing interest of plaintiff as agent in agency, thus, provision of S.202 of Contract Act, 1872 would not apply thereto--Nothing on record to show that there was any express or implied conduct of parties to convert agency agreement into interest in agency in favour of plaintiff--Termination of agency without issuing advance notice of 90 days could be treated as illegal, which point would require evidence, but same could not be considered as sufficient for granting injunction in favour of plaintiff--Plaintiff for termination of his agency could claim damages or compensation from defendant, which was an appropriate and efficacious remedy available to him--Plaintiff had not made out prima facie case nor balance of inconvenience lay in his favour nor he would suffer irreparable loss in case of refusal of injunction--Application for temporary injunction was dismissed. [Pp. 106, 107, 109 & 112] B, C, E, F & H
1987 MLD 295; 1990 CLC 609; PLD 1997 Kar.113; 1994 CLC 726; 1993 CLC 2204; 2005 CLD 1805; 1997 CLC 1903; 2004 SCMR 1092; 2005 SCMR 678; 1996 SCMR 1047; AIR 1998 SC 07; AIR 31 Calcutta 676; AIR 1976 Mad. 55; AIR 1944 Bom. 166; AIR 1952 Cal. 524; AIR 1925 Pat. 299; AIR 1962 Pat. 384; AIR 1956 SC 149; AIR 1954 SC 364; AIR 1962 Pun. 325; AIR 1960 Raj. 296; PLD 2003 Kar. 16; 1996 CLC 2030; 1999 YLR. 2162; 2004 PLC 69; PLD 1973 SC 222; PLD 1993 Quetta 94; PLD 1990 SC 382; 1995 CLC 1790; 2007 YLR 590; PLD 1975 Lah. 65; 1997 CLC 1379; 2003 CLD 326; 1994 SCMR 2213; PLD 1983 SC 46; PLD 1999 Kar. 227; 2002 SCMR 1269; PLD 2001 Kar. 185; PLD 1998 Kar. 1; 1986 SCMR 820; AIR 1929 Allahabad 87; AIR 1854 Mysore 88; 1997 MLD 2712; 2002 SCMR 338 and 1987 SCMR 392 ref.
PLD 2004 SC 860; AIR 1980 Mad. (Sic) 1980 SCMR 588; 1983 CLC 1965; AIR 1982 Deh.114 and Law of Agency, III Edition (Revised) by Prof. SC Srivastava, p.757 rel.
PLD 1982 Kar.796 and AIR 1988 Cal. 143 disting.
Contract Act, 1872 (IX of 1872)--
----S. 201--Agency, termination of--Conditions and circumstances stated--Principal has authority to terminate the authority of an agent in the following circumstances: (i) by the principal revoking his authority; (ii) by the agent renouncing the business of the agency; (iii) by the business of the agency being completed; (iv) by either the principal or agent dying or becoming of unsound mind; (v) by either the principal or agent being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors; (vi) by expiry of the period of agency, if any; (vii) by the destruction of a material part of the subject-matter of the agency; (viii) the happening of any event which renders the agency unlawful or upon the happening of which, it is agreed between the principal and the agent that the authority shall determine; or (ix) by dissolution of the principal, where the principal is a firm or a company or other corporation--Held: The principal has always ample power to rescind, revoke or alter the authority of agent, provided any one or more of the aforesaid conditions, are available to the principal to amend, alter, rescind, vary or cancel the authority of the agent. [P. 108] D
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 1(1) & O.XLIH, R. 1(r)--Appeal against order of dismissal of injunction application--Appeal filed along with photocopy of impugned order--Validity--Appeal was not maintainable for there being an inherent defect therein. [P. 112] G
Mr. M. Farogh Naseem, Advocate for Appellant.
Mr. A. Rehman Malik and Syed Ali Haider, Advocates for Respondent No. 1.
Mr. Shakeel Pervez Bhatti, Advocate for Respondent No. 2.
Date of hearing: 28.1.2009.
Judgment
Arshad Noor Khan, J.--By this common order, we intend to dispose of High Court Appeals Nos.304 of 2008 and 305 of 2008, as both the appeals have arisen out against the common order and the facts and law involved in both the appeals are identical. These High Court Appeals have been filed under Section 15 of the Law Reforms Ordinance, 1980 by the appellant against the order dated 17-11-2008 passed by the learned Single Judge on C.M.As. Nos.653 of 2008 and 654 of 2008 in Suits Nos.127 and 128 of 2008 whereby the injunction applications filed by the appellant against the respondents have been dismissed.
The facts relevant for the purpose of disposal of the present appeals, in brief are that the Respondent No. 1 executed agency agreement with the appellant on 1-11-1982 whereby the appellant was appointed as agent of Respondent No. 1 to promote and look after the business of cargo shipping of Respondent No. 1 in Pakistan and the appellant started functioning as agent of Respondent No. 1 in pursuance of the aforesaid agency agreement which continued till 1-12-1996 when another standard agency agreement was executed in between the parties and by virtue of the said agreement dated 1-12-1996, the commission of Respondent No. 1 over the services rendered by him to Respondent No. 1 etc. were also specified. It is further stated in the plaint that the appellant continued the business under the authority of Respondent No. 1 and attended the meeting held by Respondent No. 1 at Singapore and Hong Kong and in the last meeting at Singapore, the Respondent No. 1 appreciated the zealous and honest efforts of appellant and offered him for joint venture in Pakistan and asked him to send working paper for establishment of joint venture. The appellant also sent the working paper but the Respondent No. 1 became deaf ear and did not respond the working paper sent to him in the month of March, 2007 and to the utter surprise of the appellant, he received E-mail whereby the agreement in between the parties was rescinded and appellant was directed to hand over the record etc. to Respondent No. 2. According to the appellant, the said notice was issued in utter disregard with the terms and conditions of the standard agency agreement dated 1-12-1996 whereby three months prior notice was the requirement from the either side to terminate the agreement but the authority of the appellant has been terminated by Respondent No. 1 without observing the notice period as such the termination of the agreement, itself is void and not in accordance with the law and filed a suit seeking declaration against the termination of his agreement and injunction to the effect that the respondents be restrained not to act upon the termination letter dated 19-12-2007. Along with the suit, the appellant filed both the present applications seeking temporary injunction against the respondents. The notice of the suit as well as miscellaneous applications were served on the respondents and Respondent No. 1 emphatically refuted the allegations contained in the plaint and has raised the plea regarding maintainability of the suit coupled with the other legal pleas in his written statement and the counter-affidavit filed against the Miscellaneous Application, stating therein that neither prima facie case exists in favour of the appellant nor balance of inconvenience lies in his favour nor he will suffer any irreparable loss or injury in case, if the injunction is refused.
The Respondent No. 2 also filed separate written statement as well as counter-affidavit stating therein that he has been lawfully appointed as agent by Respondent No. 1 and he has suffered irreparable loss because of the injunction operating against the respondents.
The learned Single Judge after hearing the arguments advanced on behalf of the parties, has dismissed both C.M.As thereby refusing to grant the injunction in favour of the appellant, hence these appeals.
We have heard Mr. M. Farogh Naseem, Advocate, for the appellant, Mr. A. Rahman Malik, Advocate, for Respondent No. 1 and Mr. Shakeel Pervez Bhatti, Advocate, for Respondent No. 2.
Mr. Muhammad Farogh Naseem, learned counsel for the appellant vehemently contended that the appellant has interest in the agency and his interest could not be withheld by terminating the agency agreement and since the appellant was working as agent of Respondent No. 1 since last 40 years and he has created the circle of customers by his tireless efforts and the clientage of the appellant will be diverted towards Respondent No. 2, in case, if the termination is not declared as illegal, inoperative and void ab initio. He further contended that the appellant has spent much more amount for purchase of trailer, container, heavy machinery and the investment of the appellant in purchasing of equipment, machinery etc. has created interest in the agency which could not be taken away leniently by the Respondent No. 1. He further contended that while appreciating the efforts and functioning of the appellant, the Respondent No. 1 in its meeting held in the month of November, 2007 at Singapore offered to, convert the standard agency into a joint venture and the appellant was asked by Respondent No. 1 to send working paper which the appellant sent, which shows that the appellant has interest in the agency, which interest could not be snatched or denied by the respondents. He further vehemently contended that the right of the appellant has been protected and safeguarded under Section 202 of the Contract Act and Respondent No. 1 has violated the provision of Section 202 of Contract Act while terminating the authority of the appellant without assigning any reason or hearing him. According to him the learned Single Judge did not consider the material available on record and that the appellant shall suffer irreparable loss and injury and will lose his customers which he has made out because of his efficient and honest efforts, nor the relevant law on the subject has been properly appreciated as such the order passed by the learned Single Judge suffers from misreading of the material available on record as well as the relevant law on the subject and liable to be set aside. In support of his contention, he has relied upon the case of Pakistan Automobiles Corporation Ltd. v. General Motors Overseas Distribution Corporation and others reported in PLD 1982 Kar.796; the case of Jamal Ahmed v. Zakaria, reported in 1987 MLD 295; the case of Molasses Export Co. Ltd v. Consolidated Sugar Mills Ltd., reported in 1990 CLC 609; the case of Pir Bux and others v. Ghulam Rasool and others, reported in PLD 1997 Kar. 113; the case of Messrs Universal Trading Corporation (Pvt.) Ltd. v. Messrs Beecham Group PLC and another, reported in 1994 CLC 726; the case of Nooruddin and others v. Messrs Sindh Industrial Trading Estate Ltd. and others, reported in 1993 CLC 2204; the case of Roomi Enterprises (Pvt.) Ltd v. Stafford Miller Ltd. and others reported in 2005 CLD 1805; the case of Bolan Beverages Ltd. v. Pepsico Inc. and others, reported in PLD 2004 SC 860; the case of Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation, reported in 1997 CLC 1903; the case of Puri Terminal Ltd. v. Government of Pakistan, reported in 2004 SCMR 1092; the case of Hazara Hill Tract v. Mst. Qaisra Elahi and others, reported in 2005 SCMR 678; the case of Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others, reported in 1996 SCMR 1047; the case of Messrs Om Prokash Paiwal and another v. Union of India and others, reported in AIR 1988 Calcutta 143; the case of State of Punjab v. Inder Singh, reported in AIR 1998 SC 7; the case of Shaw Wallace and Co., reported in AIR 1931 Calcutta 676; the case of Bright Bros. (Pvt.) Ltd. Bombay v. J.K. Sayani, reported in AIR 1976 Madras 55; the case of J.J. Sayani v. Bright Brothers (Pvt.) Ltd., reported in AIR 1980 Madras (sic); the case of Sohrabaji Dhunjibhoy v. Oriental Government Security Life Assurance Co., reported in AIR 1944 Bombay 166; the case of Cooperative Hindustan Bank v. Surandra Nath Dey, reported in AIR 1952 Calcutta 524; and the case of Nandlal v. Dharamdeo Singh and others, reported in AIR 1925 Patna 299.
Mr. Abdul Rehman Malik, Advocate, for Respondent No. 1 vehemently refuted the contention advanced by the learned counsel for the appellant and has contended that the agreement amongst the parties did not provide any interest in agency in between them so as to say that the agency agreement or standard agency agreement executed in between the parties creates any interest in favour of the appellant which could not be revoked or terminated by the Respondent No. 1. He further contended that by virtue of standard agency agreement dated 1-12-1996 the commission of the appellant is specified in the agreement itself, as such, the status of the appellant is no more than the commission agent and he vaguely and falsely claiming the interest in the agency which never agreed expressly or impliedly in between the parties. He further contended that by virtue of agency agreement dated 1-11-1982, the container, trailer and machinery etc. was the responsibility of Respondent No. 1 which he supplied to him therefore it could not be said that the appellant invested much more amount in his business. According to him neither there was joint venture in between the parties nor there was any proposal from the Respondent No. 1 to create joint venture agency with the appellant. He further contended that the provisions of Section 202 of Contract Act are inapplicable and has vehemently contended that the Respondent No. 1 has all the rights and powers by virtue of agency agreement as well as standard agency agreement to terminate the authority and powers of the agent, created under such agreements and the Respondent No. 1 rightly did so by terminating the agency and appointed Respondent No. 2 as his agent in place of appellant and the fact of appointment of Respondent No. 2 was well within the knowledge of the appellant prior to filing of the suit which fact has been concealed by the appellant for certain extraneous considerations. According to him the appellant will not suffer any irreparable loss or injury because he was the agent of Respondent No. 1 and has received the commission as per agreement executed in between the parties. According to him the learned Single Judge rightly appraised the whole material available before her, while passing the impugned order and no illegality, abnormality or discrepancy is available on record to interfere in it. In support of his contentions, he has relied upon the case of Pakistan Paper Corporation v. National Trading Company reported in 1983 CLC 1965; the case of Union of India v. Motilal Kamalia and others reported in AIR 1962 Patna 384; the case of Chandi Prasad Singh v. The State of Uttar Pradesh reported in AIR 1956 SC 149; the case of Lakshminarayan Ram Gopal and Sons Ltd. v. Government of Hyderabad reported in AIR 1954 SC 364; the case of Amrit Lal C. Shah v. Ram Kumar, reported in AIR 1962 Punjab 325; the case of Firm Murlidhar Banwarilal v. Kishorelal Jagannath Pradad and others, reported in AIR 1960 Rajasthan 296; the case of Muhammad Yousuf v. Messrs Urooj (Pvt.) Ltd., reported in PLD 2003 Kar. 16; the case of Messrs Universal Trading Corporation v. Messrs Beecham Group PLC and another, reported in 1994 CLC 726; the case of Messrs Farooq & Co. v. Federation of Pakistan, reported in 1996 CLC 2030; the case of Sunshine Corporation Ltd. v. V.E.I. Du Pont, reported in 1999 YLR 2162; the case of ABN Amro Bank v. Wasim Dar, reported in 2004 PLC 69; the case of West Pakistan Industrial Development Corporation v. Aziz Qureshi, reported in PLD 1973 SC 222; the case of Messrs Nasir Traders and others v. Habib Bank Ltd, reported in PLD 1993 Quetta 94; the case of Mst. Azeemun Nisa Begum v. Ali Muhammad, reported in PLD 1990 SC 382; the case of Hafiz Sharafatullah v. Federation of Pakistan, reported in 1995 CLC 1790; the case of Abdul Habib Rajwani v. Messrs Brothers Industries Ltd. and others, reported in 2007 YLR 590; the case of Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation, reported in 1997 CLC 1903; the case of Muhammad Aref Effendi v. Egypt Air, reported in 1980 SCMR 588; the case of Maj. Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government, reported in PLD 1975 Lah. 65; the case of Pakistan Chest Foundation v. Government of Pakistan and others, reported in 1997 CLC 1379; the case of Khairpur Textile Mills v. National Bank of Pakistan, reported in 2003 CLD 326; the case of Trustees of the Port of Karachi v. Muhammad Saleem, reported in 1994 SCMR 2213; the case of Asif Jah Siddiqi v. Government of Sindh, reported in PLD 1983 SC 46; the case of Phalippine Airlines Inc. v. Paramount Aviation (Pvt.) Ltd. reported in PLD 1999 Kar.227; the case of Bolan Beverages (Pvt.) Ltd. v. Pepsico Inc. and others, reported in PLD 2004 SC 860; the case of Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd., reported in 2005 CLD 1805; the case of Tauseef Corporation (Pvt.) Ltd. v. Lahore Development Authority and others, reported in 2002 SCMR 1269; the case of Shakil Waqas and Co. v. General Manager, Pakistan Railways and others, reported in PLD 2001 Kar.185; the case of Puri Terminal Ltd. v. Government of Pakistan and others, reported in 2004 SCMR 1092; the case of Messrs Petrocommodities (Pvt.) Ltd v. Rice Corporation of Pakistan, reported in PLD 1998 Kar. 1; the case of Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi and another, reported in 1986 SCMR 820; the case of Boulton Bros and Co. Ltd. (India) v. New Victoria Mills Co. Ltd. reported in AIR 1929 Allahabad 87; the case of Thimmarayappa v. Narayanappa and others reported in AIR 1854 Mysore 88; the case of Adam Limited v. Messrs Mitsui and Co., reported in 1997 MLD 2712; the case of S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan, reported in 2002 SCMR 338 and the case of Rashid Khan alias Muhammad Rafiq Khan v. Haji Muhammad Yousuf and another reported in 1987 SCMR 392.
Mr. Shakeel Pervez Bhatti, Advocate, for Respondent No. 2 while adopting the arguments advanced by Mr. A. Rahman Malik, learned counsel for Respondent No. 1 has contended that the agency agreement has been executed in between both the respondents and legitimate right has been accrued in favour of the Respondent No. 2 and by the foul tactics of appellant, Respondent No. 2 is being deprived of from the fruit of agreement executed in between Respondent No. 1 and Respondent No. 2 as such the learned Single Judge rightly refused the injunction as prayed by the appellant and the same is not liable to be reversed by this Court.
We have considered the arguments advanced on behalf of the parties and have gone through the entire material available before us.
Needless to say that for the purposes of grant of interim, Court has to consider the existence of good prima facie case in favour of the plaintiff and balance of inconvenience lies in his favour and he will suffer irreparable loss and injury if the injunction is refused. In the present case the appellant is heavily relying upon the agency agreement dated 1.11.1982 and standard agency agreement dated 1-12-1996 and by virtue of agency agreement dated 1-11-1982, the 4% commission of the appellant was agreed on cargo booked by him including brokerage and 2-1/2% commission on cargo booked by principal or their agent at their ports or inland places as well as 1 % inward commission on cargo discharge and other calculation of commission freight will include basic freight and CAF only and will not include BAF and any other specific surcharge whereas BAF has been incorporated into freight rates or where FAK/Lump sum rates are in use, commission will be calculated at the freight rate less 20%. Whereas in standard agency agreement dated 1-12-1996 a schedule regarding commission of the appellant being agent is provided and by virtue of these agreements, it is abundantly clear that the agreement in between the parties has been executed as that of principal and agent and nowhere any condition exists in both of these agreements to show that there was interest of the appellant in the agency by virtue of agreements. It is therefore, not borne out from the record that the agency agreement and standard agency agreement executed in between them do not speak about the status of the appellant having any interest in the agency except the commission agent. So far as the arrangements of the container, equipments etc. are concerned, clause 5 of the standard agency agreement dated 1-12-1996 provides that where the equipment is referred to in the agreement, it shall comprise container, flat racks, trailers or similar cargo carrying devices owned, leased or otherwise controlled by the principal. As regards the arguments advanced by the learned counsel for the appellant that appellant has interest in the agency business, in our humble opinion, is devoid of any force as the status of the appellant in execution of both these agreements is not more than a commission agent.
Mr. Abdul Rahman Malik, learned counsel for Respondent No. 1 while refuting the contention of the learned counsel for the appellant that the appellant has interest in the agency, has also relied upon the Law of Agency, Third Edition, revised by Prof. SC Srivastava, who at page 765 after reviewing of the case of Subhash Chandra J.M. v. Feroze Khan, from Indian jurisdiction reported in AIR 1982 Dehli 114 has stated, as under :--
"Thus, where the plaintiff according to his own case, was to get commission after the accrual of the collection, cannot, prima facie, be said to have any interest in the prints of the picture. As such, he is not agent and, therefore, not entitled, on cause of action of termination of his agency, to restrain, by injunction, the principal from exploiting or exhibiting the picture."
The contention advanced by the learned counsel for the appellant that the appellant invested heavy amount for arrangement of the container, trailers, heavy machinery etc. besides the other staff to manage the affairs of the business which investment of the appellant will be ruined, if the injunction is not allowed has equally no force as referred to above, the container, trailers, machinery etc. are the assets of the principal and also by virtue of clause 2.04 of the standard agency agreement, the staff of the appellant was the responsibility of Respondent No. 1 and the appellant by consent of the Respondent No. 1 was authorized to appoint staff and agreement also provide the payment of salaries to the staff from the income of the business, therefore it is hardly enough to say that the appellant arranged the heavy container/ machinery as well as staff to promote the shipping business. The appellant has therefore not established on the basis of the material available on record that he arranged the container, trailer, machinery, staff etc. on his own funds to promote the business of Respondent No. 1. The learned Single Judge has also taken note of all these facts while considering the injunction applications filed by the appellant.
The agreement admittedly provide the conditions regarding termination of the authority of the appellant viz. clause 8 of the agency agreement dated 1-11-1982 and clause 9.01 of standard agency agreement dated 1-12-1996 and by virtue of both the said clauses of the agreements, 90 days time has been agreed in between the parties to terminate the agreement by serving a notice in writing. The Respondent No. 1 admittedly terminated agreement vide termination letter dated 19.12.2007 which was sent to the appellant through E-mail which followed the service of same notice through courier. The authority of the appellant has therefore been cancelled/terminated by Respondent No. 1. The principal admittedly has authority to terminate the authority of an agent in the following circumstances :--
(i) by the principal revoking his authority;
(ii) by the agent renouncing the business of the agency;
(iii) by the business of the agency being completed;
(iv) by either the principal or agent dying or becoming of unsound mind;
(v) by either the principal or agent being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors;
(vi) by expiry of the period of agency, if any;
(vii) by the destruction of a material part of the subject matter of the agency;
(viii) the happening of any event which renders the agency unlawful or upon the happening of which, it is agreed between the principal and the agent that, the authority shall determine; or
(ix) by dissolution of the principal, where the principal is a firm or a company or other corporation.
Thus there could be no cavil to the proposition that the principal has always ample power to rescind, revoke or alter the authority of agent provided any one or more of afore-stated conditions are available to the principal to amend, alter, rescind, vary or cancel the authority of the agent. Prof. SC Srivastava, in his book Law of Agency, III Edition at page 757 while discussing the nature of authority of the agent coupled with the interest, has observed, as under:--
"Where the agent's authority is by deed, or for valuable consideration, or for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of any, such security or interest. This is known as agency coupled with interest. But it is not irrevocable merely because the agent has an interest in the exercise of it."
The learned counsel for the appellant has heavily relied upon the Section 202 of the Contract Act, which for the sake of convenience, is reproduced hereinbelow:--
"202. Termination of agency where agent has an interest in subject matter.--Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest."
A perusal of Section, 202, ibid provides that the authority of the agent could not be terminated or cancelled or revoked, if it provides any interest in the agreement except by way of specific mention in the said agreement. As discussed above, it can only be said that the agent has any interest in the agreement when it is specifically provided in the agreement executed in between the parties and in case, if such interest amongst the parties have, if provided in the agreement only then, it could be said that the agent has interest in the agency and in that case, the provisions of Section 202 of Contract Act are applicable, but in our humble opinion, the contents of both the agreements executed in between the parties do not provide any clause containing the interest of the agent in the agency, therefore, the provisions of Section 202 of the Contract Act are inapplicable.
The learned counsel for the appellant has vehemently contended that the interest of the parties in the agency could be gathered from the intention of the principal and for that purpose he referred to the meetings held in the office of Respondent
No. 1 at Singapore, where Respondent No. 1 allegedly appreciated the efficient efforts and functioning of the appellant and offered joint venture in the agency and for that purpose, the appellant was asked to provide necessary working paper and has drawn our attention to the profile dated 9th March, 2007 sent by Respondent No. 1 through E-mail vide Annexure D' which shows that the
Respondent No. 1 asked to the appellant to provide joint venture J/C proposal
(ASAD). The said profile was acknowledged by the appellant and the appellant sent working paper to Respondent No. 1 through E-mail dated 10-3-2007 vide
AnnexureE', thereafter as per case of the appellant, respondent remained silent and did not respond. It is, therefore, admitted position that simply the
Respondent No. 1 asked to the appellant to provide working paper for joint venture which he provided thereafter there was status quo amongst the parties over the further development in the matter as such it could not be said that there was joint venture amongst the parties, which creates interest of the appellant in the agency. The record available before us, is therefore, completely silent to show that there was any express or implied conduct of the parties to convert the agency agreement into the interest in the agency in favour of the appellant. The learned Single Judge while considering the applications for injunction has taken into consideration all the facts and developments borne out during the course of subsistence of the agency agreement and standard agency agreement till its termination by
Respondent No. 1.
Admittedly the agreements provide the termination of agreement by service of 90 days notice on either side but the termination letter was abruptly issued by Respondent No. 1 on 17th December, 2007 received by appellant through E-mail on 19-12-2007 which shows that advance notice of 90 days has not been served by Respondent No. 1 on the appellant nor the appellant was heard by Respondent No. 1 prior to termination of agency agreement which could be treated as illegal but the said point requires evidence before the learned Single Judge and the said sole ground could not be considered as sufficient to grant injunction in favour of the appellant. In case, if the authority of the appellant has been revoked, cancelled or terminated by Respondent No. 1 the appropriate remedy available to him to claim damages against respondents which may be appropriate and efficacious remedy available to him.
Learned counsel for the appellant has placed reliance on the case of State of Punjab v. Inder Singh, (supra), wherein the petition for promotion as officiating Sub-Inspector on ad hoc basis during the probationary period was under consideration before the Honourable Supreme Court of India, which is not a point involved in the case in hand.
In the case of Messrs Om Prokash Paiwal and another, (supra), learned Single Judge of Calcutta High Court while dealing with the provisions of Sections 201 to 204 of the Indian Contract Act was pleased to observe that the termination of the agreement in that case was illegal for the reasons that most of the terms and conditions of the agreement were unreasonable and irrational and one sided, which is not the case in hand for the reasons that standard agency agreement and agency agreement were executed in between the parties by their mutual consent.
In the case of J.K. Sayani, (supra), the learned D.B. of Madras High Court, while dealing in the similar circumstances was pleased to observe that when the contract of agency does not speak about the fixed period of agency, the termination or revocation of agency by the principal without notice renders him liable to pay compensation. The said observations are completely against the case of the appellant and support the case of respondents.
In the case of Pakistan Automobile Corporation Ltd., (supra), the Honourable Supreme Court was pleased to observe that, in case, if the agency agreement is coupled with the interest, the Court is obliged to grant interim injunction but the dictum laid down in the aforesaid case of Pakistan Automobiles Corporation, in our humble opinion are not attracted for the reason that the agency agreement or standard agency agreement amongst the parties in the present case does not speak about the interest in the agency. The other case-law relied upon by the learned counsel for the appellant, in our humble opinion are also distinguishable to the circumstances of the present case and are inapplicable.
Learned counsel for Respondent No. 1 has heavily relied upon the case of Bolan Beverages (Pvt.) Ltd., (supra), wherein the Honourable Supreme Court while considering the effect of Section 21-G of Contract Act was pleased to observe that where the contract between the parties involving continuous duty extending over a period longer than three years cannot be specifically enforced, therefore the issuance of injunction would not be in the interest of justice simply because of non-issuance thereof would cause inconvenience. In the present case admittedly standard agency agreement has been executed by the parties for an indefinite period therefore the dictum laid down by the Honourable Supreme Court in the case of Bolan Beverages (Pvt.) Ltd. (supra) is applicable.
Learned counsel for Respondent No. 1 has also relied upon the case of Muhammad Aref Effendi, (supra), wherein, the Honourable Supreme Court while considering the scope of Section 202 of Contract Act in juxtaposition with Order XXXIX, Rules 1 and 2, C.P.C. was pleased to observe that these are substantial questions of law and facts and since they involved a careful study and scrutiny after leading of appropriate evidence, therefore, the High Court was not justified to refuse grant of temporary injunction. With these observations, the Honourable Supreme Court was pleased to set aside the order thereby refusing injunction in favour of the respondents. The observation made by the Honourable Supreme Court in the case of Muhammad Aref Effendi, (supra), is also applicable to the circumstances of the present case.
In the case of Pakistan Paper Corporation Ltd., (supra), it has been observed that the mandatory injunction cannot be issued as an interim relief under Order XXXIX, Rules 1 and 2 read with Section 151, C.P.C. which could only be allowed by recording evidence of the parties. The case-law relied upon by the learned counsel for Respondent No. 1 also supports his case.
After appraisal of whole material available before us and case-law on the subject, we are of the considered opinion that neither the prima facie case has been made out by the appellant nor balance of inconvenience lies in his favour nor he will suffer irreparable loss of injury, in case, if injunction is refused, as he can claim compensation or damages in the final event.
Before parting with the judgment, we may point out that the appellant has filed the present appeal against the dismissal of his injunction application and it is the requirement of the appeal to file the true copy of impugned order along with appeal but we find that the appellant has not filed true copies of impugned order and has filed photocopy of the impugned order, which, in our humble opinion is an inherent defect in appeal itself, as such the appeal is also not maintainable on this score.
For the aforesaid reasons, we find that the order impugned does not suffer from any illegality so as to interfere in it. The appeals have, therefore, no merit and the same are hereby dismissed in limine.
(R.A.) Appeals dismissed.
PLJ 2009 Karachi 118 (DB)
Present: Munib Ahmad Khan and Dr. Rana Muhammad Shamim, JJ.
PAKISTAN CRICKET BOARD through Manager National
Stadium, Karachi--Petitioner
versus
DIRECTOR/DISTRICT OFFICER, PROPERTY/ENTERTAINMENT TAX and another--Respondents
Const. P. No. D-1525 of 2008, decided on 18.9.2008.
Entertainment Duty Act, 1958--
----S. 8--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Pakistan Cricket Board--Excise duty--Show cause notice--Challenge to--Contrary to law--No opportunity was provided to petitioner nor any accounts were gone--Complete summary of the amount of entertainment duty involved in each match played in National Stadium was called from petitioner--Respondent had no record to calculate the duty and tentative assessment towards the excise duty, which is to be calculated strictly with law--Held: Under Section 8 of Entertainment Duty Act, specific exemptions had been given from the entertainment duty if the proceeds are being spent towards the charitable purposes, educational or sports while it has not been denied that the petitioner has been organizing the matches but no entertainment duty has been demanded so far by respondents, which to some extent supports the contentions of the petitioner's counsel--Petition disposed of. [P. 120] A & B
Messrs Talib H. Rizvi and Taffazul H. Rizvi, Advocates for Petitioner-Board.
Miran Muhammad Shah, AAG, alongwith Shabbir Ahmed Sheikh, Director Excise & Taxation and Aftab Ahmed, ETI for Respondents.
Date of hearing : 18.9.2008.
Order
Through this Const. Petition show-cause notice dated July 8, 2008, issued by Deputy District Officer, Entertainment Wing, Karachi, has been challenged on the ground that the entertainment duty, demanded by such notice is contrary to Section 8 of the Entertainment Duty Act, 1958 ("Act, 1958") as well as to the past practice.
Learned counsel for the petitioner-Board Mr. Taffazul H. Rizvi submits that the petitioner-Board has been organizing matches since 2005 and no entertainment duty has been paid for the reason that they were exempted in terms of Section 8 of Act, 1958. He further submits that Pakistan Cricket Board ("the Board") is spending more than earning from the matches and entire earning from the matches is being spent towards the promotion of the sports while more amount has been arranged by the Board to flourish the sports. He has pointed out that the total earning, which has been calculated from the Asia Cup-2008 comes to Rs. 3.5 million while the demand for tax has been raised to Rs. 3.8 million and that too is not leviable. He further submits that no opportunity was provided to the petitioner nor any accounts were gone through and notice has been issued contrary to the law.
On the other hand, learned AAG submits that entertainment duty has been levied keeping in view Section 8 of Act, 1958 at the rate of 5% of the total earning from the matches. He further submits that it is the discretion of the Government to grant exemption or not and that in this case no exemption has been granted. He further submits that in the past the Board agreed to pay the amount and had sent a cheque for the sum of Rs. 2 million and that the Board also issued a letter dated July 19, 2008 undertaking thereby for payment. He further submits that entertainment duty is payable until properly been exempted under the law.
Learned counsel Mr. Taffazul H. Rizvi on the point of deposit of cheque as well as letter dated July 19, 2008 has replied that the cheque has been issued keeping in view the past practice when a cheque for a tentative amount uses to be issued but the same is to be returned as no duty is payable while the letter was issued with the intention that the matter be settled but no where it has been promised that the amount is agreed to be paid.
After hearing learned counsel at length we have observed that the demand letter dated July 7, 2008 is in respect of Rs. 3,815,866/-, which has been followed by the impugned show-cause notice dated July 8, 2008. The amount as mentioned in the show-cause notice is stated to be approximate and no figures for calculation of the excise duty are available. If this amount, which is claimed to be 5% of earning, is considered then the total amount of the Board's earning would go in crores of rupees. The cheque of Rs. 200,000/- by petitioner might have been issued keeping in view the past practice of it being returned, therefore, until the issue is decided it loses its validity and may be returned back.
We have also observed from the letter dated July 7, 2008 that the complete summary of the amount of entertainment duty involved in each match played in National Stadium has been called from the petitioner. All this shows that the respondents have no record to calculate the duty and tentative assessment towards the excise duty, which is to be calculated strictly in accordance with law.
We have observed that under Section 8 of Act, 1958 specific exemptions have been given from the entertainment duty if the proceeds are being spent towards the charitable purposes, educational or sports etc. while it has not been denied that the petitioner has been organizing the matches since the year 2005 but no entertainment duty has been demanded so far by the respondents, which to some extent supports the contentions of the petitioner's counsel. In such a situation we find that the issue of exemption as well as calculation of the entertainment duty are to be scrutinized. Hence we do not approve the demand notice dated July 7, 2008, issued by Deputy District Officer, Entertainment Wing Karachi, followed by impugned show-cause notice dated July 8, 2008 but direct the respondents to issue notice to the petitioner for calling of their entire record and thereafter will calculate the taxes and before making a demand on that will see their past practice as to why the entertainment duty was not demanded from them from the year 2005 and whether the petitioner falls under the exemption. This is to be calculated keeping in view the factual position submitted by the petitioner with explanation towards this expenditure. It is further observed that the order of the respondents should be a speaking order as required under Section 24-A of the General Clauses Act. This exercise is to be completed by the respondents within a period of two months from today.
Const. Petition No. 1525/2008 is disposed of in the above terms alongwith Misc. 7208/2008.
(R.A.) Petition disposed of.
PLJ 2009 Karachi 121 (DB)
Present: Mushir Alam and Safdar Ali Bhutto, JJ.
MADINA ELECTRIC MARKET through Shop-keepers Union and 4 others--Petitioners
versus
CITY DISTRICT GOVERNMENT, KARACHI through Nazim-e-Aala, Karachi and 6 others--Respondents
Const. P. No. D-54 of 2008, decided on 15.4.2009.
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----Ss. 54 & 76--Police Order, 2000, Art. 139--Municipal administration--Powers and functions--Removal of encroachments--Scope--Town Municipal Adminsitration, Union Administration and Union Council in their respective domains are not only required to prevent and remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds--Union Council is responsible to mobilize community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuits. [P. 126] A
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----Ss. 54 & 76--Police Order (22 of 2002), Art. 139--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Removal of encroachments--Town Municipal Administration and police officials, role of--Petitioner sought direction against official for removing encroachments on a specific public road which was causing inconvenience to public at large--Validity--High Court noted that if menace of encroachment was not nipped in the bud, it would grow out of proportion and that would require substantial resources to remove it and at the same time it would create law and order situation--Not only the road in question was occupied thereby causing obstructions for commuters and passersby cognizable under Police Order, 2002, but public street, footpath had also been occupied by miscreants bringing the issue within the domain of authorities under Sindh Local Government Ordinance, 2001--Menace of encroachment being composite both on road and public street needed to be addressed by concerted joint efforts of functionaries under Sindh Local Government Ordinance, 2001 and Police Order, 2002, passing on the responsibility would not solve the problem; it was joint responsibility of administration to clear public road in question and street from obstruction--High Court directed Local Government Authorities and Police Authorities to undertake joint efforts for factual removal of obstruction/encroachment that might be found on the road and public street or footpath thereof, in planned and concerted manner extending mutual cooperation and logistics to each other--Petition was allowed . [P. 127] B & C
Mr. Zakir Hussain Khaskheli, Advocate for Petitioner.
Mr. Manzoor Ahmed, Advocate and Mr. Muhammad Idrees, Advocates for Respondents.
Mr. M. Sarwar Khan, A.A.-G. for Respondents No. 6 and 7.
Date of hearing: 15.4.2009.
Order
Mushir Alam, J.--Through the instant petition the petitioner has sought direction against the official Respondents No. 1, 2 and 4 for exercising powers and functions under the Sindh Local Government Ordinance 2001 (hereinafter referred to as SLGO) and against the Respondents Nos. 5, 6 and 7 for exercising powers under Sections 139 of Police Order, 2002 (hereinafter referred to as Police Order).
It is the case of the petitioner that the road connecting Orangi Town leading towards Banaras Chowk has been encroached and obstructed by the unscrupulous vendors thereby virtually rendering the road inoperative for the commuters travelling between the roads, causing tremendous inconvenience to the public at large on the one hand and to the lawful shopkeepers on the other, on either side of the road, which obstructs their fundamental rights to carry on their business in a lawful manner.
By and large, the respondents do not dispute rampant encroachment on the footpath and obstruction caused by the vendors on the road rendering it unserviceable.
Learned counsel for the respondents 1, 2 and 3 urged that in terms of Sections 54(f), 76 and 88(f) of SLGO the functionaries are responsible to remove encroachment but they are not able to undertake any exercise for removal of the obstruction on the road which is rampant in the instant case. It was pointed out that the obstruction on the road is cognizable in terms of Section 139 of the Police Order read with Section 141 thereof. Sections 54(1)(f) (2)(e), 76 and 88 (f) of SLGO as well as Sections 139 and 141 of Police Order are reproduced hereunder:--
"54. Functions and powers of the Taluka Municipal Administration.--(1) The functions and powers of the Taluka Municipal Administration shall be to--
(a) -------------------------------------
(b) -------------------------------------
(c) -------------------------------------
(d) -------------------------------------
(e) -------------------------------------
(f) prevent encroachments;
(g) -------------------------------------
(h) -------------------------------------
(i) -------------------------------------
(j) -------------------------------------
(k) -------------------------------------
(l) -------------------------------------
(m) -------------------------------------
(n) -------------------------------------
(o) -------------------------------------
(p) -------------------------------------
(r) -------------------------------------
(s) -------------------------------------
(t) -------------------------------------
(u) -------------------------------------
(v) -------------------------------------
(2) The Taluka Municipal Administration may--
(a) -------------------------------------
(b) -------------------------------------
(c) -------------------------------------
(d) -------------------------------------
(e) prevent and remove encroachments;
(f) -------------------------------------
(g) -------------------------------------
(h) -------------------------------------
(i) -------------------------------------
(j) -------------------------------------
(k) -------------------------------------
(m) -------------------------------------
(n) -------------------------------------
(o) -------------------------------------
(p) -------------------------------------
(r) -------------------------------------
(s) -------------------------------------
(t) -------------------------------------
(u) -------------------------------------
(v) -------------------------------------
(a) -------------------------------------
(b) -------------------------------------
(c) -------------------------------------
(d) -------------------------------------
(e) -------------------------------------
(f) -------------------------------------
(g) -------------------------------------
(h) \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \
(i) -------------------------------------
(j) To improve and maintain public open spaces, public gardens and play grounds;
(k) -------------------------------------
(l) To maintain the lighting of streets, public ways and public places through mutual agreement with the Taluka Municipal Administration;
(m) -------------------------------------
(n) -------------------------------------
(o) -------------------------------------
(p) To assist the relevant authorities in disasters and natural calamities, and assist in relief activities, including de-silting of canals;
(q) to co-operate with the public private or voluntary activities similar to those of the union;
(r) -------------------------------------
(s) -------------------------------------
88. Functions of the Union Council.--(1) The functions of the Union Council shall be to--
(a) -------------------------------------
(b) -------------------------------------
(c) -------------------------------------
(d) -------------------------------------
(e) -------------------------------------
(f) mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuits;
(g) -------------------------------------
(h) -------------------------------------
(i) -------------------------------------
(j) -------------------------------------
(k) -------------------------------------
(l) -------------------------------------
(m) -------------------------------------
(n) -------------------------------------
(o) -------------------------------------
(p) -------------------------------------
On perusal of above provisions, it is clear that Town Muncipal Administration, Union Administration and Union Council in their respective domain are not only required to prevent and remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds. It is the responsibility of Union Council to mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuit. It may be observed that there is general slackness rather negligence on the part of functionaries under SLGO to discharge their obligation. It is not that they lack in resources, it is the will and determination that is often found lacking.
"Police Order 2002
"139. Causing obstruction in a street.--No person shall cause obstruction in any street or public place--
(a) by allowing any animal or vehicle, which has to be loaded or unloaded, or take up or set down passengers, to remain or stand in the street or the public place longer than may be necessary for such purpose; or
(b) by leaving any vehicle standing or fastening any cattle in the street or the public place; or
(c) by using any part of a street or public place as a halting place for vehicles or cattle; or
(d) by causing obstruction in any other manner.
Conventionally police is considered to be responsible to maintain law and order and to keep a vigil on criminals. They need to be trained and kept abreast of the new developments and enlarged responsibilities under the law enforced from time to time. It may be observed that Police Order is seldom used and or invoked to contain growing tendency of encroachment.
Learned A.A-G. has drawn our attention to the comments filed by the Respondents Nos. 6 and 7 to urge that action has been taken against those vendors obstructing the road, a number of persons were arrested. It may be observed that public functionaries are not only expected but public street and causing obstructions on thoroughfare is rampant on account of the oversight purposefully for extraneous reasons or on account of lack of will, which encourages such unscrupulous persons to defy the law blatantly. Stern timely action may avoid creating this menace into a perpetual nuisance. If the menace of encroachment is not nipped in the bud, it grows out of the proportion, that requires substantial resources to remove it and at the same time it creates law and order situation. Since admittedly not only the road has been occupied thereby creating obstructions for the commuters and the passersby cognizable under Police Order but it is also evident from the photographs attached and the comments filed that the public street. Footpath have also been occupied by the miscreants bringing the issue within the domain of authorities under SLGO. Menace of encroachment being composite both on road and public street needs to be addressed by concerted joint efforts of the functionaries under SLGO and Police Order and passing on the responsibility will not solve the problem. It is the joint responsibility on the administration under SLGO and the police functionaries under the Police Order to clear the public road and street from obstruction.
Under the circumstances, we would direct the Respondents Nos. 1, 2 and 4, (functionaries under SLGO) on one hand, and Respondents No. 6 and 7 (functionaries under Police Order) on the other, to undertake a joint effort for factual removal of the obstruction/ encroachment that may be found on the road and the public street or footpath thereof in a planned and concerted manner extending mutual cooperation and logistics to each other. Such exercise to be carried out in a planned manner after holding of meeting between the public functionaries amongst themselves and then chalk out a plan to carry out such exercise preferably within a period of 30 days as agreed by all concerned present in Court and submit compliance report to this Court. Functionaries under SLGO may also solicit support of community to local area as provided under Section 88(f) of SLGO 2001 to avoid any untoward happening and/or resistance in such exercise. Let a copy of the order be supplied to Mr. Manzoor Ahmed, Advocate, to Mr. Muhammad Idrees, Advocate and to learned A.A-G, Sindh for communicating to the authorities concerned for compliance.
The petition stands disposed of in the above terms.
(R.A.) Order accordingly.
PLJ 2009 Karachi 128 (DB)
Present: Khilji Arif Hussain and Arshad Siraj Memon, JJ.
PAKISTAN REFINERY LIMITED--Appellant
versus
BARRET HODGSON PAKISTAN (PVT.) LTD.
and 2 others--Respondents
High Court Appeals Nos. 326 and 327 of 2008, decided on 11.5.2009.
Administration of justice--
----Parties did not place up-dated statutory provision--Counsel appearing for the parties are duty bound to place correct statute duly amended for proper assistance of the Court. [P. 132] A
Civil Defence (Special Power) Rules, 1951--
----R. 10--Where prohibition of construction (within the area specified in the order to be made by Rule 10) and (within the distance of key points 1A-200 yards and 2B-100 yards respectively) is not absolute--Construction may be allowed if the layout and material involved are cleared by the Government who passed the order under Rule 10 or by key point Intelligence Division. [Pp. 136 & 137] B
Mr. Khalid Anwar, Advocate for Appellant.
Mr. Zahid F. Ebrahim, Advocate for Respondents Nos. 1 and 2.
Date of hearing: 25.3.2009.
Judgment
Arshad Siraj Memon, J.--These two appeals arise out of CM. A. No. 7673 of 2008 in Suit No. 1063 of 2008 filed by the appellant and against C.M.A. No. 4295 of 2008 in Suit No. 694 of 2008 filed by the Respondents Nos. 1 and 2. Since common point is involved in both the appeals, which arise out of the applications made under Order XXXIX, Rules 1 & 2 C.P.C, we intend to dispose of both the appeals by this common order.
Brief facts of the case are that in Suit No. 694 of 2008 filed by the Respondents Nos. 1 & 2, the respondents claim to have acquired piece of land ad-measuring six acres in Deh Dih on 30th March, 2006 which was allotted for the specific purpose of establishment of an educational institution of International standard. The respondents started work of construction and raised substantial construction by spending huge amount. It has been averred in the plaint that the respondents approached Executive Officer, Korangi Creak pointing out that the appellant is discharging waste water in the open area creating problems and hindrances in the construction of its project. It has been further averred that the appellant undertook to redirect its waste water and for that purpose request was made to relevant authorities. It has been averred that thereafter on 23-4-2008, the respondents received a letter from the appellant stating therein that the appellant is key-point 1-A installation and therefore, respondents were informed that construction cannot be done within 200 yards of the appellant's perimeter in view of the provisions of Section 10 of the Civil Defence (Special Power) Rules, 1951, therefore, the respondents were advised by the appellant to stop the construction, which gave cause of action to the respondents to file Suit No. 694 of 2008 before this Court, a suit for injunction and damages for restraining the appellant from interfering or disturbing the respondents construction work in the educational institution project.
Likewise the appellant also filed the Suit Bearing No. 1063 of 2008 against the respondents claiming that due to extreme sensitive nature,of its business, the appellant has been classified as key-point 1-A installation. It was averred in the plaint that key-point 1-A installations are those installations, which are of vital importance to the country in its ability to fight war and if such structure installation or establishment are harmed for any reason then it would cause serious damage to war time efforts. It is also averred that the Federal Government in exercise of powers of Section 10 ibid has directed that no structure shall be constructed within a distance of 200 yards from the key point 1-A installation and despite this important fact the respondents raised construction across 200 feet wide road by completely disregarding the risk it poses to the health, safety and lives of hundreds of children, teachers and supporting staff who eventually would be present and working in the respondent's installation. In view of the such averments, the appellant also preferred to file Suit No. 1063 of 2008 for declaration, mandatory and prohibitory injunction and damages. An application for injunction filed by the appellant and respondents were adjudicated by learned Single Judge, who after perusal of the record appreciating the arguments and material placed before him, was pleased to grant injunction in favour of the.respondents and against the appellant. Hence these appeals.
Mr. Khalid Anwar, learned counsel for the appellant has assailed the impugned order primarily reiterating points taken in the plaint as well as argued that appellant is a key-point 1-A installation, which has been declared to be so and referred various documents (pages 161 to 175) of the file to show that the appellant has been declared as key point 1-A Installation Bearing No. 1115-1 A. He has further argued that in contravention of Section 10 ibid the respondents were allotted the said plot and that the respondents applied to Government of Sindh for allotment on allegedly false statement that they are establishing School of International Repute and have affiliation with "Rugby School". He placed reliance on E-mail, addressed to such institution situated in U.K and submitted that the Organization of the Rugby School in U.K have denied any connection with the respondents thus, he submitted that the allotment was acquired on false statement. According to the learned counsel for the appellant, the respondents have no connection with Rugby School in U.K. He has further submitted that in view of Section 10 ibid proper permission from Civil Defence Authority was not obtained. He therefore, submitted that since the plot was not acquired from the approval of the concerned authorities and referred to us various documents in respect of inspection of site by relevant agencies. He submitted that approximately 30% of the share vested with the Federal Government and the respondent's project was vulnerable as well as the appellant's installation. He referred to the documents to (Pages 129 to 133 & 155 to 175) demonstrate that no construction can be made from key-point 1-A to the extent of 200 yards of the perimeter of the said installation. He submitted that key point installation is a structure installation or establishment, which is of vital importance of country in its' readiness and ability to fight a war and if such structure, installation or establishment were to get damaged or destroyed or shutdown for any reason then it would cause sever damage to war time efforts. He further pointed out that the appellant has put several signs around its premises informing the general public about the directive contained in Section 10 of the Civil Defence (Special Power) Rules 1951 read with Civil Defence Ordinance, 1951. He has further submitted that efforts have been made by the appellant to reduce the effect of environment and for such purposes the appellants' have made the efforts with huge investments in foreign exchange to upgrade the process of reducing the sulphur content. He has further submitted that the upgradation assignment would be seriously prejudiced and affected as according to the International Advisors, Consultants and/or participants in the upgradation project have recommended that no School or Hospital should be constructed closer to the Refinery which may be harmful if any incidents of explosion occur which would expose children and staff of the respondents institution to unnecessary risk of injury or fatality. He, therefore, submitted that in view of the fact that the appellant is a key point installation no construction can be done near 200 yards of such installation.
On the other hand, Mr. Zahid F. Ebrahim, learned counsel for the respondents submitted that the respondents are establishing School of international Repute, which is being established by a non-profits organization, which will grant free education to 20% of the children. He submitted that the disputed plot was acquired after fulfilling all the legal requirements which is evident from the documents placed on record to show that Government of Sindh and relevant departments were conscious of the installation of the appellant and in the vicinity, plots have been allotted to other people/organizations/ societies to establish residential as well as commercial projects. He submitted that the suit filed by the appellant was based on mala fide, which was filed only as a counter blast when the respondents objected to the appellant and complaint was filed before the Cantonment Authorities in respect of discharge of waste water. On the basis of the above arguments, he submitted that the appellant had knowledge about construction at the plot, which started in 2006 and it was only when a complaint was lodged before the Cantonment Authorities, the appellant raised objections for the first time in 2008, on the ground that according to Section 10 of the Civil Defence (Special Power) Rules, 1951 that they are key point installations. He further submitted that the averments of the plaint of the appellant would show it prima-facie speaks about safety of the children and related staff of the education institution, whereas no main concern has been made for their own security. He further submitted that the appellant has incorrectly argued about the security issue of prime importance to the country with reference to their installation when the shareholder of the company include foreigners as such he refuted that had it been a security concern of prime importance for country the appellant would not have inducted or allowed foreigner companies like Shell and Chevron to be equity holder in such an important and sensitive installation. In respect of the documents referred by Mr. Khalid Anwar, Advocate, he submitted that the appellant has been able to get such letters in their favour due to influence of one of their employees. He has also referred to the documents placed on record to show that the arguments that Civil Defence Authorities at Federal level were not involved is belied by documents as representative of the Civil Defence Authorities Ministry of Interior were involved in the inspection conducted by Federal Inspection Team, which also comprised of the management of the appellant and respondents.
We have heard both the learned counsel, have perused the Impugned Order, have also examined the documents produced on record and have also gone through the provisions of Civil Defence (Special Power) Rules, 1951. The main emphasis of the learned counsel of the appellant is on Rule 10 of the Civil Defence (Special Power) Rules, 1951. Before we dilate upon the arguments placed before us by the learned counsel of the parties, we may observe with dismay that the parties have not placed before us the up-dated statutory provisions and have simply placed before us (in the memo, of appeal) the statute i.e. the Civil Defecne (Special Power) Rules, 1951 as published in PLD 1951 Central Statue page 387. While examining the case from various perspectives, we came across the subsequent amendments made in the said rules. The assistance of Director of High Court Library was, therefore, acquired who placed before us the text of the said rules duly amended/modified up to 29th July, 1981, such updated statute was not placed before us by the parties. We may at this stage with great humility, observe that it is the duty of the counsel appearing for the parties to place correct statute duly amended for proper assistance of the Court.
Be that as it may, to appreciate the arguments of the learned counsel, provisions referred to above, is reproduced for convenience and ready reference:--
"10. Security of buildings.-(1) The Central Government or the Provincial Government may by order, as respects any area specified in order, provide for securing that, subject to any exemption for which provision may be made in the order, no building, or no building of such class as may be specified in the order, shall be erected, expended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay out, materials and construction as that Government may impose, being requirements which it is in the opinion of that Government necessary to impose for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it.
(2) If any person contravenes any of the provisions of an order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
The salient features of the Civil Defence (Special Power) Rules, 1951, inter alia ara--
Rule 3. Constitution of a body for an area to be called Air Raid Precautions Service of Civil Defence Services by the Central Government or the Provincial Government and appointments of a person called the Controller, to command such body in such area.
Rules 4, 5 and 6. Provides for the appointment of members and officers of Civil Defence Service, their functions and dismissal.
Rule 7 Provides that Central Government or Provincial Government may by order in respect of any articles or substances from the explosive or inflammable nature of which special precautions are in the opinion of the Government necessary or expedient for public securing the public safety, issue direction prohibiting the keeping such articles or substances in or such premises as may be specified in the order prescribing the quantity to be kept in or on any premises and for requiring the owner or occupier of any premises in which such articles or substances are kept to take such measures as may be specified in the order for protection of persons or property therein or thereon in the vicinity thereof for any incidental or supplementary matters for that Government thinks expedient for the purpose of the order to provide including in particular the entering and inspecting the premises to which the order relates with a view to securing compliance with such order.
Rule 8. It provides for watching of premises, to detect fire and for requiring the occupiers of any premises to which the order applied to make and carry out such arrangements as may be specified in the order with a view to securing that fires occurring at the premises as a result of hostile attack.
Rule 9. It provides for measures for dealing with outbreak of fire.
Rule 10. Provides for security of building.
Rule 11. Provides for protection of major ports and their environs against fire etc.
Rule 12. Provides for the protection of factories, Key Points and mines. Defining the expressions "mine", "factory" and "Key points" for the purposes of this Rule.
Rule 13. Provides for removal of Companies records to keep them in such a place of safety.
Rule 14. Provides powers of requiring local authorities to take precautionary measures.
Rule 15. Provides for maintenance of water supply
Rule 16. Provides for Construction of Shelters and their management.
Rule 17. Power to exempt Air Raid Installations and places from municipal taxation.
Rule 18. Provides for safety measures to be taken by the owner or occupier of the premises.
Rule 19-20. Provides for control of light and sound and of motor vehicle.
Rule 21. Relates to power of requisitioning of certain properties.
Rule 22. Relates to power to obtain any warehouse or cold storages depot for the purpose of storage.
Rule 23. Empowering the Federal and Provincial Governments to make arrangements of Camouflage required area or premises.
CONFIDENTIAL/IMMEDIATE
XXDNO.1/2/92-KP
GOVERNMENT OF PAKISTAN
Ministry of Interior
Islamabad, the 30th April, 1992
Tel. 821762
To
Chairman, KPID, Committee, ISI Dte
Islamabad
The Home Secretaries, Government of the Punjab/Sindh/N.-W.F.P./Baluchistan.
Lahore/Karachi/Peshawar/Quetta.
Provincial Survey Inspection Teams.
Subject: No Construction Work Within 200/100 yards of key points of category IA & IB
Sir, In a recent meeting of the Defence Committee of the Cabinet it was pointed out that some very essential key points of categories IA & IB have become insecure because of unrestricted construction of buildings in their vicinity. This has seriously jeopardized their security.
"The Federal Government or the Provincial Government may by order, as respects any area specified in the order, provide for securing that, subject to any exemptions for which provision may be made in the order, no building or such class as may be specified in the order, shall be erected, extended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay-out, materials and construction as that Government may impose, being requirements which it is in the opinion of the Government necessary to impose, for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it."
This is an enabling section which gives wide powers to Government for controlling the construction of building both as regards the lay-out as well as materials. This section can, and should have been used for controlling such construction within the vicinity of key points wherever it effected their security. Hence now in exercise of the powers conferred by Rule 10, the Federal Government has decided that no structure shall be permitted to be constructed within the following distances of the key points unless the lay-out and materials involved are cleared by the key point Intelligence Division:--
Category of Key Point Distance from Key Point
1-A 200 Yards
2-A 100 Yards
Yours Obedient Servant
(Sd)
(Naseer Ahmad Khan)
(Deputy Secretary)
Copy for similar action to:--
All Ministries/Divisions with the request that attached/ subordinate Offices/Autonomous Bodies/Corporations/etc. concerned may be informed accordingly.
The Chief Secretary AJ & K, Muzaffarabad.
The Administrator, Northern Areas, Gilgit.
The Deputy Commissioner, ICT, Islamabad.
(Sd.)
(Naseer Ahmad Khan)
Deputy Secretary
We have examined the scope of the Civil Defence (Special Powers) Rules, 1951, more particularly its Rule 10 with conjunction with letter dated 30-4-1992 and only conclusion which can be arrived at is that said rule is an enabling Rule where prohibition of construction (within the area specified in the order to be made by Rule 10) and (within the distance of Key Points 1A-200 yards and 2B-100 yards respectively) is not absolute, construction may be allowed if the Layout and material involved are cleared by the Government who passed the Order under Rule 10 ibid or by key point Intelligence Division.
Viewed in this perspective, the documents placed on record by the respondents by statement dated 3-3-2009 i.e. No Objection Certificate issued by Additional Director Civil Defence Sindh, is within the parameters of Rule 10 ibid read with letter dated 30-4-1992
(Annexure E Pages 129-133) and prima facie does not violate the Rule 10 ibid. In fact it complies with terms of said Rule. It would be not out of place to observe at this stage that the Federal Government have delegated its powers to the Provinces under Section 9 of the Civil Defence (Special Power) Ordinance, 1951, through Notification No. 5-1-50/CDI. After such delegation, in our humble view, it cannot be argued that the Civil Defence Directorate (Sindh) had no authority to examine or constitute any committee or team for investigation of the matters arising out of Civil Defence (Special Power) Rules, 1951. The appellants have neither brought to our notice anything nor produced anything on record to show that the competent authorities and the respondents have violated Rule 10 ibid. As observed earlier, the import of Rule 10 is unambiguous and plain reading of it shows that prohibition is not absolute.
In our considered opinion, the learned Single Judge has very correctly appreciated the facts that the main concern of the appellant as averred in the plaint and argued was in respect of security of the personnel of the respondents. As such the reference to incidents of fire or the explosion in different countries and the process of up-gradation and expansion of the appellant installation therefore becomes irrelevant and of no consequence. We may also observe that the appellant also failed to satisfy the learned Single Judge in respect of the prohibited perimeter of the key point installations. Therefore, in our humble view, the learned Single Judge correctly appreciated the facts and granted injunction in favour of the respondents.
The learned Single Judge in the last paragraph of his order has very rightly observed that it will be open for the Defendant No. 3 (Respondent No. 3) viz. Federation of Pakistan to impose any condition for the purposes of rendering the building of the appellants' more secured and protected from the persons using the same in accordance with Rule 10 of the Civil Defence (Special Power) Rules, 1951. We may further add that in view of Rule 12 of the Civil Defence (Special Power) Rules, 1951, the Respondents No. 3 if advised may take necessary measures to secure the appellants' premises in the best interest of key point installations and its vicinity.
In view of the above observations, the listed appeals have no merits and the order passed by the learned Single Judge requires no interference. Accordingly, the both the appeals are dismissed as no order to costs.
(R.A.) Appeals dismissed.
PLJ 2009 Karachi 138 (DB)
Present: Anwar Zaheer Jamali, C.J. and Syed Pir Ali Shah, J.
Mufti MUHAMMAD SHARIF SARKI--Petitioner
versus
PROVINCE OF SINDH through Secretary, Government of Sindh, Auqaf, Religious, Minorities Affairs, Zakat and Ushr Department and 3 others--Respondents
Const. P. No. D-1519 of 2008, decided on 3.11.2008.
Constitution of Pakistan, 1973--
----Art. 199--Zakat and Ushr Ordinance, (XVII of 1980), Ss. 16 & 21--Constitutional petition--Chairman, District Zakat and Ushr Committee, office of--Powers of--Appointment of petitioner as District Chairman for specific period--Removal of petitioner from such office during his tenure and appointment of respondent in his place for unexpired term by order of Chairman Provincial Zakat Council--Validity--Legislature had divested Provincial Council from its power to remove Chairman or Member of District Committee--Chairman Provincial Council and Central Council had ceased to hold such power--Impugned orders were violative of principles of natural justice, illegal, mala fide and coram non judice--High Court reinstated petitioner as Chairman, Zakat and Ushr Committee.
[Pp. 146 & 147] A
1982 CLC 515; 2007 PLC (CS) 703; 2002 PLC (CS) 233; 2003 PLC (CS) 736; 2004 SCMR 1419; PLD 1989 Lah. 175; 1992 PLC (CS) 259; 1990 CLC 773; 2005 PLC (CS) 80 and PLD 1979 Quetta 45 ref.
Mr. M.M. Aqil Awan, Advocate for Petitioner.
Mr. Masood A. Noorani, Addl. A.-G. for Respondents Nos. 1 to 3.
Mr. Akhtar Ali Mahmood, Advocate for Respondent No. 4.
Date of hearing: 3.11.2008.
Order
The petitioner, Mufti Muhammad Sharif Sarki, who was notified as Chairman District Zakat and Ushr Committee, Jacobabad, vide Notification No. GAZ/Sindh/A.A-G./3(660)/2006 dated 11-1-2008 has preferred this Constitutional Petition to challenge the two subsequent Notifications dated 25-7-2008 issued by the Secretary Zakat, Government of Sindh, with the approval of Chairman, thereby exercising powers under sub-section (3)(e) of Section 21 of Zakat and Ushr Ordinance, 1980 (hereinafter referred to as the Ordinance, 1980) by one Notification the Chairman recalled/withdrew the above referred earlier Notification dated 11-1-2008 to the extent of petitioner any by another Notification under Section 16(4)(5) of the Ordinance, 1980, he nominated the Respondent No. 4, to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad, for the unexpired term, as provided in sub-section (10) to Section 16 of the Ordinance, 1980.
In short, the grievance of the petitioner is that in this regard the whole exercise undertaken by the Chairman Provincial Zakat Council is patently illegal being in violation of the mandatory provisions of the Ordinance, 1980, inasmuch as under Section 21(3)(e) of the Ordinance the Chairman or the Provincial Council had no authority to remove the petitioner from the office of Chairman District Zakat and Ushr Committee and similarly the Chairman had no authority under Section 16(4)(5) of the Ordinance to nominate the Respondent No. 4 as Chairman District Zakat and Ushr Committee for the unexpired term of Chairman, as provided in sub-section (10) to Section 16 of the Ordinance. Further case of the petitioner is that Respondent No. 4 being admittedly involved in political activities and affiliated with a political party is not qualified to hold this office, but this aspect of the case was also overlooked at the time of his nomination.
Respondent No. 1 in their parawise comments have not denied the removal of petitioner from the office of Chairman District Zakat and Ushr Committee, Jacobabad, under the orders of the Chairman Provincial Zakat Council and appointment of Respondent No. 4 in his place by the Chairman Provincial Zakat Council. However, they have attempted to justify such action of the Chairman on the plea that petitioner was involved in committing misappropriation of funds.
Respondent No. 4 in his separate reply has disputed the claim of the petitioner about his ineligibility to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad and contended that earlier he had resigned from the membership of District Council Jacobabad, therefore, his subsequent nomination is valid.
Mr. M. M. Aqil learned counsel for the petitioner after reiterating the relevant facts as detailed in the petition, vehemently contended that the whole exercise of the Chairman Provincial Zakat Council resulting in removal of the petitioner from the office of Chairman District Zakat Council, Jacobabad, and appointment of Respondent No. 4 in his place is clear violation of mandatory provisions of the Ordinance, 1980, thus liable to be declared as such. He contended that the office of Chairman District Zakat Committee was for a fixed tenure of three years and specific procedure for his removal was provided under the statute whereby only the Central Council was competent to take such final step per amendment vide Finance Act XII of 1994, therefore, no arbitrary powers could be exercised by the Chairman or even the Provincial Council for the removal of the petitioner from the office. But in the instant'matter neither a Show-cause notice nor an opportunity of hearing was given to the petitioner before taking such illegal and coram non judice action against him. As to the appointment/ nomination of Respondent No. 4 in place of the petitioner as Chairman District Zakat Council, Jacobabad, the learned counsel again made reference to the provisions of Section 21(1) of the Ordinance and subsequently inserted sub-section (3)(a) in it to fortify his submission that from no stretch of imagination the arbitrary action of Respondent No. 3 can be protected. In support of his submissions, he placed reliance on the following cases:--
(1) Allauddin Akhtar v. Government of Punjab (1982 CLC 515).
(2) Hadia and others v. EDO Education and others (2007 PLC (CS) 703).
(3) Shabbir Ahmed v. Government of Sindh (2002 PLC (CS) 233).
(4) Sher Afzal Khan v. Federation of Pakistan (2003 PLC (CS) 736).
(5) Dr. Muhammad Arslan v. Chancellor Quaid-e-Azam University, Islamabad (2004 SCMR 1419).
(6) Ch. Muhammad Bux v. Government of Punjab (PLD 1989 Lah. 175).
(7) Prof. M.A. Saeed v. Secretary Education Punjab (1992 PLC (CS) 259).
(8) G.M. Malik v. Province of Punjab (1990 CLC 773).
(9) Dr. Aftab Ahmed v. University of Engineering & Technology (2005 PLC (CS) 80).
(10) Nasir Trading Company v. Provincial Transport Authority Balochistan (PLD 1979 Quetta 45).
In the cases at Serial Nos. 1 to 9, in substance, it was held that if the appointment of a person is made against a tenure post provided by the Statute, he cannot be removed before the expiry of such period on the principle of locus ponetentia, except when the procedure prescribed by the Statute is strictly adhered to and a fair opportunity of hearing is afforded to him.
In the case at Sr. No. 10 it was held that there is much distinction between the exercise of authority by some individual officer of the Authority and the Authority itself therefore, when law requires that some decision is to be taken by the Authority, then an individual officer cannot take such decision by exercising such authority.
Mr. Masood Noorani, learned counsel for the respondents 1 to 3 has made reference to the counter-affidavit submitted on behalf of Respondent No. 4 and contended that there were several complaints against the petitioner upon which drastic step for his removal from the office of the Chairman District Zakat and Ushr Committee, Jacobabad, was taken by the Chairman Provincial Zakat Council, and in this regard no exception can be taken to protect the misconduct of the petitioner. He further contended that in case this Court comes to the conclusion that the procedure prescribed by law was not followed for this purpose, Respondents Nos. 2 and 3 could be directed to conduct an inquiry instead of removal of the Respondent No. 4 and reinstatement of the petitioner in his office.
Mr. Akhtar Mahmud, learned counsel for Respondent No. 4 has placed on record copy of minutes of the 39th meeting of Provincial Zakat Council held on 9-8-2008 to show that under Item No. 10 of the Agenda earlier action of the Chairman Provincial Zakat Council was accorded post facto approval by the Provincial Zakat Council thus no exception can be taken in this regard. He further challenged the maintainability of the petition due to the availability of alternate remedy under sub-section (7) of Section 21 of the Ordinance, 1980 which provides for review of order by the Central Zakat Council. The learned counsel also disputed the claim of the petitioner about political affiliation of Respondent No. 4 and referred his counter affidavit to show that the Respondent No. 4 has disassociated himself from the Membership of District Council Jacobabad on the date of his nomination as Chairman District Zakat Ushr Committee and thus was not holding any other public office at the time of appointment, which may be considered as his disqualification to hold the office of Chairman District Zakat and Ushr Committee, Jacobabad.
We have carefully considered the submissions of the learned counsel and perused the material placed on record. Facts of the case insofar as the appointment of the petitioner as Chairman of Provincial Zakat Council Jacobabad vide Notification dated 11-1-2008, for a term of three years; his subsequent removal from the office through notification dated 25th July, 2008 with the approval of the Chairman Provincial Zakat Council; nomination of Respondent No. 4 in his place for the un-expired term by another notification of the same date by the Chairman Provincial Zakat Council are not disputed. Since the learned counsel, during the course of their arguments, have referred and relied upon Section 16(4)(5) (6) and Sections 21 (1)(3) 3A(4) and (7) of the Ordinance, 1980, it will be advantageous to reproduce the same as under:--
"16. District Zakat and Ushr Committee.--(1) In each district, a District Zakat and Ushr Committee, in the Islamabad Capital territory, the Islamabad Zakat and Ushr Committee and in Karachi, Karachi City District Government Zakat and Ushr Committee shall be constituted by the Provincial Council concerned.
(2) ...................................................
(a) .................................
(b) .................................
(c) .................................
(d) .................................
(e) .................................
(f) .................................
(3) ...................................................
(a) .................................
(b) .................................
(4) The Chairman shall be nominated by the Provincial Council and the members shall be nominated by the Provincial Council in consultation with the Chairman:
Provided that the Chairman shall be an adult Muslim who ordinarily resides in the district and the member from a Tehsil, taluqa or sub-division shall be an adult Muslim who ordinarily resides in that tehsil, taluqa or sub-division:
Provided further that the Chairman and members of the District Committee shall be the persons who are of good moral character and are not commonly known as persons who violate Islamic Injunctions and are of financial integrity and do not engage in political activities.
(5) The District Committee so constituted shall be duly notified by the Provincial Council concerned.
(6) The Chairman and members of the District Committee, not being an ex-officio member, shall hold office for a term of three years and shall be eligible for re-appointment:
Provided that in the event of delay in the constitution of the new Committee under sub-section (3), the Provincial Council may ask a District Committee to continue to function for a period not exceeding six months after the expiry of the term of its office.
(7) ..................................
(8) ..................................
(9) Any vacancy in the office of Chairman or member, other than an ex-officio member, shall be filed by the nomination, in accordance with sub-section (4), of a person qualified to hold the office.
(10) The Chairman or member nominated under sub-section (9) shall hold office for the unexpired term of his predecessor.
(11) ..................................
Section 21(1) (3)(3A)(4) and (7) Power of Suppression and removal,--
(1) If the Provincial Council, in the case of a District Committee, and the District Committee in the case of a Local Committee, is of the opinion that a Committee constituted under this Ordinance.
(a) is unable to discharge or persistently fails in discharging its duties; or
(b) is unable to administer its affairs; or
(c) acts in a manner contrary to public interest; or
(d) otherwise exceeds or abuses its powers;
(e) has a majority of members who are not pious Muslim or who are engaged in political activity.
The Provincial Council or, as the case may be, the District Committee may, by a notification, declare the concerned committee to be superseded for such period not exceeding one year as may be specified in the notification:
Provided that the period of supersession may, if the provincial council or the District Committee considers it necessary to do so, he extended, beyond a period of the year.
(2) .................................
(3) If Provincial Council, in the case of District Committee, and the District Committee, in the case of Local Committee is of the opinion that the Chairman or a member of a Committee constituted under this Ordinance--
(a) was at the time of this selection, election or nomination--
(i) not a pious Muslim;
(ii) not an adult;
(iii) not a resident of the area within the jurisdiction of the Committee;
(iv) an undischarged insolvent.
(v) Not of sound mind; or
(vi) Engaged in political activity, (b) has been, during the period of three years preceding the date of his selection, election or nomination;
(i) ordered to execute a bond under Section 108, 109 or 110 of the Code of Criminal Procedure 1898 (Act V of 1898); or
(ii) convicted for an offence involving moral turpitude; or
(iii) declared goonda under the law relating to the control of goondas;
(c) has, after his selection, election or nomination, incurred any of the disqualifications referred to in sub-clause (i), (iii), (iv), (v) or (v) of clause (a) (i), (ii) or (iii) of clause (b);
(d) has, without reasonable excuse, absented himself from three consecutive meetings of the Committee;
(e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or member, or been responsible for any loss (misapplication, misappropriation or misuse) of any money or property of the Committee; or
(f) has become physically disabled or unable on any Court from performing functions as Chairman of member, the Central Council, in the case of a District Committee, in the case of Local Committee, may by a resolution, remove such Chairman or member from office.
(3A) If, after such inquiry as may be considered necessary the Central Council, in the case of a District Committee, or the District Committee in the case of a Local Committee, is of the opinion that the Chairman or a member of Committee or an employee assigned to work with a Committee on as institution receiving Zakat Funds under this Ordinance, was guilty of misconduct in the discharge of his duties, or is responsible for the loss, misapplication of misuse of Zakat Funds, the Central Council or as the case may be the District Committee shall initiate criminal proceedings against such Chairman, member, person or institution."
(4) When the Chairman or member of a Committee is removed from, or otherwise cases to hold office, the vacancy in the office of such Chairman or member shall be filled within such time as the Central Council, in the case of a District Committee, and the District Committee, in the case of Local Committee may determine, by the election, selection or nomination, as the case may be, in accordance with the provisions of this Ordinance, of a person qualified to hold the office.
(5) ..........................................
(6) ..........................................
(7) The Chairman or a member of a Committee superseded under sub-section (1) or a Chairman or member removed from office under sub-section (3), may, within such time, and in such from and manner, as may be prescribed, apply to the Central Council for a review of its decision; and the decision of the Central Council in such review, given after giving to the applicant an opportunity of being heard, shall be final and shall not be called in question before any Court or other authority.
A bare reading of the above provisions of the Ordinance, 1980, go to show that the Chairman District Zakat Council is to be nominated by the Provincial Zakat Council while members of District Zakat Committee are to be nominated by the Provincial Zakat Council with the consultation of the Chairman; 2nd proviso to sub-section (4) provides that the Chairman and Member of the District Committee shall be the persons who are of good moral character and are not commonly known as persons, who violate Islamic Injunctions and are of financial integrity and do not engage in political activities. Subsection (5) deals with the issuance of Notification of District Committee by the Provincial Council; sub-section (6) provided fixed term of three years for members and Chairman District Zakat Committee, with further eligibility of reappointment; sub-section (9) deals with the filling of the vacancy of Chairman or member by nomination in accordance with sub-section (4) and; sub-section (10) provides for the term of the office of Chairman or member nominated under sub-section (9) for the un-expired term of his predecessor. Further Section 21 sub-section (1) of the Ordinance deals with the powers of suspension. It provides that if the Provincial Council, in the case of Local Committee, and District Committee in the case of Local Committee, is of the opinion that a Committee constituted under this Ordinance is disqualified under sub-section (1)(a) to (e) of Section 21 of the Ordinance, 1980, then the Provincial Council in the case of District Committee may by way of Notification suspend the said Committee for a period not exceeding one year which may be specified in the Notification and such period will be extendable at the option of the Provincial Council beyond one year; sub-section (3) provided another situation where the Central Council in the case of District Committee may by a resolution remove the Chairman or member from the office in the situation; sub-section (3A) contemplates and authorizes the Central Council in the case of District Committee and District Committee in the case of Local Committee that if in its opinion the Chairman or a member of the Committee or an employee assigned to work with the Chairman or Institution receiving Zakat Funds under the Ordinance is guilty of misconduct in the discharge of his duties or is responsible for the loss, misapplication or misuse of Zakat Funds the Central Council or, as the case may be, the District Committee shall initiate criminal proceedings against such Chairman, Member, person or the Institution; sub-section (4) provides that in case of removal of the Chairman or member from the office or if otherwise he ceases to hold the office, the vacancy of the office of such Chairman or Member is to be filled within such time as the Central Council in the case of District Committee and District Committee in the case of Local Committee may determine by way of election, selection or nomination in accordance with the provisions of the Ordinance of person qualified to hold the office; sub-section (7) to Section 21 provides for the remedy of review before the Central Council in case the Chairman or Member of a Committee is superseded under sub-section (i) or removed from the office under sub-section (3).
It will pertinent to mention here that in the original text of the Ordinance, 1980, till it was amended by the Finance Act, XII of 1994, sub-section (3), conferred power of removal to the Provincial Council which was taken away by subsequent amendment and conferred to the Central Council. Further insertion of sub-section (3A) to Section 21 by the Finance Act XII of 1994 has conferred powers to initiate criminal proceedings to the Central Council in case of District Committee, thus, it is obvious that a conscious decision was taken by the Legislature to divest the Provincial Council from its power to remove the Chairman or Member of the District Committee. Reference to Section 2 of sub-sections (v) and (xix) further elaborates the position about the formation of the Central Council under Section 12 and the Provincial Council under Section 14 of the Ordinance, 1980. This being the position, it is palpably clear that the Chairman Provincial Zakat Council had no authority to issue the two impugned Notifications challenged in this petition and even the Provincial Council, after the requisite amendment in the statute by the Finance Act XII of 1994, ceased to hold such power. The decision of the Provincial Zakat Council taken in its 39th meeting held on 9th August, 2008, has also not changed the position about the illegal nature of the two impugned Notifications. Thus, it is clear that the two impugned notifications are not only in violation of principle of natural justice, mala fide, illegal but also coram non judice and liable to be struck down as such.
Foregoing are the reasons of our short order dated 15-10-2008 whereby this petition was allowed and two Notifications dated 25th July 2008 were declared to be without lawful authority and of no legal effect, and further the petitioner was reinstated/resorted as Chairman, District Zakat and Ushr Committee, Jacobabad.
(R.A.) Petition accepted.
PLJ 2009 Karachi 147
Present: Arshad Noor Khan, J.
Mrs. ZAIBUNNISSA--Applicant
versus
MUHAMMAD SAJID and 2 others--Respondents
C.M.A. No. 341 of 2008 in Suit No. 1352 of 2004, decided on 26.8.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Cooperative Societies Act, (VII of 1925), S. 70--Rejection of plaint--Mandatory notice--Cooperative Society was not initially impleaded as party to the suit but subsequently plaintiff served notice to the Society and after lapse of two months impleaded the society as defendant with the permission of Court--As no notice u/S. 70 of Cooperative Societies Act, was given prior to filing of the suit, therefore, suit was liable to be rejected--Validity--Notice under S. 70 of Cooperative Societies Act, 1925, was properly served prior to impleading the Society as party to the suit--As such compliance of S.70 of Cooperative Societies Act, 1925, was already made before joining of Society as party to the suit who joined as party much after the expiry of two months period after service of notice under S.70 of Cooperative Societies Act, 1925--High Court declined to reject the suit on such plea raised by the Society--Application was dismissed.
[P. 152] A
2003 YLR 2216 ref.
Cooperative Societies Act, 1925 (VII of 1925)--
----S. 54, proviso--Arbitrator--Jurisdiction--Complicated questions of law and fact--Allegation of fraud and misrepresentation--Arbitrator cannot adjudicate upon allegations of fraud and misrepresentation allegedly committed by parties as such allegations are completely alien to S.54 of Cooperative Societies Act, 1925--When allegation of committing-fraud and misrepresentation is against non-members of the Society, then arbitrator has not been assigned any power to adjudicate upon such allegations under S.54 of Cooperative Societies Act, 1925--Even otherwise proviso attached to S.54 of Cooperative Societies Act, 1925, provides suspension of proceedings before Registrar if question involving in the proceedings is a complicated question of law and facts--Registrar in such circumstances, is required to suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or the Society. [P. 152] B
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39, 42 & 54--Cooperative Societies Act, (VII of 1925), S.54, proviso--Civil Procedure Code, (V of 1908), O.VII, R. 11--Rejection of plaint--Arbitration by Registrar--Complicated question of law and fact--Allegation of fraud and misrepresentation--Cooperative Society sought rejection of plaint on the ground that suit was filed without getting mandatory arbitration under S.54 of Cooperative Societies Act, 1925--Validity--Fact of committing fraud and misrepresentation was a complicated question of fact which required evidence to be led by parties--Such question could not be effectively and satisfactorily adjudicated upon by Registrar under S.54 of Cooperative Societies Act, 1925--Cooperative Society could not press applicability of S.54 of Cooperative Societies Act, 1925, in view of the proviso, in getting the plaint rejected under O.VII, R. 11 C.P.C.--Application was dismissed.
[P. 153] C
PLD 2002 Kar. 414; 2001 YLR 2537; 2000 YLR 1385 and
2001 YLR 882 ref.
Mr. Mushtaq A. Memon, along with Muhammad Ali Hakro, Advocate for Applicant.
Mrs. Soofia Saeed Shah, Advocate for Respondent No. 3.
Date of hearing: 26.8.2008.
Order
By this order, I intend to dispose off application under Order VII, rule 11, C.P.C. (C.M.A. No. 341 of 2008) filed by Defendant No. 3 praying therein for rejection of the plaint.
The facts leading rise to the present application in brief are that the plaintiff filed suit for declaration, injunction, cancellation of documents and recovery of damages to the tune of Rs.3,50,00,000 against the Defendants Nos. 1 and 2 alleging therein that the Defendants Nos. 1 and 2 have forged and fabricated a sale-deed in respect of property bearing old Survey No. 64, new Survey No. JM-1019, admeasuring 202 sq. yards with Bungalow constructed thereon situated at Muslimabad Cooperative Housing Society, Jamshed Quarters, Karachi for a consideration of Rs. 3,00,00,000 with the condition that the plaintiff who is old, infirm and disable lady will remain in physical possession of the said bungalow till her last breath. It is further stated in the plaint that on 22-3-2004 the Defendant No. 2 obtained thumb-impression of the plaintiff on papers stating to her that he has brought a sum of
Rs. 1,00,00,000 for payment to her which included an agreement of sale and applications which were to be moved in the offices of the government for obtaining taxes clearance etc. The plaintiff who is an illiterate, widow aged over 75 years put her thumb impression on the said sale agreement and the blank paper in good faith that Defendant No. 2 would mention therein the agreed sale price of Rs.3,00,00,000 with agreed terms regarding her physical possession till her last breath. It is further stated in the plaint that Defendant No. 2 got opened bank account in the name of the plaintiff in UBL, Kashmir Road Branch, and deposited Rs. 1,11,01,000 as part payment of sale price. On 22-4-2004 the Defendant No. 2 along with other persons visited the house of the plaintiff and required her to hand over the physical possession to him as the purchaser and threatened her to throw her out from the bungalow. The agreement was got registered by the plaintiff thereby leaving the condition of residence of the plaintiff till her death in the said bungalow and when the plaintiff got the agreement read out and came to know about the fraud played by Defendant No. 2, that in the said agreement sale consideration was mentioned to be Rs. 1,40,00,000 instead of Rs.3,00,00,000 and that the vacant possession and title documents were agreed to be handed over on execution of final agreement of sale. The plaintiff called her estate agent Kazi Zahoorudddin from whom the transaction had taken place and plaintiff handed over to him pay orders dated 23-4-2004 for Rs.20,00,000 and dated 23-4-2004 for Rs.91,00,000 drawn in favour of Defendant No. 1 for refunding the same to Defendant No. 1 and the said estate agent did deliver the same to the Defendant No. 1 as the pay orders were returned to the plaintiff along with legal notice dated 26-4-2004 sent on behalf of Defendant No. 1. It is further stated in the plaint that the plaintiff also submitted application before the Secretary Muslimabad Cooperative Housing Society but he did not take any action, which constrained the plaintiff to file the suit, as stated above.
Defendants Nos. 1 and 2 have been served with the notice of the suit who also filed their written statement as well as application under Order VII, Rule 11, C.P.C. which application was earlier dismissed by this Court vide order dated 17-1-2006.
During pendency of the suit, the plaintiff filed application under Order I, Rule 10, C.P.C. praying therein to implead Muslimabad Cooperative Housing Society as Defendant No. 3 which was allowed and Defendant No. 3 was inducted as party. Prior to impleading Defendant No. 3, the plaintiff served a notice on Defendant No. 3 and after expiry of two months on the application of the plaintiff, Defendant No. 3 was impleaded as party.
Learned counsel for Defendant No. 3 has filed the present application on two counts; first the suit is barred under Section 54 of Cooperative Societies Act, 1925 (hereinafter shall be referred as Act of 1925), and the suit being barred under Section 70 of the Act, 1925.
The learned counsel for the plaintiff has filed counter-affidavit to this application. I have heard Mr. Mushtaq A. Memon, advocate for the plaintiff and Ms. Soofia Saeed Shah, advocate for Defendant No. 3.
The learned counsel for Defendant No. 3 vehemently, contended that the suit is touching the normal function and business of Cooperative Society, as such, the plaintiff has to avail the remedy provided under Section 54 of the Act, 1925 and that no notice as required under Section 70 of the Act, 1925 has been served on Defendant No. 3 while instituting the suit as such the suit is barred under Section 70 of the Act, 1925 therefore the plaint may be rejected under Order VII, Rule 11, C.P.C. In respect of her contention she has relied upon the case of Syed Sultan Ali v. Sahibzada Frogh Najam Najmi and others reported in 2003 YLR 2216.
Mr. Mushtaq A. Memon, learned counsel for the plaintiff vehemently controverted the arguments advanced on behalf of Defendant No. 3 and contended that the suit is neither hit under Section 54 of the Act, 1925 nor under Section 70 of the Act, 1925. According to him, he had served requisite notice under Section 70 of the Act, 1925 prior to impleading Defendant No. 3 as a party in the present case and after expiry of two months from the date of service of notice, Defendant No. 3 was impleaded as party therefore the suit in any way is not hit under Section 70 of the Act, 1925. He further contended that since the suit was already pending prior to impleading Defendant No. 3 as party, as such, reference of the matter to arbitrator in terms of Section 54 of the Act, 1925 was not necessary for the reasons that matter on the point of fraud is already sub judice before this Court and reference of the matter to the arbitrator under Section 54 of the Act, 1925 would be a multiplicity of the litigation and conflicting orders by the arbitrator and by this Court, therefore the suit in any way is not hit under Section 54 of the Act, 1925. In support of his contention he has relied upon the case of M. Waheedullah Ansari v. Zubeda Sharif reported in PLD 2002 Kar. 414, the case of Amir Ali Hussain Shalwani v. Ismaili Masalwala and others 2001 YLR 2537, the case of M/s. Super Builders v. Gulshan-e-Faisal Cooperative Society and others reported in 2000 YLR 1385 and the case of Tameezul Hassan v. Waheed Akhtar reported in 2001 YLR 882.
I have considered the arguments advanced on behalf of the parties and have gone through the entire material available before me.
It is an admitted position that the plaintiff has filed suit for declaration, injunction, cancellation of documents and recovery of damages against Defendant Nos. 1 and 2 wherein initially Defendant No. 3 was not impleaded as party. The plaintiff in her plaint has levelled allegations of misrepresentation and fraud committed by Defendants Nos. 1 and 2 in executimg the sale agreement by taking advantage of her old age about 75 years, infirmity and eyes disability by stating the incorrect sale consideration of the property in question from Rs.3,00,00,000 to Rs. 1,40,00,000 and by excluding the condition that she will reside in the said bungalow till her last breath, that agreement was registered in her absence. All these allegations contained in the suit seems to be very severe and serious in nature and at the time of filing suit Defendant No. 3 was not party therefore the service of notice on him under Section 70 of the Act, 1925 was not obligatory on the part of the plaintiff. After filing of the written statement by the defendants the counsel for the plaintiff deem it fit to implead Muslimabad Cooperative Housing Society as defendant, therefore the learned counsel for the plaintiff served notice dated 28th July, 2006 under Section 70 of the Act, 1925 on the District Officer, Cooperative Housing Society which was received by the District Officer. The said notice was received by DDO Cooperative Housing Societies on 28-8-2006 who called the comments from DDO and in the light of the comments, D.O. Cooperative Housing Societies advised to the plaintiff to approach to the Registrar for arbitration. Admittedly the notice under Section 70 of the Act, 1925 dated 28th July, 2006 was served by the counsel for the plaintiff on Defendant No. 3 and after expiry of two months time as envisaged under Section 70 of the Act, 1925, the application under Order I, Rule 10, C.P.C. was filed on 13-10-2006 coupled with the joint prayer for amendment in the pleadings and the said application (C.M.A. No. 7730/06 dated 13-10-2006) was decided on 20-8-2007 by order of this Court whereby the said application was allowed, which shows that notice under Section 70 of the Act, 1925 was therefore property served prior to impleading the Defendant No. 3 as a party to the suit as such, in my humble opinion, compliance of Section 70 of the Act, 1925 was already made before the joining of Defendant No. 3 as a party to the present suit, who was joined as party much after the expiry of two months period after service of notice under Section 70 ibid. The said ground is, therefore not available to Defendant No. 3 to claim the rejection of the plaint under Order VII, Rule 11, C.P.C.
The next point urged by the learned counsel for Defendant No. 3 is that the suit is hit under Section 54 of the Act, 1925, because the suit has been filed touching the business of the society as such the matter ought to have been referred to the arbitrator in terms of Section 54, ibid. The contention advanced by the learned counsel for Defendant No. 3, in my humble opinion, is devoid of any force for the reason that admittedly the present suit was pending before this Court wherein a fraud and misrepresentation has been alleged by the plaintiff against Defendants Nos. 1 and 2 and the arbitrator could not adjudicate upon the allegations of fraud and misrepresentation allegedly committed by the parties as the said allegations are completely alien to Section 54, ibid and the Defendants Nos. 1 and 2 are not the members of society and the allegations regarding committing fraud and misrepresentation are inter se in between the plaintiff and Defendants Nos. 1 and 2 for which the arbitrator has not been assigned any power to adjudicate upon the said allegations under Section 54 of Act, 1925. Even otherwise proviso attached to Section 54 of the Act, 1925 provides the suspension of the proceedings before the Registrar if the question involving in the proceedings is a complicated question of law and facts, in such circumstances, the Register is required to suspend the proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. The proviso attached to Section 54 of the Act, 1925 is usefully quoted hereinbelow for the sake of convenience:
"Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in Paragraph 1 of this section."
The language employed in the proviso to Section 54 ibid, without any iota of doubt, shows that in case, if during the proceedings before the Registrar, if any, complicated question of law and fact involved, the Registrar, if thinks fit may suspend the proceeding till the decision on such questions of law and fact, tried in a regular suit. In the present case the aforesaid proviso is fully applicable for the reasons that complicated question of committing misrepresentation and fraud has been alleged against Defendants Nos. 1 and 2 by the plaintiff as according to her the consideration between the parties has been substituted from Rs.3,00,00,000 to Rs. 1,40,00,000 by the defendants and the terms and conditions which were originally agreed have also been substituted by the defendants and the said fact of committing fraud and misrepresentation, in my humble opinion, is a complicated question of facts which requires evidence to be led by the parties and the said question of fact, in my humble opinion, could not be effectively and satisfactorily adjudicated upon by the Registrar under Section 54 of the Act, 1925. Defendant No. 3, therefore cannot press the applicability of Section 54 of the Act, 1925 in view of proviso, as discussed above in getting the plaint rejected under Order VII, Rule 11, C.P.C.
The case law relied upon by the learned counsel for the parties speaks about the proposition that the matter involving and touching the day to day business of the society or non-service of notice under Section 70 of the Act, 1925, provides consequences of rejection of the suit, which observation made in the cases relied upon by the learned counsel for the parties, is not disputed but the fact remains that in the present case, as discussed above, a prior notice under Section 70 of the Act, 1925 was already served by the plaintiff on Defendant No. 3, even prior to filing of application before this Court for joining him as necessary party and by virtue of proviso to Section 54, ibid, complicated question of fact and law could not be determined by the Registrar and the Registrar has to wait for the verdict of the Court on complicated questions of fact and law and the matter on this point requires thorough evidence, which is to be led by either of the party.
For the aforesaid reasons and circumstances, I do not find any merit in the present application, which is hereby dismissed, with no order as to cost.
(R.A.) Application dismissed.
PLJ 2009 Karachi 154
Present: Zafar Ahmed Khan Sherwani, J.
Messrs PUB CORPORATION--Plaintiff
versus
WATER AND POWER DEVELOPMENT AUTHORITY through Managing Director and 2 others--Defendants
Suits Nos. 1556 of 1997 and 1135 of 1998, decided on 24.11.2008.
Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958)--
--S. 4--Constitution of Pakistan (1973), Art. 165 & 165-A--Outstanding dues from WAPDA--Goods brought and utilized by WAPDA in jurisdiction of Union Council--Refusal of WAPDA to pay outstanding octroi tax--Suit by Union Council for recovery of its outstanding dues from WAPDA--Being a statutory body was performing functions under control of Federal Government, thus its properties vesting in government were exempt from levy of octroi tax--Validity--WAPDA for having partly fulfilled Union Council's demand could not plead that it was not liable to pay its outstanding tax--WAPDA was not exempt from any tax and octroi under Arts. 165 and 165-A of the Constitution--High Court could not exempt WAPDA from payment of taxes and octroi by applying doctrine of lifting veil of incorporation--Suit against WAPDA was decreed as prayed for.
[Pp. 160, 161 & 162] A, B & C
PLD 1998 Kar. 209; PLD 1989 SC 749; PLD 1992 Pesh. 144; 1993 SCMR 468 and 1997 SCMR 641 ref.
2005 SCMR 487 rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R.17 & O.XXX, R. 10--Limitation Act, (IX of 1908), S.22-- Amendment of pleadings--Suit by unregistered from through its sole proprietor--Maintainability--Plaint signed and verified by plaintiff in his personal capacity, but not as sole proprietor of such firm--Misdescription of plaintiff in title of plaint was result of inadvertent typing mistake--Validity--Bona fide error could be corrected by amendment in title of plaint with red ink--In view of contents of plaint including its verification clause such amendment would not involve substitution or addition of party. [P. 162] D
2001 CLC 419; 1997 CLC 187; 1996 CLC 1205 & PLD 1995 Kar. 153 ref.
PLD 1961 Dacca 693 rel.
Mr. Bashir Ahmed, Advocate for Plaintiff (in Suit No. 1556 of 1997).
Mr. Abbas Ali, Advocate for Defendant (in Suit No. 1135 of 1998).
Mr. Badar Alam, Advocate for Defendants (in Suit No. 1556/1997 and for Plaintiff in Suit No. 1135 of 1998).
Date of hearing: 19.10.2008.
Judgment
Through this common judgment, I intend to dispose of the above mentioned suits on the single legal issue that whether these suits are maintainable under the law, if yes, then what should the decree be, because the learned counsel for the parties voluntarily agreed not to lead any evidence as no factual controversy is involved in these suits as claim of damages has been withdrawn by the learned Advocate for the plaintiff in Suit No 1556 of 1997 through separate statement.
The brief facts leading to these suits are that the plaintiff in suit No. 1556 of 1997 for recovery of damages amounting to Rs.10 Million, contended that it was granted a contract for collection of Octroi on the goods imported in and utilized in the jurisdiction of Union Council Gadap, District Malir vide Union Council of Gadap letters referred to in the suit. During the contract period i.e. 1-7-1995 to 30-7-1996 and 1.7.1996 to 30-7-1997 the defendant (WAPDA) brought a number of articles which were chargeable for Octori duty but failed to pay the same in spite of such demands on the promise to pay the same later on. The details with regard to outstanding dues amounting to Rs. 1,07,22,579 have been given in the plaint. On that account, the plaintiff stopped the WAPDA from importing the electrical goods, which instigated it to lodge a complaint before the Deputy Commissioner Malir, where a number of issues were raised and finally it was decided that a cheque amounting to Rs. 10,00,000 would be accepted in lieu of the arrears of dues, whereas for the remaining balance, an undertaking was to be provided by Chief Engineer along with the schedule of the payment. Other terms were also agreed upon by the parties, which have been mentioned in the plaint, (need not be produced for the brevity sake). It has been alleged that in spite of the decision the WAPDA failed to clear the dues and only paid a sum of Rs. 14,42,202 through two different cheques leaving outstanding of Rs.92,80,377. Repeated demands in that regard could also not bear the fruit, hence the suit was filed.
The case of the WAPDA, as pleaded in the written statement, was that it being a statutory body and carrying on its functions for and on behalf of the Government of Pakistan, as such, its properties vest in the Federal Government and thus exempted from levy of the octroi tax. It was also pleaded that the Provincial Coordination Committee, which was formed in order to forge coordination and cooperation between the four provinces of the federation and its capital in its meeting held on 11.4.1993 under the chairmanship of Senior Minister, Government of Pakistan, inter alia, decided that the Provincial Government would exempt WAPDA from payment of property tax and the octroi on its equipments and materials. It was also decided that WAPDA would charge electricity tariff on street lights and drinking water schemes under its purview throughout the country on its domestic rates, therefore, it was prayed that the suit was incompetent and liable to be dismissed.
In the Suit No 1135 of 1998 filed by WAPDA for recovery of Rs.7,236,934,671, it was pleaded that the defendants had charged the said amount illegally from time to time towards octroi on the same ground as aforesaid mentioned, whereas defendants put their same claim as they pleaded in their own suit. It was also pleaded that it has been decided by this Court in C.P. No. 660 of 1986 that WAPDA was liable to pay octroi, which order became final as no appeal was filed.
I have heard the learned Counsel for the parties and perused the record.
It was contended by the learned Counsel for the plaintiff that in view of the findings given by this Court in C.P. No. 660 of 1986 as referred to above, the question of payment of octroi by WAPDA has been settled as no appeal against the said judgment was preferred. It was also contended that in the said C.P. the WAPDA has made a compromise with the petitioner admitting the liability of payment towards octroi and relied upon the order passed on such compromise application, whereby the offer to pay the amount due towards it in instalments was accepted.
On the other hand, the learned Counsel for WAPDA contended that firstly no octroi duty is payable on the items imported by WAPDA being a statutory body performing functions under the control of the Federal Government and relied upon the cases reported in WAPDA v. Government of Sindh (PLD 1998 Karachi 209). He also contended that the Suit No. 1556/1997 filed by the plaintiff as a sole proprietorship, which is not a legal body and cannot sue as such but can be sued as provided under Order XXX, Rule 10, C.P.C. He has relied upon the case of the Collector of Customs v. Messrs Imran Enterprises (2001 CLC 419), The Chief v. Union Cooperative Club Limited (1997 CLC 187), Province of Sindh v. M/s. Royal Contractors (1996 CLC 1205) and Messrs Karim Development Corporation v. Messrs Razi Construction Company Limited (PLD 1995 Karachi 153).
He lastly contended that even if some officer of WAPDA had made compromise illegally as referred to by the learned advocate for the plaintiff, the same has no effect being erroneous. He has relied upon the case of Barkhurdar v. Muhammad Razzaq (PLD 1989 SC 749), Qabil Shah v. Shaday (PLD 1992 Peshawar 144).
In rebuttal the learned Advocate for the plaintiff contended that the objection raised by the learned Advocate for WAPDA that the Suit No. 1556 of 1997 has been filed by an unregistered proprietary concern, he submitted that inadvertently it has been written so in the title, in fact it has been filed by Ghulam Murtaza, a sole proprietor to Messrs Pub Corporation and necessary amendment can be made in the title of the plaint, which will not involve substitution or addition of pleadings, therefore, S.22(1) of the Limitation Act will not be applicable. He has relied upon the case of Ismail Haji Sulaiman v. Messrs Hansa Line (PLD 1961 Dacca 693). Replying the argument of the learned advocate for the WAPDA that the being a statutory organization it is exempted from payment of octroi and taxes; he referred the case of Union Council Ali Wahan v. Associated Cement (Pvt.) Ltd. (1993 SCMR 468) and contended that any statutory organization being engaged in Government activities, therefore, invoking the doctrine of lifting the veil of incorporation in such a case to enable the company to have the benefit of Article 165 of the Constitution, would place the company in an advantageous position to the detriment of the companies which were also engaged in manufacturing and the sale as they would not be entitled to the benefit of exemption of octroi which would be violative of, inter alia, Article 25 of the Constitution, therefore, grant of exemption to the company by lifting the veil of incorporation would not, in way, foster the cause of justice but in fact retard the development of the rural area.
I have carefully considered the above arguments in the light of the record.
In the first instance let it be decided by invoking the doctrine of lifting the veil of incorporation that whether WAPDA being a statutory organization. It came into being on account of promulgation of West Pakistan Water and Power Development Authority Act, 1958. It is a corporate body having its own charter. It is subject to administrative control of the Federal Govt. and final scrutiny by National Assembly as its audited accounts are to be placed before Public Accounts Committee for scrutiny and examination. By way of amendment through the Pakistan Water and Power Development Authority (Amendment Act) 1964 far reaching amendments have been brought in the original Act of 1958 to convert WAPDA into a modern, viable and dynamic corporation. The scope of its activities has been considerably enlarged. It may privatize or otherwise and restructure any operation other than hydel generation power stations and National Transmission Grid. It may enter into a joint venture, inter alia, with any other corporation/Company and, it may even purchase bulk power from private sector. Reliance is placed on the case of M/s Gadoon Textile Mills v. WAPDA (1997 SCMR 641).
In the case of WAPDA v. Administrator, District Council, Swabi (2005 SCMR 487) the question of exemption of taxes in respect of a project to be executed by the WAPDA came for examination and after survey of cases including the case of Union Council (supra) relied upon by the learned advocate for the plaintiff following was held:--
"6. The crux of appellant's case as argued before us is that WAPDA, due to executing a project of and on behalf of the Federal Government, its properties and income etc. is exempt from taxation under Articles 165 and 165-A of the Constitution. Let us see how far, in the circumstances of the present case aforesaid provisions of the Constitution are attracted.
8. Sub-Article (2) of Article 165 provides that if a trade or business of any kind is carried on by or on behalf of the Government of Province outside that Province, the Government carrying on such trade or business can be taxed under Act of Parliament or under Act of Provincial Assembly of the Province in which that trade or business is carried on. In the present case no trade or business is carried on by Government of one Province outside that Province. Here Ghazi Barotha Hydropower Project is executed on behalf of the Federal Government and hence sub-Article (2) of Article 165 is also not applicable. The advantage of working on behalf of some Government is available only in this sub-Article (2) of Article 165, which, as remarked earlier, is not attracted in the instant claim.
Coming to Article 165-A, it undoubtedly provides that the Parliament has power to make a law to provide for the levy and recovery of a tax on the income of corporation, company or other body etc. This categorically deals with the levy of income-tax. Whereas, in the instant case the tax is being levied on the export of produce which are located within the limits of a District Council. Not dealing with the question of income tax in the present case, Article 165-A is also not applicable.
This Court in case of Daewoo Corporation (2001 SCMR 1012) has already held that quarrying of stones and the like material like gravel and sand, is covered by the expression `produce' and is taxable.
Again this Court in case of Union Council v. Associated Cement (1993 SCMR 468 at page 480 para. 12) has categorically held that the lifting of the corporate veil as such is no longer permissible and the distinct juristic personality of the incorporated or statutory body has been recognized notwithstanding the control, the destination and the functioning of such bodies. This was with regard to previous remarks of this Court in case of Karachi Development Authority decided on 29.12.1991 but reported in (2005 PTD 2131). In the circumstances, we are of the view that the appellant cannot derive benefit from either Article 165 or from Article 165-A of the Constitution.
This was with regard to the grounds, as such, of the exemption but another very important aspect of the case is altogether different and not at all related to the aforesaid exemptions. The fact is that the District Council has imposed export tax and educational cess not on WAPDA-but on Ghazi Barotha Contractors, and the same had continuously been paid for a long time. The contractors, by no stretch of imagination or arguments can equate them with the Federal Government nor have they claimed so. This is proved by their conduct of having paid such tax for a considerably long time, constituting against them estoppel as well. The WAPDA has stepped in merely because such payments are to be reimbursed by it to the contractor. This reimbursement is a pure and personal contractual liability shouldered by WAPDA itself in Para. 9 of written contract. The learned High Court has elaborately dealt with this aspect of the case. Rather this aspect has mainly prevailed with the High Court while dismissing the writ petition. We fully agree that the actual imposition of the tax is on the contractor who cannot be exempted therefrom. Whatever WAPDA has undertaken qua the reimbursement thereof is a pure contractual liability and now it cannot be evaded on the pretext of exemptions, which otherwise are not available. On the one hand, WAPDA realizes that various taxes or cesses are most likely to be imposed on the contractor but when so imposed as well as recovered, the reimbursement thereof is now practically avoided."
Coming to the present case, the plaintiff in Para. No. 5 of the plaint has made the following averments, which are reproduced below:--
"5. That the issues, as enumerated above were discussed. The Plaintiffs and so also the Defendants presented their respective case before the D.C. The D.C., after hearing the parties, gave decision wherein it was held:--
(i) The cheque amounting to Rs.10 lacs would be accepted by the contractor (the Petitioner) in lieu of part of the blocked payments. The contractors had earlier refused this payment. As regard, rest of the payments, Chief Engineer, WA.PDA would give an undertaking by 31-3-1995 in which a schedule of payments would be given.
(ii) The dispute between the two parties regarding octroi rates would be referred to the competent authority for arbitration pending which the contractors would receive payments at 3% to 5% WAPDA would pay the balance amount to the contractor presently collecting octroi. It was decided in clear terms that the balance, if any, would be paid to the present contractor and not to the Union Council. In this regard, the Chief Engineer WAPDA would give another undertaking by 31st of March, 1996.
(iii) It was also, decided that WAPDA would ensure that in future the payments of dues is made in a smooth and expedious manner.
The parties in the course of the afore-referred meeting, agreed to honour the decision of the D.C. Further, the plaintiff agreed, as a genture of goodwill, to accommodate and allow defendants to pass through and take their electrical goods within the octroi jurisdiction of the Council. The defendants, on the other hand, committed themselves to honour their side of the agreement, which amongst others, included:--
(a) to pay a cheque of Rs. 10 lac;
(b) to issue an undertaking by 31-3-1996, wherein a schedule of payment would be given;
(c) to refer the dispute to the competent authority for arbitration to settle the matter of appropriate classification and consequently to fix rates accordingly; and
(d) to ensure that in future, payments of dues is made in a smooth and expeditious manner.
True copy of Minutes of the Meeting Bearing No. DC/AI/JB/839/96 dated 22-3-1996 chaired by the D.C. is annexed hereto and marked; "D."
In reply to the above averments, the WAPDA in its written statement has given the following reply:
"4. As regards the contents of Paras. 4, 5, 6 & 7, as submitted in Para. 3 above the octroi tax was not leviable on WAPDA's Equiprnents and materials. The alleged proceedings by the Deputy Commission Malir and his alleged decision was coram non judice having no legal effect and not binding on WAPDA. The alleged undertakings by the officers of WAPDA were mistakenly made and were subject to legal entitlement of the plaintiff to claim octroi tax on WAPDA's Equipments and Materials."
From the above reply it is clear that the WAPDA has not denied the meeting between the two parties in the office of the Deputy Commissioner and in consequence thereof part payment of the outstanding bill of the plaintiff by the WAPDA, therefore, now it cannot be pleaded that WAPDA is not liable to pay the outstanding dues as claimed by the plaintiff.
In the similar situation in the unreported case of WAPDA v. Government of Sindh (C.P.No. D-660/1986) relief upon by the learned Advocate for the plaintiff this Court has held that:
"The petitioners have objected to the recovery of octroi tax by the H.D.A. and Pipri Union Council (Dadu) on the goods which are brought within their local limits on the ground that these goods only pass through the limits of the said council and corporation in transit. There is nothing on the record before us to show that Union Council Pipri or Hyderabad, Municipal Corporation are charging octroi tax on building material which passed through their respective limits in transit. On the contrary the pleading and record clearly show that octroi tax is charged by the Union Council Pipri and Hyderabad Municipal Corporation on goods and material which is brought in their respective limits by petitioner for consumption there. There is no merit in the above petition which are accordingly dismissed but in the circumstances of the case, we made no order as to costs."
In that case it was never pleaded that WAPDA was exempted from payment of octroi duty being a statutory body under Federal Government.
In the present case in which such plea was taken by the WAPDA but the plaintiff's demand which was partly fulfilled by the WAPDA as per its own case. I am therefore of firm view that the WAPDA is not exempted under Articles 165 and 165-A of the Constitution of Pakistan from any tax and octroi as laid down by the Hon'ble Supreme Court in WAPDA case supra (2005 SCMR 487) and therefore this Court cannot exempt it from payment of taxes and octroi by the application of the doctrine of lifting the veil of incorporation.
The next question with regard to filing of Suit No. 1556 of 1997 by an unregistered firm as sole proprietorship concern. In this regard the argument of the learned advocate for the plaintiff that inadvertently and due to typing mistake the parties have been misdescribed and error has occurred in designating the party in the plaint, hence the plaintiff Ghulam Murtaza has filed the suit but it has been Muhammad Yousuf, a sole proprietor of Messrs Pub Corporation and the misdescribed as Messrs Pub Corporation in fact it should be "Ghulam Murtaza son of" mistake can be corrected being bona fide and the amendment will not involve substitution or addition of party and therefore. Section 22 of the Limitation Act will not be applicable, has immense force keeping in view the contents of plaint including its verification clause of the plaint in the said suit. It shows that plaint has been verified on oath by the said Ghulam Murtaza as the plaintiff and not as sole proprietor of Messrs Pub Corporation. Hence the misdescription of the plaintiff in the plaint which appears to be bona fide typographical error which can be corrected by amendment in its title even with red ink and such amendment will not involve substitution or addition of party. Reliance is placed on Ismail Haji Sulaiman case supra (PLD 1961 Dacca 693).
From the above discussion it is clear that the plaintiff has a right for the decree in his favour in terms of prayer clause (a) with costs, whereas the WAPDA is not entitled to the relief as prayed in its Suit No. 1135 of 1998, which is dismissed with costs.
Order accordingly.
(R.A.) Order accordingly.
PLJ 2009 Karachi 163
Present: Syed Mahmood Alam, J.
AZHAR HUSSAIN SHAH--Applicant
versus
Messrs HARAT MANAGEMENT (PVT.) LTD. through Managing Director--Respondent
C.R. Appli. No.30 of 2007, decided on 13.10.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2), 24-A & O.XXXVII, Rr. 1, 2, 4--Suit for recovery of money filed in High Court under O.XXXVII of C.P.C.--Framing of issues--Change of pecuniary jurisdiction of High Court--Suit was transferred to District Judge--Assignment of suit by District Judge to Court of Senior Civil Judge, which was not a Court notified by High Court to try such suit--Recording ex-parte evidence of plaintiff due to non-appearance of defendant despite issuance of notice to him--Reference of the case to District Judge by Senior Civil Judge for want of jurisdiction to try such suit--Transfer of case by District Judge to Court of Addl. District Judge for trial and disposal as per law--Non-issuance of notice to defendant by Addl. Distt. Judge and closing of his evidence for non-appearance--Passing of ex-parte decree by Addl. Distt. Judge on basis of ex-parte evidence recorded Senior Civil Judge--Application S. u/S. 12(2) r/w O.XXXVII, R.4 of C.P.C. by defendant for setting aside such decree during its execution--Dismissal of such application by Addl. Distt. Judge--Validity--:Defendant had no knowledge of proceedings before Senior Civil Judge--Defendant was not informed or aware of administrative order of District Judge transferring suit to Addl. Distt. Judge, who, in turn, had not issued Court motion notice to defendant despite being entitled thereto--High Court had not notified Senior Civil Judge to try suit under O.XXXVII of C.P.C., thus, proceedings before him were incompetent and without jurisdiction--Addl. Distt. Judge had acted illegally and without jurisdiction by relying on evidence recorded by Senior Civil Judge--Case was remanded to District Judge for further proceedings from the stage when same was initially transferred from High Court on change of pecuniary jurisdiction.
[Pp. 166, 167 & 168] A, B & C
1987 SCMR 150 and 1997 SCMR 926 rel.
Mr. Nazar Akbar, Advocate for Applicant.
Date of hearing: 28.8.2008.
Judgment
This Revision is directed against the order dated 22-1-2007 passed by VIIth Additional District Judge, South Karachi, whereby the application under Section 12(2) read with Order XXXVII, rule 4 and Section 151, Civil Procedure Code was dismissed.
Briefly, the facts of the case are that the respondent on 14.3.1996 filed a Civil Suit No.217 of 1996 under Summary Chapter before this Court for recovery of. an amount of Rs.8,83,000 which was contested by the applicant and unconditional leave to defend the suit was granted to him. Whereafter, written statement was also filed and issues were framed by this Court. Subsequently, on change of pecuniary jurisdiction of High Court, the suit was transferred to the Court of District and Sessions Judge, South Karachi who wrongly assigned it to the Court of Xth Senior Civil Judge, South Karachi where it was renumbered as Suit No. 471 of 2003. The respondent waived Court motion notice and the notices were issued to the applicant which remained un-served and the Court of Xth Senior Civil Judge, South Karachi by order dated 9-8-2003 held the service good and proceeded to record evidence of the respondent. The evidence was recorded by Senior Civil Judge in absence of the applicant on 14-7-2004 and side of the applicant was closed and case was put up for evidence of the applicant.
However, when the matter was fixed for evidence of the applicant/defendant, the learned Xth Senior Civil Judge, South Karachi realized that the suit being under Order XXXVII, Rule 2, C.P.C. hence was not triable by the Senior Civil Judge and therefore, on 7-8-2004 he made a reference to the District Judge, South Karachi, as a result, the learned District Judge, South Karachi through an administrative order dated 31-8-2004 recalled the case from the Court of Xth Senior Civil Judge, South Karachi and assigned it to the learned VIIth Additional District Judge, South Karachi for trial and disposal as per law.
That the case was received in the Court of VIIth Additional District Judge, South Karachi on 2-9-2004 who without issuing Court motion notices to the applicant/defendant on 28-9-2004 proceeded with the case by holding that it. was duty of defendant/applicant to proceed their case vigilantly because a valuable right was involved and closed the side of the applicant/defendant for evidence merely because the applicant neither perused their case before Senior Civil Judge nor her Court. Ultimately an ex-parte decree was passed and execution No. 3 of 2005 was filed by the respondent. The applicant on receiving the notice of the execution came to know about the judgment and decree in Suit No. 471 of 2003 against him and immediately filed an application under Section 12(2), C.P.C. for setting aside the judgment and decree which was contested by the respondent by filing their counter-affidavit to the application under Section 12(2), C.P.C. which is available at page 109. The said application was dismissed by learned VIIth Additional District Judge, South Karachi and against the said order this revision has been preferred by the applicant.
That the notices of this revision were sent through TCS which seems to have been received at the address given in the plaint as the report has been placed on record by the advocate for the applicant. It has also been pointed out by the counsel for the applicant that the R&Ps of Suit No. 471 of 2003 and execution No. 3/2005 were called from the Court of VIIth Additional District Judge, South Karachi where the respondent was presenting the execution proceedings. The record of execution application No. 3 of 2005 at page 5 of Part II of execution proceedings shows that an application under Order XXI, Rule 26, C.P.C. was filed by the applicant before the executing Court wherein it has been elaborately stated by the applicant that above Revision No. 30 of 2007 has been filed before this Court and by order dated 12-3-2007 the R&Ps of execution has been called by this Court. The copy of said application of applicant was received by the counsel for the respondent thereafter, the R&Ps was sent to this Court. The record shows that respondent is fully aware of the revision application and has chosen not to contest this revision application as no body is present on their behalf.
I have heard Mr. Nazar Akbar, Advocate for the applicant and have gone through the record and proceeding of Suit No. 471 of 2003 as well as Execution Application No. 3 of 2005. On examination of diary sheets of the Court of Xth Senior Civil Judge, South at Karachi. I am unable to appreciate that why it took more than one year for the Senior Civil Judge to realize that the suit being under summary chapter was not triable by him when in August 2004 a reference was made purely on the question of jurisdiction in view of the fact that the suit was based on negotiable instrument. The order of transfer of Civil Suit No. 471 of 2003 available at page 69 of the Revision also makes it abundantly clear that the administrative ground for transfer of the suit was solely the fact that the Suit No. 471 of 2003 was under Order XXXVII, C.P.C. and that is why it was re-called from the Court of Senior Civil Judge and transferred to the VIIth Additional District Judge.
That admittedly the applicant was unaware of the proceedings before Xth Senior Civil Judge and on transfer of the case, the VIIth Additional District Judge, South Karachi also did not issue any Court motion notice to the applicant in spite of the fact that initially the VIIth Additional District Judge, South Karachi has issued directions for Court motion notices.
The diary of VIIth Additional District Judge, South Karachi where the case was received on 2-9-2004 and it was decreed on 29-10-2004 shows that on 16-9-2004 the Court did order that Court motion notices be issued to the applicant but no such notice was issued. However, a detailed diary dated 28-9-2004 shows that the Additional District Judge, South Karachi referred to the record of Xth Senior Civil Judge, South, Karachi who on 9-8-2003 had held the service good on the applicant and had recorded the evidence of the respondent in absence of the application and therefore, the VIIth Additional District Judge decided not to issue fresh notice on the ground that it was the duty of the party to pursue the case vigilantly and closed the side of the applicant for record of evidence even without recording of the evidence of the plaintiff by itself and relying on the evidence recorded by the Xth Senior Civil Judge, which was patently illegal, and without jurisdiction. It is an admitted position that applicant was never informed or aware of the administrative order whereby the suit was transferred from the Court of Xth Senior Civil Judge to the Court of Additional District Judge. It was wrongly assigned to the Court of Senior Civil Judge and on the Reference of Senior Civil Judge, the District Judge by order dated 30-8-2004 has recalled it and transferred to the VIIth Additional District Judge, South Karachi for trial and disposal as per law. In these circumstances the applicant was entitled to a Court motion notice which should have been issued by the learned VIIth Additional District Judge South, Karachi. It has been pointed out by the learned counsel for the applicant that in the impugned judgment the learned VIIth Additional District Judge has referred to 1987 SCMR 150 and also 1997 SCMR 926 and yet failed to appreciate that in the given facts and circumstances of the case the relevant judgment of the Supreme Court was 1997 SCMR 926 Saifullah Siddiqui versus KESC wherein at page 930 the case law reported in 1987 SCMR 150 has been elaborately discussed and it has been held that to press provision of Section 24-A(2), C.P.C., it is, the duty of the Court to inform the parties about the transfer of the case. In the instant case neither the applicant was available before the District Judge who ordered for transfer of Suit No. 471 of 2003 from the Court of Xth Senior Civil Judge to the Court of Additional District Judge nor there was any occasion for the Xth Senior Civil Judge to inform the applicant about the transfer of the case since the applicant was not properly served by the Senior Civil Judge. In these circumstances, the proceedings before the Additional District Judge without issuing of Court motion notice to the applicant was improper as the applicants was entitled to a proper notice after transfer of the case and ex-parte decree cannot be held effective since the service of the Court motion notices was not effected as held by the Hon'ble Supreme Court reported in 1997 SCMR 926.
The other important aspect of this case is that the proceedings before the Senior Civil Judge who has recorded the evidence of the respondent/plaintiff were incompetent and without jurisdiction. It is an admitted position that the suit was filed under summary Chapter before this Court under Order XXXVII, C.P.C. There is no cavil to the legal position that Order XXXVII, C.P.C. applies only to the High Court and to the District Court and to any other Court specially notified in his behalf by the High Court. The provision of Rule 1 of Order XXXVII, C.P.C. reads as follows:--
"1. Application of Order.--The Order shall apply only to the High Court, to the District Court and to any other Civil Court notified in this behalf by the High Court."
In this legal position since the Court of Xth Senior Civil Judge, South Karachi was not notified to proceed under summary chapter, the proceedings of Civil Suit No. 471/2003 before the Xth Senior Civil Judge, South Karachi from 17-2-2003 to 7-8-2004 including recording of evidence by the Xth Senior Civil Judge, South Karachi was patently illegal being coram non judice. The counsel for applicant has rightly relied on PLD 2007 Lah. 101 (Sh. Muhammad Arshad v. Sh. Muhammad Asghar) wherein Lahore High Court while relying on the judgments of the Hon'ble Supreme Court PLD 1988 SC 124 and 1969 SCMR 784 has held that in a suit for recovery of money based on pro note, the proceedings as also consequential judgment on a mistaken assumption of jurisdiction of Civil Judge loses legal efficiency. The Additional district Judge in the instant case did not realize that the case was received in her Court from the Court of Senior Civil Judge on the ground that Suit No. 471/2003 was under Order XXXVII, C.P.C. with directions to proceed in accordance with the law. The learned Additional District Judge instead of examining the Court file in terms of Order XXXVII, C.P.C. being exclusively triable by the High Court or the District Judge heavily relied on the proceeding before the Senior Civil Judge as of the same were not defective through the proceedings were without jurisdiction and patently illegal.
The Additional District Judge, South Karachi was required to proceed from the point of recording of the evidence of the plaintiff/respondent since the issues had already been framed by this Court prior to inadvertently sending the case to and assumption of jurisdiction by Senior Civil Judge. The step taken and proceeding held by Senior Civil Judge being contrary to the law envisaged in Order XXXVII, Rule 1, C.P.C. hence the judgment of the Additional District Judge, South Karachi on the basis of the evidence recorded by the Civil Court to whom the suit was inadvertently entrusted suffered from the proper exercise of jurisdiction.
In view of the above the order dated 22-1-2007 is set aside. Consequently, the judgment and decree in Suit No. 471/2003 are also set aside and the case is remanded to the District Judge, South Karachi for further proceedings from the stage onward when it was initially transferred from High Court on change of pecuniary jurisdiction.
That by short order dated 28-8-2008 I allowed this Revision Application which is reproduced as under:--
"For the reasons to be recorded later on, this Revision Application is allowed. The learned District Judge is directed to call the R&P from the Court of A.D.J. VIIth South and transfer to some other A.D.J., and the transferee Court shall conclude the case expeditiously preferably within 4 months from the date of receipt of his order. The transferee Court would initiate the proceedings from where this Court had left."
(R.A.) Order accordingly.
PLJ 2009 Karachi 168 (DB)
Present: Muhammad Athar Saeed and Arshad Noor Khan, JJ.
Messrs IBRAHIM FIBRES LTD. through Secretary/Director
Finance--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary/Revenue Division and 3 others--Respondents
C.P. No. D-548 of 2008, decided on 22.11.2008.
Income Tax Appellate Tribunal Rules, 2005--
----R. 3--Civil Procedure Code, (V of 1908), S.20(c)--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Appeal before Income Tax Appellate Tribunal, pendency of--Action and inaction of members of the tribunal challenged in constitutional petition before Karachi High Court--Question of--Maintainability--Sealing of impugned order by tribunal in compliance with interim order of Karachi High Court--Effect--Such compliance out of respect would not mean that Tribunal had impliedly given consent to jurisdiction of Karachi High Court--Impugned action and inaction of members of tribunal had taken place within territorial limits of Lahore High Court, thus, cause of action had fully arisen at Lahore--Effect of final order to be passed by Tribunal would be either to demand tax from appellant or extinguish his liability by Taxation Officer at Lahore--No person or authority based in Karachi or any part of Sindh Province could issue any demand of tax or take coercive action against appellant--Income Tax Tribunal as federal institution was functioning through benches in different areas assigned to them by Chairman--Lahore Bench of Tribunal was constituted to hear appeals against orders of Tax Department performing functions in Lahore--Writ of mandamus issued by Karachi High Court could not run beyond its territorial jurisdiction--Income Tax Tribunal, Lahore Bench and its Members, Taxation Officers based at Lahore were not falling within territorial jurisdiction of Karachi High Court--Petition was dismissed. [Pp. 176 & 183] A & B
1985 SCMR 758; PLD 2002 Karachi 420; PLD 1997 Lah. 643; 2000 SCMR 1703; 1993 SCMR 1171; 1991 SCMR 2114; 1997 SCMR 1874; PLD 1968 SC 387; PLD 1997 SC 334; 1979 SCMR 555; PLD 1986 Kar. 525; 2004 CLC 565; PLD 1980 Kar. 113; Zafar Ali Shah's case PLD 2000 SC 869; PLD 2006 Kar. 479 and 1996 SCMR 83 ref.
Mr. Khawaja Shamsul Islam and Jawed Zakaria, Advocate for Petitioner.
Mr. Aqeel Ahmed Abbasi, for Respondents Nos. 1 to 5.
Mr. Shahid Jamil Khan, Advocate for Respondents Nos. 9, 10 and 12 to 14.
Mr. Ikram Ahmed Ansari, Advocate for Intervenor.
G.N. Qureshi, DAG for State.
Date of hearing: 22.11.2008
Order
Muhammad Athar Saeed, J.--This constitutional petition was filed in this Court on 27-3-2008 against the alleged action and inaction of the Income Tax Appellate Tribunal, Lahore Bench and both the Judicial and Accountant Members of the Lahore Bench, who had allegedly after hearing the appeal filed by the petitioner against the order of the CIT Appeals Lahore setting aside the order of the Income Tax Officer based at Lahore on the point of credit under Section 107AA had passed dissenting orders and the Accountant Member is alleged to have changed his verbal order to please Respondents Nos.10 and 11 was are also based at Lahore.
Vide various orders passed by this Court on different dates initially the orders of the Members of Income Tax Appellate Tribunal Lahore were sealed and they were restrained from de-sealing the order but later on this order was recalled. However, the respondent department was restrained from initiating any action in terms of the said order. Later on, contempt application was also moved against some of the respondents on which notices were issued to the alleged contemnors and the interim order passed earlier was extended.
Earlier, vide the order of this Court, dated 3-4-2008, the learned counsel for the petitioner was put to notice that the legal objection made by the Respondents Nos. 9 and 10 that since the matter pertains to Province of Punjab this Court does not have the territorial jurisdiction to adjudicate it, would be decided first. This case was fixed before this Bench for the first time on 21-10-2008 when once again the learned counsel for the petitioner was put to notice that this Court before adjudicating on merits of the case, will first take up and decide whether the petition is maintainable insofar as it has been filed in this Court against action of the Tribunal at Lahore and today both the applicants were prepared to argue on this point.
We have heard Mr. Khawaja Shamsul Islam the learned counsel for the petitioner and Mr. Shahid Jamil Khan learned counsel for the Respondents Nos.9 and 10.
The learned counsel for the petitioner started his arguments by reading out the orders of this Court, dated 28th March, 2008 and 3rd April, 2008 in which this Court had given certain directions to the Respondent No. 8 i.e. the Tribunal and other respondents for sealing of the impugned order and then order for desealing the same and restraining the respondent Department from taking any action on the basis of the disputed impugned order. On the basis of these two orders of this Court the learned counsel drew our attention to the order of the Income Tax Appellate Tribunal in which the directions given in these orders of this Court had been complied with. The learned counsel, therefore, argued that the respondents had by complying with the orders of this Court accepted the jurisdiction of this Court and, therefore, they were precluded from challenging the jurisdiction of this Court to adjudicate on this constitutional petition. He further submitted that no prejudice is caused to the respondent if this constitutional petition is heard by this Court or by the Lahore High Court. The learned counsel submitted that the secretarial, corporate commercial, legal and tax assessment matters are being regularly attended by the company secretariat tax law division situated at Karachi. All returns, petitions, revisions and memos are prepared at Karachi office and their tax advisors and legal advisors are also based at Karachi. He further stated that the appeal before the Tribunal was prepared at Karachi and filed before the Income Tax appellate Tribunal Lahore and the notices of hearing of the appeal and the impugned orders were also received at Karachi office. According to the learned counsel, the Income Tax appellate Tribunal is a single entity and its Benches function at Karachi, Lahore, Islamabad, Peshawar and Quetta and, therefore, since it is a Federal Institution, its orders can be challenged in any High Court in Pakistan and at least in the case of the present petitioner both the Sindh High Court and the Lahore High Court have concurrent jurisdiction and it is his prerogative to opt to file the constitutional petition before any of the two High Courts. The learned counsel then drew our attention to Section 20(c) of the C.P.C. which provides that subject to limitations aforesaid every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arise. According to the learned counsel the petitioner's tax matters are dealt with at the Karachi office and notice of hearing was also received at the Karachi office, therefore, the cause of action has partly arisen in Karachi and this Court has full jurisdiction to decide this constitutional petition. The learned counsel then referred to the judgment of the Honourable Supreme Court in the case of Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) in which a full bench of the Honourable Supreme Court had held that a petition/appeal against a judgment of the Copyright Board, the office of whose Registrar is situated at Karachi, can be filed either in the Sindh High Court or Lahore High Court as both the Courts have concurrent jurisdiction in the matter and both the Courts can entertain a writ petition against the impugned order. He submitted that this case is completely identical to the case of the petitioner and since this judgment is that of a full bench comprising of five Members it is binding on this Court and, therefore, this Court may declare that it has jurisdiction to hear the above constitutional petition. The learned counsel then relied on the judgment of this Court reported in the case of Itehad Cargo Services v. Rafaqat Ali (PLD 2002 Karachi 420) in which this Court had held that where two Courts might have jurisdiction in respect of the same case it is prerogative of the plaintiff to choose the place of suing. The learned counsel then read out Rule 3 of Income Tax Appellate Tribunal Rules, 2005 which reads as under:--
(2) Sitting of Bench.-A Bench shall hear and dispose of such appeals and applications made under the Ordinance as are assigned by the Chairperson or any member authorized by him in this behalf.
(1) Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan Islamabad and 7 others (PLD 1997 Lahore 643).
(2) Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000 SCMR 1703).
(3) Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171).
(4) Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114).
(5) Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874).
On the basis of his arguments and the judgment relied on by him the learned counsel submitted that this Court has jurisdiction to hear this constitutional petition and prayed that he may be provided an opportunity to the argue the case on merits.
The learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the petitioner and submitted that by complying with the order and directions of this Court, the respondents have not conceded to the jurisdiction of this Court and are not precluded from challenging it. He further argued that even if it is considered that the respondents have accepted the jurisdiction of this Court then also it is a settled law that the parties cannot give consent to any action which is against the law.
The learned counsel submitted that the filing of writ petitions are governed by the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He read out the provisions of Article 199 to point out that this Court is competent to pass orders in cases covered under paras (i) and (ii) of sub-clause (a) of clause (1) of this Article and under paras (i) and (ii) of sub-clause (b) and sub-clause (c). Reading out all these provisions he specifically mentioned that under all these provisions the Court can exercise its jurisdiction when any person performs, within territorial jurisdiction of the Court, or an act is done or proceedings taken within the territorial jurisdiction of the Court, or a person is in custody within the territorial jurisdiction of the Court, a person holds office within the territorial jurisdiction of the Court or when Government functionaries exercise any powers or perform any functions within the territorial jurisdiction of that Court. He pointed out that so far as the present petition is concerned, the petitioner has prayed to this Court for issuance of writ of mandamus falling under sub-clause (ii) of sub-clause (a) of clause (1) of Article 199 and this Court before exercising its jurisdiction has to be satisfied that the act done or proceedings taken against which the writ of mandamus is requested to be issued, has been done or taken within the territorial jurisdiction of this Court. He pointed out that the petitioner filed his returns of income before Taxation Officer performing his functions in the province of Punjab which falls under the jurisdiction of the Lahore High Court. The appeal has been heard by the Lahore Bench of the Income Tax Appellate Tribunal at Lahore by the Judicial and Technical Members who have been posted to perform their functions at Lahore, the act of passing the order or omission for passing of the relevant order have all been performed at Lahore and, therefore, this Court has no jurisdiction to entertain this petition for issuance of writ of mandamus as none of the purported actions or proceedings have been taken within the jurisdiction of this Court.
The learned counsel then strongly opposed the arguments of the learned counsel for the petitioner that since the Income Tax Appellate Tribunal is a Federal Body and its benches function in all the four provinces, therefore, despite the fact that the act or omission may have been taken by the functionaries of the Tribunal functioning in a particular province but the entitlement of filing a petition against such act or omission is within the prerogative of the petitioner to file in any Court he so desires. The learned counsel submitted that Al-Iblagh case quoted supra on which the reliance has been placed by the learned counsel for the petitioner is distinguishable from the facts of this particular case, as in that case it was observed by the Honourable Supreme Court that since Copyright Board has been setup by Pakistan Central Government for whole of Pakistan and performs functions in such matters relating to the affairs of Federation in all the provinces, therefore, any order passed by such Board or proceedings taken by it in relation to any person in any of the four provinces of the country, would give High Court of Province, in whose territory order would affect such a person, jurisdiction to hear the case. They also observed that appeal under Section 76 can also be preferred to High Court within whose jurisdiction the appellant actually and voluntarily reside or carries on business or works for gains. He pointed out that the facts in that case were that initially the hearing of the appeal in view of the request of the parties as well as for the convenience of the three of the Members of the Board who were from Lahore and Rawalpindi admittedly, had taken place at Lahore. However, the final order whereby the appeal was dismissed was announced at Karachi, but since the appellant admittedly resided at Lahore it was held by the Honourable Supreme Court that both the Sindh High Court and the Punjab High Court had concurrent jurisdiction to hear the appeal under the Copyright Act. He also preferred to the judgment of the Honourable Supreme Court in the case of Asghar Hussain v. Election Commissioner of Pakistan and others (PLD 1968 SC 387) which was relied on by the Honourable Bench in Al-Iblagh case (supra) and pointed out that in that case the subject matter of the certificated appeal was that bye-election of East Pakistan Provincial Assembly from constituency No. PE-126, Comilla VI, was held under the President's Order and the High Court of East Pakistan had given a decision that it had no jurisdiction to issue writ or direction to the Election Commissioner of Pakistan as it was stationed at Islamabad. The Honourable Supreme Court held that this judgment was unsustainable in law and the persons, who were affected, by the order were residing within the jurisdiction of High Court of East Pakistan (as it then was) and the elections were held in the territory of East Pakistan (as it then was) and the Election Commissioner was person or authority which exercised its powers in the Province of East Pakistan in connection with the affairs of the Center and, therefore, the High Court of East Pakistan had proper jurisdiction. The learned counsel pointed out that the fact in these cases was that the parties in those appeals were the persons who were affected ordinarily resided in the territorial jurisdiction of the High Courts in whose jurisdiction they had filed these petitions and cause of action had also accrued to them in the territorial jurisdiction of those High Courts. The learned counsel then relied on the judgment of the Honourable Supreme Court in the case of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334) in which according to him the case of Al-Iblagh quoted supra was distinguished. According to the learned counsel in this case writ petition was filed in Rawalpindi Bench at Lahore High Court against an assessment for the levy of regulatory duty imposed at Karachi which was rejected by the Lahore High Court and the petition was returned to the petitioner to present the same before the proper Court on the ground that the learned Lahore High Court had no territorial jurisdiction despite the fact that vires of Notification was also challenged and reliance was placed on Al-Iblagh case. However, grant of leave was refused by the Honourable Supreme Court after distinguishing the case of Al-Iblagh in the following manner.
"(7) The petitioners' prayer was for a direction to the Customs Authorities at Karachi not to levy the regulatory duty. The above relief could have been granted by the High Court of Sindh within whose jurisdiction the person performing the affairs of the Federation is discharging his functions."
(1) Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others (1979 SCMR 555).
(2) Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others (PLD 1986 Karachi 525).
(3) Mst. Shahida Maqsood v. President of Pakistan through Secretary, Law Justice and Human Rights (2004 CLC 565).
(4) Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd. Rawalpindi (PLD 1980 Kar. 113).
The learned counsel pointed out that if it is held that in case of orders of the Federal Tribunal even those Courts have jurisdiction within whose territorial jurisdiction the cause of action does not arise either partially or fully nor the authorities whose impugned action has been challenged are performing the functions of the Tribunals in that territorial jurisdiction, then a pandora box will open and appeals and petitions will be filed in various High Courts just on the basis of personal preference of likes and dislikes. He, therefore, prayed that this Court may refuse to exercise its jurisdiction and dismiss the petition in limine leaving the petitioner to seek any other remedy if he so desires.
Exercising his right to reply the learned counsel for the petitioner referred to a Full Bench judgment of this Court in the case of Ghaffar Lakhani case relied on by the learned counsel for the respondent and quoted supra. The learned counsel submitted that after the judgment of the Supreme Court in the case of Zafar Ali Shah's case reported in PLD 2000 SC 869, this judgment of the Full Bench of this Court has been rendered per incurium. In support of his contention he relied on the following few lines from the judgment of the Honourable Supreme Court:--
"It is a fundamental principle of jurisprudence that Court must always endeavor to expand their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. The orders of the Chief Executive are subject to the jurisdiction of the constitutional Courts of the land."
The learned counsel also argued that for the purpose of administration of justice Court can mould the relief and allow the same though it is not prayed for as the Courts are not merely salves of technicalities, but are Courts of justice and, therefore, the relief can be moulded in a way which serves the purposes of justice. For this purpose, he relied on a judgment of this Court in the case of Messrs Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan (PLD 2006 Karachi 479). To substantiate that the partial cause of action arose at Karachi and therefore this Court had jurisdiction to entertain the writ petition, the learned counsel relied on a judgment of the Honourable Supreme Court in the case of the Collector, Customs and Central Excise, Peshawar v. Messrs Rais Khan Limited (1996 SCMR 83).
We have examined the case in the light of the arguments of the learned counsel and have also perused the records of the case and the law on the subject including provisions of Article 199 of the Constitution of Islamic Republic of Pakistan and the judgments relied on by the learned counsel.
At the very outset, we may observe that we are not impressed by the arguments of the learned counsel that by complying with the directions of this Court issued through earlier orders, the respondents have impliedly consented that this Court has jurisdiction to issue writ of mandamous in this case. They had already objected against filing of this constitutional petition before this Court and merely complied with the directions and orders of this Court simply out of respect they hold for this Court and the compliance of the orders do not mean that they had given implied consent to the jurisdiction of this Court. From a perusal of the actions and omission of the members of the Income Tax Appellate Tribunal Lahore bench we have seen that such acts and omissions took place within the territorial jurisdiction of the Lahore High Court and therefore the cause of action fully arose at Lahore. It is also our considered opinion that the effect of the order of the Tribunal either in favour or against the petitioner would either be that the tax would be demanded or the tax liability will be extinguished by the taxation officer at Lahore and no person or authority based in Karachi or any other part of Sindh which falls within the territorial jurisdiction of this Court, will be entitled to issue any demand or take any coercive action against the petitioner for recovery of demand or in any other matter connected with the subject-matter of appeal. We are also of the opinion that although the Income Tax Appellate Tribunal is a federal institution having Benches all over the country and functions under a single chairperson who, as pointed out by the learned counsel for the petitioner, performs its functions in all the provinces through benches formed by the learned Chairperson to hold sitting at the headquarter or such other place as the chairperson may consider convenient. However, the functions of these Benches will be restricted to the territories in which they have been assigned by the chairperson to hear and decide the appeals and the Lahore Bench according to the jurisdiction has been constituted to hear appeals against the orders of the Taxation Authorities performing their functions in Lahore or such other part of Punjab as may have been declared by the chairperson and, therefore, it is clear that from the time the return was field before the Income Tax Officer all the actions initiated and proceedings taken have been taken by the authorities including the taxation officer, commissioner of Income Tax (Appeals) and the Members of the Income Tax Tribunal performing their functions in respect of cases falling within the territorial jurisdiction of the Lahore High Court. The petitioner counsel has been emphasizing that the partial cause of action had arisen at Karachi, but except arguing that his corporate tax offices are situated at Karachi and that the impugned orders were received at Karachi, the has not been able to point out even a single instance of the cause of action arising at Karachi or any effect of the impugned action or omission by the Members of the Tribunal which may have arisen at Karachi and which could be implemented in any part of Sindh by any authority.
The learned counsel for the petitioner has relied heavily on Al-Iblagh case and has argued that the facts of this petition are similar to the facts of that case as both the Income Tax Appellate Tribunal and the Copyright Board are Federal Institutions performing their functions all over Pakistan. It is, therefore, his submission that the orders passed by the Tribunal sitting anywhere in Pakistan can be challenged in any High Court in Pakistan.
We have examined the judgment of the Honourable Supreme Court in Al-Iblagh case quoted supra and have seen that the Honourable Supreme Court decided the issue that Lahore High Court had jurisdiction to entertain the writ petition filed by the petitioner whose appeal against the order of the Copyright Board sitting in its appellate capacity was to be filed before the learned Lahore High Court. The Honourable Supreme Court decided this issue in the following manner:--
"The learned Judge in the High Court was of the opinion that as the offices of the Registrar and the Copyright Board were located in Karachi and the record to be examined (or "certified" if the technical term was to be used) was also in Karachi, the rule laid down by this Court in The Deputy Managing Director, National Bank of Pakistan and others v. Ataul Haq PLD 1965 SC 201 would be attracted and, therefore, the Sindh High Court in whose jurisdiction the records of the respondents were available would alone have jurisdiction to entertain the writ petition."
"The plaint meaning of the words" "a person performing in the Province functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories."
It explained that:--
"The Central Ministries as well as many Departments of the Central Government are located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the provinces in connection with the affairs of the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design--
We are of the opinion that the facts of the present petition are not identical with the facts of the case in Al-Iblagh case quoted supra because whereas Income Tax Appellate Tribunal performs its functions through various benches which have been granted jurisdiction to hear and decide the case in various territories the copyright Board is a single entity which meets all over Pakistan to decide the cases in which cause of action may have arisen in a particular territory and appeals are ordinarily filed in the High Court in which the cause of action arose and when such decisions are made in its appellate capacity then appeals against it are ordinarily filed in the High Court having territorial jurisdiction over the territories in which the applicant ordinarily resides and carries on business and therefore, the Honourable Supreme Court has held that if the Lahore High Court had the jurisdiction to decide the appeal then it is not possible to sustain its judgment that it does not have jurisdiction to entertain constitutional petition in case of such petitioner/litigant. In the petition before us the appeal/reference application against the Income Tax Appellate Tribunal Lahore Bench could only have been filed in the Lahore High Court and not in this Court and therefore, the judgment of the Honourable Supreme Court in the case of Al-Iblagh case does not apply to this case.
The learned counsel also relied on the judgment of the Honourable Supreme Court in the case of Flying Kraft Papers Mills quoted supra wherein the Honourable Supreme Court had distinguished the case of Sandalbar Enterprises quoted supra and held that since not only the orders of Collector of Central and Excise Peshawar was in question in the petition but relief was also claimed against the Central Board of Revenue which functions at Islamabad, the Peshawar High Court and Rawalpindi Bench of Lahore had concurrent jurisdiction in the matter. The Honourable Supreme Court in this case gave the following reasons for its above judgments:--
"(5)----Mr. Pirzada in support of his contention referred to Section 21, C.P.C. which requires that objection as to the place of suing must be raised at the earliest opportunity and unless such objection has been raised before the Court of first instance, the revisional or Appellate Court will not entertain such objection except in cases where it resulted in the failure of justice. Mr. Pirzada further contended that in the present case not only the order of Collector of Customs and Central Excise was in question but relief is also claimed against the Central Board of Revenue, which functions at Islamabad and, therefore, the High Court at Peshawar and Rawalpindi Bench of Lahore High Court had concurrent jurisdiction in the matter. The contention of Mr. Pirzada, the learned counsel for the appellants is not without force."
"(6)----In the writ petition filed after post-remand proceedings, not only the order of Collector was challenged but relief was also claimed against C.B.R. and as such it could not be argued that in the circumstances, the Rawalpindi bench of Lahore High Court had no territorial jurisdiction in the matter. We have examined the facts of Sandalbar Enterprises (Pvt.) Ltd. v. C.B.R., (supra), cited by the learned Deputy Attorney-General and are of the view that the facts of that case were quite distinguishable from the facts of the present case."
We are of the considered opinion that even this case does not help the petitioner because the reasons prevailing with the Honourable Supreme Court for holding that the Peshawar High Court and the Rawalpindi Bench of the Lahore High Court had concurrent jurisdiction were two fold (i) that not only the action of the Collector Customs at Peshawar was challenged but also the various notifications issued by the C.B.R. which had its office in Islamabad were challenged and (ii) that the challenge to the jurisdiction of the Rawalpindi Bench was not made in the initial proceedings but on the proceedings against the remand order and the Honourable Supreme Court was of the view that if the jurisdiction is not challenged at the earliest moment it cannot be challenged subsequently. In the present case it has not been shown to us what partial cause of action arose at Karachi and we have already noted that the jurisdiction of this Court was challenged at the start of the proceedings and, therefore, this judgment will not apply to the case before us.
The learned counsel also relied on the judgment of the Honourable Supreme Court in the case of Trading Corporation of Pakistan quoted supra. In this case also the Honourable Supreme Court has held that the relief was claimed not only against the cause of action which had arisen at Karachi against the fully owned Government corporation but relief was also claimed against the Government of Pakistan at Islamabad and therefore both the Courts at Karachi as well as Rawalpindi had jurisdiction in the matter and remedy could be resorted in either of them. In this case the Honourable Supreme Court held as under :--
"It is pertinent to note that petitioner in this petition has on its own mentioned that it is a limited company duly incorporated under the Companies Ordinance and operates from Karachi and undertakes import and export of various items to maintain the stability of the prices in the market on the instructions of Government of Pakistan. It is further confirmed from the above facts that the tenders were called on 5-5-1996 on the decision of Economic Coordination Committee of the Cabinet at Islamabad. Not only this but after calling the revised tenders the revised offers of eight participants in number were opened on 8-5-1996 in the petitioner's Board room in presence of the tenderers and the details of offer so received were sent to the kitchen items review committee in the Planning and Development Division, Ministry of Commerce, Islamabad where after review offer of the Respondent No. 1 was found the lowest and was accepted. As stated in the facts above the offer of the respondent was turned down as Government of India through Indian Sugar and General Industries Export Corporation Limited entered into contact of export of sugar with Secretary to the Government of Pakistan, Ministry of Commerce, Islamabad. Rejection of the representation further confirms that Respondent No. 2 has the dominion over the matters of petitioner. Moreover, the decision of the writ petition of High Court wherein the point of jurisdiction was raised attended finality as leave to appeal was refused to the petitioner by this Court being time-barred. The learned Single Judge of the High Court in chambers has elaborately dealt with this aspect of the matter in the judgment in writ petition and has held that the Respondent No. 1 having cause of action against Federal Government could bring the Constitutional Petition either at Karachi or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the objection of maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed against the petitioner but was also claimed against the Respondent No. 2, the Ministry of Commerce, Government of Pakistan at Islamabad as such the petition was competently filed."
From a perusal of the above paragraph it is seen that again the facts of this case have no nexus with the facts of the case in the present petition.
We have carefully perused the judgment of the Honourable Supreme Court in the case of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334). In this case, the Honourable Supreme Court after distinguishing the facts of Al-Iblagh case quoted supra observed as under:--
"(8) We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs Official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused."
Article 199. Jurisdiction of High Court:--
(i) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.
(a) on the application of any aggrieved party, make an order--
(i) direct a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part-II.
"(13) A careful perusal of Article 199 of the Constitution would show that there is a two-fold limitation on the jurisdiction of the High Court under Article 199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be exercised by the High Court throughout the territories in relation to which the High Court exercises jurisdiction. This means that the writ issued by the High Court cannot run beyond the territories subject to its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued, must be within the territories subject to the jurisdiction of the High Court which means that such person or authority must be amenable to the jurisdiction of the High Court either by residence or location within those territories."
We fully agree with the reasoning of the learned Peshawar High Court and are of the opinion that both these limitations are present in this constitutional petition because the writ of mandamus, which could have been issued by us cannot run beyond the territories which are subject to the jurisdiction of this Court and the person or authority i.e. the Income Tax Tribunal Lahore Bench does not function within the territories subject to the jurisdiction of this Court and even the petitioner and the person and the Members of the Income Tax Tribunal Lahore or the Taxation Officer based at Lahore do not function within the territorial jurisdiction of this Court and are not amenable to the jurisdiction of this Court. We are, therefore, of the considered opinion that this Court does not have the jurisdiction to issue a writ of mandamus in this constitutional petition.
The above are the reasons in support of the short order passed by us in Court after hearing the learned counsel on 13-11-2008 by which we had held that this Court do not have the jurisdiction to entertain this constitutional petition and directed the office to return the petition to the petitioner to file before the appropriate Court having jurisdiction in this matter.
(R.A.) Petition refused.
PLJ 2009 Karachi 183 (FB)
Present: Munib Ahmad Khan, Ali Sain Dino Metlo and
Nadeem Azhar Siddiqi, JJ.
Syed TAHIR HUSSAIN MAHMOODI and 7 others--Plaintiffs
versus
TAYYAB and 9 others--Defendants
Suit No. 1385 of 2006, decided on 24.12.2008.
Judicial Bias--
----Administration of justice--Test--Principles--Judge is not disqualified to hear a case simply because he had expressed his opinion on similar questions of fact and law while deciding a similar case earlier--Question of--Whether the test be real danger of biasor real possibility of bias' orreasonable apprehension of bias', as had been applied at different times, and whether the test be applied by the arbiter himself, or by an informed and fair-minded observer in Court or by a casual `observer, the question is whether a Judge, who has expressed his opinion on a question of fact or of law while deciding a case, will lose open-mindedness and objective impartiality and will be disqualified to decide any other case of similar nature--If the proposition is accepted, then a Judge can decide only one case of a kind in his life--He cannot decide second case of similar nature at any subsequent time--Necessary consequence will be that for every second case of similar nature, a separate Judge will have to be appointed, which will be an impossibility in a litigious society of the present day. [P. 187] A & B
Administration of Justice--
----The law of precedent does not bind a Judge to repeat his mistakes--A Judge, who is supposed to be open to advice, can always be persuaded to reconsider his previous decisions in the light of correct position of law and dictates of justice--Instances are not lacking where the superior Courts, including the Supreme Court, have revisited and changed their previous decisions--If the Judge had not considered the law laid down by the Supreme Court at the time of passing the previous order, he can very well be persuaded to consider the same at the time of deciding the application in the present case and his previous decision, if per incurium, will not be binding upon him.
[P. 188] C
Bias--
----Open mindedness does not mean empty mind--A person cannot be free from the influences of the society in which he lives. [P. 188] D
Era of Sspecialization--
----A Judge, who has gained experience of deciding a particular category of cases, can understand and deal with the other cases of same category more efficiently--It will be better if his experience is utilized in deciding cases of similar nature instead of preventing him from dealing with such cases and thereby wasting his expertise--By this is not suggested that cases should be decided only on the basis of expertise of a Judge unshared with the bar as that may amount to moving the doing of justice from the Court to the Chamber--A Judge should be more advised than learned. [P. 189] E
Judge--
----A Judge is not disqualified to hear a case simply because he has expressed his opinion on similar questions of fact and law while deciding a similar case earlier. [Pp. 189 & 190] F
(1999) ALL ER (HL) 577 distinguished.
2008 YLR 738; (2001) UKHL 67; Rt. JP Linahan, Inc. (138 F.20.650); Bias on Appeal published in Public Law 2005, p. 227 and
(2004 UKHL 34) ref.
Mr. Naeem-ur-Rehman and Khursheed Jawed, Advocates for Plaintiffs.
Mr. Rasheed A. Rizvi and S. Haider Imam Rizvi, Advocates for Defendants Nos. 1 to 4.
Mr. S. Afsar Ali Abidi, Advocate for Defendant No. 3.
Mr. Tahawwar Ali Khan and Muhammad Iqbal Memon, Advocate for Defendant No. 8.
Date of hearing: 17.9.2008.
Judgment
Ali Sain Dino Metlo, J.--The question referred to the Full Bench is:
"Whether learned single Judge is debarred under law, equity or standard of propriety from hearing the case involving factual or legal controversy on which the same learned Judge has already expressed an opinion in some other case before?"
The background of the reference is that on 21-10-2006, Plaintiff Nos. 1 to 7, residents of Block 2, PECHS, Karachi and Plaintiff No. 8, a non-Governmental organization (NGO) interested in maintaining and improving environment of Karachi, filed a Suit, Bearing No. 1385 of 2006, re: Syed Tahir Hussain Mehmoodi and others versus Tayyab and others, contending that Block 2, of PECHS was a residential area in which construction of only ground plus one storey building was permissible but Respondents 1 to 4, in collusion with rest of the respondents, were bent upon to construct a ground plus seven storeys building to the detriment of their easement rights. They sought declaration to the effect that construction of such multi-storeyed building was illegal and prayed for the cancellation of sanction/approval of plan for the multi-storeyed building. They also prayed for injunction to restrain Respondents 1 to 4 from raising construction beyond ground plus one storey and mandatory injunction to direct them to demolish the construction which they had already made.
Along with the plaint, an application, bearing C.M.A. No. 7842 of 2006, for temporary injunction was also moved on which ad interim injunction restraining the defendants from raising construction beyond first floor was granted on the same day i.e. 21-10-2006. After a number of adjournments and extensions of the interim order, extending over a period of more than one and half years, learned counsel for the plaintiff, on 19-5-2008, asked His Lordship, sitting on original side, before whom the suit had been fixed for more than a dozen times during which he had also argued the matter partly, to recuse himself on the ground that His Lordship, by an order, passed on 1-2-2008, in two other similar suits, Bearing No. 465 of 2006, re: Mrs. ALBA D'SA and others versus Mrs. Naheed Rabani and others and No. 724 of 2006, re: Tufail Suteria and another versus Tariq Mumtaz and others, filed by him, had refused to grant injunction 2008 YLR 738 Karachi.
Learned counsel for the plaintiffs, at the very outset, stated that he had no doubt about any personal bias on the part of His Lordship and did not dispute his personal honour and judicial integrity. According to him, he wanted His Lordship to recuse only because he, having already expressed his opinion on issues of fact and law similar to those involved in the present suit, may not be able to decide the matter with open mind and objective impartiality.
Referring to the observations made in the case of Porter and another versus Magill, reported in (2001) UKHL 67, learned counsel for the plaintiff argued that for the purpose of determining apparent bias on the part of a tribunal, the Court should no longer ask whether in the facts and circumstances of a case there was a real danger of bias. Rather, the test, per the learned counsel, was whether the relevant circumstances, as ascertained by the Court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased. According to the learned counsel, in view of the opinion already expressed by his Lordship in the order passed in Suit Nos. 465 of 2006 and 724 of 2006, dismissal of plaintiff's application for temporary injunction (CM.A. No. 7842 of 2006) was a foregone conclusion and, therefore, per the learned counsel, a fair-minded and informed observer can very well conclude that there was a real possibility that His Lordship had been prejudiced.
Whether the test be real danger of bias' orreal possibility of bias' or `reasonable apprehension of bias', as had been applied at different times, and whether the test be applied by the arbiter himself, or by an informed and fair-minded observer in Court or by a casual observer, the question is whether a Judge, who has expressed his opinion on a question of fact or of law while deciding a case, will lose open-mindedness and objective impartiality and will be disqualified to decide any other case of similar nature.
If the proposition is accepted, then a Judge can decide only one case of a kind in his life. He cannot decide second case of similar nature at any subsequent time. The necessary consequence will be that for every second case of similar nature, a separate Judge will have to be appointed, which will be an impossibility in a litigious society of the present day.
In Porter's case, heavily relied upon by the learned counsel for the plaintiffs, in which impartiality of the auditor and fairness of his investigation were seriously challenged, it was held that the auditor's certificate, issued under Section 20 of the Local Government Finance Act, 1982, regarding the loss caused to the Westminster City Council by its councillors and their liability to make the loss good, was not liable to be quashed on the ground that the auditor, during the course of inquiry, had expressed his opinion against the councillors in a press conference, which had been given wide publicity in print and electronic media.
The main thrust of arguments of the learned counsel for the plaintiffs was that in the previous case His Lordship, in disregard of the law laid down by the Supreme Court, had erred in refusing to grant temporary injunction and thereby allowing the construction of the buildings beyond ground plus one storey and, therefore, per learned counsel, His Lordship should not be allowed to repeat the error. In this regard, it may be observed that the intra-Court appeal, bearing HCA No. 25 of 2008, which the learned counsel had filed against the previous order of His Lordship, was disposed of on 15-2-2008, by a consent arrangement, under which construction of the multi-storyed building was allowed to be carried out according to the sanctioned plan at the risk and cost of the owners/builders. After the disposal of appeal by such consent arrangement, there was no justification for agitating the matter further. Moreover, we are not sitting in appeal against the previous order of His Lordship, nor the parties of the previous case are before us.
As regards the question of repetition of error is concerned, there is always room for correction. The law of precedent does not bind a Judge to repeat his mistakes. A Judge, who is supposed to be open to advice, can always be persuaded to reconsider his previous decisions in the light of correct position of law and dictates of justice. Instances are not lacking where the superior Courts, including the Supreme Court, have revisited and changed their previous decisions. If His Lordship had not considered the law laid down by the Supreme Court at the time of passing the previous order, he can very well be persuaded to consider the same at the time of deciding the application in the present case and his previous decision, if per incurium, will not be binding upon him.
The precedent of R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex-parte Pinochet Ugarte (No. 2), reported in (1999) All. ER (HL), cited by the leading counsel of the plaintiffs, in which a Law Lord was held to be disqualified from hearing an extradition appeal due to his previous association with a charity (having served as its director) closely associated with a party to the extradition appeal, has no relevance to the present case, as no such association was attributed to his Lordship.
Even otherwise, open mind does not mean empty mind. A person cannot be free from the influences of the society in which he lives. His Lordship Jerome Frank of US Second Circuit Court of Appeals, in Rt. JP Linahan, Inc. (138 F.20.650), quoted by Sir Louis Blom-Cooper, in his comments on `Bias on Appeal', published in Public Law 2005, p.227 observed:
"The human mind, even at infancy, is no blank piece of paper. We are born with predispositions, and the process of education, formal or informal, creates attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices. Without acquired slants and preconceptions, life could not go on. Every habit constitutes a prejudgment; were those prejudgments, which we call habits, absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem, he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. To live is to have a vocation, and to have a scheme of values is to have a point of view, and to have a point of view is to have a prejudice or bias."
"10. Rarely, if ever, in the absence of injudicious or intemperate behaviour, can a judge's previous activity, as such, gives rise to an appearance of bias. Over a time, of course, judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular Judge is likely to react to a given problem. Since Judges are not automata this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindedness; and there are few experienced Judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice as the case shows, problems of apparent bias do not arise where a Judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system, but problems are liable to arise where the exercise of judicial functions is preceded by the exercise of legislative functions."
It is the era of specialization. A Judge, who has gained experience of deciding a particular category of cases, can understand and deal with the other cases of same category more efficiently. It will be better if his experience is utilized in deciding cases of similar nature instead of preventing him from dealing with such cases and thereby wasting his expertise. By this, we do not suggest that cases should be decided only on the basis of expertise of a Judge unshared with the bar as that may amount to moving the doing of justice from the Court to the Chamber. A judge should be more advised than learned.
For the above reasons, we are of the considered opinion that a judge is not disqualified to hear a case simply because he had expressed his opinion on similar questions of fact and law while deciding a similar case earlier. After examining the question referred to us from all angles, it is answered in negative.
(R.A.) Reference answered in negative.
PLJ 2009 Karachi 190
Present: Sajjad Ali Shah, J.
Mian SHIRAZ ARSHAD--Petitioner
versus
Mst. TAZEEN ARIF ALI KHAN and others--Respondents
C.M.As. Nos. 1634 and 1635 of 2008 in Const. P. No. S-222 of 2008, decided on 27.10.2008.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, (XXXV of 1964), S. 25-A--Constitutional petition--Family cases pending--Application for transferring such cases to another Court by levelling allegations against Judge, Family Court--Transfer of such cases by District Judge to another Family Court through an administrative order--Validity--District Judge had no such powers, which High Court had under S.25-A of West Pakistan Family Courts Act, 1964 to transfer any case from one Family Court to another Family Court in same district or other District--District Judge should have either returned such application to respondent for want of jurisdiction or referred matter to High Court after calling comments from concerned Family Court--District Judge had not adopted any of such two courses, but had misused his administrative powers by circumventing specific provision of S.25-A of West Pakistan Family Courts Act, 1964--Misuse of administrative powers in such manner would shake confidence of litigants upon Court and fair administration of justice besides giving an impression of its partiality--High Court with consent of parties transferred such cases to another Family Court.
[P. 192] A & C
Administration of justice--
----Administrative powers of Court, exercise of--Scope--Exercise of such powers by circumventing specific provision of law would shake confidence of litigant upon Court and fair administration of justice besides giving an impression of its partiality--High Court emphasized on avoidance of such practice. [Pp. 192 & 193] B
Mr. Ali Mumtaz Shaikh, Advocate for Petitioner.
Mr. Iftikhar Jawed Kazi, Advocate for Respondents Nos. 1 and 2.
Mr. Asadullah Baloch, Advocate for Respondents Nos. 3 and 4.
Date of hearing: 27.10.2008.
Order
Sajjad Ali Shah, J.--Through this petition, the petitioner has called in question order dated 1st April, 2008 whereby the District Judge Karachi South has transferred Family Suit No. 508 of 2007, filed by Respondent No. 1 against the petitioner, and G&W Case No. 263/2007, filed by the petitioner against Respondent No. 1, to the Court of IIIrd Civil Judge & Judicial Magistrate Karachi South.
Learned counsel for the petitioner has contended that during the pendency of G&W Case bearing No. 263/2007 before VIIIth Civil Judge and Judicial Magistrate Karachi South various orders for handing over the custody of the minors to the petitioner on special occasions were passed but were never complied with. Likewise, on 19th March, 2008 an order was passed whereby Respondent No. 1 was directed to hand over the custody of the minors to the petitioner for three hours on 23rd March, 2008 for celebration of their birthday. It is contended that Respondent No. 1 again did not comply with the order leading to filing of application under Section 100, Cr.P.C, and Section 45 of the Guardians and Wards Act. The Respondent No. 1, thereafter, instead of contesting the matter on merits moved transfer application before the District Judge levelling various allegations against VIIth Civil Judge and Judicial Magistrate Karachi South. The District Judge, despite full knowledge that in the circumstances he had no judicial power to transfer a family case from one Court to another entertained the application and transferred the case while exercising administrative powers. Per learned counsel there was no occasion for the District Judge to administratively transfer the said case as neither the Court of VIII Civil Judge & Judicial Magistrate was vacant nor the presiding officer was on leave for a period of more than 30 days. Learned counsel, by referring to the provisions of Section 25-A of the Family Courts Act, 1964, hereinafter referred to as the said Act, has contended that exclusive jurisdiction is conferred upon this Court to transfer a family case from one Court to another. The District Judge, in the circumstances, could not have transferred the said case on administrative ground and therefore the order is liable to be set aside.
On the other hand, learned counsel, appearing for the respondents Nos. 1 & 2, initially tried to contend that since the impugned order was passed on the administrative side, therefore, the petitioner has no locus standi to challenge it as he could not be termed as an aggrieved person, therefore the instant petition is not maintainable. However, the learned counsel frankly conceded that notwithstanding as to whether the petitioner is an aggrieved person or not, this Court, under its supervisory jurisdiction can look into the legality of the order impugned. Mr. Kazi further concerned that though under sub-clause 2-A of Section 25-A of the said Act. The District Judge has the power to transfer a case of like nature or proceedings from one Family Court to another only when a Family Court remains Vacant or the Presiding Officers remains on leave or absent for any reasons, except due to vacations, fore more than 30 days and since none of the grounds were attracted in the instant cases, therefore, the District Judge, on the administrative side, had no power to transfer this case to any other Family Judge.
I have heard the learned counsel for the respective parties and perused the record.
A perusal of
Section 25-A of the said Actreveals that it is the High Court which has the power to transfer any case or proceedings under the said Act' from one Family
Court to another Family Court in the same District or from one Family Court of one District to Family Court of another District. The law does not empower the
District Judge to exercise such powers. It appears that the District Judge in order to circumvent the provisions of Section 25-A of thesaid Act' resorted to the administrative powers for transferring the case from one Family Court to another. It is an admitted position that in the instant case, a grievance petition in the shape of Transfer Application was moved by the Respondent No. 1 before the District Judge levelling various allegations against the Family
Court seized with the matters. In the circumstances, two courses were open to the District Judge (i) to have returned the application for want of jurisdiction; (ii) after calling the comments from the concerned Family Court should have referred the matter to this Court. However, the District Judge instead of choosing one of the aforesaid courses by sheer misuse of administrative powers transferred the cases to another Family Court. In my opinion, use of administrative power in the cases of like nature by circumventing specific provision of law shakes the confidence of the litigant upon the Court and fair administration of justice beside gives an impression of impartiality, therefore such practice should be avoided.
In the circumstances and for the reasons stated above order dated 1st April, 2008, is set aside. However, since both the parties are levelling allegations against Family Courts, therefore as suggested by the learned counsel for the respective parties, both the cases viz. Family Suit No. 508/2007 and G&W Case No. 263 of 2007, presently pending before the Court of IIIrd Civil Judge & Judicial Magistrate Karachi South, are withdrawn from his file and transferred to the Court of IVth Civil Judge & Judicial Magistrate Karachi South. Both the counsel undertake to appear before IVth Civil Judge & Judicial Magistrate Karachi South on 8th November, 2008. The Civil Judge is directed to decide both the cases within three months and report compliance to this Court through MIT.
With the above observations, the petition along with pending applications is disposed of.
(R.A.) Suit transferred.
PLJ 2009 Karachi 193
Present: Gulzar Ahmed, J.
Syed MUHAMMAD KHALID--Plaintiff
versus
PROVINCE OF SINDH through Secretary Land, Karachi
and 2 others--Defendants
Suit No. 87 of 2005, decided on 5.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Maintainability of suit, question of--Material to be considered by Court--Scope--Court would examine plaint to find out whether facts stated therein provided cause of action to plaintiff and suit could be maintained on basis thereof--Plaintiff had to sustain its claim on strength of plaint and documents filed therewith, but in order to meet ends of justice, admissions made in written statement could be referred to in discussion.
[Pp. 195 & 196] A
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Civil Procedure Code, (V of 1908), O.VII, R. 11--Suit for declaration and injunction--Lease-deed for 99 years executed in favour of plaintiff regarding suit plot on basis of Deh Form-VII--Effect--Lessor in order to make a lease or sub-lease of 99 years must have with him similar right of lease or perpetual ownership to transfer land by lease or sub-lease to lessee--Such Form would not create right of ownership or any other right in favour of its alleged owner--Lease Deed of 99 years executed on basis of such Form would not confer any right in favour of plaintiff-lease as none was possessed by its alleged owner-lessor--Plaintiff had failed to make out a case of ownership of suit plot on basis of such Form to substantiate his cause of action--Plaint was rejected. [Pp. 196 & 197] B & C
PLD 1998 Lah. 233; 1987 MLD 305; 2003 YLR 233; AIR 1960 SC 1373; PLD 1964 SC 106; PLD 2004 Kar. 269; 2003 YLR 1491; PLD 1971 SC 114; 2002 CLC 1464; PLD 1967 Dacca 145; PLD 1979 SC 890; 2005 MLD 13; 2005 MLD 986; 1982 CLC 473; 1993 MLD 2464; 2000 CLC 623; PLD 1975 Kar. 979 and 2003 CLC 1498 ref.
2005 CLC 1937 rel.
Rana Muhammad Khan, Advocate for Plaintiff.
Mr. Nafees Ahmed Usmani, A.A.-G. Sindh.
Mr. Ahmed Pirzada, Advocate for Defendant No. 1.
Mr. Tahwar Ali Khan, Advocate for Defendants Nos. 2 and 3.
Date of hearing: 5.11.2008.
Order
In terms of the order dated 15-10-2008, the matter was fixed today for hearing arguments of the Advocates of the parties on the maintainability of the suit. Mr. Rana Muhammad Khan, learned counsel for the plaintiff has argued the matter at substantial length. Mr. Nafees Ahmed Usmani, A.A-G. Sindh stated that as the matter relates to the Land Utilization Department. Mr. Ahmed Pirzada, who is its standing counsel will argue the matter. Mr. Tahwar Ali Khan as well as Mr. Ahmed Pirzada Advocates argued the matter. I have considered the submission made by the learned counsel.
The question of maintainability of the suit arose from the fact that plaintiff claims himself to be the owner of 10 plots bearing Nos.3, 4, 5, 6, 7, 29, 30, 31, 32 and 33 each measuring 150 Sq. Yards in Survey No. 189 Deh Drigh, Tappo Drigh Road in project Gosha-e-Affiat. Drigh Colony, Karachi, by virtue of ten separate lease deeds for 99 years each all dated 27-5-1989, which are said to have been executed and registered by one Haji Muhammad Umar Memon in favour of the plaintiff on the basis of Deh Form-VII. The question is what right is conferred by Deh Form-VII and whether it could be transferred by 99 years lease in favour of the plaintiff.
Learned counsel for the plaintiff took me through Deh-Form-VII, annexure P/25 and stated that this document shows that lessor Haji Muhammad Umar Memon was the owner of the plots and was competent to sign and execute the lease deed for 99 years in favour of the plaintiff. He stated that the Mukhtiarkar (Revenue) Shah Faisal Town, Karachi, in his report, dated 8-5-2006 submitted in this suit, has admitted the title of Haji Muhammad Umar and also referred to its annexure and that this fact is also admitted in the written statement of Defendants Nos. 2 and 3. He further argued that annexure P/27, which is letter dated 12-2-1974 of KDA, addressed to Messrs. Tehseen Construction Company, has allowed subdivision of plots of Survey No. 189 and that the plots were being allotted by the said company. He argued that the matter requires evidence as disputed facts are involved and the plaint is not liable to be rejected. He argued that in the case of lease the title of the lessor is not material and in this respect made reference to Section 105 of Transfer of Property Act and further contended that in terms of Section 42 of Specific Relief Act, a suit can be filed even if plaintiff has no perfect right and title to the suit property. He contended that as the plaintiff has a lease of 99 years, he is entitled to use the plots without interference by any one and that under Sections 2 & 4 of West Pakistan Urban Immoveable Property Tax Act, the lessee is defined as a perpetual owner. He argued that record of right is assumed to be true and that the matter needs to be decided on merits. In support of his submissions he has relied upon PLD 1998 Lahore 233, 1987 MLD 305, 2003 YLR 233, AIR 1960 SC 1373, PLD 1964 SC 106, PLD 2004 Karachi 269, 2003 YLR 1491, PLD 1971 SC 114, 2002 CLC 1464, PLD 1967 DACCA 145, PLD 1979 SC 890, 2005 MLD 13, 2005 MLD 986, 1982 CLC 473, 1993 MLD 2464, 2000 CLC 623, PLD 1975 Karachi 979 and 2003 CLC 1498.
Mr. Ahmed Pirzada learned counsel for Defendant No. 1 contended that plaintiff has no right to maintain the present suit as Haji Muhammad Umar Memon is nowhere shown to be the owner of the suit plots and Deh Form-VII did not confer right to execute lease of 99 years as entries reflected in form are merely for revenue purpose and is not a title document. He stated that whole land of Survey No. 189 was acquired by Government and that no entry from Ghat Wadh Register nor from Takrari Registrar nor of Foti Khata has been filed and the leases of 99 years relied upon by the plaintiff are all fabricated documents.
Mr. Tahwar Ali Khan, learned counsel for Defendant Nos.2 and 3 contended that the plaintiff is claiming land, which is a Green Belt and that such aspect is mentioned in para. 7 of the plaint which describes cause of action and that Deh Form VII does not create right to grant lease of 99 years.
I have considered the submission made by learned counsel for the parties and have gone through the relevant record. For considering the question of the maintainability of the suit in terms of Order VII, Rule 11, C.P.C, primarily, Court is required to examine the contents of the plaint to find out that the facts stated therein taken in totality, provides a cause of action to the plaintiff on the basis of which the suit can be maintained. Plaintiff counsel during the course of his arguments has contended that plaintiff's right to the property and to maintain the suit may be determined also by looking into the admission that defendants have made in their reply to the plaint. Though the law does not mandate such exercise and the plaintiff has to sustain its claim on the strength of its own plaint and documents filed with it, however as the learned counsel has stated that the replies of the defendants contain admissions, therefore in order to meet the ends of justice such admissions will be referred to in the discussion.
As regards the first limb of the question as to what right is conferred by Deh Form-VII, incidentally, learned counsel for the plaintiff was unable to make any submission nor cited any law except that he merely stated that right of the ownership of lessor is presumed.
In the first place the Deh Form-VII as is filed by the plaintiff needs a closure examination. Plaintiff counsel during his arguments has heavily relied upon purported admission made in the report of Mukhtarkar as well as the written statement of Defendant Nos.2 & 3. In the report of Mukhtarkar so also in the written statements of Defendants Nos.2 & 3. It is mentioned that according to Entry No. 1237 in VF Form-VII Survey No. 189 was in the name of Haji Muhammad Umar. The annexure to the report of Mukhtarkar shows Entry No. 1237 in the name of Umar son of Khair Muhammad. As against this, the photocopy of Deh Form-VII filed by the plaintiff as annexure P/25 shows Entry Nos.82 and 83 in the name of Umar Khair Muhammad Umar son of Khair Muhammad respectively. In Entry No. 83 reference to Survey No. 189 has been made. Learned counsel for the plaintiff was asked to explain this inconsistency in the entry number, he was unable to give any reply to it. Therefore, so far, the admission is concerned, it is of no help to the plaintiff as it relates to Entry No. 1237 and not those mentioned Deh Form-VII relied by the plaintiff. Column No. 2 of Deh Form-VII requires mentioning of date of entry which is left blank. Column No. 3 requires mentioning of name of transferor which is left blank. Column 5 requires mentioning of nature of holding in which against Entry No. 82 it is mentioned that on inheritance after death of Khair Muhammad. Mst. Sakina Howji got it as "BAKHSHISH" and as against Entry No. 83 it is mentioned that through inheritance on death of Khair Muhammad to legal heir and share from Sakina Howji as "BAKHSHISH". Column 7 contains certification by Mukhtiarkar Karachi (East) dated 25-7-1975. The document Deh Form-VII in the first place is in conflict as regards the entry number mentioned in the replies of the defendants. Secondly, the material facts as to the date of entry, the name of transferor have been left blank and nature of holding has not been described. The certification by the Mukhtarkar in Column No. 7 is apparently not true as on 25-7-1975 there was no existence of Karachi (East) as District (East) of Karachi was created in the year 1985. The other major aspect is that except for Deh Form-VII no other independent document has been filed by plaintiff to show ownership of the plots in the name of the lessor. Learned counsel for the plaintiff categorically stated that plaintiff has no other document to support its claim in the suit except Deh Form-VII and lease deeds filed with the plaint. In the case of Bahadur Khan v. Qabool Ahmed (2005 CLC 1937) it was observed that "Right of ownership of any property depends entirely on the title i.e. source of the acquisition of the right while entry in the Revenue Record is not the conclusive evidence of the right of ownership. It may be noted that entry in the Revenue Record can only be used for fiscal purposes and is not a title deed." As noted above. Deh Form-VII as relied upon the plaintiff does not mentioned the nature of holding of land by Umar son of Khair Muhammad. Even, it does not mention the nature of holding of deceased Khair Muhammad. This aspect of the matter is pivotal for had Umar son of Khair Muhammad been an owner, there would have been such entry in column 5 of the Form which is not there. There is no other independent document of ownership of plots by Umar son of Khair Muhammad. Deh Form-VII as it reads does not create right of ownership of plots or any other right in favour of Umar son of Khair Muhammad. In making lease or sub-lease of 99 years which is perpetual, lessor has to have with him similar right of lease or perpetual ownership to transfer it by lease or sub-lease to the lessee. Deh Form-VII does not show any right to the plots in question to be existing in favour of Umar son of Khair Muhammad or in the lessor. Therefore, the lease deeds of 99 years of the ten plots claimed in the plaint, are of no value as they will not confer any right in the plaintiff of whatsoever nature because none was possessed by the lessor.
In view of above state of things as appearing from the record, all other arguments of learned counsel for the plaintiff loose force and even do not require consideration. The case-law that has been cited by plaintiff counsel relates to arguments which needs no consideration for the reason as noted above. Plaintiff having failed to make out a case of ownership of ten plots on the basis of Deh Form-VII and lease deeds which are the only documents that have relied upon by plaintiffs to substantiate their cause of action, the plaint fails.
It may be noted that plaintiff has filed an application C.M.A. No. 9943 of 2008, which is listed for orders, seeking amendment in the plaint for adding of words "of lease hold right in perpetuity of 99 years" in prayer clause (a) of the plaint. The plaintiff otherwise in para 2 of the plaint has claimed himself to be the lawful owner of ten plots by virtue of lease hold rights of 99 years and in prayer clause (a) had sought declaration of lawful and rightful owner of ten plots. Mere omission of mentioning of the lease in the prayer clause will be of little significance as fact of lease is already mentioned in the plaint. The application looked in the context of the contents of plaint seems to be inconsequential and the same is also rejected.
After the hearing the learned counsel for the parties, by a short order dated 31-10-2008 the plaint and listed application were rejected. Above are the reasons for the said short order.
(R.A.) Plaint rejected.
PLJ 2009 Karachi 198
Present: Gulzar Ahmed, J.
AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.) LTD. and another--Plaintiffs
versus
NATIONAL CLEARING COMPANY OF PAKISTAN LTD.
and 2 others--Defendants
Suit No. 1690 of 2008, decided on 18.12.2008.
Dominus Litis--
----The principle of "dominus litis" will be applicable to a person not connected with the cause of action of the suit and who is total stranger to proceedings, but not to the person, who is directly to be affected by the proceedings of the suit. [P. ] D
AIR 1962 Patna 357; 1992 CLC 700 and [1955] 1 All. ER 698 ref.
Specific Relief Act, 1877 (I of 1877)--
----S. 39--National Clearing Company of Pakistan Regulations, 2003, Reglns. 7.4.1., 7.4.2. & 7.4.3.--Clearing Houses (Registration and Regulation) Rules, 2005, R. 12--Civil Procedure Code, (V of 1908), O.I, R. 10(2)--Suit for rescission of contract--Plaintiff being finance under such contract and member of Stock Exchange--Parties impleaded in suit as defendants being National Clearing Company, Karachi Stock Exchange and Securities and Exchange Commission of Pakistan--Application for impleading applicant as defendant in suit for having provided finance under such contract and to be affected by final decision in suit--Validity--Stock Exchange though having security and margin deposit was only facilitation agent between two participants and was not beneficiary or having any stake of its own in such transaction--Stock Exchange provided one window operation for such transaction and had to follow Regulations and terms of agreement between participants--Authorised financiers in such suit would be directly affected even though they might have recourse to security in custody of Stock Exchange--Case of applicants was that security in custody of Stock Exchange would not be sufficient to meet loss being incurred in market day to day--Applicants seemed to be connected with cause of action of suit and were not total strangers--Cause of action as claimed by plaintiff would show that applicants were necessary party to suit--Applicants were joined in such as defendants. [P. ] A, C, E & G
PLD 1994 SC 95; PLD 1975 SC 463; 2003 SCMR 965; 2007 MLD 89 and PLD 1972 Lah. 169 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R.10(2)--Addition or deletion of parties in suit--Powers of Court--Scope--Provision of Order 1, Rule 10(2) of C.P.C. deals with the matter of adding or deleting plaintiff and defendant in suit and empowers the Court with judicial discretion in this regard--Where such power may be exercised. Firstly, when Court comes to the conclusion that a party who ought to have been joined is not before it and secondly, whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. [P. ] B
Civil Procedure Code, 1908 (V of 1908)--
----O. I, Rr. 1 & 3--Plaintiff and defendant in suit, joinder of--Scope--Facts of case would be looked into along with cause of action upon which a decision could reasonably be made--Question relating to joinder of parties in the suit is always based upon peculiar facts and circumstances of each case and no specific rule as standard procedure can be applied for each case--To ascertain as to who should or should not be plaintiff and defendant in the suit, the facts of that very case have to be looked into with cause of action upon which a decision can reasonably be made in this respect. [P. ] F
Mr. Abdul Hafeez Pirzada, Munir A. Malik, Abdul Sattar Pirzada, Rana Ikramullah, Usman Hadi and Adnan Chodhary, Advocates for Plaintiffs.
Mr. Ejaz Ahmed, Advocate for Defendant No. 1.
Mr. Munib Akhtar and Rashid Anwar, Advocates for Defendant No. 2.
Mr. Makhdoom Ali Khan, for Defendant No. 3 along with Ms. Nitasha Jehangir, Dy. Director Law, SECP.
Mr. Abid S. Zuberi, along with Muhammad Umar Lakhani for Applicant/Intervenor.
Mr. Kazim Hassan, Advocate for Applicants/Intervenor.
Mr. Aamir Raza Naqvi, D.A.-G.
Date of hearing: 18.12.2008.
Order
PLJ 2009 Karachi 205
Present: Gulzar Ahmed, J.
Messrs SUNLEY DEVELOPERS PRIVATE LIMITED through Authorised Officer, Karachi--Plaintiff
versus
Messrs MUMAIR ASSOCIATES through Attorney
and others--Defendants
Suit No. 9 and C.Ms. Nos.53 and 2790 of 2008, decided on 31.12.2008.
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Civil Procedure Code, (V of 1908), O. VII, R. 11--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of contract--Limitation--Rejection of plaint--Scope--While dealing with the question of rejection of plaint under O.VII, R. 11, C.P.C. the contents of the plaint were to be assumed to be correct and same would be rejected if it was shown that the plaint on its face was barred by law of limitation--Where the plaint on its face did not show that same was barred by limitation, its rejection would not be justified. [P. 209] A
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement to sell--Rejection of plaint--Scope--All the items on which grievances had been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the defendant--Heading of the agreement though mentioned same to be an "agreement to sell" but its reading showed that it was not so but was a complete conveyance of the land by defendant to the plaintiff with giving of irrevocable general power of attorney for selling of the plots and recovery of sales proceeds and making of sub--leases in favour of prospective purchasers--Held, to the extent what was read from the agreement itself and complaints made in the plaint, there seemed to be no cause of action for filing of the suit by the plaintiff--Application for rejection of plaint was allowed. [Pp. 211 & 212] B & D
1986 SCMR 497; PLD 1987 Kar. 132; PLD 1985 SC 153; PLD 1987 Kar. 292; 2001 CLC 946 and 1988 CLC 722 ref.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement--Lease--Rejection of plaint--Scope--Agreement, though showed selling of 950 residential plots but their exact location was mentioned to be partly in specified survey numbers and as to where the remaining part of the land was situated, the agreement was altogether silent--Except for there being a covenant from the side of the defendant that it had a subsisting lease of land, no particulars or details were given about purported lease as to from whom it was obtained, what was its date, its nature, right given under it and to what specific land it related; agreement and plaint were altogether silent on this aspect of the matter--Where a document which, in the present case, was agreement to sell purported to have conveyed the land of 950 plots by the defendant to the plaintiff, it had to mention full particulars and details of the lease--Even the copy of purported lease was not attached with the plaint nor was available on record which would lead to the only inference that there was no existence of lease of the suit land--Application was allowed. [Pp. 211 & 212] C & D
Mr. Muhammad Sadiq Hidayatullah, Advocate for Plaintiff.
Mr. Nazar Akbar, Advocate for Defendant No. 1.
Nemo for Defendants Nos. 2, 3 and 5.
Date of hearing: 31.12.2008.
Order
(1) & (2) These are the two applications one is under Order XXXIX, Rule 1 & 2, C.P.C. filed by plaintiff and the other is under Order VII, Rule 11, C.P.C. filed by Defendant No. 1. The Defendant No. 1 has filed counter affidavit to the first mentioned application while the plaintiff has filed objections to the second application to which rejoinder has been filed by Defendant No. 1. Both the counsel for the parties have made extensive submissions.
Learned counsel for Defendant No. 1 has contended that no notice was given by the plaintiff to Defendant No. 1 and that the suit is time barred and even otherwise plaintiff has no cause of action for filing of the suit. In support of his submissions he has relied upon the cases reported in 1986 SCMR 497. PLD 1987 Karachi 132. PLD 1985 SC 153, PLD 1987 Karachi 292 and 2001 CLC 946.
On the other hand learned counsel for plaintiff has submitted that the plaintiff has made full payment of the consideration amount to the Defendant No. 1 and was put in possession of the property and that Defendant No. 1 was required to demolish the boundary wall and the agreement is irrevocable. He has finally contended that plaintiff's right is protected under Section 53-A Transfer of Property Act and has relied upon the case reported in 1988 CLC 722.
I have considered the submissions made by learned counsel and have gone through the record.
The suit has been filed for specific performance of contract, declaration and injunction. It is alleged in the plaint that plaintiff has entered into an Agreement to Sell dated 30-4-1998 with the Defendant No. 1 for purchase from Defendant No. 1 housing scheme by the name of Gulshan-e-Rumi upon besides other survey numbers including Survey Nos. 108, 109 and 110 situated in Deh Safooran, Tapo Gadap, Taluka & District East, Karachi on which 950 residential plots of 120 and 133 square yards have to be constructed and the plaintiff has agreed to purchase these plots. The consideration of Rs.750 per square yard including all outer and internal development charges together will all rights, title and interest with full vacant possession and free from encumbrances, charges and disputes. It is alleged that on the signing of the Agreement Rs. 100,00,000 was paid and further Rs.50,00,000 was also paid as per the schedule of the Agreement. It is alleged that on signing of the sale agreement and payment of Rs. 150,00,000 the defendant handed over actual vacant possession of the property to the plaintiff. Plaintiff got the lay out plan approved for 685 units/bungalows and obtained N.O.C. for sale of 218 units/bungalow, through its sister concern M/s. Sobia Enterprises from the Cantonment Board. The construction and development work was stopped because of the notice of Defendant No. 4 namely Cantonment Board who asked for obtaining of N.O.C. from Civil Aviation Authority. It is alleged that as per agreement the Defendant No. 1 had to obtain N.O.C. from competent authority and that the defendant failed to get demarcation of boundary wall of the said housing scheme. Defendant also failed to make internal development as per agreement of laying carpeting of roads and separate approval of the residential plots. It is alleged that plaintiff pressed the Defendant No. 1 to honour the terms of the agreement who kept the plaintiff on false promises and ultimately in March 2007 defendant failed to provide all the required N.O.C. and approval of residential status of housing scheme and construction and carpeting of road was not done. It is alleged that the defendant has threatened to dispossess the plaintiff and refused to honour the terms of the agreement. It is alleged that the cause of action for the suit accrued to the plaintiff in March 1997 when the plaintiff paid and defendant received a sum of Rs. 100,00,000 and handed over the vacant possession of the suit property and thereafter when plaintiff paid further sum of Rs.50,00,000 to the defendants and ultimately in March 2007 when the defendant failed to honour the commitment made in the agreement.
So far the first submission of the learned counsel for the plaintiff that no notice was given by the plaintiff to the defendant for seeking compliance of the said agreement and to show its own willingness to perform the agreement, it may be noted that no specific provisions of law was cited by the learned counsel to show that giving of a notice for filing of suit for specific performance is mandatory and without it the suit will not be maintainable. It appears to me that there is no legal requirement for giving of a notice before filing of a suit for specific performance of contract but prudency requires that giving of notice be adverted to before entering upon costly and time consuming affair of litigation. The exchange of notice and reply, in many cases may bring parties to some agreeable solution of the dispute or at least narrow down contentious issues between them and also crystallize their respective stand on point or points on which disagreement exist. This facilitates Court proceeding as it will only address to the narrowed controversy and answer to it. Since no specific law has been cited for giving of a notice before filing of the suit for specific performance of contract, therefore, this question cannot be considered for rejection of the plaint under Order VII, Rule 11, C.P.C.
As regards the second submission of the learned counsel that the suit is time barred, Defendant No. 1 counsel has contended that even if the plea of the plaintiff that it has paid the amount of Rs. 15,000,000 is accepted in accordance with the schedule provided in clause (2) of the agreement still the suit will be time barred, as it has not been filed within 3 years from the last payment shown in the schedule. The schedule shows that a sum of Rs. 10,000,000 was paid on the date of agreement i.e. 30-4-1998, Rs.2,500,000 within 30 days of the signing of the agreement and further Rs.2,500,000 on expiry of 60 days from the date of agreement. Thus the last payment would be around 29-6-1998.
Article 113 of the Schedule to the Limitation Act, 1908 provides limitation period for filing of suit for specific performance of contract that of 3 years from the date fixed for the performance and if no such date is fixed then from the date the plaintiff has notice that performance is refused. Admittedly, no date is fixed in the agreement for the performance, therefore, the second part of the provision will apply where limitation has to run from the date of refusal to perform the agreement. Plaintiff in the plaint has pleaded that refusal to perform the agreement has been made by the Defendant No. 1 in March 2007. The Defendant No. 1 has not shown any document that there was refusal on its part to perform the agreement prior to the date which is alleged in the plaint. In the absence of any such prior refusal, the question as to whether there was a refusal to perform the agreement by the Defendant No. 1 in March 2007 is a question of fact which can only be determined after evidence is recorded by the parties. After all while dealing with the question of rejection of plaint under Order VII, Rule 11, C.P.C, the contents of plaint are assumed to be correct and it will be rejected if it is shown that the plaint on its face is barred by the law of limitation. The plaint, on its face does not show that it is barred by limitation law.
As regards the last arguments of the learned counsel for the Defendant No. 1 that the plaintiff has no cause of action for the suit, it may be noted that the Agreement to Sell was made between the plaintiff and Defendant No. 1 in respect of housing scheme of Gulshan-e-Rumi on land besides other survey numbers including survey Nos. 108, 109 and 110 in Deh Safooran, Taluka and District Karachi East. Second recital of the agreements provide that the Defendant No. 1 has agreed to sell, transfer, convey and assign to the plaintiff a total area of 115975 square yards partly from the said survey numbers for development and construction of approximately 950 residential plots of 120 and 133 square yards at an agreed sale consideration to be calculated at the rate of Rs.750 per square yard each inclusive of all development charges together with tight, title and interest with full vacant possession, free from all encumbrances. Developing charges is defined in clause (b) of this recital with is as follows :--
(b) The agreed Sale consideration to be calculated at the rate of Rs.750 per each square yard of the said Land shall also be inclusive of all the internal development charges such as construction and carpeting of Roads as per approved Layout Plan, separate approved Plans from the concerned authorities with all required N.O.C.'s together with approval of their Residential status under the said Housing Scheme, permission/N.O.C. for sale and allotment of the said plots to the individual allottees including the permission/N.O.C. for construction in respect of the plots involved in the said Land from the concerned authorities of the Cantonment Board and from all other concerned Governmental Authorities."
Clause (2) of the agreement shows payment of Rs. 10,000,000 as partial payment towards consideration and further two payments of Rs.2,500,000 in two instalments of 30 days and 60 days respectively from the date of agreement. Clause-3 contains schedule on earn and pay basis and it provides that 65 % out of the amount to be recovered by the plaintiff on account of sale proceeds of 950 residential plots from prospective purchasers shall be invested by the plaintiff upon construction of model bungalows, bungalows on account of development and on other construction work and payment to the Defendant No. 1 of 25% out of the amount recovered by the plaintiff from the perspective purchaser for adjustment of full and final consideration of the land and the rest 10% will be retained by the plaintiff against investment in the housing scheme. By clause-4 Defendant No. 1 covenants with the plaintiff that the lease in respect of the land of 950 residential plots under sale is in full force, valid and subsisting and that the Defendant No. 1 has full power and lawful authority to sell, transfer, convey and assign the said land to the plaintiff in the manner done by the agreement. By clause-5 Defendant No. 1 covenants with the plaintiff that it has paid all assessment, taxes, cesses and development charges, ground rents etc, till the delivery of vacant possession. By clause-7 defendant covenants with the plaintiff that it shall do or cause to be done all lawful acts, deeds and things for better selling and perfectly assigning the said land unto the plaintiff free from all encumbrances and that the Defendant No. 1 shall execute an Irrevocable General Power of Attorney in favour of the plaintiff or his nominee containing all the powers and authorities for booking and selling of the said plots to individual sub-lessees, to handover sub leases, to get publication or advertisement for sale, recover sale proceeds, to get construct house on 950 plots, to deliver physical possession thereof to perspective purchaser, to sign, execute and admit execution of sublease deeds of the said plots in favour of individual allottees and sub-lessees. By clause-8 Defendant No. 1 has delivered full vacant possession of the land to the plaintiff with stipulation that now the plaintiff is fully and legally entitled to get the plots sold to the perspective purchase of its own choice either under old or new name of housing scheme and to recover sale proceeds there-from without any concern whatsoever of the Defendant No. 1. By clause (9) the Defendant No. 1 has covenanted with the plaintiff that it shall sign, execute and issue allotment letters and possession letters of 950 residential plots of the said land in favour of the newly established partnership firm namely Messrs G.M. Developers Karachi. In clause (10) the Defendant No. 1 covenanted that it will demolish the entire boundary wall at their own cost and expenses and by Clause-11, the agreement has been made irrevocable and binding upon the parties, their heirs, successors, executors, administrators and assignees.
The grievance of the plaintiff is that the obligation of obtaining approval of lay out plan of 685 units/bungalow, N.O.C. for sale of 218 units/bungalows was of the Defendant No. 1. It is also complained that the Defendant No. 1 failed to get demarcation of the boundary wall and internal development as per agreement that of laying carpeting of roads and separate approved plan of residential plots. On the perusal of the agreement as noted above, all the items on which grievance has been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the Defendant No. 1. This is clear from reading of second recital and moreso by its sub-para, (b) and clause (3) of the agreement. Although heading of the agreement mentions it to be an Agreement to Sell but its reading shows that it is not so but is a complete conveyance of the land by the Defendant No. 1 to the plaintiff with giving of Irrevocable General Power Attorney for selling of the plots and recovery of sale proceeds and making of sub leases in favour of the prospective purchaser. To the extent what is read from the agreement itself and complaints made in the plaint, there seems to be no cause of action for filing of the suit by the plaintiff.
The other very interesting feature of the case is that though the agreement shows selling of 950 residential plots but their exact location is mentioned to be partly on survey Nos.108, 109 and 110 in Deh Safooran, Taluka & District East, Karachi. Where the remaining part of the land is situated, the agreement is altogether silent. Except for there being a covenant from the side of the Defendant No. 1 that it has a subsisting lease of the land, no particulars or details are given about purported lease as to from whom it is obtained, what is its date, its nature, right given under it and to what specific land it relates. The agreement and the plaint are altogether silent on this aspect of the matter. Where a document which in the present case is Agreement to Sell purports to have conveyed the land of 950 plots by these Defendant No. 1 to the plaintiff, it has to mention full particulars and details of the lease. Even copy of purported lease is not attached with the plaint nor is available on record which will lead to only inference that there is no existence of lease of the suit land.
Despite above failings patent on the record, the defendants Nos.3 & 5 who are respectively Mukhtiarkar, District Malir and Province of Sindh through Secretary Land Utilization have filed written statement, which is signed and verified by one Iqbal Ahmed son of Muhammad Umar without mentioning his designation and in para, (e) under the heading of preliminary objection it contains as follows:
"(e) That entries in favour of defendants Nos. 1 and 2 were kept on the basis of registered sale deed but so far no proof is filed to establish that the sellers and defendants Nos. 1 and 2 possessed any marketable title."
Now, what one can make out of what is purported to be pleaded in this paragraph of the written statement. In the first place it says that entries in favour of defendants Nos. 1 & 2 were kept on the basis of registered sale deed and in the second place it says that no proof is filed to establish that sellers and defendants Nos. 1 & 2 possessed any marketable title. These are totally destructive and inconsistent pleas, which are irreconcilable and seem to have been made only to facilitate wrong doing by defendants Nos.3 & 5. It has introduced facts which are altogether not pleaded in the plaint nor mentioned in the agreement itself. This appears to be totally dubious plea. The Secretary Land Utilization Department, Government of Sindh is directed to enquire into and file complaint against the said Iqbal Ahmed son of Muhammad Umar in the Anti Corruption Court and at the same time take disciplinary action and suspend him. A report of action taken be transmitted to MIT of this Court within a period of two months. A copy of this order be sent to Secretary Land Utilization Department, Government of Sindh for making compliance. A copy of this order be also transmitted to MIT for keeping track of the matter and in case its compliance is not made, he is directed to put up his reference to Court for taking of further action in there matter.
Resultantly, application under Order VII, Rule 11, C.P.C. is allowed. Plant is rejected and all other applications are disposed of.
(R.A.) Order accordingly.
PLJ 2009 Karachi 213 (DB)
Present: Anwar Zaheer Jamali, C.J. and
Ghulam Dastagir A. Shahani, J.
HABIBULLAH NIAZI--Petitioner
versus
FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others--Respondents
C.P. No. D-980 of 2008, decided on 20.11.2008.
Constitution of Pakistan, 1973--
-----Arts. 199 & 15--Exit from Pakistan (Control) Ordinance, (XLVI of 1981), S. 2--Constitutional petition--Criteria for placement on Exit--Control List--Where the criteria drawn for placement on Exit Control List had not been met in the case of a person, placement of his name on such list, was, prima facie, unjustified and amounted to denial of his right guaranteed under Art. 15 of the Constitution--Any arbitrary action of the Government functionaries depriving a citizen from his legitimate rights could not be sustained unless sufficient material was produced before the Court for examination to justify that such action was in accordance with law. [Pp. 216 & 217] A & B
PLD 1987 SC 504; PLD 1997 Lah. 617; PLD 2005 Kar. 252 and PLD 2007 Kar. 705 fol.
Mr. Z.U. Mujahid, Advocate for Petitioner.
Mr. Aamir Raza Naqvi, D.A.-G. for Respondents.
Date of hearing: 20.11.2008.
Order
The petitioner claiming himself to be a prominent businessman and a law abiding citizen of this country has preferred this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the prayer of seeking declaration that placement of his name on the Exit Control List (ECL) is arbitrary, without any lawful authority and of no legal effect.
The petitioner has averred that all his family members are settled in U.S.A. and he, being suffering from various ailments, is also undertaking his treatment in U.S.A. since January, 1999, as per advise of his Doctor, wherefrom he has returned to Pakistan on 13-8-2007. The petitioner when learnt about the placement of his name on ECL made correspondence with the respondents but to no avail. Further case of the petitioner is that the placement of his name on ECL is in violation of terms of Gazette of Pakistan Extraordinary dated 31-12-1981 Ordinance No. XLVI of 1981, which lays down the criteria for this purpose.
On notice of this petition, parawise comments have been filed by Respondents Nos. 1 and 2 and Respondent No. 3 separately. In their comments, Respondents Nos. 1 and 2 have admitted that on 27-6-1996 name of the petitioner was placed on ECL on the recommendation of the Corporate Law Authority (now Securities and Exchange Commission of Pakistan), as there were allegations against him about his involvement in the misappropriation of Mudarba funds and Certificate holders money. The Respondent No. 3 in their comments have confirmed the fact that the name of the petitioner was placed on ECL under the direction of the Corporate Law Authority.
Mr. Z.U. Mujahid, learned counsel for the petitioner, has made reference to the pending proceedings against the petitioner before the Banking Court/Mudarba Tribunal to show that even on the basis of charge framed against the petitioner, it is not covered by the criteria laid down by the Interior Division, Government of Pakistan for placement of name on ECL. He further contended that the conduct of the petitioner is so fair and honest that he himself returned from U.S.A. to Pakistan and immediately appeared before the Banking Court and got interim pre-arrest bail, which shows that he has no intention to avoid proceedings before the Banking Court, in the criminal case registered against him. He made reference to Paragraph 6 of the petition to show that uptil filing of the petition the petitioner has missed four appointments with his doctors/consultants in U.S.A. due to enlistment of his name on ECL. He, therefore, urged that the liberty of the petitioner as guaranteed under Article 15 of the Constitution cannot be curtailed by placing his name on ECL for a long period of over 12 years.
Mr. Aamir Raza Naqvi, learned D.A.-G. has candidly stated that placement of name of the petitioner on ECL for such a long period seems to be somewhat unreasonable. Further in response to query made by this Court vide its orders dated 22-9-2008 and 16-10-2008 learned D.A.-G. has filed a statement on behalf of the Ministry of Interior, Government of Pakistan, confirming the authenticity of documents placed on record by learned counsel for the petitioner, which shows the criteria laid down by the Government of Pakistan for the purpose of placing the name of a citizen on ECL for convenience sake, contents of this document are reproduced as under:--
GOVERNMENT OF PAKISTAN
INTERIOR DIVISION
SUBJECT: CRITERIA FOR PLACEMENT ON ECL.
The following criteria for placement of a person of ECL, or otherwise has been drawn in consultation with the agencies concerned:
(a) For Placement of ECL
(i) Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property.
(ii) Government employee involved in economic crime where large Government funds have been embezzled or institutional frauds committed.
(iii) Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening national security.
(iv) Key directors of firms having tax default/liabilities of Rs.10 million or above.
(v) Only 2.3 key/main directors of firms having more than Rs.100 million loan default/liabilities.
(vi) Names of persons forwarded by the Registrars of the High Courts/Supreme Court of Pakistan or Banking Courts only.
(vii) Drug traffickers".
(b) Not to place on ECL.
(i) Names of persons involved in private disputes where Government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investment.
(ii) Private individuals involved in crime like murder and dacoity etc. unless special grounds are furnished by the Home Departments concerned.
(iii) Names of Directors who are representing foreign investment in business.
(iv) Names of ladies/children undergoing education who are appearing as directors merely due to their family relationship with major shareholders.
(v) Deserters from duty of civil/armed forces.
(vi) Cases/requests for placement on ECL, without full identifying particulars, detailed reasons/grounds [as specified in the pro forma] may not be considered/ entertained.
(c) Policy for retention/deletion in respect of the following categories of persons already placed on ECL
Points Proposed policy
(i) Who have gone Their names may be retained on
abroad/ absconded ECL to apprehend them on return
(ii) In judicial Since they can be released on bail
custody by the Courts any time, their names
should be retained on ECL
(iii) Convicted Names of such persons should be
retained on ECL till conviction
attains finality.
(a) Government of Pakistan and another v. DADA Amin Haider Khan PLD 1987 SC 504.
(b) Wajid Shamsul Hasan v. Federation of Pakistan PLD 1997 Lah. 617.
(c) Khan Muhammad Mehar v; Federation of Pakistan PLD 2005 Kar. 252.
(d) Hashmat Ali Chawla v. Federation of Pakistan PLD 2007 Kar. 705.
(R.A.) Petition allowed.
PLJ 2009 Karachi 217
Present: Abdul Rasheed Kalwar, J.
Haji UMER and 2 others--Applicants
versus
PROVINCE OF SINDH through Secretary, Revenue Department, Karachi and 5 others--Respondents
Civil Revision Application No. 60 of 2007, decided on 18.2.2009.
Limitation Act, 1908 (IX of 1908)--
----Ss. 3, 12(5) & Art. 152--Sindh Chief Court Rules, R. 331--Judgment was passed on 27-11-2006--Decree was prepared on 30-11-2006--Application for obtaining certified copies of judgment/decree was made on 5-12-2006--Copies were prepared on 13-12-2006 and delivered on 19-12-2006--Appeal was filed on 11-1-2007-Dismissal of appeal for being barred by time--Plea of appellant was that copying branch had not intimated him about readiness of copy on 13-12-2006, thus, time elapsed between 13-12-2006 till 19-12-2006 should have been treated as consumed in obtaining copies--Validity--S. 12(5) of Limitation Act, 1908 and R.331 of Sindh Chief Court Rules provided that appellant had a right of notice about date on which copies were to be ready for delivery--Appellant in absence of such notice could not be made responsible to explain delay caused between date of preparation and date of delivery of copies--Time in such case consumed between date of such application and date of delivery of copies would be deemed as time requisite for obtaining copies--High Court set aside impugned order while treating appeal to have been filed within time. [P. 221] A & B
PLD 1977 Kar. 564 ref.
2005 SCMR 973 and 2005 CLC 680 rel.
Mr. Abdul Shakoor A. Abbasi, Advocate for Applicants.
Nemo for Respondents Nos. 1 to 5.
Mr. Farooque Hashim, Advocate for Respondent No. 6.
Date of hearing: 18.2.2009
Judgment
The Civil Appeal (Haji Umer v. Province of Sindh and others) was not admitted on the point of limitation and 1st Additional District Judge, Thatta dismissed the appeal in limine. The applicant has filed this Revision Application which is today fixed for Katcha Peshi. Notice of the Revision Application has been served upon the respondents and Mr. Farooq Hashim, Advocate is present on behalf of the Respondent No. 6, whereas none has appeared for other respondents.
He has argued that appeal was presented after 41 days of passage of decree. As per him, the intervening period of 15 days in between the date of application for certified copy and its delivery i.e. from 5-12-2006 to 19-12-2006 should have been excluded by the Appellate Court while computing the limitation for filing the appeal; which the Court has failed. He has further argued that after the insertion of sub-section (5) in Section 12 of the Limitation Act, he was legally entitled to the notice for date of delivery of the certified copy. The applicant is living 100 k.m. away from Court, therefore, he cannot know about the readiness of copy unless notice has been sent to him. Since he has not received any intimation notices therefore the time elapsed between the preparation of copy and its delivery i.e. 13-12-2006 to 19.12.2006 cannot be treated to have been consumed by the applicant, but, it would be treated as time requisite in obtaining the copies. He has relied upon the cases reported as Mirza Muhammad Ishaque and others v. Additional Settlement Commissioner Lands and others 2005 SCMR 973, Messrs Pak Suzuki Motor Co. Ltd. v. Haji Ahmed Shaikh and another 2005 CLC 680 and Mst. Rukhsana Ahmed v. Tariq Ataullah PLD 1977 Kar. 564 in support of his plea.
Learned counsel for the respondents has argued that applicant was negligent in pursuing to collect the copies. He did not wait for any intimation and went to collect the copies on 19-12-2008, as such he could have also gone on 13-12-2008. Therefore he is not entitled to claim the time between 13-12-2008 and 19-12-2008 as time consumed for obtaining copies. He has relied upon the case reported as Ghulam Muhammad v. Malik Abdur Rashid and 2 others 2002 CLC 295.
Heard both the learned counsel and perused the material available on record. Before venturing in the discussion it is necessary to refer to the provision of Section 12 of the Limitation Act:--
"12. Exclusion of time in legal proceedings.--(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from such period is to be reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed form or sought to be reviewed shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
(5) For the purposes of sub-sections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
In the case-law cited by the learned counsel for the applicant reported in 2005 SGMR 973 the apex Court had found that following order of Lahore High Court, Rawalpindi Bench on correct premises :--
"The requisite time in this case could be either 26-6-1989 until 20-8-1989 or 26-6-1989 until 5-9-1989, depending upon the endorsement given on the slip issued by the Copying Agency or in the Register of the Copying Agency. The learned Additional District Judge has given no thought on this fact nor did he call the Register of the Copying Agency for ascertaining what was conveyed to the petitioner on 20-8-1989, the date on which the copy is said to be prepared. In case there is no notice to the petitioner for 20-8-1989 for obtaining the copy, then the time requisite for obtaining the copy shall be the time between 26.6.1989 until 5-9-1989 which had to be excluded, and which would then make the appeal within time having been filed on 1.10.1989. But in case the date mentioned for purpose of delivery was 1-10-1989 then the appeal is patently time-barred. Reference in this connection may be made to the statement of petitioner, reflected in the impugned judgment of the First Appellate Court, where he had categorically stated that he had been contacting the Copying Agency for obtaining the copy but as copy was not prepared, he could only receive it on 5-9-1989."
In the case-law reported as Messrs Pak Suzuki Motor Co. Ltd. v. Haji Ahmed Shaikh and another 2005 CLC 680 it has been held by Mr. Justice Mujibullah Siddiqui, (as he then was) as follows:--
"It is admitted by the learned counsel for the respondent that the Copying Branch did not adhere to the provisions contained in Rule 323(1) of the Sindh Chief Courts Rules to the extent of communication, which provides that, the Head Copyist, shall estimate the amount of copying, comparing and translation fee and enter them on application and communicate them to the applicant. It is further conceded that the provisions contained in Rules 331(1) which provides that the list of copies and translation ready for delivery shall be pasted on notice board of the Record Keeper's Office, has also been ignored and has not been complied with. The effect of non-compliance of the above rules has been considered at great length in the case of Peninsular and Oriental Steam Navigation Co. v. Pfizer Laboratories Ltd. (supra) reproduced above and therefore, no further discussion is required. So far the provisions contained in Section 12(5) of the Limitation Act, is concerned, they are unambiguous and require no interpretation or explanation. It is admitted that no intimation as required under this provision was sent to the applicant. This provision came for consideration before the Honourable Supreme Court in the case of Shujahat Hussain v. Muhammad Habib 2003 SCMR 176. It was held that if the Copying Branch had not issued notice for collecting certified copy of judgment for a particular date in terms of Section 12(5) of Limitation Act, then the time is to be calculated from the date of certifying the copy."
In the case-law cited by the learned counsel for the respondent i.e. 2002 CLC 295 (Lahore) it has been held in Para. No. 11 at page 300 placidum "F" that:
"As far as the question of limitation is concerned, the time requisite to obtain copy of the judgment and decree commences from the application submitted for obtaining the said copy and ends on the day when the copy is prepared and is ready for delivery. The negligence of a party in obtaining the delivery of the copy of the judgment and decree on his leisure cannot be counted as "time requisite" under the law. There is nothing on the record that the petitioner was misled by any act of the Copying Agency."
"331. (1) A list of copies and translations ready for delivery shall be pasted on the notice-board of the Record-Keepers' office.
(2) If a copy or translation is not claimed by the applicant within six months from the date of posting the aforesaid list, the copy shall be destroyed and the fact shall be noted in the remarks column of the register of applications for copies and translation.
(3) Where the applicant has applied that a copy should be sent to him by post, the copy shall be sent accordingly."
Admittedly the notice/intimation was required under Section 12(5) of Limitation Act was not sent to the applicant and nothing on record shows that any compliance of Rule 331 of Sindh Chief Court Rules has been made by the copying agency. In this situation applicant cannot be saddled with the liability of the period elapsed between the date of readiness of the copies and the date of the actual delivery of the copies. Hence the time intervening between the date of making application for certified copies till the date of actual delivery of certified true copies of the judgment, decree or order shall be deemed as time requisite for obtaining copies.
(R.A.) Revision accepted.
PLJ 2009 Karachi 222
Present: Zafar Ahmed Khan Sherwani, J.
Syed ABDULLAH ABIDI--Plaintiff
versus
Mst. HAJRA ABIDI and another--Defendants
Suit No. 1058 of 2005, decided on 3.3.2009.
Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 123 & 129--Gift under statutory law and Islamic Law--Distinction stated--Requirement of a valid gift are somehow different as compared to statutory law as provided u/S. 123 of the Transfer of Property Act, 1882, under which execution of such document in presence of two attesting witnesses is mandatory besides its registration--However, S. 129 of the Act is an exception to the same--In Islamic Law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift hiba--However, the only exception to that rule is that the donor must not be suffering from any disease having immediate threat of death) which is called Marz-ul-Maut--In case the donor and the donee are in joint possession of property, if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject matter of the gift and the required element of delivery of possession would remain un-affected.
[Pp. 226 & 227] A & C
Gift--
----There are three essentials of gift under Islamic Law: declaration of gift by the donor, (ii) express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee. [P. 227] B
1972 SCMR 50 and 1998 SCMR 2114 fol.
Islamic Law--
----Gift of house by father in favour of son excluding two daughters--Burden of proof--Suit by brother for recovery of possession of house and mesne profits from sisters after death of father--Sisters' plea was that donor of 80 years age at relevant time was incapacitated due to tongue cancer and mentally retarded after he was operated; that as per family settlement, donor had agreed to gift house to them and two shops to plaintiff-brother, and that plaintiff being in possession of title documents got gift deed registered in his favour fraudulently and sold both shops--Plaintiff stated that donor, prior to operation on account of cancer, had first executed a will disclosing therein gift of suit house in his favour-- Validity--Execution of such will proved that donor must be having immediate danger of death on account of cancer disease, otherwise there was no reasons to execute same when he had gifted house in favour of plaintiff--Nothing was available on record to show that donor, after operation, had fully recovered while executing gift deed in favour of plaintiff--Plaintiff as sole son of donor was earning member of family--Gift in favour of plaintiff on account of his such advantageous position and infirmity of donor, could not be said to be out of free will--Plaintiff had failed to prove a valid gift in his favour--Plaintiff could not claim possession of suit house and mesne profits from defendant for being in legal occupation thereof as legal heirs of its deceased owner--Suit was dismissed.
[Pp. 227 & 229] D, E & G
1972 SCMR 50; 1998 SCMR 2114; PLD 1964 SC 143 and
1981 CLC 962 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1908)--
----Art. 117--Gift--Burden of proof--Onus to prove all ingredients of a valid gift would lie upon a person desirous to take benefit thereof.
[P. 227] D
1972 SCMR 50 rel.
Gift--
----Islamic Law--Invocation of doctrine of Maraz-ul-Maut--Scope--For invoking such doctrine it is not necessary that death of donor must be result from disease. [P. 228] F
PLD 1964 SC 143 fol.
Specific Relief Act, 1877 (I of 1877)--
----S. 8--Civil Procedure Code, (V of 1908), S.2(12)--Suit for recovery of possession and mesne profits--Failure of plaintiff to prove his exclusive ownership over suit house on basis of gift in his favour by his deceased father--Effect--Plaintiff could not claim possession and mesne profits from defendants being in occupation of suit house as legal heirs of its deceased owner--Suit was dismissed. [P. 230] H
Tort--
----Damages for mental shock, pressure, physical torture and social disgrace alleged to have been suffered by plaintiff on account of illegal acts of defendant--Failure of plaintiff to prove any particular act of defendant--Validity--Mere such allegations without any tangible evidence would be of no consequence--Plaintiff was, now entitled to such relief in circumstances. [P. 230] I
Mr. Shafaat Hussain, Advocate for Plaintiff.
Nemo for Defendants.
Date of hearing: 4.2.2009.
Judgment
This is a suit for declaration, possession, perpetual injunction and mesne profits in respect of house Bearing No. A-530, Block H, North Nazimabad, Karachi measuring 225 square yards (the suit house). The Plaintiff has claimed that by virtue of gift-deed executed and registered as No. 1378 Book No. 1 dated 13-7-2002 before Sub-Registrar, T-Div-VII-B, Karachi, by his deceased father with delivery of its possession along with the original title documents and his acceptance, he became its owner and got the same mutated in the record and City District Government, Karachi vide order No. CDGK/KDA Wing Sch-2/572/2003 dated 13-8-2003 in his favour. He alleged that on account of the said gift the attitude of the defendants, his real sisters towards him and the father suddenly changed and started to make quarrel with them and made their lives miserable, therefore, they shifted from the suit house in October 2002 leaving the defendants in its possession. His father died on 24-7-2004 thereafter he served a legal notice dated 18-9-2004 upon them to vacate the suit house but to no avail, hence this suit for declaration that on account of gift he is exclusive owner of the suit house, for damages of Rs.500,000 for causing mental torture and physical disturbance and further sum @ Rs.5,000 per month form October, 2002 as mesne profit till realization of the possession and for perpetual injunction restraining the defendants not to create third party interest in the suit house and for costs of the suit.
The defendants in their joint written statement pleaded with regard to non-maintainability of the suit and alleged that the gift was fraud and void under the law as the donor, their ailing aged father, was incapacitated due to tongue cancer and was operated therefore, on that account he had become mentally retarded. It was also alleged that as per family settlement their father had agreed to gift his two shops situated in Rampura, Bombay Bazar and Ram Swami, Karachi to the plaintiff and the suit house to the defendants, therefore, all the documents were handed over to the plaintiff by their father but the plaintiff got the gift deed registered in his favour fraudulently and also sold both the shops. It was also alleged that the behaviour of the plaintiff towards their father was cruel as he used to keep him under pressure, coercion, which made him mentally retarded. They finally prayed for dismissal of the suit.
Out of the pleadings following issues were settled:--
(1) Whether the suit of the plaintiff is maintainable under the law?
(2) Whether, the plaintiff is lawful bona fide owner of the suit property by virtue of gift Deed Regd. No. 1378 dated 13-7-2002?
(3) Whether, the plaintiff being owner is entitled for the possession of the suit property?
(4) Whether, the plaintiff is entitled for the mesne profit @ Rs.5000 (Rupees Five Thousand only) per month from the defendants?
(5) Whether, the plaintiff is entitled for the damages if so, to what extent?
(6) Whether, the plaintiff is entitled to the relief claimed?
(7) What, should the decree be?
In support of his case the plaintiff has examined himself by way of Affidavit-in-Evidence and produced all the relevant documents including the registered gift deed, mutation order in respect of the suit house, telephone and other utility bills in respect thereof. In his support he also examined one of the attesting witnesses of the gift deed namely Syed Nusrat Hussain Rizvi. Whereas both the defendants examined themselves through their Affidavit-in-Evidence before the Commissioner appointed for such purpose by this Court.
I have heard the learned Advocate for the plaintiff; none was present for the defendants.
It was contended by the learned Advocate for the plaintiff that the plaintiff has proved through tangible evidence that he was validly gifted the suit house by his father during his life time and therefore became owner thereof but the defendants forced both of them to leave the same by such behavior, consequently, they are in illegal occupation thereof, therefore, he is entitled for the decree as prayed by him.
I have carefully considered the above arguments of the learned counsel for the plaintiff in the light of the record.
Issue No. 1
Since none has appeared on behalf of the defendants during the course of the arguments therefore, the issue remained unattended on their behalf. Anyhow from face of the record there is nothing to maintain that the suit is not maintainable. Prima facie this suit is for declaration, injunction, possession and mesne profit and there appears no bar of any nature to entertain the same specially on the facts as mentioned above. The issue is decided in the affirmative.
Issues No. 2
The burden of proof of the issue was upon the plaintiff. It is his case that he has become absolute owner of the suit house by virtue of gift deed executed by his late father during his lifetime and registered on 13.7.2002. In his affidavit-in-evidence he has deposed that prior to the gift his father had executed a Will dated 23-5-2002 in his favour depriving the defendants from their shares after his death. The copy of the Will dated 10-5-2002 was also produced. He also deposed that thereafter he executed the gift deed in respect thereof in his favour and handed over its possession along with original documents to him and his name was mutated in the record of C.D.G.K. vide letter dated 13-8-2003. The registered gift-deed along with deed of acceptance of gift and possession were produced as Annexures P-3/1 to P-3/6. He has also deposed that at the time of the gift he and his father were residing in the suit house but after his marriage they both shifted to a rented house on account of misbehaviour of the defendants. One of the attesting witnesses of the gift-deed namely Syed Nusrat Hussain Rizvi fully supported the plaintiff in all respect in his cross-examination.
In rebuttal both the defendants in their evidence have denied the evidence produced by the plaintiff and reiterated the allegations as made in their written statements that the gift-deed is a fictitious document obtained by the plaintiff under coercion and that as per settlement their father had agreed to gift the two shops in favour of the plaintiff whereas the suit house in their favour and since the documents had been handed over to the plaintiff for preparation of the gift-deed but he got the gift-deed registered in his favour as their father was patient of tongue cancer and was operated and that he was mentally retarded. They also deposed that the plaintiff had shifted along with the deceased father in March, 2002 from the suit house to a rented house.
To determine whether the plaintiff has discharged the burden of proof of a valid gift in his favour by his deceased father, it is necessary to examine the ingredients of a valid gift under the Muslim Personal Law. The requirement of a valid gift are somehow different as compared to statutory law as provided under Section 123 of the Transfer of Property Act under which execution of such document in presence of two attesting witnesses is mandatory besides its registration. However, Section 129 of the said Act is an exception to the same. In Muslim law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift/hiba. However, the only exception to that is that the donor must not be suffering from any disease having immediate threat of death, which is called Marz-ul-Maut as held in Ashiq Hussain v. Ashiq Ali 1972 SCMR 50, that there are three essentials of the gift under Muhammadan Law (i) declaration of gift by the donor, and (ii) as express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee. With regard to the transfer of the possession in case the donor and the donee are in joint possession thereof it has been held in Ali Khan v. Mumtaz Begum and another 1998 SCMR 2114 that if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject-matter of the gift and the required element of delivery of possession would remain unaffected.
It is also to be observed that the burden of proof is always upon a person who is desirous to take a benefit of gift, hence he is to prove all the ingredients of valid gift as held by Hon'ble Supreme Court in the above, Ashiq Hussain (supra).
Now it is to be proved by the plaintiff that the donor was not suffering from any disease which comes within the definition of Maraz-ul-Maut. As admitted by the plaintiff in his affidavit-in-evidence that the donor was suffering from cancer and he was also operated in 2002 and he incurred all the expenditure on his treatment. Although he averred that in his evidence that his father was enjoying good-health at the time of marriage and he himself made arrangements of his marriage in the suit house but the fact that prior to the operation on account of cancer in May, 2002 his father had first executed a Will Exh.P-10 dated 10th May, 2002, in which he had disclosed that he had gifted the suit house in favour of the plaintiff proves the fact that he must be having immediate danger of death on account of cancer disease otherwise there was no reason to execute such Will when he had gifted the suit house in favour of the plaintiff. Similarly the plaintiff has not brought anything on record that after the operation his father had fully recovered when he executed another declaration of gift. The photograph Exh.P-6 showing his presence in the marriage is of no consequence. It may be appreciated that it is no necessary at all that death should in fact result from disease if the doctrine of marz-ul-maut is to be invoked. In this regard the Hon'ble Supreme Court in the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 has made the following observations :--
"There is one point which may be clarified here. It is stated in some commentaries and judgments that death should in fact result from a disease if the doctrine of marz-ul-maut is to be invoked, I am unable to agree with this proposition. If a person was suffering from galloping tuberculosis and was therefore under apprehension of death when he made the gift, but he was shot dead by some person or died of an accident, or of cholera or some other epidemic a short time after the gift I do not see why the doctrine of marz-ul-maut should not be applicable. Truly speaking even the fact that a person survives and does not die at all should not validate a gift which he made under apprehension of death. The validity of the gift is to be determined with reference to the circumstances as they exist at the time of making the gift. Subsequent failure to die cannot have a retrospective effect, so as to validate an invalid transaction. The true reasons for the invalidity of the gift is the state of the mind of the donor who believes that he is going to die. As he believes that he is going to die he has no intention of making a transfer inter vivos and his only intention is to make a transfer which will take effect after his death. A transfer takes effect according to the intention of the transferor. If the transferor has no intention of making a gift-during his life time no such gift will result. The reasons why a gift in marz-ul-maut operates as a will is that the intention is to gift in marz-ul-maut operates as a Will is that the intention is to make a testamentary alienation only. This doctrine is not only confined to Muslim Law. In Roman Law it is called donation mortis causa and it also appears in Section 191 of our Succession Act. In accordance with Section 191 gift "made in contemplation of death" are resumable by the donor if he survives and the power to make such gifts is co-extensive with the power of testamentary disposition. It is true that gifts "in contemplation of death" are gifts which are to take effect in case the donor dies, but authority can be found in any commentary for the proposition that although the donor does not say so the presumption in the case of gifts made during apprehension of death is that they are to take effect only in case of death. In Jarman On Wills (1951 edition) at p.46 it is stated that "the conditional nature of the gift need not be expressed, it is implied in the absence of evidence to the contrary", and that "if the circumstances authorize the supposition that the gift was made in contemplation of death mortis causa is presumed."
It is also surprising to note that although the plaintiff and the donor had been shifted from the suit house in October, 2002 after the marriage of the plaintiff but neither the donor nor the plaintiff intimated the defendants through any correspondence with regard to the gift of the suit house in favour of the plaintiff either prior to execution of will or there after and to vacate the same. However, as soon as the donor died on 24-7-2004 as admitted by the plaintiff in his affidavit-in-evidence, he served a legal notice upon the defendants dated 18-9-2004. There appears no reasons as to why the plaintiff did not file this suit against the defendants during the period of about two years from his shifting from the suit house to the rented house and kept waiting the death of his father (donor). There is no explanation in this regard. This is an important factor because the valuable rights in respect of the suit house inherited by the defendants are involved. The plaintiff was required to act in bona fide and transparent manner, if he was actually gifted the suit house by his father bonafidely. Even otherwise, there appears no reasons as to why the father would deprive his two daughters from their valuable rights in the suit house specially in the circumstances when both of them were having no shelter and living in the suit house. Until and unless some tangible evidence is brought to prove that the gift fulfilled all the requirements of a valid gift it is not possible to hold it accordingly particularly in a situation when the donor had already gifted one of the shops in his favour and the defendants did not raise any objection to this effect.
If this gift was also genuine why they would raise objection. Admittedly the second shop of the deceased is also in his possession to which the defendants have also not raised any objection.
Next is the free will of the donor. Admittedly the donor was an old aged person of 80 years old at the time of gift and suffering from cancer whereas the plaintiff was the only son and earning member of the family in whose favour one shop had already been gifted by the same donor therefore, on account of such an advantageous position of the plaintiff and infirmity of the doner it cannot be said that the gift was out of free will. Reference can be made on Mst. Hussain Bibi and others v. Mst. Aisha Bibi 1981 CLC 962.
In view of the above discussion it is clear that the plaintiff has failed to prove that the gift of the suit house in his favour by his father was a valid gift therefore he is lawful owner in respect thereof, hence the issue is decided in negative.
Issues Nos. 3 and 4.
Since the plaintiff has failed to prove his exclusive ownership over the house in question in his favour and since the defendants being the legal heirs of its owner therefore they are in its legal occupation thereof and the plaintiff can neither claim possession nor mesne profits. The issues are therefore decided accordingly.
Issue No. 5.
The plaintiff has failed to bring any evidence on record except his words that an account of illegal acts of the defendants he has suffered mental shock, pressure, physical torture, social disgrace for which the defendants are liable to pay Rs.500,000, as damages. He has failed to refer any particular act of the defendants. Mere such allegations without any tangible evidence is of no consequence, therefore, the issue is decided in negative.
Issues Nos. 6 and 7.
In view of the above, the plaintiff is not entitled for any relief and therefore, suit is dismissed with no order as to costs in the circumstances of the case.
(R.A.) Suit dismissed.
PLJ 2009 Karachi 230
Present: Mrs. Qaisar Iqbal, J.
MUHAMMAD SHOAIB--Petitioner
versus
Mst. FOUZIA and others--Respondents
Const. P. No. S-28 of 2006, heard on 13.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Suit for dissolution of marriage, maintenance and return of articles, decreed--Gross misreading of evidence in respect of entitlement of article had depicted in dowry list--Petitioner was ready and willing to pay maintenance, granted by Courts below granted to his daughter till attains majority--Validity--Family Judge had decided the issue involved in favour of respondent pertaining to dissolution of marriage, return of the dowry article, maintenance, whereas First Appellate Court through impugned judgment decided the issue regarding dowry article in favour of petitioner and maintained the quantum of award of maintenance by trial Court--Impugned judgment does not call for interference--Petition disposed of. [P. 232] A & B
Mr. Sathi M. Ishaque, Advocate for Petitioner.
Mr. Azizuddin Qureshi, Advocate for Respondents.
Date of hearing: 13.1.2009.
Order
The petitioner has invoked Constitutional Jurisdiction assailing the order passed by the Courts below in Family Appeal No. 11/2005 and Family Suit No. 386/2003 whereby the suit for dissolution of marriage, maintenance and return of Jahez Articles filed by the Respondent Nos. 1 & 2 was decreed.
The facts leading to the appeal are that the Respondent No. 1 was married to the petitioner in the year 1994 for consideration of downer amount of Rs. 50,000/- (Rupees fifty thousand only) remained unpaid. Out of the wedlock baby Javeria Shoaib was borne on 2.3.1996, life between the parties became miserable. On account of differences between the parties the petitioner snatched ornaments of gold from Respondent No. 1 and sold out the same worth Rs. 1,250,000/- which are still lying in the house of the petitioner. The Respondent No. 1 left the house of the petitioner, in the middle of the year 2003, claimed, dissolution of marriage dowry articles as well as maintenance for herself and daughter.
The petitioner denied the allegations in written statement contended that the dower amount was fixed at Rs. 50,000/- out of which 50% was prompt rest was deferred paid in the shape of gold bangles. It was also averred that the Respondent No. 1 had removed jewelry, cash when deserted his house.
On appraisal of the evidence led by the parties suit filed by the Respondent No. 1 was decreed.
I have heard Mr. Sathi M. Ishaque learned counsel for petitioner and Mr. Azizuddin Qureshi learned counsel for respondent.
Learned counsel for petitioner did not contest the matter in respect of dissolution of marriage contended that there is gross misreading of evidence in respect of the entitlement of the Respondent No. 1 of Jehaz article has depicted in the dowry list exhibit P/2 worth of Rs. 2,50,000/- it is next urged that the petitioner was ready and willing to pay the maintenance granted by the Courts below granted to his daughter Javeria now aged about 14 years @ Rs.5000/- per month and shall continue to pay the same until she attains the majority according to law of land. So far as the maintenance of Respondent No. 1 is concerned the petitioner was ready and willing to pay the same adjudicated by the Courts below on the date of dissolution of marriage 31st March 2005 and for iddat period and had agreed to deposit the same with the Nazir of the learned Family Court.
On appraisal of record it appears that the learned family Judge had decided the issue involved in favour of the Respondent No. 1 pertaining to the dissolution of marriage, return of the dowry article, maintenance whereas the First Appellate Court through the impugned judgment decided the issue regarding the dowry article in favour of the petitioner, and maintained the quantum of award of maintenance by the trial Court to the Respondent Nos. 1 & 2.
During the course of arguments learned counsel for petitioner has undertaken to pay the maintenance due to the respondents at the rate settled by the learned Family Judge and had agreed to pay maintenance of minor Javeria.
In view of the above, position impugned judgment does not call for interference, C.P. No. S-28/2006 stands disposed off accordingly.
(R.A.) Petition disposed off.
PLJ 2009 Karachi 232
Present: Mrs. Qaisar Iqbal, J.
MUHAMMAD SHOAIB--Petitioner
versus
Mst. FOUZIA and others--Respondents
Const. P. No. S-436 of 2006, heard on 13.1.2009.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Custody of minor--Visitation rights--Validity--Paramount duty of Court--Welfare of the minor was brought up since birth by mother aged 14 years appeared in Court, met her father in Court expressed her willingness and desire to live with mother--Held: Custody of minor should remain with the mother--Best course in the interest of the minor is that the visitation arrangement made by Appellate Court be maintained whereby the father be allowed to take custody of minor on first saturday of every month be directed to return the custody of the minor to her mother on next evening--Petition disposed off. [Pp. 233 & 234] A & B
Mr. Sathi M. Ishaque, Advocate for Petitioner.
Mr. Azizuddin Qureshi, Advocate for Respondents.
Date of hearing: 13.1.2009.
Order
The petitioner has invoked Constitutional Jurisdiction assailing the judgment and decree passed by learned VIIIth Additional District & Sessions Judge Karachi South in Family Appeal No. 12/2006 vide judgment dated 12.8.2006 whereby both the appeal was dismissed, order passed by learned IInd Family Judge Karachi South in G & W Suit No. 393/2003 was maintained, whereby the Guardian & Wards Application filed by the petitioner was dismissed.
Necessary facts for the disposal of the appeal are that the petitioner was married to the respondent, out of wedlock one child namely Javeria was borne. On account of the disputes they could not lead happy life. The petitioner has filed application under Section 25 of Guardian & Wards which was contested by the mother on the premises that the minor was daughter aged about 10 years keeping in view her welfare, custody be delivered to father. However, father was not deprived of the visitation rights and it was ordered that the custody of the minor will be delivered to the father as per arrangement.
Both the Courts below have decided the issues involved against the petitioner such findings have been assailed in the special jurisdiction. Learned counsel for petitioner has contended that the father being the natural guardian has a vested right to retain the custody of family daughter now aged about 14 years.
It is urged that the mother has been tutoring the minor adversely causing effect upon her up bringing. It is next urged that the visitation arrangement by the Courts below ought to have resolve the difference to a greater extend, due to hurdles and barriers on the part of the mother the visitation could not take place, the above contention was negated by the learned counsel for the respondent. It is urged that on account of non payment of maintenance the minor could not join hands with father mother never interfered or persuaded the minor not to meet her father.
I have carefully considered the judgments of two Courts below, perused the record of the case.
The paramount duty of the Court is to adjudge the dispute, in line with the welfare of the minor Javeria, she has been brought up since birth by the mother, now aged about, 14 years appeared in Court on 13.1.2009, she has met her father in the Court expressed her willingness and desire to live with the mother. At this juncture taking into the consideration the age of the minor child I am not inclined to interfere in the impugned judgments to the effect that the custody of the minor should remain with the mother. Learned counsel for petitioner has candidly conceded that the best course in the interest of the minor is that the visitation arrangement made by the Appellate Court be maintained whereby the father be allowed to take custody of minor on first. Saturday of every month from 5 a.m be directed to return the custody of the minor to her mother on next evening at 5 p.m Such directions shall not be binding upon the parties during examinations of the minor. With the above observations C.P. No. S-436/2006 stands disposed off accordingly.
(R.A.) Petition disposed off.
PLJ 2009 Karachi 234
Present: Sajjad Ali Shah, J.
MAZHAR MUSTAFA--Petitioner
versus
BASHARAT AHMED and another--Respondents
Const. P. No. S-460 of 2006, decided on 16.12.2008.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 16(2)--Constitution of Pakistan, 1973, Art. 199--Concurrent findings--Non-compliance of tentative rent order u/S. 16(2)--Striking off defence--Effect of withdrawal of rent--Effect of withdraw of rent by the landlord from the Misc. Rent case before and after passing the tentative rent order was not considered by the Courts below--Both the impugned orders be set aside and the case be remanded to the Rent Controller to decide the same on merits. [P. 235] A, B & C
Mr. Latif-ur-Rehman Sarwari, Advocate for Petitioner.
Mr. Qaisar Ahmed Qureshi, Advocate for Respondent No. 1.
Date of hearing: 16.12.2008.
Order
Through this petition, the petitioner has assailed the concurrent findings of the Courts below whereby his defence was struck off, for non-compliance of tentative rent order and the appeal was dismissed.
Briefly, Respondent No. 1 initiated ejectment proceedings wherein the Rent Controller on 23-07-2004 passed a tentative rent order directing the petitioner to deposit the arrears of rent in the main case within 30 days and also to deposit future monthly rent. The Rent Controller further granted adjustment of the rent already deposited in Misc. Rent Case No. 295/2002. The petitioner failed to comply with the tentative rent order leading to filing of application under Section 16(2) of Sindh Rented Premises Ordinance, 1979 on 11.09.2004. Respondent No. 1 thereafter, on 05.10.2004 deposited the rent as directed and submitted an explanation that since his counsel had an heart attack, therefore he (the counsel) was not in a position to inform him regarding the tentative rent order and therefore the same could not be complied with. The plea was not accepted and the defence of the tenant was struck off and the appeal was also dismissed.
Learned counsel for the petitioner has contended that Respondent No. 1 has withdrawn rent from the Misc. Rent Case on 22.07.2003, 04.12.2003 and 08.10.2004 i.e. before and after passing of tentative rent order, therefore default if any, is technical.
On the other hand, learned counsel for Respondent No. 1 has said that non deposit of rent in complaint of tentative rent order was nothing but negligence on the part of the petitioner and such default could not be termed technical .
Since the effect of withdrawal of rent by the landlord from the Misc. Rent Case before and after passing of tentative rent order was not considered by the Courts below therefore after arguing the matter at length, both the learned counsel have agreed that both the impugned orders be set aside and the case be remanded to the Rent Controller to decide the same on merits. Learned counsel for Respondent No. 1/landlord has shown his anxiety for an earlier disposal of rent case as it was filed in the year 2003 and four years have already lapsed.
In the circumstances, this petition is disposed of in above terms and the Rent Controller is directed to decide the rent case on merits within 60 days and to report compliance to this Court through M.I.T.
(N.I.) Petition disposed of.
PLJ 2009 Karachi 235 (DB)
Present: Mrs. Yasmin Abbasey & Dr. Qammaruddin Bohra, JJ.
MUHAMMAD ASGHAR, ACCOUNT ASSISTANT, STAFF NO.
DAS-120, P.D.O.H.A., KARACHI--Petitioner
versus
PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through its Administrator and 3 others--Respondents
C.P. No. D-2020 of 2007, decided on 19.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--Removal from Service (Special Powers) Sindh Ordinance, 2000, S. 3(2)--Constitutional petition--Civil servant--Removal from service--Allegation of--Without affording an opportunity of hearing--Non-issuance of show cause notice--Principle of natural justice--Non-denial of respondent's statement in his parawise comments about participation of civil servant in enquiry proceedings--Validity of--Civil servant was terminated from service after due enquiry, which is apparent from the documents placed by him and statement made by respondents in parawise comments as to holding of enquiry against the petitioner--Civil servant may approach to service tribunal for redress of his grievance--Petition was dismissed. [P. 237] A
Mr. M. Arshad Khan Tanoli, Advocate for Petitioner.
Ch. Abdul Rasheed, Advocate for Respondents.
Date of hearing: 5.3.2008.
Order
Mrs. Yasmin Abbasey, J.--With the allegation that without affording an opportunity of hearing and issuance of show causes notice. Petitioner was removed from service on the charge of misconduct, redress of grievance for sought from this Court.
Referring to the case of Executive Engineer, Qadirabad, Barrage, Division, Qadirabad and others vs. Ejaz Ahmad (2007 SCMR 1860), it is argued that the non-issuance of show cause notice has been observed flagrant violation of the provisions of Ordinance, 2000 and also in against to the well recognized principle of natural justice and is sufficient to vitiate the entire proceedings.
During course of arguments it, is proposed by learned counsel for petitioner that with the direction to issue show cause notice and to give an opportunity of hearing to the petitioner case be remanded to the respondent authority for fresh decision.
Whereas learned counsel for the respondents challenging the maintainability of the petition argued that petition in against to a Federal Governing Body through Ministry of Defence, therefore, without impleading Federation or the Provincial Government as party petition is not maintainable. Further that in the light of observation made in the case of Muhammad Idrees vs. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681) the cases in which the services of employee are governed by statutory rules are not hit by Mubin-us-Salam's case and the Service Tribunal has jurisdiction in those matter, and thus present petition is not maintainable.
Whereas, according to learned counsel for petitioner, as the respondents did not have the statutory rules, therefore, observations made in case of Muhammad Idrees vs. Agricultural Development Bank Of Pakistan and others (Supra) will not apply in the present case. But the arguments advanced by learned counsel for the petitioner in the light of termination order issued on 16.02.2006 under para-3 clause 1 (b) of Removal from Service (Special Powers) Sindh Ordinance, 2000 is sufficient to observed that the petitioner's case is governed by this Ordinance of 2000 and thus in view of above referred judgment of Hon'ble Supreme Court with an addition to the observations made in the case of Anwar Parvez vs. Chairman, Board of Intermediate and Secondary Education, Abbottabad and 2 others (2005 SCMR 1063), which is almost of the same nature had observed, with reference to the compulsory retirement from service under NWFP Removal from Service (Special Powers), Ordinance, 2000, that:
"This law being the latest special law has provided a forum of appeal to anyone, who is proceeded against this Ordinance of 2000. Hence we hold that the appeal was competent before the Tribunal, which was wrongly dismissed. Consequently, the petitioner after conversion into appeal is accepted and the case is remanded to the NWFP Service Tribunal for decision on merits."
Next that before dismissing him from service, enquiry was conducted and petitioner was given an opportunity to plead his case and it is on his admission of keeping the DHA Montessori amount with him, his service was terminated.
The fact of conducting enquiry proceedings has been admitted by the petitioner in his appeal to Defence Secretary and chairman Governing Body, DHA, Karachi made on 13.04.2007. That further find support from the non-denial of respondent's statement in his parawise comments about the participation of petitioner in enquiry proceedings. After this admission, arguments advanced by learned counsel for the petitioner that in terms of Section 3(2) of `Removal from Service (Special Powers) Sindh, Ordinance, 2000' he was not informed by the competent authority for the action to be proposed in against to him and no opportunity of hearing was provided to him has no weight as proper opportunity to defend his case was given to petitioner, if that ended in against to him, does not mean that petitioner was not heard.
In view of the foregoing reasons we are of the view that the petitioner was terminated from service after due enquiry, which is apparent from the documents placed by him and the statement made by the respondents in their parawise comments as to the holding of enquiry against the petitioner.
With the above reasoning petition stands dismissed alongwith the listed application. The petitioner may approach to the Service Tribunal for redress of his grievance, if so advised.
(R.A.) Petition dismissed.
PLJ 2009 Karachi 238 (DB)
Present: Nadeem Azhar Siddiqui and Arshad Siraj Memon, JJ.
IMRAN BHATTI and another--Petitioners
versus
PROVINCE OF SINDH through the Home Secretary Govt. of Sindh, Karachi and 2 others--Respondents
Const. P. No. D-1473 of 2009, decided on 23.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 496-A & 34--Quashing of FIR--Kidnapped with intention to commit zina--Validity of nikah--Abductee recorded her statement u/S. 164, Cr.P.C. she had married with her free will and she was not aware about her previous marriage--First nikah was allegedly performed on 22.2.2009 and same was registered with union council on 8.7.2009 after about four months of alleged date of nikah without any plausible reason and the FIR was registered on 14.7.2009--High Court did not want to give any finding upon authenticity of nikah, but certainly the same was got registered as an after thought after the nikah performed between petitioners--Held: Petitioner/abductee was never kidnapped and a false FIR was got registered by the father of female accused--Abductee was not kidnapped and had freely performed her nikah with petitioner, therefore, FIR appears to be false and there was no probability of conviction of the accused person--FIR was quashed.
[P. 240] A & C
Quashing of FIR--
----Power can be exercised to prevent the abuse of process of Court in order to promote the ends of justice--High Court can quash FIR where complainant is frivolous and does not contain any define accusation where no offence is made out and there is no probability of conviction of the accused person. [P. 240] B
Mr. Saathi M. Ishaque, Advocate for Petitioners.
Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh for Respondent Nos. 1 & 2.
Mr. Fazal Rahim Yousuf Zia, Advocate for Complainant/Respondent No. 3.
Date of hearing: 23.7.2009.
Order
Learned counsel for the petitioners has produced a copy of the statement of Petitioner No. 2 recorded before the Civil Judge & Judicial Magistrate-VI, Karachi South.
Learned APG has also produced copies of the documents which contain nikahnama allegedly performed between Muhammad Asad and Salma Bibi (Petitioner No. 2) on 22.02.2009 alongwith verification letter issued by the Nazim of Union Council Baroot, Tehsil Hub, Dist. Lasbella in which it has been stated that nikah was performed on 22.2.2009 which was registered with Union Council on 8.7.2009.
This petition has been filed for quashment of FIR No. 245/2009 registered on 14.7.2009 at Police Station Clifton, Karachi, under Section 496-A/34, PPC at the instance of Respondent No. 3, who is father of Petitioner No. 2.
The allegations in the above-referred FIR are that the Petitioner No. 1 and others have kidnapped the Petitioner No. 2 with intention to commit zina with her.
The Petitioner No. 2 was produced before the Judicial Magistrate-VI, Karachi South, where her statement was recorded in which she has stated that on 11.4.2009 she with her free-will has married with Imran Bhatti (Petitioner No. 1) and she is not aware about her any previous marriage. She has further stated in her statement that her father is extending threats to the family of the Petitioner No. 1. She has also stated that she is adult and can marry with her own free-will and no one has committed any wrong with her.
Learned counsel for the petitioner states that in view of the statement of Petitioner No. 2, who is a star witness in the matter there is no probability of conviction of the accused persons and no purpose will be served by keeping this FIR pending and the pendency of the FIR would amount to abuse of process of the Court.
Learned counsel for the complainant/Respondent No. 3 states that the Petitioner No. 2 has performed nikah upon nikah and she has committed an offence and at this stage, quashment of the FIR is not proper.
Learned APG while adopting the submission of the learned counsel for Respondent No. 3 has submitted that till to-date the investigation is not completed and in case FIR is quashed the Investigating Officer could not complete the investigation. He then submits that the Investigating Officer is enquiring into the offence of performing nikah upon nikah, therefore, requires further time.
We have heard the learned counsel for the parties and have perused the record of this case made available before us.
From the perusal of documents submitted by the learned APG it appears that first nikah was allegedly performed on 22.2.2009 and the same was registered with Union Council on 8.7.2009 after about four months of the alleged date of nikah without any plausible reason and the FIR registered on 14.7.2009. We do not want to give any finding upon authenticity of the nikah, but certainly the same was got registered as an after thought after the nikah performed between Petitioners No. 1 and 2 on 11.4.2009 registered on 13.4.2009. The case was registered against the Petitioner No. 1 and his other family members under Section 496-A/34, PPC and after the statement of Petitioner No. 2 before the Judicial Magistrate it is clear that the said Petitioner No. 2 was never kidnapped and a false FIR was got registered by the father of Petitioner No. 2.
It is now well-settled principle of law that the powers can be exercised to prevent the abuse of process of Court in order to promote the ends of justice. The High Court can quash FIR where the complaint is frivolous and does not contain any definite accusation and apparently where no offence is made out and there is no probability of conviction of the accused person.
In the instant case, after the statement of Petitioner No. 2 it is clear that she was not kidnapped and has freely performed her nikah with Petitioner No. 1, therefore, the FIR appears to be false and there is no probability of conviction of the accused person.
In view of the statement of Petitioner No. 2, there is no probability of conviction of the accused persons and keeping FIR pending would amounts to abuse of process of the Court, hence this petition is allowed. FIR No. 245/2009 of Police Station Clifton, Karachi stands quashed.
This petition is disposed of accordingly
(R.A.) Petition disposed of.
PLJ 2009 Lahore 1
Present: Hasnat Ahmed Khan, J/E.T.
Syed FAKHAR IMAM--Petitioner
versus
MUHAMMAD RAZA HAYAT HIRAJ and 5 others--Respondents
Election Petition No. 157 of 2008 and Civil Misc. No. 2 of 2008, decided on 8.9.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration--Powers of the Tribunal--Held: Election Tribunal has the power to restore the petition dismissed in default, provided there are genuine and sufficient reasons in support of such application. [P. 10] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 76 & 64--Election petition--Dismissal in default--Restoration petition--Held: Returned candidate despite service did not come forward to contest the petition, so there was no counter affidavit to rebut the contention of petitioner or his counsel--Petition was filed promptly--Case was still at initial stage and the trial had not yet been commenced--Petition accepted. [P. 10] B, C & D
2007 CLC 610; 2003 MLD 57; NLR 1982 CLJ 23; 1983 CLC 2965; PLD 1969 SC 65; PLD 1972 Lah. 603; PLD 1975 SC 331; 2002 SCMR 1076; PLD 1987 SC 512; 1983 CLC 3031; 1996 SCMR 426 & AIR 1961 Bom. 21.
M/s. Maqbool Elahi Malik & Muhammad Umar Riaz, Advocates for Petitioner.
Kh. Haris Ahmed, A.G. Punjab with Ch. Muhammad Sadiq, Addl.A.G. for Respondents.
Date of hearing: 1.8.2008.
Order
Through this application, a prayer has been made to restore the main Election Petition, which was dismissed on 20th of June, 2008 due to non-appearance of the petitioner.
It has been averred in the application, in hand, that on the eventful day, i.e. 20th of June, 2008, Mr. Muhammad Umar Riaz, one of the learned counsel for the applicant/election petitioner, came to this Court at 8 a.m. and he was told by the Reader of this Tribunal that the Election Petitions would be taken up after the conclusion of the proceedings of the Full Bench of which the undersigned was a Member. It has further been asserted that after an hour or so, the said counsel once again came to the Court-room but was surprised to know that the Election Petitions had already been taken up by this Tribunal before the commencement of the proceedings of the Full Bench and due to the absence of the petitioner as well as his counsel, the election petition had been dismissed.
The application, in hand, which is supported by an affidavit of Mr. Maqbool Elahi Malik, learned counsel for the petitioner, was filed on 24th of June, 2008. Subsequently, the application was supplemented by an affidavit of Syed Fakhar Imam-the applicant--petitioner himself. On 25th of June, 2008, the application was put up before this Tribunal and after hearing the learned counsel for the applicant, the office was ordered to issue notices to all the respondents through all modes of service. The notices, issued in consequence of the said order, were duly served on the respondents but none of them opted to appear before this Tribunal to contest this application. So much so, that Respondent No. 1- returned candidate-who was served with the notice personally, failed to appear before this Tribunal. Consequently, all the respondents were proceeded against, ex parte. However, in view of the law laid down in the case of Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610), wherein it had been held that an election petition dismissed in default, cannot be restored, a notice was issued to the learned Advocate-General in terms of Section 60 of the Representation of the People Act (LXXXV of 1976) (hereinafter referred to as the Act).
Mr. Maqbool Elahi Malik, learned counsel for the applicant/election petitioner has contended that, though, there is no provision in the Representation of the People Act (LXXXV of 1976) empowering this Tribunal to restore the election petition, dismissed in default, but the same can be restored on the analogy of the relevant provisions of Civil Procedure Code, especially, when Section 64 of the Act lays down that the Tribunal, constituted under Section 52 of the Act, shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure; that under Section 76 of the Act, the election petition cannot be dismissed before the start of the trial but, surprisingly, in this case the election petition, which had not reached the stage of trial, was illegally dismissed under the said provision of law. In this respect he has relied upon the case of Muhammad Amjad v. Muhammad Anwar and 10 others (2003 MLD 57). He further submits that there is no specific bar in the Act against the restoration of an election petition, dismissed in default; that if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and those powers are actually inherent; that the provisions of the Representation of the People Act (LXXXV of 1976) are pari materia to the provisions of the Punjab Local Government Elections Rules, 2000, which also do not contain any provision for the restoration of an election petition-dismissed in default, but while deciding a writ petition, it was held by Lahore High Court in the case of Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others (2001 YLR 336) that an election petition, dismissed in default, can be restored despite the fact, that there is no express provision in the said Rules permitting the said recourse. In this regard he has further placed reliance on the cases of Sardar Saleem Haider v. Rao Muhammad Afzal (NLR 1982 CLJ 23), Muhammad Hanif v. District Judge/Election Tribunal, Multan and others (1983 CLC 2965). He adds that in the case of Asif Nawaz Fatiana (supra), the Hon'ble Election Tribunal was not properly assisted, inasmuch as, the law laid down by the Hon'ble Supreme Court in the case of H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65)-wherein it was held that the Court should proceed on the principle that every procedure, which furthers the administration of justice, is permissible even if there is no express provision permitting the same - was not brought to the notice of the said Hon'ble Tribunal. He further maintains that there is always an implied and inherent power in every Tribunal to set aside the orders passed in default of the appearance of the parties. In this regard, he has placed reliance on the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). To augment his contention, learned counsel has further relied upon the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
Conversely, learned Advocate-General Punjab has contended that there is no cavil with the proposition that under Section 76 of the Act, election petition can only be dismissed after the start of the trial; that it is equally true that provisions of C.P.C are not applicable to the trial of the petitions filed under Section 52 of the Act, which by virtue of Section 62 of the Act has to be tried according to the Procedure for Trial of Election Petitions enacted/provided vide the Notification dated 16th March, 1985 issued in pursuance of powers conferred by sub-section (1) of Section 62 of the Act; that in view of the said provisions, the trial of the election petitions commences when a written statement is filed by the respondent or respondents; that due to the failure of the respondent to file the written statement, it would be deemed that the trial in this case had not started on the eventful day, meaning thereby that the election petition could not have been dismissed under Section 76 of the Act. Learned Advocate-General has further contended that as under Section 64 of the Act, this Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, therefore, at least inherent powers are available to this Tribunal to restore the Election Petition - dismissed in default. In nutshell, the learned Advocate-General has not opposed the prayer made in the application, in hand.
Before dilating upon the question involved in this case, a survey of the relevant provisions of the Act would be expedient. An Election Petition is filed under Section 52 of the Act. Procedure of filing an Election Petition has been given in ¦Section 53. As far as the procedure before the Tribunal is concerned, the Legislature has given the same by enacting Section 62, which was amended in 1985 through Ordinance No. XVIII of 1985. The amended sub-section (1) of S. 62 is reproduced as under:
"(1) Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission."
In pursuance of the powers conferred by sub-section (1) of Section 62 of the Act, a Notification laying down the procedure for the trial of Election Petitions, was issued and published in the Gazette of Pakistan Extraordinary, Part-III, 17th of March, 1985 published in PLD 1985 (Central Statutes) 677. A perusal of the said Notification would reveal that a summary procedure has been provided for the decision of the election petition to obviate the delay in the disposal of the same. For the purposes of decision of this application, a perusal of Section 64 of the Act would also be necessary. The same is reproduced as under:
"The Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure 1908, (Act V of 1908) and shall be deemed to be a civil Court within the meaning of Sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
A perusal of the provisions of the said section reveals that the Election Tribunal has been bestowed with all the powers of a civil Court trying a suit under the Code of Civil Procedure, but when this section is read along with the provisions of Section 62 of the Act, one would gather that the procedure for the trial given in CPC, would not be followed, rather, the election petition would be decided in view of the procedure laid down by the Election Commission, in exercise of powers, conferred on it vide Section 62 of the Act. Nevertheless, the Tribunal would be having the powers of a civil Court trying a suit under CPC in view of the provisions of Section 64 of the Act, which obviously is later in the sequence of number than Section 62.
"Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default and make such order as to costs as it may think fit."
Interestingly enough, on the one hand, a power was bestowed upon the Election Tribunal to dismiss the election petition in case of non-appearance of the petitioner, but on the other, no provision, whatsoever, was made to decide the fate of application for restoration of the election petition on the move of the defaulting petitioner. In the said backdrop, an Election Tribunal presided by his lordship Syed Zahid Hussain, J., was pleased to hold that in absence of such a provision, the Election Tribunal, which does not ipso facto become a civil Court, cannot restore the election petition, dismissed in default, considering the fact that the Legislature has not given such a power to the Tribunal.
(i) Whether in absence of any provision, empowering the Tribunal to restore the election petition, dismissed in default, it can restore the election petition or not?
(ii) Whether the Tribunal can exercise the powers given under Section 151 CPC?
(iii) Whether inherent powers are available to the Tribunal to restore the election petition, dismissed in default?
Undoubtedly, there is a provision in the Act to cater with the situation where the petitioner does not appear and by virtue of Section 72 of the Act, the election petition can be dismissed on account of non-appearance of the petitioner but the Legislature has not made any provision to give the power to restore the election petition, dismissed in default. Ex facie, it appears that the intention of the Legislature was/is that the election petition once dismissed in default should not be restored, but on a closer scrutiny, it appears that this omission cannot be taken or treated as an un-surmountable hurdle to provide a remedy to a litigant, who for some genuine reasons or circumstances beyond his control fails to appear before the Election Tribunal to pursue his Election Petition. For example, an election petitioner due to some unavoidable circumstances reaches the Tribunal just after five minutes of dismissal of his Election Petition due to his non-appearance, can he be left remediless. The answer would definitely be an emphatic no. For providing relief to such an applicant the provision of Section 64 of the Act, which gives the Tribunal all the powers of a civil Court, trying a civil suit under the Code of Civil Procedure, can be validly employed.
"The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to possess in its very Constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist".
Even if it is assumed that CPC is not attracted to the proceedings of Election Petitions filed under Section 52 of the Act, the equitable principles underlying the provisions of the said Code, can be invoked in such proceedings, as has been laid down by the Hon'ble Supreme Court in the case of Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 Supreme Court 512). However, the question that; whether in absence of specific provision to empower the Election Tribunal to restore the election petition, dismissed in default, can it restore the same, stands answered in the case of H.M. Saya (supra), wherein it was laid down as under:
"A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
"It is true that unlike said Rule 88 there is no specific provisions in the said Rules for restoration of election petition dismissed for non-prosecution. However, this cannot mean that learned Tribunal would be bereft of authority to restore an election petition even if sufficient cause is made out for absence of the petitioner."
Similar view was taken in the case of Sardar Saleem Haider (supra). In the case of Muhammad Hanif (supra), a Division Bench of Lahore High Court, while considering the effect of omission of provision to seek restoration of Election Petition, dismissed in default and interpreting the provisions of Punjab Local Councils (Election Petitions) Rules, 1979, held as under:
"In procedural law, what is not expressly excluded, is impliedly permitted."
"4. We agree with the learned counsel for Respondent No. 2 that it is within the inherent jurisdiction of a Court or a Tribunal to take up the matter again, if it has been dismissed for non-prosecution if the non-appearance is justified in the circumstances of the case. The matter can be illustrated by means of a simple example. A case is called for. The party does not appear. It is dismissed in default. Soon thereafter the party appears and states that it stumbled on the way and was late only by a fraction of a minute. It will be open to the Court to say that it will recall its order of dismissal in default and hear the party. It cannot be said that the Court has no such power. Such an authority vests in an adjudicating body to determine the matter on merits. Unless it is expressly taken away by statute, the Court or Tribunal will have power to do all that is necessary to do justice between the parties."
The question, whether like a Court, civil or criminal, a Tribunal can also enjoy the inherent powers, has been answered by a Full Bench of Lahore High Court in the case of Muhammad Aslam Mirza (supra) wherein at page 654 of the judgment it was held as under:
"Also see Haji Zakeria Suleman v. The Collector, Yeotmal and others (1), Aijaz Ahmad v. Nazirul Hassan and another (2), Muhammad Hanif and others v. Ali Raza (3) and Manohar Lal L. Nadarchand v. Mohan Lai Gian Chand (4) for the proposition that there always exists an implied and inherent power in every tribunal to set aside orders passed in default of appearance of the parties. In view of the above, I do not want to take a different and narrow view so as to hold that the Rent Controller had no jurisdiction to recall an ex parte order where the party concerned can show a formidable cause for non-appearance on the relevant date." (underlining is mine).
At the same page of the judgment, it was held as under:
"(i) Continuing the subject of inherent and implied powers, first of all a question arises as to whether matters under the Ordinance can be decided in the absence of the parties. A perusal of the Ordinance will show that there is no provision in it anywhere for dismissing a matter in default or to proceed ex parte if, therefore, any such recourse is adopted by a Rent Controller, it is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure he likes. If once he has chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall or set aside orders passed ex parte or in default."
At page 644 of the judgment, it was held as under:
"(a) Legislature is supposed to know the Rules of Natural Justice and where no contrary procedure is prescribed, it is to be assumed that the Legislature intended that the procedure of natural justice is to be followed."
"The perusal of Section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading Section 62 as amended and Section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law, the Election Tribunal, however, for the facility of the proper trial of the Election Petition and bringing the contesting parties to controversial points may strike issues for resolution of the dispute."
There is yet another angle on the basis of which the application, in hand, merits acceptance, i.e, that proceeding of setting aside an election is one in which the entire electorate is interested, as has been held in the case of Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bombay 21) to the following effect:
"By S. 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. There can be no doubt, therefore, that once a proceeding under the Representation of the People Act has reached the Election Commission or the Tribunal, those authorities must hear and dispose it of on its merits."
For the reasons given above, it is held that this Tribunal has the power to restore the election petition, dismissed in default, provided there are genuine and sufficient reasons in support of the said application.
Now considering the case, in hand, on merits, the application for restoration is supported by an affidavit of the learned counsel for the petition/applicant as well as that of the petitioner himself. The returned candidate-contesting respondent, despite service, did not come forward to contest the application, in hand, so, there is no counter affidavit belying the contents of this application. Therefore, there is no material to controvert or discard the assertions made by the petitioner. Besides, the application, in hand, was filed promptly. There is another ground for acceptance of this application, i.e., the election petition was dismissed under Section 76 of the Act, which lays down that the election petition can be dismissed at any stage of the trial of an election petition. However, on the eventful day, the case, in hand, was at initial stage and was fixed for appearance of the respondents. The contesting respondents had not even filed the written statement, therefore, it can be held validly that on the date on which the election petition was dismissed, the trial had not commenced, because the trial commences after the framing of issues, as has been held in the case of Muhammad Amjad (supra). Be that as it may, as there is no provision for framing of issues during trial of election petitions, it can be gathered that the trial of an election petition filed under Section 52 of the Representation of the People Act (LXXXV of 1976), would commence after filing of written statement, which in this case, had not been filed on the date when the election petition was dismissed, therefore, on this ground also, this application merits acceptance. Moreover, it is a settled law that litigants should not be knocked out on technical grounds, rather, the cases should be decided on merits.
Consequently, this application is accepted and the main election petition is restored to its original number, which shall come up for hearing on 19-09-2008.
The office is directed to issue notices to all the respondents through all modes of service subject to the deposit of necessary expenses by the petitioner.
Before parting with the order, I would like to acknowledge and appreciate the able assistance rendered to this Tribunal and the hard labour put in this case by Mr. Maqbool Elahi Malik, learned counsel for the applicant and the learned Advocate-General, Punjab.
(J.R.) Petition restored
PLJ 2009 Lahore 11 (DB)
Present: Sh. Azmat Saeed & Syed Asghar Haider, JJ.
Dr. GHULAM HUSSAIN--Appellant
versus
ORIX LEASING and another--Respondents
R.F.A. No. 348 of 2008, decided on 19.11.2008.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 10--Leave to defend--Suit for recovery against appellant--Guarantee and indemnity--Application for leave to defend was dismissed by Banking Judge--Signature admitted by appellant are on a place identified for executants viz guarantor--Appellant was not an illiterate person--Validity--No defence worthy of trial was put forward, hence, the application for leave to defend the suit was rightly dismissed and trial Court rightly decreed the suit--No case for interference and invalidation thereof is made out--Appeal was dismissed accordingly. [P. 12] A
Mr. Shahid Ikram Siddiqui, Advocate for Appellant.
Mr. Akhtar Javed, Advocate for Respondent No. 1.
Respondent No. 2 proceeded ex-parte.
Date of hearing: 19.11.2008.
Order
Sh. Azmat Saeeed, J.--This appeal is directed against the judgment & decree dated 13.5.2008 whereby the learned Judge Banking Court Sargodha dismissed the application of the appellant for leave to defend the suit and decreed the suit against him.
Lah. Dr. Haroon Iftikhar v. NDFC PLJ
(Mian Saqib Nisar, J.)
2009 Dr. Haroon Iftikhar v. NDFC Lah.
(Mian Saqib Nisar, J.)
Respondent No. 2. It was contended in the plaint that Respondent No. 2 has obtained finance by way of lease and such finance had been secured through inter alia personal guarantee of the appellant. Default was alleged and on the basis whereof suit for recovery was filed. Application for leave to defend the suit was filed by the appellant which was dismissed and consequently the suit was decreed vide judgment & decree impugned dated 13.5.2008.
It is contended by the learned counsel for the appellant that the appellant had never signed a guarantee in favor of Respondent No. 1 and in view of his denial, leave should have been granted and the matter decided after recording the evidence.
Said assertion has been controverted by the learned counsel for the Respondent No. 1.
Perusal of the record reveals that the appellant did not deny his signature on the document/guarantee in question. In fact, it is the case of the appellant that the appellant was only asked to witness the execution of one of the lease documents. Such is clearly stated in para 2 of the appeal.
We have examined the document in question i.e., the guarantee and indemnity. It bears the signatures of the appellant, which has been admitted. The only case put forward was that such signatures had been obtained as a witness. It has been noticed that there is a separate part of the document specifically identified for signature of witnesses and two signatures have been appeared there at. While the signatures admitted by the appellant are on a place identified for the executants viz the guarantor. The appellant is not an illiterate person and in fact he is stated to be a doctor by profession. In this view of the matter, no defence worthy of trial was put forward, hence, the application for leave to defend the suit was rightly dismissed and the trial Court rightly decreed the suit. No case for interference & invalidation thereof is made out. Dismissed accordingly.
(R.A.) Appeal dismissed
PLJ 2009 Lahore 12 (DB)
Present: Mian Saqib Nisar and Abdul Shakoor Paracha, JJ.
Dr. HAROON IFTIKHAR--Appellant
versus
NDFC--Respondent
R.F.A. No. 630 of 2002, heard on 22.10.2008.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 10(11)--Suit for recovery against judgment debtors by bank--Leave application was disallowed and decree passed as well--Assailed--Denial of non-execution of personal guarantee--Validity--No remedy either civil or criminal till to date had been availed by appellant to challenge his status of being a shareholder or director of the company against the management for alleged fraud--Held: Mere bald allegation in this behalf and evasive denial of non-execution of the personal guarantee by itself is no plausible defence within parameters of law--Appeal was dismissed. [P. 14] A
2005 CLD 941 & 2002 CLD 876, rel.
Mr. Shahid Ikram Siddiqui, Advocate for Appellant.
Miss Fatima Najeeb & Mr. Akhtar Javed, Advocates for Respondent.
Date of hearing: 22.10.2008.
Judgment
Mian Saqib Nisar, J.--The appellants are the defendants/judgment debtors of a suit for the recovery brought by the respondent-bank inter alia against them; no submission has been made before us challenging the judgment and decree for the other appellants, Except No. 5. Regarding him it is stated that he, in the plaint, is mentioned to be one of the directors of the company having furnished his personal guarantee. Alongwith the suit, certain documents have been filed showing his position as the shareholder/director of the borrower company and about the execution and furnishing of his noted guarantee. The Appellant No. 1 independently filed his leave application, which has been disallowed by the learned Banking Judge and the judgment and decree dated 27.05.2002 has been passed against him as well. Hence, this appeal.
The learned Banking Judge in categorical terms has refuted the claim of Appellant No. 1 in which he has simply denied his status as the director and the shareholder as also that no personal guarantee was executed by him. The learned Judge observes that the requisite record of the Registrar of Companies envisages that Appellant No. 1 is one of the sponsor directors of the company and also filed statutory returns in the nature of Form 10.
When questioned, the learned counsel for the appellant has not disputed that as per record, the said appellant is the shareholder and the director, but his submission is, that a fraud has been committed by the management of the company (the principal borrower), who are closely related to him. But when further asked, it is admitted that no remedy either civil or criminal till to date has been availed by Appellant No. 1 to challenge his status of being a shareholder or a director of the company against the management for the alleged fraud. Therefore, mere bald allegation in this behalf and evasive denial of non-execution of the personal guarantee by itself is no plausible defence within the parameters of the law.
The learned counsel for the appellant by relying upon the judgments reported as Mst. Riffat Jehan and another vs. Habib Bank Limited and 10 others (2005 CLD 941) and Kamran Zali vs. Messrs Union Bank Limited (2002 CLD 876) has argued that the Court should have referred the matter to the handwriting expert, rather than examining the signatures itself; suffice it to say that the Court has not made any such exercise, therefore, the case does not come within the ambit of 2005 CLD 941; regarding the other argument that the matter should have been referred to the expert, it may be mentioned that in the attending circumstances of the case, it was not required especially, when in the normal course of financing, it is the policy and the banking practice that all the directors are supposed to provide their guarantees and admittedly as per the record of the Registrar of the Companies, he has that status.
In the light of above, we do not find any merit in this appeal, which is hereby dismissed.
(R.A.) Appeal dismissed
PLJ 2009 Lahore 14
Present: Zubda-tul-Hussain, J.
MUHAMMAD AKRAM--Petitioner
versus
LEARNED JUDGE FAMILY COURT, PATTOKI DISTT. KASUR
and another--Respondents
W.P. No. 8580 of 2008, heard on 8.10.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 11(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Summoning of the witnesses--Involvement in multiple civil and criminal litigation which includes the proceedings of various suits before Family Court--Applications for summoning the record of the suit for dissolution of marriage and including the names of two witnesses in the list of the witnesses, were dismissed--Assailed--Validity and propriety of orders--Parties may, with the permission of the Court call any witness at any later stage if the Court considers such expedient in the interest of justice--By virtue of provisions the Court is competent to allow a party to include these name of a desired witness in the list in accordance with S. 7(2) of West Pakistan Family Courts Act--Held: The witnesses so included can be produced by the party, though it cannot get the summons issued if within three days of the framing of the issue it has not intimated the Court its desire that a witness may be summoned through the Court--Petition was allowed. [P. ] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 7 & 11--Constitution of Pakistan, 1973, Art. 199--Provision--Including the names of witnesses in the list of witnesses--Petitioner would like to include the names of the witnesses in the list under S. 7(2) of Family Courts Act, and would not seek the summoning of such witnesses through the Court but would himself produce them in evidence. [P. 17] B
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, 1964, S. 7(2)--Constitutional petition--Fallacious and based on wrong provision of law--Not sustainable--Applications for summoning the record and including the names of witnesses in the list of witnesses were dismissed--Sequence order was also passed--Challenge to--Validity--Petitioner shall be allowed to include the names of the two desired witnesses in the list subject to payment as costs but such witness shall not be summoned through the Court and if the petitioner wants to produce them he shall produce them on his own responsibility--Petition was allowed. [P. ] C
Mr. Muhammad Ahsan Nizami, Advocate for Petitioner.
Chaudhry Nawab Ali Meo, Advocate for Respondent No. 2.
Date of hearing: 8.10.2008.
Judgment
The petitioner and the Respondent No. 2 are involved in multiple civil and criminal litigation which includes the proceedings of various suits before the Family Court. The Respondent No. 2 filed a suit for jactitation of marriage which is being contested by tooth and nail by the petitioner on the plea that the Respondent No. 2 had earlier filed suit for dissolution of marriage thereby admitting the factum of marriage. The petitioner wanted to produce evidence in support of this contention. For this purpose he submitted two applications before the learned Judge Family Court, one for summoning the record of the suit for dissolution of marriage allegedly filed by Respondent No. 2, and the other for including the names of two witnesses in the list of the witnesses appended with the written statement. Both these applications were dismissed by the order dated 17.3.2008 and 23.6.2008. In the same sequence the order dated 2.5.2008 was also passed. The validity and propriety of the orders dated 17.3.2008 and 23.6.2008 has been questioned in the prayer clause of this writ petition.
During the arguments the learned counsel for the petitioner also attacked the vires of the order dated 2.5.2008 to which the respondents' side took an objection that this has not been challenged in the instant writ petition. A perusal of the writ petition, however, shows that the order dated 2.5.2008 has not been impugned in the prayer clause but in the contents of the writ petition it has been impugned and challenged at more than one places. The contentions and rights of the parties have to be examined for the purposes of substantial justice and merely on clerical or technical basis no party can be denied the lawful relief. As the order dated 2.5.2008 has been challenged at more than one places in the writ petition, I am of the view that the omission to include it in the prayer clause does not affect the grievance of the petitioner against this order. Hence, this order dated 2.5.2008 shall also be deemed to be the subject of challenge in this writ petition.
The learned trial Court observed in relation to the later application of the petitioner for summoning the record of the suit that the certified copies thereof could be produced, as the same were per se admissible. This observation is unexceptionable and the application of the petitioner for summoning the record of the suit was unwarranted. If the petitioner wants to establish a fact on the basis of plaint or written statement etc. he can produce the certified copies of such record in support of his contentions. Hence, the writ petition insofar as it challenges the order dated 23.6.2008, is not tenable and is dismissed.
The order dated 17.3.2008 and 2.5.2008, however, seem to be little misconceived. The petitioner had submitted an application for including the names of the witnesses in the list whereas it was dealt with and decided as an application for additional evidence. The refusal was based on the provisions of Section 11(2) of the West Pakistan Family Courts Act, 1964 which deals with the summoning of the witnesses. This was not the case or prayer of the petitioner. The application and prayer of the petitioner was in fact covered by Section 7(2) ibid which is to the effect that the plaint shall contain all material facts relating to the dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and brief summary of the facts to which they would depose. The provisions of sub-section (2) specifically lay down that the parties may, with the permission of the Court call any witness at any later stage if the Court considers such expedient in the interest of justice. By virtue of these provisions the Court is competent to allow a party to include the name of a desired witness in the list in accordance with sub-section (2) of Section 7 ibid. The witnesses so included can be produced by the party, though it cannot get the summons issued if within three days of the framing of the issues it has not intimated the Court its desire that a witness may be summoned through the Court.
When confronted with the provisions of Sections 7 and 11 of the Family Courts Act, 1964 the learned counsel for the petitioner stated that the petitioner would like to include the names of the witnesses in the list under sub-section (2) of Section 7 and would not seek the summoning of such witnesses through the Court but would himself produce them in evidence. He submitted that the necessity for including the names in the list of witnesses is that without including the names in that list the petitioner cannot even call the witnesses in the witness-box at his own responsibility.
As the order dated 2.5.2008 is patently fallacious and based on wrong provision of law, the same is not sustainable. The order dated 17.3.2008 and 2.5.2008 to the extent of the prayer in the application dated 11.3.2008 are, therefore, set-aside. The petitioner shall be allowed to include the names of the two desired witnesses in the list subject to payment of Rs. 10,000/- as costs but such witnesses shall not be summoned through the Court and if the petitioner wants to produce them he shall produce them on his own responsibility. This list shall be deemed to have been filed under Section 7(2) of the Family Courts Act, 1964. To the extent of including the names of the witnesses mentioned in the application dated 11.3.2008 in the list under Section 7(2) ibid the writ petition stands allowed in the terms mentioned above. Before concluding the judgment it also seems appropriate that a direction for expeditious disposal of suit of Respondent No. 2 be also passed because the parties are involved in multiple litigation and the usual period prescribed for the disposal of such suits has already elapsed. It is, therefore, directed that the learned trial Court shall finally dispose of the suit of the Respondent No. 2 within a period of three months from the date of the receipt of this judgment, under intimation to this Court.
(R.A.) Petition allowed
PLJ 2009 Lahore 18
Present: Syed Shabbar Raza Rizvi, J.
Ch. MUHAMMAD ASGHAR and another--Petitioners
versus
ELECTION TRIBUNAL OF U.C. NO. 45, ARIFWALA DISTRICT PAKPATTAN SHARIF and 8 others--Respondents
W.P. No. 2475 of 2007, decided on 8.10.2008.
Punjab Local Government Election Rules, 2005--
----R. 65--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Challenged the result of election before Tribunal that at the time of submission of nomination papers respondent was not qualified as he had submitted a forged matriculation certificate--Objection was rejected and respondents were allowed to contest election--Respondent allowed to continue in office--Held: Petition was allowed and success of respondent was declared illegal and petitioners were declared returned in their place--Election Commission is directed to take appropriate measures. [Pp. 19 & 20] A
Ch. Abdul Ghaffar, Advocate for Petitioners.
Date of hearing: 8.10.2008.
Order
According to the learned counsel for the petitioners, Respondents No. 2 and 3 were elected as Nazim and Naib Nazim respectively. The petitioner challenged the result of election of Respondents No. 2 and 3 under Rule 65 of the Local Government Election Rules, 2005 before the Tribunal on the ground that at the time of submission of nomination papers, Respondent No. 2 was not qualified as he had submitted a forged matriculation certificate. Before that petitioners had raised objection before the Returning Officer but their objection was rejected and respondents were allowed to contest election.
"Now the matter is as clear as a day that Respondent No. 1 does not possess/hold genuine matriculation certificate with him neither today nor at the time of submission of nomination papers. At the time of submission of nomination papers he produced a bogus Marks sheet and Matric Certificate etc. before Returning Officer just to get acceptance of his nomination papers. I am of the considered view that he was not a qualified candidate for the seat of Nazim. He was also not entitled to contest the election of Nazim. This issue is decided in favour of petitioners.
The learned counsel has prayed as under:--
"It is, therefore, most respectively prayed that the impugned judgment dated 20.2.2007 may very graciously be sent aside and Election of the Respondents No. 2 and 3 be declared void subsequently the petitioners may be declared returned candidates."
"Despite the fact that respondents were issued notices and this case was fixed for a number of time, the respondents have failed to appear. This case is being adjourned for one more time lest the respondents may not be deprived of their precious right of representation. However, the cause of justice will not be allowed to be trampled by the conduct of respondents if they are deliberately avoiding to appear before this Court. If they did not appear on the next date of hearing, this writ petition would be decided after hearing the learned counsel for the petitioner as well as the record already available on the file. Adjourned to 8.10.2008. The respondents shall also be served through learned Senior Civil Judge."
Despite above, no one has appeared on behalf of the. Respondents No. 2 and 3.
(R.A.) Petition allowed
PLJ 2009 Lahore 20
[Multan Bench Multan]
Present: Syed Shaheen Masud Rizvi, J.
ZARINA BEGUM--Petitioner
versus
SECRETARY EDUCATION--Respondent
W.P. No. 5673 of 2007, decided on 23.6.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Service matter--Entitlement to grant of scale on which date, service was regularized as an Arabic Teacher--Running scale was awarded--Challenge to--Civil servant was terminated from service having not possessed the required qualification--Notification was not applicable retrospectively and therefore, words used in the order was that "they are hereby allowed to continue their service according to terms and conditions laid down by appointing authority" and as they continued to perform their duties under injunctive order of High Court--Held: Civil servant should have been granted regular pay scale then her service was regularized--Civil servant was entitled to relief as prayed--Comments filed by department had failed to give any valid reason and reply as to why basic pay scale was refused to the civil servant--Petition was accepted. [P. 22] A
Syed Shahbaz Ali Rizvi, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, A.A.G. for Respondent.
Date of hearing: 23.6.2008.
Order
Through this writ petition, the petitioner has challenged order dated 13.7.2005, issued by Respondent No. 3, whereby she had been awarded regular BPS-9 with immediate effect instead of from the date of regularization. Grievance of the petitioner is that she was entitled to the grant of said scale w.e.f 15.1.1991, on which date, her service was regularized as an Arabic Teacher in the Education Department and running scale No. 9 was granted to her.
"Consequent upon the judgment by the Honourable Punjab Service Tribunal, Lahore dated 02.5.2005 and the direction issued by the Executive District Officer (Education), Layyah No. 3584 dated 29.6.2005/01.7.2005, after the verification of documents/Deeni Asnads by the concerned Deeni Madris and after the settlement of Advance Para by the Special Departmental Accounts Committee during Meeting held on 25.9.2004 conveyed by the Government of the Punjab, Higher Education Department, Lahore vide No. PO (HE) 5-52/2001 (P.II) dated 26.10.2004 the following two ladies Arabic Teachers are hereby awarded BS-9 regular grade with immediate effect."
Heard and record perused.
Perusal of record reveals that the petitioner was granted regular Scale No. 9 in view of judgment of Punjab Service Tribunal and direction issued by Executive District Officer Layyah dated 29.6.2005. The grievance of the petitioner is that she should have been awarded Pay Scale No. 09 w.e.f 15.1.1991, and not with immediate effect as reflected in the above impugned order seems to be correct. When this order is read in conjunction with order dated 19.3.2000 (Annexure-H) whereby appeal of the petitioners and others was decided which was to the effect that notification dated 06.8.1992 was not applicable retrospectively and therefore, words used in the said order was that "they are hereby allowed to continue their service according to terms and conditions laid down by the appointing Authority" and as they continued to perform their duties under the injunctive order of this Court dated 19.1.2000, therefore, it was right of the petitioner that she should have been granted regular Pay Scale No. 9 from 15.1.1991, then her service was regularized and she was then granted Basic Scale No. 9. In this view of matter, as per service record of the petitioner, she is entitled to the relief as prayed. The comments filed by Deputy District Education Officer (W) and District Education Officer (W) (EE), Respondents No. 3 and 4 have failed to give any valid reason and reply as to why BPS No. 9 was refused to the petitioner from the date of 15.1.1991.
For what has been discussed above, this petition is accepted and the petitioner is held to be entitled Basic Scale No. 09 from the date of her regularization as Arabic Teacher. As far the prayer of the petitioner for her promotion is concerned, the same cannot be allowed through this writ petition, therefore she may move to the competent forum if she desires or is advised.
(R.A.) Petition accepted
PLJ 2009 Lahore 22
Present: Ali Akbar Qureshi, J.
Dr. MUHAMMAD RIAZ--Appellant
versus
QAZI AFTAB IQBAL and 5 others--Respondents
F.A.O. No. 111 of 2008, decided on 31.10.2008.
Jurisdiction of Court fee--
----Value for the purpose of jurisdiction of Court fee at rupees twenty five lac--Jurisdiction to entertain and decide the matter vests with Distt. Judge--Held: Respondent/plaintiff fixed the value for the Court fee and jurisdiction Rs. 25,00,000/- therefore, the jurisdiction to entertain and decide the matter vests with Disstt. Judge--Office is directed to return the appeal to appellant to file the same before proper forum. [P. 23] A
Ch. Muhammad Rafique Warraich, Advocate for Appellant.
M/s. Qazi Abdul Hameed & Muhammad Nauman Shamas Qazi, Advocates for Respondent No. 1.
Date of hearing: 31.10.2008.
Order
Learned counsel for the respondent has submitted that the respondent, who is plaintiff in the suit tilted as Qazi Aftab Iqbal etc. vs. Dr. Muhammad Riaz etc. has fixed the value for the purposes of jurisdiction of Court fee at rupees twenty five lac and the jurisdiction to entertain and decide the matter vests with the District Judge. This has not been opposed by the learned counsel for the appellant. I myself have examined the contents of the plaint, wherein, the respondent/plaintiff has fixed the value for the Court fee and jurisdiction Rs. 25,00,000/- (Rupees twenty five lac only), therefore, the jurisdiction to entertain and decide the matter vests with the District Judge. Office is directed to return the instant appeal to the appellant to file the same before the proper forum.
(R.A.) Order accordingly
PLJ 2009 Lahore 23
Present: Zubda-tul-Hussain, J.
Mian SHAHBAZ and another--Appellants
versus
KHALID IFTIKHAR--Respondent
S.A.O. No. 24 of 2006, heard on 7.10.2008.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 15--Civil Procedure Code, (V of 1908), O.VIII, R. 10--Ejectment petition--Petition was filed on ground of default in payment of rent and personal need--Appellants were failed to file a written statement on prescribed date--Defence of appellants was struck off--Ex-parte proceedings--Orders of ejectment were nullity in the eyes of law--Entitlement to receive the copy of the petition--A party responsible to file a reply essentially is entitled to receive the copy of the petition which it has to meet with by means of written statement and a party cannot be asked to file the written statement unless a copy of the plaint or petition has been supplied to it--Impugned orders of the ejectment were not sustainable in law. [P. 26] A
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 10--Striking off the right of defence--Scope of--Where any party from whom a written statement is required, fails to present the same within the time fixed by Court--Court may pronounce judgment against him or make such order in relation to suit as it thinks fit. [P. 26] B
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 1--Liability for filing written statement--Starting of time--Supply of copy of plaint--Responsbility of plaintiff--Validity--Supply of copy of the plaint and in the case of rent application, copy of ejectment petition, is one of basic responsibility of the plaintiff--Held: Right or liability for filing written statement to the plaint or petition would, therefore, start from time when such copy is provided to defendant. [P. 26] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, Rr. 1 & 10--Failure to file written statement--Two opportunities were provided after supply of the copy of the petitioner--Principle--Applicability--Held: Defendant could not be directed to file the written statement unless supplied with a copy of the plaint and where he was not supplied such copy the judgment of the trial Court under Rule 10 of Order VIII of CPC against the defendants for failure to file a written statement in the circumstances, constituted material irregularity--Principle is squarely applicable to the facts of the present appeal. [P. 26] D
Written Statement--
----Failure to file written statement--Fair opportunity was provided--Appellants had been given two opportunities after the supply of the copy of the petition which they could not avail of but such aspect has also two fold application--Whether the opportunity was and could be termed as the fair opportunity for filing the written statement or it had put the time constraints on the shoulders of the appellants.
[P. ] E
Ch. Muhammad Yasin, Advocate for Appellants.
Muhammad Akram Khan Umer, Advocate for Respondent.
Date of hearing: 7.10.2008.
Judgment
This SAO is directed under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 against the order dated 9.1.2006, passed by the learned Additional District Judge, Lahore, whereby the ejectment order dated 23.11.2004 passed by the learned Rent Controller was upheld.
The respondent, Khalid Iftikhar, being co-sharer in the disputed property filed an ejectment petition against the appellants, on the grounds of default in payment of rent and personal need. This ejectment petition was filed on 16.4.2003 and after taking certain proceedings the appellants were directed to file a written statement which they failed to file on the prescribed date because of which by the order dated 10.3.2008 the defence of the appellants was struck off. Consequently ex-parte proceedings were taken and ultimately an ejectment order dated 13.11.2004 was passed.
The contention of the appellants is that proper and fair opportunity of defence i.e. for filing written statement in the ejectment petition was denied to them and as such the impugned orders of ejectment are nullity in the eyes of law.
The learned counsel for the respondent has taken the Court through the order-sheet of the learned Rent Controller which shows that after service of the appellants had been effected the proceedings were adjourned for filing of written statement. On 17.12.2003 the appellants requested for an adjournment which was allowed but on the subsequent dates of hearing the learned Rent Controller being not available, the proceedings were adjourned to 16.2.2004. On that day the copy of the ejectment petition was thus provided to the appellants with a direction to file the written statement on 28.2.2004, which direction was not complied with and the petition was adjourned to 10.3.2004 as last opportunity for filing the written statement. As the written statement was not filed even on that day, the learned Rent Controller proceeded to strike off the defence of the appellants. With reference to these proceedings, the learned counsel for the respondent has argued that numerous opportunities for filing written statement were provided to the appellants but they had been avoiding the filing of the written statement only to delay the proceedings. He, therefore, maintained that the appeal was liable to be dismissed.
It is, of course, true that after the institution of the ejectment petition the proceedings continued for quite some time without any substantial progress but that alone cannot be a reason for penalizing any party unless such party is found responsible for it and it's attitude is tainted with malice and contumacy. One factor which, however, cannot escape notice in this case is that the copy of the ejectment petition for the first time was provided to the appellants on 16.2.2004.
A party responsible to file a reply essentially is entitled to receive the copy of such petition which it has to meet with by means of a written statement and a party cannot be asked to file the written statement unless a copy of the plaint or petition has been supplied to it. Striking off the right of defence/written statement in a petition is certainly somewhat analogous to the penal provisions of Order VIII Rule 10 CPC which provides that where any party from whom a written statement is required, fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. As already stated, the supply of copy of the plaint, and in the case of rent application, copy of the ejectment petition, is one of the basic responsibility of the plaintiff/petitioner.
The right or the liability for filing written statement to the plaint or petition would, therefore, start from time when such copy is provided to the defendant/respondent. In the case of Abdul Qudoos v. Abdul Rehman (PLD 1970 AJ&K 21) where the provisions of Order VIII Rules 1 and 10 CPC came under consideration in relation to the circumstances pertaining to the failure in filing the written statement, it was held that the defendant could not be directed to file the written statement unless supplied with a copy of the plaint and where he was not supplied such copy the judgment of the trial Court under Rule 10 of Order VIII CPC against the defendant for failure to file a written statement in the circumstances, constituted material irregularity. This principle is squarely applicable to the facts of the present appeal.
There is no doubt that the appellants had been given two opportunities after the supply of the copy of the petition which they could not avail of but this aspect has also twofold application. Firstly, it has to be seen whether the opportunity was and could be termed as the fair opportunity for filing the written statement or it had put the time constraints on the shoulders of the appellants.
In view of the above, the impugned orders of the ejectment are not sustainable in law. The appeal is, therefore, allowed, the impugned order dated 23.11.2004, passed by the learned Rent Controller and the one dated 9.1.2006, passed in appeal by the learned Additional District Judge, Lahore, are set-aside and the ejectment petition is remanded to the learned Rent Controller for proceeding in accordance with law after providing an opportunity for filing the written reply to the appellants.
Before parting with the judgment it may also be mentioned that the appellants have also challenged the ejectment order, on the ground that the respondent/petitioner could not file the ejectment petition as a co-sharer for personal need without impleading the other share-holders. The circumstances and the point on which the appeal has been decided in the above do not warrant finding of this Court on this issue at the present stage. Hence, this controversy is left upon for decision by the learned Rent Controller.
The parties are directed to appear before the learned Rent Controller on 15.11.2008.
(R.A.) Appeal allowed
PLJ 2009 Lahore 27
Present: Syed Asghar Haider, J.
WASEEM IQBAL--Petitioner
versus
TANVEER AHMAD--Respondent
C.R. No. 831 of 2008, decided on 31.7.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 1 & 2, S. 115--Limitation Act, (IX of 1908), Art. 159--Suit for recovery on the basis of cheque--Leave to defend the suit was dismissed it was barred by afflux of time--Assailed--Summary procedure for trial of suits--Application was not required to be filed--Question of dismissing it on ground of limitation--Validity--Held: Provisions of Order XXXVII, CPC contemplate a summary procedure for trial of suits, it normally applies to commercial transactions and can be filed on the basis of bill of exchange, hundi, promissory note and cheque--Purpose of the enactment is to ensure quick decision of the dispute on one hand and limit the right of defence of delinquent defendant to defend the suit unless he obtains leave of Court by showing good cause--Suit lost its nature and character and was thus required to be tried as a normal suit--Bar therefore, of filing an application to obtain leave to defend the suit was wrongly applied, as the application was not required to be filed--Question of dismissing it on the ground of limitation was improperly invoked--Petition was allowed. [Pp. 28 & 30] A, B & C
Mr. Atta-ul-Mohsin Lak, Advocate for Petitioner.
Ms. Gulzar Butt, Advocate for Respondent.
Date of hearing: 14.7.2008.
Judgment
The respondent filed a suit for recovery of Rs. 1,50,000/- under the provisions of Order XXXVII C.P.C. on the basis of a cheque allegedly issued by the petitioner in favour of the respondent. Notice in ordinary manner was issued to the petitioner/defendant and he was served in person on 24.10.2007. He filed an application on 08.11.2007, to seek leave to defend the suit. It was dismissed holding that it was barred by afflux of time. Aggrieved thereof the present petition.
The learned counsel for the petitioner contended that the proceedings were filed against him under the provisions of Order XXXVII C.P.C. which mandates that summons have to be issued in Form 4 to Appendix B of the Code of Civil Procedure, 1908, this is a sine qua non, for effective service of the defendant, in case the summon is not issued in the prescribed form, it is violative of the spirit of law and tantamounts to nonservice in the eye of law. The record clearly reflects that no summon as contemplated by Order XXXVII Rule (2) CPC was issued by the learned trial Court, in fact, an ordinary notice was issued, therefore, requirements as ordained by law were not fulfilled, the petitioner was not served properly, consequently the dismissal of his application on the basis of Limitation is unwarranted, as no effective service took place.
The learned counsel for the respondent contended that Article 159 of the Limitation Act prescribes a period of 10-days for filing an application to appear and defend the suit under the provisions of Order XXXVII C.P.C., the defendant admittedly was served on 24.10.2007, he thus could file an application for leave to appear and defend the suit by 03.11.2007, but the same was filed on 08.11.2007, thus it clearly was filed beyond the period of limitation as granted by law and rightly dismissed. The impugned order; therefore, is unexceptionable.
Heard.
The provisions of Order XXXVII C.P.C. contemplate a summary procedure for trial of suits, it normally applies to commercial transactions and can be filed on the basis of a bill of exchange, hundi, promissory note and cheque etc. The purpose of this enactment is to ensure quick decision of the dispute on one hand and limit the right of defence of a delinquent defendant to defend the suit unless he obtains leave, of the Court by showing good cause. This is a special procedure, therefore, every provision enacted is required to be adhered to and strictly followed. The language couched in Order XXXVII Rule, (2) reads:--
"All suits upon bills of exchange, hundies, or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4, in Appendix B or in such other form as may be from time to time prescribed."
Therefore, to ensure effective service of the defendant law has made it incumbent and mandatory that summon be issued in Form 4 to Appendix B of the Code of Civil Procedure, 1908. Form 4 Appendix B reads as:--
NO.4 SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O.37 R.2).
(Title)
(Name description and place of residence)
Whereas ___________ has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for
Rs. ___________ balance of principal and interest due to him as the ___________ of a ___________ of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs. ___________ and the sum of Rs. ___________ for costs (together with such interest, if any, from the date of institution of the suit as the Court may order).
Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit.
GIVEN under my hand and the seal of the Court, this ____ day of ___________ 20 _____
Judge
The procedure devised under Order XXXVII C.P.C. is a special procedure. As the procedure devised is special and also summary in nature, therefore, obviously safety valves were incorporated to safeguard the interest of the defendant as well, otherwise he would be placed in disadvantageous position qua the plaintiff. Therefore, it is mandatory that summons, which accompany the plaint, are in special format prescribed by law, indicating the principal amount due, the interest thereon and also the duties cast upon the defendant warning him of consequences in case of non-compliance and penal provisions. Because normally litigants are not acquainted with this procedure, and an ordinary notice, would not dwell upon their rights and liabilities, therefore, the purpose of this summon is also to intimate the defendant of his rights in law and avoid confusion of filing a written statement in ordinary course of defence in a suit, the time frame for which is also different. Thus, if the summon is not issued in Appendix B Form No. 4, it is fatal to the character of the suit, and the natural consequence thereof is that the suit is to be tried as a normal civil suit for which, obviously the procedure is by contesting the same by filing a written statement, and there is no need to obtain leave of Court.
The present suit although was filed under the provisions of Order XXXVII C.P.C., but the summon/notice, issued, was not in Appendix B Form No. 4, therefore, the suit obviously lost its nature and character and was thus required to be tried as a normal suit, the bar, therefore, of filing an application to obtain leave to defend the suit was wrongly applied, as the application was not required to be filed, therefore, the question of dismissing it on the ground of limitation was improperly invoked. The impugned order is thus not tenable. I am fortified in this view from the following precedents:
Sh. Abdul Majid Vs. Syed Akhtar Hussain Zaidi (P.L.D. 1988 S.C. 124); and
Zubair Muhammad Versus United Bank Limited (2004 C.L.D. 112).
Resultantly this petition is allowed, the impugned order is set aside, the trial Court shall proceed to try the same in accordance with the procedure devised for ordinary civil suits, itself or by a Court of competent jurisdiction.
(R.A.) Petition allowed
PLJ 2009 Lahore 30
[Multan Bench Multan]
Present: Muhammad Khalid Alvi, J.
MUHAMMAD SIDDIQUE and 2 others--Petitioners
versus
KAREEM BAKHSH and another--Respondents
C.R. No. 32-D of 2008, heard on 16.5.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XLI, R. 20--Limitation Act, (IX of 1908), S. 22--Civil revision--Inherent powers of Appellate Court--Common questions of law and facts--Mutations were challenged--Application was filed before Appellate Court for seeking dismissal of appeals on the ground of non-impleading of necessary parties in appeals--Application was allowed by appellate Court--Assailed--No clash of interest between the parties--Hyper technical objection of non-impleading--Validity--Question of--Whether an application was made or not--Held: Appellate Court should have exercised its power under O. XLI, R. 20 of CPC and passed a formal order to appellants before it to implead the left-out parties--Petitions were allowed. [P. 32] A
1973 SCMR 420, NLR 1998 Civil 540 & 2007 YLR 3206.
Mr. Muhammad Ameer Bhatti, Advocate for Petitioner.
Mian M. Jamal, Advocate for Respondent No. 1.
Mr. Khalid Iqbal Choudhry, Advocate for Respondent No. 2.
Date of hearing: 16.5.2008.
Judgment
Through this single judgment, I propose to decide Civil Revision No. 32-D/2008 and Civil Revision No. 65-D/2008 as common questions of law & facts are involved in both the cases.
Brief facts of the case are that Respondent No. 1 filed a declaratory suit against the petitioners and Respondent No. 2 (petitioner in C.R. No. 65-D/2008) in this case challenging certain/mutations in favour of the petitioners and a subsequent mutation by the petitioners in favour of Respondent No. 2 Ghulam Nabi. The suit was contested by the defendants and was ultimately decreed by the learned trial Court vide judgment & decree dated 25.11.2006. This decree was separately assailed by the present petitioners and respondent Ghulam Nabi through their respective separate appeals. Incidentally, neither the petitioners impleaded Ghulam Nabi as respondent in their appeal nor Ghulam Nabi impleaded the present petitioners in his appeal. Respondent No. 1 Kareem Bakhsh filed an application before the learned appellate Court seeking dismissal of appeals on the ground of non-impleading of necessary parties in the respective appeals. The application was contested. However, the learned appellate Court vide judgment & decree dated 25.10.2007 while allowing the application of Respondent No. 1 dismissed both the appeals through separate judgments of the same date. Both these Judgments are being assailed through the instant two civil revisions.
Learned counsel for the petitioners with reference to Order XLI Rule 20, C.P.C. contends that it is the inherent power of the learned appellate Court to implead any party in the appeal who was a party in the suit if he is interested in the result of the appeal and adjourn the case for doing the needful. In support, he has relied on 1973 SCMR 420 and NLR 1998 Civil 540.
On the other hand, learned counsel for Respondent No. 1 plaintiff contends that petitioners never filed any application before the learned appellate Court for impleading each other in their respective appeals. It is further submitted that after the lapse of time for filing appeal, the left-out parties cannot be impleaded. It is further submitted that even before this Court, no such application has been filed. In support of his contentions, he has relied upon 2007 YLR 3206.
I have considered the contentions raised from both sides.
It was observed by his lordship while dealing with the case reported as NLR 1998 Civil 540 that the powers vested in the appellate Court under Order XLI Rules 4, 20 & 33, C.P.C are not controlled by the provisions of Section 22 of the Limitation Act. These are inherent powers of the appellate Court which can be exercised by the appellate Court at any time.
In the instant case, the interested parties were respondent Kareem Bakhsh on the one hand and petitioners & Respondent No. 2-Ghulam Nabi on the other hand. There was no clash of interest between the petitioners & Respondent No. 2 Ghulam Nabi. Petitioners and respondent Ghulam Nabi both filed appeals impleading Kareem Bakhsh-plaintiff alone as respondent in their appeals. Both appeals came-up for hearing before the learned appellate Court simultaneously. Admittedly, both the set of defendants did not implead each other in their respective appeals but they were before the Court, therefore, it would have been merely hyper-technical objection that they had not impleaded each other in their respective appeals. When all the necessary parties were before the Court then whether an application was made or not, the learned appellate Court should have exercised its powers under Rule 20 of Order XLI, C.P.C. and passed a formal order to both the appellants before it to implead the left-out parties. Precisely, same is the ratio of the judgment cited at the bar by the learned counsel for the petitioners i.e. 1973 SCMR 420. Following the dictum, I allow both these revision petitions; set-aside the judgment & decree I dated 25.10.2007 passed by the learned appellate Court in both the revisions; remand the case to the learned appellate Court where the petitioners shall, file amended memo of parties by impleading the left-out respondents and the appeals shall be thereafter decided on their respective merits. No order as to costs.
(R.A.) Petitions allowed.
PLJ 2009 Lahore 33
[Multan Bench Multan]
Present: Mazhar Hussain Minhas, J.
MUHAMMAD BASHIR--Petitioner
versus
Haji MUHAMMAD RAMZAN--Respondent
C.R. No. 783 of 1995, decided on 16.4.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for possession claiming his superior right of pre-emption--Land in-question had been alienated through a gift and it was not a sale transaction--Question of--Maintainability--Transaction in-question was a gift and not sale and as such suit for pre-emption was not competent--Validity--Land was alienated by way of gift and any price was not paid--In view of evidence the respondent has failed to discharge the onus to prove that the transaction in-question was sale and not a gift--Vendor and the petitioner are not related inter se as well as belong to different castes, therefore it was a sale transaction is absolutely incorrect--Revision was disposed of.
[Pp. 35 & 36] A, F & G
Transaction--
----Onus lies on party so pleading--Transaction is not the same as is described and recited in document, heavy onus lies on the party so pleading. [P. 35] B
Sale--
----Suit for pre-emption--Passing of the sale consideration must be proved by plaintiffs/pre-emptors for such purpose. [P. 36] C
Transfer of ownership--
----For a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. [P. 36] D
Iota of evidence--
----Transfer of ownership was not submitted--Validity--Disputed property has been sold to petitioner and its price has been paid to the vendor. [P. 36] E
Right of Pre-emption--
----Right of pre-emption can be defeated by any legal means or device.
[P. 36] H
1997 CLC 1819, ref.
2005 CLC 1593, 1972 SCMR 649 & 1997 CLC 1819, ref.
Mr. Muhammad Naveed Hashmi, Advocate for Petitioner.
Mr. Noor Ahmed Khan, Advocate for Respondent.
Date of hearing: 24.3.2008.
Judgment
The instant civil revision is directed against the judgment and decree dated 31.07.1995 passed by learned Additional District Judge, Dera Ghazi Khan, whereby accepting the appeal of respondent, judgment and decree dated 29.05.1994 passed by learned Civil Judge, Dera Ghazi Khan has been set aside and suit for pre-emption filed by the respondent has been decreed.
The respondent filed suit for possession claiming his superior right of pre-emption as against the petitioner on the basis of being Shafi-i-Sharik, Shafi-i-Jar and Shafi-i-Khalit. The petitioner contested the suit through his written statement raising various objections to its maintainability. He alleged that the land in dispute had been alienated to him through a gift and it was not a sale transaction, therefore, the suit was not maintainable. The learned trial Court framed the necessary issues and recorded evidence of the parties. After recording the evidence and hearing the arguments of the parties, learned trial Court proceeded to dismiss the suit vide its judgment and decree dated 29.05.1994. The respondent filed appeal which was accepted by the learned appellate Court vide judgment and decree dated 31.07.1995. Aggrieved by the judgment and decree passed by the learned Additional District Judge, the petitioner has approached this Court through civil revision.
I have heard the arguments of learned counsel for the parties and have gone through the record.
Learned counsel for the petitioner has contended that date, time and place of Talb-e-Muwathibat have not been recorded in the plaint, therefore, suit is not maintainable. The petitioner has adduced evidence to the effect that the disputed land was gifted to him through Mutation No. 605 dated 29.10.1992, and it was not sale, but his evidence has not been discussed by the learned appellate Court, therefore impugned judgment and decree is not sustainable.
Learned counsel for the respondent has, on the other hand, contended that in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in "Haji Noor Muhammad through his legal heirs versus Abdul Ghani and 2 others" (PLJ 2000 SC 595), the details of date, time and place and the names of those persons in whose presence Talb-e-Muwathibat was made, was not required to be specifically mentioned in the plaint. Learned counsel has further contended that it is proved from evidence on record that the transaction was a sale and not gift. Therefore, the suit has been rightly decreed by the learned appellate Court.
As regards Talb-e-Muwathibat, in Para No. 3 of his plaint, respondent recorded that he came to know about the impugned sale on 18.12.1992 in a meeting where he Pronounced to pre-empt the sale. On the following day, he along with Atta Muhammad son of Karam and Ilayat son of Punnu approached the petitioner and asked him to return the disputed land after taking its price amounting to Rs. 15,000/- and as such requirements of Talb-i-Ishhad were also fulfilled. He has further recorded in Para No. 4 of the plaint that on 22.12.1992 notice was issued to the petitioner and to fulfill requirements of Talb-i-Khasumat, suit was filed. While appearing as PW.2 also the respondent has reiterated the above averments of the plaint. In Para No. 6 of the above referred judgment, the Hon'ble Supreme Court of Pakistan, on the issue of Talabs has made the following observations:--
"We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for preemption is not an exception to such general principles, which is well settled in our jurisprudence.
We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirements of Talab-e-Muwathibat cannot be fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein."
In view of these observations of the apex Court, the contention of learned counsel for the petitioner is devoid of any force.
However, as regards the contention that transaction in question was a gift and not sale and as such suit for pre-emption was not competent, the respondent in his cross-examination has stated that he obtained copy of the mutation from Tehsil Office, Dera Ghazi Khan and got perused from a Patwari. It was sale mutation. He has further stated that, in fact, it was a sale but to defeat the right of pre-emption, mutation for gift was got sanctioned. He has not adduced any other evidence to prove his contention that the disputed property was sold to the petitioner and it was not alienated to him through gift. In "Muhammad Azam and 11 others versus Muhammad Nawaz and 8 others" (2005 CLC 1593), it has been held by this Court that in order to show and prove that the transaction is not the same as is described and recited in the document, heavy onus lies on the party so pleading. It is also settled law that passing of the sale consideration must be proved by the plaintiffs/preemptors for such purpose. In this judgment reliance has been placed on "Sher Azam versus Fazle Azim Shah" (1972 SCMR 649) wherein it has been observed that for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. As mentioned above, the respondent in this case has not brought on record even an iota of evidence to prove that the disputed property has been sold to the petitioner and its price has been paid to the vendor. The petitioner, on other hand has stated that the disputed property was gifted to him through mutation. Besides his own statement, he has examined Dost Muhammad (D.W.2) who is attesting witness of the mutation (Exh.P3). He has also supported the case of petitioner that the land was alienated by way of gift and any price was not paid. Thus, in view of evidence on record the respondent has failed to discharge the onus to prove that the impugned transaction was sale and not a gift. The inference drawn by the learned appellate Court that since the vendor and the petitioner are not related interse as well as belong to different castes, therefore it was a sale transaction, is absolutely incorrect. The law does not require a person to alienate his property through gift only to his relatives, he can gift his property even to a stranger. It is settled law that right of preemption can be defeated by any legal means or device. Reference may be made to "Raja Muhammad Siddique versus Abdul Rehman (1997 CLC 1819), wherein it has been laid down that it was lawful and permissible to defeat the right of preemption by any legitimate means or device of exchange of immovable property.
The upshot of the above discussion is that the suit has been rightly dismissed by the learned trial Court and impugned judgment and decree passed by the learned appellate Court is not sustainable in law. Hence, the same is set aside and the judgment and decree passed by the learned trial Court is upheld. This revision is disposed of accordingly.
(R.A.) Revision disposed of
PLJ 2009 Lahore 36
Present: Mian Saqib Nisar, J.
IQBAL MUHAMMAD alias MUHAMMAD IQBAL--Appellant
versus
YAMEEN deceased through LRs, etc.--Respondents
R.S.A. No. 115 of 2004, heard on 28.10.2008.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 15--Waiver of the right of pre-emption--Suit for pre-emption against respondent, decreed--Appeal was accepted by First Appellate Court--Assailed--Basic flaw in defence--Validity--In imputing waiver to appellant, there is a basic flaw in the defence of the respondent, as it has not been pleaded in the written statement that any amount was received by appellant and on account of such consideration, the appellant had waived his right rather in written statement--Held: In order to prove the waiver, strong evidence is needed but for the lapses, the appellant cannot be imputed any waiver--Appeal was accepted. [Pp. 38 & 39] A & F
1992 SCMR 786, ref.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 15--Issue of waiver--Proved of--Issue of waiver was to be construed, proved and decided on the basis of the respondents clear stance in their written statement and not beyond that. [P. 38] B
Administration of Justice--
----Fact not pleaded in the pleadings, cannot be proved through evidence.
[P. 38] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 14--Punjab Pre-emption Act, (IX of 1991), S. 15--Production of document--There is reference made to an agreement, which allegedly executed by the appellant alongwith the received to waive his right, but thus has not been produced in the evidence. [P. 38] D
Civil Procedure Code, 1908 (V of 1908)--
----O. XIII, R. 1--Documentary evidence to be produced at first hearing--In addition, the receipt was not filed alongwith the written statement and there is no mention of this in the form under O. XIII, R. 1 of C.P.C.--Held: No justification, why the other marginal witness of receipt was not examined. [Pp. 38 & 39] E
Syed Kabeer Mahmood, Advocate for Appellant.
Ch. Muhammad IqbalIV, Advocate for Respondents.
Date of hearing: 28.10.2008.
Judgment
The appellant brought a suit for pre-emption against the respondents regarding the land mentioned therein; the respondents contested the matter and took up the plea that at the time of the sale, it was offered to the appellant to purchase the land but he refused. Be that as it may, issues were framed; parties were put to trial and by giving positive findings on the main issues, such as superior right in favour of the appellant and upon limitation and waiver against the respondents, the suit was allowed by the learned trial Court vide judgment and decree dated 21.11.1983. Respondents preferred an appeal, which has been accepted vide judgment and decree dated 5.11.2001 and by reversing the findings on Issue No. 4 i.e regarding the waiver, the suit of the appellant stand dismissed.
Learned counsel for the appellant contends that the learned Appellate Court has decided the matter against the appellant on the basis of a receipt Ex.D-2, according to which, the appellant allegedly received a sum of Rs.5000/- and has waived his right of pre-emption. This document, according to him, is genuine; it was not filed alongwith the written statement; no defence was set out in the written statement about the execution of the document or the receipt of the amount of Rs.5000/- by the appellant; neither the scribe of the document Ex.D-2, nor the second marginal witness have been produced, therefore, such findings are contrary to law.
Learned counsel for the respondents, on the other hand, states that in the written statement, it is clearly mentioned that the suit land for its sale was offered to the appellant, but he declined. This broader plea also includes the assertion of the respondents that the amount of Rs.5000/- was received by the appellant and he executed the receipt Ex.D-2; besides, the receipt (Ex.D-2) was relied upon in the list of reliance filed alongwith the written statement and has been proved by one of the marginal witnesses Muhammad Rafique DW-4. Abdul Latif, DW-5 has also stated that the receipt was executed in his presence and the amount of Rs.5000/- was received by the appellant.
I have heard the learned counsel for the parties. In imputing waiver to the appellant, there is a basic flaw in the defence of the respondents, as it has not been pleaded in the written statement that any amount of Rs.5000/- was received by the appellant and on account of such consideration, the appellant had waived his right, rather in the written statement, it is mentioned that the appellant refused to purchase the suit land, which evidence particularly the receipt and the statements of the respondents' witnesses are contrary to the respondents' pleadings. The issue of waiver was to be construed, proved and decided on the basis of the respondents' clear stance in their written statement and not beyond that. It is settled law that fact not pleaded in the pleadings, cannot be proved through evidence. Moreover, according to the form filed by the respondents under Order 7 Rule 14, CPC, there is reference made to an agreement, which allegedly was executed by the appellant alongwith the receipt to waive his right, but this has not been produced in the evidence. In addition, the receipt Ex.D-2, was not filed alongwith the respondents' written statement and there is no mention of this in the form under Order 13 Rule 1 CPC. There is no justification, why the other marginal witness of Ex.D-2 was not examined. It is settled law that in order to prove the waiver, strong evidence is needed, but for the lapses mentioned above, the appellant cannot be imputed any waiver, especially in the light of the law laid down in the judgment reported as Jam Pari. vs. Muhammad Abdullah (1992 SCMR 786). Resultantly, the findings of the learned Court of appeal on the issue of waiver are reversed and the impugned judgment and decree is set aside and that of the learned trial Court is upheld. According to the appellant, the pre-emption money/sale price has already been deposited by the appellant with the learned trial Court, and therefore, no fresh order in this regard is required.
(R.A.) Appeal allowed
PLJ 2009 Lahore 39 (FB)
Present: Abdul Shakoor Paracha; M. Bilal Khan & Syed Shabbar Raza Rizvi, JJ.
NOOR ELAHI--Petitioner
versus
MIAN MUHAMMAD NAWAZ SHARIF and 4 others--Respondents
W.P. No. 6468 of 2008, decided on 23.6.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14(5)(6) & 99(f)(g)--Constitution of Pakistan, 1973, Arts. 199, 62 & 63--National Accountability Ordinance, 1999, Ss. 9(a)(v) & 10--Scrutiny of nomination papers--Nomination papers were rejected--Disqualification--Non production of Presidential order--Returning officer rejected the objection raised by the petitioner against filing of nomination papers--Matter was referred to Election Commissioner who had accepted the petition--Challenge to--He was disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as members or representative of any public office or any statutory or local authority of Government--Held: Respondent had sworn a false affidavit attached with the nomination papers--Order of Returning Officer and Tribunal were set aside--Respondent was declared as disqualified to contest the upcoming bye-election.
[P. 45] A & B
PLD 2005 SC 869 and PLD 2008 Lah. 149, Ref.
Dr. Mohay-Ud-Din Qazi, Advocate for Petitioner.
Mr. Abdul Rehman Raja, Deputy Attorney alongwith Mr. Nadeem-Ud-Din, Deputy Attorney for Respondents.
Date of hearing: 23.6.2008.
Order
This writ petition relates to scrutiny of nomination papers of Respondent No. 1 who is a candidate of impending bye-election of the National Assembly scheduled to take place on 26.6.2008. It may also be pointed out that respondent had also filed nomination papers to participate in General Elections from the same Constituency which was held on 18.2.2008. The nomination papers of Respondent No. 1 were rejected by the Returning Officer vide his order dated 3.12.2007. Respondent No. 1 did not choose to file an appeal and instead filed an application before the Chief Election Commissioner challenging the order of learned Returning Officer which was rejected by the Chief Election Commissioner on 17.12.2007.
"Accordingly, the appeals having no force, are dismissed and the impugned orders passed by the Returning Officers whereby Mian Nawaz Sharif and Mian Shahbaz Sharif were declared qualified to contest elections are upheld."
"The file (part-I & part-II) was received in this office today at 10.45 a.m. from the office of the Registrar, Lahore High Court, Lahore vide Letter No. 887-A.ARJ/ETP, dated 31.5.2008 through Mr. Arif Hussain, Assistant of Election Tribunal Branch of that Court. The matter was examined on file and placed before the Hon'ble Chief Election Commissioner of Pakistan, who has been pleased to observe as under:--
"The proposal highlighted in para 18/ante is approved as it is squarely in line with the mandatory provision of Section 14(6) of the Representation of the People Act, 1976 that an appeal not disposed of within the period specified in the Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to the Election Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or rejection of nomination papers by the Appellate Tribunal was 31st May, 2008".
No further action can be taken in the matter in view of the provisions of Section 14(6) of the Representation of the People Act, 1976. The original file (part-I & part-II) pertaining to the above cited appeal is returned herewith."
The learned counsel for the petitioner has challenged the above mentioned three orders in this writ petition i.e. order dated 15.5.2008, order dated 31.5.2008 and order dated 1.6.2008.
According to the learned counsel for the petitioner, Respondent No. 1 was convicted and sentenced to life imprisonment by a trial Court and his appeal was also dismissed by the learned High Court, Sindh vide its judgment dated 30.10.2000. Respondent No. 1 was also convicted and sentenced by an Accountability Court, Attock Fort, vide judgment dated 22.7.2000. Para 54 of the judgment of the learned Accountability Court reads as under:
"I have already held accused Muhammad Nawaz Sharif guilty u/S. 9(a)(v) of NAB Ordinance. He is hereby convicted u/S. 10 read with sec. 9(a)(v) of the NAB Ordinance is sentenced to RI for 14 years and a fine of Rs. 20,000,000/-. In default of payment of fine, he shall undergo further RI for a period of three years. He stands disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member or representative of any public or any statutory or local authority of the Government of Pakistan."
"Be that as it may, it is unfortunate that I am being denied my normal remedy to assail the order of rejection of my nomination papers, inasmuch as the Election Tribunal constituted by you and approved by President Musharaff comprises of Judges of the High Court who have taken oath under the PCO and whose status as such is seriously flawed."
According to the learned counsel there was an agreement/undertaking between Respondent No. 1 and some foreign statesmen which was not honoured by Respondent No. 1. This fact was published in foreign as well as local media. The learned counsel has given the details in Annexure-M, etc. The learned counsel also contended that Respondent No. 1 is a defaulter and in this connection refers to details in Annexure-N. According to the learned counsel, Respondent No. 1 had sworn a false declaration attached, with nomination papers in view of the above facts.
In support of his contentions, the learned counsel, referred to the order of the learned Returning Officer Raja Qamar Zaman dated 3.12.2007, whereby Respondent No. 1 was declared disqualified and according to the learned counsel that order was never set aside, hence had attained finality. The learned counsel also referred to the impugned judgment of the learned Tribunal passed by our learned brother Hafiz Tariq Naseem, J, wherein it had been observed as under:
"On the face of it, the arguments of the learned counsel for the appellants in this respect seems convincing but this Court/Tribunal while deciding the present controversy should not take it a matter of personal prestige rather, the foremost duty bestowed on the Court/Tribunal is to do justice keeping aside the personal allegations and annoyance and in this respect I am guided by a verse of Para Six, Surah Almaida."
According to the learned counsel, the allegation against Respondent No. 1 is to defame and to cause disrespect and contempt to the judiciary as an Institution. The allegation of causing defame etc. was not leveled as far as any individual Hon'ble Judge of this Court or any other Judge is concerned. According to the learned counsel the learned Member of the Tribunal himself agreed that apparently arguments of the learned counsel for the appellant seemed convincing as far as allegations to cause contempt against the judiciary is concerned.
According to the learned counsel for the petitioner the appeal of the petitioner was not disposed of in terms of sub-section (5) of Section 14 of the Representation of the People Act, 1976 as it was a split decision, therefore, sub-section (6) of Section 14 of the Act, 1976 was not attracted. In support of his contention, the learned counsel referred to Articles 219 and 222 of the Constitution of Pakistan. He also referred to Articles 62 & 63 of the Constitution of Pakistan to contend that Respondent No. 1 was not qualified and still is not qualified to contest the upcoming bye-election. He also referred to Section 99(f)(g) of the Representation of the People Act, 1976.
Order-sheet of this petition unveils that on 5.6.2008; notices were directed to be issued to all the respondents by all modes of service for 18.6.2008. Notice was also issued in CM No. 2 of 2008. Order of 18.6.2008, reads as under:
"As per report of Process Server duly supported by an affidavit which transpired that copy of notice has been received by a Gunman of Respondent No. 1 after establishing telephonic contact with him in presence of Process Server, which amounts that the service of Respondent No. 1 has been effected in accordance with law. Even otherwise, Mian Murghoob Ahmad, Secretary General of Muslim League (Nawaz) filed an application (CM No. 1307 of 2008) and Maher Zafar Iqbal, who is proposer of Respondent No. 1 also filed an application (CM No. 1360 of 2008), which clearly depicts that it is within the knowledge of Respondent No. 1 about the filing of instant writ petition whereby acceptance of his nomination papers have been challenged, therefore, his service is complete. Nobody has entered appearance on his behalf, therefore, he is proceeded ex-parte.
In view of the above situation, learned counsel for the petitioner, the learned Advocate General and learned Attorney General are directed to appear before this Court and address arguments on 20.6.2008."
"In view of our detailed order dated 18.6.2008 (announced on 20.6.2008) passed on C.M. Nos. 1260 and 1276 of 2008 in Writ Petition No. 6470/2008, these applications, filed under Order 1, Rule 10 CPC, are hereby dismissed."
Today upon reconstitution of the Bench the case was fixed before us; no one has entered appearance on behalf of Respondent No. 1 like the previous dates, of hearing. Thus, we have no other alternative except to decide this writ petition considering the arguments of the learned counsel for the petitioner, the learned Deputy Attorney as well the material available on the record.
The learned Deputy Attorney General, Raja Abdul Rehman appeared on behalf of Attorney General and supported the impugned order.
The relevant portion of the impugned order of the learned Returning Officer NA, 123, Lahore reads as under:
"The objection petitioner and his learned counsel also remained present today before this office but no document in support of his objection petition has been submitted. Even the earlier order passed by the Returning Officer was not produced. No document regarding conviction of the candidate was produced before this office. Without any documentary evidence or supporting material, I am unable to hold the candidate as disqualified to contest the bye-elections."
O'; order of Chief Election Commissioner dated 17.12.2007 available on record
Annexure-L' and application of Respondent No. 1 himself dated 7.12.2007 available on the file as Annexure-K'. There was no justification for the
Returning Officer to observe that no document regarding conviction of the candidate (Respondent No. 1) was produced before the learned Returning Officer.
The order of conviction passed by Accountability Court Attock Fort, in reference 2 of 2000 dated 20.7.2007 is available on record as Annexure-J', detail of which has already been given. Our learned brother Muhammad Akram
Qureshi, J, the learned Member of the Tribunal, had held that the order of the learned Returning Officer was not in consonance with the provision of the law, thus, his lordship had set aside the orders of the learned Returning Officer and had declared Respondent No. 1 to be disqualified to contest the bye-election. Our learned brother Hafiz Tariq . Naseem, J. held that:""On the face of it, the arguments of the learned counsel for the appellants in this respect seems convincing but this Court/Tribunal while deciding the present controversy should not take it a matter of personal prestige rather, the foremost duty bestowed on the Court/Tribunal is to do justice keeping aside the personal allegations and annoyance and in this respect I am guided by a verse of Para Six, Surah Almaida."
So even our learned brother Hafiz Tariq Naseem, J. was convinced that allegations leveled against Respondent No. 1, particularly, maligning, defaming and abusing the judiciary, were convincing but he decided to overlook the same by not taking it a matter of personal prestige. We agree with the learned counsel for the petitioner that maligning, defaming and abusing of judiciary is not targeted by the respondent against any individual rather it is against the whole Institution which is also obvious from Respondent No. 1's letter addressed to the Chief Election Commissioner dated 7.12.2007 (Annexure-K). Order of Chief Election Commissioner dated 1.6.2008, does not appear to be an appropriate order in view of provisions of Section 14(5) to be read with provisions of Section 11(a) of the Representation of the People Act, 1976.
We are in agreement with the learned counsel for the petitioner that Presidential Order under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 does not exonerate the Respondent No. 1 from the sentence and conviction recorded by the Court of competent jurisdiction, particularly, when the respondent has failed to produce the Presidential Order. It has been held in case reported as Naghma Mushtaq vs. Election Tribunal Punjab Lahore and two others, PLD 2008 (Full Bench) Lahore 149 that during the process of scrutiny, if any objection is raised against any candidate on the basis of lack, of required qualifications to contest elections, burden to prove such qualification is heavier on the candidate than the objector.
In view of the above discussion, we hold that Respondent No. 1 is a convict in view of the judgment of Accountability Court, in reference No. 2 of 2000 dated 22.7.2000, whereby he was convicted under Section 10 read with Section 9(a)(v) of the NAB Ordinance and sentenced to 14 years RI and a fine of Rs. 20,00,000,000/- in default of payment of fine he was further directed to undergo RI for a period of three years. He was also disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or any statutory or local authority of Government of Pakistan. We also hold that Respondent No. 1 has scandalized, abused, disobeyed and ridiculed the judiciary of Pakistan. He has also sworn a false affidavit attached with the nomination papers.
In view of our above findings, order of the Returning Officer, dated 15.5.2008, order of the learned Tribunal dated 31.5.2008, and order of the learned Election Commissioner of Pakistan dated 1.6.2008 are set aside and are declared to be of no legal effect. As a result of above the findings, Respondent No. 1 is declared as disqualified to contest the upcoming bye-election scheduled to take place on 26.6.2008 in view of the express provisions of Articles 62 and 63 of the Constitution to be read with Section 99(f)(g) of the Representation of the People Act, 1976.
While we were in process of dictating this order, some civil miscellaneous applications in this writ petition bearing C.M. Nos. 1379, 1380, 1382, 1383, 1384 and 1385 of 2008 had been placed before us by the office which had been filed today which in substance seek review of the order of this Court dated 20.6.2008 whereby number of applications under Order 1, Rule 10 CPC had been dismissed. We have minutely examined the said applications and have come to the conclusion that the same have been moved only with a view to delaying and procrastinated proceedings. We find no merit in these petitions as no error apparent on the face of record is identified. Resultantly, we dismiss these C.Ms. Likewise, C.M. No. 1381/08 which is an application by one Wali Muhammad seeking to be impleaded as a party that is also dismissed for the reasons as spelled out in the order dated 20.06.2008 passed in C.M. Nos. 1305 to 1310 and 1317 of 2008.
(W.I.B) Petition accepted
PLJ 2009 Lahore 46
Present: Hafiz Tariq Naseem, J.
MAQSOOD PERVAIZ QURESHI, ASSISTANT DIRECTOR (RESEARCH) E.P.A. PUNJAB, LAHORE--Petitioner
versus
GOVERNMENT OF THE PUNJAB through Secretary Environment Protection Department Hockey Stadium and 13 others--Respondents
W.P. No 2052 of 2008, heard on 11.07.2008.
Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974--
----R. 13--Promotion--Civil servant was victimized without any fault and private respondent was accommodated out of way--Pick and choose--Court took serious notice and the petitioner was promoted in half hatred manner under the direction of the Court tagging a word officiating despite the clear stance--Challenge to--Civil servant seniority was not disputed--Eligibility is not disputed petitioner's case was presented before the duly constituted departmental promotion board against which the recommendation of the DPC were made a vacant post--Petitioner who had requisited qualification, made himself eligible for promotion to the slot of Deputy Director on regular basis and in the presence of clear vacancy on regular basis rather smothering his right by promoting the petition on officiating basis--Civil servant therefore eligible for promotion on regular basis being the suitable as demonstrated and the petitioner shall be entitled for all consequential benefits. [Pp. 49 & 50] A & B
Mr. Muhammad Umar Riaz, Advocate for Petitioner.
Ch. Naeem Masood, AAG with Nawaz Manik Deputy Directore (L&E) Mehar Mumtaz, Deputy Secretary, Government of Punjab for Respondents.
Date of hearing: 11.7.2008.
Judgment
The petitioner has filed the writ petition with different prayers, however, during the arguments the petitioner contends with the prayer that notification dated 2.8.2007 whereby the juniors were promoted and the petitioner was singled out be declared as illegal and the petitioner's case for further promotion be directed to be considered with effect from 15.1.2003.
In response to the Court's notice Respondent No. 1 filed objections/reply and under para-19 it is submitted "the DPC held on 30.7.2007 recommended 07 Assistant Directors (04 on regular basis & 03 on officiating basis) while one seat is still vacant as it was kept reserved for Research cadre." In reply against ground para-B, Respondent No. 1 admitted the petitioner's seniority viz Respondent No. 5.
Keeping in view the comments filed by Respondent No. 1, the Secretary Environment, Government of the Punjab was directed to afford a chance of personal hearing to the petitioner as well as to Respondents No. 5 to 14, examine the entire record treating the writ petition as representation and then decide the matter afresh.
In compliance to the Court order Major (R) Shah Nawaz Badar, Secretary Environment, Government of the Punjab examined the case thoroughly, heard the petitioner as well as Respondents No. 5 to 14 and submitted his report and in the concluding para it is contended, "the case of the petitioner Maqsood Pervaiz Qureshi, has been examined in detail and it is decided that it will be placed before the DPC, to be held in the last week of May 2008. Since a vacant post of Deputy Director (Technical) is available in EPA. His promotion will be discussed and decided alongwith other officers on the basis of seniority-cum-fitness."
Today the Deputy Secretary Environment, Government of the Punjab has placed order dated 5.7.2008 which is as follows:--
"GOVERNMENT Of The PUNJAB ENVIRONMENT PROTECTION DEPARTMENT
ORDER
NO.SO(ESTT.)/EPD/10-1/2008. Consequent upon the recommendations of Departmental Promotion Committee Meeting held on 04.07.2008 under the chairmanship of Secretary EDP, Mr. Maqsood Pervaiz Qureshi, Research Officer/Assistant Director (Research) BS-17 is hereby promoted as Deputy Director (Technical) BS-18 on officiating basis under Rule-13 of Punjab Civil Servant (Appointment and Condition of Services) Rules, 1974.
ZAFAR IQBAL
SECRETARY ENVIRONMENT
Dated Lahore the 5th July, 2008
NO. & DATE EVEN.
A copy is forwarded for information and necessary action to:-
The Accountant General, Punjab, Lahore.
The Director General, EPA, Punjab, Lahore.
The District Coordination Officer, Lahore.
The Deputy Director (Admn), EPA, Punjab, Lahore.
Officer concerned.
P.S to Secretary EPD, Punjab, Lahore.
P.S to Secretary Regulations, Government of the Punjab, S&GAD, Lahore.
Office order file.
(S. M. RAZA)
SECTION OFFICER (ESTT.)"
The learned counsel for the petitioner submits that the petitioner is being victimized since long with no fault of him, the department has accommodated the private respondents out of way, the applicable rules were violated only to accommodate the blue-eyed and the petitioner was singled out on the basis of whims and moods, pick and choose and finally when the Court took a serious notice, the petitioner is promoted in a half hearted manner tagging a word `officiating' despite the clear stance of the department that a post of Deputy Director (Technical) was vacant. On the other hand, the learned Assistant Advocate General Punjab Lahore submits that as the petitioner is going to be superannuated attaining the age of 60 in the next month i.e. August 2008 it shall be immaterial for him to have a promotion on regular basis or on officiating whereas the petitioner's grievance is redressed through the order dated 5.7.2008.
Arguments heard; record perused.
It is surprising that in the comments submitted by Respondent No. 1, in the report submitted by Major (R) Shah Nawaz Badar dated 25.4.2008 it is admitted in so many words that a post of Deputy Director (Technical) is vacant and the petitioner shall be considered on the basis of seniority-cum-fitness.
Particularly, when the petitioner's seniority is not disputed, eligibility is not disputed petitioner's case was presented before the duly constituted Departmental Promotion Committee, petitioner's promotion was recommended, post against which the recommendations of the DPC were made was a vacant post, the petitioner is promoted through order dated 5.7.2008 then using of word officiating seems to be a mockery to the rules and smells a mala fide. The petitioner who had requisite qualification, made himself eligible for promotion to the slot of Deputy Director on regular basis and in the presence of clear vacancy on regular basis rather smothering his right by promoting the petition on officiating basis. Rule 13 of the Punjab Civil Servants (Appointment and Condition of Service) Rules 1974 envisages appointment by promotion on officiating basis. Sub-section (i) of Section 13 reads as under:--
"Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the incumbent or is reserved under the rules to be filled by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis. "
9-A. A bare reading of the concluding provisions of law makes it abundantly clear that for initiating appointment, certain contingencies are prerequisite. None of them exist in the present controversy. A clear cut vacancy on regular basis was available, why the petitioner was not promoted on regular basis is beyond apprehension, particularly when the petitioner fulfilled all the qualifications and there was no disqualification standing against his name, at least none has been pointed out on the basis of the documents on record. The petitioner was, therefore, eligible for promotion on regular basis being the suitable as demonstrated and the petitioner shall be entitled for all consequential benefits.
As discussed earlier that the petitioner's seniority, eligibility, suitability as well as availability of the clear post of Deputy Director (Technical) was available, then the petitioner promotion could only be termed as regular one not on officiating basis.
In the attending circumstances, the petitioner's promotion to the post of Deputy Director (Technical) on officiating basis shall be treated as regular promotion for all purposes and the writ petition is disposed with the above observations.
(W.I.B.) Petition disposed of
PLJ 2009 Lahore 50
Present: Kh. Farooq Saeed, J.
NIAZ ABBAS--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, FAISALABAD
and 2 others--Respondents
W.P. No. 8202 of 2008, decided on 04.07.2008.
Interpretation of Statute--
----Construction leading to absurdity is to be avoided. [P. 53] A
Right of Appeal--
----Right of appeal is a vested right which accrues to a litigants and exist as on and from date liz commences and such right can be taken away only by a subsequent enactment with an express language or by necessary intendments. [P. 53] B
West Pakistan Muslim Family Courts Act, 1964 (XXXV of 1964)--
----S. 14(2)(b)--Constitution of Pakistan, 1973, Art. 199--Decreed amount was less than Rs. 30,000--Maintainability of appeal--Held: Abridgment applies to the judgment debtor and not to the decree holder--Provisions of the Family Courts Act, are of a beneficial nature, which enlarge the scope and also vest the Court with power of giving great relief with a right of appeal. [Pp. 53 & 54] C & D
2002 MLD 784, Ref.
Interpretation of Statute--
----Primary rule of construction which strictly applicable here is to determine the intent of the legislature and which in fact should be given the supreme importance--Cardinal rule of construction of Acts of Parliament is that it should be construed in accordance with the language expressed in the law itself. [P. 54] E
Family matters--
----Family matters are not decided strictly on the yard stick of procedural laws nor any other principle aimed at the observance of the technicalities. [P. ] F
PLD 2005 Lah. 97, Ref.
Syed Faiz-Ul-Hassan, Advocate for Petitioner.
Date of hearing: 4.7.2008.
Order
Contends that under Section 14(2)(b) of the Muslim Family Courts Act, 1964, appeal was not maintainable since the amount decreed was less than Rs. 30,000/-. The order, therefore, is illegal and without jurisdiction. In view of the said illegality this writ petition is maintainable and should accordingly be allowed with consequent relief.
Before proceeding further the relevant provision of section is reproduced:--
Appeal:--(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable--
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge.
(b) To the District Court in any other case.
(2) No appeal shall lie from a decree by a Family Court--
(a) for decision of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, (b) for dower [or dowry] not exceeding rupees [thirty thousand], (c) for maintenance of rupees [one thousand] or less per month, (3) No appeal or revision shall lie against an interim order passed by a Family Court.
(4) The appellate Court referred to in sub-section (1) shall dispose of the appeal within a period of four months.
decision' given or adecree' passed by a Family Court shall be appealable. While, however, in Section 14 (2) while abridging the right the language is that no appeal lie from a decree' by a Family Court. Here the worddecision' has not been added while abridging the right of appeal under Section 14 (2) (a), (b) and (c). In the present case Section 14 (2) is applicable.
However, it does not give any reason to a just mind that this abridgement can apply even on the decree holder. There obviously cannot be any doubt about the judgment debtor that all the three sub-sections of Section 14 (2) as are obtaining in law today are applicable on him with full strength. However, its application in the case of the decree holder does not sound correct to this
Court. For example if a poor lady has taken with her the dowry articles or her dower amount both are less than Rs. 30,000/- and the Family Court for the reasons before it decides not to provide even the said amount or something less than its claim it will be total injustice for the said woman not to provide a right of appeal against the said order. This would mean that her right of appeal culminates and the first forum i.e. Judge Family Court is the last hope for her. Fortunately, this Court has been able to lay its hand on a judgment reported as (2002 M.L.D 784) in the case of "Mst. Neelam Nosheen and others Vs. Raja Muhammad Khaqaan and others", wherein, this matter has already been decided with reference to provision of Section 14 (2) (c). The same speaks as follows:--"14(2)--
"No appeal shall lie from a decree passed by Family Court--
(c) for maintenance of rupees five hundred or less per month.
The contentions of the learned counsel for the petitioner has no merit. The abridgement applies to the judgment-debtor and not to the decree holder. The language of the Section can have only one interpretation. The impediment against filing the appeal applies to the judgment-debtor as the legislature thought it fit not to provide an appeal against a decree for a meager amount. If the contentions of the learned counsel for the petitioner is accepted that will lead to injustice and anomaly. If the Family Court awards maintenance allowance for Rs. 500 per month or less, the wife or the minor children are entitled to file an appeal before the higher Court. By no stretch of imagination can it be inferred that the legislature intended to deprive the minors or the wife from their vested right of appeal. The West Pakistan Family Courts Act, 1964, indicates that the provisions of the Act are of a beneficial nature which enlarge the scope and also west the Court with power of giving great relief with a right of appeal. It is well established that construction leading to absurdity is to be avoided. It is more in accordance with reason and justice. If the construction as alleged by the learned counsel for the petitioner is adopted, this will lead to hardship and injustice to the minors. Such-like interpretation cannot be imputed to the legislature and the very purpose of the Act for which it was enacted will be defeated."
The above para is very clear in its application. The culmination of the proceedings is in respect of the judgment debtor only and this Court does not have any doubt in its mind that the same can be applied on the decree holder as well.
The right of appeal is a vested right which accrues to the litigants and exist as on and from date liz commences and such right can be taken away only by a subsequent enactment with an express language or by necessary intendments. By abridgment as per Section 14 (2) (b) the right of appeal has been withdrawn against the judgment debtor. The respondent Ex-husband if he wants to challenge the decree of dowry articles for Rs. 30,000/- or less, have been debarred from filing the appeal. There is no reason for this Court to agree that the legislature can be imputed with an intention that the wife who has already been granted a meager amount as maintenance would also be deprived of the right of appeal as well. The intention of the legislature in such circumstances has already been considered as relevant for interpretation of statutes. Even otherwise, the abridgment has been provided against the decree only and not the judgment. The appeal against the judgment remains intact. In this regard one can place reliance on (2003 Y.L.R 870) re: "Mst. Atia Wahab and another Vs. Munir Ahmed and 2 others". The judgment now referred by this Court inter alia has discussed two issues. One is in respect of the specific mentioning of the right of appeal against the judgment and decree and the subsequent is abridgment of said right in respect of decree only. The finding of the Court with respect thereto is as follows:--
"The contention of the learned counsel for the petitioner has no merit. The abridgment applies to the judgment-debtor and not to the decree-holder. The language of the section can have only one interpretation. The impediment against filing the appeal applies to the judgment-debtor as the Legislature thought it fit not to provide an appeal against a decree for a meager amount. If the contention of the learned counsel for the petitioner is accepted that will lead to injustice and anomaly. If the Family Court awards maintenance allowance for Rs. 500/- per month or less, the wife or the minor children are entitled to file an appeal before the higher Court. By no stretch of imagination can it be inferred that the Legislature intended to deprive the minors or the wife from their vested right of appeal. The West Pakistan Family Courts Act, 1964, indicates that the provisions of the Act are of a beneficial nature which enlarge the scope and also vest the Court with power of giving great relief with a right of appeal. It is well established that construction leading to absurdity is to be avoided. It is more in accordance with reason and justice. If the construction as alleged by the learned counsel for the petitioner is adopted, this will lead to hardship and injustice to the minors. Such like interpretation cannot be imputed to the Legislature and very purpose of the Act for which it was enacted will be defeated."
This Court would readily agree with the aforementioned judgment as use of the term `decree' in Section 14 (2) through which abridgment has been provided, cannot be considered as superfluous. The legislature has used the same advisedly and intentionally, hence should not be ignored as already been held by the Hon'ble Court in the aforementioned judgment.
The primary rule of construction which is strictly applicable here is to determine the intent of the legislature and which in fact should be given the supreme importance. The cardinal rule of the construction of Acts of Parliament is that it should be construed in accordance with the language expressed, in the law itself. Bennion on "Statute Law" 3rd Edition pages 97 and 98 says that an enactment has the legal meaning taken to be intended by the legislative. Similarly, Lord Redcliff in "A.G of Canada V. Hallet & Carey Ltd" (1952 A.C 427) has held that there are many so-called rules of construction that Courts of law have resorted to in their interpretation of statute but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention. Lord Halsbury has summed up the historical principle regarding legislative intent as follows:--
"that the judges have collected that intention sometimes by considering the cause of necessity of making the Act... sometimes by foreign circumstances (thereby meaning extraneous circumstances), so that they have been guided by the intent of legislature, which they have always taken according to the necessity of the matter and according to that which is consonant to reason and good discussion."
7-A. This Court is also conscious that the family matters are not decided strictly on the yard stick of procedural laws nor any other principle aimed at the observance of the technicalities. Reference (P.L.D 2005 Lahore 97) in case of "Hassan and others Vs. Chaudhary Tahir Saeed and others".
Upshot of the above discussion, therefore, is that since the right of appeal is a vested right and in the case of decree holder who has already been given a small amount i.e. up to maximum of Rs. 30,000/- or less, the right of appeal from the said poor lady cannot be relinquished.
In view thereof, this writ petition is considered without any useful purpose, hence, the same is dismissed.
(W.I.B.) Petition dismissed
PLJ 2009 Lahore 55
Present: Hasnat Ahmad Khan, J.
JAVAID IQBAL--Petitioner
versus
ADDL. INSPECTOR GENERAL OF POLICE, INVESTIGATION BRACH, PUNJAB POLICE SECRETARIAT, LAHORE and 4 others--Respondents
W.P. No. 2793 of 2007, heard on 27-06-2008.
Police Order 2002 (22 of 2002)--
----S. 18(6)--General Clauses Act, 1897, S. 21--Constitution of Pakistan 1973, Art. 199--Reinvestigation--Standing Board recommended the case for the change of investigation--Refusal was made by Addl. I.G. the first change of investigation--Review--Powers of Addl. I.G.--Held: Additional Inspector General of Police (investigation,) though, u/S. 18(6) of Police Order, 2002 is bound to have due deliberations and recommendations by a board constituted in terms of the provision but, of course, after considering the pros and cons of the case, he can disagree with the recommendation, however, he has got no power to review his earlier order--Further held: If such practice is allowed no finality would be attached to the order of Addl. I.G.--End to be achieved by this finality minimization of the wastage of time in the matter of transfer of investigation, would be frustrated.
[P. 60] A
PLD 2007 SC 31 and 539 & 2005 SCMR 1201, ref.
Review--
----Right of--Review is a substantial right and is always the creation of relevant statute on the object. [P. 60] B
Hafiz Abdul Rehman Ansari, Advocate for Petitioner.
Mr. Tahir Mehmood Gondal, AAG for Respondents Nos. 1, 2, 4 and 5.
Ch. Zahoor-Ul-Haq, Advocate for Respondent No 3.
Date of hearing: 27.6.2008.
Judgment
Through this constitutional petition, the legality and validity of the order dated 24-3-2007 passed by Addl. Inspector General of Police, Investigation Branch, Punjab, Lahore (hereinafter to be referred to as Respondent No. 1), whereby the application filed by Respondent No. 3 for the transfer of investigation of case F.I.R. No. 344, dated 6-5-2006, registered at the Police Station Phoolnagar, District Kasur, in respect of offences under Sections 302/324/148/149, P.P.C, was accepted and the order of the "first change of investigation" was passed, has been called in to question.
Succinctly, the facts of the case, giving rise to the filing of this petition are; that the above-mentioned case was registered against the petitioner and some others. After the registration of the case, the investigation was conducted by the local police (investigation cell) under the supervision of Superintendent of Police (investigation), Kasur, who found the petitioner and 13 others innocent. However, 6 people were found guilty during the said investigation. Consequently, a report under Section 173, Cr.P.C was prepared and sent before the Court of competent jurisdiction.
After completion of the necessary formalities, the trial of the case was entrusted to an Addl. Sessions Judge, Kasur. In the meanwhile, Rana Muhammad Naeem-complainant of the case, submitted an application before Respondent No. 1 for the transfer of investigation. On the said application, the matter was referred to the Standing Board vide Memo. dated 4-8-2006. The said Board recommended the first change of investigation. The recommendation of the said Board was transmitted to Respondent No. 1 by Deputy Inspector General of Police, Sheikhupura Range, Lahore, vide letter dated 7-9-2006. After considering the matter, the said recommendation did not find favour with Respondent No. 1, who, refused to accept the application, filed by the Respondent No. 3 for the first change of investigation, and, instead, directed the head of investigation to finalise the matter strictly on merit.
It appears that feeling aggrieved by the said order, the complainant approached the Provincial Police Officer for the redressal of his grievance. The said application was marked to Respondent No. 1 vide Memo, dated 7-11-2006 with a direction to process the same for the first change of the investigation. On receipt of the said letter, the matter was referred by Respondent No. 1 to the Standing Board for re-examination vide, Memo, dated 11-12-2006.
After considering the pros and cons of the matter, the Standing Board declined to recommend the case for first change of the investigation. The said report, in turn, was transmitted by Regional Police Officer, Region-I, Sheikhupura, at Lahore, to Respondent No. 1, who, after disagreeing with the negative finding of the Board, proceeded to review his earlier order and passed the impugned order, directing first change of the investigation.
Feeling aggrieved by the said order, the petitioner filed the instant petition, which was admitted to regular hearing on 28-3-2007. While admitting the petition, this Court passed an injunctive order in the following terms:
"Notice for 17.04.2007. Meanwhile, no investigation shall be carried out pursuant to the order of Additional Inspector General of Police (Investigation) Punjab, dated 24.03.2007. However, this order or the order passed in the main writ petition shall not preclude the trial Court from proceeding with the trial."
During the course of hearing of this petition on 28-5-2008, the learned counsel for Respondent No. 3 emphatically asserted that during the investigation, the statement of Muhammad Rafique, Inspector Police, who, according to the complainant, was also one of the eye-witnesses of the occurrence, had duly been recorded under Section 161, Cr.P.C but, the said statement was removed from the police file. To augment his arguments, the learned counsel for Respondent No. 3 had placed on the record a photocopy of the said statement. The said assertion was denied by the learned counsel for the petitioner.
To resolve the said controversy, Muhammad Rafique, Inspector Police was directed to appear before this Court. The said officer entered appearance and has categorically denied the making such a statement. Moreover, he disagreed with the fact that he had written or signed such a statement. Without giving any finding on the said aspect of the matter, lest it my not prejudice the trial, I intend to proceed ahead.
The learned counsel for the petitioner has contended that not only the challan had been submitted in the Court but the trial has also commenced; that in this backdrop, there was no occasion for Respondent No. 1 to order the re-investigation of the case, especially, keeping in view the fact that he had himself turned down the plea for change of investigation in the past; that after recording the statement of the complainant, all the accused, who had been found innocent by the investigating officer, have already been summoned to face the trial; that opinion of the police, being neither relevant nor admissible in evidence, the case has to be decided on the basis of the evidence, produced before the learned trial Court; that the purpose of the investigation is to collect evidence, which has already been collected and, therefore, no useful purpose would be served by further delaying the matter; that after the submission of the challan, the investigation cannot be transferred. To augment his arguments, the learned counsel for the petitioner has placed his reliance on the case of Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31).
Conversely, the learned counsel appearing on behalf of Respondent No. 3 has defended the impugned order by submitting that no illegality had been committed by Respondent No. 1 while accepting the application of the complainant; that under Section 21 of the General Clauses Act, Respondent No. 1 was within his rights to review his earlier order; that the contents of the F.I.R clearly depict that the occurrence had taken place in the presence and sight of Muhammad Rafique, Inspector, who, therefore, during his investigation had recorded his own statement under Section 161, Cr.P.C but the said statement was dishonestly removed from the police file to benefit the accused; that the statement made by the said police officer before this Court, today, is totally false and the complainant reserves his right to proceed against him for making a false statement and tempering with the record and that the impugned order, being a well-reasoned order, does not merit interference in exercise of the constitutional jurisdiction.
The learned Assistant Advocate-General has adopted the arguments put forth by the learned counsel for Respondent No. 3.
Having heard the respective counsel for the parties and going through the record minutely, I have gathered that the case was registered on the application of the complainant way back on 6-5-2006. After the investigation, a report under Section 173, Cr.P.C was submitted and the trial in the said case is in progress. Though, during the investigation, some of the accused were found innocent but, admittedly, when the complainant made his statement, during the trial, the said accused were summoned by the learned trial Court to face the trial. Though, there is no bar against re-investigation of the case after the submission of report under Section 173, Cr.P.C, as has been held by the Hon'ble Supreme Court in the case of Bahadur Khan v. Muhammad Azarn and 2 others (2006 SCMR 373), yet the fact remains that ultimately, the case has to be decided on the basis of evidence recorded before the learned trial Court. The purpose of investigation, as defined under Section 4 (1) Cr.P.C, is the collection of evidence by a police officer or by any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf. The said definition does not talk of the opinion of the police officer, who, under the said definition, is only authorized to collect the evidence, therefore, the opinion of the police is neither relevant nor admissible in evidence. In this backdrop, frequent transfers of investigations, has been discouraged by the superior Courts. As a matter of fact, the Police Order 2002 was promulgated to discourage the said tendency, which ordinarily causes delay in the trials. In a landmark judgment reported as Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539), it was observed by the Hon'ble Supreme Court as under:
"This tossing around of the investigations acquired the name of transfer of investigations and in turn also acquired notoriety as the same caused inordinate delays in the conclusion of investigations; resulted in contradictory opinions of different Investigating Officers and in collection of pieces of evidence which were irreconcilable and also because motives also started to be attributed to orders leading to such transfers. Needless to add that such like investigations had devastating effects on the quality of trials that followed. And it was for these reasons that the Superior Courts of the country never approved of the said so-called transfers of investigations and always deprecated the same."
Nevertheless, the re-investigation of a case after the submission of the challan cannot be debarred. The judgment relied upon by the learned counsel for the petitioner is not applicable, because of its distinctive features. Even otherwise, Bahadur Khan's case (supra) whereby it has been held by the Hon'ble Supreme Court that the investigation can be conducted even after the submission of the challan, is of a Larger Bench. It has been categorically held by the Hon'ble Supreme Court that a judgment of the Larger Bench of the Supreme Court would be preferred over the judgment of a Smaller Bench. Reliance in this regard is placed on the case of Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others (2005 SCMR 1201).
Now, I intend to proceed further to determine, as to whether in this particular case, the order for change of first investigation was justified or not? While doing so, I have gathered that in this case the complainant being dis-satisfied with the result of first investigation, wherein most of the accused were declared innocent, he approached Respondent No. 1 for transfer of investigation. On the said move, the Standing Board recommended the case for the change of investigation. However, Respondent No. 1 vide order dated 16-9-2006 did not agree with the said recommendation and refused to order the first change of investigation. On the second move of the complainant, Respondent No. 1 again referred the matter to the Standing Board, which did not recommend the case for the first change of investigation. While doing so, it was observed as under:
"INVESTIGATION
Investigation of the case was conducted by S.I. Saad Ullah under the close supervision of SP/Investigation Kasur. During investigation accused Tariq Mehmood, Maqbool Ahmed, Muhammad Boota and Sarfraz were found guilty and sent to judicial lock-up after recovery of weapons of offence. Whereas accused Javed Iqbal, Liaqat Ali, Muhammad Yousaf have been found innocent. Complainant got recorded his supplementary statement mentioning the accused as Sajjad Ahmed, Khabib Ahmed, Fiaz etc. During investigation accused Habib Ahmed and Fiaz have been found guilty and sent to Jail whereas accused Sajjd Ahmed has been found innocent whereas accused Azam alongwith 13 who were nominated in supplementary statement were also found in Column No. 2. No new reasons have cause-change of investigation. The Board has not recommended the case for 1st change of investigation."
Ironically enough, this time Respondent No. 1 again disagreed with the recommendation of the Board and proceeded to review his earlier order and ordered for the first change of investigation for reasons best known to him. The conduct of Respondent No. 1, prima facie, is very strange. At first, when the Board recommended for change of first investigation, the same was refused and later on, when the Standing Board refused to recommend the case for the first-change of investigation, a contrary order was passed by him. It goes without saying that according to me, the Addl. Inspector General of Police (investigation), though, under Section 18 (6) of Police Order, 2002 is bound to have due deliberations and recommendations by a Board constituted in terms of the said provision but, of course, after considering the pros and cons of the case, he can disagree with the said recommendation, however, he has got no power to review his earlier order. If this practice is allowed, no finality would be of attached to the orders of Addl. Inspector General of Police (investigation). The end to be achieved by this finality i.e minimization of the wastage of time in the matter of transfer of investigations, would be frustrated. Even, otherwise, under the provisions of the Police Order, he has got no power to review his earlier order. Right of review is a substantial right and is always the creation of relevant statute on the object.
The spirit of Article 18(6) of the Police Order, 2002 is to discourage the re-investigation. Reliance in this regard is placed on Imran Shaukat v. Incharge (investigation), Police Station, Nawankot, Lahore and 2 others (2006 MLD 501). The exercise of powers under special enactment does not imply a power to review earlier orders in exercise of inherent powers, unless the power of review is specifically conferred by said the statute. Reliance in this regard is placed upon the cases of Inayat Ullah Khan & Co v. Secretary Food, Government of the Punjab and 2 others (2006 YLR 656), Mian Ghulam Mustafa and another v. Chief Conservator of Forest Punjab and another (2004 PLC (C.S.) 527), Tanya Knitwear (Pvt.) Ltd. And others v. First Women Bank Ltd. (PLD 2008 Karachi 29), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), M/s Haji Abdul Ghafoor Haji Muhammad v. Central Board of Revenue and others (2004 PTD 2524), Dr. Shahnaz Nadir v. The Government of N.-W.F.P through Chief Secretary Civil Secretariat, Peshawar and 3 others (2005 PLC (C.S) 88), National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others (2004 CLD 260) and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1).
Insofar as the contention of the learned counsel for the complainant that under Section 21 of General Clauses Act, Respondent No. 1 was legally competent to review his earlier order, is concerned, I do not see eye to eye with him, because, the said section does not confer the right of review to elucidate the matter, the said section is reproduced here:
`21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws. Where by any (Central Act) or Regulation, a power to (issue notifications), order, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications) orders, rules or bye-laws so issued}.'
The provision of the said section, which does not include the power of review, cannot be stretched on the rule of beneficial interpretation, which cannot be claimed on unreasonable construction of law. Reliance in this respect is placed on Messrs New Shaheen Trading Company through Managing Director v. Government of Pakistan through Secretary, Ministry of Commerce and 2 others (2008 SCMR 17).
Besides, it cannot be said that some new material, justifying the review of earlier order by Respondent No. 1, had come on the record. The material, which has been discussed by Respondent No. 1 through the impugned order, was already on the record. One of the reasons for reviewing his earlier order passed by Respondent No. 1 was that out of 13 accused, only 6 were held guilty and the remaining were declared innocent. As mentioned above, the Courts are not bound to agree to the opinion of the police, therefore, at the end of the day, the accused would not be entitled to any relief on the basis of the such an opinion. Admittedly, after recording the statement of the complainant, the accused who were found innocent by the police, have already been summoned to face the trial. The fate of the case will depend upon the evidence, collected during the trial.
For all the reasons detailed above, I am inclined to accept this petition. Consequently, the impugned order dated 24-3-2007, passed by Respondent No. 1 is declared to be illegal, unlawful and without jurisdiction. Consequently, the same is quashed. There shall be no order as to costs.
(W.I.B.) Petition Accepted.
PLJ 2009 Lahore 66 (FB)
Present: Syed Shabbar Raza Rizvi & Hasnat Ahmad Khan & M.A. Zafar, JJ.
Mian INTISAR HUSSAIN BHATTI--Petitioner
versus
RETURNING OFFICER, PP-107 HAFIZABAD-III and 2 others--Respondents
W.P. No. 6703 of 2008, decided on 16-06-2008.
Constitution of Pakistan, 1973--
----Arts. 199, 189 & 190--Judgment of Superior Courts--Binding force--Held: Judgment of Supreme Court is binding upon High Court, likewise Art. 190 of the Constitution requires all judicial and executive authorities to act in aid of Supreme Court. [P. 67] A
Dr. M. Mohy-ud-Din Qazi, Advocate alongwith Mr. Muhammad Kazim Khan and Ch. Muhammad Masood Jhangir, Advocates for Petitioner.
Date of hearing: 16.6.2008.
Order
The petitioner intends to contest by-election of National Assembly and the Provincial Assembly which is due to take place on 26.6.2008.
The petitioner submitted his nomination papers for the seat of PP-107, Hafizabad-III. Respondent No. 3 filed objections against nomination papers of the petitioner. However, the objection was rejected by the Returning Officer vide his order dated 17.5.2008, against which Respondent No. 3 filed election appeal before the Election Tribunal which was accepted vide order dated 30.5.2008. As a result of impugned order dated 30.5.2008, the nomination papers of the petitioner were rejected, hence the present writ petition.
According to the learned counsel, the order of the learned Tribunal is against the law and fundamental rights guaranteed under the Constitution. According to the learned counsel findings of learned Full Bench of this Court and the Hon'ble Supreme Court were meant only for the general election which was held on 18.2.2008 and cannot be extended and applied to the upcoming by-election. According to him, the requirement of B.A. Degree is no more required, the finding of the learned Full Bench of this Court and the Hon'ble Supreme Court was based on requirement of B.A. Degree only. The learned counsel further added that there are many other persons who are elected with defective degrees, therefore, not allowing the present petitioner would amount discrimination.
We have heard the learned counsel for the petitioner and considered their contentions carefully. We do not agree with the learned counsel for reason which follows hereinafter. The learned Tribunal reproduced in Para-3 the earlier Full Bench judgment, which reads as under:
"Therefore, by no stretch of imagination can he (petitioner) be termed as sagacious, righteous and non-profligate and honest and Ameen as provided for in Article 62-F of the Constitution as well as Section 99(1)(f) of the Representation of the People Act, 1976 and consequently cannot be allowed to contest elections."
The above paragraph referred to by the learned Tribunal from the Full Bench judgment clearly shows that this Court in the said Full Bench judgment held present petitioner a person who is not sagacious, honest, Ameen, etc. This finding was approved by the Hon'ble Supreme Court of Pakistan and thereby merged into order of the Hon'ble Supreme Court passed in Civil Petitions No. 2 to 5 of 2008 decided on 12.2.2008 as below:
"The entire record produced by the University shows that the petitioner has been attempting through unfair means to obtain Bachelor Degree but all in vain. Learned counsel though argued at length yet could not point out any illegality or infirmity in the impugned judgment which being well reasoned and based on cogent grounds does not warrant interference by this Court."
The above paragraph from the judgment of the Hon'ble Supreme Court clearly demonstrate that findings of this Court in the above mentioned Full Bench judgment was not only approved, it was found completely legal, firm, well reasoned and based on cogent grounds.
According to Article 189 of the Constitution the judgment of the Hon'ble Supreme Court is binding upon the High Court. Likewise Article 190 of the Constitution requires all judicial and executive authorities to act in aid of the Hon'ble Supreme Court. The learned counsel referred to 2004 SCMR 979, Mirza Abdur Rehman Vs. DC/Returning Officer etc. The above judgment of the Hon'ble Supreme Court is not applicable in the facts and circumstances of the present case. In the said judgment, the disqualification was mentioned in the order of the D.C. and the Commissioner on the basis of which the nomination papers of the petitioner were rejected. In the instant case, the finding was passed by a Full Bench of this Court and approved by the Hon'ble Supreme Court. Moreover, in the said case application of Articles 189 and 190 of the Constitution was neither the issue nor attracted. In the instant case, we are faced entirely with a different situation.
Thus, if according to the learned counsel for the petitioner, disqualification of the petitioner stands erased by flux of time and changed circumstances, the petitioner may approach the Hon'ble Supreme Court for review or modification of the judgment above noted. Unless that happens, the judgment of the Hon'ble Supreme Court shall remain binding upon this Court. In view of the above, this writ petition is dismissed.
(W.I.B.) Petition dismissed
PLJ 2009 Lahore 68
Present: Hafiz Tariq Nasim, J.
SHUJA-UD-DIN and 6 others--Petitioners
versus
PARKS AND HORTICULTURE AUTHORITY (PHA), through its Director General, Lahore and 7 others--Respondents
W.P. No. 3736 of 2008, decided on 08-07-2008.
Constitution of Pakistan, 1973--
----Art. 199--Petitioners were employed as junior clerks in BP-7 and being legitimate expectants for next promotion--Deprivation of rights--Promotion to private respondents--Benefit of higher grade under the garb of adjustment--Challenge to--Held: Private respondents were accommodated in an arbitrary manner which smells something else than the observance of law, rules and transparency and this very fact is also endorsed if the inquiry report submitted by the PHA is perused, meaning thereby that the petitioners were more eligible than the private respondents were wrongly ignored at the time of adjustment of the private respondents against higher grades--Further held: PHA has not acted in accordance with law, rather acted in contravention to a settled principle of law equity, fairness and equal opportunity--All these adjustments which otherwise were practically appointments through promotion as illegal and without force. [Pp. 70 & 73] A, E & F
Constitution of Pakistan, 1973--
----Art. 199--Promotion--Duties of public functionaries--Guidelines--Public functionaries cannot accommodate some of its officials for any reasons by merely using a word such as accommodate and thereby overriding the legitimate rights of other employees, who work hard to work their way up the hierarchy of Grades/Posts--First and foremost duty of the Authority attempting to stop the gap should be to see whether the person to be appointed to stop such a gap can actually and reasonably carry out duties of a nature of the post to which he is to be appointed to stop the gap--Authorities should also not extend discretionary favours toward its favoured employees and let the less favoured employees suffer from its decision. [Pp. 72 & 73] B, C & D
M/s. Ch. M Khalid Farooq and Tariq Mahmood Sindhu, Advocate for Petitioners.
Syed Mumtaz H. Bokhari, Advocate with Mr. Zareef Iqbal Satti, Director for Respondent No. 1.
Ch. M. Ashraf, Advocate for Respondent No 2.
Aish Muhammad Khan, Advocate for Respondents No. 4, 5, 6 and 8.
Mian Manzoor Hussain, Advocate for Respondent/Applicants in C.M. No. 1472/2008.
Date of hearing: 8.7.2008.
Judgment
This order shall also dispose of Writ Petitions No. 4091/2008 and 4953/2008 alongwith this petition, as common questions of facts and law involve.
Facts leading to these writ petitions are that the petitioners who were employed as Junior Clerks in BS-7, performing their duties since long and being legitimate expectants for the next promotion were deprived of the same whereas the private respondents who were Junior Clerks in BS-5 were given the benefit of higher grade under the garb of adjustment.
Learned counsel for the petitioners submit that the petitioners were discriminated, their right of legitimate expectancy was jeopardized, the private respondents were accommodated through the impugned orders and only to achieve their designs, the official respondents in league with private respondents used the word adjustment whereas practically the private respondents are performing their duties against higher grades on regular basis which have caused a serious prejudice to the petitioners.
On the other hand, the learned counsel representing the private respondents submits that the private respondents were adjusted against the higher post after assessing their eligibility and determining their suitability, hence the petitioners have no lawful right to agitate against the same.
The learned Assistant Advocate General as well as the learned Legal Advisor PHA argued the case at length and submitted that the adjustment of private respondents against higher post is just a stopgap arrangement and it cannot be termed a permanent feature or promotion on regular basis, Further submit that the petitioners are also entitled for promotion, however, they shall be granted this benefit in near future and for that the PHA authorities are doing their level best for the redressal of their grievance.
The departmental representative i.e. Zareef Iqbal Satti. Director Coordination, who is present in Court, submits that while adjusting the private respondents against the higher posts, only the pending work vis-a-vis the performance of private respondents was taken into consideration and they were adjusted as a stopgap arrangement and not on regular basis. Further submits that the directions of this Court were complied with in letter and spirit by holding a detailed inquiry into the contents of the writ petition and allegations levelled by the petitioners. He undertakes to place the petitioners' as well as private respondents' case for promotion before the appropriate committee of PHA and to accommodate the petitioners within a period of one month.
Arguments heard. Record perused.
Record reveals that the private respondents were accommodated in an arbitrary manner which smells something else than the observance of law, rules and transparency and this very tact is also endorsed if the inquiry report submitted by the PHA is perused, meaning thereby that the petitioners who were more eligible than the private respondents were wrongly ignored at the time of adjustment of the private respondents against higher grades.
In compliance to the Court's directions, the enquiry was conducted by Abdul Qayyum, Additional Secretary, Planning and Development Department, Government of the Punjab, before whom the petitioners as well as the officers against whom serious allegations were levelled appeared, every opportunity was granted to all of them and ultimately the enquiry report dated 22.6.2008 is submitted before this Court.
It shall be advantageous to reproduce certain parts of the Enquiry Report, which are as follows:--
(i) "Zareef Iqbal Satti, former Director Administration, PHA categorically stated before the Enquiry Officer in the following words:
(ii) The promotions made in the name of "Adjustment" were not in accordance with rules/law. The finance wing had raised objections to the said adjustment."
(iii) Javid Iqbal the then Assistant Director Audit stated in the following words:
"No heed was taken to the objections he raised on such adjustments and that in the absence of a clear vacancy pay should not be released. As a result of objections to the said adjustments some people entered his office abused/insulted him."
(iv) Ikram Naveed, the then Director (Finance) stated before the Enquiry Officer as under:--
"Before making adjustments vacancy position was never ascertained from the Finance. There was a sanctioned strength in the beginning which was ignored and it was never updated. Accounts Branch and Internal Audit raised objections to these violations to Administration Wing but the same were over ruled and directions were issued for making payment."
(v) The Enquiry Officer in para 27 of his report observed as follows:--
"As is evident from the orders made during the period from April, 2007 to May, 2008, in almost all the cases, the expression of "adjustment" has been used, which is not accepted as mode of making appointments, promotions and up-gradation in any organization or Government Department."
(vi) In para 31 of his report he observed as under:--
"The pattern of adjustment would indicate that Malis were adjusted as Supervisor, Driver, Junior Clerks were promoted as Supervisors, Security Officer and Garden Superintendents. These are few examples where care/channel of promotion was violated."
(vii) In para 32 of his report the Enquiry Officer referred certain cases and held that they were granted higher scale and within a very short span of time they were allowed another adjustment in yet more higher scale, which renders the entire process a farcical exercise to favour them."
(viii) Finally the Enquiry Officer observed--
"there is nothing on record to show that the DPC was constituted by the Chairman PHA, so much so under Paras 39 and 40 of his report he referred the mal-administration in so many words."
(ix) Findings in para 45 of the Enquiry Report, recommendation in para 47 of the Enquiry Officer dated 22.6.2008 are very important.
10-A. The Enquiry Officer in a specific manner found Zareef Iqbal Satti, Director involved in the said irregularities in addition to holding Riaz Ahmad Qureshi, Assistant Director (Admn.) guilty of initiation of misleading notes. In this respect para 46(e) of the enquiry report is important to go through.
After going through the entire enquiry report and after hearing the parties at length, it is held that Zarif Iqbal Satti and his associates are responsible of the entire illegal arrangement. In the Enquiry conducted by Additional Secretary, Government of Punjab, it was concluded in a transparent manner, Zarif Iqbal Satti and his associates were afforded all opportunities to defend their cases in all its fairness and it clearly reflects that Grade 5 officials were benefited granting them Grade 16 by merely using the word "adjustment." This act of the concerned officers, according to my understanding of law and of the principles of natural justice, fairness, equity and provision of equal opportunities is flawed in the eyes of law, A public functionary cannot accommodate some of its officials for any reasons by merely using a word such as accommodates and thereby overriding the legitimate rights of other employees, who work hard to work their way up the hierarchy of Grades/Posts. Needless to mention that every Government Department/all other functionaries are duty bound to ensure that the true process of law is adopted and that too in a clear and transparent manner without any inference of decisions made upon whims and moods. The stance of Zafeer Iqbal Satti and his associates that this is a stop gap arrangement, in this regard I express my great concern over the whimsical and capricious manner in which a stop gap arrangement has been made. No doubt that a stop gap arrangement though not barred by law but it should always be adopted by keeping in mind certain boundaries and principles of fairness equity and natural justice. The first and foremost duty of the Authority attempting to "stop the gap" should be to see whether the person to be appointed to stop such a gap can actually and reasonably carry out duties of a nature of the post to which he is to be appointed to stop the gap, but in the present case it is extremely difficult to grasp how to 5 scale official can fill a gap of an officer of Grade 16. This act of the authorities clearly shows its colourable exercise of power and lack of transparency in its procedures, which otherwise is meant for every public functionary.
Further more the authorities should also not extend discretionary favours toward its favoured employees and let the less favoured employees suffer from its decision. Every employee including other individuals lawfully expects the same treatment within the same group of persons and not to be discriminated is also a fundamental right, under the Constitution of Islamic Republic of Pakistan which must be extended by the Courts as a duty towards a general public including employees of statutory, non-statutory organizations and the civil servants. Therefore, those employees, who were not appointed as Grade 16 officers even though being senior to the private respondents of Grade 5 officers were discriminated without any fault of their field.
All the above discussions necessarily indicates that PHA has not acted in accordance with law, rather acted in contravention to settled principle of law, equity, fairness and equal opportunity. Keeping in view all the attending circumstances I see myself within the bounds of law to interfere with the decision of the PHA in the impugned matter and declare all these "adjustments", which otherwise were practically appointments through promotion as illegal and without force.
Respondent No. 1 is directed to constitute Departmental Promotion Committee, place the petitioners as well as private respondents' cases before it, who shall examine each and every case on its own merits, recommend the appropriate case for promotion and then the competent authority after applying its independent mind notify the promotion of the recommendees of the Departmental Promotion Committee within two months from today.
So far the adjustment against higher posts of private respondents is concerned, it is already declared in the preceding paras that those adjustments were an outcome of arbitrariness, violation of all norms of justice and equity and are set aside, however, with a view to avoid smooth functioning of the Authority, the private respondents shall continue to hold their present posts till 7.9.2008 i.e. the target date of finalization of the fresh exercise. It is to be clarified that if the process is not completed till 7.9.2008 by PHA, posts held by private respondents shall be treated as vacant which shall be filled strictly in accordance with applicable Rules.
Before parting with this judgment, I feel it appropriate to direct the Chief Secretary, Government of the Punjab to take appropriate action but strictly in accordance with law against the responsible of this illegal and unlawful action like Director Zafeer IqbalSatti and his associates and simultaneously extend appreciation to Ikram Naveed the then Director Finance, PHA, Mr. Mubashir Khalid Mirza, Assistant Director (Audit), who showed resistance despite extraneous pressure.
While initiating action against Zareef Iqbal Satti and his associates, the enquiry report, which otherwise is an out come of transparency and wherein Zareef Iqbal Satti and his associates conceded before the Enquiry Officer in so many words be particularly taken into consideration. Paras 6 to 8 of the writ are also of great importance, these are also to be adhered to. Office is directed 3 send a copy of this judgment to the Chief Secretary directly and the learned Assistant Advocate General who is present in the Court shall ensure the compliance of the judgment. Result of the action against Zareef Iqbal Satti and his associates be conveyed to the Deputy Registrar (J) of this Court within two months.
All the writ petitions are disposed of in the above terms.
(W.I.B.) Petitions disposed ofS
PLJ 2009 Lahore 74
Present: Hafiz Tariq Naseem, J.
CHIEF ENGINEER (RESEARCH ZONE) IRRIGATION AND
POWER DEPARTMENT, LAHORE--Petitioner
versus
SENIOR MEMBER NIRC, ISLAMABAD, LAHORE BENCH, LAHORE and 8 others--Respondents
W.P. No. 6282 of 2008, heard on 02-07-2008.
Punjab Efficiency, Discipline and Accountability Act, 2006--
----S. 13(5)--Industrial Relations Ordinance, 2002, Ss. 49(4)(e) & 63--Constitution of Pakistan, 1973, Art. 199--Show-Cause Notice under the provisions of PEDA--Respondents moved an application in NIRC challenging the show-cause notice--Challenge to--Jurisdiction of NIRC--Held: Respondents were employees of the Government of Punjab and could be proceeded under the Accountability Act, 2006 and if such employees felt aggrieved of any action of departmental authority, they could not invoke the jurisdiction of NIRC, which is not meant for these controversies and simultaneously could not exercise its jurisdiction by entertaining the respondents' petition and then issuing any interim order--Further held: Virtually exceeding its jurisdiction, thus the impugned order is declared void, illegal having no legal effect. [P. 78] A & B
PLJ 1992 SC 62; PLD 2006 Lahore 597 & PLD 1997 SC 351, ref.
Mr. Muhammad Zaman Qureshi, Advocate for Petitioner.
Ch. Muhammad Khalid Farooq, Advocate for Respondents.
Date of hearing: 2.7.2008.
Judgment
Facts leading to this writ petition are that Respondent Nos. 2 to 9 were served with a Show Cause Notice on 30.4.2008 by the Chief Engineer, Irrigation Research Zone, Lahore under the provisions of Punjab Efficiency, Discipline and Accountability Act, 2006 they filed petition under Section 49 (4) (e) read with Section 63 of the Industrial Relations Ordinance, 2002 before the National Industrial Relations Commission Lahore contending that they are the members and bearers of the new registered union namely Pakistan Irrigation Employees and Workers (Pasban) Union Head Office, Lahore pointed out irregularities and corruption against the junior Research Officer Ijaz Ahmad, SDO Hafiz Arshad, Member Research Officer, Ghulam Qadir before the Chief Engineer. An Inquiry Officer was appointed where they recorded their statements and during the process of inquiry Respondent No. 2 Muhammad Iqbal wrote a letter to the Bureau Chief Royal News Channel for highlighting the corruption which is going on with the connivance of Chief Engineer and on this, the Journalist and Media-men of news channel visited the station on 26.4.2008 when the SDO and Sub-Engineer alongwith others men apprehended the media-men, media personnel approached the concerned police station for lodging an FIR against the SDO etc but the SHO did not listen their grievance so they approached the DIG Gujranwala for registration of a criminal case who directed the concerned SHO to lodge the FIR but later on the dispute was resolved between the parties. Out of retaliation, the Chief Engineer issued Show Cause Notice to all i.e. Respondent Nos. 2 to 9 on 30.4.2008, which are an outcome of annoyance, malafide and arbitrariness.
"The points raised need consideration, hence notice of this petition alongwith application for interim relief be issued to the respondent for 16.05.2008. In the meantime the respondent is restrained from passing a final adverse order detrimental to the rights of the petitioners. He may however, proceed with the inquiry proceedings, if so desired. "
On 16.5.2008 Dr. M. Irtiza Awan, Advocate submitted the authority letter on behalf of the present petitioner, sought adjournment for submission of reply and the case was adjourned to 23.5.2008.
On 23.5.2008 reply to the petition as well as to the application for interim relief was filed by the present petitioner and the case was fixed for arguments on the said application for 6.6.2008.
Surprisingly after taking adjournment on 16.5.2008 by the present petitioner when the case adjourned on his request to 23.5.2008, Respondents No. 2 to 9 were imposed the penalty of compulsory retirement from service by the present petitioner i.e. Chief Engineer, Research Irrigation and Power Department in exercise of his powers under Section 13(5) of the Punjab Efficiency, Discipline and Accountability Act, 2006.
The petitioner through this writ petition has assailed the order dated 16.5.2008 and the order dated 23.5.2008 passed by the learned Member NIRC praying that the proceedings taken by the learned Member NIRC be declared as without jurisdiction and the interim order dated 6.5.2008 and all subsequent orders recorded by Respondent No. 1 on the said petition be set aside being without lawful authority and he be restrained from taking any further proceedings on the above petition.
The learned counsel for the petitioner submits that Respondents No. 2 to 9 could not invoke the jurisdiction of NIRC particularly when there is a specific provision in the PEDA in the form of Section 20 which reads as follows:--
"the provision of the Act shall have the effect notwithstanding anything contained in any other law for the time being enforced."
Further adds that Sections 16 and 17 of the PEDA provided a right of departmental appeal/review and revision to Respondents No. 2 to 9 against the action, taken against them by the competent authority and then they had a right to appeal before the Punjab Services Tribunal under Section 19 of the Act but the learned Member NIRC did not advert to the point of jurisdiction which had to be resolved before proceedings further and as such granting interim relief by the learned Member NIRC is nullity in the eye of law. Further submits that Respondents No. 2 to 9 are not yet approved officers of any registered industry by Trade Union or Federation and on this score their approach to NIRC was a departure of the provisions of Industrial Relations Ordinance, 2002. Adds that mere issuance of Show Cause Notice cannot lead to the presumption of unfair-able practice but this aspect was altogether ignored by the learned NIRC while granting interim relief. Learned counsel for the petitioner submits that it was the duty of NIRC to decide the case pertaining to its jurisdiction and then consider the merits of the case particularly when the matter impugned was pertaining to the terms and conditions of service and such matter exclusively fall within the jurisdiction of service Tribunal, the order passed by the NIRC could be termed as without jurisdiction void, ab-initio and nullity in the eye of law. In this respect he relies on Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others (PLD 2002 SC 452) and Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others (2006 PLC (CS) 955). He further submits that as per law laid down in case of Mst. Mubarak Salman and others v. The State (PLD 2006 Karachi 678), void judgment of Court below can be corrected by exercising its suo moto jurisdiction by the High Court particularly when Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 confers the powers on the High Court in respect of its supervisory jurisdiction. On merits the learned counsel for the petitioner submits that the interim order passed by the learned Member NIRC was not conveyed to the present petitioner and as such he passed the order of penalty dated 17.5.2008 and as such he did not commit any contempt etc.
On the other hand, the learned counsel for Respondents No. 2 to 9 argued the case at length, ably controverted the points raised by the learned counsel for the petitioner and submits that the present writ petition against the interim order is not maintainable as held in case of Kashmir Edible Oils Limited through Manager Administration v. Nadeem Bari and another (2005 PLC 412) and Jehandad and 2 others v. State & another (PLJ 2006 SC 1249). Further submits that if a party violates Court's order he shall not be entitled for the discretionary relief in the form of writ. Adds that the interim order in the form of stay was passed by the learned Member NIRC on 16.5.2008 and it is well settled law laid down by the Hon'ble Supreme Court of Pakistan that the moment the stay order is passed it shall be affected from that moment and not from the time and date of communication. In this respect he relies on Bakhtawar etc v. Amin etc. (1980 SCMR 89) and Din Muhammad and 2 others v. Abdul Rehman Khan (PLJ 1992 SC 62). Further submits that at the time of filing of writ on 2.6.2008 the petitioner had no cause of action for filing the same as the petitioner had compulsorily retired Respondents No. 2 to 9 in violation of restraint order passed by the learned Member NIRC hence this writ petition is liable to be dismissed on this short ground. The activities of the corrupt mafia in the department was disclosed to the high-ups which was made the basis of Show Cause Notice firstly which was rightly challenged before the NIRC and further it was resulted into penalty of compulsory retirement and Court has ample power to scrutinize the entire matter in reference to severe allegations of corruption against the petitioner and his other allies and it is well settled law that any action which is based on arbitrariness and malafide cannot sustain in the eye of law, hence the writ petition be dismissed and the Respondents No. 2 to 9 be restored to their position as reinstated employees.
Arguments heard; record perused.
First of all the point of jurisdiction is to be examined being the foremost issue.
It is undisputed fact that Respondents No. 2 to 9 are employees of the Government of the Punjab and could be proceeded against under the Punjab Efficiency, Discipline and Accountability Act, 2006 and if such employees felt aggrieved of any action of the departmental Authority under the provisions of PEDA 2006, it is held that they could not invoke the jurisdiction of NIRC which is not meant for these controversies and simultaneously the learned Member NIRC could not exercise its jurisdiction by entertaining the respondents' petition and then issuing any interim order.
Taking the strength from the law laid down by the Hon'ble Supreme Court of Pakistan reported as Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and the law laid down by this Court in case of Jamil Ahmad Sheikh and another v. District Officer (Revenue), Kasur and 3 others (PLD 2006 Lahore 597), wherein it is held that "the act would be without lawful authority and of no legal effect, when the person doing same had no Authority or jurisdiction to do same--such act would be ultra vires and without jurisdiction--cases of inherent inconsistency, totally want of jurisdiction could not be overlooked, which would be liable to be declared as without lawful authority."
There can be no cavil from the well settled law that the learned NIRC was not a forum available to Respondents No. 2 to 9 being civil servants of the Government of the Punjab to agitate the matter in dispute and the learned NIRC while entertaining their petitions and issuing interim order directing the Government Authorities not to take any adverse action against Respondents No. 2 to 9 virtually exceeded its jurisdiction, thus the impugned order passed by the learned NIRC is declared to be void, illegal, having no legal effect and the writ petition is allowed.
Before parting with the judgment, it shall be appropriated to observe that the penalties order passed by the present petitioner in respect of Respondents No. 2 to 9 are of course amenable to the jurisdiction of Punjab Service Tribunals and they are entitled to get their grievances redressed from the appropriate Tribunal, however, while considering their cases on merits, the points raised by Respondents No. 2 to 9 before the NIRC being of serious nature are to be attended in their true perspective.
In the attending circumstances, the petitioner and his allies against whom serious allegations of corruption have been made specifically by Respondents No. 2 to 9 should also not be let off in an ordinary routine matter but the Chief Secretary, Government of the Punjab shall ensure the transparency in the impugned exercise and as such I direct the Chief Secretary, Government of the Punjab to constitute a high power committee who shall inquire into the allegations levelled against the petitioner/Chief Engineer and his certain subordinates, in the inquiry, the complainants i.e. Respondents No. 2 to 9 as well as the petitioner and his subordinates be associated and the result whereof be conveyed to this Court within two months of passing of this judgment. The learned Assistant Advocate General Punjab Lahore shall ensure the compliance of Court's order in letter and spirit.
(W.I.B.) Petition allowed
PLJ 2009 Lahore 79
Present: Rana Zahid Mehmood, J.
RASHID HUSSAIN--Appellant
versus
SOOFI ABDUL HAMEED--Respondent
S.A.O. No. 39 of 2008, heard on 4.7.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Denial of relationship of landlord and tenant--Appellate Court upheld the order of ejectment--Challenge to--Presentation of tenancy agreement in counsel's statement as mark--Objection of judicial notice of District Judge in appeal--Effect of--Held: Any document brought on record by any of the parties with the approval of concerned Court whether in the shape of an exhibited or marked document, the same can be taken into consideration of course in accordance with law and there was no bar in the way of the District Judge to take into consideration said document through judicial notice. [P. 83] B
2006 SCMR 693, PLD 2006 SC 196 & PLD 2003 Lah. 255, Ref.
Arbitration Act, 1940 (X of 1940)--
----S. 34--Bar for reference to arbitration--Principle--Application for arbitration was not moved in the first instance by the affected party prior to filing of written statement/reply, in proceeding then prohibits a party to subsequent claim a reference to arbitration.
[P. 83] A
PLD 1981 SC 553 ref.
Mr. S.M. Masood, Advocate for Appellant.
Mr. Tahir Mahmood Khokhar, Advocate for Respondent.
Date of hearing: 4.7.2008.
Judgment
This is a second appeal against order dated 7.2.2008 passed by learned District Judge, Faisalabad, whereby he dismissed an appeal filed by the appellant against order of ejectment passed on an application for ejectment filed by respondent against the appellant from the shop in dispute forthwith vide order dated 25.9.2007.
Brief facts are that in the application filed by the respondent for ejectment of the appellant/respondent from shop in question, the appellant denied the relationship of landlord and tenant between the parties and took up the plea that he was tenant under one Zaheer-ud-Din, a brother of the respondent and had been making payment of the monthly rent to him and was not a tenant under the appellant. He took up said plea on the ground that said shop in the family partition had come to the share of late Zaheer-ud-Din, a brother of the appellant. Issue in this regard about the existence of relationship of landlord and tenant between the parties was framed and the respondent then himself appeared as PW.1 and produced Muhammad Amin as PW.2 and Muhammad Saleem as PW.3, whereafter the learned counsel for the respondent/appellant closed the evidence of the respondent and tendered in evidence some documents including the ownership documents from the Excise and Taxation Department and Iqrarnama regarding tenancy placed on record as Mark "A". The rest of the documents are Exh.A.1 to Exh.A.7. The appellant/respondent produced Iftikhar Hussain as RW.1 and appeared himself as RW.2 in support of his plea of non-existence of relationship of landlord and tenant and also produced one Muhammad Ramzan as RW.3 and then closed the evidence. As stated earlier, the ejectment order was passed by the learned Rent Controller, which was affirmed by the learned District Judge on appeal filed by the appellant.
Learned counsel for the appellant has submitted that in fact the appellant has been condemned unheard as the Iqrarnama about the tenancy produced by the respondent was never produced during the evidence by the P.Ws. and was produced before the Rent Controller at the time of statement of the learned counsel for the respondent and even then it was not exhibited but was marked as "A". He submitted that since it was not an exhibited document, therefore, the appellant could not take it seriously and it was for the first time that the learned District Judge, Faisalabad, while deciding the appeal filed by the appellant against the ejectment order, took judicial notice of said Iqrarnama karayadari between the parties and submitted that as per clause (8) of said agreement, in case of dispute between the parties, the matter was required to be referred to arbitration and submitted that said agreement between the parties about referring the matter to arbitration was never resorted to. He therefore submitted that the impugned order passed by the learned District Judge is illegal and as such the appeal is liable to be accepted and submitted that case be remanded for fresh decision after referring the matter to the arbitration.
Learned counsel for the respondent has vehemently opposed the arguments advanced by the appellant's counsel and submitted that Section 34 of Arbitration Act prohibits reference of dispute to the arbitration after filing of written statement in legal proceedings, therefore, in view of the clear cut statutory bar, the matter could not be referred to the arbitration. Further submitted that evidence on record has proved the tenancy between the parties beyond any doubt and submitted that the concurrent finding of the two Courts below do not admit any interference neither any exception can be taken to the taking of judicial notice of the agreement to sell between the parties by the learned District Judge, Faisalabad, vide impugned judgment and submitted that appellant had sufficient knowledge of the Iqrarnama Mark "A" about the tenancy which is on record yet he did not care and did not agitate this point before the learned Rent Controller and also first appellate Court, therefore, is debarred from taking up this plea for the first time before this Court. In support of his contentions, he has referred to Pakistan International Airlines Corporation Vs. M/s Pak Safe Drycleaners (PLD 1981 SC 553), Cantonment Board, Kharian Vs. M/s. Jafri Traders Corporation (2006 SCMR 693), Muhammad Farooq Vs. Nazir Ahmad and others (PLD 2006 SC 196). Also referred to Lahore Nuricon Union (Pvt) Limited Vs. Muhammad Naseer Sajid [2005 CLS 882 (Lahore)], Commissioner of Income Tax Vs. Mst. Sakina Karim [1979 CLC 644 (Lahore)] and Masood Hussain Anwar Vs. Sheikh Muhammad Amin [1982 CLC 1777 (Lahore)]. He also submitted that Mst. Bushra Zaheer, widow of late Zaheer-ud-Din also appeared before the learned Rent Controller on 2.7.2007 and made statement on oath that the appellant was not tenant under her late husband and had never made any payment of rent to her or her husband. He therefore submitted that no exception can be taken to the non-cross-examination on the statement of the said widow as said statement was recorded in the presence of the learned counsel for the appellant but he did not make request to the Rent Controller to allow him to cross-examine her. He therefore submitted that petitioner is estopped by his own conduct to agitate at this stage of second appeal that he was not given opportunity to cross-examine said widow in this respect. Learned counsel made reference to Abdul Hameed and others Vs. Rais Karim and others (PLD 1985 Quetta 112), Diwan Singh and others Vs. Emperor (AIR 1933 Lahore 561) and Union of India Vs. T.R.Verma (AIR 1957 SC 882) in this regard and has prayed for the dismissal of the appeal.
I have heard the arguments, perused the record and also the case law cited at the Bar. There is concurrent finding of fact about the proof of relationship of landlord and tenant between the parties on the basis of evidence adduced by the respondent who then also produced title deeds of the suit property in his favour and the documents from the Excise and Taxation Department in the statement of learned counsel for the respondent after the oral evidence of three prosecution witnesses of the respondent and the learned counsel tendered said documents in his statement available on record as Exh.A/1 to A/7 apart from the copy of the agreement of tenancy between the parties and it is noteworthy that this statement of the counsel for the respondent for placing on record said documents was made on 9.7.2007 whereas appellant then produced his evidence controverting the evidence of the respondent on 23.7.2007 up to 26.7.2007 when the learned counsel for the appellant also made statement closing the evidence of the appellant, how could the appellant be permitted to agitate at this stage of second appeal that he was not given opportunity to examine Mark "A", the alleged agreement of tenancy between the parties and was condemned unheard by the learned District Judge, Faisalabad, by taking judicial notice of the same. Since the alleged agreement of tenancy between the parties was placed on record in the statement of the learned counsel for the respondent and was Marked "A", it had come on the record of the ejectment application as a corroborative piece of evidence to the oral evidence already led by the respondent, therefore, it was for the petitioner to be vigilant and to counter the document of agreement of tenancy through cogent and strong evidence; whereas it is also important to mention that Mst. Bushra Zaheer, widow of late Zaheer-ud-Din appeared before the learned Rent Controller with her affidavit and made statement that the appellant was never tenant under her late husband neither had ever made payment of any monthly rent to the late husband or to the widow. It is worth mentioning that in the proceedings of said date when her statement was recorded by the learned Rent Controller, counsel for the parties were present and the counsel for the appellant did not make any request to the Rent Controller for giving him an opportunity to cross-examine said widow. The statement, therefore, is very much on record in support of the respondent's claim of the tenancy between the parties. Onus of issue to prove the tenancy was on the respondent. He produced three P.Ws. including himself as PW.1. Evidence has correctly been appreciated by the learned Rent Controller including the evidence adduced by the appellant. The learned District Judge affirmed the ejectment order by dismissing the appeal filed by the appellant.
Section 34 of the Arbitration Act clearly provides a bar for reference to arbitration in case the application for arbitration was not moved in the first instance by the affected party prior to filing of written statement/reply in the proceedings before the Rent Controller then prohibits a party to subsequently claim a reference to arbitration. Reference in regard can conveniently be made to Pakistan International Airlines Corporation vs. M/s. Pak Safe Dry Cleaners (PLD 1981 SC 553) referred to by the learned counsel for the respondent along with latest case law on the subjected reported as Cantonment Board Kharian Vs. M/s. Jafri Traders Corporation (2006 SCMR 693) and Muhammad Farooq Vs. Nazir Ahmad and others (PLD 2006 SC 196). Even otherwise the appellant appears to be a negligent person who despite the fact that said document of tenancy between parties had been placed on record before the learned Rent Controller in the statement of the learned counsel for the respondent on 9.7.2007 whereafter the evidence of the petitioner was recorded on 23.7.2007 and 26.7.2007, the appellant did not agitate against the said agreement to sell on the ground that it was not exhibited and was only marked by the Rent Controller as "A", therefore, could not be read in evidence; whereas I do not agree with the learned counsel for the appellant on the point as any document brought on record by any of the parties with the approval of the concerned Court whether in the shape of an exhibited or marked document, the same can be taken into consideration of course in accordance with law and in the instant case there was no bar in the way of the learned District Judge to take into consideration said document through judicial notice. Even otherwise, if for the sake of argument said document is kept out of consideration altogether, even then the appellant has no case and oral evidence adduced by the respondent including the statement of Mst. Bushra Zaheer along with the rest of the exhibited documents including the sui gas and electricity bills and title deeds and the documents of Excise and Taxation Department clearly go to prove that the property was in the name of the respondent and was never in possession or in occupation of late Zaheer-ud-Din a brother of the respondent and, therefore, mere argument that the petitioner was tenant under late Zaheer-ud-Din has no legs to stand upon. Even otherwise it is important to mention that on one hand the appellant denies relationship of landlord and tenant between the parties and, on the other, he relies on Condition No. 8 of agreement of tenancy placed on record as Mark "A" for reference to arbitration which means an admission of existence of said agreement of tenancy between the parties. Therefore, the appellant is precluded from blowing hot and cold in the same breath. The evidence led by the parties has been correctly appreciated by the two Courts below and no exception can be taken to the concurrent findings of the two Courts below in the absence of any cogent material justifying the disagreement with the said findings. The case law referred to above by the learned counsel for the respondent also is a strong indicator of the fact that the proceedings before the Rent Controller initiated by the respondent through ejectment application and the submission of the appellant to the jurisdiction of the Rent Controller by filing written statement and subsequently joining of proceedings and leading evidence debarred him from agitating said point for the first time before this Court. Reference in this regard can be made to Hakim Khan Vs. Aurangzeb and another (PLD 1975 Lahore 1170) and case of Mst. Iqbal Begum and eight others Vs. Muhammad Yousaf and seven others (PLD 2003 Lahore 255). No exception can thus be taken to the impugned order. The second appeal is without merit and is, therefore, dismissed with no order as to costs.
(W.I.B.) Appeal dismissed
PLJ 2009 Lahore 84
Present: Kh. Farooq Saeed, J.
M/s. ROYAL EDU CARE, LAHORE through its Proprietor--Petitioner
versus
ASSISTANT COMMISSIONER OF INCOME TAX/TAXATION OFFICER, UNIT-04, AUDIT DIVISION-II, LAHORE --Respondent
W.P. No. 8974 of 2008, heard on 30.7.2008.
Interpretation of Statutes--
----Redundancy or superfluity cannot be attributed to the legislature--No word in law is inserted without purpose. [P. 87] A
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 66(1) & 136--Re-assessment during pendency of reference--Held: Assessing Officer should not have insisted on re-assessment as there was a reference already pending before High Court--Such an exercise after a subsequent finding by High Court in the early round of litigation would become a wastage of time--Reassessment cancelled.
[P. 88] B
2002 (86) Tax 241 (H.C) Lah. & 1985 (51) Tax 53 (H.C) Lah., ref.
Mr. Latif Ahmad Qureshi, Advocate for Petitioner.
Mr. Jan Muhammad Ch., Advocate for Respondent.
Date of hearing: 30.7.2008.
Judgment
The instant petition has been filed impugning the order of the Assistant Commissioner of Income Tax, Taxation Officer, Unit-04, Audit Division-II, Regional Tax Office, Lahore.
Limitation for assessment in certain cases,----(I) Notwithstanding anything contained in Sec. 64 and sub-sec. (3) of Sec. 65 wherein consequence of, or to give effect to, any finding or direction contained in any order made under this chapter or chapter VII, XIII or XIV or any order made by any High Court or the Supreme Court of Pakistan in exercise of its original or appellate jurisdiction,-----
(c) An assessment has been set aside, in full or in part by an order under Section 132 or Section 135 and no appeal is filed under Section 134 against such order or no appeal filed under Section 136 in respect thereof, as the case may be, such assessment may be, made at any time within two years in any case, to which clause (a) or clause (b) applies, and within one year in any case, to which clause (c) applies from the end of the financial in which such order is received by the (Deputy Commissioner)."
He therefore, by way of strict interpretation of language of law held that he was unable to accept the request and continued with the proceedings. The result of which is the impugned order of the Assessing Officer which has been challenged through the instant writ petition.
The learned counsel now challenges the same by relying upon the judgment "Mst Inayat Begum versus Commissioner Income Tax, Zone-B, Lahore" (1985 (51) Tax 53 (H.C. Lah), wherein this Court has directed not to reassess a set aside order in a case, where the Tribunal has simultaneously referred the case to the High Court through a reference application. He also referred "Muhammad Inayatullah Cheema versus Sardar Ali Raza Masood Qazilbash" (2002 (86) Tax 241 (H.C. Lah).
The learned Legal Advisor of the department however, resisted the invocation of the very writ petition. He said that the petitioner having an efficacious and prompt remedy in terms of appeal, should not have invoked the Special Jurisdiction of the Hon'ble High Court. He further supporting the action stated that the department is bound by the language of law. The Law provides for an exception to reassessment if an "appeal" is pending while in the present, the petitioner had filed 'a reference application'. The Law of interpretation of fiscal statutes is very clear and leaves no doubt that it is the language of law, which is to persist as. It is not a case of doubt. The legislature, having used the language "appeal" and the present petitioner having filed a "reference" there was no option before the Assessing Officer but to go with the assessment. He finally concluded by saying that if the petitioner had filed an appeal before the High Court, there was obviously an option for the Assessing Officer. He further said that the Assessing Officer being placed at the Lowest tier of the judicial hierarchy, if an assessment becomes time barred by his inaction, he would be hanged by his Senior Officers.
Unfortunately, the legislature has not amended the law advisedly. The provisions of Section 136 were earlier amended in 1997 when the "reference" under the sub-section was converted into "Appeal". The corresponding additions were made in connecting sections including 66 (I) (c) mentioned above. Later when the legislature in its wisdom again converted the appeal under Section 136 to Reference' through Finance Ordinance, 2000, corresponding word in other sections with special reference to Section 66 (I) (c) was not amended. This omission has created anomaly. The intention of the law, however, is very clear.
There is no appeal provided under Section 136 w.e.f 2000 and the same has been replaced byReference'.
The word
"Appeal" obtaining in the said section becomes redundant, if interpreted in the manner, the Assessing Officer, wants us to. It is a settled principle of law that redundancy or superfluity cannot be attributed to the legislature. No word in law is inserted without purpose. It is only an ignorance on the part of the people who hurriedly pushed amendments in law for short terms purposes without realization, the long term effects. When there is no Appeal' provided under Section 136 keeping the wordAppeal' in Section 66
(I)(c) is nothing beyond negligence on the part of the draftsman and it cannot be understood to be the intention of the legislature. When in 1997, the said section had provided an appeal against the order of Income Tax Appellate
Tribunal, the word `Appeal' filed were added in the corresponding Sec. 66 (I), as a result of which the limitation provided for reassessment of a remand order become inapplicable. The same should have been replaced by the word
"Reference filed" after the amendment in Section 136 by providing reference to High Court as against the appeal to High Court. Therefore, omission of the Draftsman is to be ignored in the presence of the facts. The judgment which is direct on the issue is "Mst Inayat Begum versus
Commissioner Income Tax, Zone-B, Lahore" (1985 (51) Tax 53 (H.C Lah.), the relevant para of which is as follows:--
"The learned counsel for the petitioner has argued that the assessment once made does not come to an end until the proceedings with regard to the Assessment have finally been concluded and since the matter of first assessment is still pending in the High Court, the second assessment order is illegal. Reliance is placed on the judgment on the Privy Council in the case of Commissioner Ram Das (1938 VI. ITR 414. The learned counsel for the respondent on the other hand has argued that the first assessment having been set aside. The Income Tax Authorities are not prevented from passing a fresh assessment order, but he fails to notice that the Appellate Tribunal did not simply set aside the first assessment order, but referred the matter to the High Court to seek its opinion on the question "whether the learned Tribunal was right in setting aside the order instead of cancellation". While this reference is pending it is not open to the Income Tax authorities to treat the assessment order as simply set aside or even cancelled. They have no choice but to wait for the answer to the reference.
Above para is direct on the issue. There is no doubt that when in the earlier round there is a continuation of the proceedings in terms of Appeal or Reference' the limitation provided in Section 66 for a set aside order cannot be applied. The connotationAppeal filed' would becomes redundant, if the same is not understood to be as Reference' filed under the peculiar circumstances as already discussed above. Further since while mentioning the termAppeal' words filed under Section 136 have also been mentioned, one should not have any doubt in mind that it is either appeal or reference filed under Section 136 which provides an exception for ignoring the limitation provided under Section 66 (1)
(c).
The judgment reported as "Muhammad Inayatullah Cheema Vs. Sardar Ali Raza Masood Qazilbash" (2002 (86) Tax 241 (H.C.Lah), is also relevant on the issue. The relevant para from the same is as follows:--
"To my mind, the said judgment in the said case does not support the present petitioner inasmuch as the matter of first assessment is still pending before the Appellate Tribunal and the respondent having been duly intimated of the said fact ought to have waited for the decision of the appeal the writ petition is accordingly allowed with the observations that the respondent shall wait for the decision of the Income Tax Appellate Tribunal in the appeal of the petitioner and proceed further in the matter, in accordance with the decision of the said Tribunal".
This is where the exercise of the jurisdiction of this Court also needs reference. The judgment referred in terms of "Mst. Inayat Begum Vs. Commissioner of Income Tax, Zone-B, Lahore" (1985 (51) Tax 53 (H.C.Lah), directly applies on this part also. In the said case, the circumstances were identical and this Court exercised its writ jurisdiction, on the same set of circumstances. In view thereof, the objection of the learned Legal Advisor on this point also fails.
The result of above discussion is obvious. The counsel having informed that a reference is pending in this case, the Assessing Officer should not have insisted on reassessment. Such an exercise after a subsequent finding by the High Court in the earlier round of litigation would become a wastage of time. His action of making reassessment being against the mandate of law and the judgments referred supra, therefore, is hereby disapproved and the assessment is canceled.
(J.R.) Petition allowed
PLJ 2009 Lahore 89
[Multan Bench Multan]
Present: S. Ali Hassan Rizvi, J.
PROVINCE OF THE PUNJAB and 2 others--Petitioners
versus
MUHAMMAD LATIF--Respondent
C.R. No. 610-D of 2003, decided on 24.4.2008.
Reserved Price and Highest Bid--
----Sale through an open auction--Challenge to--Question of--Whether Deputy Commissioner was competent to accept or reject the auction bid--Case was rejected on the ground that auction bid was less than reserved price--Validity--Highest bid was much more than the reserved price the duty of the concerned authorities to justify rejection was not there. [P. 91] A
Right of Defence--
----Right of defence struck off--Petitioner was afforded many opportunity to produce written statement despite availing failed to file--Right of defence rightly strucked off and order was not challenged any where.
[P. 92] C
Limitation Act, 1908 (IX of 1908)--
----Arts. 14 & 120--Limitation--Art. 14 of Limitation Act, was not applicable to the case of petitioners and the case would be covered within Art. 120 of Limitation Act, a residuary clause provides.
[P. 91] B
Mr. Mubasher Latif Gill, A.A.G. for Petitioners.
Malik Noor Muhammad Awan, Advocate for Respondent.
Date of hearing: 24.4.2008.
Order
Briefly respondent was offered land measuring 200-K, situated in Chak No. 505/TDA, Tehsil Kot Addu, District Muzaffargarh by the petitioners for sale through an open auction held on 30.10.1984. The reserve price for the same was fixed as Rs. 35,000/-. The respondent participated in the auction and was declared as successful bidder. His offer for the purchase of land was in the tune of Rs. 54,200/-. This auction was recommended by the Auctioneer subject to approval of the competent authority, who did not approve the same vide order dated 19.11.1987 and 30.11.1992.
Aggrieved from non-confirmation of the said auction, a suit for declaration to the effect that the plaintiff/respondent is owner in possession of the suit land being the highest bidder was filed. The petitioner entered his appearance but vide order dated 28.07.1993 their right to file written statement was struck, down by the learned trial Court under Order 8 Rule 10 CPC and suit proceeded ex-parte. Despite learned trial Court preferred to dismiss the suit observing it barred by time. The respondent aggrieved from judgment and decree of the learned trial Court filed an appeal to the District Judge, Muzaffargarh on 19.03.2001 and the said lower appellate Court vide order dated 23.01.2003 accepted the same and decreed the suit as prayed for. Hence this civil revision.
It is argued by the petitioner that the Court of learned Additional District Judge, Muzaffargarh passed the judgment and decree dated 23.01.2003 against the law, which is material irregularity. Similarly the learned Court of Civil Judge by order dated 28.07.1993 struck down the right of defence which is against the law. No order could be passed against the Government without waiting the expiry of at least three months whereas the suit was filed without a notice to the Government/petitioner. Since no express direction has been issued to the petitioner and unless direction is not issued to this effect, the striking of the defence was liable to be set-aside. That it has wrongly been observed that the suit of the respondent is within time because the order dated 19.11.1987, by which non-confirmation of the auction was challenged, the suit was filed in the year 1993 even after expiry of six years. The provided Article 14 of the Limitation Act, 1908 was the relevant and the learned trial Court had earlier rightly dismissed the suit being time barred. In the Article 14 of the Limitation Act, 1908 suit was to be filed within one year and the same was the view of the learned Civil Judge that the suit was barred by time, whereas the District Judge, Muzaffargarh has failed to apply his mind in the light of Article 14 of the Limitation Act, that it was barred by time matter. That even on the facts, learned Additional District Judge, Muzaffargarh has failed to take into notice that the basic condition of auction was the reserved price which was fixed as Rs. 35,000/-. That the competent authority was empowered to disagree with the bid and respondent was not issued any notice to deposit the remaining amount and even not put into possession. In this sense, he is an unauthorized cultivator. That the Additional District Judge, Muzaffargarh has failed to look into the legal aspect of the matter that in the absence of confirmation of the auction in favour of respondent without any notice the decree could not be passed and held as owner of the suit property.
Respondent's counsel argued that the land in question was sold through auction and the District Collector was competent to fix the reserve price, which was fixed as Rs. 35,000/-. That it was advertised through press. The petitioner was highest bidder which was in Rs. 54,200/-. The 1/4th amount was deposited at the time of auction. The confirmation of the bid was recommended by the auction committee. The possession was also delivered. The commissioner on 19.11.1987 cancelled the auction on the ground that the bid amount was less than the reserved price. The sanction was not granted mistakenly as the bid amount was higher than the reserved price. The bid was final in the amount of Rs. 54,200/-, while the reserve price was Rs. 35,000/-. The respondent filed an appeal to the commissioner who without application of his mind agreed with the Deputy Commissioner and dismissed the appeal. The Board of Revenue dismissed the review petition on the ground of jurisdiction. The respondent constrained to file the civil suit for his right and claim. That in this case, Article 120 of the Limitation Act, shall be applicable, because respondent consumed time in the legal forum and exhausted that. He had made every struggle for the right.
I have heard the learned counsel for the parties and perused the record.
In this case, the main question involved is whether the Deputy Commissioner was competent to accept or reject the auction bid. The answer may be that, he was competent to do so without assigning any reason. But in the case in hand, case was referred to Additional Commissioner who rejected the claim on the ground that the auction bid was less then the reserved price. This ground to not approve the auction, was not correct because the reserved price was fixed by the auction committee and it even was reconfirmed and the highest bid was much more than the reserved price, therefore, the duty of the concerned authorities to justify the rejection was not there. The fact and material before was otherwise because in this case, the bid was in the sum of Rs. 54,200/- whereas the reserved price was Rs. 35,000/-. Although the Commissioner was empowered even to reduce the reserved price if the highest bid is found less than the reserved price but again the case of the respondent was different because firstly the bid was much more than the reserved price and the reserved price was also fixed by the auction committee after verification time and again. The respondent complied with the terms and conditions and deposited 1/4th at once and remaining thereafter and also converted the land in cultivating position. On the point of limitation, it is found that the authorities concerned did not act within the power and four corners of their duty but have acted with mala fide and against the record hence this act of the concerned authorities was ultra vires, without jurisdiction, void and in excess of their jurisdiction. In view of the situation, Article 14 of the Limitation Act was not applicable to the case of the petitioners and the case of the respondent would be covered within the Article 120 of the Limitation Act a residuary clause provides. The respondent has made effort to approach the next forum and concerned higher authorities by filing a revision petition despite no remedy was provided. The suit originally was dismissed by the learned Civil Judge by way of error in law and application of mind as well. The ground for rejection of the bid has already been observed as ultra vires and with mala fide to cancel the auction as the highest bid was much more than the reserved price and the case of the respondent was not on the lower side from reserved price which was made the ground for rejection. The respondent has rightly approached the Civil Court and Civil Court had jurisdiction where order and matter is based on mala fide, ultra vires and void would be. As far a strucking off right of defence is concerned, the petitioner was afforded many opportunities to produce the written statement despite availing these, failed to file. The right of defence was rightly strucked off and this order was not challenged anywhere. Hence the claim of the respondent remain un-rebutted, supported by documentary evidence as well. The assertion of the respondent that the approval of the auction bid was not granted on the flimsy ground, therefore, being a highest bidder and have had paid the whole consideration. He is also in possession and claims to have converted the same into cultivating position and invested a substantial amount is justified and found correct, Hence appellate Court vide judgment and decree dated 23.1.2003 was justified to pass the impugned decree in accordance with the facts and law. Therefore, no material irregularity resulting into miscarriage of justice could be pointed out to justify the interference through the civil revision. The petition stands dismissed.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 92
Present: Hafiz Tariq Nasim, J.
SHAHID JAVED and 12 others--Petitioners
versus
GOVERNMENT OF PAKISTAN through Secretary, Establishments Division, Management Services Wing Islamabad and another--Respondent
W.P. No. 13720 of 2006, heard on 15.7.2008.
Constitution of Pakistan, 1973--
----Art. 25--All citizens are equal before law and entitled to equal protection of law and if High Court decides a point of law relating to the terms and conditions of civil servant who litigated and there were other civil servants who cannot have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation. [P. 96] A
1996 SCMR 1185& 2005 SCMR 499 ref.
Mr. Muhammad Saeed Ansari, Advocate for Petitioners.
Mr. Muhammad Zaman Qureshi, Deputy Attorney General for Pakistan for Respondents.
Date of hearing: 15.7.2008.
Judgment
Facts leading to this writ petition are that the petitioners while serving in the agricultural senses organization were declared surplus through order dated 15.5.1997 when they were in BPS-10. Later on through order dated 07.10.2002 they were absorbed in BPS-7, however, their pay was protected. Aggrieved by this, the petitioners approached the Federal Service Tribunal but could not succeed.
The learned counsel for the petitioners submits that adjustment in lower grade is an outcome of arbitrariness and mala fide, further submits that one colleague of the petitioners approached the Hon'ble Supreme Court of Pakistan through CP.No. 1043 of 2006 the same was decided on 19.1.2007 and the Hon'ble Supreme Court of Pakistan not only granted the relief to the colleague namely Mrs. Farkhanda Tallat but she was granted the compensation of Rs. 25,000/- and even it was directed that an amount of Rs. 1000/- out of the said amount of Rs. 25,000/- shall be paid by the establishment Secretary from his own pocket on account of his above-mentioned conduct.
The learned counsel for the petitioners submits that the petitioners are entitled for the same relief which was granted by the Hon'ble Supreme Court of Pakistan to the petitioners' colleague namely Mrs. Farkhanda Tallat.
On the other hand, the learned Deputy Attorney General for Pakistan submits that the judgment referred is a judgment in personem and not in renm and the benefit of that judgment cannot be extended to the present petitioners' because if they felt aggrieved of the judgment of the Federal Service Tribunal they could move before the Hon'ble Supreme Court of Pakistan like the petitioners' colleague namely Mrs. Farkhanda Tallat but the petitioners did not approach the apex Court hence they cannot be held entitled for the same relief. Further submits that as the judgment of the Federal Service Tribunal is against the petitioners, which had attained finality, the petitioners cannot reopen the matter at this belated stage. Further submits that the petitioners were not only accommodated but their salaries were protected and no injustice was done with the petitioners.
Arguments heard; record perused.
So far the judgment of the Federal Service Tribunal is concerned, of course the petitioners' appeals were dismissed, however, there was a specific observation in Para-8 of the judgment which is reproduced as under:
"This is a pathetic case which should be considered by the respondents on compassionate grounds. It is an admitted fact that the juniors to the appellants have been retained in Grade-10. The respondents may find out ways and means to restore the appellants to their original posts in Grade-10 or to any equivalent post."
"27. Needless to add that as has been mentioned above, the condition precedent permitting the kind of action impugned before us was the NON-AVAILABILITY OF AN EQUIVALENT POST and not the NON-AVAILABILITY OF A REQUISITION WITH THE ESTABLISHMENT DIVISION FOR AN EQUIVALENT POST. Therefore, such an excuse offered by the Establishment Division was far from being a sufficient satisfaction of the said condition precedent. And we may also add that even the other justification offered by the Establishment Division for non-absorption of the petitioner in an equivalent post i.e. the Ministry of Commerce not honouring its notification regarding posting of the petitioner to one of the available equivalent post in the said Ministry, was only a painful display of a callous disregard of the rights of a fellow civil servant as the Ministries etc. in the Federal Government were not sovereign powers but were a part and parcel of the same Government which were subject and subordinate to one superior command. We would dread even to visualize the situation canvassed, on behalf of the respondents and unfortunately even accepted by the learned Tribunal that an action taken by the prescribed and the competent Division in the Federal Government had been thrown into the gutter by another Division or Ministry of the same Government with no one in the hierarchy to intervene and to set things right. Such a situation, in English language, is called anarchy and despite the respondents insistence of having reached the said stage, we refuse to believe the existence of such an anarchic situation in the Government and in fact pray to Allah that such a claim never becomes a reality. We may add that the Establishment Division being or not being at the mercy of other Ministries, Divisions or offices etc. in the matter of placement of the Federal Government employees, is an internal affair of the said Government and is of no relevance to the petitioner nor does the same concern the Courts and the enforcement of law.
Having thus examined all aspects of the matter, we find that the impugned action could not be sustained in law as nothing was available on record which could assist us to hold that no equivalent post had ever become available in the entire set up of the Federal Government during the period in question i.e. from the year 1997 to 2002 and even till date. In the absence of such a material, the impugned action of appointing the petitioner to a lower post was an illegal and a callous exercise of authority and the same is accordingly declared as such.
Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Federal Service Tribunal dated 1.9.2006 passed in Appeal No. 265(R)CS/2003 as also the impugned notification of the Establishment Division dated 4.10.2002 appointing the appellant to a lower post of Senior Auditor in BS-11 in the Railways Department, are set aside. Resultantly, the appellant is declared to be appointed to a post equivalent to the one held by her before being rendered surplus with all back benefits, if any be due. And this shall be so done by or before 28.2.2007 and her said appointment shall be made against a post in Islamabad.
Since the appellant had suffered agony for so long and for no fault of hers and since she had also been compelled to go into litigation which would have cost her money, therefore, she deserves compensation for the same which is fixed at
Rs. 25,000/- (twenty-five thousand only) and which shall be paid to her before the above-mentioned 28th day of February, 2007. An amount of rupees one thousand out of the said amount of Rs. 25,000/- shall be paid by the Establishment Secretary from his own pocket on account of his above noticed conduct.
The Establishment Secretary shall then submit a report about the compliance of this order to the Registrar of this Court for the information of this Bench."
The learned Deputy Attorney General for Pakistan put emphasis on the sole ground that as the petitioners did not agitate before the apex Court, so they are not entitled for the same relief which was extended to the petitioners' colleague namely Mrs. Farkhanda Tallat cannot be a convincing argument particularly when there is ample law laid down by the Hon'ble Supreme Court of Pakistan wherein it is held that "according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law and if this Court decides a point of law relating to the terms and conditions of civil servant who litigated and there were other civil servants who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to others civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum."
In support of these findings, reliance can safely be placed on Hameed Akhtar Niazi v. Secretary Establishment Division (1996 SCMR 1185) and Tara Chand and others v. Karachi Water and Sewerage Board (2005 SCMR 499) and on a recent judgment passed by the apex Court comprising of four Honourable Judges and the author of the judgment is the Honourable Chief Justice of Pakistan (Government of the Punjab v. Samina Perveen etc and others) Criminal Petition No. 71-L and 72-L of 2008 and CP.No. 215-L/2008 and others dated 29.4.2008.
Taking strength from the law supra, this writ petition is allowed, impugned orders to the extent of the petitioners are declared illegal and are set aside. The petitioners shall be entitled for all consequential benefits too.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 96
Present: Hafiz Tariq Nasim, J.
COLONY SUGAR MILLS LTD. through its Manager
Administration, Lahore--Petitioner
versus
REGISTRAR TRADE UNIONS (CATEGORY-C) PUNJAB, LAHORE
and 2 others--Respondents
W.P. No. 8333 of 2008, decided on 15.9.2008.
Industrial Relations Ordinance, 2002 (XCI of 2002)--
----S. 12--Constitution of Pakistan, 1973, Art. 199--Cancellation of registration of trade union--Constitutional jurisdiction--Alternate remedy--Remand of--Despite availability of alternate remedy available to the petitioner, it is not a Rule of law barring jurisdiction of High Court but a rule by which the Court regulates its jurisdiction--When a statutory functionary acts in a partial, unjust and oppressive manner, then High Court in exercise of its jurisdiction has power to grant relief to the aggrieved party--Allegation of non-association in the inquiry, non-providing a fair reasoned opportunity to place its objection, non-deciding the well reasoned objections in its true perspective by the Registrar--Registrar's own statement having no objection if the matter is remanded for decision afresh to another Registrar--Impugned registration set aside and matter remanded for decision afresh--Petition allowed. [P. 101] A
Mr. Junaid Jabbar Khan, Advocate for Petitioner.
Respondent No. 1 in person.
Mr. Khalid Mahmood Wattoo, Advocate for Respondent No. 2.
Ch. Muhammad Khalid Farooq, Advocate for Respondent No. 3.
Date of hearing: 28.8.2008.
Judgment
Brief facts leading to this writ petition are that Registrar Trade Unions-Respondent No. 1 has registered Respondent No. 2 and certified as CBA in the petitioner's establishment; simultaneously Respondent No. 1 also registered Respondent No. 3 for the other unit/branch of Colony Sugar Mills Ltd. in Tehsil Mianchanu, District Khanewal. According to the petitioner's contentions representative of the petitioner approached Respondent No. 1, pointed out serious violation of law in the process of registration and certification as CBA of Respondent No. 2 but Respondent No. 1 refused to consider any objection of the petitioner and even refused the suggestion of the petitioner to refer the complaint before the Labour Court as per provisions of Section 12 of the IRO 2002 and this was all due to political influence of Respondents No. 2 and 3.
Learned counsel for the petitioner submits that due to illegal and unlawful acts of Respondent No. 1, Respondent No. 2 trade union, which was registered in contravention to the mandatory provisions of IRO 2002, started raising illegal demands and started threatening and pressurizing the petitioner management for the fulfillment of their illegal demands in addition to a threat to go on illegal strike. Accordingly, the petitioner filed a petition before the learned NIRC to avoid any untoward and unwarranted incident where the learned NIRC directed Respondent No. 2 not to take the law in their own hands, however, the said petition is still pending. The petitioner also moved a petition before the Labour Court No. 9, Multan against Respondents No. 1 and 3 but prior to registration of Respondent No. 3-trade union, praying to stop Respondent No. 1 from illegal registration of trade union of Respondent No. 3 where the learned Labour Court vide order dated 28.06.2008 directed Respondent No. 1 to follow the provisions of IRO 2002 strictly but even then Respondent No. 1 did not comply with the orders of the learned Labour Court and registered the trade union of Respondent No. 3 on 30.06.2008 which otherwise amounts to contempt of Labour Court's proceedings. Learned counsel for the petitioner submits that on the basis of illegal registration Respondent No. 2 submitted a Charter of Demands followed by a conciliation notice started creating harassment by holding illegal gate meetings and instigated workers against the management at the unit located at Chak Karmanwala, Tehsil Phalia, District Mandi Bahauddin and is planning to serve the strike notice resulting into destruction of petitioner's company's property, injuries to the security guards and workers and thereafter registration of FIR No. 195/08 under Sections 148, 149, 506, 427 PPC and all this happened only due to the unlawful acts of Respondent No. 1 and due to this serious development a lay off was to be announced for 14 days with effect from 01.07.2008. Adds that as per the provisions of IRO 2002 a trade union in an establishment (with more than one units) must be registered on provincial level, thus the only Director Labour Punjab being the Registrar at Punjab level had the jurisdiction to register the trade union of the petitioners establishment, whereas in the present controversy the registration of trade unions by Respondent No. 1 is an act tainted with malice, which is also reflected from Respondent No. 1's actions of non-associating the petitioner in the verification of process, conducting the inquiry in the absence of the petitioner culminating the registration of Respondent Nos. 2 and 3 a void act of Respondent No. 1 calls for interference of this Court. Further submits that as Respondent No. 1 refused to consider the petitioner's complaints in respect of registration of Respondents No. 2 and 3, the petitioner cannot move before the Labour Court due to the provisions of IRO 2002, hence the petitioner prays that the registration of Respondents No. 2 and 3 as trade unions/CBA be declared illegal.
On the other hand, Registrar Trade Unions-Respondent No. 1 appeared in person, categorically refuted the allegations of petitioner which were levelled against him and submits that during the course of registration of Respondents No. 2 and 3 he took every care provided every opportunity to all concerns so that they could explain their contentions before him and after inquiring each and every aspect of the matter, he proceeded strictly in accordance with law.
During the course of arguments Respondent No. 1, who appeared in person, candidly submitted that he shall have no objection if the matter is remitted to the Provincial Registrar of Trade Unions for a fresh exercise but simultaneously submits that it shall be an exercise in futility because he himself did his best to satisfy all the requirements of law before registering the Respondents No. 2 and 3.
Mr. Khalid Mahmood Wattoo, Advocate, argued the case on behalf of Respondents No. 2 and 3 at length and submits with vehemence that the writ petition is not competent as the petitioner can avail an alternate remedy which is available to him as per provisions of Section 33 of the IRO 2002. Further submits that the petitioner has already approached the Punjab Labour Court No. 9, Multan so in the presence of pendency of that petition before the learned Labour Court, writ cannot proceed and even if the petitioner fails before the Labour Court, he can file appeal before the High Court under Section 48 of the IRO 2002. Further submits that before the registration/certification of Respondent No. 2 as CBA the petitioner did not file any objection before Respondent No. 1, meaning thereby that the petitioner is estopped by his own conduct to raise the objections before this Court. Adds that the petitioner has concealed the material facts from this Court which is a sufficient ground for the dismissal of the writ petition, which otherwise is filed without having any locus standi. The learned counsel referred certain letters in support of his contentions that despite providing every opportunity to the petitioner by Respondent No. 1 for the verification of facts, the petitioner establishment did not cooperate with the Registrar rather sidetracked the issue with ulterior motive. In support of his contentions, learned counsel relied on a series of judgments.
Learned counsel for Respondent No. 3 also adopts the arguments of learned counsel for Respondent No. 2.
Arguments heard. Record perused.
The foremost point which requires to be resolved in the present controversy is that whether the petitioner has an alternate remedy for the redressal of his grievance or not and for that we have to advert to the plain reading of specific provisions of IRO 2002. Applicable provision is Section 12 of the Ordinance, which is reproduced as under:--
"Cancellation of registration.--(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has--
(i) contravened or has been registered in contravention of, any of the provisions of this Ordinance or the rules made thereunder, (ii) contravened any of the provisions of its Constitution; or
(iii) made in its Constitution any provision which is inconsistent with this Ordinance or the rules made thereunder."
"if a thing is required to be done in a particular manner, it must be done in that manner only and not otherwise".
In the present controversy, the petitioner seriously objected the act of Respondent No. 1 regarding registration of trade unions by putting its emphasis that despite objections Respondent No. 1 did not advert to those objections, did not participate the petitioner in any inquiry if conducted by the Registrar Respondent No. 1, resulting into serious miscarriage of justice. When these contentions of the petitioner are put in juxtaposition to the provisions of Section 12 of the IRO 2002, it shall remain crystal clear that for the redressal of its grievance the petitioner cannot invoke the jurisdiction of Labour Court because the right for invoking the jurisdiction of Labour Court in respect of cancellation of trade unions rests with Registrar and not with the employer. It is to be noticed that when the Registrar is determined to support his action of registration of certain trade unions, then no question arises for lodging a complaint by the Registrar before the Labour Court for the. cancellation of registration of a trade union and this is the main crux of the present case. Practically, in such like situation a complaint should have made before the Labour Court for proper resolving of issue by the Registrar when the establishment questions the bona fide of the Registrar's action, but in the present case Respondent No. 1-Registrar did not opt to exercise his discretion for filing the complaint before the Labour Court but it is appreciable that during the course of arguments even today in the open Court the Registrar-Respondent No. 1 expressed his opinion in so many words that he shall have no objection if the matter is remitted to the Provincial Registrar for re-examination and further process.
Without discussing all points raised by both sides, I feel it appropriate to confine myself to resolution of present controversy in accordance with law.
So far the maintainability of writ petition is concerned, suffice it to refer to law laid down in the cases of K.P.T. Progressive Workers Union vs. Registrar of Trade Unions and others (2000 PLC 376), S.G. Fibre Employees' Union through General Secretary vs. Registrar of Trade Unions, Government of Sindh and 5 others (2003 PLC 58), Messrs Karachi Customs Agents Group through President and 3 others vs. The Registrar of Trade Unions, Sindh (2005 PLC 51), Lucky Textile Mills through Managing Partner vs. Mazdoor Union of Lucky Textile Mills through General Secretary and 3 others (2007 PLC 366) and a recent judgment reported as Muslimabad Cooperative Housing Society Ltd. through Secretary vs. Mrs. Siddiqa Faiz and others (PLD 2008 SC 135). In all the judgments referred above, it is unanimously resolved that despite availability of alternate remedy available to the petitioner it is not a Rule of law barring jurisdiction of High Court but a Rule by which the Court regulates its jurisdiction. When a statutory functionary acts in a partial, unjust and oppressive manner, then the High Court in exercise of its jurisdiction has power to grant relief to the aggrieved party. As observed earlier I am not inclined to go into the details of present case, suffice it to say that the petitioner has levelled certain allegations of its non-association in the inquiry if conducted by Respondent No. 1, non-providing a fair reasoned opportunity to place its objections, non-deciding the petitioner's well reasoned objections in its true perspective by the Registrar with particularity of Registrar's own statement before this Court today that he shall have no objection if the matter is referred back to any other Registrar, then it shall be appropriate to remand the matter to Provincial Registrar.
For the foregoing reasons, the impugned registrations stand set aside and the matter is remanded to the Provincial Registrar of Trade Unions with a direction to consider the applications of Trade Unions afresh, conduct impartial inquiry in the matter, provide fair opportunity to the petitioner to contest the applications, resolve the objections of the petitioner and then proceed to pass appropriate orders in accordance with law. Writ petition is allowed accordingly.
(M.A.K.Z.) Petition allowed
PLJ 2009 Lahore 101
Present: Hafiz Tariq Nasim, J.
LIAQUAT HUSSAIN--Petitioner
versus
GOVERNMENT OF PUNJAB through its Secretary, C&W
Department, Lahore--Respondents
W.P. No. 7946 of 2008, heard on 10.9.2008.
Constitution of Pakistan, 1973--
----Art. 199--Civil servant--Suspension--Negligence--Criminal charge--Discharged from service--Effect of--No other allegation against the petitioner except registration of criminal case and wherein the petitioner has already been discharged through an order of a competent Court of law--Petitioner's suspension has been washed away by a competent Court of law, hence continuation of suspension order particularly when it was passed on the strength of Rule 7.5 of the Civil Service Rules (Punjab) Vol. 1 shall be an exercise in futile rather shall aggravate the petitioner's humiliation amongst his colleagues and society which otherwise is against the spirit of law--Suspension order set aside. [P. 104] A
Mr. Junaid Jabbar Khan, Advocate for Petitioner.
Ch. Naeem Masood, AAG for Respondents.
Date of hearing: 10.9.2008.
Judgment
Facts leading to this writ petition are that the petitioner while working as SDO in the Communication and Works Department, Government of the Punjab was suspended through order dated 22.6.2008 on the plea that a child in Abadi Manowal, Lahore was died due to the negligence of the Officers/Officials of the area. An FIR No. 500/2008 was also registered against the officials on 19.6.2008, the petitioner bailed out and then submitted a representation before Respondent No. 1 explaining his position that the sewerage line was never maintained by the Communication and Works Department as the responsibility to maintain the building of Police Training School was the only responsibility of the C&W Department, whereas the maintenance of said sewerage line was the responsibility of Town Municipal Administration and other local Authorities. However, the explanation of the petitioner before Respondent No. 1 could not result into exoneration and he filed this writ petition with two prayers :-
(i) Suspension order dated 22.6.2008 be declared illegal and be set aside, (ii) Respondents be directed to consider the petitioner for promotion to the post of XEN in the forthcoming DPC scheduled on 03.7.2008 independent of the suspension order.
The learned counsel for the petitioner submits that the petitioner has been discharged from the criminal case through order dated 04.9.2008 by the learned Magistrate Section 30 Lahore and as such the basis of the suspension order when could not remain in field, no justification rested with the departmental Authorities to continue with the suspension order. Further submits that the petitioner was otherwise eligible for promotion to the rank of XEN but due to the impugned suspension order the petitioner's lawful right of promotion is being denied.
On the other hand, the learned Assistant Advocate General Punjab Lahore under instructions from the departmental representative submits that the petitioner's promotion case was considered during the pendency of writ petition. However, his case is Deferred on account of suspension of the petitioner and the moment the petitioner's suspension order is recalled, his case shall be reconsidered strictly in accordance with law. Further submits that the criminal liability as well as the service matter can proceed simultaneously and there is no bar in that respect so the contention of the petitioner that the basis of suspension order if washed away from the field, the departmental proceedings cannot be processed is without force.
Arguments heard; available record perused.
First of all I have to see the contents of the impugned suspension order which is reproduced as follows:--
"NO. SODII(C&W) 1-2/2002: Consequent upon their arrest by the local police due to negligence in the case of death of a child in Abadi Manowal, Lahore on 19.06.2008, the following officers/official are hereby placed under suspension with immediate effect under Rule 7.5 of the Civil Service Rules (Punjab) Vol. I:
Mr. Muhammad Sharif Executive Engineer PBD 3rd, Lahore.
Mr. Liaquat Hussain, Sub-Divisional Officer, PBSD, 9th, Lahore.
Mr. Wahaj Siddique, Sub-Engineer o/o SDO PBSD 9th, Lahore.
SIKANDAR SULTAN RAJA
SECRETARY C&W/COMPETENT AUTHORITY."
"A Government servant committed to prison either for debts or on criminal charge should be considered as under suspension from the date of his arrest and should be allowed only those payments as are laid down in Rule 7.2 until the decision of his case by the trial Court, unless, however, on being released; on bail during the course of trial, the authority concerned reinstates him keeping in view the nature of offence or the grounds for his commitment to prison."
It is also admitted that the petitioner is discharged from the criminal case through, order dated 04.9.2008 passed by the learned Magistrate Section 30, Lahore.
When all these undisputed facts are put in juxta position to the suspension order, no other conclusion can be drawn that the reasons, which were made basis of the suspension order, remained no more in the field. Such like controversy was resolved by the Hon'ble Supreme Court of Pakistan in cases reported as Muhammad Sardar Khan v. Senior Member Board of Revenue (1985 SCMR 1483), Dr. Muhammad Islam v. Government of N.-W.F.P. (1998 SCMR 1993), and Shams-ud-Din Khawaja v. Government of Pakistan (PLD 2003 SC 187), wherein it is held that" if the departmental proceedings were initiated on the basis of criminal charge which was not subsequently proved by the competent Court of law and resulted in acquittal, the order of compulsory retirement passed by the department cannot hold the field."
In the present case, the departmental representative who is present in Court (after checking the service record of the petitioner) confirms that no other allegation is available against the petitioner except the registration of criminal case and wherein the petitioner has already been discharged through an order of a competent Court of law. To my mind now the matter is very simple i.e. the basis of petitioner's suspension has been washed away through Discharge order dated 04.9.2008 by a competent Court of law, thence continuation of suspension order particularly when it was passed on the strength of Rule 7.5 of the Civil Service Rule (Punjab) Vol. I shall be an exercise in futile rather shall aggravate the petitioner's humiliation amongst his colleagues and society which otherwise is against the spirit of law, thus I have no other option except to allow this writ petition, resultantly the impugned suspension order is set aside.
It is to be noticed that the departmental representative categorically stated that the petitioner's promotion case was only deferred and not superseded and he is entitled for reconsideration after recall of suspension order.
As the suspension order is set aside, thus the department is directed to place the petitioner's promotion case before the departmental promotion committee within one month and the DPC shall consider the promotion case of the petitioner fairly, justly and strictly in accordance with law under intimation to the Deputy Registrar (Judl.) of this Court.
(M.A.K.Z.) Petition allowed
PLJ 2009 Lahore 105
[Multan Bench Multan]
Present: Mazhar Hussain Minhas, J.
GHULAM ABBAS MUJAHID OFFICE ASSISTANT, OFFICE OF THE DISTRICT OFFICER AGRICULTURE EXTENTION, MULTAN--Petitioner
versus
EXECUTIVE DISTRICT OFFICER AGRICULTURE, MULTANand 3 others --Respondents
W.P. No. 4184 of 2007, decided on 29.1.2008.
Punjab District Government Rules of Business, 2001--
----R. 16--Constitution of Pakistan, 1973, Art. 212--Transfer order--Non-filing of appeal--Constitutional petition--Maintainability--Since the impugned order is appealable before Punjab Service Tribunal and is not assailable before High Court in view of the bar contained in Art. 212 of the Constitution of Pakistan, 1973, therefore, the writ petition is not competent--Petition was dismissed. [P. 108] A
Mr. Kanwar Muhammad Younas, Advocate for Petitioner.
Malik Muhammad Qasim Khan, Assistant Advocate General for Respondent No. 3.
Sardar Riaz Karim, Advocate for Respondent No. 4.
Respondents No. 1 and 2 in person.
Date of hearing: 29.1.2008.
Order
Through this Constitutional petition, the petitioner has challenged the order dated 29.08.2007 passed by Respondent No. 1, whereby his transfer order dated 21.08.2008 has been recalled.
Petitioner is serving in Agriculture Department as Office Assistant since his promotion in year 1988. On 21.8.2007 he was transferred by Respondent No. 1 vide Office Order No. 6704-8, from the office of Respondent No. 2 to the office of Respondent No. 3, vice Respondent No. 4, where he assumed the charge on 23.8.2007. But only a week thereafter vide Order No. 6833-36/EDOA/MN/Estt., his transfer was cancelled allegedly under the instructions of Minister for Social Welfare, Punjab, Lahore. It has been alleged that Respondent No. 4 hails from the constituency of Rai Mansab Ali the then Minister for Social Welfare. Punjab, Lahore and is very close to him. He has manoeuvred the impugned order for cancellation of petitioner's transfer through influence of the said Minister, therefore, the same is void, illegal and without lawful authority.
Respondent No. 4 has filed his parawise comments whereby he has denied his acquaintance with the then Minister for Social Welfare, Punjab, Lahore and has submitted that in fact the petitioner himself managed his transfer in the office of Respondent No. 3 by using some extraneous influence upon Respondent No. 1. Further submitted that under Rule 16 of the Punjab District Government Rules of Business, 2001, Respondent No. 1 was not the competent authority to issue transfer order dated 21.8.2007, therefore, he rightly recalled the same through impugned order. Objection to maintainability of the writ petition in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 has also been raised.
Arguments of learned counsel for the petitioner, learned Assistant Advocate General and learned counsel for Respondent No. 4 have been heard and record available on the file perused. Learned counsel for the petitioner has reiterated the contentions recorded in the petition and in support of his case has relied upon "Roshan Khan versus Director Schools & Literacy, NWFP, Peshawar" (NLR 2007 Service 49) and "Zahid Akhtar versus Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others", (PLD 1995 SC 530). In the earlier case, the Hon'ble Supreme Court of Pakistan has held that transfer of a civil servant under orders of Minister would be void being violative of Rule 21(2) read with Schedule V of Rules of Business, 1974. In this case, Roshan Khan-appellant a Senior English Teacher of District Shangla was transferred to Government High School Kuz. Pao, under the political influence of Pir Muhammad Khan, MPA. Feeling aggrieved, he challenged his transfer order before NWFP Service Tribunal, Peshawar, but his appeal was dismissed and his transfer order was considered valid within the contemplation of Section 10 of NWFP Civil Servants Act, 1973. Against the judgment of NWFP Service Tribunal, he sought special leave to appeal from the Hon'ble Supreme Court of Pakistan. His petition for leave to appeal was converted into appeal and the same was allowed. It was observed by their lordships' in Para No. 14 of their Judgment that:--
"It is for quite a long time that some of the peoples representatives, whose sacred and scholarly job was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/ Administrative domain of appointments, promotions and transfers of civil servants. By now it has turned into a mafia that does not care about Law, Rules, Regulations. Rules of Business and repeated deprecations by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This is bound to destroy the institutions, if not already destroyed".
As evident from the judgment, the petitioner/appellant approached the Service Tribunal in the first instance for redressal of his grievance and then went to the Apex Court, whereas in this case the petitioner has directly approached this Court through writ petition without having recourse to the Service Tribunal.
In Zahid Akhtar's case (PLD 1995 SC 530) also involvement of the politicians in the administrative matters of the departments has been strongly condemned. Role of the administrative Heads of the Departments who submit to the whims of the elected representatives has also been deprecated and denounced. It has been observed that Government Servant should comply only with those orders/directions of his superior which were legal and within his competence. Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on the ground that non-compliance thereof, could have exposed concerned Government Servant to the risk of disciplinary action.
In this case also the petitioner directly invoked the jurisdiction of High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore his petition was dismissed being not maintainable in view of the bar contained in Article 212 of the Constitution. Thereupon, he filed petition for leave to appeal before the Hon'ble apex Court but the same was dismissed. Copy of this judgment was sent to the Government of Punjab for circulation among all the departments for future guidance.
(1) "The Authorities for postings and transfers of officers/officials in the district shall be as follows:--
Category of Officers/officials Authority
(i) S-19 and above excluding EDOs Zila Nazim
& District Officers.
(ii) BS-11 to BS-18 DCO
(iii) BS-1 to BS-10 EDO
(2) The normal tenure of these posts shall be two years."
The above rule shows that, District Coordination Officer is the competent authority for the transfer of the officers/officials of BS-11 to BS 18 whereas the Respondent No. 1 is competent to transfer the officials upto BS-10 only. The petitioner is admittedly in BS-11 while Respondent No. 4 is in BS-15. Therefore, by virtue of the above-quoted rule, Respondent No. 1 was not competent to pass the transfer order dated 21.08.2007 or to recall the same vide impugned order dated 29.8.2007. On query of this Court, he has frankly conceded that he was asked by the then Minister for Social Welfare, Punjab, Lahore to cancel transfer of the petitioner in the office of Respondent No. 3. Thus, on this ground also impugned order is void ab initio having been passed under the unlawful directions of the Minister.
However, since the impugned order is appealable before the Punjab Service Tribunal and is not assailable before this Court in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, the writ petition is not competent. Hence the same is dismissed.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Lahore 108
Present: Syed Asghar Haider, J.
Mst. SITWAT CHUGHTAI and another--Petitioners
versus
JUDGE FAMILY COURT, LAHORE and another--Respondents
W.P. No. 11373 of 2008, decided on 11.9.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 17-A--Constitution of Pakistan 1973, Art. 199--Interim maintenance allowance of minor--Fixation as Rs. 1200/- per month--Writ petition for enhancement--Demand for maintenance for minor in the plaint was pleaded as Rs. 25000/- per month without any detail regarding quantum of school fee or other expenses--Defendant had admitted his salary as Rs. 1,25,000/- per month but had stated detail of his monthly expenses as Rs. 1,10,440/- per month--It was impossible to determine the veracity of the claim of either party without recording evidence--Such exercise was not possible in writ jurisdiction, especially if the finding was only tentative & not final and order was also interim in nature--Petition dismissed in limine.
[Pp. 110 & 111] A & B
2007 MLD 41; 1996 MLD 1057; KLR 1985 Civil Cases 585; 1989 SCMR 918; 1981 SCMR 291; PLD 1991 SC 476; 1993 SCMR 618; 1993 SCMR 515; 1991 SCMR 2136; 1999 SCMR 1447; NLR 1987 CLJ 459, 2001 PTD 3948, ref.
Ms. Khalida Perveen, Advocate for Petitioners.
Date of hearing: 11.9.2008.
Order
Petitioners filed a suit for recovery of dower for Petitioner No. 1 and maintenance allowance for Petitioner No. 2. Respondent No. 2 entered appearance, filed a written statement, contested the suit, of the pleadings of the parties issues were framed and the learned Family Court also fixed interim maintenance in the sum of Rs. 1200/- per month for Petitioner No. 2. Petitioners are aggrieved of fixation of interim maintenance and pray that the same may be enhanced, hence the instant petition.
Learned counsel contended that Respondent No. 2 is a man of means and his monthly salary is around Rs. 1,25,000/-, Petitioner No. 2, is a minor and a school going boy, his boarding, lodging and ancillary expenses are about Rs.25,000/- per month to which the Petitioner No. 1 has to cater, therefore, the amount of Rs.1200/- fixed as interim maintenance by the learned Family Court is too meagre to defray these expenses, as such it be enhanced. To further augment her submissions, learned counsel submitted that this Court has ample powers to interfere in interlocutory orders even if they are tentative in nature. To fortify her contentions, the learned counsel referred to Makhdoom Ali vs. Mst. Razia Sultana and others (2007 MLD 41), Muhammad Sarwar vs. Sughran Bibi and 2 others (1996 MLD 1057) and Mst. Shereen Masood vs. Malik Naseem Hassan Judge, Family Court, Lahore and another (KLR 1985 Civil Cases 585).
Heard.
The Family Court Act, 1964 is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. It, inter alia, has bestowed upon the Family Court powers under Section 17-A of the Act ibid to grant interim maintenance to the concerned parties during the pendency of the proceedings. It also has been mandated that such maintenance shall be paid by the 14th day of each calendar month and in case of default the defense of the defendant shall be struck off and the suit decreed. The purpose behind this legislation is to ensure that during pendency of these proceedings with the Family Court financial constraints faced by the minors are ameliorated. The question now arises that does the Family Court have un-fettered and un-bridled powers to fix interim maintenance at its discretion or is it required to proceed on pragmatic, rationale and judicial basis. The answer, of course, is that it should proceed on the later. It should broadly look into the social status of the parties, the earning of the defendant, his capacity to pay, the requirements of the minor, and on this touchstone fix interim maintenance. It also is noteworthy that no right of appeal etc. has been provided against this fixation, because the order is tentative and interim in nature, therefore, the family Court should be even more careful and precise in this context to ward off any injustice. However, this order is subject to final review after recording evidence of both parties, thus the quantum of maintenance can thereafter be easily determined and fixed accurately. The Court has uninhibited powers to enhance or decrease the quantum of maintenance after appraising, deciphering and examining the evidence produced during trial. Therefore, findings qua interim maintenance normally cannot be interfered with, if the same are fixed upon the parameters stated above. In the present matter, in the plaint, a demand for maintenance for the minor has been raised in the sum of Rs. 25,000/- while controverting the assertion of the plaintiffs in para 4 of the written statement the salary of the defendant in the sum of Rs. 1,25,000/- is admitted, however a detail of his expenses which comes to Rs. 1,10,440/- has been stated. Unfortunately, there are no details in the plaint regarding the quantum of school fee and other expenses of the minor but only a figure of Rs.25,000/- has been stated, therefore, it is impossible to determine the veracity of the claim of either party, without recording evidence. This exercise is not possible in the present jurisdiction, especially if the finding is only tentative and not final and the order is also interim in nature. And also because proper fixation of maintenance has to be fixed by the family Court after recording of evidence. I am fortified in this context by the following precedents F.D. Souza vs. Karachi Building Control Authority and 3 others (1989 SCMR 918), Khawaja Muhammad Akhtar vs. President Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another (1981 SCMR 291), Federation of Pakistan and 2 others vs. Major (Retd.) Muhammad Sabir Khan (PLD 1991 SC 476), Muhammad Younus Khan and 12 others vs. Government of NWFP through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Mst. Mariam Bai and others Vs. Islamic Republic of Pakistan and 5 others (1993 SCMR 515), Mushtaq Hussain Bokhari Vs. The State and 6 others (1991 SCMR 2136), Mohtarma Benazir Bhutto M.N.A. and Leader of the Opposition, Bilawal House, Karachi Vs. The State (1999 SCMR 1447), Mian Ghulam Dastgir Bari Vs. Rai Salah ud Din etc. (NLR 1987 CLJ 459) and Habib Arkady Ltd. Vs. Deputy Collector, Sales Tax Hub, Collectorate of Customs, Sales Tax and Central Excise, Quetta (2001 PTD 3948).
As far as the precedents referred to by the learned counsel for the petitioner are concerned, they are persuasive and not binding and even distinguishable on facts, thus of not much help to the cause of the petitioner.
But as the petition emanates of a family matter and admittedly the minor's need have to catered to in a reasonable manner to ward off any hardship, therefore, the Family Court is directed to conclude trial within two months from today, in accordance with law, on merits, without fail. It shall keep especially in mind the needs of the minor and his monthly expenses and also the monthly salary of the defendant and the parameters referred to above, before fixing the final maintenance of the minor.
With these observations the petition is dismissed in limine.
(J.R.) Petition dismissed
PLJ 2009 Lahore 111
[Multan Bench Multan]
Present: Mazhar Hussain Minhas, J.
ABDUL WAHEED--Petitioner/Plaintiff
versus
RIASAT ALI--Respondent/Defendant
Civil Revisions No. 458 & 412 of 2006, heard on 17.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13 & O. XXXVII, R. 4--Suit for recovery on the basis of pro-note--Defendant was granted leave to defend--Absent after filing written statement--Exparte decree was passed in favour of plaintiff--Challenge to--Application for condonation of delay--Held: There was absolutely no ground for setting aside exparte decree specially when there was no application for condonation of delay--Impugned order set aside, ex parte decree restored. [Pp. 113, 114 & 115] A, D & E
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908), O. IX, R. 13--Condonation of delay--Setting aside decree exparte--Valueable rights--Plea of--Validity--Existence of valuable right of the party seeking condonation of delay is not a proper ground for condonation of delay in civil matters. [P. 114] B
Limitation Act, 1908 (V of 1908)--
----S. 5--Civil Procedure Code, (V of 1908) O. IX, R. 13--Condonation of delay--Plea of poverty--Held: Plea for condonation of delay on the ground of poverty is not a valid ground. [P. 114] C
PLD 2002 Lah. 155, 1989 ALD 443, 1982 CLC 20, AIR 1958 Bom. 10 & 2006 SCMR 631, ref.
Rana Abdul Majeed, Advocate for Petitioner/Plaintiff.
Malik Javed Akhtar Wains, Advocate for Respondent/ Defendant.
Date of hearing: 17.6.2008.
Judgment
Both these civil revisions are directed against the order dated 23.05.2006 passed by learned Additional District Judge, Lodhran whereby exparte decree in favour of Abdul Waheed-petitioner/plaintiff has been set aside subject to bank guarantee equal to the decretal amount, therefore both are being decided through this single judgment.
Brief facts giving rise to the above revisions are that Abdul Waheed (hereinafter called the petitioner) filed suit under Order XXXVII CPC for recovery of Rs. 1,30,000/- on basis of a pro-note against Riasat Ali (hereinafter called the respondent). The respondent was allowed leave to defend the suit upon which he filed written statement whereby he contested the suit raising certain preliminary objections to its maintainability also. In view of the divergent pleadings of the parties, learned trial Court framed necessary issues and parties were directed to adduce their respective evidence. On 16.02.2005 the petitioner's evidence was available, but neither the respondent nor his counsel appeared before the learned trial Court, therefore he was proceeded against exparte under Order IX Rule 12 CPC and the case was adjourned to 25.02.2005. On that date exparte evidence was recorded and on the next date of hearing i.e. 04.03.2005 the suit was decreed exparte. Thereafter, on 31.05.2005 the execution petition was filed. During the execution proceedings, the respondent was arrested and sent to the civil prison upon which on 12.05.2006 he filed application for setting aside the exparte order dated 16.02.2005 and exparte decree dated 04.03.2005. The application was resisted by the petitioner, however the same was allowed by the learned trial Court vide order dated 23.05.2006 subject to payment of cost of Rs.2000/- and furnishing bank guarantee equal to the decretal amount. On a separate application, the respondent was ordered to be released from jail, subject to furnishing surety bond in the sum of Rs. 25,000/-. Feeling aggrieved by the impugned order, the petitioner has invoked the revisional jurisdiction of this Court. The respondent also dissatisfied with the condition to furnish bank guarantee equivalent to the decretal amount, has filed the revision.
Arguments of learned counsel for the parties have been heard and record available on the file perused.
Learned counsel for the petitioner has contended that the respondent filed application for setting aside the exparte proceedings and decree with a delay of one year three months and has not moved any application for condonation of delay under Section 5 of the Limitation Act, 1908. Therefore, the impugned order passed by the learned trial Court is illegal and without jurisdiction. In support of his contention, learned counsel has placed reliance on "Shahid Pervaiz alias Shahid Hameed versus Muhammd Ahmad Ameen" (2006 SCMR 631).
Conversely, learned counsel for the respondent has argued that application for setting aside the exparte decree has been moved under Order XXXVII Rule 4 CPC for which no limitation is provided in law. In the absence of any specific limitation, Article 181 of the Limitation Act, 1908 is applicable under which a judgment-debtor can move application for setting aside the exparte decree within three years. It has been further contended by learned counsel that condition to furnish bank guarantee equivalent to the decretal amount could not be imposed by the learned trial Court when he had been burdened with cost for setting aside order of the exparte decree. In support of his contention, learned counsel has placed reliance on "Messrs Syed Match Co. (Pvt) Ltd. through Managing Director versus Messrs Century Paper & Board Mills Ltd. through Director" (PLD 2002 Lahore 155), Yasin Industries and others versus National Bank of Pakistan" (1989 ALD 443), "Syed Mahboob Hussain Shah versus Messrs Commerce Bank Ltd" (1982 CLC 20) and "P.N. Fils Ltd. and another versus Overseas Fils Corporation Ltd" (AIR 1958 Bombay 10).
Admittedly, the respondent moved application for setting aside the exparte decree with a delay of one year, two months and seven days without an application under Section 5 of the Limitation Act, 1908 for condonation of this delay. Order XXXVII Rule 4 CPC provides that after decree the Court may, under special circumstances, set aside the decree, and if necessary, stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. Any limitation for filing the application to set aside exparte decree is not provided in this provision. In "P.N. Fils Ltd. And another versus Overseas Fils Corporation Ltd" (AIR 1958 Bombay 10), it has been observed that Article 164 of Limitation Act does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. Such an application falls under Order XXXVII Rule 4 and the Limitation Act has not dealt with any such application. Therefore, the article that would apply would be the residuary Article 181 of the Limitation Act. This judgment, in my view, is of no help to the respondent as it covers eventuality when leave to defend is not given to the defendant and he is debarred from participating in the proceedings and defending his case. In the present case, application for leave to defend moved by the respondent was allowed and he contested the suit by filing his written statement. In the light of respective contentions of the parties, necessary issues were also settled and parties were called upon to adduce their evidence. On 16.02.2005, despite a direction by the learned trial Court for personal appearance, the respondent did not appear before the Court, therefore he was proceeded against exparte and thereafter on 25.02.2005 the petitioner's evidence was recorded and suit was decreed on the next date of hearing i.e. 04.03.2005. In "Shahid Pervaiz alias Shahid Hameed versus Muhammd Ahmad Ameen" (2006 SCMR 631), the Hon'ble Supreme Court of Pakistan has laid down that under Article 164 of the Limitation Act, 1908 thirty days time is prescribed to file an application for setting aside the exparte decree and the limitation starts from the date of decree in case the defendant had participated in the proceedings before the trial Court. It has further been observed in this judgment that by lapse of time valuable right accrues to the other side and delay of each day has to be satisfactorily explained. Existence of valuable right of the party seeking condonation of delay is not a proper ground for condonation of delay in civil matters. Plea for condonation of relay on the ground of poverty is also not valid ground. It is pertinent to note that this judgment has been rendered by the Hon'ble apex Court in a case under Order XXXVII Rule 4 CPC. In the impugned order, the learned trial Court has itself observed that no solid reason has been described for setting aside the exparte decree. I also endorse the observation of learned trial Court that there is absolutely no ground for setting aside the exparte decree particularly when there is no application for condonation of delay in filing the application. In the absence of any sufficient ground for setting aside the exparte decree, learned trial Court has travelled beyond its jurisdiction while taking lenient view in favour of the respondent and allowing his application.
As regards the next contention of learned counsel for the respondent that condition of bank guarantee could not be imposed for setting aside the exparte decree, judgments cited by the learned counsel are not applicable in this case. In all these judgments, during the pendency of application for setting aside the exparte proceedings, the execution proceedings were stayed subject to filing surety bond, therefore this condition was declared to be without jurisdiction. In this case, exparte decree has been set aside subject to furnishing bank guarantee equivalent to decretal amount, therefore grievance of the respondent is without any substance.
In view of the above, Civil Revision No. 412 of 2006 filed by the respondent is dismissed while Civil Revision No. 458 of 2006 filed by the petitioner is allowed and impugned order passed by learned trial Court is set aside.
(J.R.) Petition allowed.
PLJ 2009 Lahore 115
Present: Ali Akbar Qureshi, J.
AMJAD MEHMOOD KHOKHAR, ADVOCATE--Petitioner
versus
FARASAT HUSSAIN DAR and 2 others--Respondents
W.P. No. 10835 of 2008, decided on 12.9.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan 1973, Art. 199--Ejectment petition--Order to deposit outstanding rent amount--Non-compliance--Eviction order--Maintained by Appellate Court--Held: Petitioner who had simply denied the relationship of landlord & tenant on the ground of an oral agreement with the previous owner--Under the law even written agreement to sell did not create any right or title in favour of purchaser--Respondent/landlord had purchased property against a registered sale deed, still holding field, had a better title as compared to the petitioner--Petitioner's suit for specific performance on the basis of oral agreement did not effect the rent proceedings--He did not place any material on record in support his contention rather elected to disobey the order of rent controller u/S. 13(6) of the Ordinance, 1959--Petition dismissed. [Pp. 118 & 119] A & B
1986 CLC 591, 1984 SCMR 741, 2005 YLR 2784, 1984 SCMR 1065, NLR 1980 Civ. 134, PLJ 1990 Lah, 46, PLD 1978 Kar. 182 & NLR 2004 Civ. 186, ref.
Mr. Nauman Qureshi, Advocate for Petitioner.
M/s. Mian Hameed Ullah Khan & Niaz Hussain Mirza, Advocates for Respondents.
Date of hearing: 12.9.2008.
Order
Through this Constitutional petition, the petitioner has questioned the validity of the orders dated 23.1.2008 and 25.1.2007 passed by the learned Courts below respective whereby the ejectment petition was allowed because of non-compliance of the order passed under Section 13 (6) of the Rent Restriction Ordinance, 1959 by the petitioner.
The respondent filed an ejectment petition against the petitioner on the following grounds; (a) that the demise property is required to the respondent for his personal vise; (b) that the petitioner/ respondent is chronic defaulter and did not pay the rent @ Rs. 11,000/- per month and (c) that the petitioner/respondent has damaged the rent premises.
The ejectment petition was seriously opposed by the present petitioner by filing the written reply. In the written reply, the petitioner denied the relationship of landlord and tenant on the ground that the petitioner has already purchased the rented premises from previous owner namely Alviya Begum through an oral agreement. Further stated in the written reply that the petitioner has also paid a sum of Rs 5000/- whereas the remaining consideration is to be paid at the time of execution of the sale-deed. The learned Rent Controller passed a detailed order on 25.1.2007 under Section 13 (6) of the Rent Restriction Ordinance, 1959 whereby the petitioner was directed to deposit the future monthly rent @ Rs. 11,000/- per month in favour of the respondent before 15th of each succeeding month and also to pay the arrears of rent from July 2005 till January 2007 for nineteen months, total amounting to Rs, 11,000/- x 19 = 2,90,000/- till the next date of hearing. The petitioner instead of complying with the order passed by the learned Rent Controller, filed an application under Section 151 CPC for framing of a preliminary issue regarding the relationship of landlord and tenant. The learned trial Court with an elaborative order, dismissed the said application on 12.7.2007 and directed the petitioner to produce the receipt of deposited rent. On 25.10.2007, the date fixed for the production of receipts for the deposit of rent in compliance of the order dated 25.1.2007 passed under Section 13 (6) of the Ordinance ibid, the petitioner could not produce the receipt so the learned Rent Controller having no option in law passed the eviction order under Section 13 (6) of the Ordinance ibid and directed the petitioner to hand over the vacant possession of the property in question to the respondent within one month from the date of order i.e. 25.10.2007.
The petitioner being dissatisfied of the order dated 25.10.2007 whereby the petitioner was directed to hand over the vacant possession of the property in question to the respondent, preferred an appeal before the learned District Judge, Lahore. The learned Addl. District Judge, Lahore after hearing the arguments of both the parties finally dismissed the appeal being without force, hence this Constitutional petition.
Learned counsel for the petitioner contended that the orders impugned herein, are totally against the facts, record and law applicable to the case. Also contended that both the learned Courts below seriously fell in error by not appreciating the legal controversy involved in the matter. Further submitted by the learned counsel for the petitioner that the petitioner specifically denied the relationship of landlord and tenant on the ground that the rented premises was purchased by the petitioner from the previous owner against consideration and the petitioner/tenant also stopped the payment of monthly rent to the previous owner, the day the property was purchased so in any case the petitioner has no relation of landlord and tenant whatsoever with the previous owner as well as the subsequent alleged purchaser so the findings recorded by the learned Courts below are not sustainable in law. Learned counsel in support of his contention further submitted that the petitioner has already filed a suit for specific performance of the oral agreement to sell arrived at between the petitioner and the previous owner Alviya Begum which is still pending adjudication before the competent Court of law so the learned Rent Controller as well as the appellate Court should have awaited for the final verdict in the aforesaid case and the findings recorded by the learned Courts below on this aspect are perverse and have no legal sanctity. Learned counsel next contended that the co-owner of the rented premises has also filed a suit challenging the validity of sale-deed executed in favour of the respondent and also the oral agreement made in favour of the petitioner by the previous owner. The said suit is still pending adjudication in a Civil Court and the learned Courts below were otherwise under legal obligation to stop the proceedings in the ejectment petition till the final adjudication of the aforesaid suit. Learned counsel has also contended that no notice under Section 13-A of the Urban Rent Restriction Ordinance, 1959 has been given so on this score alone, the ejectment petition is liable to be dismissed. Further contended that in the presence of the aforesaid two suits, the filing of the ejectment petition by the respondent is based on malafide and ulterior motive simply to black mail and harass the petitioner. Learned counsel in support of his contention has placed reliance on Messrs Allah Ditta Musical Company v. Muhammad Idrees Baqir and 8 others (1986 CLC 591), (1984 SCMR 741), Sh. Sana Ullah v. Farah Diba and others (2005 YLR 2784) and Makhan Masih and others v. Acting Principal, F.C. College and others (1984 SCMR 1065).
Conversely, the learned counsel for the respondent vehemently opposed the contentions made by the petitioner. It is contended on behalf of the respondent that it is admitted by the petitioner that he was tenant of previous owner namely Alviya Begum so the petitioner by operation of law has become the tenant of the respondent because of the fact, that the respondent has purchased the rent premises from the said Alviya Begum against registered sale-deed which still hold the filed. Further contended by the learned counsel that the petitioner has claimed the title of the rented premises on the basis of an oral agreement whereas it is well established principle of law that the agreement does not create any right so such type of plea in the ejectment proceedings is hardly available to a tenant. Also contended by the learned counsel that although a suit is pending wherein the validity of the sale-deed executed in favour of the respondent has been challenged, but till today the sale-deed executed in favour of the respondent is still hold the field whereas on the other hand the petitioner has simply claimed and denied the relationship of landlord and tenant on the basis of an oral agreement so the order passed by the learned Courts below is just and strictly in accordance with law. The learned counsel in response of the contention raised by the petitioner regarding the notice under Section 13 (6) of the Ordinance ibid submitted that this Court has already settled this proposition by observing that the ejectment petition is itself a notice and non-service of the notice under Section 13-A of the Ordinance ibid is not fatal to the ejectment proceedings. Reliance is placed on Aziz Begum v. Faiyaz Buttu (NLR 1980 Civil Lahore 134), Muhammad Akram v. Additional District Judge, Lahore and 2 others (PLJ 1990 Lahore 46), Tahir Hussain v, Ghulam Faruque and 7 others (PLD 1978 Kar. 182) and Ch. Muhammad Akmal v. Faisal Saeed Mirza, etc. (NLR 2004 Civil 186).
I have heard the learned counsel for the parties and perused the record with their assistance.
The admitted facts on record of the instant case are that the petitioner was inducted in the rented premise as tenant by the previous owner namely Alviya Begum; that the petitioner had been paying the monthly rent to the previous owner; that sale-deed was executed and got registered by the previous owner namely Alviya Begum in favour of the respondent; that the sale-deed inspite of the fact that a suit is pending still hold the field and has not yet been cancelled by any competent legal forum and no objection has been raised by the previous owner namely Alviya Begum in the ejectment petition filed by the respondent. The petitioner who has simply claimed the title of the rented premises and denied the relationship of landlord and tenant on the ground that an oral agreement was executed in favour of the petitioner by the previous owner namely Alviya Begum. Although, the oral agreement is permissible in law but it has already been ruled in plethora of judgments that the agreement to sell even written does not create any right or title in favour of the purchaser. The respondent purchased the said property against a registered sale-deed which still hold the field, has a better title as compared to the petitioner and the filing of a civil suit challenging the validity of the sale-deed executed in favour of the respondent does not vitiate the title unless the same is finally decided. The petitioner, who has also filed a suit for the specific performance of an oral agreement and if at the end of the day, the petitioner succeeded, can ask for the possession of the rent premises in accordance with law. The petitioner although denied the relationship of landlord and tenant but could not place any material on record in support of his contention and rather elected to disobey the order passed under Section (13) of the Ordinance ibid by the learned Rent Controller. The petitioner could have avoided his eviction from the demise property by complying with the order passed under Section 13 (6) of the Ordinance ibid by the learned trial Court and contest the ejectment petition on merits. In the aforesaid circumstances, there is hardly any scope to interfere with the orders passed by the learned Courts below, while exercising the Constitutional jurisdiction under Article 199 of Islamic Republic of Pakistan, 1973.
Resultantly, this petition has no force and is dismissed with a direction to the petitioner to hand over the vacant possession of the property in question to the respondent/landlord within, one month from today. No order as to costs.
(J.R.) Petition dismissed
PLJ 2009 Lahore 119 (DB)
Present: Syed Hamid Ali Shah & Khawaja Farooq Saeed, JJ.
STATE LIFE INSURANCE CORPORATION OF PAKISTAN--Appellant
versus
Mst. SADAQAT BANO--Respondent
R.F.A No. 05 of 2008, decided on 8.7.2008.
Insurance Ordinance, 2000 (XXXIX of 2000)--
----S. 121(1)--Revival of insurance policy--Inaccurate statement about health by insurer--Effect on policy contract--Repudiation of insurance contract--Held: Non disclosure relates to the facts which are in the knowledge of the person making statement--A person who is himself unaware of his ill heat, can make an innocent statement that he is no suffering from a disease--Such statement cannot be used against such person--Statement is fatal only when a person making statement deliberately and willfully suppress the material facts, knowing that disclosure of such facts was material and facts were fraudulently suppressed. [P. 126] A
1981 CLC 1722, 1993 CLC 790, 2006 YLR 1186, ref.
Pre-Angro Information Form--
----Entry which has not been entered incorporated by deceased himself does not establish or proves the factum of non-disclosure. [P. 126] B
Mr. Ibrar Ahmad, Advocate for Appellant.
Mr. Liaqat Ali Butt, Advocate for Respondent.
Date of hearing: 21.5.2008.
Judgment
Deceased husband of the respondent was a policy holder, who insured himself under Policy No. 507448020-4, amounting to Rs. 50,000/- against a yearly premium of Rs. 2,678/-, commencing from 15.10.1992. The premium was paid till October, 1994, whereafter, it was discontinued. The policy holder revived the policy on 31.12.1998, after complying with requisite formalities, including a declaration of good health on a printed form. Insured breathed his last on 28.4.2000 and his widow being nominee, lodged the insurance claim of her husband before the appellant, which was repudiated by the appellant on account of concealment of his ailment at the time of revival of policy. Respondent approached Wafaqi Mohtasib, lodged her complaint on 22.2.2001. Wafaqi Mohtasib, through order dated 2.9.2001, directed agency (appellant) to pay the death claim as per terms of policy. Appellant assailed the order of the Mohtasib, through representation before the President, which was accepted vide order dated 29.7.2002, whereby the findings/directions of learned Mohtasib, were rejected. Respondent called in question the order of acceptance of representation against the direction of Ombudsman, through W.P. No. 7177 of 2003.
The writ petition was disposed of, declaring the impugned order of the President against law and same was set-aside. Insurer successfully assailed the judgment of this Court, in appeal before the apex Court and matter vide judgment dated 28.9.2005, was remanded to this Court for decision afresh. The Insurance Tribunal was established in the meanwhile; in view whereof, the petition was withdrawn on 25.7.2006 and application under Section 121(1) of the Insurance Ordinance, 2000, was filed before Insurance Tribunal on 20.7.2006. Appellant contested application, filed written statement, wherein the assertions made in the application, were controverted and various preliminary objections were raised. Learned Tribunal, after framing seven issues, recorded the evidence of the parties and on conclusion of trial, decided the application in favour of the claimant vide judgment and order dated 29.11.2007, which order is now assailed before us in this appeal.
Learned counsel for the appellant has contended that the insurance policy had lapsed and was subsequently reactivated on 31.12.1998, on the request of policy holder, upon furnishing of fresh statement of good health. He was admitted in Punjab Institute of Cardiology during February, 1999, where his history of ailment in a printed form, was recorded, wherein it was mentioned that appellant was heart patient for the past three and a half years. For the reason that the insurer concealed his disease, his insurance claim lodged by his widow was repudiated. Learned counsel has submitted that it has been held in the case of Norwich Union Life Insurance Society Vs. Mst. Zainab Bibi (1981 CLC 1722), that Insurance Company is entitled to repudiate insurance policy where insured, who suffered from serious ailment at the relevant time, withheld such information and got revival of the lapsed policy. Learned counsel went on to argue that deliberate concealment of information is a good ground for avoiding the contract of insurance. Learned counsel supported his contention by referring to the cases of "State Life Insurance Corporation Vs. Mst. Sarwat Kazmi" (1979 SCMR 295), "State Life Insurance Corporation Vs. Mamoor Khan" (1993 CLC 790), "M/s. Burjor Ardeshir Industries Ltd Karachi Vs. The Employers' Liability Assurance Corporation Ltd., Karachi and another" (PLD 1970 Karachi 462) and "Mohsin A. Rehman Vs. Messrs Premier Insurance Company of Pakistan Ltd" (PLD 1967 Karachi 204). Learned counsel has then submitted that an application before the Insurance Tribunal, can be filed within three years, but instant application was filed 4« years after the claim of insurance became due. The application was time barred and no application for condonation of delay was filed. Learned Tribunal has decided the issue of limitation erroneously. Learned counsel referred to Section 80 of the Insurance Ordinance, 2000 and submitted that period between reactivation of policy and death of insured was less than two years, therefore, the policy can be called in question validly, on the ground of mis-statement or suppression of facts. Learned counsel has summed up his arguments, with the contention that Insurance Tribunal was not properly constituted and as such, the impugned order has no sanctity of law.
Learned counsel for the respondent has supported the impugned judgment and contended that the appeal is not competent as the amount of claim in dispute, being below than one hundred thousand rupees. The appeal, as envisaged in Section 124 is thus not competent. Learned counsel has submitted that insurance policy was purchased in the year 1992 and after the lapse of two years, it cannot be called in question. Learned counsel repeated his arguments, which were addressed before learned Tribunal.
Heard learned counsel for the parties and record perused.
The parties are not at variance that deceased got himself insured on 15.10.1992 and insurance policy remained operational till 15.10.1994, thereafter lapsed. The insurance policy was reactivated on 31.12.1998. Appellant repudiated the insurance claim, on the plea of suppression of material facts, as to the ailment of insured, which the policy holder made, within two years of the revival of policy.
A policy cannot be called in question on the ground of mis-statement, after two years of it's effectiveness, within the contemplation of Section 80 of Insurance Ordinance, 2000. Section 80 is reproduced hereunder:
Section 80
"Policy not to be called in question on the ground of mis-statement after two years.--Notwithstanding anything in Section 79, no policy of life insurance effected before the commencement date of this Ordinance shall after the expiry of two years from the commencement date of this Ordinance and no policy of life insurance effected after the commencement date shall, after the expiry of two years from the date on which it was effect, be called in question by an insurer on the ground that a statement made on the proposal for insurance or in any report of a medical officer, or referee, or friend of the policy-holder, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose:
Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the benefits payable under the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal."
(i) Mithoolal Nayak V. Life Insurance Corporation of India (AIR 1962 Supreme Court 814)
In this case the policy holder was treated by a renowned physician for serious ailment, a few months before he submitted proposal for insurance of his life. The insured concealed the fact in his statement that he suffered from serious ailment and had been treated by his physician. The issue, which came up for consideration before the learned Court, was that according to law (Section 45 of (Indian) Insurance Act, 1938), a policy cannot be called in question on the basis of fraudulent suppression of material facts, relating to the health of insured, after two years on which the policy was effected. Learned Court examined the question as to whether the period of two years will be counted from the date, when the policy was originally effected or from the date of it's revival. Learned Court observed that whether or not a revival of lapsed policy constitute a new contract for other purposes but for the purposes of Section 45, it is clear from the wording of the provision that period of two years has to be calculated from the date on which the policy was originally effect. Learned Court further observed that inaccurate statement is fatal for insured only when--
(a) the statement must be on a material matter or must suppress facts which it was material to be disclosed.
(b) The suppression must be fraudulently made by the policy-holder, and
(c) The policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
(ii) Santosh Kumar Gupta Vs. Indian Life Insurance Corporation (AIR 2000 Rajasthan 327)
In this case, while holding that period of two years would be counted when policy becomes effective and commences, it was held that:
"Thus, according to Section 45, policy cannot be called in question by the insurer, vis. The LIC on the ground of mis-statement after the lapse of two years from the date on which it was effected, and that apart under first part to Section 45, even if there were inaccurate or mis-statements about several particulars furnished in the proposal form, an Insurer namely LIC cannot repudiate the policy after the expiry of two years from the commencement of the policy. According to the principles laid down in Mithoolal's case (AIR 1962 S.C. 814) (supra) by the Apex Court and in LIC v. Vesasl Bharati, AIR 1989 Andh Pra 39, if the policy stands renewed and revived, then period of two years would be counted from the date the policy becomes effective and commences. In other words, in case of revival of the policy also the date effective for the purpose of two years used in Section 45, would be the date of acceptance of the original proposal from which the risk on the life of the proposer is covered under the policy i.e. original date of commencement of policy in question.
(iii) Life Insurance Corporation of India Vs. Suit Sosamma Punnah (AIR 1945 Kerala 230)
It was again held in this case that policy of insurance cannot be called in question due to false and fraudulent statement in proposal for insurance after two years, according to Section 45 and period of two years mentioned in Section 45, has to be calculated from the date on which the policy was originally effected and not from the date of revival of policy.
A judgment from our own juristic require mention.
(iv) Mst. Irshad Begum Vs. State Life Insurance Co. (2006 YLR 1186)
It has been held in this case that the Insurance Company cannot repudiate a contract of insurance after stipulated period of two years of the purchase of policy. Repudiation after the lapse of prescribed period, is void and non-existent.
(i) The inaccurate statement pertains to a matter which is material, or the facts which are suppressed, the disclosure thereof was material.
(ii) The suppression must be fraudulent and made by policy holder.
(iii) The policy holder, at the time of making the statement had known that statement was false and it was material to disclose the facts suppressed.
Question Question Answer
No.
"7. Do you now or have you ever had
small-pox, Heart Disease, Diabetes, High Blood Pressure, T.B., Cancer, Nervous or Psychological disorder? If
so, specify with dates. No
treated you? No
Practitioner? (give reason and
approximate date) No
Are you in Good health? Yes"
The other statement on which the appellant has placed it's reliance is "Pre Angio Information Form". There exists an entry "Known From" against which it is mentioned "3 « years". Will this entry singly prove that insured was heart patient for the past three years and half years, from the date the entry was incorporated in the form? The form was filled and completed by the doctor in routine diagnostic process. The appellant has placed on record other medical record of the policy holder i.e. a printed form of Punjab Institute of Cardiology, pertaining to the history of patient (Page 107 of the suit). It was filled and completed on 20.4.2000 and the insured answered mostly in negative about various diseases and only complained about chest pain on exertion since two years. The information provided by the insured as contained in this form, shows that he was maintaining good health or at least the insured was confident that he was feeling himself healthy. Statement of AW-1 further establishes that insured was a healthy person. RW-1 has stated in his statement that a certificate was issued by a hospital in Bahrain that ailment of policy holder was old and chronic. But no such certificate was produced. The deceased to the contrary was a heavy vehicle driver and admittedly kept performing his duties without sick leave.
Disclosure of material facts as to ones health, is ticklish issue. What is material and what is not material again depends upon the circumstances of each case. It has been held in the case of "York Vs. Yorkshire Insurance" (1918 I KB 662) that good health means reasonably good health. A warranty of good health can never mean that a person has not in him the seeds of disorder. We born with seeds of mortally in us, as has been observed in the case of "Willies Vs. Poole". A person can be ignorant about his health or about the deadly disease, which has it's roots in him. A person has normally a general idea of his health. Then questions arises as when the contract of insurance becomes voidable at the option of insurer. Non-disclosure relates to the facts which are in the knowledge of the person making the statement. A person who is himself unaware of his ill health, can make an innocent statement that he is not suffering from a disease/illness. This statement cannot be used against such person. A statement is fatal only when person making the statement deliberately and willfully suppresses the material facts, knowing that disclosure of such facts was material and facts were fraudulently suppressed. Three conditions, discussed in the earlier part of this judgment are essential and necessary for repudiation of insurance contract or to invoke provisions of Section 80 of the Insurance Ordinance (XXXIX of 2000).
Viewing the case of the policy holder on the above settled principles, we are unable to agree with the appellant that the deceased had made false statement at the time of revival of the policy and failed to disclose the factum of his heart ailment. The policy holder performed laborious duty of a heavy duty vehicle, in extreme weather conditions, in Bahrain. He in the form pertaining to the history of patient (supra), had supplied information, which shows that deceased was confident of his good health. Appellant on the other hand has failed to adduce any cogent evidence to the effect that policy holder was aware of his ailment and has deliberately concealed and made fraudulent misrepresentation. An entry in "Pre Angro Information Form" which has not been entered/ incorporated by the deceased himself, does not establish or proves the factum of non-disclosure.
The appellant has also raised the question of limitation. There is no cavil with the proposition that Article 181 of the Limitation Act, 1908 apply to the case in hand. The claimant/respondent approached Wafaqi Mohtasib and then contested the order of President, before this Court in it's writ jurisdiction. The matter thereafter remained pending before apex Court and on remand during the pendency of writ petition, the Insurance Tribunal was constituted. The writ petition was withdrawn and matter was agitated before Insurance Tribunal. The application was moved before Insurance Tribunal, on Constitution and establishment of the Tribunal. The application was within limitation and rightly held so by learned Tribunal.
For the foregoing, we have seen no illegality or infirmity in the impugned order/judgment of the tribunal. This appeal has no merit and is accordingly dismissed with costs throughout.
(W.I.B.) Petition dismissed.
PLJ 2009 Lahore 127 (DB)
Present: Maulvi Anwar-ul-Haq & Hafiz Tariq Nasim, JJ.
MAHBOOB AHMED and 4 others--Appellants
versus
IMTIAZ AHMAD and 2 others--Respondents
R.F.A. No. 291 of 2001, heard on 21.5.2008.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Civil Procedure Code, (V of 1908), S. 96--Condonation of delay--Determination the question of delay--Guidelines--Limitation is always a mixed questions of limitation have to be dealt with according to the circumstances of each case--Court is duty bound to look beyond the pleadings of the parties, into the circumstances of each case when determining the question of condoning a delay under the limitation law. [P. 130] A & B
Limitation Act, 1908 (IX of 1908)--
----S. 12--Civil Procedure Code, (V of 1908), S. 96--Exclusion of time--Time spent for obtaining certified copies--Computation of time--Principle--Held: Limitation starts to run when the applicant is informed about his application. [P. 130] C
Administration of Justice--
----Cases are to be decided on merits rather on technicalities. [P. 131] D
Mian Nusratullah, Advocate for Appellants.
Mian Javed Iqbal, Advocate for Respondents.
Date of hearing: 21.5.2008.
Judgment
Hafiz Tariq Nasim, J.--Facts relating to this RFA are that the appellants filed a suit for partition against Mukhtar Ahmad, Mumtaz Ahmad, Imtiaz Ahmad, Zahida Perveen sons and daughter of Rana Saeed Ahmad and Sughran Begum widow of Rana Saeed Ahmad. The suit was contested by Mukhtar Ahmad and others, different issues were framed, however, Mahmoob Ahmad one of the plaintiffs was murdered and a case under Section 302 PPC was registered against Mukhtar Ahmad, Mumtaz Ahmad and Irfan Saeed son of Mukhtar Ahmad vide FIR No. 571 dated 15.11.1995 with the Police Station City A-Division Sheikhupura but later on the accused were acquitted in terms of compromise vide order dated 6.6.1997.
In the suit for partition the appellants produced Ameer Ahmad Khan son of Bashir Ahmad Khan as PW. 1, Allah Ditta son of Ismail as PW.2, who stated that property in dispute is a joint one and has not so far been partitioned. These two PWs were not cross-examined by the respondents whereas the learned counsel for the defendants stated before the Civil Court that Mahmood Ahmad was murdered and defendants Mukhtar Ahmad, Mumtaz Ahmad have given property in dispute to the heirs of the deceased i.e. the appellants in lieu of Khoon Baha thus they declined to contest the suit and were proceeded ex-parte and their names were deleted from the plaint on 15.9.1998.
Mukhtar Ahmad and Mumtaz Ahmad submitted two applications for setting aside ex-parte proceedings as well as the setting aside the statement made by their counsel; both the applications were dismissed by the learned trial Court on 29.10.1998, the revision filed by them was also dismissed.
Imtiaz Ahmad and Zahida Perveen respondents also declined to contest the suit so an amended plaint was filed by the appellants claiming themselves to be the owner of 11/14 shares in the property because the rest shares i.e. 3/14 was belonging to Respondents No. 1 and 2 meaning thereby that no contest between the appellants and Respondents No. 1 and 2 to the extent of their respective shares in the property.
After the dismissal of applications of Mukhtar Ahmad and Mumtaz Ahmad vide order dated 29.10.1998 Respondent No. 3, filed an application on 12.2.1999 for joining him as defendant on the ground that he had purchased the share of Mumtaz Ahmad and Mukhtar Ahmad vide sale-deed dated 3.2.1999, this application was accepted and Respondent No. 3, was allowed to join as defendant, amended plaint was filed by the appellants where the Respondent No. 3, filed written statement.
On 30.10.2000 the learned trial Court re-casted certain issues and the case was adjourned for plaintiffs' evidence but surprisingly the plaintiffs/appellants' evidence was closed and the suit was dismissed vide judgment and decree dated 7.11.2000.
Learned counsel for the appellants submits that when the issues were re-casted and the case was adjourned for the plaintiffs/appellants' evidence, it was incumbent upon the trial Court to direct the parties to submit their list of witnesses whom they proposed to call not later then seven days but the learned trial Court did not do so committing a material irregularity depriving the appellants from their valuable right. Further submits that the learned trial Court illegally held that the appellants are not entitled to 11/14 shares out of the property in dispute and the sale-deed dated 3.2.1999 in favour of Respondent No. 3 is legal and there is no land left for partition and the suit is competent, these findings of the learned trial Court are arbitrary and unjust particularly when the statements of PW. 1 and PW.2 clearly negate the findings of the trial Court and these two PWs were not cross-examined by the learned counsel for Mukhtar Ahmad and Mumtaz Ahmad. Further submits that the better statement of Masood Ahmad appellant was recorded on 23.6.1999 by the learned trial Court and there is no rebuttal of the same but this fact was also not appreciated by the learned trial Court resulting into serious miscarriage of justice.
On the other hand, the learned counsel for the respondents supports the impugned judgment and decree and mainly argued on the question of limitation. According to the learned counsel for the respondents the RFA being a time barred one is liable to be dismissed on this short ground.
Arguments heard; record perused.
We would first of all deal with the objection of limitation raised by the learned counsel for the respondents.
To resolve the same we have to take note of certain dates i.e. the suit was dismissed on 7.11.2000 certified copy of the judgment and decree was applied on 12.1.2001, the same was delivered on 20.3.2001 and the RFA is filed on 3.4.2001. The learned counsel for the appellants submits that no notice or intimation was sent to the appellants by the copy branch about the preparation of the certified copy and for the first time the appellants knew about preparation of the copy when the same was delivered to the appellants on 20.3.2001 and after receipt of the same, the appellants filed the RFA promptly and as such there is no question of any delay because the time spent for the preparation of certified copy is always to be excluded for counting the period limitation, whereas an application for condonation of delay is filed as a matter of precaution.
In our view limitation is always a mixed question of law and facts. Condonation of delay in questions of limitation have to be dealt with according to the circumstances of each case. In some cases Courts have condoned delay involving lengthy period of time whereas in other cases Courts have viewed it strictly and have not even condoned a single day of lapse by a party. The crux of the above is that it is always open to the Court and the Court is duty bound to look beyond the pleadings of the parties, into the circumstances of each case when determining the question of condoning a delay under the limitation law.
In the present case we would like to point out some defects and deficiencies in the system of our copying agencies where people go to apply for certified copies of an order, judgment or decree. When a person applies for a certified copy of an order, judgment and decree he is handed over with a chit/receipt and told to inquire about the copy in a few days time without mentioning the specific time for the receipt of the certified copy, whereas the applicant should know the exact date of which he would be handed over the certified copy of the document applied for whereas when the applicant after a few days goes to the copying agency to inquire about the status of his application he most of the time is told to come back after a few days and collect from the office. This practice is also out of order and requires a major change. When an applicant goes to inquire about his application he should again be given the exact status of his pending application and the exact date on which he can come and collect the document instead of making him come over and over again to the copying agency to inquire about the required documents. When the applicant is finally handed over his required documents it is noticed that a stamp on the back of the documents is impressed on which three dates are mentioned: 1) the date of application, 2) the date of preparation of documents and 3) the date of delivery of document to the applicant.
As mentioned above, instead of providing a clear date of delivery upfront while applying, the applicant has to inquire day after day about the status of his application which leads to unnecessary delays and inconveniences for the applicants, so to avoid these delays and inconveniences we hereby direct to the copying agencies to properly intimate to every applicant from hereon, about the specific date of delivery of his documents upfront when the applicant first applies for the certified copies. This practice would not only eliminate undue and unwarranted inconveniences to all applicants but would also ensure a smooth, assured and certain practice of the copying agencies.
As far as the point of limitation is concerned it is established that the limitation starts to run when the applicant is informed about his application, in the present case admittedly there is no proof of intimation to the appellant for the preparation of his certified copy thus we are inclined to condone the delay and we have decided to proceed the case on merits, particularly when there is a settled law that the cases are to be decided on merits rather than on technicalities.
So far the merits of the case are concerned; we have examined the impugned judgment. To our mind the primary issue in the case was Issue No. 3 the burden whereof was upon the respondents. Although the learned trial Court has mentioned that two PWs were recorded however, while taking off Issues No. 4 and 5 together not even a solitary reference has been made to the said evidence. On the other hand the judgment proceeds as if evidence of the respondents have been duly recorded. In this process without there being any evidence on record it has been held that the sale-deed in favour of Defendant No. 3 is legal and with consideration and further that the appellants are not entitled to any share in the suit property. It is interesting to note that Issue No. 3 was answered against the respondents. In the course of said exercise the learned trial Court has also proceeded to decide some Issue No. 6 alongwith Issues No. 4 and 5 whereas we do not find any such issue in the judgment. It appears that the learned trial Court was not aware that the issues have been re-casted and reframed.
So far the matter of closing of evidence is concerned, we find that the issues were reframed on 30.10.2000 while the evidence of the appellants was closed and the case was dismissed on 7.11.2000 i.e. in a matter of seven days. We, therefore, do find that neither the learned trial Court was justified in closing the evidence in such a hurry nor the judgment is in accord with the evidence on record. Admittedly, the learned trial Court erred in law, committed material irregularity and as such we have no other option except to set aside the judgment and decree dated 7.11.2000 passed by the learned Civil Judge, 1st Class, Sheikhupura. Accordingly, the RFA is accepted, the case is remanded to the learned trial Court who shall record the evidence of both the parties on the issues framed through order dated 30.10.2000 and then decide the matter afresh on its own merits.
(W.I.B.) Case remanded.
PLJ 2009 Lahore 131
Present: Mian Saqib Nisar, J.
EJAZ INAYAT, BISHOP AT KARACHI etc.--Petitioners
versus
Rt. Rev. Dr. A.J. MALIK and 9 others--Respondents
C.R. Nos. 2813 and 2999 of 2004, heard on 23-09-2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 92, O. I, R. 8--Object & scope--Suit u/S. 92, C.P.C inherently is representative in nature but having its own feature and kind, it can neither be strictly termed as an ordinary civil lis between two adversary litigants nor can be equated to a representative suit filed under Order 1, Rule 8, C.P.C--Object is to safeguard the trust and the rights of the public in the trust. [P. 134] A & B
Necessary Party--
----Determination necessary parties are those who ought to have been joined as a party and in whose absence, no effective decree or order can be passed. [P. 135] C
Dr. A. Basit, Advocate for Petitioners.
Mr. Salman Akram Raja, Advocate for Respondents.
Date of hearing: 23.9.2008.
Judgment
The present C.R. No. 2813 of 2004, as also C.R. No. 2999 of 2004 are being disposed of together, as both involve common questions of law and facts.
The plaintiffs, who are not arrayed as party to the present revision petitions, after procuring requisite permission from the Advocate General, filed a suit under Section 92 against the respondents/defendants, which was contested by latter. Issues were framed, but before the evidence of the plaintiffs could commence, the petitioner of the noted revision petition i.e CR No. 2813 of 2004, moved an application under Order 1, Rule 10 CPC to be arrayed as a co-plaintiff in the case.
The mainstay of the petitioner for his impleadment, according to the contents of the application, is as under:--
"(4) The applicant is directly affected by the suit as trust property has been sold. He has in possession documents to establish this assertion.
(5) As an illustration of his capacity to produce evidence about illegal sale of trust property by defendant Malik, two documents are attached with this application as Annex-A & B.
(6) In Addition to the documents attached above, the applicant is also in a position to produce evidence about illegal sale of properties worth billion of rupees all over Pakistan.
Before proceeding further, it may be mentioned that according to the learned counsel for Respondents No. 1 to 7, the documents referred to as Annexures "A" and "B" in the application under Order I, Rule 10 CPC, were never filed alongwith the application. Be that as it may, it has been noticed that such documents or any other document which according to the petitioner were/are in his possession have not been placed on the record of the present cases, this also is the position in the other revision petition as well.
The application was resisted by the respondents and vide order dated 19.10.2004, it has been dismissed by the learned trial Court. I have been told that after the above order, the plaintiffs examined the present petitioner as PW-1 on 18.12.2004, who according to his statement, produced some documents and also asserted to produce more, but this was not done when the plaintiffs' learned counsel namely Dr. A. Basit, who is/was the counsel for the petitioner as well made a statement dated 19.03.2005, closing their affirmative evidence. The respondents/defendants adduced their evidence in affirmative/rebuttal and where-after through a statement dated 7.5.2005, the counsel for the plaintiffs even closed the evidence in rebuttal and the case is fixed for final argument.
In the meantime, against the impugned order dated 19.10.2004, the petitioner came before this Court in the present revision petition and vide order dated 30.11.2004, a pre-admission notice was issued and as an interim relief, the learned trial Court was directed not to render any final judgment with the consequence that the suit stands dormant despite the trial having been complete.
The relevant facts of the other Civil Revision No. 2999 of 2004 are that the plaintiffs were given last opportunity to produce their evidence when the petitioners of this petition moved another application under Order I, Rule 10 CPC through Dr. A Basit, Advocate, seeking their impleadment as co-plaintiffs almost on identical and similar grounds. This request too has been declined vide impugned order dated 26.11.2004, hence the petition.
Dr. Abdul Basit, learned counsel for the petitioners has argued that the suit brought u/S. 92 by the plaintiffs of the case is in the representative capacity meant for protecting the trust property, which was created for the religious and charitable purposes etc, therefore, every beneficiary of the trust, as the petitioners have that character and status, is entitled to be arrayed as a party to the suit. It is also submitted that the petitioners have certain important documents in their possession, which would establish as to how the trust property was and is being mismanaged and misappropriated and therefore, their impleadment would facilitate the effectual and complete adjudication of all the questions involved in the matter. He has vehemently argued that the petitioners, keeping in view the nature of the present suit, are necessary parties and no effective decree can be passed in their absence, therefore, their impleadment has been wrongly declined by the Court below. In addition to the above, what Dr. A. Basit, Advocate described as a broader submission, it is argued that the suit by the plaintiffs has been properly lodged after complying with the provisions of Section 92 CPC, therefore, the criteria for the petitioners' impleadment is governed by the said section read with Order I Rules 8 and 10 C.P.C, and in view of these provisions, they being proper party should be impleaded. It is also contended that in a situation, where the plaintiff of a suit u/S. 92 is not pursuing the matter with due diligence, a beneficiary, whose interests are also involved and are likely to be jeopardized in the event of any adverse decision, is a necessary party. Lastly, it has been argued that in the present suit, the petitioners are the beneficiaries and have a right to be impleaded as a party and the refusal in this behalf by the Court below is against the norms of justice and is arbitrary.
Conversely, Mr. Salman Akram Raja, learned counsel for the Respondents No. 1 to 7, has apprised the Court about the proceeding the trial, by referring to the dates and argued that the petitioner has appeared as PW-1 and produced certain documents in evidence, therefore, he has availed the opportunity in this behalf and the cause/reasons on the basis of which the impleadment was sought had been achieved; likewise, the petitioners in the other revision petition could also have appeared as the witnesses. It is also submitted that the petitioners are not necessary party, because their presence is not imperative for the decision of the case, and it is not even their case that without their presence, no effective decree can be passed. As far as the petitioner's assertion being proper party is concerned, it is only based upon the claim of being beneficiary and also for producing certain evidence, and this opportunity the petitioner in this case has already availed while appearing as PW-1, whereas the others did not come forward. Mr. Salman Akram Raja, Advocate has further argued that the applications were filed with mala fide intention and the purpose behind it was to delay the process of trial and also to cause prejudice to the respondents. He defended the order by also submitting that the inordinate delay in filing such application is a ground of refusal by the Court below to exercise its discretion in favour of the petitioners, and such an exercise should not be interfered in the revisional jurisdiction.
Heard. There can be no cavil with the proposition that a suit under Section 92 C.P.C. inherently is representative in nature but having its own feature and kin, it can neither be strictly termed as an ordinary civil lis between two adversary litigants nor can be equated to a representative suit generally filed under Order I, Rule 8 C.P.C. From the letter, spirit, scope and concept of the said section, the object is to safeguard the trust and the rights of the public in the trust; furthermore, that the suit against the trustees of a public trust should be regulated by law and the institution of indefinite number of vexatious, harassing and reckless suits in relation to the matters enumerated in the section must be prevented. It is for this reason that the Advocate General, who is the principal law officer of the province and the most responsible person has been empowered, authorized and conferred with the sole prerogative to invoke the legal mechanism for the protection of the trust etc; thus when he himself files a suit, it is a representative suit for all intents and purposes, with the same effects of the judgment/decision as rendered by the Court in ordinary representative suits, however, none of the persons having interest in the trust in this suit shall be entitled to be arrayed as a co-plaintiff alongwith the Advocate General by taking resort to Section 92, Order I, Rules 1, 8 or 10 C.P.C.
The other mode envisaged for the institution of the suits under Section 92 C.P.C is on account of the permission of the Advocate General obtained by two or more persons who are interested in the trust. In the eventuality, the Advocate General in line with the object of the law, is not expected to grant the permission as a matter of right or course or in routine, rather after being satisfied about the bona fide and the motive of the said persons and that they are not intending to assert any of their personal rights. Once the permission is granted and the suit is instituted, though it retains its special representative character, but at the same time, the Court shall not follow and adhere to the provisions of Order I Rule 8 C.P.C in issuing notice to any other person or by public advertisement. It may be pertinent to state here that in this situation too, the verdict of the Court shall carry the same effects as having been passed in an ordinary representative suit. The Court however, in this category, can add or delete the persons to the suit on the touchstone of the rule of "necessary" or "proper" parties, obviously while exercising its discretion properly.
In view of the above, it is, therefore, to be determined, whether the petitioners are the necessary/proper parties. According to the settled law, the necessary parties are those who ought to have been joined as a party and in whose absence, no effective decree or order can be passed. From the scheme of the law mentioned above, the learned counsel for the petitioners has failed to satisfy this Court if the petitioners qualify the noted criteria. As regards the plea that the petitioners are the proper parties, it may be stated that being beneficiaries of the trust, if they meet the condition and are able to show that their presence before the Court would facilitate the effective adjudication of the matter, the discretion could be exercised in their favour. The petitioners in their respective applications have only given one ground and the reason to be arrayed as the co-plaintiffs i.e. being in possession of certain documents. The petitioner in the noted revision petition obviously was examined by the
plaintiffs of the case and had the ample chance of producing every document he had in his possession and power to prove the case of the plaintiffs. Whereas the petitioners of the other case did not appear in the matter and thus, they cannot make a grouse that the opportunity of proving the case of the plaintiffs was not provided to them. they cannot even complain that they were left out by the plaintiffs, because as has been narrated in the factual backdrop of the case, Dr. A. Basit, Advocate throughout had represented the plaintiffs and the petitioners in the trial and also in these petitions. It is he who made the statement to close the evidence of the plaintiffs both at the affirmative and the rebuttal stage. The documents, which the petitioners want to produce still remains in mystery; and this Court even has not been taken into confidence about the nature and the contents thereof. This to my mind has serious reflection upon the petitioners' claim and on this score alone, when they are held not to be a necessary party, the requisite relief can be declined to them.
In the light of above, both the revisions have no merits and are hereby dismissed.
(W.I.B.) C.R. dismissed
PLJ 2009 Lahore 136
[Multan Bench Multan]
Present: Saif-ur-Rehman, J.
MUHAMMAD SHAFIQUE--Petitioner
versus
STATE and 10 others--Respondents
W.P. No. 854 of 2008, heard on 1.7.2008.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(ii) & 34--Constitutional petition--Application for having opinion regarding injury which was forwarded to medical officer--Second report of Medical Officer--Challenge to--Structure for conduction of medico-legal work--Validity--After recording of first report by medical officer, the case is covered by second tier according to which medical re-examination was to be conducted by Distt. Standing Medical Board consisting of Medical Superintendent and surgeon if the first medical examination report was challenged--Held: First report was ever challenged by any one-second report which has been assailed through instant petition, therefore, was found be coram-non-judice qua Medical Officer which was declared as illegal and was quashed.
[P. 137] A
Sh. Abdul Samad, Advocate for Petitioner
Sardar Tariq Sher Khan, Advocate and Mr. Ramzan Khalid Malik, Addl. A.G. for State.
Date of hearing: 1.7.2008.
Judgment
On MLC No. 691 in case FIR No. 25 dated 17.1.2008 under Sections 337-A(ii), 34, P.P.C. Police Station Kot Chhutha District Dera Ghazi Khan, after X-ray, the Medical Officer recorded the following opinion:
"Keeping in view the report of Radiologist the injury is declared as Hashima"
An application was moved before the learned area Magistrate for having opinion regarding the said injury which was forwarded to the Medical Officer for necessary action. On receipt of the said order, the Medical Officer recorded the following opinion:
"Most respectfully, it is stated that generally speaking in case of fracture of the finger the possibility of fabrication cannot be ruled out, however each case may be decided on its own merits keeping in view the circumstantial evidences etc. also."
The first mentioned report is dated 27.2.2008 and the second dated 28.2.2008 by the same Medical Officer.
Through this Constitutional petition, the petitioner has challenged the second report of the Medical Officer.
Procedure for revamping of Medical Legal Work is mentioned in Notification No. SO(H&D) 5-5/2002 dated 5.2.2003 issued by Government of the Punjab providing. "Three Tier Structure for the conduction of medico-legal work". After recording of first report by the Medical Officer, the case is covered by second tier according to which the medical re-examination was to be conducted by District Standing Medical Board consisting of Medical Superintendent, DHQ Hospital, District Officer (Health), and Surgeon if the first medical examination report was a challenged.
There is nothing on the record to show that the first report was ever challenged by any one. The second report which has been assailed through this petition, therefore, is found be coram-non-judice qua the Medical Officer which is hereby declared as illegal and is quashed. The petition is disposed of accordingly.
(R.A.) Petition disposed of
PLJ 2009 Lahore 138
Present: Syed Asghar Haider, J.
GUJARAT CHAMBER OF COMMERCE & INDUSTRY through its President--Appellant
versus
FEDERATION OF PAKISTAN through Secretary Commerce Pakistan Secretariat Islamabad and another--Respondents
F.A.O. No. 222 of 2008, decided on 17.10.2008.
Administration of Justice--
----No body can be condemned unheard. [P. 141] A
Trade Organization Ordinance, 2007 (LXXI of 2007)--
----Ss. 21(4) & 16--Superceded the executive committee and office bearer and appointed an arbitrator to oversee the working the chamber of commerce--Challenge to--Contention of--Appellant was condemned unheard--Show-cause notice--Question of--Whether the parameter contained in Section 16 was adhered to or not"--Held: Federal Government formulated such opinion on the basis of inquiry conducted by respondent and thereafter it proceeded to initiate action therefore it is clear u/S. 16 of the Ordinance, to issue notice was not adhered to as such no valid notice as required by law was issued--Further held: Violated of the procedure ordained by Section 16 of the Ordinance, therefore not sustainable. [P. 142] B & C
Trade Organization Ordinance 2007 (LXXI of 2007)--
----Ss. 21(4), 14, 16--Representation--Meaning--An opportunity being heard in person or through a representative, this right is quasi judicial and not administrative therefore it was incumbent, mandatory and necessary for the respondents to afford the appellant right of hearing based on principle of natural justice. [P. 142] D
PLD 2004 Lah. 83, ref.
M/s. Maulvi M. Sultan Alam Ansari & Malik Maqbool Ellahi, Advocates for Appellant.
Mr. Aamar Rehman, D.A.G. for Respondents.
Date of hearing: 17.10.2008.
Order
The backdrop of the controversy is that the appellant, Gujrat Chamber of Commerce & Industry, is incorporated under the Companies Ordinance, 1984. It was issued a certificate of incorporation and granted a licence under Section 3 of the Trade Organizations Ordinance, 1961, later an Ordinance was promulgated on 5th June, 2007, which now governs the dispute as the same has been referred to by both counsel. Two complaints were filed by the members of Chamber, inter alia, leveling serious charges of violation of Memorandum and Articles of Association, gross irregularities, holding of various positions in the set up of office bearers contrary to law, membership with fake national tax numbers. Illegal election of Qamar Zaman Gill as President of Chamber of Commerce and Industry for 3 years (2004-2007) (the detailed grounds are incorporated in Para 1 of the impugned order). Respondent No. 2 made a detailed investigation into the matter and concluded that of the six allegations referred to above, the allegations contained at Sr.No. (i), (iii), (iv), (v) and (vi) stand proved, while allegation No. (ii), could not be proved. Respondent No. 1 dissatisfied with this state of affairs acted under Section 16 of the Trade Organization Ordinance, 2007, superceded the Executive Committee and office bearers and appointed an Administrator to oversee the working of the Chamber, till 30 November, 2008, when elections are scheduled to be held. The Administrator was tasked to perform the following functions:
(i) To scrutinize the membership of the Chamber and remove all those members, who were inducted in violation of Memorandum and Articles of the Association of the Chamber.
(ii) To finalize voters' list on the basis of purged membership.
(iii) To conduct the elections of the Gujrat Chamber of Commerce and Industry, so as to complete the process up-to 30-11-2008.
(iv) Thereafter handover the charge to the newly elected management of Gujrat Chamber of Commerce and Industry.
The appellant is aggrieved of this order, hence the present appeal.
Learned counsel for the appellants contended that the appellants were condemned unheard, they were not given proper opportunity of hearing as contemplated by Ordinance, 2007, they no doubt were issued a show-cause notice, which was duly responded to, but the principle of audi altefam partem was not adhered to in letter and spirit as Respondent No. 2 did not himself conduct the hearing, therefore, an illegality was committed. The other allegations leveled in the order were duly responded to in a written reply, but the same have not been addressed in the order, there is not a word to this effect in the impugned order. Further the order in question does not give any reasoning nor is backed by any evidence to prove the charges and warrant such drastic action, thus, the order is non-speaking, against judicial dictates and principles of natural justice. It also was specifically argued that most of the office bearers removed were not holding position in the period 2004-2007, thus, they were illegally removed and the proceedings be remitted to Respondent No. 2 for decision afresh.
Mr. Aamer Rehman, learned Deputy Attorney General, challenged the maintainability of the appeal controverting the allegations of the appellant, he stated clearly and unequivocally that the appellant was given a fair opportunity of hearing, a show-cause notice as contemplated by Section 16 of Trade Organizations Ordinance, 2007, was issued, it was responded to by the appellant, a detailed inquiry was held in this context, which clearly proved that there was fabrication and tempering of record, a number of members investigated were found to possess fake NTN numbers, it also reflected that total number of Associate Class members as claimed by the appellant was 238 and Chamber Class members 570. Both figures were incorrect as the correct number of members as accepted by the appellants themselves was 198 and 450, respectively. This alone was a ground sufficient to prove that the affairs of the Chamber were not being conducted as ordained by law. Further the Administrator appointed has limited discretion and role, he is to ensure that fair and transparent elections are held by obviating chances of any illegality. The arrangement in any case is for limited period, the purpose of the present proceedings is to delay the process of election, which is against the spirit of law he, therefore, prayed for dismissal of the appeal.
Heard.
Perusal of record, appended with the present appeal, reflects that the proceedings, which resulted into the appointment of the Administrator and supercession of the Executive Committee were initiated on two complaints filed by the Members of Gujrat Chamber of Commerce & Industry in April and June, 2008. Pursuant thereto, as required by law, a show-cause notice was issued to the appellant under Section 16 seeking a reply to the allegations. A written reply was duly filed by appellant detailing the reasons and controverting the allegations. Thereafter an inquiry into the affairs of Gujrat Chamber of Commerce & Industry was conducted, which proved the allegations as contained in the impugned order at Sr. No. (i), (iii), (iv), (v) and (vi), while allegation No. (ii), contained was found as incorrect. Thereafter an Administrator was appointed to oversee the process of election and perform the duties as contained in Paragraph 4 of the letter, an Advisory Committee of five persons was also appointed.
The core question for adjudication before this Court is whether the para meters as contained in Section 16 of the Trade Organizations Ordinance, 2007, were adhered to or not. Section 16 of the Ordinance is segmented into two parts, the first part relates to the powers of the Federal Government to supersede the Executive Committee of a trade organization for a period of two years, if it formulates an opinion that the affairs of the said trade organization are not being properly managed, but this is qualified with a condition that the Executive Committee intended to be superseded be given a notice in writing and afforded an opportunity to make a representation against the intended supersession. Later part of Section 16 is of para mount importance, as it is in harmony and consonance with the universally recognized principle of law that nobody can be condemned unheard. Therefore, the purpose of this incorporation is to ensure that the executive committee which is intended to be suspended or superseded be given an opportunity of representation. Learned counsel for the appellants contended that they were not given a right of representation as ordained in Section 16, therefore, they were condemned unheard. The tenor of the order dated 29.9.2008, in this context reflects that the Federal Government directed the Director General Trade Organizations to investigate the matter and submit recommendation to the Federal Government in this context. It was on basis of these findings that the impugned order was passed, it is reflected in Paragraph 2 that the Director General Trade Organizations, Respondent No. 2, investigated the matter and also provided an opportunity of hearing to the concerned parties to be represented either personally or through their counsel and pursuant thereto he gave his findings qua the allegations as listed in Para 1 of the order (S.No. (i), (iii), (iv), (v) and (vi). The impugned order itself is absolutely silent as to whether any right of representation as provided by law to the Executive Committee intended to be superseded was granted or not.
The provisions of Section 16 of the Ordinance are not only clear and unambiguous qua the right of representation to the Executive Committee intended to be suspended, but also clearly advert to the timing in this context. This right is to be exercised after the Federal Government has formulated an opinion that affairs of a Registered Body are not being performed in accordance with the standards set by the Ordinance.
In the present matter the Federal Government as reflected in Para 2 of the impugned order, formulated this opinion on the basis of inquiry conducted by Respondent No. 2 and thereafter it proceeded to initiate action under Section 16 of the Ordinance. Therefore, it is clear that the timing as required by Section 16 of the Ordinance, to issue notice was not adhered to as such no valid notice as required by law was issued. Even if this anomaly is condoned, that a notice was validly issued by Respondent No. 2, earlier, the requirement of representation was not adhered to. As stated earlier, there is nothing to this effect available in the impugned order. Therefore, this most important and pivotal requirement was not adhered to, thus, proceedings as ordained by Section 16 were not followed and are violative of the procedure, ordained by Section 16 of the Ordinance, therefore, not sustainable.
Representation clearly means an opportunity of being heard in person or through a representative, this right is quasi judicial and not administrative, therefore, it was incumbent, mandatory and necessary for the respondents to afford the appellant a right of hearing, based on principles of natural justice, more significantly when Section 14 of the Ordinance bestows upon Respondent No. 2 same powers as are available to a Civil Court. Therefore, it is clear that Respondent No. 2 performs quasi judicial functions, thus a corresponding duty is cast upon him to adhere to at least simple and universally recognized principles of law and justice. On the touch stone of these parameters the impugned order is not tenable. Reference: Messrs Eastern Leather Company (Pvt.) Ltd. Vs. Raja Qamar Sultan, Section Officer, Government of Pakistan Islamabad and 4 others (P.L.D. 2004 Lahore 83).
Resultantly, this appeal is allowed, the impugned order is. set aside, the proceedings would deem to be pending with the respondents, who will proceed to decide the matter in accordance with the guidelines stated above and law.
The appellants shall appear before Respondent No. 2 on 21.10.2008.
Copy Dasti on payment of usual charges.
(W.I.B.) Appeal allowed
PLJ 2009 Lahore 143
Present: Mian Saqib Nisar, J.
NAWAB ALI--Petitioner
versus
JAVAID IQBAL NABI and 3 others--Respondents
C.R. No. 999 of 2008, decided on 31-10-2008.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 14, 3 & 13--Muhammadan Law--S. 235--Explanation II--Talb through agent--Validity--Held: Demand can only be made by an agent who is previously authorized in this regard--Petitioner had not made the valid talbs before the institution of the suit which in view of the Punjab Pre-emption Act 1991, is a condition sine qua none for maintaining such an action. [Pp. 144 & 145] A & C
Power of Attorney--
----Interpretation of law--Power of Attorney should be construed strictly, and under the rule of interpretation of the documents, which is akin to the principles about the interpretation of law, nothing should be read therein. [P. 145] B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Talb-i-ishhad--Notice--Notice was issued to the mother of vendee--Held: Demand has not been made from the vendees, rather their mother who in law or in fact is not shown to be the person to whom the said notice could be sent--If at the relevant time, the respondents were not in the country, the notice should have been sent in their names at the permanent address in the country and if their address abroad could be ascertained, it could be sent there, the sending of the notice to mother does not meet the requirement of law. [P. 145] D
Mr. Mazher Abbas Bhatti, Advocate for Petitioner.
Date of hearing: 31.10.2008.
Order
In his cause for pre-emption, on account of lack of proving the Talabs, the petitioner has failed at both the forums below. In this regard, the Courts have founded their verdict on two counts; firstly that the petitioner has not personally made the Talabs and it is not proved by him that Faqir Muhammad, his general attorney, who admittedly is stated to have made the demands on petitioner's behalf, was authorized to do so; secondly, the notice of Talb-i-Ishhad has not been sent to the vendees but to their mother Mst. Sardaran Bibi. who has no connection with the sale and any demand made to her is not in accordance with law.
Briefly the facts of the case are that the respondents purchased the suit land through mutation No. 2052 dated 13.07.1998. The petitioner pre-empted the said sale and in Paragraph No. 4 of the plaint, it is averred that on 06.10.1998 his attorney Faqir Muhammad learnt about the sale and made Talb-i-Muwathibat. It is also mentioned that the petitioner had already instructed his said attorney that in case the said sale takes place, he should initiate pre-emption action. It is further stated that the attorney approached Mst. Sardaran Bibi. the mother of the respondents, for transferring the suit land unto the petitioner and on her refusal, a notice (it is not stated to be a notice of Talb-i-Ishhad) was sent to the lady. The suit was contested by the respondents and as mentioned earlier, the petitioner has been non-suited on Issue No. 2 pertaining to Talabs for the reasons mentioned above.
The learned counsel for the petitioner contends that in the plaint it has been categorically mentioned that Faqir Muhammad had been authorized by the petitioner to the effect that if the sale of the suit property takes place, he must pre-empt. The general power of attorney (Ex.P.5) in favour of Faqir Muhammad also authorized him to institute the suit for pre-emption, therefore, the power of filing an pre-emption action necessarily entails all the ancillary powers and the authority to meet the requirements of law including making of two Talabs. resultantly the Courts below have misconceived not only the law on the subject but have also misconstrued the power of attorney. It is also submitted that because the respondents were out of country, therefore, notice of Talb-i-Ishhad was validly sent to Mst. Sardaran Bibi who was their mother and was looking after their affairs.
Heard.
According to Section 14 of the Punjab Pre-emption Act, 1991 (the
"Act"), the demands can be made by a person through his agent if he is unable to make it personally. Without going into the question if a pre-emptor, who is out of country at the relevant time, falls within the category of a person "unable to make the demand", suffice it to say that in the instant case, the proposition for determination is, if Faqir
Muhammad had the authority to make the Talabs at all. As per Section 3 of the
Act while interpreting and applying the provisions thereof the Court shall seek guidance from Quran' andSunnah' according to Section 235 explanation II of the Muhammadan law by Mulla, the demand can only be made by an agent who is previously authorized in this regard. It is not the case of the petitioner that any specific authority was conferred upon Faqir Muhammad prior to the sale that if it takes place, he should make the demands. The argument that because the power to file a suit for pre-emption is given to him in the general power of attorney dated 28.09.1998 (Ex.P.5). therefore it should necessarily be read to include the power of making the Talabs, is not correct, because it is the settled law, that a power of attorney should be construed strictly, and under the rule of interpretation of the documents, which is akin to the principles about the interpretation of law. nothing should be read therein. The authority to file the suit for the pre-emption clearly meant the institution in its legal context i.e. signing, verification and the presentation of the plaint and the engaging of the counsel, but by no stretch of interpretation, it can be held that the petitioner has given the power to his attorney to make the Talabs.
Even this is not the case of the petitioner when Faqir Muhammad had appeared as
PW-1 to testify, that any specific power prior to the sale in any form was given to him by the petitioner to make the Talabs. He has only relied upon the power of attorney, which was produced in evidence as Ex.P.5. This as mentioned earlier is only restricted to the filing of the suit and nothing more.
Therefore. I am of the considered view that the petitioner had not made the valid Talabs before the institution of the suit, which in view of the provisions contained in Section 13 of the Punjab Pre-emption Act 1991 is a condition sine qua none for maintaining such an action.
As regards the sending of notice of Talb-i-Ishhad is concerned, this demand has not been made from the vendees, rather their mother Mst. Sardaran Bibi. who in law or in fact is not shown to be the person to whom the said notice could be sent. If at the relevant time, the respondents were not in the country, the notice should have been sent in their names at their permanent address in the country and if their address abroad could be ascertained, it could also be sent there as well, but in any case, the sending of the notice to Mst. Sardaran Bibi does not meet the requirement of law.
In the light of above, I do not find any infirmity legal or factual in the impugned judgments and decrees of the Courts below, calling for interference in the revisional jurisdiction. This petition, therefore, has no merits and is hereby dismissed.
(W.I.B.) Appeal dismissed
PLJ 2009 Lahore 146
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
FIDA HUSSAIN--Appellant
versus
MUHAMMAD SHAH--Respondent
R.S.A. No. 17 of 1986, heard on 30-04-2008
Punjab Pre-emption Act, 1913 (I of 1913)--
----Ss. 19 & 20--Civil Procedure Code, (V of 1898), S. 100--Notice of sale--Purpose and procedure--Any person proposing to sell an agricultural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable or property urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such property--Such a notice shall be given through a Court having the jurisdiction in the area where the land or property is located--Section 20 of Punjab Pre-emption Act, provides that the right of pre-emption of a person upon whom a notice u/S. 19 is duly served shall be extinguished unless such person shall within the period of three months from the date of service or a further period not exceeding one year from such date, as the Court can allow, files a notice in Court for service on the vendor of his intention to enforce his right of pre-emption. [P. 149] A
Mr Mujeeb-ur-Rehman Kiani, Advocate for Appellant.
Mr. Zaheer Bashir Ansari, Advocate for Respondent.
Date of hearing: 30.4.2008.
Judgment
Vide Mutation No. 47 attested on 24-6-1968 Muhammad Shah, predecessor-in-interest of Respondents No. 1 to 8. purchased the suit land, described in the plaint, for a consideration of Rs. 8,000/-. On 16.1.1999, the appellant filed a suit for possession by pre-emption. He claimed to be a son of the vendor namely Mazhar Hussain Shah. I may note here that at the above said time, the appellant was a minor and had filed the suit through one Fida Hussain Shah as next friend, who was stated to be his maternal uncle. It may also be noted here that the said vendee died during the pendency of the suit and his legal heirs were impleaded. One of his legal heirs namely Bashir Hussain Shah (present Respondent No. 4) sold his share to Karamat Hussain Shah., Respondent No. 9. which sale was subjected to pre-emption by Nazir Hussain Shah (present Respondent No. 3) as also Abdul Khalique (present Respondent No. 10). Respondents No. 9 and 10 were accordingly impleaded. Muhammad Shah, deceased vendee, filed his written statement on 10-5-1969. He objected that although a mutation of sale was attested but, in fact, the transaction came into effect as a result of compromise of long standing disputes in a Court of law. It was further objected that the suit is mala fide and has been filed for the benefit of Mazhar Hussain Shah, father of the appellant. It was then stated that out of the suit land, land measuring 8-Kanals and 2-Marlas was owned by the said deceased defendant and he was occupying the same since the year 1940 under a compromise. It was then stated that the minor plaintiff was estopped by the conduct of his father, who issued notice under Section 19 of the Punjab Pre-emption Act, 1913. The fact that the appellant is the son of the vendor was not denied. No dispute as to the consideration was raised.
Another written statement available on record was filed by Kramat Hussain, Respondent No. 10. on 16-4-1980. He claimed to be a bonafide purchaser for a consideration of Rs. 44,500/-. Other contents were denied, rather ignorance was pleaded.
(2) Whether the plaintiffs participated in the alleged compromise? If so its effect?
(3) Whether the suit has been brought for the benefit and at the instance of plaintiffs father?
(4) Whether the suit is the result of " " If so, its effect?
The present regular second appeal was dismissed by this Court on 14-11-2000. The appellant filed Civil Appeal No. 1970 of 2001, which was allowed by the Hon'ble Supreme Court of Pakistan, vide judgment dated 9-1-2008 and the case was remanded back to this Court for a fresh decision of this regular second appeal.
Learned counsel for the appellant contends that the learned Additional District Judge has failed to read the pleadings and consequently has proceeded to decide the case with reference to the evidence regarding a plea, which was never taken. Further contention is that there is no evidence on record, which can support the findings of the learned Additional District Judge that the appellant in any manner was estopped from filing the suit or could have been said to waive his right of pre-emption. He relies on Sh. Fateh Muhammad. Vs. Muhammad Adil and others (PLD) 2007 Supreme Court 46). Learned counsel for the respondents/vendees, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge. According to him, sufficient pleadings and evidence is there to support the findings recorded by the learned Additional District Judge in the impugned judgment.
I have gone through the records of the learned trial Court with the assistance of the learned counsel for the parties. I have reproduced above the material contents of the plaint as also of the written statement filed by the deceased-vendee. There is no denial of the fact that the appellant is the son of the vendor. The pleas taken by the said deceased-vendee are duly reflected in the above rioted Issues No. 2, 3 and 5. The onus of all the three issues was upon the contesting respondents. To prove the said issues. Bashir Hussain Shah, Respondent No. 4, entered in the Witness-box as DW-1. He has stated that the sale took place as a result of compromised decree and Fida Hussain Shah was a party to the same. The appellant is residing at a distance of 35/40 miles from the suit land and has filed the suit for the benefit of Muhammad Afsar, who resides in the same Village where the land is located. This is the entire examination-in-chief of the said witness. Without reference to the cross-examination, it can safely be stated that the said statement is wholly inconsistent with the pleas taken in the written statement i.e. the suit has been filed for the benefit of Mazhar Hussain Shah vendor or that the appellant is estopped from filing the suit because of a notice issued by his father under Section 19 of the Punjab Pre-emption Act 1913.
Be that as it may, in the cross-examination, he admitted that Mazhar Hussain Shah has sold the land for Rs. 8,000/- and the appellant is the son of the vendor. He admitted that the appellant has filed the suit but volunteered that the suit had been filed on the asking of Mazhar Hussain Shah.
Before proceeding further, I may state that during the pendency of the suit, the appellant had attained majority and had opted to continue the suit himself. After consulting the next friend, he was allowed to do so. His attorney Asghar Hussain Shah appeared as PW-1 to state that the suit has been filed by the appellant for his own benefit. This witness was cross-examined and not a single question was put to him to challenge the said statement.
To my mind, it is a case of no evidence in support of the said issues, which were answered by the learned Additional District Judge in favour of the respondents. However, I have also examined the other evidence on record, Ex-P.2 is the copy of notice filed by Mazhar Hussain Shah in the Court of learned Civil Judge. Rawalpindi, on 23-9-1965. It was ordered that Muhammad Shah, deceased defendant, was ready to purchase the land for Rs. 7,000/- and Mazhar Hussain Shah was directed to sell the land to him within three months. However, if he is not prepared to purchase, the vendor would be entitled to sell his land to somebody else. Ex.D.2 is a copy of an application dated 20-12-1965 filed by Mazhar Hussain Shah stating that he does not intend to sell the land as he wanted to purchase another land, which land has already been sold away. It appears that Muhammad Shah deceased-defendant filed a suit for specific performance on the basis of the said agreement recorded by the Court, which suit was decreed and on the basis of thereof the said Mutation No. 47 was attested on 24-6-1968.
Now Section 19 of the Punjab Pre-emption Act, 1913 provides that any person proposing to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such property. Such a notice shall be given through a Court having the jurisdiction in the area where the land or property is located. Section 20 of the said Act provides that the right of pre-emption of a person upon whom a notice under Section 19 is duly served shall be extinguished unless such person shall, within the period of three months from the date of said service or a further period not exceeding one year from such date, as the Court may allow, files a notice in Court for service on the vendor of his intention to enforce his right of pre-emption.
A bare reading of the notice Ex.P 2 shows that the appellant was not impleaded as a party thereto and it is neither a plea of the respondents nor there is any evidence that a notice in terms of Section 19 of the Punjab Pre-emption Act, 1913, was duly given to the appellant. Nothing, therefore, turns on the said documents Ex-P.2 or F.x.D.2.
So far as the said compromise Ex D.1 is concerned, it is dated 3-10-1940. The suit was filed in the year 1969 and it is everybody's case that the appellant was a minor at that time. A compromise, which took place long before the birth of the appellant, can hardly be referred to or relied upon to hold that he is estopped from filing the suit.
Having thus examined the pleadings of the parties and evidence on record. I find no evidence to support the findings that the appellant had, in any manner, waived his right of pre-emption or that he was estopped from filing the suit. The impugned judgment being based on no evidence is bad in law and is liable to be interfered with in this second appeal. Regular Second Appeal is accordingly allowed and the impugned judgment and decree dated 30-7-1985 of the learned Additional District Judge. Rawalpindi, is set aside and the one passed by the learned trial Court on 28-2-1982 decreeing the suit of the appellant is restored. In case, the appellant, has not already deposited the amount of Rs. 8,000/- as directed by the learned trial Court, he shall deposit the balance amount alter deducting 15th, if any, with the trial Court on or before 20-6-2008. In case, he fails to do so, his suit shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs. The records be remitted back immediately.
(W.I.B.) Appeal allowed
PLJ 2009 Lahore 150 (DB)
Present: Maulvi Anwar-ul-Haq & Khalil Ahmad, JJ.
MUHAMMAD SIDDIQUE and 4 others--Petitioners
versus
cc--Respondents
W.P. No. 187 of 1983, heard on 10.6.2008.
Contract Act, 1872 (IX of 1872)--
----S. 11--Sale and encumbrance of Wards Property--Exclusive power--Jurisdiction--Held: Property could have been sold only by the Court of wards by executing a document in its own name--Further held: Only a transaction by legal guardian would be voidable.
[P. 153] A & C
Guardians and Wards Act, 1890 (VIII of 1890)--
----Ss. 28, 29 & 30--Limitation Act, 1908, Art. 44 of Schedule--Relevancy--Held: Art. 44 of the Schedule to the Limitation Act, has direct nexus with the provisions of the Guardians and Wards Act, 1890, particularly the Sections 28, 29, 30 thereof. [P. 153] B
Contract Act, 1872 (IX of 1872)--
----S. 11--Punjab Cout of Wards Act, 1903--S. 17--Transaction of minor property by her mother--Competency--Status--Effect--Held: Mother of the minor is not at all legal guardian either under the Islamic Law or any Statute Law, the transaction by her, even if the property had not vested in the Court of Wards, would be wholly void. [P. 153] D
Ch. Inayatullah Khan, Advocate for Petitioners.
Mr. Akhtar Ali Qureshi, AAG for Respondents No. 1 and 2.
Malik Noor Muhammad Awan, Advocate for Respondent No. 3.
Date of hearing: 10.6.2008.
Judgment
Maulvi Anwar-ul-Haq, J.--According to the contents of this writ petition, Petitioner No. 1 was transferred a plot of land in Garden Town, Lahore, as described in para 1 of the writ petition vide Transfer Order dated 24.6.1976 (Annexure A). He exchanged the said plot with land measuring 1466 kanals 14 marlas described in para 2 of the writ petition vide registered exchange deed dated 8.11.1976. The land was mutated in his favour vide Mutation No. 47 dated 14.6.1976. Thereafter he gifted away land measuring 1452 kanals 14 marlas in favour of Petitioners No. 2, 3, 4 & 5 (his wife and sons) vide registered Gift Deed dated 17.11.1976. This first deed was implemented in the revenue record vide Mutation No. 48 attested on 14.9.1977. The grievance being made out is that Respondent No. 1 has proceeded to cancel the land from the names of the original owners i.e. Mst. Ruqyya Ehsanullah Tiwana and Miss Shahneela Ehsanullah Tiwana vide order dated 26.10.1977. Prayer is being made for setting aside of the said order. This writ petition was heard along with W.P. No. 3427/77 filed by the said ladies. Both the writ petitions were dismissed on 23.5.1983. Against the said judgment, Civil Appeals No. 1216 and 1217 of 1990 were filed respectively by the Commissioner Labore, Division Lahore, on behalf of the said ladies being Court of Wards and by the petitioners. These appeals were allowed by the Honourable Supreme Court of Pakistan vide judgment dated 20.1.1993 and the matter was remanded back to this Court for a fresh decision. After remand, a development took place. Respondent No. 3 i.e. Miss Shahneela Ehsanullah Tiwana filed an application (CM No. 906 of 2002) for being impleaded as a party to this writ petition. This application was allowed vide order dated 2.4.2007 and she was impleaded as Respondent No. 3. She has filed a written statement. According to her, the said exchange deed is fictitious. She was a minor at the time of the said exchange and her property had been taken over by the Court of Wards vide notification dated 21.10.1967 and Mst. Ruqyyia Ehsanullah Tiwana could not have transferred her land to Petitioner No. 1. According to her, the plot stated to have been given in exchange, was owned by her father, who had died and thus both the properties subject-matter of the exchange belong to her. Petitioner No. 1 is stated to be a servant of the said Mst. Ruqyyia Ehsanullah Tiwana. It has been pointed out that in the year 1981, Mst. Raqyyia Ehsanullah Tiwana as attorney of Petitioner No. 1 sold the Garden Town plot through various sale-deeds to different persons. There is an allegation that the said Ruqyya and Petitioner No. 1 were suspected of administering poison to late Ehsanullah Tiwana.
Learned counsel for the petitioners contends that the impugned order has been passed by Respondent No. 1 in proceedings to which the petitioners were not parties, whereas Petitioner No. 1 acquired the land and made further gift before the said date i.e. 26.10.1977. Regarding the contents of the written statement of Respondent No. 3, he says that transaction on her behalf is voidable and relies on the case of Buland Khan and 6 others Vs. Muhammad Rafiq and 6 others (PLD 1979 Lahore 237) and that since she had not filed a suit for setting aside of the said exchange deed within three years after attaining majority, the transaction is now unchallengable. The learned AAG supports the impugned order with the contention that the said land subject-matter of the exchange was transferred to the said persons in violation of the provisions of the Colony Laws and as such the same was correctly cancelled under MLO 14. Learned counsel for Respondent No. 3 contends that admittedly, Respondent No. 3 being a minor and the property being with the Court of Wards, Mst. Ruqyyia Ehsanullah Tiwana could not have transferred the same to Petitioner No. 1. According to him, the transaction is void ab initio. He also reiterates the several contents of the written statement already noted above. Learned counsel for the petitioners rejoins to state that the later transactions whereby the plot in Garden Town was sold by Petitioner No. 1 through Mst. Ruqyyia Ehsanullah Tiwana as general attorney are not accepted or admitted by the petitioners.
We have gone through the file of this writ petition with the assistance of learned counsel for the parties and the learned Law Officer. Copy of the exchange deed has been appended with this writ petition as Annexure B. It shows that the agreement was between Petitioner No. 1 and Respondent No. 3 (through her guardian and joint share-holder Mst. Ruqyyia Ehsanullah Tiwana). The land is stated to be owned by Respondent No. 3. It is an admitted fact on record that Mst. Ruqyyia Ehsanullah Tiwana was not a certified guardian of Respondent No. 3. So far as the land is concerned, it was with the Court of Wards being managed by the Commissioner Lahore Division, Lahore. It is further an admitted fact that superintendence of the person and property of Respondent No. 3 was assumed by the Court of Wards vide notification dated 2.10.1967. Later the Provincial Government appointed Commissioner Lahore Division Lahore as Court of Wards regarding the land which is situated in Sargodha District.
Now under Section 13 of the Punjab Court of Wards Act, 1903, upon publication of such a notification, the property vests in the Court of Wards. Section 15 of the said Act disables a ward to transfer or create any charge on, or interest in, the whole or any part of his property which is under the superintendence of the Court of Wards. Section 17 empowers the Court of Wards to sell the whole or any part of the property of a ward or to lease it out for the advantage of the ward or benefit of his property. Section 18 provides that all deeds, contracts or other instruments shall be executed by the Court of Wards in its own name.
It will thus be seen that apart from the fact that Respondent No. 3 was admittedly a minor and the said exchange deed is void ab initio in terms of Section 11 of the Contract Act, 1872, the property could have been sold only by the Court of Wards by executing a document in its own name. Admittedly, the Court of Wards is not a party to the said transaction.
So far as the said judgment in the case of Buland Khan and 6 others is concerned, in all humility we find ourselves unable to endorse the same. To our mind, Article 44 of the Schedule to the Limitation Act has direct nexus with the provisions of Guardians and Wards Act, 1890, particularly Sections 28, 29 and 30 thereof. Only a transaction by a legal guardian would be voidable. Mst. Ruqyyia Ehsanullah Tiwana being the mother of Respondent No. 3 is not at all a legal guardian either under the Islamic Provisions or any Statute Law, the transaction by her, even if the property had not vested in the Court of Wards, would be wholly void.
So far as other contentions raised by Respondent No. 3 are concerned, we will not be commenting on the same although the very transfer order being relied upon by Petitioner No. 1 in the matter of the plot at Garden Town bears out the said contentions prima facie apart from the fact that even after the said exchange, Mst. Ruqyyia Ehsanullah Tiwana as attorney of Petitioner No. 1 sold the same very plot through registered documents. Since this is a writ petition and we find that the petitioners are relying upon a wholly void document, we are not inclined to further examine the impugned order cancelling the land from the name of Respondent No. 3 when she is satisfied as to the land already owned by her which was given in exchange with the land owned by the Government. The writ petition is accordingly dismissed but without any order as to costs.
(W.I.B.) Petition dismissed
PLJ 2009 Lahore 154
Present: Zubda-tul-Hussain, J.
Mst. NOOR JEHAN--Petitioner
versus
AMNA BEGUM and 5 others--Respondents
W.P. No. 555 of 2008, heard on 14.10.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12 & 144 & O. XXI, Rr. 100 & 101--Constitution of Pakistan, 1973, Art. 199--Execution proceedings--Forcibily dispossession--Restoration of possession--Powers of executing controller--Scope of--Consequent upon the ejectment order, the petitioner succeeded to get the possession of the property in-question--Since in view of the acquisition of proprietary rights by the judgment debtor--Petitioner was not entitled to get the possession from them, the same could be lawfully restored to the judgment debtor by Rent Controller--Rent Controller in exercise of powers in such behalf and especially with the aid of Section 144 of CPC could evolve the procedure and could make use of the relevant provisions of Order XXI Rules 100 and 101 of CPC--Procedural provisions contained in Rules 100 and 101 of Order XXI CPC were part of procedural law relating to execution of a decree and could be invoked in exercise of order passed by Rent Controller--Petition dismissed. [P. 157] A
1991 SCMR 2457 & PLD 1987 Kar. 16 ref.
Mian Muhammad Abbas, Advocate for Petitioner.
Chaudhry Tariq Mehmood, Advocate for Respondents.
Date of hearing: 14.10.2008.
Judgment
This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed in the context of a protracted litigation emanating from an ejectment petition filed by the writ petitioner for the ejectment of the predecessor-in-interest of the respondent which initially succeeded before the learned Rent Controller as well as the learned appellate Court but as a result of multiple litigation on execution petition ultimately culminated in the dismay of the petition. The rent petition was initially filed in the year 1981 and was accepted by the learned Rent Controller on 28.2.1981. The appeal filed by the predecessor-in-interest of the Respondents No. 1 to 5 against the ejectment order was also dismissed by the learned Additional District Judge on 20.7.1982.
This was followed by an objection petition under Order XLVII read with Section 151 CPC which was dismissed by the learned Rent Controller/Executing Court but the appeal filed against this dismissal was accepted by the learned Additional District Judge, Lahore, vide the judgment dated 7.2.1984 remanding the case for decision afresh by the learned lower Court. Thereafter issues were framed in objection petition and after its trial the learned Rent Controller by an order dated 11.11.2006 once again dismissed the objection petition. It is contended by the writ petition that pursuant to the dismissal of the objection petition she obtained the physical possession of the disputed property.
The matter did not end up here. The Respondents No. 1 to 5 as successors-in-interest of the original respondent then filed an application under Section 12(2) CPC on 6.3.2007. Simultaneously they also filed an application under Order XXI Rule 101 read with Section 144 CPC. The application under Section 12(2) CPC was dismissed by order dated 17.11.2007 but by an order of the even date the objection petition under Order XXI Rule 101 read with Section 144 CPC was accepted and the possession of the property was directed to be restored to Respondents No. 1 to 5.
The writ petitioner challenged the order dated 17.11.2007 passed on the objection petition by way of application under Section 47 CPC. The application under Section 47 CPC as such was not decided but an order dated 16.1.2008 was passed appointing a local commission for inspection of the property and for determining the controversy between the parties. The validity and propriety of both these orders dated 17.11.2007 and 16.1.2008 passed by the learned Rent Controller have been challenged through the instant writ petition.
In its very inception, while contesting the ejectment petition the tenant-predecessor-in-interest of the respondents had denied his tenancy under the petitioner, the contention being that an agreement to sell had been executed by the petitioner in favour of the predecessor-in-interest of the respondents and a suit for specific performance of the agreement had also been filed in that behalf. It seems that the proceedings of the suit for specific performance continued side-by-side the ejectment petition and the litigation of execution mentioned above. The suit for specific performance was ultimately decreed and the appeal filed against it also failed. The objection petition also had its inception in the same subject. The application under Order XXI Rule 101 and Section 144 CPC was ultimately accepted because of the fact that pursuant to the decree for specific performance sale-deed had also been executed and the respondents had become owners of the property to the exclusion of the petitioner.
The learned counsel for the writ petition vehemently argued that the dismissal of the application filed under Section 12(2) CPC and the acceptance of the objection petition under Order XXI Rule 101 CPC run counters to each other and has given rise to the contrary judgments on the same point. Atleast to this extent the contention is patently without any force because the subject matter of the application under Section 12(2) CPC were the circumstances which Were different from those of the objection petition. The application under Section 12(2) CPC was dismissed as the petitioner of that application (respondents herein) had failed to produce any evidence instead of availing a number of opportunities. The learned trial Court had observed that there was no element of fraud or misrepresentation in the order dated 20.9.2006 and 11.11.2006. Resultantly, the petition under Section 12(2) CPC was dismissed being devoid of any force. As against it the objection petition was allowed, as already stated, for the reason that after the execution of the sale-deed in favour of the respondents/judgment debtors the petitioner/decree-holder stood divested of the proprietary rights. The observation of the learned trial Court which is factually correct was as under:
"Since at this stage the decree-holder/petitioner has no right whatsoever in the property in question whereas predecessor of the respondents/judgment debtors have a sale-deed duly registered in his favour with the order of the Court, so, he is owner of the property in question. Hence, keeping in view the order of the Appellate Court dt. 7.2.1985 and available record ejectment order dated 28.2.1981 against the successors of Noor Muhammad has become infructuous."
It is thus obvious that the dismissal of the application under Section 12(2) CPC and acceptance of application under XXI CPC cannot be termed as destructive of each other and the impugned order cannot be set at naught merely on this ground.
The fact that pursuant to the decree for specific performance sale-deed has since been executed under the orders of the competent Court in favour of the objectors cannot be denied. The conclusive and the irresistible effect of this could be that the objectors/judgments debtors are the full owners of the property in question. They cannot by any sense of imagination, legal or factual, be termed as tenants under the writ petitioner, which tenancy had been denied by them at the very initial stage of the ejectment petition.
It is obvious from the aforesaid fact that the objectors/ judgment debtors are at present not claiming their rights on the basis of any agreement to sell. Reliance upon agreement to sell is an old and past story which completely came to an end after the decree of the suit for specific performance and the execution of the sale-deed.
It is true that an agreement to sell simplicitor cannot be equated to proprietary rights but where a formal and valid sale-deed has been executed and the ownership has perfectly transferred to the purchaser the rights of such purchaser are transformed from tenancy to ownership. The learned trial Court was, therefore, justified to conclude that the ejectment order dated 28.2.1981 was no more executable against the respondents/judgment debtors.
As already stated in the above, at one stage, consequent upon the ejectment order, the writ petitioner succeeded to get the possession of the property in question. Since in view of the acquisition of proprietary rights by the judgment debtor the writ petitioner was not entitled to get the possession from them the same could be lawfully restored to the judgment debtors by the learned Rent Controller. The Rent Controller in exercise of powers in this behalf and especially with the aid of Section 144 CPC could evolve the procedure and could make use of the relevant provisions of Order XXI Rules 100 and 101 of CPC. In the given situation he could make an enquiry and as held in the case of Haseen Ahmad Khan v. Irshad Khan through his legal heirs and another (PLD 1987 Karachi 16) could restore the possession to the judgment debtors in case they were found to have been wrongly dispossessed. It was also held in Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2457) that the procedural provisions contained in Rules 100 and 101 of Order XXI CPC were part of procedural law relating to execution of a decree and could be invoked in exercise of order passed by the learned Rent Controller.
In these circumstances the dismissal of the execution petition of the writ petitioner and an order for restoration of the possession to the respondents/judgment debtors was rightly passed by the learned Rent Controller. The impugned orders are unexceptionable which do not suffer from any illegality or material irregularity warranting interference in the exercise of the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The writ petition is, therefore, dismissed.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Lahore 158
Present: Ali Akbar Qureshi, J.
M/s. AMAS CNG FILLING STATION, LAHORE through its Managing Partner--Petitioner
versus
ZILA NAZIM, LAHORE and 15 others--Respondents
W.P. No. 12623 of 2006, heard on 17.9.2008.
Constitution of Pakistan, 1973--
----Arts. 199 & 25--Lahore Development Authority Act, 1975--Scope of--Commercialization of property for installing CNG Station--Rejection of--Constitutional jurisdiction--Validity of--Meaning thereby the LDA because of its inactive conduct has impliedly given the commercialization to them so apparently--There appears no justification to reject the request of the petitioner for commercialization of the site--Government departments who had issued the N.O.C. not only to the petitioner but others, must have carefully examined the instructions given by the Government in the notification so the refusal on the part of the LDA on the basis of the notification has no legal sanctity--Constitution of Pakistan, 1973 has already given the guarantee to all the citizen to do the lawful business and all the legislations including the Lahore Development Authority Act, 1975 are subject to the provisions of Constitution--Petition was allowed. [Pp. 160 & 161] A
Mr. Aftab Gull, Advocate for Petitioner.
Mian Iftikhar Ahmad, Advocate for Respondent alongwith Muhammad Faheem, DDTP (C), LDA.
Date of hearing: 17.9.2008.
Judgment
The petitioner through this Constitutional petition has sought the invalidation of letter dated 23.5.2006 and 17.11.2006 whereby the request of the petitioner for commercialization of his property was rejected.
The petitioner, who is intended to establish a CNG Dispensing Station, approached to the concerned Departments for issuance of No Objection Certificate. All the concerned department as stated by the petitioner, issued the No Objection Certificate, but the respondent-LDA refused to commercialize the site owned by the petitioner on the ground that the site proposed to be used to establish a CNG Station, falls within 1143 Meter prohibited radius range of Ammunition Depot, Multan Road, Niaz Beg, Lahore, therefore, the request of the petitioner cannot be acceded. The petitioner for the redressal of the grievance given number of applications and also filed the Constitutional petition but the respondent-LDA finally rejected the request of the petitioner to commercialize the property vide letter dated 17.11.2006, impugned herein.
In response of the notice, the respondent-LDA filed report and parawise comments and reiterated the grounds taken in the aforesaid letter for rejection of the request of the petitioner. In Para-8 of the parawise comments, it is mentioned that the Commercialization Committee in its meeting examined, the case of the petitioner for commercialization but finally rejected on the ground that in terms of the Notification dated 17.9.1989 issued by the Government of Pakistan, No Objection Certificate cannot be issued to any property which falls within 1143 meter prohibited radius range of Ammunition Depot. Multan Road, Lahore.
Mian Iftikhar Ahmad, Advocate, learned counsel for respondent-LDA contended that the LDA cannot issue the No Objection Certificate or to commercialize the property because of the Notification dated 17.9.1989 issued by the Government of Pakistan as the property in question is situated within the radius of the Ammunition Depot. Further contended that the respondent-LDA has not commercialized the plots of the other landowners, therefore, this petition is not maintainable.
The main thrust of the learned counsel for the petitioner while arguing the case that the petitioner is being treated discriminatory as within the prohibited radius range, many other petrol pump and CNG stations are working so the petitioner cannot be deprived of his valuable Constitutional right to do the lawful business. Next contended that all the other concerned Departments have already issued No Objection Certificate, therefore, the refusal on the part of the respondent-LDA to commercialize the site of the petitioner is without any lawful authority and justification particularly in the circumstances when the others land owners are using their property commercially. Learned counsel in support of his contention, referred the name of few petrol pumps established within the radius of 1143 prohibited zone range, the names of the same are:--
(i) Shell Pump situated within 825 meters.
(ii) PSO pump situated within 568 meters.
(iii) Pentagon Factory situated within 598 meters and
(iv) Saudagar Thermopole Industry situated within 725 meters.
Learned counsel lastly contended that the Hon'ble Supreme Court of Pakistan as well as this Court has already decided in plethora of judgments that no body should be treated discriminatory and no one can be restrained to do the lawful business but in accordance with law. Reliance is placed on Naseem Mahmood v. Principal, Kind Edward Medical College, Lahore and others (PLD 1965 Lahore 272), I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) and (1991 MLD 1988).
(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
Reliance is paled on Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). The Hon'ble Supreme Court of Pakistan while dealing with the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan has laid down the principle for application of equality clause of the Constitutional which are reproduced--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it. must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification, as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable it should be based--
(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
Even otherwise, the LDA has not pointed out any other illegality or irregularity committed by the petitioner in making the request of commercialization of the property owned by him, therefore, the petitioner is also entitled for the same treatment as observed by the august Supreme Court of Pakistan in case titled as I.A. Sharwani and others v. Government of Pakistan through. Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341).
(M.A.K.Z.) Petition allowed
PLJ 2009 Lahore 162
[Multan Bench Multan]
Present: S. Ali Hassan Rizvi, J.
Mst. HAMIDA YASMIN--Petitioner
versus
AHMAD ALI and another--Respondents
W.P. No. 1131 of 2007, decided on 6.10.2008.
Family Court Ordinance, 1964--
----S. 5 and Schedule--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage decreed in lieu of payment as a zar-e-khulla--Invoking of constitutional jurisdiction--Challenge to--Validity of--When the respondent paid her (to the petitioner) Haq-e-Mehr--Petitioner had not joined to the respondent after obtaining a decree--Earlier decree was passed while the suit was filed on 10.8.2006--She had not joined to the respondent after the suit decreed and even before for which period she claimed the maintenance--It is apparent that she did not allow to respondent to perform conjugal rights and insisted upon for dissolution of marriage--Peculiar circumstances makes the case that where petitioner persistently and insistently claims the decree for dissolution should have returned the amount received as haq mehr--She was entitled for decree only on the basis of khulla, therefore, no illegality in the impugned judgment could be pointed out into miscarriage of justice--Petition dismissed. [P. 164] A
Ch. Abdul Ghani, Advocate for Petitioner.
Rana Khalid Mehmood, Advocate for Respondents.
Date of hearing: 6.10.2008.
Order
The instant writ petition is filed against the judgment and decree dated 18.09.2006 whereby suit of the petitioner for dissolution of marriage was decreed in lieu of payment of Rs.50,000/- as a zar-e-khula which the petitioner received from the respondent as Haq-e-Mehr Moajjal.
The facts in brief are; that the petitioner filed three suits against the respondents; (i) suit for recovery of previous maintenance; (ii) recovery of dowry articles; and (iii) recovery of dower amount of Rs.50,000/- in which a compromise was arrived at. The respondent admitted the fixation of Rs. 50,000/- as Haq-e-Mehr. The golden ornaments were returned to the respondents whereas suit of Mst. Hamida Yasmin petitioner for dower amount to the tune of Rs.50,000/- was decreed against the respondents, thereafter, execution was filed and the petitioner was paid Rs.50,000/- as Haq-e-Mehr. Later on, the petitioner filed a suit for dissolution of marriage which was decreed on the basis of khula subject to return of Haq-e-Mehr Rs.50,000/-. Hence, this petition against the judgment and decree dated 18.09.2006.
Argued by learned counsel for the petitioner that the petitioner has raised many grounds in her original suit for dissolution of marriage like bad character of the respondent/husband and exercise of cruelty; that she has never uttered the word khula for the decree of dissolution of marriage, therefore, she cannot be deprived of her valuable right of dower and the condition imposed vide impugned judgment and decree was without any lawful authority and of no legal effect. That the circumstances of the case were different to claim of the dissolution of marriage on the basis of khula because in the previous suits she had claimed that respondent has received amount from her for purchase of motorcycle, thus, she was awarded decree of Rs.50,000/- and the same was not paid to her as dower money purely; that in the suit for dissolution of marriage the ground was cruelty and unbearable behaviour of the respondent and no where has claimed the decree of dissolution of marriage on the basis of khula.
Learned counsel for the respondent has opposed all these grounds by arguing that earlier suit filed for recovery of maintenance; recovery of dowry articles and recovery of dower amount, a compromise have had arrived at, statements of both the parties were recorded and the petitioner was granted Haq-e-Mehr on her demand of Rs.50,000/- which was paid by the respondent. The petitioner after lapse of few days has filed a suit seeking dissolution of marriage. She could only seek relief of decree for dissolution of marriage subject to return of the Haq-e-Mehr received as a result of compromise and to join him and allow the conjugal right.
Heard. After going through the material available on the record, it transpires that the petitioner has compromised in the earlier three suits filed and received Rs.50,000/- as Haq-e-Mehr. Thereafter she filed a suit for dissolution of marriage on the ground that behaviour of the respondent was cruel. In the original suit for dissolution of marriage she has not expressly given her willingness to relinquish her dower which she has received in the light of compromise. In the peculiar circumstances of this case the Judge, Family Court was absolutely justified to dissolve the marriage on the ground of khula subject to return of Haq-e-Mehr received by the petitioner in the light of compromise already arrived at. She claims that not to live with the respondent within the limits prescribed by Allah Almighty and also raised the ground of cruelty. These grounds were not taken in the previous suit filed. The situation arose when the respondent paid her Rs.50,000/- as Haq-e-Mehr. The petitioner had not joined to the respondent after obtaining a decree of Rs.50,000/-. Earlier decree was passed on 18.10.2005 while this suit was filed on 10.08.2006. She has not joined to the respondent after the suit decreed and even before for which period she claimed the maintenance. It is apparent that she did not allow to respondent to perform conjugal rights and insisted upon for dissolution of marriage. The peculiar circumstances makes the case that where petitioner persistently and insistently claims the decree for dissolution should have returned the amount received as Haq Mehr. She was entitled for decree only on the basis of khula, therefore, no illegality in the impugned judgment could be pointed out resulting into miscarriage of justice exercise of jurisdiction not vested in the case. The impugned judgment and decree cannot be interfered with by exercise of constitutional jurisdiction. Dismissed accordingly.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Lahore 165
Present: Hafiz Tariq Nasim, J.
SYED JAVED HUSSAIN HASHMI, MANAGER (OPERATION) MEPCO BAHAWALNAGAR and 4 others--Petitioners
versus
WATER AND POWER DEVELOPMENT AUTHORITY through its CHAIRMAN, LAHORE and 24 others--Respondents
W.P. No. 6492 of 2008, decided on 19.9.2008.
Civil Service--
----Promotion--Consideration for--It is right of an employee that for the purpose of promotion his case be considered alongwith his batch mates but promotion cannot be asked as a matter of right. [P. 168] A
2003 PLC (CS) 503; PLD 2003 Lah. 617; PLD 2004 SC 271; 2007 PLC (CS) 669 & 2007 SCMR 682 ref.
Mian Mahmood Hussain, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondent No. 1.
Syed Muhammad Akram Zaidi, Advocate for Respondent No. 3.
Date of hearing: 19.9.2008.
Judgment
The backdrop of this writ petition is that the petitioners being eligible for promotion to the next higher rank were expecting promotions but were superceded and the private respondents were promoted over and above the petitioners.
Learned counsel for the petitioners submits that the Selection Board for promotion was not properly constituted as after 10.10.2007 WAPDA remained nowhere in the hierarchy of the petitioners because they had become the employees of the Company so considering the case by WAPDA culminates the impugned selection a nullity in the eye of law being without jurisdiction. Further submits that the impugned minutes of the Selection Board are an outcome of colorable exercise of powers, as the petitioners who were more qualified, more suitable, were singled out whereas the private respondents who could not even compete the petitioners, were benefited and that too on extraneous consideration.
On the other hand, learned counsel for WAPDA as well as private respondents submit that no doubt the petitioners had become the employees of Company but even then they are controlled by WAPDA, they are getting salaries from WAPDA, till today no Company has constituted any board and it is a prevalent practice that the promotion cases are always considered by WAPDA and always Chief Executive of the Company participates in the meeting of the Selection Board and particularly in this case the Chief Executive of the Company where the petitioners are performing their duties did participate as is evident from the record. Further submit that the petitioners are estopped to challenge the point of non-competency of the Selection Board due to their own conduct because not only they participated in the impugned promotion process but they also filed representations before the Chairman WAPDA against their supersession but surprisingly not even a single word regarding the in-competency of Selection Board was used in the said representations, so they are estopped by law as well as by their conduct. Further submit that representations of the aggrieved persons were minutely considered by the Chairman WAPDA, which is reflected from the bare fact that out of total, five cases were referred back to Selection Board for reconsideration, out of which two pertains to the cases of Chief Engineers and the other three to the cases of Superintending Engineers.
Learned counsel for WAPDA has produced the record pertaining to the impugned selection.
Arguments heard. Record perused.
To resolve this controversy the basic issue is to examine that whether there is any element of non-transparency in the impugned matter or not when the matter relates to the Selection Posts where the seniority cannot be considered a sole criteria for promotion.
As held by the Hon'ble Supreme Court of Pakistan in a number of cases that right of judicial scrutiny cannot be taken away from the superior Courts, hence in exercise of jurisdiction under Article 199 of the Constitution of Pakistan, I myself scrutinized the available record and it shall be advantageous to reproduce as under:--
Name Marks Penalty
Syed Javed Hussain 71.1 Superseded on 28.09.2005.
Hashmi Superseded on 24.04.2006.
Deferred on 05.10.2006.
Deferred on 21.04.2007.
Superseded on 05.12.2007.
Censure in the year 1987.
Censure in the year 2001.
Censure in the year 2006.
Arif Mohy-ud-Din. 73.4 Stoppage of increment for
two years in 1987.
Superseded on 05.12.2007.
Bahadar Ali Khan 70.5 Censure.
Superseded on 05.12.2007.
Said Hassan. 71.7 Censure in the year 2002.
Superseded on 05.12.2007.
There is one petitioner namely Muhammad Ilyas Sheikh, whose case is different than the four others, so his case shall be discussed later.
So far the private respondents are concerned, their achievements are as follows:--
Name Marks Penalty
Noor Ahmed Mengal 79.5 No penalty
Javed Pervaiz 82.6 No penalty
Nasir Mahmood 75.4 No penalty
Raja Abdul Hameed 77 No penalty (even retired)
Pervaiz Masud 79.2 No penalty
Mehr Khan 76.6 No penalty
Arshad Mahmood 77.4 No penalty
Muhammad Dawood 74.5 No penalty
Jalal-ud-Din 77.4 No penalty
Muhammad Akram 76.7 No penalty
Muhammad Aslam Sadiq 75.8 No penalty (even retired)
Muhammad Afzal 76.9 No penalty
Asghar Ali Niazi 77 No penalty
Shahid Hussain 76.8 No penalty
Rana Muhammad Ajmal 79.6 No penalty
Khan
Muhammad Arshad 75.7 No penalty
Hafiz Ashraf Ali 76.7 Censure in 2006-2007
Rasool Khan Mahsood 76.7 No penalty
Mahmood Shah 78 No penalty
Niaz Hussain Naqvi 80.5 No penalty
Saleem Akhtar 79 Censure in 2007.
Nazir Ahmed Sheikh 73.8 Censure in 2004.
If the entire proceedings, of the Departmental Selection Board are perused and then put in juxta-position with the petitioners' contentions for non-transparency I am afraid that the petitioners' contentions have no force at all.
It is the right of an employee that for the purpose of promotion his case be considered alongwith his batch mates but promotion cannot be asked as a matter of right. In the present case, the minutes of the Selection Board clearly reveal that all eligibles were not only considered as a matter of routine but consideration was fair and just except in one case and that very lapse cannot be considered a mala fide one or with some ulterior motive. In that case Muhammad Ilyas Sheikh Petitioner No. 3 got 75.4 with one minor penalty of censure, whereas one Muhammad Arshad, Chief Engineer Quetta having 73.8 was promoted and the petitioner-Muhammad Ilyas Sheikh was superseded. In the entire proceedings, this is the only case where the interference of this Court can be justified, otherwise in all other cases the transparency in the process of Selection Board is fully evident.
In the attending circumstances, writ petition to the extent of Muhammad Ilyas Sheikh-Petitioner No. 3 is allowed to the extent of conversion of his supersession into deferment, declaring the supersession as illegal, thus Respondents No. 1 and 2 are directed to reconsider the promotion case of Muhammad Ilyas Sheikh-Petitioner No. 3 in the next forthcoming meeting of Selection Board fairly, justly and without being influenced from the previous minutes of the Selection Board. In arriving this conclusion, reference can be made to the law laid down in the cases of Muhammad Zaheer Abbasi vs. Government of Pakistan (2003 PLC (CS) 503) Said alias Khurshid and others vs. Deputy Commissioner, Settlement Department and others (PLD 2003 Lahore 617), Brig. Muhammad Bashir vs. Abdul Karim and others (PLD 2004 SC 271), Muhammad Ashraf vs. Government of Pakistan through Secretary Establishment, Government of Pakistan and another (2007 PLC (CS) 669) and Muhammad Iqbal and others vs. Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682). Writ petition to the extent of Syed Javed Hussain Hashmi, Arif Mohy-ud-Din, Bahadar Ali Khan and Said Hassan (Petitioners No. 1, 2, 4 and 5) is dismissed, being without any force.
(M.A.K.Z.) Order accordingly.
PLJ 2009 Lahore 169
Present: Hafiz Tariq Nasim, J.
ZAHID IRFAN and 84 others--Appellants
versus
DIRECTOR GENERAL PAKISTAN CIVIL AVIATION AUTHORITY HEADQUARTERS, KARACHI and 2 others--Respondents
Labour Appeal No. 71 of 2008, decided on 8.9.2008.
Civil Aviation Authority Ordinance, 1982--
----S. 23 (repealed)--Industrial Relations Ordinance, 1969--Promulgation--Industrial Relation Ordinance, 2002, Ss. 1 & 48--Regularization of services who were performing their duties as daily wagers--Ouster of jurisdiction of Labour Court--Validity--Later law overrides the earlier law--Inapplicable--Industrial Relations Ordinance, 1969 was made inapplicable by S. 23 of the Civil Aviation Authority Ordinance, 1982, but IRO 1969 was repealed and IRO, 2002 was promulgated in the year 2002 and there was no bar to amend Section 23 of the Civil Aviation Authority Ordinance but even today that plain language of S. 23 of the Ordinance is still in field, meaning thereby that the word `IRO' 1969 was not substituted by "IRO 2002", which do not excluded the applicability of labour laws on the employees of the Civil Aviation Authority shall remain in field and thus the employees of Civil Aviation Authority can invoke the jurisdiction of Labour Court for the redressal of their grievance, provided they cover in the definition of worker/workman--Appeal allowed. [P. 175] A
2005 SCMR 728, followed.
Mr. M.A. Ghani Chaudhry, Advocate for Appellants
Mr. Muhammad Usman Arif, Advocate for Respondents.
Date of hearing: 21.7.2008.
Judgment
Through this single judgment I also propose to decide Labour Appeal No. 72 of 2008 alongwith this appeal, as common questions of facts and law involve.
Both these labour appeals are filed under Section 48 of the Industrial Relations Ordinance, 2002 (IRO 2002), against the judgment dated 27.03.2008 passed by the Punjab Labour Court No. 1, Lahore.
Appellants in both the appeals filed petitions under Section 46 of the IRO 2002 for the regularization of their services who were performing their duties as daily wagers with the respondents which were dismissed by the learned Labour Court No. 1, Lahore, through the impugned judgment dated 27.03.2008.
Learned counsel for the appellants argued the case at length and submits with vehemence that, (i) IRO 2002 has been validated by the 17th amendment by adding Article 270-AA in the Constitution of Islamic Republic of Pakistan;
(ii) Section 80 of IRO 2002 repealed IRO 1969 and therefore Section 23 of Civil Aviation Authority Ordinance 1982 barring application of IRO 1969 on the employees of the Authority became inoperative and IRO 2002 became applicable on the employees;
(iii) Sections 6 and 24 of the General Clauses Act are not attracted in the present case because Section 80 of IRO 2002 has totally repealed IRO 1969 and a repealed law being a dead law cannot be made alive;
(iv) Section 80(2) of the IRO 2002 has saved certain proceedings taken under IRO 1969;
(v) In the impugned judgment the learned Labour Court has wrongly held that Civil Aviation Authority is included in the exclusion clause of Section 1(4) of IRO 2002 by referring to ward "An Airport", whereas actually Section l(4)(g) is about a member of Watch and Ward, Security or Fire Service Staff of an Oil Refinery of Seaport and Airport and the appellants did not belong to such staff and if the interpretation made by the learned Labour Court is accepted then IRO 2002 will also not be applicable on the employees of every establishment working at Airport.
In support of his contentions, learned counsel for the appellants has relied on Civil Aviation Authority vs. Wafaqi Mohtasib (Ombudsman) and others (2001 PLC (CS) 637) and Messrs Shaheen Airport Services vs. Nafees-ul-Hassan Siddiqui and another (2001 SCMR 1307) and submits that the judgment passed by the Labour Court be reversed and the appellants be granted the relief claimed in their petitions.
On the other hand, learned counsel for the respondents supports the impugned judgment and submits that Civil Aviation Authority Ordinance, 1982 ousted the applicability of IRO, since neither in IRO 1969 nor in IRO 2002 Civil Aviation Authority figures any where, hence Section 23 of the Civil Aviation Ordinance 1982 which was upheld by the Hon'ble Supreme Court in the case reported as Civil Aviation Authority, Islamabad and others vs. Union of Civil Aviation Employees and another (PLD 1997 SC 781) shall be a prevailing law on the subject which clearly oust jurisdiction of Labour Court regarding employees of Civil Aviation Authority.
Further submits that IRO 2002 having been made part of the Constitution by virtue of Article 270-AA but by no means becomes a superior law since Article 270-AA only protects certain laws made during that period and merely on account of being protected by the Constitution no superiority can be attached to that because Constitution is the only supreme law of the land and all other law including the IRO 2002 are always subservience to the Constitution.
Arguments heard. Available record perused.
The only question which is to be resolved in the present controversy is that, "Whether despite an ouster clause of Section 23 of the Civil Aviation Authority Ordinance, 1982, IRO 2002 is applicable on the employees of the Civil Aviation Authority or not and whether employees of Civil Aviation Authority can invoke the jurisdiction of Labour Court under the provisions of IRO 2002 or not?"
It stall be advantageous to reproduce Section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982 as well as Section 1(4) of the IRO 2002, which are as follows:--
"S.23. Ordinance XXIII of 1969 not to apply to Authority--The Industrial Relations Ordinance, 1969 (XXIII of 1969), shall not apply to or in relation to the Authority or any person in the service of the Authority."
"S.1. Short title, extent commencement and application.--(1)...........
(2) ....................
(3) ....................
(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed (a) in the Police or any of the Defence Services of Pakistan; (b) in any institutions or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence lines of the Railways; (c) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint; (d) in the administration of the State other than those, employed as workmen by- the Railways, Post, Telegraph and telephone Departments; (e) by an establishment or institution maintained for the treatment or care of sick infirm, destitute and mentally unfit persons, excluding those run on commercial basis; (f) by an institution established for payment of employees' old-age pensions or for workers' welfare; (g) as a member of the Watch and Ward, Security or Fire Services Staff of an oil refinery or of an establishment liquefied petroleum gas or petroleum products or of a seaport or an airport:
Provided that the federal Government may suspend, in the public interest, by an order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time."
"Exclusion of application of provisions of Industrial Relations Ordinance, 1969 to the employees of Civil Aviation Authority and Pakistan Television Corporation by the Legislature and not by an executive order does not suffer from any Constitutional/legal infirmity and thus cannot, be held to be violative of Art. 17(1) of the Constitution of Pakistan (1973) particularly keeping in view the background that all the employees of all the establishments are not covered by the provisions of Industrial Relations Ordinance, 1969.
The effect of exclusion of the application of provisions of IRO 1969 to the Authority is that there is no other statute available under which the employees of establishment can get their unions registered or can agitate their grievances through an orderly mechanism.
The effect of the enactment of Section 23 in the Pakistan Civil Aviation Authority Ordinance is that the provisions of IRO 1969 are no longer applicable to the Authority and to its employees."
Undisputedly, the judgment of the Hon'ble Supreme Court of Pakistan referred supra is of the year 1997 when IRO 1969 was operative. Prior to that Pakistan Civil Aviation Authority Ordinance, 1982 was promulgated, Section 23 of the said Ordinance provides that the IRO 1969 shall not apply to or in relations to the Authority or any person in the service of the Authority. It was in respect of the total ouster of the jurisdiction of the Labour Court under the IRO 1969, which was specifically imposed by Section 23 of Civil Aviation Authority Ordinance, 1982 and it was observed by the apex Court referring Article 17(1) of the Constitution of Pakistan that the words "subject to reasonable restrictions" employed in clause (1) of Article 17 of the Constitution do not admit and permit total denial of right. It was also observed that there are certain rights which are inherent of a trade union or a kind of its formation which inter alia includes a right to act as a collective bargaining agent. However, it was further clarified that right to go on strike and right to go slow are not rights which can be spelt out from Article 17(1) and the said rights can be founded on statutory provisions like the IRO 1969. It was inspite of the background that provisions of IRO 1969 had been completely made ineffective in the Civil Aviation Authority Ordinance, 1982, the Hon'ble Supreme Court of Pakistan in view of the fundamental rights of the workers for formation of trade union of course subject to "reasonable restrictions" observed that under Article 17 of the Constitution there cannot be total prohibition but the right can be regulated or restricted by law. It was observed that conception of a fundamental right is that it being a right guaranteed by the Constitution of Pakistan, cannot be taken away by the law and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by law. It was observed that though there is no requirement under Article 17 of the Constitution that an association or a union is to be registered but it cannot effectively function unless it is registered and a legal framework is provided within which it can operate as a Collective Bargaining Agent for its members and that the operation of a union is sine qua non for exercising the fundamental rights guaranteed under Article 17(1) of the Constitution. It was for this reason that the Hon'ble Supreme Court of Pakistan observed that it would be in the interest of the employees as well as Civil Aviation Authority that a legal framework alternate to the provisions of IRO be provided in order to regulate the relations between the employer and the employees on equitable basis. It was ordered by the Hon'ble Supreme Court that till the time a parallel legal framework of the IRO is provided the Authority with the agreement of the union can follow the procedure provided in the IRO as to the election of the office bearers of the union and the CBA. It was inspite of the fact that the provisions of IRO were no longer applicable to the employees of the Civil Aviation Authority as per Section 23 of the Civil Aviation Authority Ordinance, 1982.
The Federal Government had repealed IRO 1969 and promulgated IRO 2002 and Section 1 of this Ordinance defines the application of this law to the whole of Pakistan and persons in any establishment or group of establishments or industries except those detailed in Section 1(4)(a) to 1(4)(g) regarding which jurisdiction of the Labour Court is barred out-rightly. The Civil Aviation Authority does not figure anywhere in these exceptions. It is a matter of common sense that this particular point must have been in the mind of the law makers that such situation had fallen in the past and protection was given to the Civil Aviation Authority against the application of IRO 1969 which should have been continued in the new law also to save the Civil Aviation Authority from the provisions of IRO 2002, however, no such exception was given to it. In addition to that in view of proviso of Section 1 there was a right vested in the Federal Government to suspend the operation of the provisions of IRO 2002 for any establishment but for a period not exceeding six months. No such arrangement was made either. It is noted that under Section 23 of the Civil Aviation Authority Ordinance, 1982 the provisions of IRO 1969 were made inapplicable which does not mean that it shall remain applicable to all the laws made subsequently. It is held that the later law overrides the earlier law and as such IRO 2002 would therefore, render Section 23 of the Civil Aviation Authority Ordinance, 1982 inapplicable.
After going through all aspects of the matter, I am of the firm view that after repeal of IRO 1969, the Civil Aviation Authority in its Ordinance 1982 has not substituted IRO 2002 by amending Section 23, thus IRO 2002 is applicable to the employees of the Civil Aviation Authority. In arriving this conclusion I can take the strength from the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Chairman Board of Intermediate and Secondary Education, Bahawalpur vs. Rizwan Rashid and 3 others (2005 SCMR 728), wherein it is held, "Law which touches upon the rights of the subjects must be construed strictly and nothing should be deemed or presumed in the said law unless it is covered through the express words-Penal provision in a statute cannot be imported to another provision and attracted unless it is specifically made applicable and in any case if there are two interpretations, the interpretation favourable to the subject should be accepted."
In the present controversy, it is not denied that IRO 1969 was made inapplicable by Section 23 of the Civil Aviation Authority Ordinance, 1982 but it is also an admitted position that IRO 1969 was repealed and IRO 2002 was promulgated in the year 2002 and there was no bar to amend Section 23 of the Civil Aviation Authority Ordinance but even today that plain language of Section 23 of the Ordinance ibid, is still in field, meaning thereby that the word "IRO 1969" was not substituted by "IRO 2002", resultantly, the provisions of IRO 2002 which do not exclude the applicability of Labour Laws on the employees of Civil Aviation Authority shall remain in field and thus the employees of the Civil Aviation Authority can invoke the jurisdiction of Labour Court for the redressal of their grievance, provided they cover in the definition of worker/workmen.
Viewing the case from all angles the impugned orders passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore dated 27.03.2008 cannot hold the field; the same are set aside and both the appeals are allowed. However, the cases are remanded to Labour Court No. 1, Lahore with a direction to decide the same on merits.
(M.S.A.) Case remanded
PLJ 2009 Lahore 176
Present: Ali Akber Qureshi, J.
Mst. SARDAR BEGUM--Petitioner
versus
HOUSING AND PHYSICAL PLANNING DEPARTMENT, GOVT. OF THE PUNJAB through SECRETARY, BANK SQUARE, LAHORE and 2 others--Respondents
W.P. No. 3088 of 2008, heard on 17.9.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Allotment in open auction--Adjudication is as to whether is entitled for alternate plot--Allottee of plot to be compensated by offering alternate plot--Held: Lawful and genuine allottee of plot cannot be deprived of his valuable rights to property, acquired as of right, merely on the instances of usual technicalities and lapse of the functionaries, so the authority concerned is bound to make alternate arrangements in any other scheme--Petition allowed. [Pp. 178 & 179] A
2005 SCMR 562, followed.
Mr. Aurangzeb Mirza, Advocate for Petitioner.
Mr. Iftikhar Ahmad Mian, Advocate for Respondent No. 2.
Date of hearing: 17.9.2008.
Judgment
This judgment will also dispose of Writ Petition Nos.3087 of 2008, 3089 of 2008, 3090 of 2008 and 3091 of 2008, as the common question of law is involved in all these petitions.
This Constitutional petition calls in question the report made by a Committee constituted under the order of this Court passed on 31.10.2002, in Writ Petition No. 12453 of 1995.
Shortly the fact as stated in the petition are that plot Bearing No. 170-4-II-D1, measuring 4« marlas was allotted by Respondent No. 1 in Lahore Township Scheme in favour of Muhammad Ashraf son of Syed Imran on 10.2.1977. The allotment letter to this effect was also issued on 14.3.1997 and the said Muhammad Ashraf in response to the allotment letter deposited the entire cost of the plot on 15.3.1977. The petitioner of the instant petition purchased the said plot from Muhammad Ashraf through an agreement dated 12.4.1986. The petitioner for the transfer of said plot in his name filed an application and also appeared before the concerned authority. The process of transfer of the said plot was completed, which ended on an agreement executed with the petitioner on 3.8.1986 and the petitioner became the owner of the aforesaid plot. Although the process of transfer of plot was completed in favour of the petitioner after receiving the entire amount, but the possession of the said plot cannot be delivered to the petitioner due to the reasons that the plot is under the possession of some other person. The petitioner, as stated in the petition approached the concerned quarters but when no action was taken by the functionaries, the petitioner filed a Constitutional petition (WP-14876-1996). The said petition came up for hearing on 31.10.2002 and while disposing the aforesaid writ petition a direction was given to the Director General, LDA to constitute a Committee for the resolution of the dispute. The Director General in compliance of the order constituted a Committee. The said Committee examined the record pertaining to the plot in question and finally observed that no plot is available with the department. Anyhow the Committee constituted under the orders of this Court, did not resolve the controversy and passed a very sketchy, arbitrary and perverse order. Hence this Constitutional petition.
Learned counsel for the petitioner submitted that the respondent/LDA has admitted the claim of the petitioner hut has refused to accommodate or allot any plot in alternate in the other scheme to the petitioner. Further contended that the petitioner, who has paid entire consideration of the plot in question, so in any case the petitioner is entitled for the alternate plot in different schemes. Learned counsel has placed reliance on Mehmood Ali vs. KDA (2003 CLC 272) and Major (Retd.) Barkat Ali and others vs. Qaim Din and others (2006 SCMR 562).
Conversely the learned counsel appeared on behalf of the LDA, (the successor department of Respondent No. 1) submitted that although the plot mentioned in the writ petition was allotted to the petitioner but presently the department has no alternate place to accommodate the petitioner.
Heard. Available record perused.
Undeniably the plot in question was allotted to the petitioner in open auction; the petitioner paid the entire consideration to the department; the department issued the allotment letter but did not deliver the possession on the ground that the plot is already under the possession of someone else and cannot be given to the petitioner. Now the only question, which requires consideration and adjudication is as to whether the petitioner is entitled for alternate plot. The law referred by the learned counsel for the petitioner is very much clear. Their lordship while dealing with the identical matter observed as under:--
(i) 2006 SCMR 562.
Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10, 11, 15 & 16. Evacuee agricultural land not put to agricultural use since long, recorded as "Ghair Mumkin" in Revenue Record... Allotment of such land as evacuee building site to allottee against verified claims more than three decades earlier...
Subsequent auction of such land and claim of its auction-purchaser.... Validity... Allottee would be entitled to retain such land being evacuee property in recognition of his right... Such land stood permanently settled and absolutely vested in allottee by virtue of S. 16 of Displaced Persons (Land Settlement) Act, 1958... Allottee could not be deprived of his valuable right to property acquired as of right merely at the instance of a party to whom same had been wrongly transferred through auction owing to lapse or connivance of public functionaries or otherwise... Allottee could not be non-suited on such hyper-technical ground, which would amount to reopening of past and closed transaction leading to grave injustice...Allottee had disposed of land in favour of third party, who had raised huge construction thereon by investing a lot of amount...Auction-purchaser could be compensated by offering alternate property in order to maintain balance and to do complete justice between parties."
(ii) 2003 CLC 272
"Suit for specific performance, declaration, and possession...Suit plot was sold, by defendant Authority through public auction to the plaintiff...Plaintiff deposited two instalments of sale price and balance amount was payable in two equal yearly instalments from the date of issuance of possession order by defendant... Subsequently suit plot stood cancelled by decision of Court... Plaintiff requested defendant Authority that he could be allotted another commercial plot of equal size in the same locality in place of plot sold to him...Defendant instead advised plaintiff to apply for refund of amount already deposited by plaintiff...Plaintiff had filed suit for specific performance, declaration possession and in alternate to allot another plot or for damages...Held, plaintiff was entitled, to suit plot and in case it had been cancelled or disposed of by defendant Authority, then plaintiff was entitled to allotment of similar type of plot in the same scheme or in an identical scheme.
The ratio of the aforesaid esteemed judgments is that the lawful and genuine allottee of a plot (like petitioner) cannot be deprived of his valuable rights to property acquired as of right merely on the instances of usual technicalities and lapse of the functionaries, so the Authority concerned is bound to make alternate arrangements in any other scheme.
The Committee constituted in compliance of the order passed by this Court, disposed of the grievance of the petitioner in a very casual and routine matter. The said Committee while disposing of the grievance of the petitioner referred provision of disposal of land by Development Authorities Act (Regulations), 1998, whereby all the sites including residential/commercial/industrial and constructed units are to be disposed of through open auction but has not taken care that in the instant case admittedly the plot was allotted to the petitioner, the payment, was received but till today the petitioner is running pillar to post without any reason. The said Committee, although observed that the misgiving of the petitioner was caused because of the mischief or in-competency of the employees of the Department, in this eventuality the said Committee should have straightaway directed the Authority to hand over the possession of the plots or if those are not available at least the alternate thereof in any scheme of the Authority. The said committee has not even tried to apply the independent mind while disposing of the grievance of the petitioner that the allotment of plot was made to the petitioner in balloting, which is also amount to open auction and the petitioner cannot be deprived of his valuable right because of the provisions of the Act ibid which otherwise are not applicable upon the instant case. The liberal and fair interpretation of the provisions of Act ibid are also in favour of the petitioner as the petitioner was allotted the plots in result of balloting, which is also essence and logic of the provisions of Act ibid. The Committee also observed, "wherein tribunal cannot annul the vines of an act of parliament because the function is to force and not to annul the law. The Committee while observing this, has in fact refused to exercise the jurisdiction fairly, justly; so in this case the Committee instead of performing the statutory duty and to ease the petitioner, has tried to take the benefit of the aforesaid Act, which, in any case is not applicable. The result formed by the Committee in any case is neither judicious nor adequate. It is also notable that the Committee has admitted while recording its findings, that the misgiving was caused to the petitioner because of the mischief or in-competency of the employees of the department but has not recommended any departmental or penal action against those culprits, so in any case the petitioner cannot be made scapegoat of the mischief and incompetency of the employees of the Department.
The Authority i.e LDA, who is autonomous in its formation and to some decree at liberty to run its domestic affair without the intervention of the other government departments, so such type of the autonomous Authorities are expected to safeguard and protect the rights of the people and particularly, who are genuinely entitled to be treated strictly in accordance with law. In this case although the Authority is admitting all the claims of the petitioner, but is refusing to grant the same on certain technicalities or hurdles. The petitioner after more than a decade cannot be asked to receive the amount paid by him, whereas the Law settled by this Court as well as the Hon'ble Supreme Court of Pakistan supra permit the petitioner to have the alternate plot in any other scheme.
For the forgoing reasons, this petition is allowed, the respondent/LDA is directed to accommodate the petitioner in the light of the rule laid down by the Hon'ble Supreme Court of Pakistan (2006 SCMR 562) in any other Scheme of the Lahore Development Authority. No order as to costs.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 180
Present: Hafiz Tariq Nasim, J.
SAQIB MAHMOOD--Petitioner
versus
SECRETARY, MINISTRY OF FINANCE GOVT. OF PAKISTAN ISLAMABAD and 2 others--Respondents
W.P. No. 2051 of 2008, decided on 25.7.2008.
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 2-A--Judgment of Federal Service Tribunal--On the basis of S. 2-A of Service Tribunal Act, 1973 which were never challenged before Supreme Court have attained finality and shall be implemented by the concerned organization without dragging the employees into further litigation--Petition accepted. [P. 187] A
2007 PLC (CS) 1332 rel.
Mr. Muhammad Shakil-ur-Rehman Khan, Advocate for Petitioner.
Syed Fazal Mahmood, Advocate for Respondents.
Date of hearing: 11.7.2008.
Judgment
Brief facts leading to this writ petition are that the petitioner while serving in Habib Bank Limited was proceeded against under the provisions of Habib Bank Limited Service Regulations on 10.02.2001 culminating into major penalty of dismissal from service vide order dated 26.06.2001. Dismissal order was assailed in the departmental appeal, which was rejected by the appellate authority on 28.08.2001. Later on the petitioner invoked the jurisdiction of Federal Service Tribunal in view of Section 2-A of the Service Tribunal Act, the appeal was contested by the bank and finally the same was accepted through judgment dated 07.02.2004, operative part of which is reproduced as follows:--
"We have observed that disciplinary proceedings conducted against the appellant were violative of legal requirements as laid down in the law. Accordingly, the impugned order dated 25.6.2001 and the appellate rejection order dated 23.8.2001 are set aside and the appellant is reinstated in service with effect from the date he was dismissed from service. It shall, however, be open to the respondents to initiate and complete de novo enquiry proceedings against the appellant in accordance with the relevant law within a period of six months, removing the legal and procedural infirmities as discussed in this order. Further retention or otherwise of the appellant in service and payment of back benefits to him shall depend upon the findings of the fresh enquiry against the appellant, if conducted within the time-frame as stipulated above."
The respondent bank did not challenge the judgment of the Federal Service Tribunal before the Hon'ble Supreme Court of Pakistan, meaning thereby that the said judgment attained finality. However, de-novo proceedings were initiated as per directions of the Federal Service Tribunal which were to be completed within six months as per directions of Federal Service Tribunal dated 07.02.2004.
The petitioner was served with the charge sheet on 07.04.2004 under Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance, 2000, allegations were refuted by the petitioner, inquiry was conducted and finally inquiry report dated 06.07.2004 was submitted before the Bank Authorities. Then a show-cause notice dated 18.09.2004 under Section 3 of the Removal from Service (Special Powers) Ordinance, was issued, which was replied.
As per terms of Federal Service Tribunal's judgment, the time for completion of de-novo inquiry proceedings was expired on 06.08.2004 and no final order was passed by the Bank Authorities till the petitioner filed a Miscellaneous Petition No. 1743/04 in Appeal No. 601-(L)CE/2001, before the Federal Service Tribunal, stay order in favour of the petitioner was granted by F.S.T., however, during the pendency of CM, the judgment reported as Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) was announced, the Registrar of the Federal Service Tribunal informed the petitioner through notice dated 13.07.2006 that his petition has been abated meaning thereby that the stay order could not remain in field and the respondent bank issued another show-cause notice dated 31.10.2006.
As the petitioner apprehends re-dismissal by Bank Authorities, he rushed to Civil Court through a civil suit with a prayer that a declaration be granted to the effect that the petitioner is not liable to be proceeded against afresh and subjected to some adverse action on the basis of same charges as were levelled against him originally on the ground of lapse of time fixed by the Federal Service Tribunal and non-completion of de-novo proceedings against the petitioner. On 02.11.2006 interim stay was granted by the learned Civil Judge, which was, however, recalled on 18.10.2007.
Surprisingly, the respondent bank through letter dated 04.02.2008 issued another order which shall be advantageous to reproduce as follows:--
"You were dismissed from the service of the Bank vide letter # SAS/TM/RNH/220662 dated 25.06.2001, on the following charges of serious misconduct.
Misappropriation of Rs. 450,000/- and Rs. 200,000/- total Rs. 650,000/-
Borrowing Rs.450,000/- in violation of Rule No. 34(1) of HBL Staff Service Rules 1981 from M/s. Royal Engineering, Lahore.
Being aggrieved of your dismissal you filed appeal NQ.601(L)CE-2001 in the FST-Islamabad wherefrom it was ordered to conduct De-Novo inquiry in your case, which was conducted by Inquiry Committee. The Inquiry Committee found you guilty of above referred charges. Thereafter, you filed M.P. No. 1743/03 in appeal No. 601(L)CE/2001.
However, consequent upon the order dated 27.06.2006 passed by the Hon'ble Supreme Court of Pakistan, you filed appeal in the Court of Sr. Civil Judge, Lahore whereby the bank was restrained from taking any action against you vide order dated 02.11.2006.
The above restraining order of Sr. Civil Judge has been vacated vide order passed on 04.01.2008, and, consequently your dismissal letter has come into force.
You are, therefore, relieved from the service of the Bank with immediate effect."
Aggrieved by the order dated 04.02.2008, the petitioner filed departmental representation on 16.02.2008 in terms of the provisions of Removal from Service (Special Powers) Ordinance 2000 but with no response and then he filed the present writ petition.
Learned counsel for the petitioner submits that the impugned order dated 04.02.2008 was passed in ignorance to the fact that earlier inquiry proceedings were set aside by the Federal Service Tribunal through judgment dated 07.02.2004, however, it was left open to the bank to initiate and complete fresh proceedings within six months, this very judgment was neither challenged by the bank before the Hon'ble Supreme Court of Pakistan nor was complied with in letter and spirit whereas another order dated 04.02.2008 was passed by the Bank Authorities. Further submits that practically the petitioner is before this Court for the implementation of judgment of FST in letter and spirit because according to the spirit of the judgment of the FST the Bank Authorities could complete the process of de-novo proceedings before 06.08.2004 and not after that and admittedly the de-novo proceedings which were initiated by the Bank Authorities were not completed within the stipulated time i.e. on or before 06.08.2004, hence the further action taken by the Bank Authorities is a clear departure of the directions of the Federal Service Tribunal and this Court can direct the Bank Authorities to desist from such like illegalities and implement the judgment of Federal Service Tribunal in letter and spirit by setting aside order dated 04.02.2008. Adds that the effect of judgment of Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) is further clarified in case of Muhammad Idrees vs. Agricultural Development Bank of Pakistan and others (2007 PLC (CS) 1332) and according to this judgment of the apex Court the petitioner is entitled for the relief claimed for.
On the other hand, learned counsel for the respondents submits that in view of Mubeen-us-Salam's case the petitioner had lost its remedy, could not re-agitate either before FST or before any other Court except to file a suit for damages and not for his reinstatement and writ is not maintainable. Further submits that time fixed by the FST for completion of de-novo proceedings as six months cannot be termed as mandatory, and non-adherence to those directions have no penal consequences being a directory one, hence the action of the bank through order dated 04.02.2008 cannot be termed illegal. Adds that the petitioner's suit is still pending, thus during the pendency of civil suit, writ is not competent.
Arguments heard. Record perused.
So far the objection of maintainability of writ petition is concerned, suffice it to say that the petitioner wants to get the judgment of Federal Service Tribunal implemented in letter and spirit through the course of writ and for that reliance can be placed on a series of judgments like Khalid Mehmood vs. Inspector-General of Police, Punjab, Lahore and another (1999 PLC (CS) 558), M.A. Rashid Rana vs. Chief Secretary (1999 PLC (CS) 623), Ghulam Sarwar vs. Habib Bank Limited and others (2001 PLC (CS) 198) and Muhammad Siddique Detho vs. State Life Insurance Corporation and others (2005 PLC (CS) 946). In the light of these judgments objection of the learned counsel is repelled and the writ is held to be competent/maintainable.
The next objection raised by the learned counsel for the respondents is that the petitioner has filed a civil suit which is still pending and during the pendency of that suit writ petition is not competent. In response to this objection, reliance can be placed on Mst. Sattan and others vs. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt (PLD 1962 (W.P.) Lahore 151) and Malik Meraj Khalid vs. The Islamic Republic of Pakistan through its President, through M.E.O., Lahore Cantt. and another (PLD 1988 Lahore 325), wherein it is held, "the institution of suit should not stand in the way of the issue of a writ if, after considering the matter, the Court comes to the conclusion that one should issue."
In the present case, the petitioner is running from pillar to post for the redressal of his grievance, he was firstly proceeded against under the Bank Regulations, then provisions of Removal from Service (Special Powers) Ordinance were invoked, he approached Federal Service Tribunal where he was granted a specific relief but due to Mubeen-us-Salam' s case his civil miscellaneous petition was abated and he was left with no other option except to rush to the Civil Court and get the stay order but when the stay was vacated the bank authorities restored the order of dismissal of 2001, so in the attending circumstances, the petitioner can invoke the jurisdiction of this Court under Article 199 of the Constitution of Pakistan and pendency of civil suit cannot become a bar for the disposal of writ petition. So far the present writ is concerned, as discussed above, it is for the implementation of Federal Service Tribunal's judgment in letter and spirit within a stipulated period and in an identical case this controversy was resolved in the case of Zahooruddin Sheikh vs. Pakistan Atomic Energy Commission through Chairman, Islamabad (2007 PLC (CS) 959), wherein it is held, "Non-implementation of judgment of Service Tribunal within stipulated period of six months had flouted the directions as prescribed therein-Charge-sheet, show-cause notice and removal order issued after expiry of said prescribed period of six months, were void, non-existent and of no legal value".
Learned counsel for the respondents strenuously argued that rule of master and servant is applicable in the petitioner's controversy and hence this Court cannot interfere, suffice it to refer a case reported as Muhammad Dawood and others vs. Federation of Pakistan and others (2007 PLC (CS) 1046) a Full Bench of Karachi High Court held, "Rule of master and servant was inapplicable to cases where there was violation of statutory provisions or of any other law--Expression "violation of law" would not be confined to violation of any specific provision of a statute, but expression "law" ought to be considered in its generic sense as connoting all that was treated as law in the country including even the judicial principles laid down form time to time by the superior Courts--Accepted norms of legal process postulate a strict performance of all the functions and duties laid down by law, and include the principles of natural justice, public duty to act fairly and honestly and absence of mala fides in fact and law--Court, in all such cases, would be competent to grant relief of reinstatement."
As regards the other objection raised by the learned counsel for the respondents that subsequent events cannot be made a ground for exercise of writ jurisdiction because after passing the order by the Federal Service Tribunal the bank authorities passed fresh order which cannot be challenged through this writ petition, suffice it to refer a judgment reported as Evacuee Trust Property Board and another vs. Mst. Sakina Bibi and others (2007 SCMR 262), wherein it is held that under Article 185 of the Constitution, Supreme Court had ample jurisdiction to take notice of subsequent events. On the same analogy under Article 199 of the Constitution of Pakistan, the High Court has ample jurisdiction to take notice of such events, particularly when there is another case reported as Mst. Amina Begum and others vs. Mehr Ghulam Dastgir (PLD 1978 SC 220), wherein it is held that to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between parties and mould relief according to altered circumstances in larger interest of justice--Discretion in this regard vested in Courts to be judicially exercised.
Even in a case of Chairman, BISE, Gujranwala and another vs. Ayesha Maryam (2005 MLD 71) a Division Bench of this Court had held that High Court had ample jurisdiction to look into subsequent events at the time of deciding cases. In addition to this, I may rely on a judgment reported as Managing Director, Pakistan Television Ltd., Islamabad and 3 others vs. Sadique Ahmed, Associates Engineer and 2 others (2007 PLC (CS) 1244), wherein it is held, "Despite proper forums exist and remedies available but to avoid time consuming lengthy process and to save precious time of the parties and heavy expenses writ is entertained".
Learned counsel for the respondents submitted that in the prayer of the writ the claim which is advanced in the arguments is not available i.e. it is not specifically mentioned that judgment of the Federal Service Tribunal be directed to be implemented. To respond this objection, it shall be advantageous to refer a judgment reported as Feroz-ud-Din vs. Muhammad Aziz & 22 others (PLD 2005 AJ&K 9), wherein it is held, "Not necessary for the plaintiff to ask for general or other relief which could always be given by the Court if it would think same just and equitable in view of pleadings and evidence thereon".
There is another aspect of the impugned controversy that the judgment of the Federal Service Tribunal was not challenged by the Bank before the Hon'ble Supreme Court of Pakistan rather the petitioner was reinstated into service. However, the directions made by the Federal Service Tribunal were not complied with in letter and spirit, meaning thereby that the impugned matter became a past and closed transaction for all purposes and in such like situation the case titled Zarai Taraqiati Bank Limited and others vs. Mushtaq Ahmed Korai (2007 SCMR 1698) can be relied. In the present case as the Federal Service Tribunal while accepting the petitioner's appeal allowed the respondent bank to initiate de-novo proceedings but with a specific stipulation of six months for its completion and admittedly even in the stipulated period no order was passed adversely effecting the petitioner by the bank but surprisingly after a lapse of some months, the impugned order was passed, which cannot be treated a valid one rather it shall amount to a void order and in that respect, I can rely on a judgment reported as Yousaf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104), wherein it is held that if on the basis of a void order subsequent orders have been passed either by the same authority or other authorities, the whole series of the orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.
The plane language of the impugned order which is already reproduced clearly reveals that it was passed in haste, independent mind was not applied, the judgment of the Federal Service Tribunal was flouted/violated despite the fact that the Hon'ble Supreme Court of Pakistan in case of Muhammad Idrees vs. Agricultural Development Bank of Pakistan and others (2007 PLC (CS) 1332) categorically held, "12. We will like to reiterate here that whatever was said by this Court in the judgment in Mubeen-us-Salam supra applied only to the proceedings in relation to the cases which were pending before this Court (either at appeal stage or at leave granting stage) and, therefore, the cases in which judgments of the learned Federal Service Tribunal were never assailed before this Court have attained finality.
This Court accordingly finds and directs as follows:--
(a) ---------
(b) The judgments of the learned Federal Service Tribunal rendered on the basis of Section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation."
A
Keeping myself in the parameters laid down by the Hon'ble Supreme Court of Pakistan in the reported case supra, I accept this writ petition and set aside the order dated 04.02.2008 passed by the respondent Habib Bank Limited. Resultantly, the petitioner shall be held to be reinstated into service as per judgment of the Federal Service Tribunal dated 07.02.2004.
Writ petition is allowed in the above terms.
(M.S.A.) Petition allowed
PLJ 2009 Lahore 188
Present: Kh. Farooq Saeed, J.
KHALID JAVED--Petitioner
versus
BOARD THROUGH DEPUTY INSPECTOR GENERAL OF POLICE (INVESTIGATION), CAPITAL CITY POLICE, LAHORE and 5 others--Respondents
W.P. No. 9792 of 2008, heard on 19.9.2008.
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--Reinvestigation generally--Cannot be appreciated--Sucessive investigations because of cumbersome procedure involved generally does not sound appreciable to the common man succession investigations is under pressure of the influential persons is in a way to a danger to society. [Pp. 190 & 191] A
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--Defective or incomplete investigation--If the earlier investigation is transparent, without any fault independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed. [P. 191] B
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--Police Order, 2002 in fact has tried to stream line the earlier method which was obviously defective--Art. 18(6) has provided for strings for reinvestigation. [P. 191] C
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--It cannot be outrightly said that reinvestigation is always to favour some one. [P. 192] D
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--It depends upon facts of each case that reinvestigation should be done or not. [P. 193] E
Police Order, 2002 (22 of 2002)--
----Art. 18(6)--Only possible if the same is based upon reasons which must be supported by such arguments which makes it a belief and not just a though that some party has been favoured in investigation--Petition dismissed. [P. 193] F & G
Mr. Abdul Rasheed Sheikh, Advocate for Petitioner.
Malik Ishrat Hussain, Advocate and Rana Ameer Ahmad Khan, Asst. A.G. for Respondents.
Date of hearing: 19.9.2008.
Judgment
Through this writ petition the petitioner wants set aside of the order issued under Article 18 (6) of the Police Order, 2002, for transfer of the investigation.
The brief facts of the case are that the petitioner-complainant filed an F.I.R for the murder of his son accusing Tariq Aziz son of Siraj Din and his son namely Sameer Ali. The investigation in the titled case were completed by the Prosecution Branch and submitted before the concerned Judge for trial. On 21.6.2008 the brother-in-law of the main accused Tariq Aziz Respondent No. 5 submitted an application to Deputy Inspector General of Police (Investigation), Lahore, Respondent No. 1, for transfer of investigation by stating that the reasons for implication of the said respondents in this case is that Muhammad Asif a witness in the titled murder case owed the respondents Rs. 11,00,000/- which were to be paid through a cheque on 30.4.2008, but before date of payment on 22.3.2008 the said witness in collusion with the complainant and others got a false case registered against Respondent No. 5 and his son Sameer Ali Respondent No. 6. The D.I.G (Investigation) directed for re-investigation of the case vide his order dated 24.7.2008.
The said order is challenged inter alia on the basis of the arguments that the respondent party is very influential which is evident from the very fact that just on one letter filed by them, the investigation has been transferred. Besides this Court has never appreciated re-investigation where challan under Section 173 Cr.P.C. has already been submitted and trial has been commenced. Moreover, that the order of re-investigation is unilateral without hearing the petitioner and mentioning reasons.
In support of the contention that re-investigation is not lawful, learned counsel for the petitioner has referred (P.L.D 2007 Supreme Court 31) ref: "Muhammad Nasir Cheema Vs. Mazhar Javaid and others", (1999 P.Cr.L.J 1144) ref: "Haq Nawaz and others Vs. Superintendent of Police and others", (2002 P.Cr.L.J 310) ref: "Asif Ali Zardari Vs. Federation of Pakistan and others" and (1986 S.C.M.R 1934) ref: "Riaz Hussain and others Vs. The State".
In the referred judgment Riaz Hussain and others (supra) the Hon'ble Supreme Court while deciding the similar issue has opined that the system of re-investigation in criminal cases recent innovation is always taken up at the instance of the influential person and favourable reports obtained in no way assist the Court in coming to correct conclusion. The system, therefore, was disapproved. However in the subsequent judgment in terms of (1999 P.Cr.L.J 1144) ref: "Haq Nawaz and others Vs. Superintendent of Police and others" the Hon'ble Supreme Court has concluded that it is only upon new material that an investigation can be changed. If there is neither any new fact nor any additional material, the re-investigation should not be done. Similar are the observations in the other judgments. The Court rather has held that a challan even if it is incomplete is a challan after its submission before the trial Court, the same cannot be changed. In this regard the recent judgment again by Supreme Court in terms of (2007 P.L.D Supreme Court 31) ref: "Muhammad Nasir Cheema Vs. Mazhar Javaid and others" was also referred. The Hon'ble Supreme Court has held that no Court including High Court can direct the S.H.O either not to submit a report (challan as per rules) or to submit the said report in a particular manner i.e. against the such person as the Court desired or only with respect to such person as the Court wishes.
Learned counsel for the petitioner on the basis of his arguments and the comment that the petitioner's son has been killed mercilessly by strangling argued that in the interest of justice re-investigation order may be set aside.
Learned counsel for the respondents says that the petitioner has come out with general argument and he is not being particular. It has not been brought to the notice of this Court that the challan in fact came to the Court after reinvestigation order had been passed, besides the same was incomplete. Later the challan was found to be as defective by the trial Court also for the reasons that the same in respect of minor Respondent No. 6 as well as father Respondent No. 5 was submitted jointly which is against the prescribed law and procedure. Furthermore, that the claim of the personal enmity on the basis of financial deal with one of the witnesses also is irrelevant in the manner that the F.I.R had been registered much earlier than so called issuance of cheque by the respondent to the petitioner of 1.1 million.
The argument of the respondent mostly was that even if the challan has been submitted there is no legal bar in reinvestigation. The very fact that the challan was incomplete and subsequently held to be as not as per rules has clinched the issue and the writ petition has become practically infructuous. After relying upon the judgments (1999 M.L.D 1831) ref: "Abdul Aziz Vs. Muhammad Jamil and 7 others", (2004 P.Cr.L.J 1575) ref: "Muhammad Akbar Vs. The State" and (2000 S.C.M.R 453) ref: "Muhammad Yousaf Vs. The State and others" he concluded that since there is no legal bar besides the challan was defective and the same was submitted after the reinvestigation order had been approved, no interference by this Court is required.
This Court in earlier Writ Petition No. 9176/2008 has discussed this issue. Reinvestigation generally, obviously cannot be appreciated. Successive investigation obviously because of cumbersome procedure involved generally, does not sound appreciable to the common man. The general impression that successive reinvestigation is under pressure of the influential persons is in a way to a danger to the society also. This has not only effected the moral fiber but has also brought about very dangerous effects on the general out look of the people at large. Influence, be it in any form is used by all the parties concerned in such matters to get favourable reports and the reinvestigation is one of its major method. One may agree that investigation which is defective or incomplete, may in itself be because of some influence at the early stage of the proceedings. In such circumstances, reinvestigation in fact becomes necessary. However, if the earlier investigation is transparent, without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed.
The Police Order, 2002, in fact has tried to stream line the earlier method which was obviously defective. Article 18 (6) has provided for strings for reinvestigation. It starts from the word `investigation shall not be changed' which obviously gives the impression that it can be changed but shall not be changed if procedure prescribed therein is not properly adopted. The parameters, therefore, for change of investigation on the basis of the earlier judgments on the subject as well as Police Order, 2002, now are obvious.
In the present case the admitted facts are as follows:--
(i) That the challan was submitted in the Court on 27.7.2008.
(ii) That the competent authority approved the recommendation of the Board on 24.7.2008. However, the letter was issued on 30.7.2008.
(iii) The Prosecution Department while submitting the challan itself says that the same is incomplete.
(iv) That the trial Court has observed that the minor and adult have been challaned together.
"It is added that petitioner Sajjad Ali, Muhammad Mustafa and Tariq Mehmood brothers-in-law of accused Tariq Aziz submitted an application before the answering respondent for change of investigation. The answering respondent sent/marked the same to SP/Investigation City Division Lahore, with the observation, "Please call I.O and both parties personally and ensure justice". The said SP summoned the parties as well as I.O of the case and heard them at length and recommended for change of investigation of the case. On the recommendation of SP/Investigation City Division, Lahore, the answering respondent referred the case to Board constituted on the subject for deliberation and recommendation regarding change of investigation. Subsequently, the investigation of the above mentioned case was transferred and entrusted to Mr. Multan Khan, DSP/Old Anarkali Circle Lahore, on the recommendation of Board vide impugned order dated 30.7.2008. On receipt of order dated 7.8.2008 passed by this Hon'ble Court, the investigation of the case has been stopped".
From the above para it is clear that the transfer of investigation is on the basis of a formal request and after joining all the concerned parties. The requisite information was obtained and recommendation for change of investigation was after due compliance of Article 18 (6) of the Police Order, 2002. This Court does not agree with the petitioner counsel that a defective or incomplete challan fulfill the requirement of Section 173 Cr.P.C. It needs no emphasis that proviso to Section 173 Cr.P.C. after sub-section (b) provides for submission of interim report in the form prescribed by the Provincial Government stating therein the result of investigation made until than and the Court shall commence the trial on the basis of such interim report unless for the reasons to be recorded, the Court decided that the trial should not so commenced.
An interim report can obviously not considered as a complete challan. The omission which may be in any form can obviously be rectified subsequently by submission of report to the trial Court. In this regard one can refer (P.L.J 2003 S.C (A.J.K) 172) ref: "Muhammad Aimal Khan and 15 others Vs. Syed Asif Shah, Inspector General of Police AJ&K, Control Police Office Building, New Secretariat, Muzaffarabad and 6 others" which inter alia states that the police is free to submit subsequent report which is competent to proceed against an accused. The purpose and intent being that through an F.I.R the police is informed and activated to proceed and investigate into an occurrence. Such investigation should not ordinarily be stopped and stayed unless essential or exceptional circumstances so come in the way. Calculation of evidence in the shape of witnesses recorded, document received and all other matters incidental ancillary or necessary to investigation had to be judged by the police. It cannot be out rightly said that reinvestigation is always to favour some one. Such an allegation can be put on at preliminary stages also. In our society unfortunately it is equally true and some times registering an F.I.R of an offence becomes a cumbersome exercise. It is very difficult to get an F.I.R registered and the same also requires some kind of influence at least. The first investigation also is normally not free from allegation of nepotism or political or some other influence. It, therefore, depends upon facts of each case separately that reinvestigation should be done or not.
The change, therefore, is only possible if the same is based upon reasons. The reasons must be supported by such arguments which makes it a belief and not just a thought that same party has been favoured in investigation. Similarly, where certain witnesses are missing or certain legal formalities have been ignored and interim challan is submitted, the same can always be added subsequently. The term interim in itself speaks of status of the challan. There is, therefore, no cavil that the same can be completed subsequently.
The upshot of the above discussion in the light of facts and circumstances of this case, therefore, becomes obvious. The reinvestigation in this case is lawful and in fact is justified. The writ petition, as such, stands dismissed accordingly.
(M.S.A.) Petition dismissed
PLJ 2009 Lahore 193
Present: Hafiz Tariq Nasim, J.
ABDUL GHAFFAR MIAN--Petitioner
versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others--Respondents
W.P. No. 8985 of 2008, heard on 22.9.2008.
Constitution of Pakistan, 1973--
----Art. 199--Promotion of a civil servant--Although promotion is not a vested right of a civil servant, however, where the issue is regulated by Rules or Policy then these Rules and Policies should be followed in better and spirit and any deviation from those Rules/Policy may bring the department under scrinty. [P. 199] A
Constitution of Pakistan, 1973--
----Art. 199--Essence of Art. 199 of the Constitution of Pakistan, 1973 is judicial--Review of Acts of Public functionaries and can be invoked only by such person who has no other remedy available in law.
[P. 200] B
Constitution of Pakistan, 1973--
----Art. 199--Civil servant--Fitness of civil servant--Determination--Civil servant--Determination of fitness of civil servant shall remain the sole domain of departmental Authorities but High Court would only come into play where the departmental Authorities is complained of either mala fide or delaying the case of a civil servant with no reason--This would not only provide a remedy to a number of civil servants but would also save their time in going from pillar to post in search of a remedy. [P. 200] C
Promotion--
----Petitioner's entire service record is unblemished despite clear directions by the apex Court to CSB to record reasons and communicate to the petitioner if found unsuitable departmental authorities seems to be adamant to frustrate the object of law not to comply with direction of Supreme Court and spirit and have decided to see the petitioner superannuated without having promotion--Petition allowed. [Pp. 200 & 201] D
2008 SCMR 138, relied.
Mr. C.M. Sarwar, Advocate for Petitioner.
Mr. Qamar-uz-Zaman Qureshi, Deputy Attorney General for Respondents.
Date of hearing: 22.9.2008.
Judgment
Facts leading to this writ petition are that the petitioner being eligible for promotion to BS-20 in the Police Group of Pakistan was considered by the Central Selection Board in its meeting held on 3.10.2000, the petitioner's juniors were promoted but the promotion of the petitioner was withheld who approached Federal Service Tribunal in Appeal No. 307-LCS/2001. This appeal was allowed through judgment dated 9.8.2004 in the following terms:
"Having critically analyzed the appeal in all its dimensions, we have observed that justice has not been done to the appellant. The Board itself ignored their own paradigm to select "the very best from amongst the best". The appellant undoubtedly being the best out of the lot was dropped for no rhyme or reason. Accordingly, we direct that the appellant be promoted with effect from the date his juniors were promoted vide order dated 03.10.2000. We are cognizant of the fact that we have issued directions for his promotion from a specified dated as in our view his supercession was not legally sustainable ab-initio as he met all the requirements of the Promotion Policy and instructions/guidelines issued by the Establishment Division from time to time and the criteria evolved by the Board itself as indicated in the preamble to the minutes referred to above. Moreover, since the appellant suffered for none of his fault he shall also be entitled to consequential benefits effective from 03.10.2000 i.e. the date on which his juniors were promoted."
The judgment of the Federal Service Tribunal was challenged before the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 426/2005 which was decided through judgment dated 7.3.2007 and the petitioner's promotion case was sent back to the Central Selection Board for reconsidering within a period of three months after receipt of the copy of the judgment and it was also directed by the apex Court that; "the Central Selection Board after having taking into consideration the case of the respondent, if did not agree to promote him shall convey reasons of the same to him as well so he may make improvement if need be, enabling him self for considering his case for promotion in future."
After the directions issued by the Hon'ble Supreme Court of Pakistan the petitioner's case was reconsidered by the CSB in its meeting held on 11.2.2008 but the petitioner was informed in the following terms:
"The Board wanted to further watch the performance of the officer."
"The case is remanded to the Secretary Establishment Division, Islamabad with a direction to place the same before the Central Selection Board in its forthcoming meeting for reconsideration of the petitioner's case afresh for promotion to BS-20, in the light of observations recorded in this judgment and particularly the promotion case be considered w.e.f. year 2000, when the colleagues of the petitioner were promoted and the petitioner was wrongly superceded.
If Central Selection Board is not holding it's meeting in the next two months then in the circumstances of the case the petitioner's promotion case be finalized by circulation. The entire exercise be completed within a period of two months from today positively under intimation to the Deputy Registrar (Judl.) of this Court. The writ petition is allowed in the above term."
The learned counsel for the petitioner submits that after the judgment of this Court dated 8.5.2008 the petitioner was again non-suited and the petitioner's juniors were promoted which has caused a serious prejudice and prayed that petitioner be promoted on the basis of his excellent record which is much better against those who have been promoted through CSB's recommendations dated 18.7.2008.
The case was fixed for preliminary hearing on 23.7.2008, when the learned Deputy Attorney General for Pakistan was called and directed to requisition the record of the Central Selection Board pertaining to the impugned controversy, comments could not be filed even on 19.8.2008, 26.8.2008, 09.9.2008 and 17.9.2008, however, on 18.9.2008 Syed Asghar Ali, Joint Secretary, Establishment Division, Islamabad appeared in Court and submitted comments and undertook to produce the minutes of the CSB on 22.9.2008. Today the Section Officer of the Establishment Division, Islamabad appeared on behalf of respondents and produced the minutes of the CSB, which reveals that the CSB repeated the same wording against the petitioner's name, i.e. Board wants to watch further performance of the officer.
On 26.8.2008 and 17.9.2008 the learned Deputy Attorney General for Pakistan argued the case at length on the point of maintainability of writ petition however, today the Section Officer have produced the record of the Central Selection Board and submits that petitioner's case shall be reconsidered in the next meeting also.
Arguments heard; available record perused.
So far the question of maintainability is concerned suffice it to refer the order/judgment passed by this Court in case of the petitioner dated 8.5.2008 (W.P. No. 3175/2008) and there is no need to repeat the findings on this point, hence the contentions of the learned Deputy Attorney General for Pakistan in respect of maintainability of writ petition are repelled.
So far the merit of the case is concerned, some aspects are undisputed even today and those are:--
(i) The petitioner joined Police Service of Pakistan after qualifying the CSS Examination held in 1977.
(ii) Served in various assignments in NWFP, Sindh, Punjab and Federal Government as Assistant Superintendent of Police/Superintendent of Police and also as Senior Superintendent of Police.
(iii) The petitioner was promoted to BS-18 in 1983 and promoted to BS-19 in the year 1997.
(iv) The petitioner held the field appointments as SP Faisalabad and Bhakkar.
(v) Presently serving as AIG Training for the last more than four years.
(vi) His entire service record is unblemished, neither any penalty (minor or major) is available in his record nor any adverse remark is communicated to him till to date.
(vii) During his recent posting since 2003, no complaint whatsoever is made against him from any quarter and even today the Section Officer confirms that the petitioner's record is up to the mark/unblemished.
(viii) The petitioner was superceded in its meeting held on 22.6.2000 by the CSB which was declared illegal by the Federal Service Tribunal through its judgment dated 9.8.2004, however, the Hon'ble Supreme Court of Pakistan referred back the petitioner's case to CSB for reconsideration with a specific direction that if the CSB finds something adverse against the petitioner, the reasons for non-suiting him must be conveyed to the petitioner meaning thereby that the supersession was remained converted into Deferment even by the apex Court.
(ix) The petitioner's case was reconsidered by the CSB in compliance to the apex Court's directions but the judgment of the Hon'ble Supreme Court of Pakistan was not complied with in letter and spirit i.e. no reasons whatsoever was conveyed to the petitioner meaning thereby that practically the departmental Authorities committed a contempt by not complying with the directions of the Hon'ble Supreme Court of Pakistan in letter and spirit.
The petitioner field writ petition, which was decided on 8.5.2008 and the CSB was directed to reconsider his case within a period of two months, the petitioner's case was reconsidered but in a matter of routine and this consideration cannot be termed a valid consideration because the outcome of the consideration clearly reveals that CSB just repeated its observations/findings, which were made after remand by the Hon'ble Supreme Court of Pakistan.
When these factual aspects are evident from the record, no other conclusion can be drawn except that the CSB is determined not to recommend the petitioner for promotion despite the fact that their action is based on no reason at all.
There are certain facts which are to be resolved through this writ petition and those are that not only the present petitioner but a generation of civil servants has suffered from the exploitation of law in providing a mechanism whereby a transparent system of checking the fitness of a civil servant to be promoted could be brought under scrutiny or judicial check.
The petitioner in the instant case has become eligible for promotion since 2000 and every time his case is presented to the CSB, he is superceded or deferred on flimsy grounds and stated to be not fit for promotion as of yet. When such a situation arises where a civil servant is sure to think that he is fully eligible as well as fit for promotion then can he approach a judicial forum where his grievance may be redressed and he be allowed an opportunity to show that he is in fact fit for promotion to the higher grade?
The answer to this question is;
firstly a civil servant can approach the departmental Authorities and further on the Service Tribunal, in case where he challenges his eligibility to be promoted, the civil servant however cannot challenge the assessment of the departmental Authorities on any forum where the question as to his fitness is concerned and to be promoted a civil servant has to be both eligible and fit for promotion.
Section 22 of the Civil Servants Act, 1973.
Section 4(1)(B) of Service Tribunals Act, 1973.
Provisions of the Civil Service Appeal Rules, 1977.
In the first provision of law the most important Part is the proviso, which specifically bars the right to representation in matters relating to the determination of fitness of a civil servant to hold a particular post or be promoted to a higher post or grade. Consequently, an aggrieved civil servant has absolutely no forum whatsoever where he may complain of any injustice or discrimination in matters relating to or determining his fitness for a job or promotion.
The only remedy available to such a civil servant is to allege illegality or malafide of the concerned Authorities in determining his fitness but proving such malafide or illegality is undoubtedly a very hard task.
The other statute mentioned above also have similar provisions which bar any Appeal, Review or representation in matters relating to determination of fitness of a civil servant thereby leaving civil servant strained in the middle of no where without any remedy whatsoever and at the mercy of Central Selection Board/DPC.
The apex Court had a regular view on the matter and has held in a number of cases that although promotion is not a vested right of a civil servant, however, where the issue is regulated by Rules or Policy then these Rules and Policies should be followed in letter and spirit and any deviation from those Rules/Policy may bring the department under scrutiny.
It has further gone on to state in a case reported as 1990 SCMR 999 that malafide action of the Authority would tantamount to a breach of terms and conditions of Service of the aggrieved civil servant and that in case of promotion such malafide action can be looked into and if established, appropriate relief may be given.
Even though the apex Court has given some respite to civil servant, who only where they can establish that the Authority has acted malafidely or in contravention to any Rules or Policy, but
there are other numerous situations where civil servant can be deprived of promotion without any proof of malafide and without contravening any Rules or Policy for example in the present case where it might chose not to hold present petitioner fit for any reason without being tainted with malafide intention and may defer such a person like petitioner more than once. In this case where the civil servant is eligible and has no adverse service record established he may also be deprived of promotion and thereby discouraged in working harder for getting promotion like the petitioner.
In such circumstances, the Courts uptil now have only issued directions to the concerned Authorities to reconsider the case of the civil servant in a fair and transparent manner without any hint of malafide.
In my view the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has a very wide range of powers, thus it is held that the scope of the powers cannot be limited to just issuing a directions to the concerned Authorities to reconsider a civil servant in a transparent manner as according to my understanding the scope of powers entrusted upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot only direct to require Government Authorities/Authorities in doing acts according to law and moreover required them to operate in a fair manner in accordance with fundamental rights and in accordance with law specially where no alternate remedy is available to the aggrieved party. The essence of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is Judicial Review of acts of Public Functionaries and can be invoked only by such person who has no other remedy available in law.
The present petitioner in the instant writ petition is strained in the middle of two forums.
Firstly the Service Tribunal, where he cannot go for any appeal, review or representation by virtue of the proviso contained in Section 22 of the act mentioned above and;
Secondly the High Court which tends to be limited albeit unjustifiably in power to just issue a direction and not make an order for promotion because the final Authority determining the fitness of a civil servant to hold a particular post should always be the department itself which has a better understanding of the concerned civil servant as contended by the departmental Authorities.
In my view the High Court can interfere in the process of promotion and make a final order as to promotion of a civil servant because the High Court can similarly be assigned the task of evaluating the fitness of a civil servant to be promoted to a higher grade but by looking at the service history/record of the civil servants. At the end of the day the departmental promotion committee or the CSB also objectively evaluates the record of civil servant, which can equally be done by the higher Courts as well. However, a final order determining the fitness of a civil servant to be promoted to a higher grade should only be given where a civil servant, upon record, has been unjustifiably deprived of promotion even though he is fully eligible and on the basis of his record, fully fit for promotion. In this way, the very old and time wasting lacuna in the law can be cured if the High Court exercises its Constitutional powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in determining the fitness of a civil servant upon his record until legislature amends the law in any other way.
Once again the determination fitness of civil servant shall remain the sole domain of the CSB/departmental Authorities but the High Court would only come into play where the departmental Authorities/CSB is complained of either malafide action or where it is complained of undue delaying the case of a civil servant with no reason whatsoever. This would not only provide a remedy to a number of civil servants but would also save their time in going from pillar to post in search of a remedy.
In the present case from all angles if it is examined, it is held that the petitioner's entire service record is unblemished, having no penalty whatsoever even a minor one throughout his service record, despite clear directions by the apex Court to the CSB to record reasons and communicate to the petitioner if the petitioner is found unsuitable but surprisingly despite all these the departmental Authorities/CSB seems to be adamant to frustrate the object of law, not to comply with the directions of the Hon'ble Supreme Court of Pakistan in letter and spirit and have decided to see the petitioner superannuated without having promotion.
In the attending circumstances, the writ petition is allowed the action of the Central Selection Board whereby the petitioner is again remained under watch is declared illegal and is set aside. The competent Authority is directed to issue the petitioner's promotion order and that too it be effected from the date of the petitioner's eligibility.
In arriving this conclusion I can safely rely on a recent judgment reported as Federation of Pakistan v. Ameer Zaman Shanwari (2008 SCMR 138).
(M.A.K.Z.) Petition allowed
PLJ 2009 Lahore 201
Present: Hafiz Tariq Nasim, J.
MUHAMMAD KHALID and 2 others--Petitioners
versus
GOVERNMENT OF PAKISTAN through Secretary Establishment Management Service Wing Islamabad and another--Respondents
Writ Petition No. 5229 of 2007, heard on 15.7.2008.
Constitution of Pakistan, 1973—
----Arts. 25 & 199--Civil servants--Declared surplus--Appeal was dismissed by Federal Service Tribunal--Challenge to--One colleague of petitioners approached Supreme Court and he was granted relief--Petitioners were also entitled for same relief which had granted by apex Court to petitioner's colleague--Submission of--Whether benefit of that judgment of Supreme Court can be extended to present petitioners through writ petition at such belated stage when they did not approach Supreme Court against judgment of Federal Service Tribunal like petitioner's colleague--Question of--According to Art. 25 of Constitution of Pakistan 1973, all citizens are equal before law and entitled to equal protection of law--If apex Court decides a point of law relating to terms and conditions of civil servants who litigated and there were other civil servants who might not have taken any legal proceedings, in such a case, dictates of justice and rule of good governance demand that benefit of said decision be extended to other civil servants also, who might not be parties to that litigation instead of compelling them to approach tribunal or any other legal forum--Petition allowed. [P. 205] A
1996 SCMR 1185, 2005 SCMR 499, Crl. P. No. 71-L & 72-L of 2008 and C.P. No. 215-L/2008 rel.
Mr. Muhammad Saeed Ansari, Advocate for Petitioners.
Mr. Muhammad Zaman Qureshi, Deputy Attorney General for Respondents.
Date of hearing: 15.7.2008.
Judgment
Facts leading to this writ petition are that the petitioners while serving in the agricultural senses organization were declared surplus through order dated 15.5.1997 when whey were in BPS-16. Later on through order dated 07.10.2002 they were absorbed in BPS-11, however, their pay was protected. Aggrieved by this, the petitioners approached the Federal Service Tribunal but could not succeed.
The learned counsel for the petitioners submits that adjustment in lower grade is an outcome of arbitrariness and malafide, further submits that one colleague of the petitioners approached the Hon'ble Supreme Court of Pakistan through CP.No. 1043 of 2006 the same was decided on 19.1.2007 and the Hon'ble Supreme Court of Pakistan not only granted the relief to the colleague namely Mrs. Farkhanda Tallat but she was granted the compensation of Rs. 25,000/- and even it was directed that an amount of Rs. 1000/- out of the said amount of Rs. 25,000/- shall be paid by the establishment Secretary from his own pocket on account of his above-mentioned conduct.
The learned counsel for the petitioners submits that the petitioners are entitled for the same relief which was granted by the Hon'ble Supreme Court of Pakistan to the petitioners' colleague namely Mrs. Farkhanda Tallat.
On the other hand, the learned Deputy Attorney General for Pakistan submits that the judgment referred is a judgment in personem and not in rem and the benefit of that judgment cannot be extended to the present petitioners' because if they felt aggrieved of the judgment of the Federal Service Tribunal they could move before the Hon'ble Supreme Court of Pakistan like the petitioners' colleague namely Mrs. Farkhanda Tallat but the petitioners did not approach the apex Court hence they cannot be held entitled for the same relief. Further submits that as the judgment of the Federal Service Tribunal is against the petitioners, which had attained finality, the petitioners cannot reopen the matter at this belated stage. Further submits that the petitioners were not only accommodated but their salaries were protected and no injustice was done with the petitioners.
Arguments heard; record perused.
So far the judgment of the Federal Service Tribunal is concerned, of course the petitioners' appeals were dismissed, however, there was a specific observation in para-8 of the judgment which is reproduced as under:--
"This is a pathetic case which should be considered by the respondents on compassionate grounds. It is an admitted fact that the juniors to the appellants have been retained in Grade-10. The respondents may find out ways and means to restore the appellants to their original posts in Grade-10 or to any equivalent post. "
"21. Needless to add that as has been mentioned above, the condition precedent permitting the kind of action impugned before us was the NON-AVAILABILITY OF AN EQUIVALENT POST" and not the NON-AVAILABILITY OF A REQUISITION WITH THE ESTABLISHMENT DIVISION FOR AN EQUIVALENT POST. Therefore, such an excuse offered by the Establishment Division was far from being a sufficient satisfaction of the said condition precedent. And we may also add that even the other justification offered by the Establishment Division for non-absorption of the petitioner in an equivalent post i.e. the Ministry of Commerce not honouring its notification regarding posting of the petitioner to one of the available equivalent post in the said Ministry, was only a painful display of a callous disregard of the rights of a fellow civil servant as the Ministries etc. in the Federal Government were not sovereign powers but were a part and parcel of the same Government which were subject and subordinate to one superior command. We would dread even to visualize the situation canvassed on behalf of the respondents and unfortunately even accepted by the learned Tribunal that an action taken by the prescribed and the competent Division in the Federal Government had been thrown into the gutter by another Division or Ministry of the same Government with no one in the hierarchy to intervene and to set things right. Such a situation, in English language, is called anarchy and despite the respondents insistence of having reached the said stage, we refuse to believe the existence of such an anarchic situation in the Government and in fact pray to Allah that such a claim never becomes a reality. We may add that the Establishment Division being or not being at the mercy of other Ministries, Divisions or offices etc. in the matter of placement of the Federal Government employees, is an internal affair of the said Government and is of no relevance to the petitioner nor does the same concern the Courts and the enforcement of law.
Having thus examined all aspects of the matter, we find that the impugned action could not be sustained in law as nothing was available on record which could assist us to hold that no equivalent post had ever become available in the entire set up of the Federal Government during the period in question i.e. from the year 1997 to 2002 and even till date. In the absence of such a material, the impugned action of appointing the petitioner to a lower post was an illegal and a callous exercise of authority and the same is accordingly declared as such.
Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Federal Service Tribunal dated 1.9.2006 passed in Appeal No. 265(R)CS/2003 as also the impugned notification of the Establishment Division dated 4.10.2002 appointing the appellant to a lower post of Senior Auditor in BS-11 in the Railways Department, are set aside. Resultantly, the appellant is declared to be appointed to a post equivalent to the one held by her before being rendered surplus with all back benefits, if any be due. And this shall be so done by or before 28.2.2007 and her said appointment shall be made against a post in Islamabad.
Since the appellant had suffered agony for so long and for no fault of hers and since she had also been compelled to go into litigation which would have cost her money, therefore, she deserves compensation for the same which is fixed at Rs. 25,000/- (twenty-five thousand only) and which shall be paid to her before the above-mentioned 28th day of February, 2007. An amount of rupees one thousand out of the said amount of
Rs. 25,000/- shall be paid by the Establishment Secretary from his own pocket on account of his above noticed conduct.
The Establishment Secretary shall then submit a report about the compliance of this order to the Registrar of this Court for the information of this Bench."
The learned Deputy Attorney General for Pakistan put emphasis on the sole ground that as the petitioners did not agitate before the apex Court so they are not entitled for the same relief which was extended to the petitioners' colleague namely Mrs. Farkhanda Tallat cannot be a convincing argument particularly when there is ample law laid down by the Hon'ble Supreme Court of Pakistan wherein it is held that "according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law and if this Court decides a point of law relating to the terms and conditions of civil servant who litigated and there were other civil servants who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to others civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum."
In support of these findings, reliance can safely be placed on Hameed Akhtar Niazi v. Secretary Establishment Division (1996 SCMR 1185) and Tara Chand and others v. Karachi Water and Sewerage Board (2005 SCMR 499) and on a recent judgment passed by the apex Court comprising of four Honourable Judges and the author of the judgment is the Honourable Chief Justice of Pakistan (Government of the Punjab v. Samina Perveen etc. and others) Criminal Petition No. 71-L and 72-L of 2008 and CP.No. 215-L/2008 and others dated 29.4.2008.
Taking strength from the law supra, this writ petition is allowed, impugned orders to the extent of the petitioners are declared illegal and are set aside. The petitioners shall be entitled for all consequential benefits too.
(R.A.) Petition allowed.
PLJ 2009 Lahore 205
Present: Zubda-tul-Hussain, J.
SHARAFAT ALI--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION HUJRA SHAH MUQEEM and 3 others--Respondents
W.P. No. 11940 of 2008, decided on 17.9.2008.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 561-A--Quashment of cross version--Jeopardized--Quashment or cancellation of the cross version shall be subject to some legal and factual limitations as are relevant for quashment of the formal FIR--On the touchstone of the judgment (cited 2001 P.Cr.L.J 1331, 2006 SCMR 1192, 2003 P.Cr.L.J. 192) held that the impugned order does not call for interference for its quashment/cancellation in exercise of the constitutional jurisdiction of High Court--Petition dismissed.
[P. 207] A
Mr. Fahad Ahmad Siddiqui, Advocate for Petitioner.
Date of hearing: 17.9.2008.
Order
At the instance of the petitioner Sharafat Ali a case FIR No. 236 of 2008 dated 8.4.2008 under Sections 148, 149, 337-F (i) and 337-F (ii) PPC was registered at Police Station Hujra Shah Moqeem Tehsil Depalpur District Okara against Respondent No. 3 and his co-accused wherein after investigation the accused were challaned by the police. Allegedly the accused of the aforesaid FIR also put up their version before the police which as per their contention was not adverted to by the police and as such one of them namely Gohar Ali who is Respondent No. 3 in the instant petition invoked the jurisdiction of the Ex-Officio Justice of Peace/the learned Additional Sessions Judge Depalpur under Sections 22-A & 22-B Cr.P.C. for a direction to the police to record the version of the accused also.
"Admittedly case vide FIR No. 236/2008 u/S. 337-F, i, ii PPC has been registered against the petitioner and others, wherein it is alleged that the said occurrence has taken place on 5.4.2008. In the instant petition, the petitioner's contention is that cognizable offence has been committed by the Respondents No. 2 to 9 on the same day. He intends to get his version recorded. Respondent No. 1 has undertaken that he shall get the version of the petitioner recorded in the case diary. He is directed to proceed with the matter strictly in accordance with law. The petition stands disposed of accordingly."
It has been agitated by the learned counsel for the petitioner that the order of the Ex-Officio Justice of Peace for recording the cross version was bad in law because it was based on a mala fide application filed belatedly only to thwart the case of the petitioner while on a report obtained by the Ex-Officio Justice of Peace, the police had given an opinion that the petition of the Respondent No. 3 under Sections 22-A, 22-B Cr.P.C was baseless and was meant for saving himself from the case lodged by the petitioner. Through the instant petition it has been prayed that a direction may be issued to the Respondent No. 2 to cancel the version-dated 22.6.2008 recorded by the Respondent No. 3.
It is vested right of every person against whom a cause has been raised or a criminal case has been registered to defend himself in the manner provided by the law. As is obvious from the facts, a criminal case was registered against Respondent No. 3 and his co-accused on the complaint of the petitioner. The respondent or the accused is entitled not only to defend himself or to show that cause/complaint against him is false but can also bring on record such other facts as may be relevant version of his matter. If he has a grievance that he has been falsely implicated in the case and that the aggression was imposed upon him, he can lawfully and rightfully put forward his own claim or, as it may also be termed, his own version of the occurrence/matter, to show that he was aggressed by the complainant. This is in fact one form of right of defence, which of course is inalienable and undeniable.
Where the claim or version of an accused is reported by him before the police, under the law the police is required to bring it on record and then to proceed there with in accordance with law. If this right is defied by the police/the-investigating officer, the remedy available under Section 22-A Cr.P.C cannot be jeopardized merely because previously an FIR has been recorded and has been investigated It is true that the defence can be pleaded during the trial but that alone will not by itself bring the accused of the cross version before the Court to face the trial.
The quashment or cancellation of the cross version shall be subject to the some legal and factual limitations as are relevant for the quashment of the formal FIR. The criminal Procedure Code has laid down exhaustive procedure for the registration and investigation of the cases as well as their trial after submission of the challan before the Court. The scheme of the law proceeds on prescribed principles, the progress where of should not be allowed to be hampered against the procedure laid down in that behalf. What the law envisages is that the investigation in so far it adheres to the law should not be allowed to be jeopardized.
The primary object of quashment or cancellation of the judicial and administrative criminal proceedings is to secure the ends of justice. The achievement of this end would involve a finding that if the proceedings are allowed to continue, the same would defeat the ends of justice and as a result would perpetuate injustice. The abuse of process of law is to be deprecated by all possible legal measures. At the same time it cannot be ignored that where prima facie offence seems to have been committed, the justice would require its inquiry and trial. The constitutional jurisdiction of the High Court or even for that matter the provisions of Section 561-A Cr.P.C cannot be used to stiffle the prosecution but the intention thereof is to prevent the abuse of process of law or the process of the Court. The jurisdiction in this behalf cannot be so utilized as to interrupt or divert the ordinary course of criminal provisions. This is what precisely was the dictum of Younas Siddiqui Versus the State (2001 P.Cr.L.J 1331).
It was also held in the case of 2003 P.Cr.L.J 192 that before proceeding with the quashment of the case the conclusion has to be arrived at that the impugned proceedings if continue would defeat the ends of justice and result in perversion of the administration of justice and harassment to an innocent party.
It also cannot be disputed that the power under Article 199 of the constitutional jurisdiction can be used for quashment of the proceeding only in exceptional cases where the proceedings are likely to cause unnecessary harassment. Such provisions are however, not to be resorted to if a prima facie case is made out against the person.
In the case of Ch. Pervez Ilahi Versus Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others (1995 MLD 615) the relevant issue was dilated upon and it laid down the broad basis and grounds on which a criminal case could be quashed by the High Court in exercise of its constitutional jurisdiction. The precise inference drawn in the case was that the cancellation could be directed when the case was of no evidence; when the very registration of the case was proved to be mala fide on the face of the record; when the case was of purely civil nature; when there was serious jurisdictional defect; and when there was unexceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.
It was also authoritatively laid down in the case of Haji Sardar Khalid Saleem Versus Muhammad Ashraf (2006 SCMR 1192) that if prima facie an offence has been committed the ordinary course of trial before the Court should not be allowed to be deflected by resorting to the constitutional jurisdiction of the High Court. The procedure as provided by law is not to be deviated while exercising the equitable jurisdiction, which may not be in consonance with the law. It is especially so because an alternate remedy to raise objection at the time of framing the charge by the trial Court or thereafter during the trial can be availed of by the accused.
On the touchstone of the above judgments, the impugned order does not call for interference for its quashment/cancellation in exercise of the constitutional jurisdiction of this Court. Accordingly the petition is not sustainable in law. The same is, therefore, dismissed.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 209
Present: Syed Hamid Ali Shah, J.
MUHAMMAD SAJJAD BHATTI, TOWN NAZIM,FAISALABAD--Petitioner
versus
SECRETARY TO GOVT. OF THE PUNJAB LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT CIVIL SECRETARIAT, LAHORE and 3 others--Respondents
W.P. No. 10033 of 2008, heard on 17.9.2008.
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----Ss. 156(6), 48 & 68--Officiating Nazim--No confidence motion--Officiating Nazim can neither be removed nor there is any provision for the elections of officiating Nazim in his place--Subsequent elections of officiating Nazim and recall of officiating Nazim, is in conflict with the law and has thus no sanctity, resolutions wherein respondents elected as officiating Nazim offend the provision of law and are not sustainable--Appointment of officiating nazim is temporary arrangement--Oath for such office is not provided in the Statute--Government can issue a notification u/S. 159 (2) of Ordinance, 2001--In case such notification is not issued would not in validate the office--Petition allowed. [Pp. 212 & 213] A, B & C
Ch. Muhammad Azeem Sarwar & Muhammad Boota, Advocates for Petitioner.
Mr. Waqar A. Sh., Advocate for Respondent No. 2.
Mr. Tallat Farooq Sh., Advocate for Respondent No. 4.
Mr. Tahir Munir Malik, Addl. A.G.
Date of hearing: 17.9.2008.
Judgment
Town Council, Lyallpur Town, Faisalabad on vacation of the office of it's Town Nazim, had elected three officiating Nazims. Firstly, the petitioner was elected as officiating Nazim on 7.12.2007 when the House chose him unopposed. Secondly, the House in it's meeting dated 5.5.2008 chose Respondent No. 4 as officiating Nazim and while doing so, they levelled certain allegation against the petitioner (existing officiating Nazim) at the relevant time and carried "No Confidence Motion" against him. Lastly, Respondent No. 2 was elected by the house on 1.7.2008 as officiating Town Nazim through a resolution. Resultantly, Government of Punjab through Secretary LG & RD, issued a notification in this regard on 8.8.2008.
The petitioner filed W.P.No. 10033/2008 and challenged resolution dated 1.7.2008 and the notification dated 8.8.2008, whereby Respondent No. 2 was notified as officiating Nazim. Respondent No. 4, has invoked extra ordinary constitutional jurisdiction of this Court, vide W.P. No. 6875/2008 challenging therein the resolution of the Town Council dated 5.5.2008, wherein the petitioner was elected as officiating Nazim. The petitioner filed another W.P. No. 8121/2008 and challenged the direction issued by the respondent vide letter dated 30.6.2008, whereby Local Government declined to take any action due to pendency of W.P. No. 6875/2008. These petitions involve common questions of law and fact, therefore, the same are being disposed of through this common judgment.
Learned counsel for the petitioner has contended that the petitioner has been elected as officiating Town Nazim and he has to continue till such time, new Nazim as envisaged in Section 68 of Ordinance, 2001 is elected. He has submitted that resolutions dated 5.5.2008 and 1.7.2008 are illegal and offend the provisions of Section 156(6) of Ordinance, 2001. Learned counsel went on to argue that Chief Executive of the Province has suspended resolution dated 7.12.2007, without any lawful justification and impugned act of respondents is mala fide and outcome of political rivalry. It was contended that respondent filed parawise comments and reply in W.P. No. 6875/2008, wherein the reply to Para No. 6 of the petition, the respondents admitted that an officiating Nazim, once elected cannot be replaced, as law has not provided any procedure in this regard.
Learned counsel for Respondent No. 2 (Mr. Waqar Ahmad Sheikh, Advocate) has submitted that the petitioner has not been notified as officiating Town Nazim by Government of Punjab, under Section 159 and he assumed the charge on the basis of notification of Naib-Nazim, who is not competent to issue such notification. The foundation on which the petitioner has raised structure has no legal basis. The whole structure, having no valid basis is required under law, to fall to the ground. Learned counsel emphasized that Respondent No. 2 has validly been notified by the department as officiating Town Nazim, thus, it is Respondent No. 2 who can act and perform his duties as officiating Nazim. Learned counsel in this regard has referred to letter whereby Section Officer of Local Government and Community Development Department, Government of Punjab, Lahore has addressed communication to District Co-ordination Officer, Faisalabad that the petitioner as well as Respondent No. 4 have not been notified as Town Nazim. The claim of the petitioner and also of Respondent No. 4 that they are validly elected officiating Nazim, is of no value. Learned counsel went on to argue that the petitioner has assumed charge on the direction of Naib-Nazim and submitted that there is no provision of law which authorizes Naib-Nazim to issue such direction. Learned counsel has submitted that instant petition is not maintainable. Mr. Tallat Farooq Sheikh, learned counsel for Respondent No. 4 who is also the petitioner in W.P. No. 6875/2008, has submitted that instant writ petition involves factual controversy and as such is not competent. He has submitted that impugned resolution can only be set aside by the Chief Executive of the Province and alternate remedy available to the petitioner is to invoke provisions of Section 70(B) of Ordinance, 2001. He went on to argue that the petitioner has signed and issued, bills to the tune of Rs. 1,72,00,000/- in one night. He has misused the official vehicles and the car which was being misused was repossessed from him. Learned counsel in this regard referred to letter dated 16.6.2008. The petitioner was involved in corruption in the grant of contract for tube lights (street lights). Learned counsel has submitted that Respondent No. 4/petitioner in W.P. No. 6875/2008 was appointed vide resolution dated 7.12.2007 to act as officiating Town Nazim. Resolution dated 7.12.2007 has not been assailed and 40 out of 49 councilors, reposed confidence in Respondent No. 4 as officiating Town Nazim. He has pressed his petition for implementation of Resolution dated 5.5.2008.
Learned Law Officer has submitted that officiating Town Nazim once appointed cannot be removed as there is no provision of law whereby an officiating Nazim can be ousted from his office. He has placed reliance on an unreported judgment of this Court, passed in W.P. No. 8330/2008.
Heard learned counsel for the parties and record perused.
Town Council Lyallpur Town, Faisalabad appointed/elected the petitioner as officiating Town Nazim vide resolution dated 7.12.2007. This was a unanimous resolution. The Town Council thereafter elected Respondent No. 4 (petitioner in W.P. No. 6875/2008) as officiating Town Nazim through resolution dated 5.5.2008. Town Council passed another Resolution on 1.7.2008 and appointed Respondent No. 2 as officiating Town Nazim who subsequently assumed the charge on 8.8.2008. There are three resolutions in the field whereby three different persons have been elected as officiating Town Nazim at different points in time.
Section 68 provides that when the office of Town Nazim falls vacant, officiating Town Nazim is elected till a new Nazim is elected, under Section 156(5) of Ordinance, 2001. Section 156(5) of the Ordinance provides for filling of the vacancy of Town Nazim through By-election, within 120 days of the occurrence of the vacancy in terms of Section 148. In the case in hand period of 120 days, lapsed in the month of March, 2008 and despite the lapse of six months, thereafter, no date of election has been announced by the Election Commission of Pakistan. The authority for Local Government Elections within the contemplation of Section 150 is the Chief Election Commissioner, who has to issue notification u/S. 164 of Ordinance, 2001. The election of officiating Nazim, as against the election of Nazim, is conducted u/S. 156(6) read with Sections 48 and 68 of the Ordinance. The election is not conducted by Chief Election Commissioner, nor the electoral college elects the officiating Nazim. It is a stopgap arrangement, where an additional charge is entrusted to one of the member of the Council for a specified period. Such member retains his membership besides his office as officiating Nazim. The only condition imposed upon such person is that he is debarred from taking part in the election of office of Nazim. Election of Nazim and Naib-Nazim is conducted by the Election Commission of Pakistan, while election for officiating Nazim, such power vests with the Council. Conduct of election, terms of office, electoral college and procedure for election of Nazim and officiating Nazim is altogether different. The officiating Nazim cannot be equated with Nazim.
The term Nazim and Naib-Nazim is defined in Section 2(XXIV) and (XXIII) respectively, in Ordinance, 2001. The term "officiating Nazim" has not been defined by the Ordinance itself. There is no provision in Ordinance, 2001 whereby a procedure for removal or recall of the officiating Nazim is provided. Non-mention of any procedure for the removal of the officiating Nazim, is not an accidental slip but is wilful omission. A recall motion against an elected Nazim or Naib-Nazim, cannot be initiated or set to motion within first six months of the assumption of the charge of such office. An officiating Nazim assumes his office for the period till new Nazim is elected. Election of Nazim is required under the law, to be elected within 120 days, of the occurrence of the vacancy. Officiating Nazim has to leave the office, before lapse of six months' time, thus, the legislature has intentionally not provided any procedure for the removal of the officiating Nazim. Provisions of law under Ordinance, 2001 relating to the Nazim, cannot be applied to officiating Nazim. There is no reason to import, by implication, a provision of law which otherwise does not exist in a statute. The concept of removal of Nazim through a recall motion or otherwise, is alien to the provisions of Ordinance, 2001. So the officiating Nazim can neither be removed, nor there is any provision for the election of another officiating Nazim, in his place. Subsequent elections of officiating Nazim and recall of officiating Nazim, is in conflict with the law and has thus no sanctity. Resolutions dated 5.5.2008 and 1.7.2008, wherein Respondents No. 2 & 4 have been elected as officiating Nazim offend the provisions of law and are, therefore, not sustainable. The impugned resolutions are declared to be illegal and are thus set aside by allowing this petition.
Adverting to assumption of office of officiating Nazim without oath. The arguments of learned counsel for Respondent No. 2 (Mr. Waqar A. Sheikh, Advocate) are not convincing that the petitioner has not taken oath of office under a notification by the Government. An officiating Nazim is already under an oath as a member and on being elected officiating Nazim does not loose his membership, therefore, he is not to take new oath. Elected Nazim or Naib-Nazim are required to take oath u/S. 160(1) of Ordinance, 2001. Similarly, Section 159(2) provides that Government shall notify the assumption of office of Nazim or Naib-Nazim. The word officiating Nazim is missing from these provisions of law. The appointment of officiating Nazim is temporary arrangement and oath for such office, does seem to be the intention of legislature and that is why, it is not provided in the statute, the way Naib-Nazim does not take oath, during temporary absence of Nazim. Naib-Nazim exercises the powers of Nazim without requirement of the Notification or an Oath. The Government in order to avoid any confusion regarding, signing of cheques, bills etc. as an abundant caution, can issue a notification under Section 159(2) and notify the assumption of office by officiating Nazim but in case such notification is not issued, would not invalidate the office of officiating Nazim.
For the foregoing, this petition and W.P. No. 8121/2008 are allowed, the petitioner is declared to be officiating Town Nazim, Lyallpur Town and resolutions dated 5.5.2008 and 1.7.2008 are declared having been passed without any lawful authority and of no legal effect. W.P.No. 6875/2008 having no merit is accordingly dismissed. Chief Election Commissioner is directed to announce a date for holding of election, within one month from today, so that Town Council be represented through an elected Nazim.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 214
[Multan Bench Multan]
Present: Muhammad Khalid Alvi, J.
RANA HAMID KHAN and others--Petitioners
versus
MEMBER (JUDICIAL-IV) BOARD OF REVENUE PUNJAB LAHORE and others--Respondents
W.P. No. 6705 of 2005, heard on 20.6.2008.
Evacuee Property and Displaced Persons (Repeal) Act, 1975—
----Ss. 2(2) & (3)--Allotment was challenged--Petitioners were found to be entitled to allotment--Provisions of law--Notified officer in proceedings pending at the time of repeal or remanded to him by any higher forum--High Court and Supreme Court was required to decide the matters in terms of the Repealed Acts and Regulations--Such notified officer was to go by law which stood repealed--If a claimant allottee was in litigation with another claimant/allottee prior to the repeal of the Acts and it continued thereafter then it would be deemed to be a pending proceeding required to be decided by the notified officer in accordance with the Repealed Acts--There could be claimant, who was having certain numbers of PIUs duly verified, therefore, was allotted certain lands against some of those units but at the time of repeal certain claims of verified units remained unsatisfied but his matter was not pending before any authority, such a claimant can only be paid cash compensation and further allotment of land by notified officer was not permissible--Land in question stood allotted to predecessor-in-interest of the respondents in the year 1963--It came out of the pool of settlement department and became subject matter of litigation between the petitioners and the respondents it was a pending proceedings in which question of unadjusted PIUs has become irrelevant--Petition allowed.
[Pp. 216 & 218] A, B & C
PLD 1979 SC 846, fol.
Ch. Muhammad Hussain Jahania, Advocate for Petitioners.
Ch. Abdul Ghani, Advocate and Syed Mohtasham-ul-Haq Pirzada, Advocate for Respondents.
Date of hearing: 20.6.2008.
Judgment
Brief facts of the case are that land in dispute was got allotted by one Abdul Bari predecessor-in-interest of the private respondents in the year 1963. This allotment was challenged by Rana Nazir Ahmad predecessor-in-interest of the present petitioners. Parties remained in litigation for decades even upto the level of Hon'ble Supreme Court and ultimately petitioners were found to be entitled to allotment. Ultimately vide order dated 15.4.1985 passed by the AC/Collector with the powers of Deputy Settlement Commissioner, Sahiwal it was held that the land falling in Square No. 12, Khasra No. 124, 5/1, 5/2 and 6 to 20 measuring 160 kanals is available for allotment and the petitioner being entitled, should be transferred to them. This order is still intact and has not been set aside by any authority.
Petitioners are aggrieved of order dated 12.9.2005 passed by Member Judicial-IV, Board of Revenue and an Office Order dated 3.9.2004 issued by the Chief Settlement Commissioner. According to the said two orders the petitioners have been deprived of their allotment of land but have only been held to be entitled to get compensation @ Rs. 750/- per PIU.
It is contended by the learned counsel for the petitioners that Office Order dated 3.9.2004 has been issued on the basis of two judgments of the Hon'ble Supreme Court reported as PLD 2003 SC 603 and 1997 SCMR 1635. According to him both these judgments are not applicable in the facts and circumstances of the case. It is next submitted that under sub-section (3) of Section 2 of the Evacuee Property & Displaced Persons (Repeal) Act, 1975, the Notified Officers were required to decide the matter in terms of the repealed Acts and Regulations. Under the Repealed Act and the Regulations it was not the compensation but the land was to be allotted if the land was available for allotment. In the instant case the land has become available, therefore, question of compensation simply did not arise. He has also relied upon a judgment of my learned brother Sayed Zahid Hussain, J., The Hon'ble Chief Justice dated 18.5.2005 in Writ Petition No. 27-R of 2005 to contend that statutory provisions of law cannot be subverted by an Office Order.
On the other hand, learned counsel for the private respondents contends that although his client has lost any right to the property in dispute upto the level of the Hon'ble Supreme Court, however, the petitioners are also not entitled to allotment, as the laws stood repealed in the year 1974, therefore, any allotment if made after the repeal of Acts & Regulations would be a nullity in the eye of law.
Learned counsel representing the Settlement Department, however, maintains that the impugned order is not a person specific order. It is applicable to all and many matters are pending before various forums even before the Hon'ble Supreme Court with regard to entitlement of allotment of land or encashment.
I have considered the arguments of the learned counsel for the parties.
Sub-sections (2) & (3) of Section 2 of the Evacuee Property & Displaced Persons (Repeal) Act, 1975 is reproduced as follows:
(2) "Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of sub-Section (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate."
According to this provision of law the Notified Officer in proceedings pending at the time of repeal and transferred to him or remanded to him by any higher forum including High Court and Hon'ble Supreme Court was required to decide the matters in terms of the Repealed Acts & Regulations, the only course open to such a Notified Officer was to go by law which stood repealed. If a claimant/allottee was in litigation with another claimant/allottee prior to the repeal of the Acts and it continued thereafter then it would be deemed to be a pending proceeding required to be decided by the Notified Officer in accordance with the repealed Acts. Word "proceedings" was thoroughly and in depth detailed by their lordships in the Hon'ble Supreme Court while dealing case reported as PLD 1979 SC 846 in Para 12 as follows:--
"At this place we would like to observe that connotation of word "proceedings" is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of Section 2 leave no room for doubt, that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are "all proceedings" it is not justified to diminish the totality of those proceedings by introducing jurisprudential concepts, for example of judicial proceedings quasi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings, and proceedings before a Court etc. The focus should remain on the words deployed in the statute and sot long as the proceedings are under the Act repealed; before the competent authorities; and are of the kind and for the purpose indicated in that Act, for the enforcement of rights mentioned therein on the applicants concerned, they are the proceedings which are saved so as to continue under the relevant law repealed. The provision made is of the kind which is contained in Section 6 of the General Clauses Act X of 1897 where it has never been doubted that legal proceedings for enforcement of substantive rights are such proceedings which can continue after the repeal of the enactment under which they were initiated and pending at the relevant time."
The question has been finally resolved up to the level of Apex Court that respondents were not entitled to land in dispute as against the petitioners who were held entitled to the said land, therefore, no option is left with the respondent authorities to refuse allotment and handover possession of the disputed property to them. Offer of cash compensation is in clear violation of sub-section (3) of Section 2 of the Repealing Act.
"Pending proceedings" used in Section 2(2) of the Act covers the pending cases and not the unadjusted Produce Index Units of verified claims for which a specific mechanism in the shape of compensation was devised before promulgation of the Act."
In the instant case petitioners had a right of allotment against their claim for the land left by them in India but was wrongly got allotted by the predecessor-in-interest of the private respondents for which the petitioners' predecessor-in-interest and now the petitioners remained in litigation for no fault on their part. So far as question of their right is concerned now stands finally settled up to the level of Apex Court of the Country. Now, therefore, at this stage, when their right had matured, it would be unfair that they should be deprived of their right of allotment of land and merely compensated through nominal compensation. It is a case which can be confidently said to be pending case/proceeding at the time of Repealing Act.
Classification of two categories declared by the Hon'ble Supreme Court in above quoted para can be looked into from yet another angle. There could be a claimant, who was having certain numbers of PIUs duly verified, therefore, was allotted certain lands against some of those units but at the time of repeal certain claims of verified units remained unsatisfied but his matter was not pending before any authority, such a claimant can only be paid cash compensation and further allotment of land by Notified Officer was not permissible.
There is yet another angle to look into this matter. Undisputedly, the land in question stood allotted to the predecessor-in-interest of the respondents in the year 1963 rightly or wrongly but it certainly came out of the pool of Settlement Department and became subject-matter of litigation between the petitioners and the respondents, therefore, there is no room of doubt left that it was a pending proceeding in which question of unadjusted PIUs has become irrelevant.
The other judgment (1997 SCMR 1635) primarily deals with the urban agricultural lands which through a notification were declared to be building sites, therefore, were not available for allotment. Conclusions drawn by their lordships are reflected in Paras 23 & 24 of the judgment. The relevant extracts from the said Paras are reproduced respectively :--
"Therefore, we find no difficulty in observing that when repealing Act was promulgated there did not exist any agricultural urban land, which could be adjusted against unsatisfied verified claims of produce index units. The claimants with unsatisfied entitlement could resort to any other remedy if available under the law, but were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure of otherwise."
"We are inclined to hold that on the promulgation of the "Notification", dated 16th May, 1973 (supra) no agricultural urban land existed or was available for disposal. Moreover the date when the repealing Act became operative there was no land available for adjustment against produce index units. Mere fact that in some matters regarding adjustment of specified land were under consideration or had not been carried out would not bring the grievance within the purview of Section 2(2) of Act XIV of 1975. Therefore, Notified Officer had no jurisdiction to allot, or transfer the land or grant alternate lands against unadjusted verified units."
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 219
Present: Khurshid Anwar Bhinder, J.
RASOOLAN BIBI--Petitioner
versus
A.S.J.--Respondent
W.P. No. 14672 of 2008, decided on 28.10.2008.
Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006--
----S. 9(7)--Criminal Procedure Code, (V of 1898), Ss. 22A & 22B--Constitution of Pakistan, 1973, Art. 199--Deletion or insertion of any offence--Powers and jurisdiction of prosecutor--Prosecutor has powers to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case, as such, the deletion or insertion of any offence falls within the exclusive domain of the prosecutor--Question whether the prosecutor has rightly deleted Section 324, PPC will be seen by trial Court at the time of framing the charge--Such an order cannot be assailed under the provisions of Sections 22A and 22B, Cr.P.C. or the constitutional jurisdiction--Constitutional petition dismissed. [P. 221] A
Mr. Khalid Nawaz Ghuman, Advocate for Petitioner.
Date of hearing: 28.10.2008.
Order
Through the present constitutional petition, Rasoolan Bibi, petitioner has called in question order dated 8.10.2008 passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Daska dismissing the petition under Section 22-A and 22-B, filed against the order dated 22.9.2008 passed by the District Public Prosecutor, Sialkot deleting Section 324 PPC in case FIR No. 78 dated 9.3.2008, registered under Sections 324/354/337-A(i)/337-F(i)/337-L(ii)/34 PPC at Police Station Saddar Daska, District Sialkot.
Briefly the facts leading to the filing of this constitutional petition are that husband of the petitioner, namely, Ghulam Rasool got the aforesaid case registered against Respondents No. 5 to 7 with the allegations that they alongwith their accomplices attacked the petitioner and her family when she and her family members were coming back from their dera. After investigation, the challan in the aforesaid case was submitted in the prosecution branch wherein the District Public Prosecutor vide order/letter dated 22.9.2008 deleted Section 324 PPC and directed the S.H.O. Police Station Saddar Daska to submit supplementary challan in the trial Court through the concerned prosecutor. The petitioner challenged the aforesaid order before the learned Additional Sessions Judge/Ex-Offico Justice of Peace Daska who vide his order dated 8.10.2008, dismissed the same, hence the present constitutional petition.
Learned counsel for the petitioner submits that there is no provision in law under which Respondent No. 4 can issue the direction or order for the deletion of any provision of law from the FIR and the learned Additional Sessions Judge has erroneously dismissed her application.
I have heard the learned counsel for the petitioner and have also perused the available record. Section 9 sub-section (7) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 being relevant is reproduced below:--
"9. Conduct of prosecution.--(1) the Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
(2) ...........................
(3) ...........................
(4) ...........................
(5) ...........................
(6) ...........................
(7) A Prosecutor may submit to the Court results of his scrutiny in writing as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case."
From the afore-quoted provision of law it is crystal clear that the prosecutor has the powers to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case, as such, the deletion or insertion of any offence falls within the exclusive domain of the Prosecutor. The question whether the Prosecutor has rightly deleted Section 324 PPC will be seen by the learned trial Court at the time of framing the charge but the petitioner cannot assail such an order under the provisions of Section 22-A and 22-B Cr.P.C. or the constitutional jurisdiction of this Court as it amounts to interfering with the process of investigation which is not the mandate of law and the pronouncements of the superior Courts. The learned Additional Sessions Judge/Ex-Officio Justice of Peace has rightly dismissed the application of the petitioner. However, the petitioner can agitate her grievance, raised by her in this constitutional petition, before the learned trial Court at the time of framing of the charge as per the law laid down in the case of Ali Ahmad v. The State and another (2001 MLD 1125 (Lahore).
(M.A.K.Z.) Petition dismissed.
PLJ 2009 Lahore 221
Present: Ali Akbar Qureshi, J.
MUHAMMAD RAFIQUE--Petitioner
versus
Mst. MUMTAZ AKHTAR alias ALLAH RAKHI & 2 others--Respondents
C.R. No. 286 of 2008, decided on 28.5.2008.
Legitimacy of Child--
----Accusations enumerated in the suit--Determination--Petitioner instituted the suit but after demise of deceased and at the time when respondents got recorded legacy of late father in their name--Held: Deceased in his life time never ever challenged the paternity of respondents nor disowned them in any manner wahtsoever, rather compromised with his ex-wife with regard to maintenance and custody of the children before Judge Family Court--Children were also born during subsistence of marriage between respondent and deceased who divorced her on 20.9.1990, whereas, the last child was born on 16.5.1990. [P. 224] A
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Majmooa-e-Qawaneen-e-Islam, edited by Dr. Tazel-ur-Rehman--Civil revision--Suit for declaration & permanent injunction--Dismissal of--Appeal was also dismissed--Assailed--Determination of legitimacy of child--Paternity of a child born out of lawful wedlock invariably carries presumption of truth in its favour and mere simple denial can hardly take away status of legitimacy--According to Muhammadan Law "child follows the bed"--Every presumption is made in favor of legitimacy of child, is presumed to be an issue of his parents without acknowledgement or affirmation of parentage on part of father, child follows bed (Firash)--Children/respondents were born after divorce, nor any evidence exits on record that mother/respondent had been living in adultary--Apparently, children were being disowned and harassed by petitioner who unfortunately happens to be their real paternal uncle with an object and intention to deprive them of their legitimacy and legacy from their father--Revision dismissed. [Pp. 224 & 225] B & D
PLD 1975 SC 624, 1987 CLC 2073, PLD 1988 SC 8, PLD 1991 SC 275, PLD 1992 CLC 1180, 1993 CLC 109, PLD 1993 Lahore 575 and 2000 CLC 1605, rel.
Majmooa-e-Qawaneen-e-Islam edited by Dr. Tanzel ur Rehman--
----To prove parentage of a child--Evidence of woman would be sufficient to prove parentage of a child. [Pp. 224 & 225] C
PLD 1975 SC 624 fol. 1987 CLC 2073 & PLD 1993 Lah. 575 rel.
Concurrent finding--
----Concurrent finding of fact by Courts below could not be disturbed by High Court either in second appeal or in revisional jurisdiction, unless Courts below while recording finding of fact either misread evidence or ignored any material piece of evidence on record or that same was perversed--Courts below assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Court below acted with material irregularity affecting its jurisdiction. [P. 227] E
PLD 1994 SC 291, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Power of High Court--Re-examination and re-appraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous--Revisional power of High Court was exercised for correcting an error committed by subordinate Court--Mere erroneous decision would not call for interference, unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice. [P. 227] F
PLJ 2006 SC 230.
Mian Saeed-ud-Din Ahmed, Advocate for Petitioner.
Date of hearing: 28.5.2008.
Order
This order shall dispose of Civil Revision No. 286 of 2008 filed by petitioner Muhammad Rafiq to assail the legality of judgment & decree dated 7.11.2007 whereby learned Additional District Judge Faisalabad dismissed petitioner's appeal against the judgment & decree dated 1.2.2006 of the learned Civil Judge Faisalabad through which suit filed by the petitioner against defendants/respondents was dismissed.
Muhammad Rafiq, petitioner instituted a suit against respondents/defendants seeking declaration & permanent injunction reiterating that on 19.11.1982 his real brother namely Sadiq Ali (now deceased) was married to Mst. Mumtaz Akhtar alias Allah Rakhi, Respondent No. 1, and after one month of the marriage, Sadiq Ali went to Libya and purportedly twice visited Pakistan, firstly in November/December 1984 and secondly in June 1990. Out of the said wedlock two children namely Respondents 2 and 3 were born on 24.1.1988 and 16.5.1990 respectively. It was asserted that Sadiq Ali never met his wife prior to the birth of Respondents 2 and 3 and divorced Respondent No. 1 on 22.9.1990 due to her bad character and that Respondents 2 and 3 remained in the custody of Respondent No. 1. Eventually, Sadiq Ali expired on 21.7.2003 and subsequently Respondent No. 1 got mutated his land in the name of Respondents 2 and 3, purportedly the illegitimate children of Sadiq Ali deceased, which she was not entitled to do so.
Respondents contested and resisted the suit controverting the averments and accusations enumerated in the suit by the petitioner. It was categorically asserted that Respondents 2 and 3 were the legitimate children of Sadiq Ali deceased who time & again visited Pakistan. Learned trial Court framed as many as four issues, recorded evidence of the parties thereon and consequently dismissed the suit. Being aggrieved, petitioner filed an appeal but it too met with the same fate and dismissed by means of judgment & decree impugned herein.
Learned counsel for the petitioner contends that judgments & decrees of both the Courts below are totally against the facts on record on the sole ground that petitioner's deceased brother namely Sadiq Ali went to Libya one month after his marriage with Respondent No. 1, and came back to Pakistan firstly in December 1984 and secondly in. June 1990, whereas, both the children (Respondents 2 and 3) were born on 24.1.1988 and 16.5.1990 respectively, hence, were not the legitimate children and not entitled to inherit anything from the legacy of Sadiq Ali deceased. Adds that both the Courts below did not appreciate the evidence produced by the petitioner, particularly documentary evidence with reference to the visitation of deceased Sadiq Ali from Libya to Pakistan. In this context, learned counsel refers to copy of the passport of Sadiq Ali to state that he visited Pakistan only twice on the dates mentioned above. It was next contended that respondents had filed a suit for maintenance in the year 1990 before the Family Court at Chichawatni, wherein, deceased Sadiq Ali had filed his written statement and though did not deny the parentage of Respondents 2 and 3 but specifically disowned paternity of Respondent No. 2 and that the suit was disposed of in consequence of a compromise to the effect that deceased will not claim the custody of Respondents 2 and 3 and in return respondent will not press her claim for maintenance against him, so apparently, deceased Sadiq Ali disowned his paternity at least to the extent of Respondent No. 2. In these circumstances, it was maintained that mutation of inheritance got recorded in favour of respondents by the revenue functionaries be invalidated.
I have heard the learned counsel for the petitioner and gone through the facts of the case and judgments/decrees of both the Courts below. It goes without saying that petitioner instituted the suit but after the demise of Sadiq Ali deceased and at the time when respondents got recorded legacy of their late father in their name. It may be noticed that Sadiq Ali deceased in his life time never ever challenged the paternity of Respondents 2 and 3 nor disowned them in any manner whatsoever, rather compromised with his ex wife Respondent No. 1 with regard to maintenance and custody of the children before Judge Family Court at Chichawatni. Unquestionably, children were also born during subsistence of marriage between Respondent No. 1 and deceased Sadiq Ali who divorced her On 20.9.1990, whereas, the last child was born on 16.5.1990.
The plea as raised by the petitioner with reference to determination of legitimacy of the child entails far-reaching impact. Paternity of a child born out of the lawful wedlock invariably carries presumption of truth in its favor and mere simple denial can hardly take away the status of legitimacy. According to Mohammadan Law "child follows the bed". Every presumption is made in favor of legitimacy of the child, is presumed to be an issue of his parents without acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Firash).
According to Sections 146 of 149 of Majmooa-e-Qawaneen-e-Islam edited by Dr. Tanzeel ur Rehman, evidence of woman would be sufficient to prove parentage of a child. To elaborate this view, I am fortified by the case reported as Mst. Hamida Begum Vs Mst. Murad Begum and others (PLD 1975 SC 624) wherein, it was held that to establish the legitimacy of the child, evidence of the mother and the child is sufficient, and the superior Courts invariably leaned in favor of the legitimacy of the child in absence of any cogent and credible evidence to the contrary. Reliance can also be placed on Nazir Fatima Vs Ghulam Fatima and others (1987 CLC 2073), Bashir Ahmed Vs Ilam Din and others (PLD 1988 SC 8), Rehmat Khan and 3 others Vs Rehmat Khan and another (PLD 1991 SC 275) Muhammad Tallat Vs Mst. Yasmin Zohra and another (PLD 1992 CLC 1180) Manzoor ul Haq and 3 others Vs Mst. Kaneez Begum (1993 CLC 109), Muhammad Hussain alias Muhammad Yar Vs Sardar Khan and 11 others (PLD 1993 Lahore 575) and Muhammad Pervez Vs Additional District Judge and others (2000 CLC 1605).
There is hardly any tangible evidence or proof whatsoever to affirm that Respondents 2 and 3 were born after divorce, nor any evidence exits on record that Respondent No. 1 had been living in adultery. Apparently, children are being disowned and harassed by the petitioner who unfortunately happens to be their real paternal uncle with an object and intention to deprive them of their legitimacy and legacy from their father Sadiq Ali. Had the deceased not owned landed property, respondents might not have been landed in trouble. Petitioner is callously stigmatizing Respondents 2 and 3 who by now are grown up children without realizing the consequences as to how both of them would move around in the society. This Court is mindful of the fact that a perpetual custom and tradition prevails in our society that on the demise of brothers, their children and particularly female, are protected and safeguarded jealously by the rest of the brother (s) of deceased by taking upon themselves the role of their natural guardian in place of their deceased father, and their love and affection lasts for the rest of their lives. But role of the petitioner in the instant case is totally unbecoming of a responsible and conscientious person so as to grab a small piece of land measuring a few kanals by dragging and harassing his own kith and kin for scandalous & wild accusations.
But quite interestingly rather consistently petitioner has been pleading Respondents 2 and 3 by adding the name of Sadiq Ali as their father right from the trial Court upto this Court in the relevant memo of parties. More over, it is evident from the record that petitioner before the attestation of mutation in favour of Respondents 2 and 3 did not object to their parentage and paternity, and even at this stage, it is being reiterated that if the respondents relinquish their right of inheritance, petitioner is ready to accept and acknowledge them as the legitimate children of his late brother Sadiq Ali. `
In any case, scrutiny & analysis of petitioner's version is found to be in direct conflict with the principles of Fiqa, inasmuch as, according to Sunni school of thought, a child born after six months of the marriage or within two years of dissolution thereof, would be presumed to be a legitimate child of his father. Reliance in this context can be placed on the case of Mst. Hamida Begum Vs Mst. Murad Begum and others (PLD 1975 SC 624), Mst. Ghulam Fatima Vs Mst. Inayet Bibi and 4 others (1987 MLD 172) and Muhammad Hussain Vs Abdur Rehman and others (PLD 1995 Peshawar 124). On this particular issue, Verse No. 15 Surrah-Ahqaf (Part XXVI) provided the period of carrying child and his weaning is 30 months. The verse of the Holy Quran is quoted as under:
A reference from Majmoo-e-Qwaneen-e-Islam edited by Dr. Tanzeel ur Rehman is quoted for ready reference, wherein the following Hadith has been narrated at Page 870:
In the above quoted case of Mst. Hamida Begum ibid, the Apex Court observed that according to Hanfi school of thought, a child born in wedlock is of his parents even if the husband has no access to the wife. In any case, it is obligatory upon the husband who repudiates the child so born can only have resort the procedure of Liyan, by swearing before Qazi that child is illegitimate and result of adultery, and in that eventuality, the Court will pass two fold decree by dissolving the marriage and declaring the child as illegitimate. Such type of husband has to disown the child immediately on the birth of child or on, having the knowledge thereof, and very strong and unimpeachable evidence is required to substantiate the factum of illegitimacy by proving that child was born after the lapse of three consecutive periods of "tohar" following the death or divorce by husband, as the Idat comprises of three periods of "tohar".
There is not an iota of evidence on record to substantiate the accusation as to the illegitimacy of Respondents 2 and 3, and that admittedly petitioner did not have recourse to the Court of competent jurisdiction for Liyan, thus Respondents 2 and 3 having born out the wedlock between Sadiq Ali and Respondent No. 1 would inevitably be deemed to be legitimate children, and as such lawfully entitled to the legacy and inheritance of their late father.
This Court is further fortified by judgment delivered by the Apex Court in the case reported as PLD 1994 SC 291 (Haji Muhammad Din Vs Malik Muhammad Abdullah), laying down that concurrent finding of fact of the Courts below could not be disturbed by the High Court either in second appeal or in revisional jurisdiction, unless the Courts below while recording finding of fact either misread the evidence or ignored any material piece of evidence on record or that the same was perverse, and on the ground that Courts below assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that the Court below acted with material irregularity affecting its jurisdiction.
Similar view was expressed in the case reported as 2001 SCMR 798 (Abdul Qayyum through legal heirs Vs Mushk-e-Alam and another), that where appraisal of evidence undertaken by the lower Court was perfectly in accordance with the principles settled by the superior Courts in civil cases, and the same did not suffer from any legal infirmity, it could not be interfered by the High Court under Section 115 CPC by taking different view of evidence and raising inferences of its own.
In yet another recent pronouncement by the Apex Court in the case reported as PLJ 2006 SC 230 Abdul Mateen and others vs Mst. Mustakhia) it was held that re-examination and re-appraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous and that revisional power of the High Court was exercised for correcting an error committed by subordinate Courts, and mere erroneous decision would not call for interference, unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice.
The upshot of the foregoing resume of facts and reasons leads to the one and the only irresistible conclusion that the captioned civil revision being palpably misconceived and devoid of any merits, stands dismissed with cost of Rs. 25,000/- which shall be paid by the petitioner to respondents forthwith.
(Sh.S.A.) Revision dismissed.
PLJ 2009 Lahore 228 (DB)
Present: Syed Hamid Ali Shah & Hafiz Tariq Nasim, JJ.
LAHORE DEVELOPMENT AUTHORITY through its Director General, Lahore and another--Appellants
versus
COMMISSIONER, LAHORE DIVISION LAHORE & another--Respondents
I.C.A. No. 707 of 2002 in W.P. No. 1771 of 2001, heard on 18.9.2008.
Law Reforms Ordinance, 1972 (XII of 1972)—
----S. 3(2)--Land Acquisition Act, (I of 1894), S. 54--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Right of appeal--Land was acquired carving out a Tatimma--Withdrawal of acquisition proceedings--Lack of jurisdiction--Intra-Court Appeal--Exercise of Constitutional jurisdiction--Maintainability of--Proviso--No appeal will be available or competent before Double Bench of High Court from an order made by a single judge of that Court in a constitutional petition, if such petition arises out of "any proceedings" in which law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against original order--Undisputeldy impugned proceedings were commenced under provisions of Land Acquisition Act, and in case an order is passed in such proceedings, a right of appeal is available to aggrieved party as per provisions of S. 54 of Land Acquisition Act, 1894--Appeal dismissed. [Pp. 230 & 231] A
PLD 1984 SC 344 & 1998 SCMR 167, rel.
Mian Muhammad Qamar-uz-Zaman, Advocate for Appellants.
Mr. Muhammad Yaqoob Sidhu, Advocate for Respondents.
Date of hearing: 18.9.2008.
Judgment
Hafiz Tariq Nasim, J.--The backdrop of this Intra Court Appeal is that the appellant LDA acquired land under the Punjab Acquisition of Land (Housing) Act, 1973 including Khasra No. 1088 situated in village Ajudhiapur, Tehsil Cantt. Lahore for the purpose of developing a housing scheme known as Muhammad Ali Johar Town. The initial notification was issued in the year 1980-81. Khasra No. 1088 was not mentioned in the initial notification. Deputy Commissioner issued a corrigendum to include this Khasra number, however, out of total area of this Khasra number the possession of only 2 kanals 3 marlas was taken over by LDA on 16/17.06.1981. No award of this Khasra number was issued.
Respondent No. 2 claimed that he was owner in possession of 1 kanal out of the above Khasra number which he purchased from Yaqoob Ali through registered Sale-Deed No. 8579 Behi No. 1, Volume No. 1788 dated 22.09.1993 and Mutation No. 6228 dated 30.07.1996 was sanctioned in his favour and on his request the Collector of District Lahore directed carving out a "Tatimma" in respect of the mutation in question vide order dated 31.05.1997, This was done and LDA's share was given Khasra No. 1088/2-min. Respondent No. 2 applied to the Commissioner for withdrawal of acquisition proceedings to the extent of his ownership viz. 1 kanal. The application was contested with particularity of lack of jurisdiction of the Commissioner, however, vide order dated 26.01.1999 the Commissioner accepted the application on the ground that the petitioner before him was in possession of his land as owner for the last 18 years and it would be unfair to oust him from the land in question, particularly when exclusion of this land was not affecting the housing scheme. In addition to this, the learned Commissioner held that under the provisions of Punjab Acquisition of Land Housing (Repeal) Act, 1985 read with Schedule to the Ordinance (XXXI of 1961). he had the jurisdiction. Aggrieved by this LDA filed a writ petition before this Court and the learned Judge in Chamber dismissed the same through judgment dated 18.07.2002 which caused a grievance to the appellant, who assailed the same in the present ICA.
Learned counsel for the appellant argued the case at length, however, the learned counsel for the respondent raised a preliminary objection in respect of maintainability of Intra Court Appeal. We are of the view that the objection of maintainability of ICA being the most important issue is to be resolved first.
Learned counsel for the respondent referred the law laid down by the apex Court reported as Mst. Karim Bibi and others vs. Hussain Bakhsh and another (PLD 1984 SC 344), Muhammad Aslam Sukhera and others vs. Collector, Land Acquisition and others (1998 SCMR 167) and Ch. Nazir Ahmad vs. Moulvi Masood-ur-Rehman Khan and 6 others (PLD 2008 Lahore 405). Learned counsel submits that the impugned proceedings in the process of acquisition were appealable and as such the judgment of the learned Single Judge cannot be challenged in ICA as per terms of Section 3(2) of Law Reforms Ordinance, 1972.
In order to appreciate the contentions of both the parties, it shall be advantageous to reproduce the law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Mst. Karim Bibi, which was followed by the Hon'ble Supreme Court in the case of Muhammad Aslam Sukhera.
Honourable Supreme Court in the case of Mst. Karim Bibi (supra) has observed:--
"A plain reading of the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance 1972 means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional petition, if such petition arises out of "any proceedings" in which the law applicable provided for at least one appeal against the original order. The reference is clearly to the proceedings taken under any statute which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statute including the enforcement of rights, if any, created thereunder. In such a case clearly the law envisages an original order against which the remedy of appeal was provided by the relevant statute."
The apex Court in this case of Muhammad Aslam Sukhera (supra), after quoting the provision of sub-section (2) of Section 3 of the Ordinance, has found that:--
A perusal of the above quoted sub-section indicates that an appeal is competent before a Bench of two or more Judges of the High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution not being an order made under sub-paragraph (i) of paragraph (b) of that clause.
It may further be noticed that the proviso to above sub-section (2) places an embargo to the right to file an appeal against an order passed under clause (1) of Article 199 of the Constitution if the proceedings under the latter provision arise out of any proceeding in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."
In the present controversy undisputedly the impugned proceedings were commenced under the provisions of Land Acquisition Act and in case an order is passed in such proceedings, a right of appeal is available to the aggrieved party as per provisions of Section 54 of the Land Acquisition Act, 1894.
When the ground reality is undisputed as discussed above, then we cannot proceed with the present Intra Court Appeal and thus following the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Mst. Karim Bibi and Muhammad Aslam Sukhera supra and keeping in view the rule of consistency, following the law laid down in Ch. Nazir Ahmed supra, we hold that this Intra Court Appeal is not competent. Accordingly, the same dismissed with no order as to costs.
(Sh.S.A.) Appeal dismissed.
PLJ 2009 Lahore 231
Present: Hafiz Tariq Nasim, J.
ZAFAR ABBAS NAQVI, SENIOR CLERK, CIVIL COURTS FAISALABAD and 7 others--Petitioners
versus
DISTRICT & SESSIONS JUDGE, FAISALABAD and 19 others--Respondents
W.P. No. 8263 of 2008, heard on 1.9.2008.
Service matter--
----Junior clerks--Promotion of--Petitioners became eligible for promotion on strength of their qualification of graduation--Quota for graduate--Quota for graduate junior clerks for post of senior clerk/reader was available in Rules--Petitioner's eligibility for promotion is not disputed even today--Promotion was considered by Departmental Promotion Committee and their names were recommended--Recommendations of DPC were approved by competent authority--After formal orders of promotion, petitioners started functioning against promoted posts and continued till date of their reversion--Aggrieved persons by petitioner's promotion, as per their right, filed departmental appeal/representation before High Court, which were rejected, meaning thereby that matter became past and closed chapter--In rules applicable to employees of petitioners/private respondent's category there is no provision of review, which could extend jurisdiction to District and Sessions Judge, for reviewing the order passed by his predecessor two years before--Agitation made by private respondents against promotion orders of year 2006 was belated one, accruing a lawful right in favour of petitioners--No justification for continuation of impugned order passed by (District & Sessions Judge)--Petition allowed. [P. 235] A
Mr. Asif Nazir Awan, Advocate for Petitioners.
M/s Naeem Masood, AAG, Ch. Riasat Ali & Usman Arif, Advocates for Respondents.
Date of hearing: 1.9.2008.
Judgment
Brief facts leading to this writ petition are that the petitioners while serving as junior clerks in BS-5 in the Civil/Sessions Court, Faisalabad became eligible for promotion to the rank of senior clerk in BS-7 in the year 2002 on the strength of their qualification of graduation and as per Rules prevailing at that time. Petitioners No. 1 to 4 were posted as Readers/senior clerks but in their own pay and scale through order dated 23.11.2002 passed by the District and Sessions Judge, Faisalabad, with a clear condition that "their case for regular promotion be put up before the committee after the month of Ramadan".
No. 2970 and 2971 of 2006 were withdrawn and were disposed of accordingly on 18.06.2008, whereas Appeal No. 2969 of 2006 is still pending. During the pendency of the appeals before the Punjab Service Tribunal, Respondent No. 2 Yousaf Ali, Nazir Sessions Court, Faisalabad submitted an application before Respondent No. 1 for review of the orders dated 29/30.06.2006 and the Respondent No. 1 called the petitioners for submission of their reply to the review petition, where the petitioners explained their position in writing, however, through order dated 28.06.2008 Respondent No. 1 accepted the review petition by recalling the order of promotion in favour of the petitioner of the year 2006 and in pursuance of that the petitioners were reverted as junior clerks through order dated 10.07.2008.
Learned counsel for the petitioners submitted that the petitioners were promoted in accordance with the quota of graduates keeping in view the quota strength of the petitioners of the year 2002 when the petitioners became eligible rather their promotions were delayed for four long years without any justification and this lawful order of promotion could not be reviewed after a lapse of two years, particularly when there is no provision in the Rules applicable as well as without adverting to the most important aspect of the matter that the departmental appeals against the petitioners' promotions of 2006 were already dismissed, as time barred by the High Court long-long ago, thus the impugned order passed by Respondent No. 1 cannot hold field on the ground of lack of jurisdiction. Further submits that after promotion order of 2006, the petitioners started functioning, drew salaries of higher grade, meaning thereby that the promotion order was acted upon in letter and spirit accruing a lawful right in their favour which could not be recalled on the strength of well settled principle of locus poenitentiae. Adds that the order dated 29/30.06.2006 was set aside by Respondent No. 1 through order dated 28.06.2008 only to the extent of the petitioners, meaning thereby that they were discriminated without any justification whatsoever and this type of discrimination cannot be approved. Learned counsel for the petitioners while arguing his case placed reliance on Inspector-General of Police, Punjab, Lahore vs. Muhammad Ameer Abdullah Khan and 4 others (1990 SCMR 1414), Government of Sindh vs. Abdul Sattar Sheikh and others (2003 SCMR 819), Luqman Zareen and others vs. Secretary Education, N.-W.F.P. and others (2006 SCMR 1938) and Syed Ibne Hussain vs. Federation of Pakistan through Secretary, Establishment Division and others (2008 SCMR 1159).
On behalf of the respondents learned Assistant Advocate General, Ch. Riasat Ali and Mr. Usman Arif, Advocates, argued the case at length and submit that,--
(i) The writ petition is not competent in view of bar of Article 212 of the Constitution of Pakistan.
(ii) The petitioners are amenable to the Rules namely the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts) Service Rules, 2005, wherein the quota of graduates was eliminated, so their promotion of 2006 cannot hold field.
(iii) Respondent No. 1 rightly exercised his jurisdiction by rectifying the wrong and there is no question of violation of principle of locus poenitentiae as the competent authority can recall the order, which was illegally passed.
(iv) The point of discrimination raised by the petitioners has no force as one illegal order cannot be made a precedent for other illegal orders and practically Respondent No. 1 did justice with the private respondents.
Learned counsel for the respondents relied on The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another vs. Jalaluddin (PLD 1992 SC 207), Government of the Punjab and others vs. Muhammad Zafar Bhatti & others (PLJ 2004 SC 210) and Muhammad Shafique vs. Chairman Board of Governors, Lahore Museum/Chief Secretary Punjab, Lahore and another (2007 PLC (CS) 49), in support of their contentions.
Arguments heard. Record perused.
First of all I will deal with the objection of maintainability of writ petition and in that respect the judgment referred by the respondents are to be examined. So far the judgment cited as Government of the Punjab and others vs. Muhammad Zafar Bhatti & others (PLJ 2004 SC 210) is concerned, it has no relevance to the present case as in that case matter related to amendment in relevant Rules, its vires and getting it declared as ultra vires by the High Court, which was rightly held by the Hon'ble Supreme Court of Pakistan that such like controversy was not amenable to the writ jurisdiction and the aggrieved persons should have approached to the Service Tribunal on the strength of law laid down in the case of Iqan Ahmad Khurram vs. Government of Pakistan (PLD 1980 SC 153). So for the judgment of Muhammad Shafique vs. Chairman Board of Governors, Lahore Museum/Chief Secretary Punjab, Lahore and another (2007 PLC (CS) 49) is concerned, this case was related to a writ of co-warranto where the petitioner contended before the High Court that the respondent was not eligible to hold the post, meaning thereby that the question of eligibility was under challenge which otherwise was amenable to the jurisdiction of Service Tribunal and in that respect Hon'ble Supreme Court of Pakistan already held in the case of Muhammad Anis and others vs. Abdul Haseeb and others (PLD 1994 SC 539) that, "Whenever the dispute of eligibility arises the Service Tribunal is the forum which can resolve the issue, however, in case of determination of suitability Tribunal has no jurisdiction".
Practically, the present case revolves around determination of fitness to hold post and this very question is resolved by the legislature in the form of Section 4(1)(b) of the Punjab Service Tribunal Act, which is reproduced as under :--
"4(1)(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
There is ample law, which needs not to be referred in presence of the specific provisions of Section 4(1)(b) of the Punjab Service Tribunal Act. However, it shall be advantageous to refer the judgment reported as Secretary to Government of N.-W.F.P. vs. Muhammad Nawaz (PLD 1996 SC 837) and a recent judgment reported as Secretary Revenue vs. Muhammad Saleem (2008 SCMR 948).
If the judgments referred by the learned counsel for the respondents are put in juxtaposition to these two judgments of the apex Court, there shall be no difficulty to arrive at the conclusion that the respondents' contentions in respect of non-maintainability of the writ petition are without force and are thus repelled.
On merits there are certain admitted facts, which are not denied even today and those are:--
(i) The petitioners are graduates and they became eligible for promotion in the year 2002.
(ii) Quota for graduate junior clerks for the post of
senior clerk/Reader was available in the Rules in the year 2002.
(iii) Petitioners' eligibility for promotion to the rank of senior clerks is not disputed even today.
(iv) Petitioners' case for promotion was considered by the Departmental Promotion Committee and their names were recommended; recommendations of the DPC were approved by the competent authority.
(v) After formal orders of promotion, the petitioners started functioning against the promoted posts and continued till the date of their reversion of July, 2008.
(vi) Aggrieved by the petitioners' promotion order of the year 2006, aggrieved persons, as per their right, filed departmental appeal/representation before the High Court on administration side, which were rejected, meaning thereby that the matter became past and closed chapter.
(vii) In the Rules applicable to the employees of petitioners/private respondents' category, there is no provision of review, which could extend jurisdiction to the learned District and Sessions Judge, for reviewing the order passed by his predecessor two years before.
(viii) Even otherwise, the agitation made by the private respondents against the promotion orders of the year 2006 was belated one, accruing a lawful right in favour of the petitioners.
When all these factual/legal aspects are available even today, then no justification seems to be rested with the continuation of impugned order passed by Respondent No. 1.
In my view, Respondent No. 1 acted in haste and the impugned order cannot sustain in the eye of law for the following reasons:--
(i) The impugned order passed by the learned District and Sessions Judge is virtually a departure from the Rules namely the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts) Service Rules, 2005 wherein no provision of review is available, whereas the opinion of the Registrar of the High Court, which is made the basis of impugned order cannot be considered a valid one particularly when the impugned matter does not relate to any civil litigation, thus applicability of the provisions of CPC in presence of special law applicable to the employees could not be held applicable to the present controversy.
(ii) The Respondent No. 1 virtually violated the law laid down in Inspector-General of Police, Punjab, Lahore vs. Muhammad Ameer Abdullah Khan and 4 others (1990 SCMR 1414), wherein it is held "where rights had come to vest, ground taken by succeeding Inspector General of Police could not be held to be sufficient to justify rescission of order competently passed".
(iii) In the case of Rahim Jan vs. Mrs. Z. Ikram Gardezi and others (PLD 2004 SC 752), it is held that no express provision for filing of review petition having been provided in the Arbitration Act, review petition was not maintainable. In the present case no express provision for filing of review petition is provided in the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts) Service Rules, 2005, hence the review petition, which was not maintainable, could not be adjudicated upon.
(iv) The private respondents agitated the matter admittedly at a belated stage and there is ample law on this point that even one day's delay creates valuable right in favour of the other party and which cannot be condoned without any sufficient cause.
(v) Virtually, in the present case Respondent No. 1 has violated the settled law and for that only one reference can be sufficient, Imtiaz Ali vs. Atta Muhammad (PLD 2008 SC 462), wherein the Hon'ble Supreme Court held, "the appeal having been filed after one day of period of limitation has created valuable right in favour of the respondent. No sufficient cause for filing of delayed appeal, having been found, condonation of delay declined".
(vi) After passing the order of petitioners' promotion in the year 2006 a valuable right had accrued in favour of the petitioners, which could not be rescinded or recalled on the strength of well-settled principle of locus poenitentiae. There are series of judgments and without referring all, I shall contend to a judgment reported as Government of Sindh vs. Abdul Sattar Sheikh and others (2003 SCMR 819).
(vii) Undisputedly, the petitioners were eligible for promotion in the year 2002, even Petitioners No. 1 to 4 were given additional charge of the promoted posts but in their own pay and scale, however, regularization of their promotion was delayed without any justification, hence the respondents' contention that the Rules of 2005 wherein quota of graduates is eliminated shall be applicable have no force because such like situation was attended to by the Hon'ble Supreme Court of Pakistan in the case reported as Luqman Zareen and others vs. Secretary Education, N.-W.F.P. and others (2006 SCMR 1938) and while deciding the said case, the Hon'ble Supreme Court relied on a judgment of Sarwar Ali Khan vs. Chief Secretary to Government of Sindh and another (PLD 1994 SC 233). These two judgments of the Hon'ble Supreme Court are fully applicable to the case in hand.
(Sh.S.A.) Petition allowed.
PLJ 2009 Lahore 238
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
PHULMAJEERAN BEGUM alias PHULLAN BEGUM--Petitioner
versus
ADDITIONAL DISTRICT JUDGE MAILSI and 5 others--Respondents
W.P. No. 6019 of 2007, heard on 16.6.2008.
Constitution of Pakistan, 1973--
----Art. 199--Sale of land--Petitioner being owner of land executed a general power of attorney in favour of one of respondents and document was got registered--After agreement to sell and before execution of sale deed, petitioner being actual owner transferred land to respondents (buyers) through oral sale and got mutation duly sanctioned by revenue authorities in favour of them--Possession was also handed over to them by petitioner--Suit for specific performance was filed for execution of agreement to sell made by Attorney/respondent--Assailed--Application of petitioner to file independent written reply was declined by both Courts below--Allegation of petitioner was that the power of attorney was only for management of property because of apparent disability on her part--She being an illiterate & paradahnashin lady was kept under dark and it was not known to her what variety of power of attorney was deriving on basis of the instrument--Apprehending mischief, petitioner had chosen to get power of attorney cancelled through Abtal Nama--Held: Petitioner still retains her power to alienate or transfer property as principal even after general power of attorney has been executed in favour of some one--Petitioner came out with a specific plea that she never empowered agent to enter into transaction of sale--Both Courts below have fallen in error by not permitting pardahnashin lady to file written statement--Petition accepted. [Pp. 240 & 241] A, B & D
Power of Attorney--
----Power of attorney--Validity--Power of Attorney would be subject to survival of its executor as well as existence of subject matter property in name of executor--General Power of Attorney ceased to have effect without its revocation when executor of power of attorney/owner of property in-question dies--Similarly, if subject matter property for which power of attorney was executed divested from ownership of its executor, power of attorney shall cease to have effect--Existence of executor and subject matter property in name of executor are essential for validity of power of attorney--Held: If any one of them is missing the validity of such power of attorney shall be ousted and such document shall cease to have effect. [P. 241] C
Syed Muhammad Ali Gilani, Advocate for Petitioner.
Mr. Muhammad Waseem Shahab, Advocate for Respondents.
Date of hearing: 16.6.2008.
Judgment
Brief facts of the case are that the petitioner being owner of the land measuring 23-kanals 15-marlas executed a General Power of Attorney in favour of Respondent No. 4 Muhammad Aslam on 25.01.2006. The said document was got registered from the Sub-Registrar, Vehari, on 25-01-2006. After getting General Power of Attorney in his favour Respondent No. 4 sold the suit land to Respondent No. 3 through an Agreement to Sell dated 18-09-2006 against consideration of Rs. 12,00,000/- out of which Rs. 9,00,000/- were received by the Attorney/Respondent No. 4 on behalf of the petitioner. The remaining amount was to be paid by Respondent No. 3 at the time of registration of sale-deed.
After agreement to sell and before the execution of sale-deed, petitioner being actual owner transferred the land in dispute to Respondents No. 5 & 6 through oral sale vide Mutation No. 1519 duly sanctioned by the revenue authorities on 19-12-2006 in favour of Respondents No. 5 & 6 and possession was also handed over to them by the petitioner.
After the sale of the said land to the latter purchasers, first purchaser/Respondent No. 3 filed suit for specific performance for execution of the agreement to sell made by the Attorney/Respondent No. 4 in his favour on 18-09-2006. The written statement was filed by Muhammad Aslam/Defendant No. 2 on 17-01-2007 by validly exercising powers given in the General Power of Attorney. While application of the petitioner to file independent written reply was declined vide order dated 04-06-2007. The said order was assailed before the learned District Judge in Appeal but the same was upheld, hence this writ petition.
Learned counsel for the petitioner put his attack by arguing that the petitioner is a Pardanashin old and illiterate lady who was defrauded by the real brother/Respondent No. 4 in executing of the General Power of Attorney, as she never empowered him to alienate the disputed land. The learned counsel further submits that the subject matter land was not in the ownership of the petitioner when Respondent No. 4 filed written statement in the suit for specific performance on behalf of the petitioner as her Attorney. As such, the Power of Attorney had ceased to have effect on the very moment when subject matter land was alienated to the latter purchaser meaning thereby when written statement was filed by the attorney the subject matter land was not in the ownership of the petitioner. As such, the written statement filed by him after such alienation of land amounts to be without authority. Further submits that the existence of the executor and the subject matter land in the name of attorney are essential for the validity of the Power of Attorney and if any one of them is missing, such Power of Attorney shall have no validity. Hence the impugned judgments are liable to be set aside and the petitioner is entitled to file written statement in the suit on her own behalf by herself.
On the other hand, learned counsel for the respondents has vehemently opposed this petition by contending that the judgments passed by the learned Courts below have been passed after due appreciation of law and facts.
I have minutely gone through the record and considered the arguments advanced by learned counsel for the parties.
The application submitted by the petitioner, inter alia, suggests that she is an illiterate & Pardah observing lady and the litigation is the result of mala fide, fraud & misrepresentation only to deprive her of the valuable property. Respondent No. 4 while submitting stereotype written reply to the application has not mentioned anywhere that the petitioner is not illiterate or Pardanashin lady or no fraud in any manner was perpetuated. The proposition of law is too settled to admit any debate that the Apex Court in more than one occasions reiterated that the lady apparently incapable of conducting cases, it would be in the interest of justice that she should be provided eminent assistance of an experienced lawyer. Extra cautions in the case of a lady and in particular "Pardahnashin" lady should be observed. The petitioner, in the instant case, suffers from the same disability. Accordingly, the Judge seized of the proceedings and attending to the lis, should adopt extra ordinary care in the matter of females.
In this case, Mst. Phulmajeeran Begum alias Phullan Begum appointed Muhammad Aslam-Respondent No. 4 her General Attorney who executed an instrument in the nature of agreement to sell in favour of Respondent No. 3-Muhammad Riaz. The outright allegation of the petitioner is that the said Power of Attorney was only for the management of the property because of the apparent disability on her part. The petitioner came out with the plea that she being an illiterate & Pardahnashin lady was kept under dark and it was not known to her that what variety of power the attorney was deriving on the basis of said instrument. This appears to be a sham transaction as no care was taken by the draftsman nor by the Sub-Registrar who attested the said instrument of General Power of Attorney. Apprehending mischief, petitioner had chosen to get the power of attorney cancelled through Abtal Nama. Here, I am constrained to hold that the petitioner still retains her power to alienate or transfer the property as Principal even after the General Power of Attorney has been executed in favour of some one. On the face of record, neither petitioner's consent was taken in expressed terms nor she was paid any consideration. The conceding written statement was submitted by Muhammad Aslam-Respondent No. 4 only to his own benefit. Agent in such like cases possesses dominant influence and thus, could not be permitted to enter into any agreement to sell with a person of his own choice without there being an expressed permission by the Principal. In such situation, the Principal is justified to repudiate the deal.
The question of authenticity of Power of Attorney, directly came up for consideration in case titled, "Wali Muhammad Vs. Muhammad Ibrahims others" (PLD 1989 Lahore 440) wherein it has been held that Pardanashin lady and illiterate villager stand at par. Thus, Section 16 of Contract Act was held applicable to transaction made by illiterate villager. Section 16 ibid provides that, "A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other". Bare perusal of the said provision of law shows in vivid terms that the Courts should take due cautions where the power of attorney by the Pardanashin lady is involved particularly when the Principal deny the execution of the instrument, in a manner it was drawn or executed.
The arguments advanced by the learned counsel for the petitioner are well convincing and in any view the validity of Power of Attorney would be subject to the survival of its executor as well as the existence of the subject matter land in the name of the executor. The General Power of Attorney ceased to have effect without its revocation when the executor of the Power of Attorney/owner of the land in question dies, Similarly, if the subject matter land for which Power of Attorney was executed divested from the ownership of its executor, the Power of Attorney shall cease to have effect. As such, it is held that the existence of the executor and the subject matter land in the name of executor are essential for the validity of the Power of Attorney and if any one of them is missing, the validity of such Power of Attorney shall be ousted and such document shall cease to have effect.
The fate of the case of the petitioner is mainly depending upon the written statement, which she wants to file in the learned trial Court. In view of this situation when the petitioner came out with a specific plea that she never empowered the agent to enter into the transaction of sale, both the learned Courts below have fallen in error by not permitting the Pardahnashin lady to file the written statement.
In the light of the above discussion, the instant petition is accepted and the orders passed by the learned Courts below are hereby set aside. The petitioner is allowed to file written statement in the suit as Defendant No. 1. The written statement already filed by the Attorney/Respondent No. 4 would deem to be filed as Defendant No. 2 and not as having been filed on behalf of the petitioner. There shall be no order as to costs.
This order shall not prejudice either of the party of the suit or affect the merits of the case and the learned trial Court shall obviously determine the rights of the parties neither being prejudiced of this order.
(Sh.A.S.) Petition accepted.
PLJ 2009 Lahore 242
Present: Syed Hamid Ali Shah, J.
Rana TASSAWAR HUSSAIN--Petitioner
versus
MUHAMMAD AHMAD and 3 others--Respondents
W.P. No. 9073 of 2008, decided on 25.8.2008.
Constitution of Pakistan, 1973—
----Art. 199--Punjab Local Government Election Rules, 2005, R. 76(b) & Scope--Election petition--Returned Nazim was ineligible candidate--Fake and forged certificate--Petitioner and respondent were declared returned candidates for seat of Nazim and Naib-Nazim--Election Tribunal accepting petition declared respondent disqualified being not a matriculate and resultantly election of petitioner and respondent was declared as illegal and void--Assailed--Joint candidature--Rejection of nomination of either of Nazim or of Naib-Nazim as joint candidates, nomination as a whole for both joint candidates, shall stand rejected--Invalid nomination of a candidate on nomination day, would not be validated by a subsequent change of status from candidate to returned candidate--Joint candidates have to sail and sink together--Disqualification would be individual only, when there is a casual vacany--Casual vacancy would not include a vacancy, which becomes vacant, as a result of decision of election tribunal due to disqualification of a candidate--Impugned judgment and order of tribunal, is devoid of any illegality and legal infirmity--Petition dismissed. [Pp. 247 & 248] B
2003 SCMR 1611, rel.
Punjab Local Government Election Rules, 2005—
----Rr. 76(1)(a) & 76(2)(b)--Constitution of pakistan, 1973, Art. 199--Constitutional petition--Declared returned candidates for seat of Nazim and Naib-Nazim--Disqualified by Election Tribunal--Disqualification of any other contesting candidate, will not result into declaration of return candidate as void--Plea of--Invalid nomination of a returned candidate is valid ground for declaring election of returned candidate void, as is envisaged in Rule 76(1) (a)--Phrase "other contesting candidates" as referred in Clause (6) of Rule 76(2), relates to those candidates who contested election, but were not successful or returned candidates--Expression candidates, used in clause (b) ibid is plural, which has it's nexus with other candidates. [P. 247] A
Mr. Muhammad Ramzan Chaudhry, Advocate for Petitioner.
Ch. Muhammad Ashraf Wahla & Ch. Muhammad Jehanzeb Wahla, Advocates for Respondents No. 1 & 2.
Date of hearing: 13.8.2008.
Order
Respondents No. 1 and 2, through filing an election petition, called in question the return of the petitioner and Respondent No. 3, as Nazim and Naib-Nazim of Union Council 134, Bhagtanwala District Sargodha. It was urged in the election petition that Respondent No. 3 the returned Nazim, was ineligible candidate. He has produced a fake and forged certificate of his education. Respondent No. 3 contested the election petition, filed the reply, wherein controverted the assertions of the petition and raised various preliminary objections. As many as seven (7) issues were framed and evidence was recorded by the election tribunal. Petitioner filed his separate written reply but led no evidence in his support. Learned tribunal on conclusion of the trial, accepted election petition and vide judgment dated 9.7.2008, declared Respondent No. 3 disqualified being not a matriculate and declared his matriculation certificate (Ex.R.5) as forged and fraudulent. Resultantly election of the petitioner and Respondent No. 3 was declared as illegal and void. Respondents No. 1 and 2 were declared as unopposed candidates. Petitioner has now assailed the judgment and order of the tribunal dated 9.7.2008, in this constitutional petition.
Learned counsel for the petitioner has contended that at the time of filing of nomination papers, none came forward to raise objection on the candidature of Respondent No. 3. Respondents No. 1 and 2 are estopped by their conduct to raise objection or file election petition, once the result of the election has been declared. Learned counsel further submitted that petitioner is graduate and no allegation as to the disqualification of the petitioner was pleaded. The fakeness of the certificate of the Respondent No. 3, even if stands proved, will not effect the return of the petitioner. Learned counsel went on to argue that since none has raised an objection on the nomination of Respondent No. 3, therefore, the doctrine of sinker, will not apply to the case of the petitioner. Learned counsel added that nominated candidate, covers a step forward and acceptance of papers, turns him into a nominated candidate from a candidate. Element of "joint" is relatable to candidates in election only and not beyond that. Vacancy falling vacant subsequent to election pertains to member specific and not joint. Learned counsel supported this contention by referring to the case of "Chaudhri Maqbool Ahmad and others Vs. Malik Falak Sher Farooqa ADJ/Election Tribunal and others" (PLD 2003 Lah 138). It was then contended that the disqualification of the returned candidate was not notorious therefore, votes cast in favour of the petitioner cannot be treated as thrown away or wasted. The election of Respondent No. 3, on account of his disqualification can be declared void but his disqualification will not effect the election or return of the petitioner. Disqualification of Respondent No. 3 was not known to the voters of the constituency therefore Respondents No. 1 and 2 cannot be declared as returned candidate. Learned counsel supported this contention by referring to the cases of "Naveed-ur-Rehman Vs. Election Tribunal and others" (2004 CLC 626) and (Tahir Mahmood and another Vs. Election Tribunal for Rawalpindi and 6 others" (2003 CLC 1381). Learned counsel emphasized that when election of returned candidates has been notified in gazette, the disqualification or annulment of election of one candidate, would not affect the other candidate who has contested election as a joint candidate with the former. The reliance in this respect was placed on the case of "Asim Butt and others Vs. ADJ Ferozwala and others" (2003 MLD 1168), "Chaudhry Nazakat Ali and another Vs. Manzoor Hussain Malik and 10 others" (2004 YLR 421), "Muhammad Hussain Haqqani and another Vs. Election Tribunal Gujranwala and three others" (2007 YLR 1764) and "Haji Alam Sher and another Vs. Malik Muhammad Nawaz and 6 others" (PLD 2003 Lah. 12). Learned counsel for the petitioner then want through the Punjab Local Government Election Rules, 2005 and submitted that an election petitioner, within the meaning of Rule 67, can claim the relief that election of a return candidate is void and that petitioner or some other person is dully elected or election as a whole is void. No other relief can be claimed in an election petition. It was further submitted that grounds on which the election of a returned candidate can be declared void are mentioned in Rule 76 (1) while Rule 76 (2) (b) provides that election of a returned candidate cannot be declared void on the plea that other contesting candidate on the nomination day was disqualified from being elected as a member. Much stressed was laid on this Rule 76 (2) (b) and it was submitted that in view of the above Rule, the petitioner's return as Naib-Nazim cannot be declared as void.
Chaudhry Muhammad Ashraf Wahla and Mr. Jehanzeb Wahla, Advocates, stood behind the impugned judgment of learned tribunal. Mr. Jehanzeb Wahla, Advocate has contended that only two sets of candidates submitted their nomination papers namely petitioner and Respondent No .3 on one hand and Respondents No. 1 and 2 on the other hand. In case of disqualification of Respondent No. 3 and the petitioner, none else remains in the contest except for Respondents No. 1 and 2, who can be declared as unopposed returned candidates and learned tribunal has rightly held so. Learned counsel has submitted that all the questions raised by the petitioner, in this petition, have since been determined in the case of "Mian Ahmad Saeed and others Vs. Election Tribunal for Kasur and 7 others" (2003 SCMR 1611). He has urged that resolved issues have been re-agitated and petition merits dismissal. He added that casual vacancy is not the one which has fallen vacant as a result of disqualification of a candidate by election tribunal. Learned counsel supported his contention by placing reliance on the case of "Haji Alam Sher Vs. Malik Muhammad Nawaz and others" (2004 SCMR 1021). Learned counsel summed up his arguments with the contention that Rule 76 speaks about "any other candidates" and not the "joint candidates" which is indicative of the feet that clause (b) of Rule 76 (2) relates to other candidates. According to him the disqualification of Respondent No. 3, is disqualification of joint candidates as a whole.
Heard learned counsel for the parties and record perused.
Findings of learned tribunal, qua the disqualification of Respondent No. 3 that he did not possess requisite qualification, on the nomination day, are unchallenged. It has been held by learned tribunal that matriculation certificate of Respondent No. 3 (Ex.P.5) is forged and fraudulent. This conclusion/observation of the learned tribunal has also attained finality as the same has not been assailed. Respondent No. 3 enjoyed the office of Nazim for more than three (3) years, on the basis of forged and fake documents.
The impugned judgment of learned tribunal, is being challenged by the petitioner, to the extent of his office as Naib-Nazim, which according to the petitioner is not liable to be declared or vacant, void due to disqualification of other joint candidate. The contention raised by learned counsel for the petitioner, in support of above stance
of the petitioner, is that after declaration of the result in the gazette notification, joint candidacy comes to it's logical end and one's disqualification or annulment of election, will not effect the other. Further that a disqualification of a candidate, which lacks the element of notoriety, will not justify the declaration of other joint candidate as void.
(b) "Whether the Tribunal while declaring the election of a returned candidate void on the ground that his nomination was invalid, can declare the election of joint candidates as a whole void and further this rule after the election would become inoperative to de-seat the joint candidates in the election?
The specific question was dealt by the Court and it was held:
".....The salient feature of the system of joint candidacy is that the candidates for the seats of Nazim and Naib-Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of any one of the candidates, is rejection of nomination of both the joint candidates. Therefore they must possess the statutory qualifications individually and collectively on the nomination day and lack of any such qualification of any one would invalidate their nomination jointly. The joint candidates for the seat of Nazim and Naib-Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. In the system of joint candidacy, the candidates file their nomination papers individually but the validity or invalidity of their nomination is essentially determined jointly and in consequence to the rejection of nomination of any one for any disqualification, the nomination of other shall automatically stand rejected and in the light of same rule of joint responsibility their election can be declared void as a whole on the ground that on the nomination day their nomination was invalid. The disqualification attached with the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that the Election Tribunal would not be competent to declare the election of the joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy."
It was also held that--
".... It is manifest from the statutory provisions referred above that the order of Tribunal declaring the election of a returned candidate void due to the defect of invalidity of nomination would not be confined to an individual candidate, rather the nomination of the joint candidates in the panel becoming invalid, the order would be applicable to them jointly. This is correct that subsequent to the election, a returned candidate certainly would not be responsible for the acts and deeds of his companion not related to the election and as holder of elective office would definitely be answerable to his own acts and deeds but on the basis of rule of collective responsibility in the system of joint candidacy, he must face the consequence of the disqualification and invalid nomination of his co-candidate in the panel before and after the election. This is well known rule of interpretation of statute that the clear intention of Legislature cannot be defeated by the application of rule of construction and no provision in the statute can be held redundant in the intent of Legislature."
The above dictum of the August Supreme Court, leaves hardly any room to view the instant controversy from any other angle except the one in which it has been resolved by the apex Court.
Adverting to Rule 76 (2) (b) of the Punjab Local Government Election Rules, 2005 and it's scope. It has been urged that disqualification of any other contesting candidate, will not result into declaration of return candidate as void. Per learned counsel for the petitioner, the provision of law has it's application to one of the two returned candidates, out of whom one was declared disqualified. The argument is not convincing. The invalid nomination of a returned candidate is valid ground for declaring the election of returned candidates void, as is envisaged in Rule 76 (1) (a). Phrase "the other contesting candidates" as referred in clause (b) of Rule 76 (2), relates to those candidates who contested the election, but were not successful or returned candidates. The expression candidates, used in the clause (b) ibid is plural, which has it's nexus with other candidates. Viewing the distinction between candidate, returned candidates and contesting candidates within the meaning of clauses (iv), (v) and (XXI) of Rule 2 of Rules, 2005, the scope of other contesting candidates cannot be extended too far to bring in it's purview the returned candidates. Moreso when the election has been declared and the provisions of law pertain to a matter, subsequent to declaration of result. The system of joint candidacy has to examined in it's own spirit. According to law and rules thereunder, the rejection of nomination of either of Nazim or of Naib-Nazim as joint candidates, the nomination as a whole for both the joint candidates, shall stand rejected. So is the case of disqualification of one of them by the election tribunal in election petition, against the returned candidates. The invalid nomination of a candidate on the nomination day, would not be validated by a subsequent change of the status from candidate to returned candidate. Joint candidates have to sail and sink together. The disqualification would be individual only, when there is a casual vacancy. The casual vacancy would not include a vacancy, which becomes vacant, as a result of decision of the Election Tribunal, due to disqualification of a candidate. The issue stands settled through dictum laid down by the Apex Court in the cases of Mian Ahmad Saeed (Supra) and Haji Alam Sher (Supra).
For the foregoing, the impugned judgment and order of learned tribunal, is devoid of any illegality and legal infirmity. The petition in hands, has no merit and is accordingly dismissed with no order as to costs.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Lahore 248
Present: Ali Akbar Qureshi, J.
MIAN KHAN and others--Petitioners
versus
Mst. KHATOON and others--Respondents
C.R. No. 1109 of 2003, decided on 9.7.2008.
Right of Inheritance--
----Inheritance--Daughter of deceased--To inherit the legacy left by her--Concurrent findings of Courts below--Parentage of respondent/ plaintiffs--Question of--Respondents successfully substantiated through unimpeachable and credible documentary evidence in which it is explicity mentioned by concerned authorities that she was daughter of deceased--To inherit legacy left by her late father--Unfortunate plaintiff/respondent who was being deprived of her right of inheritance has been clamouring to be real daughter of deceased, but right of inheritance was being frustrated and denied by her own kith and kins so as to deprive her of legacy of her late father--Concurrent and consistent findings of facts arrived at by Courts below, unquestionably were based on objective scrutiny and fair analysis of evidence and material available on record--Sole crucial issue as to parentage of plaintiff/respondent was dealt with and resolved objectively with judicial application of law and mind--Civil revision dismissed. [P. 252] A, C & D
Limitation--
----Limitation--Applicability--Matter of inheritance--Embargo of limitation shall not be available and attracted and totally inapplicable in matters of inheritance. [P. 252] B
PLD 1990 SC rel.
Concurrent Findings--
----Concurrent findings of facts by Courts below--Revision petition--Scope and maintainability--Held: Re-examination and re-appraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous--Revisional power of High Court is exercised for correcting an error committed by subordinate Courts--Mere erroneous decision would not call for interference unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice. [P. 253] E
PLD 1994 SC 291, 2001 SCMR 798 and PLJ 2006 SC 230, rel.
Mr. Nusrat Javed Bajwa, Advocate for Petitioners.
Mr. Saif-ul-Malook, Advocate for Respondents.
Date of hearing: 9.7.2008.
Order
Mian Khan (hereinafter to be referred as the petitioner) assails validity of the concurrent findings of facts recorded by two Courts below, whereby, respondent Mst. Khatoon was adjudged and declared as daughter of deceased Dara, predecessor in interest of the parties.
Precisely the relevant facts of the case are that deceased Dara was owner land subject matter of the lis at hand fully described in the head note of the plaint. Dara died in 1943. According to the law then prevalent, the property of deceased Dara was devolved upon Mst. Allan mother of the plaintiff/respondent (Mst. Khatoon). After enforcement of Shariat (Application Act 1962) Mutation No. 57 was sanctioned in favor of Mst. Allan Bibi as widow and Ahmed Dad real brother of deceased Dara excluding the respondent/plaintiff, who challenged the above said mutation by filing an appeal before the Collector, which was dismissed on the ground of limitation on 4.12.1968. Thereafter, she filed a revision before the Commissioner Revenue Multan which was accepted vide order dated 5.5.1970 by which case was remanded back to the Collector for decision afresh. Said remand order was challenged by the predecessor in interest of the petitioner before the Board of Revenue which was accepted vide order dated 6.7.1977. Subsequently, respondent filed a suit assailing the sanctioning of Mutation No. 57 and the orders of the MBR dated 7.6.1977 which was dismissed by the learned Civil Judge Okara vide judgment dated 31.1.1984. Appeal arising therefrom was dismissed as withdrawn by plaintiff/respondent with a permission to file a fresh suit vide order dated 15.7.1985, whereafter, respondent plaintiff filed suit for declaration & permanent injunction, praying that sanctioning and attestation of Mutation No. 57 dated 10.2.1965 and order of the BOR dated 7.6.1977 may be declared illegal void and inoperative upon the rights of the plaintiff, and she be declared real daughter of Dara deceased.
Suit was contested by the petitioner and Defendant No. 1 to 12 by filing the written statement on various grounds including limitation.
That the respondent Mst. Allan Bibi mother of the respondent plaintiff filed a conceding written statement. That the learned Civil Judge framed the issues and recorded evidence of the parties and consequently decreed the suit by way of judgment & decree dated 30.10.2002 holding that respondent plaintiff Mst. Khatoon was the real daughter of deceased Dara and being to sharer the law of limitation was not applicable in the case of inheritance. Being aggrieved, petitioner filed an appeal which was dismissed by learned District Judge Okara vide Judgment and decree dated impugned 21.4.2003, hence this CR.
Mr. Nusrat Javed Bajwa Advocate learned counsel for the petitioner assails concurrent findings of both the Courts below on the crucial issues 2 and 6 i.e., the question of limitation and parentage of the respondent plaintiff. It is contended by the learned counsel for the petitioner that since the earlier suit of the petitioner which was dismissed on 31.1.1984 and appeal filed against the same withdrawn on 15.7.1985 and present suit being filed on 10.2.1996 was hopelessly barred by time. It is further contended that at the time of attestation of mutation as limited owner in the name of Mst. Allan Bibi wife of Dara deceased, he was shown issuless, and objection was raised by Mst. Allan wife of Dara deceased. Hence, the learned counsel argued that findings recorded by the two Courts below on the issue of parentage of respondent plaintiff Mst. Khatoon are result of mis-reading and non-reading of the evidence by the petitioner and same are liable to be set aside on that score. To support his contentions, learned counsel relies on PLJ 1984 Lahore 38 Sadar Din Vs. Allah Rakha, NLR 1986 Rev. 157 Mst. Zeba and 12 others Vs Member III Board of Revenue Balochistan and 2 others and PLD 1989 SC 568 Nasir Abbas Vs Manzoor Haidar Shah.
On the other hand, Mr. Saif ul Malook, Advocate for Mst. Khatoon respondent/plaintiff refers to Ext.P1 copy of the attestation of mutation 57 dated 5.2.1965 to contend that revenue functionaries while drawing the family tree of Dara deceased, name of respondent Mst. Khatoon conspicuously finds mention as daughter of Dara and Mst. Allan. Learned counsel also draws this Court's attention to the statement of DW2 namely Muhammad Boota Assistant DHQ Hospital Sahiwal, who produced the birth certificate of Mst. Khatoon as Ext.D32 showing the registration of her birth at Serial No. 439 dated 11.3.1933 having born on 8.3.1933 and shown and written to be daughter of Dara and grand daughter of Sardara. Learned counsel further draws this Court attention to the cross-examination of DW2, wherein, he admits that birth certificate produced by respondent plaintiff Exh.P6 was duly issued by the office of DW2 and that Serial No. 439 written upon Ext.P6 was correct. Adds that DW2 further admits that on Ext.P6 name of the plaintiff as Mst. Khatoon was also correct and that her date of birth according to the record was 8.3.1933 and the caste of Mst. Khatoon upon Ext.P6 was written as Sial Muslman which was correct.
Concluding his arguments with reference to the deposition of DW2 learned counsel for the respondent contends that Ext.P6 produced by respondent/plaintiff to prove that she was daughter of the deceased Dara, was admitted even by the witness produced by the petitioner/defendant, and in that context Ext.D32 adequately sanctified all material particulars including serial number 439 name of the plaintiff as respondent Mst. Khatoon, name of the father of Mst. Khatoon as Dara and name of the grandfather as Sardara and the date of birth as 8.3.1933 and date of registration of birth as 11.3.1933. Hence, it was admitted by the witness of the petitioner/defendant that respondent plaintiff's birth certificate was correct with the parentage of Dara deceased. Elaborating the scope of the right of succession by the heir of deceased owner, learned counsel relies on 2005 SCMR 1217 Muhammad Zubair and others Vs Muhammad Sharif, "Right to succession of deceased owner--Scope and Proof Inheritance mutation without proving relationship between claimants and deceased owner--Evidentiary value--Property of deceased would revert to his legal heirs and his succession would be deemed to have opened on his death--Property of muslim deceased would he deemed to have devolved on all those persons, who were his heirs according to sharia on the date of his death and in case of death of any of them, his share would devolve on his heirs--Right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could over ride law of sharia being a superior law".
Further relies on 2005 SCMR 1447 Muhammad Iqbal and 5 others Vs Allah Bachaya and 18 others
"Inheritance--Limitation--Bar of limitation is not applicable to right of inheritance which does not extinguish such right by afflux of time--Right of inheritance of a female, recognized in Sharia cannot be denied on the basis of oral surrender of such right by a female in favor of male member of family and in any case there is no concept of estoppal to deprive a person from his right in the inheritance in Islam"
"Declaration of title--Inherited property--Delay in claiming share in inherited property would not defeat the right of a person in inheritance and if he is non suited on such technical ground, his right of inheritance would be defeated.
Arguments heard. Careful examination of record transpires that respondent successfully substantiated through unimpeachable and credible documentary evidence Ext.D31, 32 and Ext.P1 that she was the daughter of Dara deceased, and thus she was held and rightly so to inherit the legacy left by her late father Dara. When confronted with the established facts on record, learned counsel for the petitioner candidly conceded that in those very documents submitted by the petitioner before the trial Court, it is explicitly mentioned therein by the concerned authorities that respondent was the daughter of Dara deceased. Documentary as well as oral evidence makes it abundantly clear that from the day one petitioner has been maneuvering to deprive and harass the respondent of her legitimate right of inheritance granted to her not only by the statute but guaranteed by the Holy Quran in Sura Nisa with mathematical precision and admirable clarity.
As regards impediment of limitation as being canvassed by the learned counsel for the petitioner, the contention being totally fallacious and preposterous is bound to be repelled. In this particular context suffice it to add that it is now well established proposition of law that embargo of limitation shall not be available and attracted and totally inapplicable in the matters of inheritance. By so holding this Court is fortified by a celebrated and landmark judgment of the Honorable Supreme Court of Pakistan reported as PLD 1990 SC 1 resolving identical issues once for all so as to emancipate unfortunate women of recurring persecution and harassment of protracted litigation/trials for the rest of their lives in proving their parentage so as to inherit the legacy of their late fathers. Look at the plight of the unfortunate plaintiff/respondent Mst. Khatoon who was being deprived of her right of inheritance from the day one. Record bears it out that she has been clamouring to be the real daughter of Dara deceased, but the right of inheritance was being frustrated and denied by her own kith and kins so as to deprive her of the legacy of her late father Dara.
On careful examination of the concurrent and consistent findings of facts arrived at by both the Courts below, unquestionably those are based on objective scrutiny and fair analysis of evidence and material available on record, and the sole crucial issue as to the parentage of plaintiff/respondent was dealt with and resolved objectively with judicial application of law and mind. On the scope and maintainability of civil revision against concurrent findings of the Courts below in such like cases, this Court is guided and enlightened by the law laid down by the Apex Court in the cases reported as PLD 1994 SC 291 Haji Muhammad Din Vs Malik Muhammad Abdullah, 2001 SCMR 798 Abdul Qayyum through legal heirs vs. Mushk-e-Alam and another and PLJ 2006 SC 230 Abdul Mateen and other Vs Mst. Mustakhia it was held that "re-examination and re-appraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous and that revisional power of the High Court was exercised for correcting an error committed by subordinate Courts and that mere erroneous decision would not call for interference unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice".
In nutshell, the learned counsel for the petitioner has failed to point out any illegality, ambiguity, perversity, irregularity or an iota of evidence purportedly misconstrued by learned Judges of the Courts below, rather judgments and decrees of both the Courts below having been passed with lawful authority and jurisdiction are held to be totally unambiguous and unexceptionable.
Foregoing resume of facts and reasons would lead to the one and the only irresistible conclusion that the captioned civil revision being palpably misconceived and devoid of any merit stands dismissed accordingly.
(Sh.A.S.) Revision dismissed.
PLJ 2009 Lahore 253
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
TASADDUQ HUSSAIN SHAH etc.--Petitioners
versus
M.B.R. etc.--Respondents
W.P. No. 1472 of 2008, heard on 15.4.2008.
West Pakistan Land Revenue Act, 1967 (XVIII of 1967)—
----S. 7--Revenue Officer--Girdawar & District Co-ordinating Officer--Words and Phrases--Legal status--Held: According to legal provisions, Girdawar or D.C.O. do not fall within any of the categories of Revenue Officers. [P. 256] A
West Pakistan Land Revenue Act, 1967 (XVIII of 1967)—
----Ss. 11, 13(2)(3), 14(1)(2)(4) & 17--Crude misuse official position--Appointment of Qanungos as Naib Tehsildars by D.C.O. on directive of Chief Minister--Legal value--D.C.O. being not a Revenue Officer of any category and was therefore not competent to delegate the powers of Revenue Officer to the Qanungos not working under his administrative control--Moreover the Chief Minister did not have the powers to transfer any Naib Tehsildar, nor he was supposed to authorize D.C.O. to post any Girdawar against any vacant post of Naib Tehsildar--Direction of Chief Minister was a nullity in the eye of law--As the confirment of powers upon Revenue Officers was the pre-rogative of the Board of Revenue, order of M.B.R. upheld--Petition dismissed. [Pp. 256, 257 & 259] B, C, D, E & G
West Pakistan Land Revenue Act, 1967 (XVIII of 1967)—
----S. 10--Punjab Revenue Department (Revenue Administration Posts) Rules, 1990--Scope--Appointment of Qanungo as Naib Tehsildar--Validity--Held: Board of Revenue Punjab, vide Rules, 1990 has restrained the Revenue Officers working in the field for making promotion/appointment and posting of Qanungo as Tehsildar even on provisional/current charge basis, not possessing prescribed qualification of 3 years service as Qanungo and diploma of Naib Tehsildar departmental examination. [Pp. 258 & 259] F
2003 TD (Service) 50.
Mr. Tahir Mahmood, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing: 15.4.2008.
Judgment
To start with, I must say that this is a case of crude misuse of official position and authority on the part of the District Co-ordination Officer, Multan.
In February, 2005, the posts of Naib Tehsildars/Revenue Officers Shujahabad-II, Jalalpur Pirwala and Makhdoom Rasheed had fallen vacant. In pursuance of Chief Minister's directive No. DS-VI/CM/05/OT-47/6. 1252 dated 17.1.2005, the additional charge of the above said posts was assigned to Qanungos; namely, Tasadduq Hussain and Manzoor Ahmad, petitioners, vide Order No. 18-PA-DCO dated 3.2.2005 by the D.C.O., Multan.
Naib Tehsildars/Revenue Officers, Multan and Gajjuhatta, Tehsil Shujaabad were transferred in September 2006, without substitute. In obedience to an order of the District Co-ordination Officer, Multan, the Executive District Officer (Revenue) Multan, assigned the additional charge/duty of the above said vacant posts of Naib Tehsildars to Khalid Mahmood and Muhammad Javed, Qanungos/petitioners till the posting of regular incumbents vide Office Order No. EDO(R) PA/227 dated 28-9-2006.
Abdur Rashid and Abdul Hameed, Qanungos who are not the petitioners before this Court were also accommodated by the D.C.O, Multan by posting them as Naib Tehsildars Shujahabad-II and Saddar Multan.
The copies of the above said orders had been dispatched to all concerned except Secretary (Revenue), Board of Revenue, Punjab. The learned Senior Member (Revenue) Board of Revenue, Punjab, Lahore, learnt about the encroachment upon the powers of Board of Revenue by DCO, Multan from his own source and set aside the above said orders favourable to Qanungos/petitioners and 2 others vide Order No. 663-2008/408-E(F-IV) dated 31.3.2008 with an observation:--
"The following orders of DCO, Multan are hereby declared null and void and are set aside for the reasons that the same have been passed without any jurisdiction/competence as the DCO Multan is not a Revenue Officer within the hierarchy provided in the land Revenue Act, 1967.
With effect from the issuance of this order any revenue work done or any action taken by the above mentioned officials as Naib Tehsildars shall be illegal, void and without jurisdiction."
Out of aforementioned six Qanungos, four petitioners have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the Senior Member (Revenue) Board of Revenue, Punjab, Lahore, D.C.O, Multan and Executive District Officer (Revenue) Multan and have called in question the legality of the order of learned Senior Member Board of Revenue with the plea that after having performed the duties of Naib Tehsildar against the vacant posts on transfer of Naib Tehsildars by the Board of Revenue, Punjab valuable legal rights accrued in their favour making them entitled to hold the post of Naib Tehsildar and that the postings and transfers of Revenue Officers was governed by Punjab Local Govt. Ordinance and not under the Land Revenue Act, 1967.
I find it appropriate to decide first as to whether or not the DCO and the Qanungos fall within any of the categories of Revenue Officers.
Classes of Revenue Officers are mentioned in Section 7 of the Land Revenue Act, 1967, (hereinafter be called the Act) as under,--
(a) the Board of Revenue;
(b) the Executive District Officer (Revenue);
(c) the Collector;
(d) the Assistant Collector of the first grade (Tehsildar);
(e) the Assistant Collector of the second grade (Naib Tehsildar);
The above said provisions of Section 7 of the Act has conclusively established that Girdawar of the Circle and DCO of the District do not fall within any of the categories of Revenue Officers. After coming to the conclusion that DCO and Girdawar are not the Revenue Officers, the next question which requires determination is as to which is the authority to make appointment of Naib Tehsildar/Assistant Collector grade II as stop gap arrangement or on ad hoc basis against the vacant posts. Sections 11, 13(2)(3), 14(1)(2)(4) and 17 of the Act govern the point under discussion. A combined examination of the above said statutory provisions of the Act would provide a basis to say with certainty that it was/is the prerogative of Board of Revenue to make appointment of Naib Tehsildar on permanent basis or as stop gap arrangement. Section 13(2) ibid clearly lays down that the general superintendence and control over all other Revenue Officers (including EDO(R), DO(R), Tehsildars and Naib Tehsildars) shall be vested in, and all such officers shall be subordinate to the Board of Revenue. Powers to distribute official business amongst revenue Officers also vests in the Board of Revenue under Section 14(1) of the Act subject to the condition that no such order of distribution of official business shall empower any Revenue Officer to exercise any power or deal with any business which he would not be competent to exercise or deal with. Under sub-section (2) of Section 16, the Board of Revenue has the power to confer on any person all or any of the powers of an Assistant Collector by Notification. It is not understandable as to how and with what authority the DCO, Multan assigned the official business of Revenue Officer/Assistant Collector grade II to the Qanungos, who were/are not possessed with the powers of Revenue Officer. The DCO was not a Revenue Officer of any category and was, therefore, not competent to delegate the powers of Revenue Officer to the Qanungos, not working under his administrative control. The posts in question fell vacant on transfer of Naib Tehsildars. The available record does not tell as to what were the circumstances which prevented the Executive District (Revenue) Officer Multan, to assign the additional charge of vacant posts to other Naib Tehsildars working in the District. The DCO, Multan transferred Gohar Nawaz Dhaggo, Naib Tehsildar, from Makhdoom Rasheed to City Multan and posted Manzoor Ahmad, Girdawar, at his place, for which, he was not competent nor he had the power and authority to assign the additional charge of Naib Tehsildar to a Girdawar. The DCO made postings and transfers in pursuance of a directive of Chief Minister. Under the law, the Chief Minister does not have the powers to transfer any Naib Tehsildar from one station to another station nor he is supposed to authorize the DCO to post any Girdawar against any vacant post of Naib Tehsildar. The directive of the Chief Minister and posting and transfer orders of Qanungos and Naib Tehsildars by the DCO must be ignored being nullity in the eyes of law.
Admittedly, the DCO is not the appointing authority of Naib Tehsildars. In Naveeda Tufail's case reported as 2003 TD (Service) 50 the August Supreme Court of Pakistan has determined the controversy of ad hoc appointments in express terms that only the appointing authority can make temporary appointments of officials against vacant posts as stop-gap-arrangement for a limited period after initiating the process of regular appointment against the said posts and of only those persons possessed with prescribed qualification for such posts. The appointments/postings and transfers in question by the DCO do not qualify the legal test laid down by the precedent case. At the cost of repetition, it is note worthy that the DCO was/is not the appointing authority of Naib-Tehsildar and there was no occasion to make appointment/posting of Naib Tehsildars as stop-gap-arrangement. In the normal course of events, the DCO or the EDO(R) should have made a reference to the Board of Revenue Punjab for posting of Naib Tehsildars against the vacant posts in the district or for making stop-gap-arrangement. The most shocking aspect of the matter is that the DCO posted the Qanungos as Naib Tehsildars as stop-gap-arrangement by assuming the role of Senior Member Board of Revenue. I have already observed that conferment of powers upon Revenue Officers is the prerogative of Board of Revenue and I could not understand as to how the DCO had delegated the powers of Revenue Officers to the Qanungos with which he himself was not equipped.
Now adverting to the contention of learned counsel that posting and transfer of the Qanungos and the Revenue Officers was to be governed by the Punjab Local Govt. Ordinance, 2001 and Rules framed there under, I would say without any fear of contradiction that the contention is misconceived. Notification No. 2276-2001/1508-E(F)V, dated 15th August, 2001 issued by the Govt. of Punjab is a complete answer to the arguments, which is reproduced below for ready reference:--
In exercise of the powers conferred by Section 16 of the Punjab Land Revenue Act, 1967 (XVII of 1967) Section 105 of the Punjab Tenancy Act, 1887 (XVI of 1887), Section 3(0) of the Land Acquisition Act, 1894, Section 2(9) of the Stamp Act, 1899 (II of 1899), Section 3 of the Colonization of Govt. Lands (Punjab) Act, 1912 (V of 1912) and all other powers under any other law enabling it in this behalf and in supersession of all previous notifications issued in this behalf, and keeping in view the provisions of the Punjab Local Govt. Ordinance, 2001 (XIII of 2001) the Govt. of the Punjab and the Board of Revenue, Punjab direct that with effect from the fourteenth day of August, 2001, the powers being exercised and functions being performed by a Commissioner, Deputy Commissioner, District Collector, or Assistant Commissioner/Collector of a Sub-Division under any land administration or fiscal law, immediately before the fourteenth day of August, 2001 shall be exercised and performed by the officer or Court as the case may be noted against each in the Schedule.
SCHEDULE
Officer or Court competent to exercise powers and perform functions under an enactment immediately before the fourteenth day of August, 2001
Officer or Court competent to exercise powers and perform functions under an enactment with effect from the fourteenth day of August, 2001.
Commissioner of the Division
Executive District Officer (Revenue)
Deputy Commissioner
District Officer (Revenue)
District Collector
District Officer (Revenue)
Assistant Commissioner Collector of Sub Division
Deputy District Officer (Revenue).
It is manifest from a bare perusal of the Notification that after having taken into consideration the provisions of Punjab Local Govt. Ordinance, 2001, relied upon by the learned counsel for the petitioner, only the Executive District Officer (Revenue), District Officer (Revenue) and Deputy District Officer (Revenue) had been empowered to perform functions touching revenue administration to the exclusion of DCO.
The Board of Revenue, Punjab, restraint the Revenue Officers working in the field from making promotion/appointment and posting of Qanungo as Naib Tehsildar even on provisional/current charge basis not possessed with the prescribed qualification i.e. three years service as Qanungo and diploma of Naib Tehsildari departmental examination vide the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. Learned counsel for the petitioner attempted to argue that the posting of Khalid Mahmood and Muhammad Javed, Qanungos as Naib Tehsildars had been made by the Executive District Officer (Revenue), Multan, provisionally, and not by the DCO as observed by the Board of Revenue vide impugned order. For two reasons no importance could be attached to the contention of learned counsel. First, the EDO(R) Multan did not pass the said order in question independently. He simply complied with the order of DCO: Secondly, it is immaterial as to which officer had signed the order in question, allowing the Qanungos to discharge the duties of Revenue Officers as the DCO or the EDO(R) were not competent to do so under the law.
Abdur Rashid, Tasadduq Hussain and Manzoor Ahmad, Qanungos discharged the duties of Naib-Tehsildar with effect from 3.2.2005 to 29.3.2008. Khalid Mahmood, and Muhammad Javed, Qanungos exercised the powers of Revenue Officer from 28-9-2006 to 29.3.2008. I have already observed that they were/are not Revenue Officers in terms of the provisions of Land Revenue Act. I have also concluded that the DCO was not competent to delegate the powers of Revenue Officer to the Qanungos as he himself did not possess the same power and authority. The Qanungos performed the duties of Revenue Officers/Assistant Collector Grade-II for years under the illegal orders of DCO, Multan giving rise to so many legal and factual complications. The DCO, Multan played havoc with Revenue Administration and I leave his conduct to the judgment of Govt. of the Punjab under whose administrative control he has been placed. Be that as it may, the fact remains that learned Senior Member Board of Revenue, Punjab, rightly declared the orders in question as null and void with no legal effect.
With these observations, the writ petition being without substance is dismissed-in-limine.
The Additional Registrar of this Bench is directed to dispatch a copy of this order to Secretary Services and General Administration Department, Govt. of the Punjab and the Senior Member, Board of Revenue, Punjab, for such action on administrative side as may be deemed appropriate.
(J.R.) Petition dismissed in limine.
PLJ 2009 Lahore 260
Present: Syed Shabbar Raza Rizvi, J.
KHURRAM KHAN, Advocate--Petitioner
versus
GOVERNMENT OF PUNJAB through Chief Secretary Lahore and 6 others--Respondents
W.P. No. 3030 of 2007, heard on 17.9.2008.
Constitution of Pakistan, 1973—
----Arts. 199(1)(i)(ii)(c) & 2--Fundamental rights as well as principle of policy--Enforcement of fundamental rights i.e. life of people--Constitutional jurisdiction of High Court, Pro bono Publico--Held: One of the functions of the Supreme Court & High Courts is to enforce the Constitution of Pakistan and its provisions including fundamental rights guaranteed therein--High Court under Art. 199(1)(i)(ii)(c) & (2) is mandated to ensure protection & enforcement of fundamental rights i.e. life of the people. [P. 265] A
Constitution of Pakistan, 1973--
----Art. 9--Expression of "life"--Connotation--Held: `Life' of a person does not mean only a vegetative life--It requires fulfillment of all requirements which are needed for a complete, normal and dignified life including a healthy environment. [P. 265] B
Constitution of Pakistan, 1973--
----Arts. 199, 9 & 138(d)--Punjab Prohibition of Manufacture, Sale, Use & Import of Polythene Bags (Black or any other Polythene bags below 15 Micron Thickness) Ordinance 2002--Writ Petition against manufacture and sale of Polythene Bags--Maintainability--Held: All the respondents conceded that the use of polythene bags causes choking in the drains and sewerage system--Nothing is more precious than life--Polythene bags (shoppers) are killers, therefore, they must be killed--Writ Petition was held maintainable and allowed with specific directions to the respondents to initiate necessary legislative and penal measures against the violators.
[Pp. 266, 267, 268 & 269] C, D, E & F
1994 SCMR 2061 & PLD 1994 SC 693.
Petitioner in person.
Syed Iftikhar Hussain Shah, DAG Mr. Muhammad Nawaz Bajwa, AAG & Kh. Muhammad Afzal, Legal Advisor City Government for Respondents.
Date of hearing: 17.9.2008.
Judgment
The petitioner is a practicing lawyer and also an active member of the Lahore High Court Bar Association. He has filed this writ petition in public interest.
According to the learned counsel for the petitioner, use of Polythene Bags is causing havoc in various areas of the society i.e. sewerage system in the cities; agriculture in the rural life, marine life on the coastal areas, public health: spread of dangerous diseases like cancer. The use of these bags is also making our soil infertile. According to him, the Polythene Bags can also not be disposed of through recycling for many reasons, i.e. decomposition of Polythene material is not possible. He adds that even disposal through burning of Polythene is harmful as it releases toxic gases like dioxins which have cancerous effects on health and can also cause respiratory problem, thus, after use of Polythene Bags for a short period, it cannot be disposed of by throwing, dumping or by burning.
According to the petitioner, some legislation has been done in the Province of Punjab but neither it is effective nor being implemented by the respondents. The learned counsel suggests that respondent must take an action similar to as taken in Bangladesh, and India in state of Bihar. According to the petitioner, Respondents have failed to perform their functions as required under the Constitution of Pakistan as well as a law, known as "Punjab Prohibition on Manufacture, Sale, Use and Import of Polythene Bags (Black Or Any Other Polythene Bags Below 15 Micron Thickness) Ordinance, 2002" (hereinafter to be called Ordinance, 2002).
The respondents filed their reports and parawise comments in pursuance of orders of this Court dated 4.4.2007 and 18.9.2007. According to the report submitted by Respondent No. 1, dated 8.12.2007, "there is no denying the fact that Polythene Bags are hazardous to health and environment. These bags choke the sewerage lines which are being maintained by Water and Sanitation Authority (WASA) and Tehsil/Town Municipal Administration (TMA) and also create additional problem regarding Solid Waste." Respondent No. 1 further stated that, "The Federal as well as Provincial Government along with stake-holders is fully sensitized to the issue of use of Polythene Bags and its negative impact on the Environment and necessary measures are being adopted to minimize the harm resulting from manufacture and use of polythene packing materials. However, Respondent No. 1 stated that total ban on Polythene bags is neither possible nor advisable, but through a phased program effective implementation of laws and replacing the Polythene bags with some alternate and equally economic material and its ill effects can be minimized.
According to Respondent No. 7: it is admitted fact that Polythene Shopping Bags are causing environmental hazards. Due to its non-decaying nature, they remain in the environment causing severe environmental problems. However, according to him, if polythene shopping bags are properly managed i.e. avoiding their throwing in the streets and drains, then the said material will not cause any significant problem. According to him, recycling of polythene waste is also not difficult or impossible. According to Respondent No. 7, persons who are not following the provisions of Ordinance, 2002, are being taken to the task by the concerned authorities. He added that, "we cannot follow the Bangladesh pattern by putting a complete ban as circumstances in both countries are different."
According to Respondent No. 4, it is admitted that mis-handling of polythene bags create health hazards and sewerage/choking problems and to check the above problems Ordinance 2002 has been promulgated. Section 3 of the said Ordinance imposes ban on manufacture, sale and use of black polythene bags or any polythene bags below 15 micron thickness. The offence under Section 3 of the Ordinance has also been made punishable with imprisonment for a term which may extend to 3 months or with fine, which may extend to Rs. 50,000/-. According to Respondent No. 4, rules required under Section 6 of the Ordinance have also been enacted and enforced. According to Respondent No. 4, all District Officers (Environment) throughout the Province have been directed to ensure implementation of the Ordinance, 2002.
According to Respondents No. 3 and 5, banning the use of Polythene Bags will not serve the purpose as thousands of people are involved in this business. However, according to them, the use of Polythene bags is being discouraged by the Federal Government, and Provincial Governments have been directed to take legislative and executive measures to curb the negative effects being caused by use of Polythene bags. Respondents No. 3 and 5 have also pointed out that in this regard public awareness campaign is also underway which is essential to eradicate the threat to the society being posed by the use of Polythene Bags.
The gist of the above reports and parawise comments is that negative effects and damage being caused by manufacture and use of polythene bags, is not denied. In fact, some measures have been taken by the respondents which reflect in their replies. However, respondents are not in favour of putting a complete ban on manufacturing and sale of the same on the ground of likely unemployment of thousands of people involved in manufacture, etc. The respondents belonging to the Province of Punjab have already introduced a ban through the Ordinance of 2002. Section 3 of the Ordinance reads as under:
"No person shall manufacture, sale, use or import black polythene bags or any polythene bag below 15 micron thickness or offer any kind of eatable and non-eatable goods in any black polythene bag or any polythene bag below 15 micron thickness."
The reply of Respondent No. 7, and documents annexed thereto also suggest that action under the Ordinance has already been taken against some persons.
However, some of the respondents have raised objection on maintainability of the present writ petition.
I have considered the contentions of the learned counsel for the petitioner and replies thereto of the respondents by applying my mental faculties to the best of my ability. I have also heard the learned Deputy Attorney General for Pakistan and the Assistant Advocate General, Punjab. "Hanging from the branches, flying in the air, stuck in corners and racing alongwith vehicles on roads, one can see them everywhere - these are the polythene bags". This wonder material of the 20th century has invaded every aspect of our life. It is all over the places messing up the streets and parks, clogging the drains and gutters. Hundreds of thousands of plastic bags are thrown away every day as waste, this otherwise innocent mistake of throwing them everywhere result in choke drains, bacterial germination, waterborne diseases and spread of mosquitoes. Deposited in high quantities in the fields, these polythene bags cause soil infertility. Plastic waste when dumped or thrown into rivers, ponds or sea have disastrous effects.
Destruction which is being caused by these polythene bags could not be expressed better than the above mentioned, but it seems that the respondents have not really, appreciated and realized gravity and depth of hazard and destruction being posed by the menace known as polythene bags that is why, though they did not deny threat or the damage being caused but still have taken a very lenient view. At this point, I would refer to a small sentence from a report of very famous magazine "TIME" dated April 9, 2000, at p. 32, "Climate change is caused by a lot of things, and it will take a lot of people to fix it. There is a role for big thinkers, power players, those with deep pockets - and the rest of us." (By Jeffery Kluger).
His Lordship, Syed Haider Ali Pirzada, J. of Karachi High Court, held, ---
"Public interest litigation is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or a section of the society. In the interest of administration of justice some of the old and well established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petition in Court but even by writing letters and telegrams.
Whenever the conscience of the Court was shocked on account of action or inaction on the part of the Federation or Province, the Court would exercise its jurisdiction under Article 199 of the Constitution. Public interest litigation has come to stay as one of the species of litigation in which redress may be found from the Courts of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognizing such litigation, Courts had taken care to add a word of caution that certain minimum conditions must be satisfied before the Courts shall lend assistance to such litigant asking for relief.
Public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt."
In 1994, dealing with the environmental hazard and pollution, his Lordship Saleem Akhtar, J. of the Hon'ble Supreme Court of Pakistan, held as under:
"In my view, if nuclear waste is dumped on the coastal land of Balochistan, it is bound to create environmental hazard and pollution. This act will violate Article 9. It is, therefore, necessary to first enquire from the Chief Secretary, Balochistan whether costal land of Balochistan or any area within the territorial water of Pakistan has been or is being allotted to any person. If any allotment has been made or applicants have applied for allotment, then full particulars should be supplied."
After receiving the necessary information from the Chief Secretary, his Lordship concluded as under:
"It may be noted that no one will apply for allotment of land for dumping nuclear or industrial waste. This would be a clandestine act in the garb of a legal and proper business activity. The authorities are therefore, not only to be vigilant in checking the vessels but regularly check that the allottees are not engaged in dumping industrial or nuclear waste of any nature on the land or in the sea or destroying it by any device." (PLD 1994 SC 102)
It may be noted with caution that threat to environment through pollution and other means was not allowed by the Hon'ble Supreme Court being threat to life of citizens, which was being done in the garb or name of business activity. According to a Full Bench of the Hon'ble Supreme Court of Pakistan, "a person can invoke the jurisdiction of the Superior Courts as pro bono publico provided he shows that he has approached the Court in the public interest and for the public good or for the welfare of the general public." (PLD 2004 SC 482).
The preceding paras clearly show that contents of the instant writ petition, and contention of the learned counsel/petitioner, do not relate to his person or any individual instead they relate to "life" of the people of Pakistan, hence fulfill the requirements of pro bono publico.
Public interest litigation in the recent years has increased not only in our country rather we can see that all around in the world. There can be more than one reasons for that: Firstly, when people fail to get relief from other organs of the State, i.e. Executive and Legislature, they resort to the Judiciary; Secondly, the Constitution of the day provides fundamental rights as well as principle of policy. One of the functions of the Supreme Court/High Court is to enforce the Constitution of Pakistan and its provisions including fundamental rights guaranteed therein. The High Court under Article 199(1)(i)(ii)(c) and (2) is mandated to ensure protection and enforcement of fundamental rights i.e. "life" of people.
A former Chief Justice of Lahore High Court while commenting upon writ jurisdiction of the High Court at the time of his installation as Chief Justice in 1958 said, "mandamus and certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume." His Lordship further stated, "that God fulfills Himself in many ways and that we (Judges) are the humble instruments of his fulfillment." According to his Lordship, "the writ jurisdiction is a modern manifestation of God's pleasure and that God's pleasure dwells in the High Court." (Chief Justice Cornelius of Pakistan by Ralph Branbiti, Pp. 42-43, published by Oxford in 1999).
According to
Article 9 of the Constitution of Pakistan no person shall be deprived of his
life' or property save in accordance with law. The expression "life" has been defined in a number of judgments handed down by the Superior Courts of
Pakistan. This expression has been assigned expanded definition. Briefly,life' of a person does not mean only a vegetative life, life requires fulfillment of all requirements which are needed for a complete, normal and dignified life, including a healthy environment. Furthermore, Article 9 needs to be read with Article 138(d) of the Constitution. It is a requirement of the
Constitution of Pakistan, that aspirations of these two articles must reflect in the legislation and policies of both Federal as well as Provincial Government.
The Hon'ble Supreme Court of Pakistan in General Secretary Vs. Director Industries, 1994 SCMR 2061, held as under:--
"The word "life" has to be given an extended meaning and cannot be restricted to vegetative life or mere animal existence. In hilly areas, where access to water is scarce, difficult or limited, right to have water free from pollution and contamination is a right to life itself. The right to have unpolluted water is the right of every person wherever he lives".
In Shehla Zia Vs. WAPDA, PLD 1994 SC 693, the Hon'ble Supreme Court of Pakistan held as under:--
"The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor it can be restricted to the vegetative or animal life or mere existence from start to death. Life includes all such amenities and facilities."
All the respondents conceded that use of polythene bags causes choking in the drains and sewerage system. The Lahore High Court already held in Aamer Bano Vs. S.E. Highways, PLD 1996 Lahore 592 that, "the root cause of the ugly situation prevailing in the city detailed above, is on account of the failure of the sewerage system in the city, therefore, with the assistance of the heads of various departments and the representatives of the community and of course with assistance of the learned A.A.G and the counsel for the parties, I have right to resolve the dispute through consensus." His Lordship Muhammad Aqil Mirza J. further observed, "the position that emerged, therefore, is that to alleviate the miseries of the large number of citizens of Bahawalpur and to secure them their fundamental right guaranteed under Article 9 of the Constitution with regard to protection of their lives and from diseases and inconvenience, it will be just and proper to issue suitable directions which will ensure the restoration of sewerage system in the city of Bahawalpur."
Some of the respondents pointed out that a complete ban on manufacture and use of polythene shopping bags would deprive thousands of people of their jobs. This stance of respondents is self contradictory. On the one hand, they concede that manufacture and use of polythene bags is causing damage in many areas of life (details are not needed to repeat), on the other hand they do not want a complete ban or prohibition on manufacture and sale of these polythene bags on the ground of likely deprivation of employment. In crime and illegal professions, the delinquent and accused persons take similar pleas. For example, people involved in smuggling of narcotics justify it on similar plea. Can this Court approve or allow that? Most of the people employed in the smuggling of narcotics are poor, women, even small children are employed as carriers in this heinous offence. Moreover, are we poorer than the people of Bangladesh? After noting the horrific effects in different areas of our life by use etc. of Polythene bags, this Court is constrained to take a holistic approach instead of considering only open aspect of likely unemployment. Thus, the plea of the respondents that a complete prohibition may not be imposed on manufacturing etc. is dismissed and observed as untenable. Nothing is more precious than "life". Polythene bags (shoppers) are killers, therefore, they must be killed.
The above survey of the Constitutional provisions and case law clearly leads to the conclusion that petitioner fulfills the criteria of being an aggrieved party and this writ petition is maintainable under Article 199 of the Constitution. Thus, this writ petition is allowed.
Prohibition or restrictions on use of polythene bags (shoppers) has already been enforced/introduced in some other countries. In this context, Bangladesh has already been mentioned. According to Section 6A of the Bangladesh Environment Conservation Act, 1995,--
"If, on the advice of the Director General or otherwise, the Government is satisfied that all kinds or any kind of polythene shopping bag, or any other article made of polyethylene or polypropylene, or any other article is injurious to the environment, the Government may, by notification in the officials Gazette, issue a direction imposing absolute ban on the manufacture, import, marketing, sale, demonstration for sale, stock, distribution, commercial carriage or commercial use, or allow the operation or management of such activities under conditions specified in the notification, and every person shall be bound to comply with such direction:
Provided that such direction shall not be applicable to the following cases--
(a) if the article specified in the notification is exported or used for export;
(b) if the direction mentions that it is not applicable to any particular kind of polythene shopping bag."
Section 3 of the "Balochistan Prohibition On Use And Sale Of Polythene Bags Ordinance, 2001", reads as under:
"No person shall import, make, sale, and offer any kind of eatable and non-eatable goods in any kind of polythene bags in the Province of Balochistan."
In May, 2003, South Africa made it illegal for shops to offer flimsy plastic shopping bags, which had been disparagingly called the nation's national flower because of the large numbers that were dumped around the country. Instead, retailers are offering, at a price, more ecologically friendly polypropylene bags or thicker plastic bags that are more economical to recycle. And many South African customers are bringing their own containers. In Germany and Canada Super-Markets have taken their own initiative by making shoppers to pay for shopping bags. Some measures have also been taken in the Ireland.
The respondents can take advantage of above mentioned experiences from the above mentioned jurisdictions.
(i) That Respondents No. 1, 4, 6 and 7 shall ensure strict enforcement and compliance of provisions of the Ordinance, 2002. In this regard, they shall also cause registration of criminal cases against the offenders under the provisions of the Ordinance, 2002 and Pakistan Penal Code. Relevant provisions are provided under Chapter XIV of Pakistan Penal Code;
(ii) That in view of catastrophic losses being caused by the polythene shopping bags, the Respondent No. 1 shall initiate necessary measures for required legislation, within six months, for an absolute ban on manufacture, sale, marketing, use and import, etc. of polythene shopping bags of all kinds whatsoever. There will be a complete prohibition, after six months from today, on manufacture, sale, use, stock, marketing and import, etc. of polythene shopping bags within the Province. The petitioner or any other citizen might file a contempt petition if order of this Court is not complied with as noted above; and in the meanwhile respondents shall substitute the polythene shopping bags with alternatives.
(iii) Respondents are further directed to take some definite and positive steps to create awareness, amongst the people, of disastrous effects being caused by use of polythene bags.
Before I part with this judgment, I want to record my appreciation for efforts of the petitioner, Barrister Ali Zafar and all others who have assisted/shared their views with the Court during proceedings of this petition before this Court.
(J.R.) Order accordingly.
PLJ 2009 Lahore 269
Present: Ali Akbar Qureshi, J.
ASGHAR ALI and 3 others--Petitioners
versus
SENIOR MEMBER BOARD OF REVENUE, LAHORE and 4 others--Respondents
W.P. No. 44-R of 2007, decided on 4.7.2008.
Audi Alterm Partem--
----Justice should not be done but seem to have been done--Allotment order in favour of the petitioner being cancelled/withdrawn of the same authority/department and functionary and ultimate beneficiary would be department, therefore, it was sin qua non that losers be provided fair and reasonable opportunity of hearing and to defend themselves against the unilateral adverse action--Even an encroacher having no title should not be thrown away but in due course of law--Petition accepted. [P. 278] A
AIR 1985 SC 1416, AIR 1977 SC 985 & 1997 MLD 2864, AIR 1987 SC 593, PLD 1991 SC 1029, 1994 SCMR 2232 & 2005; SCMR 678, fol.
Mr. Muhammad Shehzad Shaukat, Advocate for Petitioners (in W.P. 44-R/2007).
Barrister Mehmood A. Sheikh, for Settlement Department.
Mr. Naseer Ahmed Sial, Advocate for Petitioner (in W.P. 57-R/2007)
Mr. Muhammad Iqbal, Advocate for Respondents.
Ch. Waseem Ahmed Badhar, Advocate for Petitioner (in W.P. 86-R/2008).
Sardar Muhammad Ramzan, Advocate for Petitioner (in W.P. 115-R/2007).
Mr. Imtiaz Mahal, Advocate for Respondent (in W.P. 115-R/2007).
Mr. Mehmood Khan, Advocate for Petitioner (in W.P. 10266-R/2007).
Date of hearing: 4.7.2008.
Order
Identical Writ Petitions 44-R-2007, 57-R-2007, 86-R-2008, and WP 10266-R-2007 raising similar questions of law and facts claiming almost same relief are being disposed of together by means of this consolidated order.
The precise background & history of the case is that Asghar Ali petitioner in WP 44-R-2007, claiming himself to be a displaced persons from Ferozabad India was in possession of verified claims of 5456 and 5505 PI Units by means of claim form No.135 and 4132 respectively filed an application in terms of Sections 10 & 11 of the Displaced Persons (Land Settlement) Act 1958 against Khurshid Ali Shah with reference to his bogus allotment, which was accepted by EASO Additional Settlement Commissioner with powers of Chief Settlement Commissioner Sialkot vide order dated 30.5.1978 by allotting 1285 Kanals 7 Marlas land vide Khhata No.RL-II No.18 & 29 Narowal, which was confirmed on 16.11.1978.
Khurshid Ali allottee, being aggrieved of the aforesaid order dated 30.5.1978 invoked the Constitutional Jurisdiction and the same was accepted by this Court vide order dated 30.10.1988 setting aside the order impugned dated 30.5.1978, which was assailed by the petitioner through CPSLA 794 of 1990, whereby the order of this Court dated 30.10.1988 was upheld. Thereafter, petitioner filed a Review Petition 76-L-1992 seeking review of CPSLA 794 of 1990, but that too was dismissed by this Court by way of order dated 10.11.1992 with the observation that petitioner's request soliciting satisfaction of his claim be considered sympathetically.
In the light of the observations of this Court enumerated in order dated 10.11.1992, petitioner filed an application before Member/Chief Settlement Commissioner Punjab (Respondent No. 3) seeking allotment of alternate land, but it remained undecided, and thus, petitioner moved a Writ Petition 130-R of 1993, which was disposed of by this Court vide order dated 7.7.1993 directing the authorities concerned to dispose of petitioner's pending application, and that is how, petitioner moved an application dated 24.7.1993, and the matter was purportedly entrusted to Deputy Settlement Commissioner for further proceedings in the matter. And in terms of letter dated 25.8.1993 record was requisitioned from the office of the Deputy Commissioner Narowal and eventually on 8.9.1993, statement of Zulfiqar Ali Naib Tehsildar was recorded by Deputy Settlement Commissioner so as to endorse the validity of the claim of Petitioner No. 1. Subsequently, it appears that the matter was entrusted to AC/Notified Officer Sheikhupura by the Chief Settlement Commissioner vide order dated 29.3.1995 and on consideration of all the pros & cons of the issue, the Notified Officer allotted alternate land to Petitioner No. 1 in village Farooq Abad district Sheikhupura, vide order dated 14.2.1996, but it was subsequently recalled on 13.3.1996 on the ground that the land allotted to the petitioner was not available for allotment. Hence, the Notified Officer Sheikhupura again became seized of the matter, who in terms of order dated 15.9.2003 allotted land to Petitioner No. 1 and similar allotments were also made through order dated 14.5.2003.
Against the aforesaid allotment orders dated 15.9.2003 and 14.5.2003, as many as four Writ Petitions 114-R-2003, 133-R-2003, 151-R-2003 and 8 R-2004 were filed before this Court from time to time, and while disposing of Writ Petition 151-R-2003 through order dated 25.3.2004, it was observed that petitioners therein could approach the Member Board of Revenue to the extent of land allegedly in their respective possession.
Being aggrieved of the order dated 25.3.2004, petitioners in WP 151-R-2003 preferred an ICA 154-2004, but it was dismissed by a Division Bench of this Court at limine stage of the hearing of the case vide order dated 27.5.2004 concluding that "this Court issued direction to decide the application filed pursuant to the said observations of the Apex Court. Notified Officer has passed the said order accordingly. Now to our mind, by all means he has acted in accordance with the said command of Honorable Supreme Court, and it does not lie in our domain to sit in judgment over the said order of the Honorable Supreme Court.
Likewise, Writ Petition 114-R-2003 was dismissed as withdrawn and WP 8-R-2004 was dismissed and in WP 133-R-2003, case was remanded for consideration in the light of the observations enumerated in WP 28-R-1997. It may be stated that against the aforesaid remand order, Petitioners 1 and 2 herein filed CPLA 2818-2004, which is stated to be still pending before the Apex Court.
It is the claim of the petitioner that allotment was made in his favour through Mutation No. 1829 dated 15.7.2003, 1618 dated 15.7.2003 and Mutation No. 1275 dated 28.7.2003, whereafter, he alienated part of the land in favor of Petitioners No. 2 to 4 herein, vide Mutations No. 1830,1621 and 1276 respectively showing the Petitioners 2 to 4 duly incorporated in revenue record as owners in possession since then.
On 28.7.2004, a miscellaneous application was filed on behalf of Ghulam Farid Respondent No. 4 herein before the Senior Member Board of Revenue, which was entrusted to Member (Judicial III) Notified Officer Lahore, whereby report and parawise comments were solicited, and apart from Petitioner No. 1, reply and parawise comments were also furnished by the District Officer Revenue Sheikhupura and the Settlement Clerk reiterating that after dismissal of ICA 154-2004 the issue was pending decision before the Apex Court, which had to be awaited.
However, on 13.4.2005 the Member (Judicial III) reported to the Chief Settlement Commissioner on the executive side suggesting that the matter be referred to the Chief Settlement Commissioner on the executive side first to ascertain the current situation of the case still subjudiced before the Apex Court and thereafter to proceed further in the matter after soliciting legal advice.
In the above backdrop, apparently the matter remained pending with the executive side so as to await the verdict of the Apex Court and at one point of time on 12.4.2007, the matter was placed before the Chief Settlement Commissioner who passed an order dated 30.4.2007 recalling the orders of the AC/Deputy Settlement Commissioner Sheikhpura dated 14.2.1996 and 13.3.1996 and those of the District Officer Revenue/Deputy Settlement Commissioner Sheikhupura dated 14.5.2003 and 15.9.2003. Hence, this petition.
It is contended that Respondent No. 3 has passed the impugned order arbitrarily & unilaterally which is predominantly illegal, unwarranted and without jurisdiction. It is next asserted that order impugned has been passed in flagrant disregard of the principles audi alterm partem without application of judicial mind on the executive side. Adds that the impugned order is palpably coram non judice and devoid of any lawful authority & jurisdiction. Further contends that after repeal of the evacuee laws through Evacuee Property & Displaced Person (Repeal) Laws Act No. (XIV of 1975), no power of review/revision was available enabling Respondent No. 3 to pass the order impugned dated 30.4.2007 and being the Notified Officer could not proceed to annul the orders passed by the other Notified Officer. It was next contended that power to review an order is a substantive right and not a matter of mere procedure, and that power to review is not available unless specifically conferred by statute. Above all, legality and validity of the impugned order is challenged on yet another ground that it proceeds to set aside the judgments already upheld by a division Bench of this Court in ICA No. 154-R-2004 which is not only manifestly contemptuous but also calls for initiation of appropriate action. Adds that undue & indecent haste has been deployed in passing the impugned order notwithstanding recurring observations on the file requesting Respondent No. 3 to await the final decision of the Apex Court, but Respondent No. 3 proceeded to pass the impugned order condemning Petitioners 2 to 4 unheard and hence the same is a nullity in the eye of law.
The learned counsel appearing on behalf of respondent Barrister Mehmood A. Sheikh intended to argue on the point as to whether in the facts & circumstances emerging from the instant case, the right of hearing "audi alteram partem" is available to the petitioners and with mutual consent of the learned counsel for the parties, case was adjourned for being argued as prayed for.
Barrister Mehmood A. Sheikh, representing the Settlement Department contended that "the rule of audi alteram partem" is not an absolute rule, rather the same is somewhat flexible and would only be applicable in a rare & exceptional cases with peculiar facts & circumstances. Adds that the petitioners would have to show their legal right before asking for the said remedy as the rule of audi alteram partem is not a benefit to be granted in favor of the litigants, rather as a matter of fact it is for the Court, Officers, Authority and the Tribunal etc to see that by violating this rule, any prejudice has been caused to the petitioners or not. Further canvasses that this maxim can only be agitated at appellate stage, and the petitioners has a legitimate right in law to file an appeal, so no interference warranted at this stage to decide the lis on merit after scrutiny of the record. Adds that the rule of audi alteram partem is the requirement of the Court and not the litigant. To substantiate his assertions, learned counsel relies on the following judgments AIR 1985 SC 1416 Union of India & others Vs Tulsi Ram Patel AIR 1997 Supreme Court 965 The Chairman Board of Mining Examination and Chief Inspector of Mines and another Vs Ramjee, 1977 MLD 2874 Rehana Mehmood and 3 others Vs Azad Government and 5 others, AIR 1987 SC 593 R.S. Pass Vs Union of India and others, 1994 SCMR 859 Export Promotion Bureau and others Vs Qaisar Shafiullah, PLD 1997 SC 351 Province of the Punjab through Secretary Health Department Vs Dr. S. Muhamamd Zafar Bokhari, 1988 SCMR 516 Zamir Ahmed and others Vs Bashir Ahmed and other, PLD 1991 SC 1029 Abdul Qadir and others Vs Settlement Commissioner and others.
Conversely, learned counsel for the petitioner namely Mr. Shahzed Shaukat Advocate contends that it is admitted on record and also from the findings of the order impugned herein that neither any notice issued to the petitioners nor any right of hearing or defending themselves was afforded, and the order impugned herein is liable to be set at naught on the score of audi alteram parterm. Further contended that the allotment was made in favor of the petitioners by the respondent department after detailed scrutiny, and the inquiry was initiated on an application filed by one Ghulam Farid, wherein no opportunity to even submit the record pertaining to the case was provided to the petitioner, Learned counsel also referred the judgment of this Court and that of the Apex Court in the instant case, whereby in a Civil Review Petition 76-L-1992 the learned Judges of the Apex Court on the request of the petitioners observed that case of the petitioners for satisfaction of unsatisfied claim may however be considered sympathetically. Further contended that the petitioner in view of the said observations filed application for the satisfaction of his claim, and after the valid allotment, petitioner became the lawful allottee of the property in question thereby vested right having been accrued in his favor, so the condemnation of the petitioner being unheard is not supported by any law and rule.
Lastly contended that the allottee/petitioners have already disposed of the property by way of valid transactions but those subsequent bona fide purchasers have not been summoned or provided any opportunity to present their version/defence. Reliance is placed on 1994 SCMR 2232 Mrs. Anisa Rehman Vs PIAC and others, 2005 SCMR Hazard (Hilltract) Improvement Trust through Chairman and others Vs Mst. Qaisra Elahi and others, KLR 1987-L-S Pakistan Vs Public at Large.
Without commenting or adverting to the facts of the case I would confine and focus myself to decide the matter merely on the question of audi alteram partem so as to determine whether any right of hearing was provided to the petitioners and that the same was required by law.
Undeniably, in the instant case the inquiry was initiated on an application filed by one Ghulam Farid to the Chief Secretary Punjab, Senior Member Board of Revenue Punjab and Chief Settlement Commissioner Punjab, the said application was marked to Member Judicial III/Notified Officer. An other identical application was also filed by one Rashid Ahmed to the Minister Colonies Punjab and the same was also finally referred to the Notified Officer. The record reveals that a notice was issued by the Member Judicial in the name of the petitioner (Dr. Asghar Ali) on 30.4.2004. The record further transpires that the petitioner also filed reply to the application filed against him on 1.9.2004. Thereafter, a notice by Member Judicial/Chief Settlement Commissioner namely Ch. Zafar Iqbal was issued in the name of Tehsildar City whereby he was directed to inform the petitioner regarding the fixation of the case for 30.4.2007. The said notice was sent to Tehsildar City through registered AD and not in the name of the petitioner. The aforesaid record was submitted by the learned counsel for Settlement today in the Court and candidly stated that no other record is available as regards issuance of notice to the petitioner.
The learned counsel for the department has already submitted that he is arguing the case considering that no notice was issued to the petitioner before passing the order impugned herein. It is also notable that prior to the order impugned here, an inquiry was conducted on 13.4.2005 by the Member Judicial Ill/Notified Officer but the said inquiry is also silent as to whether any notice was issued to the petitioner or any opportunity was provided to him to participate in the proceedings. Further order impugned is also silent regarding issuance of notice, its service or otherwise issuance of any ex parte order, thus it is sufficient to understand that the petitioner was not served with any notice, nor the opportunity to defend or participate in the proceedings was provided to the petitioner by the Notified Officer, which is of course violative of principal of natural justice. Learned counsel to substantiate his assertions referred the aforesaid judgments. Few references from the judgments cited by the learned counsel for the department AIR 1985 SC 1416, relevant portion reproduced:
Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straight jacket. They are not immutable but flexible. These rules can be adapted and modified by statute and statutory rules and also by the Constitution of the Tribunal which has to decide a particular matter and the rules by which such tribunal is governed. There is no difference in this respect between the law in England and in India".
AIR 1977 SC 965
"Natural justice is no unruly horse, no lurking land mine nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, feature and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Un-natural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating."
1997 MLD 2864
"Audi Alterant partem--application-opprtunity of being heard- For earning a right of hearing, a person must show that he was deprived of some right vested in him--an order without jurisdiction does not create any vested right and does not entitle person concerned to claim personal hearing
AIR 1987 SC 593 Page 605
"These principles audi alterant partem do not apply to all cases and situation. Application of these uncodified rules are often excluded by express provision or by implication. This right can also be excluded where the nature of action to be taken, its object and purpose and the scheme of relevant statutory provisions warrant its exclusion, nor can the audi alterant partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands."
PLD 1991 SC 1029 Maxim
"audi alterant partem. Right of opportunity of hearing is not merely a technical right, it is linked with the tangible, factual and legal aspects of the case and it would depend upon the facts and circumstances thereof as to whether observance of the technical rule of audi alteram partem by a lower forum and the ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice. If the forum before which such a question is raised is able to examine the merits, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings which as an end-- product also causes injustice and misery in so far as the delay, expenses and anxiety are concerned"
With all respect to the judgments referred to above, the ratio of the same may be summarized that applicability of the rule of audi alteram partem is to be applied and construed in the circumstances & facts of each case, the rule is flexible and can be ignored if a prompt action to meet the end of injustice is required. If this rule is specifically excluded from the statute, this rule can be ignored if aggrieved person cannot show his legal right.
F Article 199 Maxim audi alteram pertem
--employees of statutory corporation--reversion--absence of statutory rules--remedy--corporation while taking action against its employee neither issuing show-cause notice to him nor giving him opportunity of hearing--corporation having violated principles of natural justice its action in reverting employee was declared to be without lawful authority and of no legal effect. That corporation would have action to take fresh action against employee in accordance with law.
In the case reported as 2005 SCMR 678 Para 12 It has been held:
"that where adverse action is contemplated to be taken against the person/persons he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provisions of natural justice and even in absence thereof it is to be read/considered as a part of said statute in the interest of justice. It is important to note that principle of natural justice is now made inbuilt part of civil contract like the one under discussion. This principle originates from Islamic system of justice as evident from historical episode, when "Iblis was scolded for having mislead Hazrat Adam PBUM into disobedience of Allah's command, Almighty Allah called upon Iblis to explain his conduct and after having an explanation from him which was found untenable he was condemned and punished for all times to come". Thus it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law.
On careful consideration of the facts and circumstances of the instant case and the law laid down by this Court from time to time, it can safely be said, that the right of hearing cannot be denied if substantially an adverse order is being passed. The Constitution has adequately safeguarded the protection to the properties of the citizens while inserting Article 24 therein. A citizen or a person to whom a right has been accrued qua the title of the property in consequence of a procedure available, the said title or the right to retain the ownership of the property can be withdrawn but in due course and in accordance with law. The provisions of General Clauses Act and the judgments delivered by the Honorable Supreme Court of Pakistan in relation to the principles of audi alterant partem which has become of substantive part of every statute, the said right of title of property can only be interfered or taken away after proving opportunity of hearing and defending. Anyhow, the right of hearing or defending in any case should have been given particularly before taking any punitive/adverse action with the assumption that the person whose title or right is being withdrawn could have satisfied the concerned authorities by producing documents in support of his title.
Now having a glance on the facts of the instant case, admittedly, the petitioner was given the allotment by the Settlement Department obviously after fulfilling and complying with all codal/procureal formalities on the subject and if the allotment made by the Department is required to be withdrawn at subsequent stage, at least the petitioner was entitled to be served a notice. In this case, firstly notice was issued in 2004 and the petitioner in response thereto, to save his property filed the reply of the notice as well as the application filed against him but thereafter, after a long time, no further action was initiated nor the petitioner was informed as to the hearing or its date, but all of a sudden impugned order was passed. Even the impugned order is totally silent as to whether any notice was issued to the petitioner; in case of non appearance any action as required by law was taken. The respondent functionary who passed the impugned order has not even uttered a single word to the effect that in the presence of the available record, the presence of the petitioner was not required.
The department after the allotment of the land to the petitioner remained inactive & indolent for a considerable period of time, and suddenly became vigilant and cancelled the same by way of order impugned in defiance of universally acknowledged fundamental and inviolable right of audience. In our judicial system and also vogue in sub continent it is mandatory even for an executing Court to provide an opportunity of hearing to the judgment debtor by issuing a notice to file the objections, and if the objections are filed, the executing Court cannot proceed further without finally deciding the same. It is notable that in the above proposition, the decree by providing fair opportunity of hearing to the parties is passed but the law makers at every step of the lis has taken care of the fundamental right of a litigation. To my mind, the incorporation of Section 151 CPC also supports the proposition. The word inherent jurisdiction had a wide connotation and meanings in the sphere of the administration of justice. A Court from its very inception is equipped with the inherent powers to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. A bare perusal of Section 151 CPC reveals that the Court has to use the inherent powers to meet the ends of justice. So in any case it is the fundamental requirement of every decision that both parties must be accorded fair opportunity of hearing and defending themselves before arriving at a definite conclusion, and there is no cavil with the proposition that justice should not be done but seem to have been done.
Adverting to the circumstances & facts emerging from the instant case, the allotment order in favour of the petitioner is being cancelled/withdrawn of the same authority/department and functionary and ultimate beneficiary would be the department, therefore, it was a sine qua non that losers be provided fair and reasonable opportunity of hearing and to defend themselves against the unilateral adverse action. It has been laid down in a number of judgments by this Court and the Apex Court that even an encroacher having no title should not be thrown away but in due course of law.
For the foregoing facts & reasons, I am of the considered view that it is a fit case for interference and invalidation of the impugned order which is palpably not sustainable in the eye of law, and thus by accepting these petitions, I set aside the same being violative of the principle of audi alteram partem. The parties to the lis at hand shall appear before the Chief Settlement Commissioner on 25.7.2008 who shall decide the case afresh on merit after providing fair and full opportunity of hearing to the parties to defend themselves.
(M.S.A.) Petitions accepted.
PLJ 2009 Lahore 279 (DB)
[Multan Bench Multan]
Present: Muhammad Khalid Alvi & Syed Hamid Ali Shah, JJ.
NAWABZADA IFTIKHAR AHMAD KHAN BABAR--Petitioner
versus
CHIEF ELECTION COMMISSION ISLAMABAD and 5 others--Respondents
W.P. No. 607 of 2008, decided on 26.2.2008.
Representation of the People Act, 1976 (XXXV of 1976)—
----S. 14(5)--Candidate has right to prefer an appeal against acceptance of nomination papers--Scope of--Tribunals constituted u/S. 14 of the Act of 1976 were required to decide all the appeals against acceptance or rejection of the nomination papers by the Returning Officer before 15.12.2007--Any appeal which remains undecided, within the target date, is to abate. [P. 281] A
Constitution of Pakistan, 1973—
----Art. 199--Failure of petitioner to file appeal against the acceptance of nomination papers of respondent is fatal and is not open to exception in the constitutional petition at such belated stage. [P. 282] B
Representation of the People Act, 1976 (XXXV of 1976)--
----S. 14--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Candidature is not a secret matter--Objection to nomination and appeal against acceptance of nomination papers--Process of election has to be completed within a time frame remedy before tribunal is more adequate and convenient--Election of respondent can be called in-question only through election petition. [P. 282] C
Constitution of Pakistan, 1973—
----Art. 225--Bar of Art. 225 of the Constitution and Section 52 of Representation of the People Act, 1976 is meaningful. [P. 282] D
Writ of Quo-Warranto--
----Writ of Quo-Warranto can be issued to the person who is holding public office--No notification as to return of respondent issued cannot be claimed that respondent is holding public office--Petition dismissed. [P. 282] E
Mr. M.A. Hayat Haraj, Advocate for Petitioner.
Mian Muhammad Abbas, Addl. A.G. on Court's call.
Date of hearing: 26.2.2008.
Order
Syed Hamid Ali Shah, J.--Petitioner through filing instant petition, has voiced his grievance that Respondent No. 6, a returned candidate, has declared his qualification as M.A. (Alshahada-tul-Aalmia) from Jamia Rizwia, Sardarul Maddaras, which, on verification, was found not to have been issued by Tanzeem ul-Madaris, Ahal-e-Sunnat, Pakistan and his claim that he is a graduate, is false. His claim to hold public office is under no authority of law.
Learned counsel for the petitioner has contended that the Sanad, besides being forged, is not issued by an institute, which is recognized by the Higher Education Commission of Pakistan. While referring to the case of "Sanaullah Khan and others Vs District Returning Officer, Mianwali and others" (PLD 2005 858). it in contended that the Sanad by an unrecognized Madrasa, has no value. Learned counsel added that Respondent No. 6 on the basis of the degree (Sanad) in question, applied for B.A. examination and was issued Roll No. 26536, but his result was not declared due to "unfair means case against him". Learned counsel submitted that Respondent No. 6 is not eligible to contest and hold office of Member, National Assembly and this fact of his disqualification, is being brought to the notice of this Court, so that it may be inquired from Respondent No. 6 that under which authority of law, he purports to hold public office/Member, National Assembly. Learned counsel has submitted that writ of Quo-Warranto, is inquisitorial proceedings and this Court, in it's constitutional jurisdiction, can take a suo motu action and issue a writ of Quo-Warranto. Learned counsel supported his contention by referring to the case of "Hafiz Hamdullah vs. Saifullah Khan and others" (PLD 2007 52) & "Lt. col. Farzand Ali & others vs Province of West Pakistan through the Secretary, Department of Agriculture, Govt. of West Pakistan, Lahore" (PLD 1970 SC 98).
Learned Law Officer, on Court's call, has appeared and submitted that petition, at this stage, is not maintainable. The notification has not, as yet, been issued, therefore, a writ of Quo-Warranto is pre-mature.
Heard learned counsel for the petitioner, learned Law Officer and record perused.
The petitioner filed his nomination papers and certain objections were raised by Jamshaid Ahmad Khan, a contesting candidate and Muhammad Asghar. The objection petition was rejected by the Returning Officer vide order dated 28.01.2008. (Detailed order of the Returning Officer, has not been filed by the petitioner with this petition). No material is available on record to show that an appeal against acceptance of nomination papers was filed by anyone. Petitioner has admittedly, not filed any objection on the nomination of Respondent No. 6. Order of Returning Officer, accepting the domination papers, is assailable in appeal. A candidate has the right to prefer an appeal against the decision of the Returning Officer against the acceptance of nomination papers, as envisaged, under the provisions of Section 14 (5) of the Representation of the People Act, 1976 (Act No. LXXXV of 1976). Similarly, a voter has the right to bring the factum of disqualification of a candidate, by supplying information or material before a Tribunal, constituted under the Act of 1976. The Tribunal, on the basis of such information or material, can call upon such candidate to show-cause, why his nomination be not rejected. The Tribunal, if satisfied that the candidate suffers from any disqualification, con reject the nomination papers of such candidate.
The Tribunals constituted under Section 14 to the Act of 1976, were required to decide all the appeals against acceptance or rejection of the nomination papers by the Returning Officers, before 15.12.2007, Any appeal, which remains undecided, within the target date, is to abate. This notification conveys the intention that the question of acceptance or rejection of nomination papers, has to be completed before 15th of December, 2007, so that the voters must know about the candidates in their constituency. The candidature of Respondent No. 6 was not a secret matter. It was open to everyone and the question of scrutiny of a candidate was widely publicized. Petitioner had not raised objection at the relevant time.
Another opportunity was available to the petitioner, to approach the tribunal in appeal. The petitioner has not availed the remedy, available under law. The failure of the petitioner to file appeal against the acceptance of nomination papers of Respondent No. 6, for various reasons, is fatal and the same is not open to exception in the constitutional petition, at this belated stage. Firstly, candidature of Respondent No. 6 is not a secret matter. Secondly, objection to nomination and appeal against acceptance of nomination papers, is commonly known to every one. Specially to those who are interested in the nomination of a candidate. Thirdly, the process of election, like scrutiny of nomination, has to he completed within a time frame. Fourthly, remedy of appeal before the tribunal is more adequate and convenient, if judged with reference to time, speed and convenience of obtaining relief, comparing it with that of invoking the constitutional jurisdiction of this Court. And lastly that law (Act LXXXV of 1976) has provided a procedure. Interference in constitutional jurisdiction, will render the whole process of scrutiny and nomination of a candidate, as an exercise in futility.
Now, at this stage, when the elections have been held and a formal notification is close on heels, the whole process of election cannot be set at naught. Section 52 of the Representation of the People Act, 1976 needs mention which is reproduced hereunder:--
"52. Election petition.--(1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner)."
The election of Respondent No. 6 can be called in question only through an election petition, which provides complete procedure for determination of election disputes. Bar of Article 225 of the Constitution and Section 52 of Act of 1976, is meaningful to rest the determination of lis or election dispute, with the tribunal, which has been constituted for that purpose.
There is another angle to view the instant controversy. A direction in a writ of Quo Warranto can be issued to the person, who is either holding or purporting to hold a public office. No notification as to the return of Respondent No. 6, has been issued, therefore, it cannot be claimed that Respondent No. 6 is holding a public office, so far purporting to hold a public office is concerned.
Purporting as defined in Law Lexicon means "when power is given to do something" or "to have a certain effect". Similarly, term purporting as defined in Stroud's Judicial Dictionary, means "an act done in pursuance of a power or a thing or a professed exercise". The respondent can assume the public office, only when he is notified. He can act as MNA, only when there is a notification. On the basis of consolidation of results by the Returning Officer, it cannot be said that Respondent No. 6 is purporting to hold a public office.
Respondent No. 6 until and unless, is not notified as a returned candidate, cannot profess or claim to be a returned candidate, therefore, a Quo-Warranto, at this stage, is pre-mature.
Viewing the case of the petitioner from any angle, this petition is not maintainable and is accordingly dismissed.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 283 (DB)
[Multan Bench Multan]
Present: Saif-ur-Rehman & Kazim Ali Malik, JJ.
SEHRISH ZAINAB--Appellant
versus
CHAIRMAN SELECTION COMMITTEE PRINCIPAL KING EDWARD MEDICAL UNIVERSITY, LAHORE and 2 others--Respondents
ICA No. 32 of 2008 in W.P. No. 933 of 2008, heard on 21.4.2008.
Educational Institution--
----Admission in medical college--Reserved seats--Candidate for reserved seats are required to have a domicile of the same district area and must have completed his/her school and higher secondary education from the same district area--Appellant succeeded to get admission against the reserved seat over and the criteria through back door adverse to interest and rights equipped with prescribed qualification and criteria would not mean that appellant earned some legal rights in her favour--Appeal dismissed. 285 & 286] A
Mr. M. Sohail Iqbal Bhatti, Advocate for Appellant.
Nemo for Respondents.
Date of hearing: 21.4.2008.
Judgment
Kazim Ali Malik, J.--Applications for admission in Medical Colleges in the Punjab for the session 2007-08 were invited. Miss Sehrish Zainab, daughter of Abid Rasool, resident of Sokra, P.O Khas, Tehsil Taunsa Sharif, District D.G.Khan-appellant and Mst. Lubna Naz daughter of Hafiz Ullah resident of Wahowa, Tehsil Taunsa Sharif, District D.G. Khan applied for admission in any of the medical colleges in the Punjab against the reserved seat for under developed district of D.G.Khan. The Principal Nishter Medical College, Multan-Respondent No. 3 provisionally selected Miss Sehrish Zainab, appellant, for admission against the above said reserved seat of D.G.Khan. Mst. Lubna Naz aforementioned filed a Writ Petition No. 512-2008 against the principal Dental Section, Nishtar Medical College, Multan, Mst. Sehrish Zainab, appellant and others under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and called in question the legality and correctness of admission of Miss Sehrish Zainab, appellant mainly on the ground that she was not eligible for the admission. During pendency of that writ petition, the Principal De Montmorency College of Dentistry Lahore-Respondent No. 2 cancelled provisional admission of Miss Sehrish Zainab, appellant against the reserved seat vide Office Order No. 1270-71/DCD dated 5.3.2008. Mst. Lubna aforementioned was accommodated against reserved seat vacated by Sehrish Zainab, appellant, and as a result of which, that writ petition had been dismissed has having not been pressed on 24.3.2008.
Mst. Sehrish, appellant filed a Writ Petition No. 933-2008, challenging the legality of order dated 5.3.2008 by Respondent No. 2, referred to above, on the ground that valuable legal rights occurred in her favour after her admission against the reserved seat. The writ petition was dismissed by the learned Single Judge in Chamber vide impugned order dated 31.3.2008.
Learned counsel for the appellant contended that valuable rights occurred in favour of the appellant after admission against the reserved seat and that she could not be deprived of her vested rights. Reliance was placed on the case law laid down in Chairman Selection Committee/Principal KEMC Lahore (1997 S.C.M.R. 15). Admittedly, Sehrish, appellant, and aforementioned Lubna Naz, applied for their admission against under developed district seat of D.G.Khan. We find it convenient to resolve first as to which of them was/is eligible for admission against the reserved seat. The Prospectus published by Govt. of the Punjab, Health Department, for the session 2007-08 includes D.G.Khan in the list of under developed districts of Punjab. The criterion for eligible, candidates against the reserved seats of under developed districts is reproduced below for ready reference:--
"(i) The candidates must have a domicile of the same Districts Areas, and must have completed his/her school and higher secondary education (class one to twelve) from the same districts areas.
(ii) These seats will be in addition to any number of candidates being admitted on general merit from these districts. The candidates from each of the above 6 Districts not admitted on general merit will complete with in the districts for reserved seats. This would be subject to the condition of having passed F.Sc (Pre Medical with minimum 65% marks) and medical entry test (minimum 40% marks) and meeting the minimum required criteria stipulated in the prospectus."
The case for admission of the appellant does not fall within the ambit of criteria reproduced above. The candidates for reserved seats are required to have a domicile of the same district area and must have completed his/her School and Higher Secondary Education from the same district area. There is no dispute as to this that the appellant passed Secondary School examination (Matric) from Quetta (Province of Balochistan). Admittedly, Mst. Lubna Naz completed her School and Higher Secondary Education from D.G.Khan district. In other words, Mst. Lubna Naz was eligible for admission against the under developed district seat of D.G. Khan and Mst. Sehrish, appellant was not equipped and possessed with the prescribed qualification. The available record does not tell as to what were the reasons and grounds which persuaded the respondents to select Mst. Sehrish Zainab, appellant, for admission against the said reserved seat despite of her ineligibility. Similarly, we could not understand as to why and for what considerations, the respondents denied admission to Mst. Lubna Naz against the reserved seat despite her eligibility. Be that as it may, the fact remains that the appellant was not eligible for her admission against the reserved seat whereas Mst. Lubna Naz was eligible in the light of criteria laid down by the respondents themselves.
We have minutely gone through the precedent case and would say that the facts of the case in hand are distinguishable from that of the precedent case. In the authority case, admission in MBBS class was allowed on merits by the competent authority and was later on cancelled and withdrawn. In the case in hand, the appellant had been selected for admission against reserved seat provisionally with the clarification that if the statement given in the application and certificate attached found false subsequently, the candidate would be expelled from College. The appellant wrongly claimed to be eligible for the admission against reserved seat of D.G.Khan as admittedly she completed her education at Quetta. The mere fact that the appellant succeeded to get admission against the reserved seat over and above the criteria through back door adverse to the interest and rights of Mst. Lubna Naz equipped with prescribed qualification and criteria, would not mean that she earned some legal rights in her favour. The respondents gave admission to the appellant arbitrarily and also against the criteria and this is a conduct of Government functionaries, which cannot be approved of. Learned Single Judge in Chamber dismissed the writ petition with well reasoned order in line with the criteria of admission laid down by the respondents. The order is, therefore, not open to any exception on legal and factual grounds. We, therefore, dismiss this Intra Court Appeal with no order as to costs.
(M.S.A.) I.C.A. dismissed.
PLJ 2009 Lahore 286
Present: Sayed Zahid Hussain, C.J.
Syed HASSAN ASKARI--Petitioner
versus
MEMBER BOARD OF REVENUE, PUNJAB
and 2 others--Respondents
W.P. No. 2-R of 2005, heard on 22.10.2008.
Constitution of Pakistan, 1973--
----Art. 199--Allottment--Issuance of memorandum for cancellation--Assumption of jurisdiction--Re-opening of a past and closed matter--Assailed--Issuance of memorandum and the initiation of proceedings by the official respondents, thus, without any factual or legal justification and are declared as of no legal effect--Official functionaries of the state are expected to take maximum care before initiating proceedings in such matters on mere bald assertions of fraud and forgery--Due application of mind is necessary before issuing the process so that abuse of law and misuse of power is avoided--Valuable time in conducting futile proceedings can be saved--Petition accepted. [Pp. 289 & 290] A
Mirza Hafeez-ur-Rehman, Advocate for Petitioner.
Mr. Muhammad Hanif Khatana, Additional Advocate General, Punjab for Respondent.
Rana Maqbool Hussain, Advocate for Mr. Sameer Ijaz, Advocate for Settlement Department, alongwith Muhammad Shabir, Deputy Secretary (S&R), Board of Revenue, Punjab, Lahore.
Respondent No. 3 exparte.
Date of hearing: 22.10.2008.
Judgment
Memorandum dated 26.10.2004 whereby the petitioner was directed to appear before the Deputy Secretary (S&R) Board of Revenue, Punjab "for statement/documents in support of allegations leveled by the complaint failing which the case will be decided exparte" is sought to be assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
The circumstances in which this petition arises are that the predecessor-in-interest of the petitioner was allotted land measuring 371K 5M in Shadiwal, Tehsil Depalpur, District Okara on 29.9.1963 against the claim duly verified which area, however, was later on reduced as a result of consolidation process to 368K 18M. Ever since, the allotment has remained in the field until the above mentioned memorandum was received by the petitioner in the year 2004 which was issued at the instance of Iftikhar Ahmad Khan, Respondent No. 3. The entertainment of the miscellaneous application and assumption of jurisdiction is being assailed on several grounds including that the allotment which had become final long before the repeal of Evacuee Laws in the year 1975, cannot be reopened on any such miscellaneous application.
In the parawise comments filed by the respondents, the vital factum of allotment in favour of Syed Khurshid Ahmed, the predecessor-in-interest of the petitioner, is admitted. It is, however, stated that pursuant to the complaint of Respondent No. 3 a preliminary probe was carried out and it was found that the allotment was prima facie bogus and that the settlement authorities are competent to make determination of issues of fraud and to cancel such allotments. The comments since were not supported by any document i.e. the application of Respondent No. 3 or the "preliminary probe", the learned counsel for the Settlement Department was directed to produce the original file which has been produced today.
Respondent No. 3 has already been proceeded exparte in the connected petition (W.P. No. 114-R/2006). Both the petitions are between the share parties and concern the same subject-matter. In that petition, assumption of jurisdiction by the official respondents on another application of 2006 moved by the same person has been assailed on identical grounds. Thus, due to commonality of the factual and legal position, both the petitions have been heard together and are being decided accordingly.
The prime contention of the learned counsel for the petitioner is that reopening of a past and closed matter of allotment of land is a sheer abuse of process of the Court; the only object behind which is to cause harassment by involving the petitioner into an uncalled for litigation as the allotment was free of any taint and was validly made. He has placed reliance upon Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719), Syed Istijab Hassan and 4 others v. Member (Settlement and. Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others (1999 YLR 1627) and Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others (2002 CLC 384) to support his contentions.
The essential fact as to the allotment of land made in the year 1963 in favour of the predecessor-in-interest of the petitioner has not been denied. It is also admitted that as per "Misl-e-haqiat pertaining to the year 1966-67 prepared after consolidation, the land is recorded as 368K-18M." The allotment remained undisputed and unchallenged till the year 2004 when for the first time, Respondent No. 3 made a miscellaneous application that the same was bogus. Much before that in the year 1975, Evacuee Laws were repealed, conferring finality through legislative measure i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The object was to close the chapter of allotments and matters pertaining thereto except where the proceedings were pending on 1.7.1974 or the matter was remanded by any Superior Court. There was another possibility for scrutiny of allotments where prima facie fraud had been committed. In the instant case, the long standing entries in the revenue record would prove the factum of allotment and its continuous existence in the name of the allottee. Mere assertions made in the miscellaneous application/complaint by Respondent No. 3 would not have impaired its finality. From the file produced by the official respondents and perusal of the statement of Munshi Muhammad Boota, Patwari and Niaz Ahmed Dogar, Naib Tehsildar, Depalpur, this fact further finds affirmation that long before repeal of the Evacuee Laws, the allotment in the name of the predecessor-in-interest of the petitioner did exist on the record. The statements made by the said officials are of 09.08.2004 whereas the memorandum impugned in the petition was issued on 26.10.2004. There was nothing in their statements attributing any element of fraud or forgery in obtaining the allotment. The said memorandum apparently had no valid basis whatsoever for reopening of the matter of allotment having attained finality. In Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others (2002 CLC 384) this Court had the occasion of examining somewhat identical issue and it was observed that "In Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719; it was observed that "any petition or representation, filed by the petitioners with regard to the matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by the Chief Settlement Commissioner or notified, officer or any other Settlement Authority by virtue of "the Repealing Act". Therefore, proceedings drawn by the Settlement Commissioner which culminated in passing of order, dated 26.2.1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice, constructed over it shall automatically crumble and fall to the ground". In Syed Istijab Hasan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore 1999 YLR 1627, it was observed that since no proceedings were pending against the petitioners' allotment at the time of the repeal of Settlement Laws, the Settlement Authority acted without lawful authority in taking proceedings on a Mukhbari application, filed after the repeal of the laws. In Jamal-ud-Din v. Member, Board of Revenue and 4 others 2001 CLC 81, the view taken by this Court was that a matter of transfer of evacuee property which had assumed finality before the coming into force of repealing law i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could not be reopened after the repeal of Settlement Laws. The judgment of this Court in Jamal-ud-Din's case (supra) was upheld by the Honourable Supreme Court in Civil Petition No. 2546/L of 2000. There is thus, no obscurity as to the legal position that obtains on the subject." It may be observed that mere allegation of "fraud and forgery" does not ipso facto vest the respondents with the jurisdiction in a matter which has otherwise attained finality. If such a course is allowed to be adopted, there will be no end to it. In Begum Shams-un-Nisa v. Said Akbar Abbasi and another (PLD 1982 SC 413), it was observed that "We have, therefore, no doubt in our mind that the allegations of fraud and forgery leveled against the appellant are false and concoctions. In fact, we regret to note that it has become fashionable to make reckless allegations of fraud etc. against respectable persons in order to obtain some unjust advantage and such practices deserve to be noticed seriously and discouraged by Courts of law." In the instant case, the allotment has existed in the records since 1963 which was never assailed by any one, its reopening for enquiry after about four becades on mere bald assertion of Respondent No. 3, who has even failed to come forward to support and substantiate his allegations in the complaint before this Court, would be a futile exercise. Issuance of impugned memorandum for initiation of proceedings, thus, was without due application of mind to the factual and legal aspects of the matter. In Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450) assumption of jurisdiction by the Labour Court was held to be without lawful authority observing that "if Respondent No. 2 proceeds to hear the complaint of Respondent No. 1, the proceedings will be wholly without jurisdiction and, therefore, a nullity." The proceedings initiated and pending before the Labour Court were declared to be without lawful authority and of no legal effect and were, thus, quashed. In view of the circumstances apparent on the record, the issuance of memorandum and the initiation of proceedings by the official respondents are thus, without any factual or legal justification and are declared as of no legal effect. It is, however, observed that the official functionaries of State are expected to take maximum care before initiating proceedings in such matters on mere bald assertions of fraud and forgery. Due application of mind is necessary before issuing the process so that abuse of law and misuse of power is avoided. This way valuable time in conducting futile proceedings can be saved.
For the above reasons, both these petitions are accepted. Since Respondent No. 3 has chosen to remain away from the proceedings, I make no order as to costs.
(M.A.K.Z.) Petitions accepted.
PLJ 2009 Lahore 290
[Bahawalpur Bench Bahawalpur]
Present: Zubda-tul-Hussain, J.
ABDUL MAJEED--Appellant
versus
MUHAMMAD YAQOOB--Respondent
S.A.O. No. 11 of 2007/BWP, heard on 13.11.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 15--Ejectment petition--Dismissal of--Appeal accepted--Second appeal--Plea of personal need--Shop in-question fact was ownership of wife and daughter of respondent/petitioner which he had rented out to appellant and in that context he became landlord of appellant--Respondent/petitioner cannot claim ejectment of premises for personal need, because personal needs of real owners i.e., either wife or daughter of respondent could be relevant for eviction of appellant on such score--Contention of--One of owners of property was wife while other was daughter of respondent/petitioner--It is management as a landlord which respondent is conducting on their behalf--Both owners were womenfolk and as such were also dependent upon respondent because of close proximity of their relationship--Use of premises by respondent for benefit of his wife and daughter can justify bonafide character of demand--A need of landlord/respondent was need of his family i.e., his wife and daughter and nexus of needs of owners with use of shop for their benefit could not be extinguished simply because such detail was missing from contents of petition--Respondent/landlord had not only established his bonafide requirements for shop but also was entitled to get same vacated for commonality of his personal needs and needs of his family members who were real owners of property--Judgment of lower appellate Court was maintained--Appeal dismissed. [P. 292] A, B, C & D
Mr. Muhammad Suleman, Advocate for Appellant.
Ch. Muhammad Amjad Khan, Advocate for Respondent.
Date of hearing: 13.11.2008.
Judgment
The appellant, Abdul Majeed, is a tenant under the respondent in a commercial premises, namely, a shop for the eviction of which the respondent brought an ejectment petition, on the ground of default in payment of rent by the petitioner and for personal need of the respondent. The ejectment petition after trial was dismissed by the learned Rent Controller, Sadiqabad, on 27.7.2006, whereas the appeal filed against its dismissal was accepted by the learned Additional District Judge, Sadiqabad, on 20.3.2007, and the petitioner-tenant was directed to hand over the vacant possession of the disputed shop to the respondent within a period of two months of the date of the order. The petitioner was, however, allowed an adjustment in the rent amount of Rs.25,000/- paid by him in advance to the landlord.
The petitioner-tenant has been constrained to file the instant appeal because of this ejectment order. As the issue relating to default was not pressed before the learned lower appellate Court appeal has been contested before this Court only in relation to the personal requirements and bona fide of the respondent in that behalf. The relationship of landlord and tenant is not disputed between the parties but still the factum of ownership of the shop has a significant nexus to the issue in hand. The shop in dispute in fact is the ownership of the wife and daughter of the respondent which the respondent had rented out to the petitioner and in that context he became the landlord of the petitioner. The question of personal need in this case is not to be decided in ordinary circumstances of landlordship but the petitioner in this case has raised a particular objection with reference to the ownership of the shop contending that in spite of the fact that the respondent is his landlord he cannot claim the ejectment of the premises for personal need because, according to the petitioner, the personal needs of the real owners i.e. either the wife or daughter of the respondent could be relevant for eviction of the petitioner on this score.
The learned counsel for the appellant argued that the status of the respondent in the given circumstances was at the most that of a landlord of a category authorized to collect the rent on behalf of his wife and the daughter and there being nothing on the record to show that the ejectment application had been filed by the respondent on behalf of his wife or daughter. He had no justification and entitlement to seek the ejectment on the pretext of his own personal requirements. The learned counsel has in this behalf primarily relied upon Mir Khalid Bashir v. Nazar Hussain and 2 others (PLJ 2002 SC (AJK) 140) and Nasrullah v. Mrs. Fatima Begum (1991 CLC 2018).
It is of course true and shall be very difficult to controvert the proposition that where the landlord is not himself the owner as well, the eviction of the tenant without reference to the needs of the real owners may not be sought for his personal requirements. It may, however, be noticed with concern that one of the owners of the property is the wife while the other is the daughter of the respondent. It is the management as a landlord which the respondent is conducting on their behalf. Both the owners are womenfolk and as such are also dependent upon the respondent because of the close proximity of their relationship. If a non-owner landlord has to justify the personal requirements of the owners for vacation of the premises then at the same time if he can show that the eviction is needed for the benefit of the owners through the use of the premises by him then the ejectment petition cannot be thrown away simply on the grounds agitated by the learned counsel for the appellant.
As already stated, in the present case one of the owners is the wife while the other is the daughter of the petitioner. The use of the premises by the respondent for the benefit of his wife and daughter can justify the bona fide character of the demand. The contention of the appellant that the need of the owners was not mentioned in the ejectment petition cannot be of any avail for him because in the given situation and circumstances a need of the landlord/respondent was the need of his family i.e. his wife and daughter and nexus of the needs of the owners with the use of the shop for their benefit could not be extinguished simply because this detail was missing from the contents of the petition. The learned counsel for the respondent has relied upon Electro Service Industries v. Hamdoon Subhani (1995 SCMR 1811), Ch. Shahbaz Babar v. Mrs, Rehmana Mirza (2006 SCMR 1032) and Nasim Ahmed Khan v. Additional District Judge, Lahore and 4 others (PLD 2006 Lahore 774), the ratio whereof especially that of the last one is aptly applicable to the facts of the present case.
I am, therefore, of the view that the respondent/landlord had not only established his bona fide requirements for the shop but also was entitled to get the same vacated for the commonality of his personal needs and the needs of his family members who are real owners of the property. Accordingly, I find no merit in this appeal and while maintaining the judgment of the learned lower appellate Court i.e. the learned Additional District Judge, Sadiqabad, dismiss this appeal with costs.
(Sh.A.S.) Appeal dismissed.
PLJ 2009 Lahore 293
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
MUHAMMAD MUJAHID IQBAL--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, RAJANPUR and 10 others--Respondents
W.P. No. 5016 of 2008, heard on 8.10.2008.
Police Order, 2002 (22 of 2002)—
----S. 155(c)(d)--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ex-officio Justice of Peace--Direction to SHO to register a criminal case--Order was not complied with by SHO--Contempt of Court proceeding--Challenge to--Contention--Role of Court--Respondent attempted to get registered a case against police as counter blast to the cases already stand registered against him should have not been lightly ignored by Ex-officio Justice of Peace--Validity--Ex-officio Justice of Peace wrongly assumed the role of Court while dealing with an application u/Ss. 22-A and 22-B, Cr.P.C.--Ex-officio Justice of Peace was not supposed to believe the allegation as gospel truth without application of legal mind--Held: Being creation of law the Ex-officio Justice of Peace was under legal obligation to pass an order with application of legal mind--Respondent attempted to get registered a case against the police as counter blast to the cases already stand registered against him should have not been lightly ignored by Ex-officio Justice of Peace--Accused involved in heinous and serious offences are allowed to prosecute investigators, mechanically without application of legal mind then trend can crode the system--Order passed by Ex-officio Justice of Peace had allegedly been violated by the police--Further held: Ex-officio Justice of the Peace passed administrative orders and there was no occasion and justification to initiate contempt of Court proceeding or to take any penal action against the police official who allegedly violated ministerial direction or administrative order--Impugned orders were illegal, without jurisdiction and with no legal effect--Petitions were allowed. [P. 296] A, B, C, D & E
Sh. Abdul Samad, Advocate for Petitioner.
Mr. Saif Ullah Khan and Muhammad Nawaz Khan, Advocates for Respondents.
Date of hearing: 8.10.2008.
Judgment
I find it convenient to dispose of Writ Petitions No. 5016 and 5042 of 2008 by this single order.
"It is, therefore, directed to the SHO Police Station City. Rajjanpur to register a criminal case regarding aforesaid cognizable offences strictly in accordance with Law. He is also directed to submit copy of the FIR forthwith. It is further directed that the matter shall be investigated after registration of the case by DPO Rajjanpur, Layyah personally."
The above said order was not complied with by the SHO, upon which Peer Baskhsh, respondent, made an application before the learned Additional Sessions Judge for initiating contempt of Court proceeding. The learned Additional Sessions Judge took cognizance of the contempt petition and ordered as under:--
(i) A case under Section 155(c) (d) of Police Order, 2002 may be registered against the SHO, Police Station City Rajjanpur for having disregarded the order of Court dated 10.09.2008.
(ii) The DPO Rajjanpur is directed to get implemented the order dated 10.09.2008 and 17.09.20.08 immediately and submit copies of FIR in the Court.
(iii) Salary of the SHO, Police Station City Rajjanpur shall remain attached till further order.
Reeling aggrieved Muhammad Mujahid Iqbal, the then SHO Police Station Saddar Rajjanpur challenged legality of the order dated 10.09.2008 through Constitutional Petition No. 5016 whereas Muhammad Sadiq, SHO Police Station City Rajjanpur assailed the subsequent order of the learned Additional Sessions Judge, whereby he entertained contempt petition and took penal action against the police officials.
Peer Bakhsh, respondent, approached Ex-officio Justice of the Peace, Rajjanpur seeking a direction to the local police for registration of a case. The application was made over to Khawaja Muhammad Ajmal, Additional Sessions Judge/Ex-officio Justice of the, Peace, who while deciding application assumed the role of Court. For two reasons the first order whereby the SHO was directed to draw up FIR against some Police Officials is not sustainable. Firstly, the application with a request for registration of case was laid before the learned Additional Sessions Judge in his official capacity as Ex-officio Justice of the Peace, but he chose to decide the same as Court of law and thus violated the case law laid down in Khizar Hayat and other Vs. Inspector General of the Police, Punjab, Lahore and others (PLD 2005 Lahore 470). A full Bench of this Court resolved the controversy with regard to functions and duties of an Ex-officio Justice of the Peace in the following words:
"Powers and duties of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan as provided in Sections 22-A and 22-B Cr.P.C. do not involve in jurisdiction, which can be termed as judicial in nature or character. In this context the role of Justice of the Peace or the Ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counter part in the United Kingdom and the United State of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justice of the Peace through legislation intervention. That surely is not a case in Pakistan where no Statute confers any judicial powers upon a Justice of the Peace or an Ex-officio Justice of the Peace. We can, therefore, safely hold that the function to be performed by the Justice of the Peace or the Ex-officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character."
In the light of the case law, referred to above I feel no difficulty in holding that the learned Additional Sessions Judge, Rajjanpur wrongly assumed the role of Court while dealing with an application under Section 22-A and B Cr.P.C. Now adverting to the merits of allegation put forward by Meer Bakhsh, respondent, I would say that the learned Additional Sessions Judge or the Ex-officio Justice of the peace was not supposed to believe the allegation as gospel truth without application of legal mind. It is true that he, was not required to hold trial or mini trial of the allegation or to scrutinize the material with a yardstick of trial Court, but being creation of law the Ex-officio Justice of the Peace was under legal obligation to pass an order with application of legal mind. In the case in hand, the respondent made an allegation that the Police Officials raided his house and looted him at gun point. This allegation had not come forward from an independent or unbiased source. The respondent/complainant was found in possession of huge quantity of fire-arms like Kalashnikovs, rifles and pistols for which he was booked in two cases. In the; circumstances, the contention of the petitioner herein that the respondent attempted to get registered a case against the police as counter blast to the cases already stand registered against him should have not been lightly ignored by the learned Additional Sessions Judge or the Ex-officio Justice of the Peace. Here I must say that in case the accused involved in heinous and serious offences are allowed to prosecute Investigators, mechanically without application of legal mind, then this trend may erode the system.
The order passed by the Ex-officio Justice of the Peace had allegedly been violated by the Police. The Additional Sessions Judge took cognizance of contempt petition with an observation that the orders of Court had been disregarded. I have already concluded in preceding paragraphs that the Ex-officio Justice of the Peace passed administrative orders and there was no occasion and justification to initiate contempt of Court proceeding or to take any penal action against the Police Official, who allegedly violated ministerial direction or administrative order. I am supported in my view by the above said precedent case law.
For what has been stated above, I feel no difficulty in concluding that the impugned orders are illegal, without jurisdiction and with no legal effect. Accordingly, the petitions are allowed and the impugned orders are set aside.
(R.A.) Petitions allowed.
PLJ 2009 Lahore 297 (DB)
Present: Syed Hamid Ali Shah and Zafar Iqbal Chaudhry, JJ.
Syed SABIR HUSSAIN SHAH, DIVISIONAL DIRECTOR, LOCAL FUND AUDIT, LAHORE DIVISION (DEFUNCT), LAHORE--Appellant
versus
GOVERNMENT OF THE PUNJAB through Secretary Services General Administration and Information Department, Civil Secretariat,Lahore and others--Respondents
I.C.A. No. 262 in W.P. No. 9637 of 2005, decided on 29.4.2008.
Law Reforms Ordinance, 1972 (XII of 1972)—
----S. 3(2)--Intra Court appeal--Vacancy in public office--Filing of--Can be filled by promotion, on the basis of selection on merits--Criterion of fitness and eligibility--Incomplete ACRs--ACRs were available and were signed by reporting officer--Some of them were signed by countersigning officer i.e. pertaining to the specific period--Held: Incomplete ACRs, as it is responsibility of department to get ACRs completed--Selection of respondent cannot be set at naught for non-compliance of rules, which were regulatory directory--Appeal was dismissed. [P. 299] A & C
2004 PLC (CS) 1142; 2005 PLC (CS) 607; PLD 2008 Lah. 235 and
1999 SCMR 1004.
A.C.R.--
----It is duty of the department to get prepared PERs of an officer, so that same could be used for other prescribed purposes and at the time of promotion of an official. [P. 299] B
2008 SCMR 948.
Dr. Ehsan-ul-Haq, Advocate for Appellant.
Mian Tariq Ahmad, Addl.A.G. for Respondents.
Mr. Muhammad Aftab, Respondent No. 4.
Mr. Muhammad Yaqoob Sindhu, Advocate for Respondent No. 6.
Date of hearing: 29.4.2008.
Order
Appellant, through filing Writ Petition No. 9637 of 2005, has voiced his grievance, against the promotion of Respondent No. 4, as Provincial Director, Local Fund Audit. Appellant claimed that according to relevant Rules, he, being the Divisional Director, was entitled to be posted as Director Local Fund Audit. The selection of Respondent No. 4 was made on the recommendation of Secretary Finance and the appellant was made victim of prejudice of Secretary Finance. Learned Judge in chamber, while passing impugned order, has observed that case of Respondent No. 4, was considered by Provincial Selection Board, comprising of panel of seven High Officials and allegation of influence of Secretary Finance or his recommendations has no merit. Learned Judge in chamber found other grounds, as not legally tenable and dismissed the petition.
Appellant bus now assailed in this Intra Court Appeal, order of the dismissal of his petition, on the grounds that as per Local Fund Audit Rules, 1981, the post of Provincial Director, Local Fund Audit, can be filed by promotion, on the basis of selection on merits from the persons, holding post of Divisional Director with 12 years experience in Grade-17 or above. Respondent No. 4, being Deputy Secretary, is not eligible to compete for the post. It was argued that only a person holding post in the same functional, must be appointed and respondents have ignored instruction i.e. Letter No. SOR-III-1-14/75(B), dated 05.10.1985. Learned counsel has contended that the appellant being senior most eligible officer, fulfilled the criterion of fitness and eligibility, but was ignored. Learned counsel has submitted with vehemence that Voard which made the impugned selection, was not complete. Disciplinary proceedings were pending against Respondent No. 4 and his 12 ACRs were not available, yet he was appointed. Learned counsel, in support of his contentions, has referred to the cases of "Dr. Mujahid Ali Mansoori and others Vs University of the Punjab and others" (2005 PLC (CS) 694), "Muhammad Liquat Munir Rao vs. Shamas Uddin and others" (2004 PLC (CS) 1328) and "NWFP through Chief Secretary and another vs. Dr. Irfan Meer and others" (1996 NLR Service 56).
Learned Law Officer, on the other hand, stood behind the impugned order and supported it with full vehemence. Learned counsel for Respondent No. 4, has controverted the assertions of the appellant. He has submitted that the appellant has asserted in his petition that he had filed departmental appeal and representation, but the same were not replied. It is contended that remedy of departmental appeal has been availed therefore ICA is not competent under Section 3(2) of Law Reforms Ordinance, 1972. Learned counsel has submitted that Respondent No. 4, joined Local fund Audit on 26.08.1984 and completed requisite trainings. It was vehemently denied that 12 ACRs of Respondent No. 4, are not available. He has submitted that no inquiry or disciplinary proceedings are pending against Respondent No. 4. According to Respondent No. 4, petitioner was caught red handed, while receiving illegal gratification. Learned counsel, in support of his contentions has referred to the cases of Dr. Aziz-ur-Rehman Meo vs. Govt. of Sindh and another" (2004 PLC (CS) 1142), "Muhammad Yousaf Alvi, Deputy Post Master General, Multan vs. Federation of Islamic Republic of Pakistan, Islamabad and 8 others" (2005 PLC (CS) 607), "Syed Asif Akhtar Hashmi vs. Malik Muhammad Riaz and 3 others" (PLD 2008 Lah. 235) and "Chairman Minimum Wage Board and another vs. Fayyaz Khan Khattak" (1999 SCMR 1004).
Heard learned counsel for the parties and record perused.
Appellant has urged various grounds in this appeal, which were not raised before learned Single Judge in Chambers. Such points cannot be considered, being tactual and agitated for the first time in appeal, but for our satisfaction, we summoned the relevant record and perused the same with the able assistance of Farhat Murtaza Khan. Deputy Secretary. We have found that most of the allegations of the appellant, were incorrect. Respondent No. 4 underwent practical training in the Divisional Directorate and Municipal Corporation, Multan from 14.01.1985 to 25.01.1985 and his achievement was found satisfactory. His ACRs were available and were signed by the reporting officer. Some of them are unsigned by the countersigning officers i.e. pertaining to the period from 26.08.1984 to 26.12.1984, 01.10.1995 to 31.12.1995, 05.07.1993 to 31.12.1998 and 01.01.2000 to 03.11.2000. Respondent No. 4 has no role to play in respect of his incomplete ACRs, as it is the responsibility of the Department to get ACRs completed. The record of a civil servant is to be maintained properly by the department. The apex Court, in an unreported case titled "Secretary Revenue Division etc. vs. Muhammad Saleem" (Civil Appeal No. 1986 of 2001), has held that the law has provided use it is the duty of the Departmental to get prepared PERs of an officer, so that same could be used for other prescribed purposes and at the time of promotion of an official.
Provincial Selection Board has examined the case of the appointment of Respondent No. 4, adhering to the rules and procedure. The board has been validly constituted and the impugned selection was made, with prescribed quorum. The selection/appointment of Respondent No. 4, at this stage, cannot be set at naught, for non compliance of rules, which are regulatory/directory.
For the foregoing, this appeal has no merit and is accordingly dismissed.
(R.A.) Appeal dismissed.
PLJ 2009 Lahore 300
Present: Hafiz Tariq Nasim, J.
MUHAMMAD AFZAL, PATWARI CIRCLE SALAMATPURA, LAHORE CANTT. LAHORE and 6 others--Petitioners
versus
DISTRICT CO-ORDINATION OFFICER, DISTRICT LAHORE and 9 others--Respondents
W.P. No. 2334 of 2009, decided on 9.2.2009.
Additional Charge of Patwaris--
----Government is competent to allow an employee to hold charge of two post at a time, one of permanent post and another Additional charge of a vacant post but for temporarily. [P. 301] B
Principle of Law--
----When law requires to do a thing in a particular manner, it must be done in that manner only and not otherwise. [P. 301] A
2008 SCMR 1148.
PEEDA Act, 2006—
----Scope--Authorities/Departments should not take any action without resorting to the procedure envisaged under the provisions of PEEDA Act, 2006. [P. 301] D
Additional Charge--
----Civil servant--Incumbent of the post cannot be termed as an aggrieved person particularly when the incumbent is not put in any less favorable condition or to any disadvantages stage. [P. 301] C
Mr. Muhammad Aftab Alam, Advocate for Petitioners.
Date of hearing: 9.2.2009.
Order
This writ petition is filed with the following prayer:--
"In view of the above, it is respectfully prayed that an appropriate writ may kindly be issued, the impugned order dated 04.02.2009 may very kindly be set aside declaring the same as illegal, unlawful, void abinitio and without lawful authority.
Writ petition may very kindly be accepted.
Any other relief, which this Honourable Court deems just and proper under the facts and circumstances of the case may also very kindly be granted to the petitioners."
Learned counsel for the petitioners argued the case at length and submits with vehemence that the impugned order is violative of the provisions of C.S.R. 3.13 and F.R. 49. Further submits that it is well settled law laid down by the Hon'ble Supreme Court reported as Govt. of Punjab Food Department vs. United Sugar Mills Ltd. (2008 SCMR 1148), wherein it is held that "if law requires to do a thing in a particular manner, it must be done in that manner only and not otherwise", whereas in the present case while passing the impugned order the law (supra) is altogether violated. Further submits that through the impugned order practically the petitioners are victimized and there is apprehension that they shall be victimized with no fault of them, rather on extraneous consideration.
After hearing the learned counsel at length, I am of the view that the impugned order cannot be termed an adverse order against the petitioners because its plain language reveals that certain Patwaris are entrusted the additional charge of certain Patwar Circles where the petitioners are already performing their duties.
It is held that by entrusting additional charge to some employee, the incumbent of the post cannot be termed as an aggrieved person particularly when the incumbent is not put in any less favourable condition or to any disadvantageous stage.
So far the apprehension of the petitioners that they shall be victimized due to the impugned order is concerned, suffice it to say that if any adverse action is to be taken against them that cannot be finalized without resorting to the procedure envisaged under the provisions of PEEDA Act, 2006.
The present writ petition being without any substance is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 302
[Multan Bench Multan]
Present: Hafiz Tariq Nasim, J.
MUHAMMAD MANWAR MUMTAZ--Appellant
versus
PAK ARAB REFINERY LIMITED, (PARCO) through its Managing Director Corporate Headquarters Korangi, Karachi and 6 others--Respondents
L.A. No. 114-L of 2008, heard on 8.8.2008.
Constitution of Pakistan, 1973—
----Art. 189--Industrial Relations Ordinance, 2002, S. 43--Precedent--Binding force--According to the provisions of Art. 189 of the Constitution of Pakistan, the judgments passed by Supreme Court are binding and when the judgment reported in 1993 SCMR 373 is not over ruled by Supreme Court itself, it shall remain binding but surprisingly the Labour Court did not advert to those important aspects of the matter. [P. 305] A
Industrial Relations Ordinance, 2002 (XCI of 2002)—
----S. 43--Labour appeal--Factual controversy--Dispute amongst the parties i.e. between the appellants and respondents, appellants claim to be employees of PARCO (respondents), PARCO disputes the same, respondents claims to be employer of the appellants and such like controversy cannot be resolved until and unless the evidence of both the parties is recorded by the Labour Court--Jurisdiction of the Labour Court is concerned, the matter in dispute could be agitated before the Labour Court--Case remanded. [P. 306] B
Mr. Muhammad Anwar Awan, Advocate for Appellant.
Mr. Muhammad Humayun, Advocate for Respondents No. 1-4.
Ch. Altaf Hussain, Advocate for Respondents No. 5 & 6.
Date of hearing: 8.8.2008.
Judgment
This judgment shall also decide Labour Appeals No. 115 to 141 of 2008 alongwith this appeal, as common questions of facts and law are involved.
Brief facts leading to these appeals are that the appellants are performing their duties as Fire Fighters with PARCO Limited, District Muzaffargarh but without taking into consideration their uninterrupted length of service spreading over years and years they were not regularized, hence after serving the grievance notices they filed grievance petitions under Section 46 of the IRO 2002 read with all provisions of law applicable.
Learned counsel for the appellants submits that the appellants were enrolled with EOBI, they were issued duty roster and duty schedule by Pak Arab Refinery Limited (Respondent No. 2), after serving more than 15 years they had attained the status of permanent workmen but due to the inaction of Respondent No. 2 they are suffering monetary losses and service insecurity. However, when agitated for regularization Respondent No. 4, Manager (HRD) rejected their request, the appellants tried to approach Respondent No. 2 but they were not allowed to see him, leaving them without any remedy except to invoke the jurisdiction of Labour Court. Further submits that the appellants had no power of hire and fire so they were within their rights approached the Labour Court but unfortunately the learned Labour Court dismissed their petitions on hyper technical point without adverting to the law laid down in PLD 1996 SC 610, PLJ 1999 SC 2375 and 1999 SCMR 373.
On the other hand, learned counsel for Respondents No. 1 to 4 supports the impugned judgment contending that the appellants are not employees of PARCO, however, they performed their duties with PARCO being employees of Respondents No. 5 and 6 and as such Respondents No. 1 to 4 have no concern at all with the present appellants. Further submits that the learned Labour Court practically decided the cases keeping in view the specific provisions of Section 1(4)(g) of IRO 2002.
Learned counsel for Respondents No. 5 and 6 submits that the appellants were employed on contract by Respondents No. 5 and 6. Despite their performance of duties with PARCO the appellants cannot become the employees of PARCO, so their claim for regularization in PARCO is un-understandable because Respondents No. 5 and 6 being contractor of PARCO receive the finances to fulfill he contractual obligation, they have hired the appellants according to the terms and conditions settled between the appellants and Respondents No. 5 and 6 and they have no concern at all with Respondents No. 1 to 4. Further submits that according to the law laid down in Mobeen Ahmad Siddiqui vs. The Chairman, Sindh Labour Appellate Tribunal and another (1991 PLC 780), Haji Malik Aman and 5 others vs. Federation of Pakistan through Secretary, Minister of Law, Justice and Parliamentary Affairs, Islamabad and 5 others (1993 PLC 961) and Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCMR 738), the learned Labour Court decided the cases strictly in accordance with law laid down supra.
Further submits that Respondents No. 5 and 6 undertake not to oust the appellants from their service till the subsistence/continuation of their contract with PARCO i.e. Respondents No. 1 to 4 because all the appellants are performing their duties satisfactorily and without any complaint whatsoever but they cannot be regularized because the contract of Respondents No. 5 and 6 with PARCO is a conditional one.
Arguments heard. Record perused.
The bare perusal of the impugned judgment reveals visible contradictions which cannot be simply ignored.
The learned Labour Court in its order dated 24.04.2008 referred the judgment reported as 1999 SCMR 373, discussed the merits of that case in the following terms:
"Muhammad Rasheed Security Guard of PARCO was dismissed from service, he filed grievance petition before Labour Court who ordered for his reinstatement with full back benefits, PARCO filed appeal before the Labour Appellate Tribunal on the ground that according to Section 1(4)(g) of the IRO 2002 the dismissed employee of PARCO could not invoke the jurisdiction of Labour Court. This contention of PARCO find favour with" the Labour Appellate Tribunal, appeal of PARCO was accepted. However, the decision of Labour Appellate Tribunal was challenged before the High Court in constitutional petition which was accepted and order of the Labour Appellate Tribunal was set aside and case was remanded to the Tribunal for fresh decision. The decision of the High Court was assailed before the Supreme Court and the apex Court held that the provisions of Section 25-A of the IRO 1969 would not apply to the case of such workman through their own force, but by virtue of Standing Order No. 12(3), even if, the provisions of the Industrial Relations Ordinance, had been excluded in case of persons belonging to security service of an oil refinery, but as the provisions of Standing Order Ordinance have not been excluded, such a person could still seek his remedy before the Labour Court for redress of his grievance."
Despite referring the judgment of the apex Court, the learned Labour Court observed that "if a workman like the appellants is terminated, removed, retrenched, discharged or dismissed from service then the aggrieved person can invoke the jurisdiction of Labour Court but for regularization he cannot because reasoning for non-suiting the present appellants was non-suffering of such agony as exists in case of dismissal.
In addition to that the learned Labour Court referred a judgment reported as Collector of Central Excise and Sales Tax vs. Rupali Polyester Limited and others (2002 SCMR 738), wherein it was held that while disposing of the matter the intention of legislature should be kept in view and as the intention of legislature in the case before the Labour Court was to oust the employees from the jurisdiction of Labour Court, hence the learned Labour Court non-suited the appellants.
I am afraid that the learned Labour Court did not appreciate the law despite referring it itself as laid down in 1993 SCMR 373 and while non-suiting the appellants wrongly relied on a judgment reported as Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCMR 738).
So far the law laid down in 1993 SCMR 373 is concerned, it needs no further interpretation, admittedly the aggrieved person was an employee of PARCO, a specific objection was raised by PARCO on the strength of specific provisions of Section 1(4)(g) of IRO 2002 and this was attended to in explicit manner by the Hon'ble Supreme Court of Pakistan and granted relief to the aggrieved person i.e. an ex-employee of PARCO. So far the judgment of Collector of Central Excise and Sales Tax vs. Rupali Polyster Limited and others (2002 SCMR 738) is concerned, it has no nexus with the present controversy as in that case the matter related to vires of notification issued by CBR and it was held in so many words that:
"Purposes for which a notification is issued would be relevant in determining the vires of notification--One of the practical and effect ways of proliferating the purpose is to see how for the suggested meaning destroys and defeats or promotes the ultimate purpose--Court, in such a research, is not confined to the literal meaning of the words used in the notification but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the notification in question."
Even if we go through this judgment, it does not destroy the appellants cases rather it supports.
Needless to mention that according to the provisions of Article 189 of the Constitution of Pakistan, the judgments passed by the Hon'ble Supreme Court of Pakistan are binding and when the judgment reported in 1993 SCMR 373 is not over ruled by the Hon'ble Supreme Court itself, it shall remain binding but surprisingly the learned Labour Court did not advert to these important aspects of the matter.
In the present cases there is also a dispute amongst the parties i.e. between the appellants and respondents, appellants claim to be employees of PARCO (Respondents No. 1 to 4), PARCO disputes the same, Respondents No. 5 and 6 claim to be employer of the appellants and such like controversy cannot be resolved until and unless the evidence of both the parties is recorded by the learned Labour Court.
In the attending circumstances, I am of the firm view that so far the jurisdiction of the Labour Court is concerned, the matter in dispute could be agitated before the Labour Court, thus the impugned decision being contrary to law laid down in 1993 SCMR 373 is set aside. The cases are remanded to the learned Labour Court for decision on merits.
The appeals are allowed in the above terms.
(M.A.K.Z.) Appeals allowed.
PLJ 2009 Lahore 306
[Multan Bench Multan]
Present: Saghir Ahmad, J.
SAEED AHMAD--Petitioner
versus
T.M.A. MIAN CHANNU DISTRICT KHANEWAL through its Nazim and 3 others--Respondents
W.P. No. 3633 of 2008, decided on 11.8.2008.
Punjab Local Government Rules (Auctioning of Collection Right), 2003—
----Rr. 11(2) & 11(3)--Constitution of Pakistan, 1973, Art. 199--Award of contract for collection of tax rights--Highest bid--Approval by auction committee and tehsil nazim--Chance of enhancement of bid--Cancellation of earlier bid--Validity of--If the auctions held openly are allowed to be nullified then there would be no end to such exercise and people will keep on coming with offers of higher amounts in order to oust their adversaries--Such practice is not permissible under the rules, equity or justice--Held: Highest bid of the petitioner was rejected on extraneous considerations and the resolution of the House has been passed without lawful authority--Petition accepted.
[P. 309] A
Mirza Aziz Akbar Baig, Advocate for Petitioner.
Mr. M. Ramzan Khalid Malik, Additional Advocate General.
Mirza Muhammad Saleem Baig, Advocate for Respondents TMA.
Date of hearing: 11.8.2008.
Order
Through this writ petition, the petitioner has challenged the resolution dated 02.07.2008 whereby the Tehsil Council; Mian Channu did not award the contract to the petitioner about collection of tax rights.
The admitted facts of the case are that for the auction of collection rights of tax on immovable property, the respondent Tehsil Municipal Administration, Mian Channu, flashed an advertisement and the petitioner along with so many others participated in the auction proceedings. It is also admitted fact that out of ten contestants/bidders the petitioner offered the highest bid to the tune of 1,54,00,000/- and then after approval of the above bid of the petitioner by the Auction Committee, the Tehsil Nazim also accorded approval, but the dispute erupted when the Tehsil Council in its meeting held on 02.07.2008 resolved that there as there was a chance of enhance bid, therefore, the earlier bid in favour of the petitioner was cancelled and fresh auction was ordered.
Pursuant to the order of this Court, the report and parawise comments have been filed by the respondent Council.
It is contended by learned counsel for the petitioner that out of ten total persons who participated in the bid, the petitioner turned out to the highest bidder, his bid was approved by the Auction Committee as well as Tehsil Nazim and that although in terms of Rules 11(2) and 11(3) of the Auctioning of Collection Rights Rules, 2003 the Council could refuse to accept the auction, but such power could not be used arbitrarily and such power could be exercised only when the auction is unreasonable and also when there is scope of further enhancement of bid offer. According to the learned counsel both the above ingredients are missing in the case in hand.
In response to the above arguments of learned counsel for the petitioner, the learned counsel appearing for the respondents contends that House of Tehsil Council Mian Channu had exercised its legal powers vested upon them under Rule 11(3) of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003.
Before proceeding further the relevant provision i.e. 11(2) and 11(3) of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 are quoted:
"11. Acceptance of bid.
(1) The bid received in open auction, if less that the reserve price, shall be rejected by the Nazim concerned or the person authorized by him in all cases and the contract shall be re-auctioned in the prescribed manner.
(2) The highest bid, equal to reserve price or above, received in open auction shall be accepted by the respective Nazim and placed before the Council concerned within ten days of receipt of bid for confirmation: provided that bid so received was reasonable and there was no scope of its further enhancement in view of the concerned Local Government administration.
(3) The Council concerned shall have full powers to accept or reject the bid duly recommended by the Local Government administration for the reasons to be recorded in writing."
Now, keeping in view the above quoted provision, when the proceedings of the House are analyzed, it indicates that one member told the House that some Contractor (not specifically named) had informed him that he was ready to give the bid highest then the one offered by the present petitioner. It was on the basis of this sole statement that the House went ahead to resolve for rejecting the bid in favour of the petitioner and for re-auction of the collection rights for forming an opinion that there is chance of collection of more tax on transfer immovable property. Rule 8 of the above Rules, 2003 provides that contract of collection rights for the income of a Local Government shall be awarded to a highest bidder through an open bid by adopting the procedure of auction, as laid down in Chapter-II. The above quoted Rule-11 provides that where the bid received is less than the reserve price, the same shall be rejected by the Nazim. Sub-rule (2) of Rule 11 provides that highest bid equal to reserve price or above received in open , auction, shall be accepted by the respective Nazim and placed before the Council concerned within 10 days of receipt of the bid for confirmation provided that bid so received was reasonable and there was no scope of its further enhancement in view of the concerned Local Government Administration. The petitioner, no doubt, was the highest bidder and under Rules 8 read with Rule-11, his bid had to be approved by the Auction Committee and then accepted by the Nazim, which in fact was done. While doing so, neither before the Auction Committee nor before the Tehsil Nazim any objection was raised or apprehension expressed about the amount of bid offered by the petitioner. It is not the case of the respondent Council that proper publicity was not given or that there was any other-illegality or irregularity in the process of earlier auction. In view of the above admitted position, the House cannot be allowed to frustrate a lawful process in an arbitrary manner, merely on the pretext that some one had showed willingness to give highest bid, because if such a practice is allowed to be followed, there will be hardly an end to bid process, and whenever, subsequently some one (he may not even be the participant of the bid or even the looser of the said bid) thinks to frustrate the earlier bid, he can easily influence any member of the House, especially when no element of collusion or fraud was asserted before the House.
Furthermore, the Tehsil Municipal Officer, Mian Channu, present in Court, when questioned about how much increase in the tax was detected during this process, he after consulting the record prepared a rough table and pointed out that in fact from 1st of July to 11th of August, 2008 there was a shortfall of Rs. 3,17,444/-, which means that actually the respondent T.M.A has suffered loss. In view of this tabulation, the sole ground which weighed with the House to reject the earlier bid i.e. expectation of increase, is also no more available to the Council.
For what has been discussed above, if the auctions held openly are allowed to be nullified, then there would be no end to this exercise and people will keep on coming with offers of higher amounts in order to oust their adversaries. This practice is not permissible under the rules, equity or justice. It thus held that highest bid of the petitioner was rejected on extraneous considerations and the resolution of the House dated 02.07.2008 has been passed without lawful authority. The Tehsil Municipal Administration shall award contract to the petitioner forthwith, subject to terms and conditions of action, already agreed by the parties and subject to the provisions of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003.
(M.A.K.Z.) Petition accepted.
PLJ 2009 Lahore 309
[Multan Bench Multan]
Present: Hafiz Tariq Nasim, J.
RAUNAQ ALI--Petitioner
versus
DEPUTY DISTRICT EDUCATION OFFICER (EE-MALE)MIAN CHANNU and 2 others--Respondents
W.P. No. 7008 of 2005, heard on 4.8.2008.
Constitution of Pakistan, 1973—
----Art. 199--Civil service--Appointment--Locus poenitentiae--Petitioners were eligible for the post they applied, their cases were scanned by the duly constituted committees, their suitability was determined by the competent authority, all of them were appointed by the order of the competent authority and as such a lawful right had already accrued in their favour which could not be rescinded or recalled on the touchstone of well settled principle of locus poenitentiae--Exercise of issuance of show-cause notices, which are impugned in the present petitions. [Pp. 312 & 313] A
Constitution of Pakistan, 1973—
----Art. 199--Civil service--Right of employee--Laps and irregularity at the time of appointment--Responsibility of--Effect of--If at all at the time of appointment some lapses were made, some irregularity was committed or any appointment contrary to certain instructions was made then the employees already appointed cannot be held responsible for the same and cannot be made suffers rather the responsible for such appointments be taken to task. [P. 313] B
Sh. Zia-ud-Din Qamar, Advocate for Petitioner.
Mian Abbas Ahmed, Addl. A.G. for Respondents.
Date of hearing: 4.8.2008.
Judgment
This judgment shall also decide Writ Petitions No. 7009/2005, 7015/2005, 7016/2005, 7017/2005, 7018/2005, 7111/2005, 7131/2005 and 112/2006 alongwith this petition, as common questions of facts and law are involved.
Brief facts leading to these writ petitions are that the petitioners being fully eligible for the posts of teachers applied, their eligibility was assessed, suitability was determined and then they were appointed in the years 1995/1996. Throughout their continuation with the service, the petitioners' performance remained up to the mark but unfortunately they remained disturbed through different means on extraneous consideration and not in the exigency of service and lastly the petitioners were served with show-cause notices which are impugned in the present writs.
Learned counsel for the petitioners submit that the impugned show-cause notices are an outcome of mala fide, arbitrariness and ulterior motive and that too without keeping into consideration that they are performing their duties since a decade. Further submit that practically the departmental authorities have decided to oust the petitioners from service just to accommodate their own blue eyed, whereas the impugned show-cause notices are just a formality and nothing else.
On the other hand, the learned Additional Advocate-General opposed the writ petitions with vehemence, contending that the same are not competent in view of bar of Article 212 of the Constitution of Pakistan. Further submits that the departmental authorities cannot be restrained from initiating any action against the employees, so the impugned proceedings which were started were within the domain of the departmental authorities.
Arguments heard. Record perused.
So far the objection regarding maintainability of the writ petitions is concerned, it is not denied that in the present case neither any final order or appellate order is passed, which could extend the jurisdiction of Service Tribunal, hence keeping in view the law laid down in I.A. Sherwani vs. Government of Pakistan (1991 SCMR 1041), Pakistan Railways vs. Muhammad Allauddin Babari (1998 SCMR 1605) and Administrator, District Council Larkana and others vs. Ghulab Khan and 5 others (2001 SCMR 1320), it is held that this Court can interfere in the impugned controversy in exercise of jurisdiction under Article 199 of the Constitution of Pakistan.
Even in a case of civil servants' terms and conditions of service, the Hon'ble Supreme Court of Pakistan in the case reported as Mrs. Munawar Sani vs. Director Army Education (1991 SCMR 135) resolved the controversy in the following terms:-
"The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound-down obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post."
The objection of the learned Additional Advocate-General regarding non-maintainability of the writ and jurisdiction of this Court is repelled.
Another objection of the learned Additional Advocate-General is that as no final order is passed against the petitioners, thus interference in the departmental action shall not be justified and writs should not be issued.
In my view, employees should not be denied practical justice by letting them seek and hide hunting their remedy through a lengthy and unnecessarily extended process of litigation. In fact employees should not be thrown on the road for the search of justice.
For example, in the present cases, if the authorities are allowed to continue with the proceedings, the ultimate result would be the dismissal/removal/termination from service of the petitioners and to reach the stage of vindication they would have to undergo a very lengthy and time consuming process of having recourse firstly to the Service Tribunal and then ultimately to the apex Court and thus process starting from the Authorities and ending up at the Court of last resort i.e. the Supreme Court of Pakistan, would take a number of years.
At this juncture, I may refer a recent judgment passed by the Supreme Court of Pakistan dated 29.04.2008 in cases of number of employees titled "Government of Punjab, Secretary Education, Civil Secretariat, Lahore & others vs. Sameena Parveen & others, a Bench comprising of Hon'ble four Judges headed by the Hon'ble Chief Justice, wherein it is held, "It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499) and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law."
It is important to note that in the cases referred above all the teachers who approached firstly to the High Court through Writ Petitions No. 11263, 11516, 11525, 11662, 11663, 11766 all of 2008 and got relief through a judgment passed by my learned brother Sardar Muhammad Aslam, J. (as he then was) despite a clear bar of Article 212 of the Constitution of Pakistan and the Hon'ble Supreme Court of Pakistan upheld the judgment of the High Court.
The present writ petitions are of similarly placed employees/teachers and I am of the firm view that they are also entitled for the same relief and should not be allowed to keep them in vacuum leaving them for a lengthy process of litigation.
In the present cases, it is not denied by the respondents that the petitioners were eligible for the posts they applied, their cases were scanned by the duly constituted committees, their suitability was determined by the competent authority, all of them were appointed by the order of the competent authority and as such a lawful right had already accrued in their favour which could not be rescinded or recalled on the touchstone of well settled principle of locus poenitentiae and that too through such like exercise of issuance of show-cause notices, which are impugned in the present writ petitions. The petitioners are performing their duties for more than a decade without any complaint whatsoever, so a valuable right which had already accrued in favour of the petitioners is protected on the touchstone of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Liaquat Ali Memon and others vs. Federation of Pakistan and others (PLD 1994 SC 556), Secretary to Government of N-.W.F.P. and another vs. Muhammad Nawaz and another (PLD 1996 SC 837), Rukhsar Ali and 11 others vs. Government of N-W.F.P. through Secretary Education, Peshawar and 3 others (2003 PLC (CS) 1453), Pakistan International Airlines Corporation through Chairman and others vs. Shahzad Farooq Malik and another (2004 SCMR 158) and Chairman/Managing Director, Pakistan International Airlines Corporation and another vs. Nisar Ahmad Bhutto (2005 SCMR 57).
The apex Court had already protected the rights of such like employees in so many cases on the plea that if at all at the time of appointment some lapses were made, some irregularity was committed or any appointment contrary to certain instructions was made then the employees already appointed cannot be held responsible for the same and cannot be made sufferers rather the responsible for such appointments be taken to task. Reliance in this respect can be made on the cases of Director Social Welfare, N-.W.F.P., Peshawar vs. Sadullah Khan (1996 SCMR 1350), Chairman, Minimum Wage Board Peshawar and another vs. Fayyaz Khan Khattak (1999 SCMR 1004), Collector of Customs and Central Excise, Peshawar and 2 others vs. Abdul Waheed and 7 others (2004 SCMR 303), Muhammad Akhtar Shirani and others vs. Punjab Text Book Board and others (2004 SCMR 1077), and Abdul Salim vs. Government of N-.W.F.P. through Secretary, Department of Education Secondary, N-.W.F.P., Peshawar and others (2007 PLC (CS) 179).
In the attending circumstances, taking strength from the law laid down the apex Court, all the writ petitions are allowed in terms of the prayers made therein.
(M.A.K.Z.) Petitions allowed.
PLJ 2009 Lahore 314
Present: Khurshid Anwar Bhinder, J.
HABIB AHMAD GHUMAN--Petitioner
versus
GOVERNMENT OF THE PUNJAB through Secretary, Services & General Administration Department, Civil Secretariat, Lahore and 3 others--Respondents
W.P. No. 3845 of 2008, decided on 25.7.2008.
Retirement--
----Tenure--Petitioner was retired from government service as superintendent of police after attaining the age of superannuation whereafter the civil servant was re-employed on contract for a period of three years--Terms and conditions of contractual re-employment.
[P. 315] A
Constitution of Pakistan, 1973—
----Art. 199--Service on contract basis--Termination from service--Acceptance of terms and conditions--Non issuance of show-cause notice--Effect of--Tenure of his service shall be three years which is liable to be terminated without assigning any reason--Service of the petitioner were terminated as it is the prerogative of the Government which has been specifically been mentioned--Government of Punjab was not obliged to issue the petitioner a show-cause notice, as such the impugned order, terminating the contractual services of the petitioner is just, fair and in accordance with the policy of the Government, as such warrants no interference by High Court in its Constitutional jurisdiction--Petition dismissed. [Pp. 315 & 316] B
Ch. Abdul Sattar Goraya, Advocate for Petitioner
Date of hearing: 25.7.2008.
Order
Through the present constitutional petition, Habib Ahmad Ghuman petitioner has called in question order dated 10.4.2008, passed by Respondent No. 2 whereby his contractual re-employment was terminated with immediate effect.
Briefly the facts leading to the filing of this constitutional petition are that the petitioner joined the police department as ASI on 18.3.1970 and earned step-wise promotion and lastly he was promoted to the rank of Superintendent of Police in BS-18 vide order dated 3.3.2006. The petitioner was retired from service on 4.4.2006 whereafter in recognition of the services rendered by the petitioner in the department particularly that he earned a good name being an honest officer, DPO Vehari vide his memo No. 13076 dated 15.3.2006 addressed to the Regional Police Officer, Multan recommended that the petitioner be got re-employed by moving his case through proper channel. The R.P.O. in turn vide his Letter No. 1184/E-1 dated 24.3.2006 addressed to the Inspector General of Police, Punjab requested that in view of the satisfaction shown on working of the petitioner and the fact that he achieved dynamic administration in the department, recommended his case for retention in service for further period by the sweet discretion of the competent authority. The Government of the Punjab, Services & General Administration Department under the explicit authority and orders of the Governor, Punjab vide Notification No. SO(S-II)2-2/2007-II dated 5.10.2007 re-employed the petitioner on contract for a period of three years in relaxation of re-employment policy of Government of the Punjab. In view of the aforesaid notification Inspector General of Police, Punjab vide order dated 26.10.2007 posted the petitioner as SP Regional Investigation, Region No. 5 Multan against a vacancy where he took over the charge on 29.10.2007 whereafter the services of the petitioner were terminated vide notification dated 10.4.2008, hence the present constitutional petition.
Learned counsel for the petitioner submits that the re-employment contract of service of the petitioner has been terminated without issuing him any show-cause notice which is against the natural principle of justice. He further submits that the State actions in contractual matters can be reviewed and referred Kumari Shrilekha Vidyarthi etc. v. State of U.P. and others (AIR 1991 Supreme Court 537).
I have heard the learned counsel for the petitioner and have also perused the available record. There is no denying the fact that the petitioner was retired from Government service as Superintendent of Police after attaining the age of superannuation whereafter he was re-employed on contract for a period of three years vide notification dated 5.10.2007. Clause (xi) of terms and conditions of contractual re-employment is relevant which is reproduced below:-
"TENURE
Three years with effect from 29.10.2007 to 28.10.2010. However, he will hold office during the pleasure of the Government and his services are liable to termination at any time without assigning any reason thereof."
The petitioner joined the re-employment service by accepting the terms and conditions of the contract wherein it was specifically mentioned that the tenure of his service shall be three years which is liable to be terminated without assigning any reason. Subsequently, the services of the petitioner were terminated as it is the prerogative of the Government which has specifically been mentioned in the order dated 28.1.2007. Under the aforesaid condition, the Government of the Punjab was not obliged to issue the petitioner a show-cause notice, as such, the impugned order, terminating the contractual services of the petitioner, is just, fair and in accordance with the policy of the Government, as such, warrants no interference by this Court in the constitutional jurisdiction. The case law referred by the learned counsel for the petitioner does not help to the petitioner in any manner as the facts of that case are different from the case in hand.
(M.A.K.Z.) Petition dismissed.
PLJ 2009 Lahore 316
[Multan Bench Multan]
Present: Mazhar Hussain Minhas, J.
KHADIM HUSSAIN--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 648 of 2005, heard on 18.6.2008.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 249-A--Constitution of Pakistan, 1973, Art. 199--Pendency of civil litigation--Seeking acquittal which was not allowed--Adjourning the criminal case sine die--Revision against--Acceptance of--Validity of--Constitutional petition--Proceedings in a criminal case cannot be stayed till the final decision of a civil suit and the both cases are to be decided independently on the bases of evidence produced by the parties and the accused may tender their documentary evidence in their defence which may be considered by trial Court--Application u/S. 249-A has not been decided on merits and the case has been adjourned sine die to await the result of civil litigation and the application is still pending--Constitutional petition dismissed however, trial Court was directed to decide the petitioner's application u/S. 249-A before proceedings with the trial of the case.
[P. 319] A
Mr. Tahir Mehmood, Advocate for Petitioner.
Sardar Zafar Ahmed Lond, Advocate for Respondent No. 4.
Mr. Mubashir Latif Gill, Assistant Advocate General for Respondents.
Date of hearing: 18.6.2008.
Judgment
Through this Constitutional petition, the petitioner has assailed the order dated 13.10.2004 passed by Mr. Muhammad Ibrahim Asghar, learned Additional Sessions Judge, Muzaffargarh, whereby the order dated 08.11.2003 passed by Mr. Muhammad Waseem Anjum, learned Judicial Magistrate, Muzaffargarh has been set aside and the case has been remanded for trial.
Precisely the facts relevant for disposal of this writ petition are that Ashiq Hussain-Respondent No. 3 got registered case FIR No. 333, dated 29.11.1997 under Sections 380/440/342/148/149 PPC at Police Station Rohillanwali, against the petitioner and nineteen others with the allegation that on the night between 25/26.11.1997 the accused armed with deadly weapons trespassed into his field and damaged the crops by ploughing the land with tractors and also took away 30 bags of DAP Fertilizer and 6 bags of wheat. During investigation, the complainant's version regarding theft of Fertilizer and wheat could not be substantiated as a result of which offence under Section 380 PPC was deleted and report under Section 173 Cr.P.C. against the accused for commission of remaining offences was submitted before the learned Illaqa Magistrate. After the submission of challan, the accused moved an application under Section 249-A Cr.P.C. seeking their acquittal which was not allowed, however vide order dated 08.11.2003 the case was adjourned sine die till the decision of civil litigation pending between the parties. Feeling aggrieved with the order passed by learned Judicial Magistrate, Respondent No. 3 filed criminal revision, which was accepted by learned Additional Sessions Judge, Muzaffargarh vide impugned order and learned Judicial Magistrate was directed to proceed with the trial. Aggrieved of the impugned order passed by learned Additional Sessions Judge, the petitioner/accused has filed the instant writ petition.
Arguments of learned counsel for the petitioner, learned counsel for Respondent No. 3 and learned Assistant Advocate General have been heard and record perused.
Learned counsel for the petitioner contends that the land comprised in Khata No. 101 situated in the revenue estate of Langrial, district Muzaffargarh is owned by the petitioner. In year 1979, one Munir Langrial with the help of his brother Muhammad Shabbir Langrial, Advocate practicing at Ali Pur forged an agreement to sell and filed a civil suit for specific performance against Pir Bukhsh, grant-father of the petitioner. The suit was dismissed on 13.02.1995. However, it was remanded for trial by the learned appellate Court after framing an additional issue regarding the dispute of possession. According to learned counsel on 22.11.1997, on coming to know about planning of aforesaid Munir Langrial to dispossess him from the disputed land, the petitioner filed a suit for permanent injunction. However, Munir Langrial, etc., got registered case FIR No. 329 dated 27.11.1997 under Sections 426/447/34 PPC against the petitioner and others. Through the influence of said Munir Langrial, case FIR No. 333/1997 was also got registered by Respondent No. 3 with mala fide against the petitioner and his whole family. Learned counsel further submits that since the civil litigation pending between the parties is going on in which question of possession is yet to be determined through evidence, therefore proceedings in the criminal case were rightly stayed by the learned Judicial Magistrate and the impugned order passed by revisional Court is not sustainable in law. In support of his contention, learned counsel has placed reliance on "Sheraz Ahmad and others versus Fayyaz-ud-Din and others) (2005 SCMR 1599). Perusal of this judgment shows that proceedings in the criminal case were stayed pending disposal of the civil dispute with the concurrence of the parties, and it has not been held that during the pendency of a civil suit, criminal case cannot proceed. Therefore, this judgment is of no avail to the petitioner.
Conversely, learned counsel for Respondent No. 3 and learned Assistant Advocate General have controverted the contentions raised by learned counsel for the petitioner and have supported the impugned order passed by learned Additional Sessions Judge. It has been contended that civil and criminal proceedings are of distinct nature and a criminal case is to be decided on its own merits independent of findings in the civil suit. In support of his contention, learned counsel for Respondent No. 3 has placed reliance on "M. Aslam Zaheer versus Ch. Shah Muhammad and another" (2003 SCMR 1691) and "Malik Khuda Bukhsh versus The State" (1995 SCMR 1621). In the former judgment, it has been held by the Hon'ble Supreme Court of Pakistan that criminal liability was always distinct and different from civil liability between the parties and the complainant who had initiated the criminal action was to prove the accusation against the accused respondents for producing evidence which, of course, could be recorded at the stage of trial by the Court. In the latter judgment, the Hon'ble Apex Court has observed that trial Court itself was competent to look into the genuineness of the document either by comparing the signatures of the accused with the signatures on the receipt or sending the same for Expert's opinion and that it was for the trial Court to determine the question of the guilt or innocence of the accused upon ocular and documentary evidence produced before it. It has been further observe that Civil Court's judgment could not be admissible in a criminal proceeding to establish the truth of the facts upon which it was rendered. The ratio decidendi of these judgments is that proceedings in a criminal case cannot be stayed till the final decision of a civil suit and both cases are to be decided independently on the basis of evidence produced by the parties and the accused may tender their documentary evidence in their defence which may be considered by the learned trial Court.
During the course of arguments, learned counsel for the petitioner has referred to certain documents to show his ownership and possession over the disputed property. He may tender these documents before the learned trial Court in his defence.
Perusal of order passed by learned Judicial Magistrate shows that the application under Section 249-A Cr.P.C. has not been decided on merits and the case has been adjourned sine die to await the result of civil litigation pending between the parties and the application is still pending there. Learned Additional Sessions Judge has not attended to this aspect and has not directed the learned trial Court to dispose of that application. Hence, the learned trial Court is directed to decide the petitioner's application under Section 249-A Cr.P.C. before proceedings with the trial of the case. The documents produced by the petitioner, if any, shall also be taken into consideration to reach a just conclusion for disposal of the application.
With these observations, the writ petition is dismissed. Copy of the order be sent to learned trial Court for information and compliance.
(M.A.K.Z.) Petition dismissed.
PLJ 2009 Lahore 319
[Multan Bench Multan]
Present: Syed Shaheen Masud Rizvi, J.
MUHAMMAD MUKHTAR--Petitioner
versus
S.H.O., POLICE STATION KARAM PUR, DISTRICT VEHARI and 3 others--Respondents
W.P. No. 2953-Q of 2008, decided on 30.6.2008.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 363--Guardian and Wards Act, 1890, S. 25--Quashment of FIR--Petitioner being the real father is a legal guardian in addition to the mother--Complainant of the case and moreover he has filed an application u/S. 25 of the Guardian and Wards Act, to be appointed as the sole guardian of his son, therefore the provisions of S. 363, PPC are not applicable against the petitioner--F.I.R. quashed. [P. 320] A
Mr. Muhammad Younis Sheikh, Advocate for Petitioner.
Mr. Tariq Barlas, Advocate for Respondent No. 2.
Mr. Muhammad Qasim Khan, A.A.G. for Respondents.
Date of hearing: 30.6.2008.
Order
The petitioner has sought quashment of FIR No. 102 dated 14.4.2008, registered under Section 363 PPC at Police Station, Karam Pur, against him and two others.
The FIR was got registered against the petitioner for the abduction of Ali Shafqat aged 7/8 years, who is his real son from the wed-lock of Mst. Razia the complainant of the above mentioned case. The petitioner and Mst. Razia stand divorced.
The petitioner has filed an application 25 of Guardian & Wards Act for the custody of his minor son Ali Shafqat (the alleged abductee), which is pending adjudication in the Court of learned Senior Civil Judge, Khanewal.
The case against the petitioner and two others have been registered under Section 363 PPC. For ready reference Section 363 PPC is re-produced below:
"Section 363 (PPC). Punishment for kidnapping:-
Whoever kidnaps any person from Pakistan or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The bare perusal of the above said section reveals that the petitioner being the real father of Ali Shafqat being the natural guardian himself is a legal guardian in addition to the mother Mst. Razia Bibi the complainant of the case and moreover he has filed an application under Section 25 of the Guardian & Wards Act to be appointed as the sole guardian of his son Ali Shafqat, therefore, the provisions of Section 363 PPC are not applicable against the petitioner.
Therefore, the FIR No. 102 dated 14.4.2008, registered under Section 363 PPC at Police Station Karam Pur, District Vehari, is quashed.
The respondent, Mst. Razia Bibi if interested to get the custody of her son Ali Shafqat can do so by appearing before the Court of learned Senior Civil Judge, Khanewal where she has been summoned through citation in the newspaper vide order dated 24.3.2008 of the said Court in a petition filed under Section 25 of the Guardian & Wards Act by the petitioner.
(M.A.K.Z.) FIR quashed.
PLJ 2009 Lahore 321
Present: Syed Shabbar Raza Rizvi, J.
SARMAD IJAZ ANWARI--Petitioner
versus
STATE and another--Respondents
W.P. No. 2612 of 2008, decided on 15.9.2008.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 516-A--Constitution of Pakistan, 1973, Art. 199--Recovery of car from the possession of the petitioner--Application for superdari--Rejection of--Revision against, dis-allowed--Constitutional petition--Car was sold to three persons including the present petitioner who is a bona fide purchaser, however the important point is whether the car was sold by the actual owner or by an accused of criminal mis-appropriation or a fraud--Offence is also covered by S. 410, PPC--Despite petitioner being, prima facie, bona fide, purchaser of the car, cannot be treated as a lawful owner--Petition dismissed. [P. 323] A
Mr. Muhammad Baleegh-uz-Zaman Chaudhry, Advocate for Petitioner.
Ch. Muhammad Mushtaq Saleem, Advocate for Respondent
No. 1.
Mr. Muhammad Nawaz Bajwa, AAG for State.
Date of hearing: 15.9.2008.
Order
An F.I.R No. 281/05 was registered at P.S. Shadman, Lahore on 16.8.2005, under Sections 406, 468, 471 and 420 PPC on the complaint of Dr. Qamar Ara, Respondent No. 2 herein. According to the learned counsel for the petitioner, the above F.I.R was registered in relation to fraudulent transaction, misappropriation, etc. of Car No. LRU/713. According to him, the petitioner bonafidely purchased the same from one Naveed Anjum, named accused in the above mentioned F.I.R. The registration of the car was transferred in favour of petitioner on 28.11.2005. The car was recovered from possession of the petitioner by police on 8.10.2007 on orders of the learned Judl. Magistrate, Model Town in pursuance of orders passed in Writ Petition No. 5152/06 dated 21.9.2007, by this Court.
In the above background, the petitioner applied for possession of the said car but his application was dismissed by the learned Judl. Magistrate on 8.10.2007. Against the said order, a revision was filed before the learned Addl. Sessions Judge which was also dismissed by the learned Addl. Sessions Judge on 17.3.2008, hence the present petition.
The learned counsel for the petitioner submits that the car was taken into custody by the police from the possession of the petitioner, therefore, custody/superdari should be given to him until the final decision of the criminal case arising from the said F.I.R.
On the other hand, the learned counsel for the complainant of the F.I.R. Respondent No. 2 submits that one Naveed Anjum, a former Sub-Inspector of police had become an adopted son of Dr. Qamar Ara, Respondent No. 2. According to him, he took advantage of her love, affection and confidence and started driving the car. One day, he concocted a false story and told Respondent No. 2 that car had been destroyed in an accident. Actually, Naveed Anjum had sold the car to one Mushtaq. However, said Mushtaq came to know fraudulent act of Naveed Anjum, thus, he returned the car to Naveed Anjum who later on through a show-room sold the same to the petitioner. According to him, despite registration of F.I.R above-mentioned against Naveed Anjum, the police were not recovering car from him being his colleagues. For the said reason, Writ Petition No. 5152/2006 had to be filed before this Court. Following the order of this Court dated 21.9.2007, the car was recovered. According to him, the learned Magistrate, pursuant to order of this Court directed police to recover the car which was recovered from the owner of show-room, Khawaja Khalid Hafeez and not from the petitioner.
According to the learned Assistant Advocate General, Punjab, as instructed, last possession was with the present petitioner and according to the official record, he is still owner of the car. Thus he supports version of the petitioner.
I have heard the above noted arguments of the learned counsel and considered the same with due attention.
The main grievance of the present Respondent No. 2, petitioner in Writ Petition No. 5152/06 was that despite submission of challan before the trial Court, the car was not recovered from Naveed Anjum, Respondent No. 7 in the above mentioned writ petition. In the above background, this Court directed DIG (Investigation) to recover the car or the concerned police officer would face the legal consequences. The relevant port of my order dated 12.9.2007 is reproduced for convenience:-
"I take a serious view of the above mentioned grave lapse on behalf of the Investigating Officers who have been involved in the investigation of this case. The DIG, Investigation, Lahore Mr. Tasaddaq Hussain is directed to appear before this Court to explain the conduct and failure on part of his subordinates, on 21.9.2007. It would be better if the car/case property is recovered immediately before the next date of hearing otherwise the concerned police officers would face legal consequences."
In the above background, the car was recovered but not from Naveed Anjum. For further details report submitted by the DIG would be relevant. According to which, recommendation of Standing Board, ASP/SPO Garden Town Circle, Lahore was entrusted with the investigation. According to the report, the preparation of forged and fake documents could not be proved, thus Sections 468 and 471 PPC were deleted and Section 420 PPC was added. The accused, Naveed Anjum, SI was found guilty of offences under Sections 420 and 406 PPC and the challan was accordingly submitted. The report includes that the said car was sold three times and all purchaser were bonafide purchaser and accused has to pay the price of the vehicle to the bonafide purchasers.
(M.A.K.Z.) Petition dismissed.
PLJ 2009 Lahore 324
[Multan Bench Multan]
Present: Syed Shaheen Masud Rizvi, J.
Mst. SAIRA ZULFIQAR--Petitioner
versus
THE ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others--Respondents
W.P. No. 6327 of 2006, decided on 17.6.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 5 & Sch.--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of dower amount, gold ornaments and property under Iqrarnama--Dower amount decreed--Appeal rejected--Concurrent finding--Constitutional petition--Marriage being a contract--Amount of dower was independent in itself and the property and gold ornaments were in addition to the said amount of Haq-ul-Mehar--Gold ornaments and the property were in lieu of amount of Haq-ul-Mehar stands totally falsified by evidence on record--Courts below erroneously and illegally held that petitioner is not entitled to the property mentioned in Nikahnama and Iqrarnama--Petition accepted. [Pp. 325 & 326] A
Mr. Muhammad Akbar Sajid Chaudhry, Advocate for Petitioner.
Mr. Shakeel Javed Chaudhry, Advocate for Respondent No. 3.
Date of hearing: 17.6.2008.
Order
Through this writ petition Mst. Saira Zulfiqar has challenged the judgment and decree dated 18.4.2006, passed by learned Judge Family Court, Multan whereby she was held to be entitled to recover the dower amount of Rs. 20,00,000/- and it was held that the gold ornaments weighing 50 tolas, agricultural land and 1« share in residential house situated in Gulgashat Colony Multan were under taken to be given in lieu of the dower of Rs. 20,00,000/- and not in addition to it.
Thus feeling aggrieved of the judgment and decree passed by the learned Judge Family Court, petitioner filed an appeal before learned District Judge, Multan which was decided by the learned Addl. District Judge, Multan vide judgment and decree dated 17.10.2006 who upheld the findings of the learned Judge Family Court and dismissed her appeal, hence, the instant writ petition.
The grievance of the petitioner is that two Courts below have committed serious illegality by misreading the contents of Nikah Nama relating to the dower and have misinterpreted the relevant column in this regard and that Iqrar Nama entered into between the petitioner and respondent dated 18.09.2001, Mark-K regarding " " stands incorporated in the Nikah Nama.
The learned counsel for the respondent has admitted that respondent second marriage with the petitioner as such it explains the heavy amount of dower as well as the gold ornaments and other properties mentioned in the Iqrar Nama Mark-K dated 18.9.2001 and Nikah Nama Mark-A.
The two Courts below have not taken into account the Iqrar Nama dated 18.9.2001 Mark-K which document stands unrebutted in the evidence and, therefore, their contents cannot be denied. The learned counsel for the respondent has admitted that till to date, the respondent has not challenged ex-parte decree passed against him by the learned Judge Family Court as well as that of learned Addl. District Judge. The contents of Iqrar Nama Mark-K stands incorporated in the Nikah Nama Mark-A and the Nikah Nama under the Muslim Family Laws Ordinance, 1961 being registered document with the Nikah Registrar has a different status than any other document and that in Column Nos. 15 and 16 of Nikahnama it has clearly and unambiguously been incorporated that the respondent will abide by the conditions given in Iqrar Nama dated 18.9.2001, for the ready reference the entry in relevant Column Nos. 15 and 16 of Nikahnama Mark-A is reproduced below:-
As such the Iqrar Nama Mark-K and its contents have become integral part of Nikah Nama Mark-A and as such the contents/entries in the Nikah Nama are to be read in conjunction with the Iqrar Nama Mark-K dated 18.9.2001. Further the marriage being a contract, the parties to the marriage are at liberty to enter into the terms of their choice. Two Courts below cannot interpret the said terms at their own when such interpretation specifically stands negated by the contents of Nikah Nama Mark-A and Iqrar Nama dated 18.9.2001 Mark-K. These two documents clearly reveal that amount of dower of Rs. 20,00,000/- was independent in itself and the property and gold ornaments were in addition to the said amount of Haq-ul-Mehar. Thus the findings of both the learned Courts below that gold ornaments and the property were in lieu of amount of Haq-ul-Mehar stands totally falsified by evidence on the record. As such two Courts below erroneously and illegally held that the petitioner is not entitled to the property mentioned in the Nikah Kama Mark-A and Iqrar Nama dated 13.9.2001, Mark-K.
(M.A.K.Z.) Petition accepted.
PLJ 2009 Lahore 326
Present: Zafar Iqbal Chaudhry, J.
IMRAN MOAZZAM--Petitioner
versus
ADDITIONAL DISTRICT JUDGE WITH POWERS JUDGE FAMILY COURT PAK PATTAN SHARIF and 3 others--Respondents
W.P. No. 3812 of 2007, heard on 21.4.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 5 & Sch.--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance and dower--Question of maintenance--Trial Court fixed Rs. 8000/- per month--Appellate Court enhanced at upto Rs. 10,000--Constitutional petition--Validity of--Held: Trial Court fixed Rs. 8000/- per month and Appellate Court enhanced it upto Rs. 10,000--No objection if the amount enhanced is reduced to that which was fixed by trial Court--Evidence which has been properly discussed by Court below, the maintenance Rs. 8000/- was reasonable--Enhancement by the Appellate Court is set aside--Petition dismissed accordingly. [P. 329] A
Mr. Muhammad Anwar Shaheen, Advocate for Petitioner.
Mr. Ahmad Waheed Khan, Advocate for Respondents No. 2 to 4.
Date of hearing: 21.4.2008.
Judgment
Imran Moazzam petitioner has challenged the judgments/decrees dated 27.02.2006 and 05.03.2007 passed by the learned Judge Family Court, Pakpattan Sharif and the learned Additional District Judge, Pakpattan Sharif respectively. Initially Respondents No. 3 and 4 have filed suits for their maintenance and dower amount for Respondent No. 3 stating therein that the marriage between Respondent No. 3 and the petitioner was solemnized on 28.12.1997. The couple was blessed with a female baby who is Respondent No. 4 herein. After the passage of time the behaviour of the petitioner became cruel enough that he ruthlessly deserted Respondent No. 3 out of his house and created such strained circumstances that Respondent No. 3 was constrained to settle with her parents even in a condition of pregnancy. She gave birth Maliha Imran Respondent No. 4 at the house of her parents and all the expenses of delivery which were estimated as Rs. 30,000/- were borne by Respondent No. 3, herself. An important feature of this case is that in the first round of litigation the petitioner himself gave consenting statement before the learned Judge Family Court that he will repent his attitude and will not cause mental or physical torture to Respondent No. 3 and will also provide maintenance to them but afterward the petitioner resiled from his commitment and once again deserted Respondent No. 3 out of home. Through a separate suit Respondent No. 3 also claimed her dower which at the time of Nikah was fixed as 25-Acre land. So for as the suit for maintenance is concerned it was alleged that Rs. 15,000/- as maintenance per month for Respondent No. 4 be granted and through the same plaint the maintenance for Respondent No. 3 till Iddat period was also claimed. The suits were duly contested by the petitioner on the ground that previously the respondent had also filed suits in the same line which were dismissed vide order dated 30.05.2000 and 19.05.2001 due to non-production of proof, therefore, the rule of res judicata applied and the respondent could not sue the petitioner against the same cause of action. The petitioner denied all the allegations leveled in the plaint and prayed for dismissal of suit. The petitioner also filed a suit for restitution of conjugal rights before the learned Judge Family Court, Pakpattan Sharif. The learned Judge Family Court consolidated all the suits and vide his judgment/decree dated 27.02.2006 decreed the suit for maintenance to the extent of Respondent No. 4 and fixed maintenance as Rs. 8000/- per month. The suit for maintenance to the extent of Respondent No. 3 and suit for recovery of dower was, however, dismissed. So far as the suit for restitution of conjugal rights filed by the petitioner is concerned the same was also dismissed by the learned Judge Family Court, Pakpattan Sharif through the same consolidated judgment. Both the parties preferred appeals before the learned Additional District Judge, Pakpattan Sharif who vide his consolidated judgment and decree dated 05.03.2007 accepted the appeal of Respondent No. 4 and enhanced maintenance from Rs. 8000/- to 10,000/-. The learned appellate Court also accepted the appeal of Respondent No. 3 to the extent of dower amount and dismissed the appeal of the petitioner for restitution of conjugal rights. Hence, this writ petition before this Court.
Rs. 8000/- to Rs. 10,000/- in favour of Respondent No. 4 is not understandable especially in presence of the evidence available on the record of this file. The learned counsel further asserts that the learned appellate Court has miserably failed to give findings on Issue No. 3. He lastly asserts that the judgment passed by the learned appellant Court is a result of misreading and non-reading of evidence which is not sustainable in the eyes of law and has been passed in erroneous way by brushing aside the assessment of the learned Judge Family Court, therefore, the impugned judgment is liable to be set aside.
On the other hand the learned counsel for Respondents No. 3 and 4 submits that sufficient means of income of the petitioner had been proved through documentary as well as oral evidence adduced by the witnesses of Respondents No. 3 and 4, therefore, the maintenance fixed by the learned appellate Court needs to be enhanced upto Rs. 15,000/- per month. He further maintains that it is not necessary that every issue should be dealt with separately.
After hearing the learned counsel for the parties and going through the record I have observed that so far as the argument of the learned counsel for the petitioner regarding misreading of evidence is concerned that is not matched with the record. With the assistance of the learned counsel for the petitioner I have gone through the entire evidence and found that Nikah Registrar Abul Hasan Lal who appeared as DW2 has categorically stated in his cross-examination that from Column No. 1 to last column of the Nikah Nama all the entries were made by him and he also admitted it correct in his evidence that the entry in Columns No. 13 and 14 were made by him which shows that 25-acres property valuing Rs. 50,00,000/- was given as dower. Similarly the other points raised by the learned counsel for the petitioner during the arguments also do not find support from the evidence. So far as the contention of the learned counsel for the petitioner that no finding was given on Issue No. 3 by the learned appellate Court is concerned, it is not necessary for the learned appellate Court to discuss each and every issue. Even otherwise the petitioner has been taking different pleas during his pleadings which also shows mala fide on his part.
As far as the question of maintenance of Respondent No. 4 is concerned the leaned trial Court fixed Rs. 8000/- per month and the learned appellate Court enhanced it upto Rs. 10,000/-. Under the instructions of his client the learned counsel for the respondent has stated that he has no objection if the amount enhanced by the learned appellate Court is reduced to that which was fixed by the learned Judge Family Court and that is Rs. 8000/-. In the light of above said submission and the evidence which has been properly discussed by both the Courts below I feel that the maintenance Rs. 8000/- fixed by the learned trial Court was reasonable and the impugned judgment dated 05.03.2008 passed by the learned appellate Court to the extent of enhancement of maintenance is set aside and the maintenance of Respondent No. 4 is fixed Rs. 8000/- per month according to the judgment and decree passed by the learned trial Court.
So far as decree by the learned appellate Court in favour of Respondent No. 3 for dower is concerned, the same was passed after thoroughly discussing the oral as well as documentary evidence. The upshot of my above discussion is that no illegality or irregularity has been found in the judgment and decree passed by the learned appellate Court and this writ petition is dismissed in these terms.
(M.A.K.Z.) Petition dismissed.
PLJ 2009 Lahore 329
[Multan Bench Multan]
Present: Hafiz Tariq Nasim, J.
Mst. AISHA BIBI--Petitioner
versus
PRINCIPAL, GOVERNMENT ELEMENTARY TEACHER'S TRAINING COLLEGE FOR WOMEN, NAWAN SHAHER, MULTAN and 2 others--Respondents
W.P. No. 4818 of 2007, heard on 28.7.2008.
Constitution of Pakistan, 1973—
----Art. 199--Educationa; institution--Admission in B.Ed--Upper age limit--Constitutional jurisdiction--Relaxation of age--Validity of--Question of law--Admission in B.Ed. the candidates for evening classes are not facing the condition of average whereas the applicants for the morning classes in the same discipline are facing the imposition of upper age limit, which otherwise does not seem to be justified on the touchstone of fairplay equity and reasonableness--Held: Petitioners were admitted in B.Ed. classes in compliance with the orders of High Court, they have completed the requisite course without any complaint--Requisite fee has also already been deposited--Petitions allowed. [P. 331] A
Malik M. Ahsan Kharl, Advocate for Petitioner.
Mr. Mubashar Latif Gull, AAG for Respondents.
Date of hearing: 28.7.2008.
Judgment
This judgment will dispose of Writ Petition Nos. 4818/2007, 5858/2007 and 5891/2007 as the same questions of law are involved therein.
Brief facts leading to these writ petitions are that the petitioners applied for admission in B.Ed., Morning Session 2007-08 from Government Elementary Teachers' Training College, Nawan Shehr, Multan, on the basis of their qualification i.e. B.A. In the prospectus the age limit was mentioned as 24 years whereas the petitioners' ages were more than required age, so due to the upper-age limit prescribed by the concerned authorities they moved before the concerned authorities for the relaxation of age as well as admission in Morning Classes for the Session 2007-08 and this request was made on the strength of order dated 01.08.1992 whereby the Principal was authorized to relax up to 5 years and Director of Education was allowed to relax up to 8 years and DPI Colleges/Schools were authorized to relax up to 10 years but the petitioners were not responded despite availability of seats in Morning Classes.
The petitioners approached this Court through the present writs which were admitted for regular hearing through orders dated 19.11.2007, 23.11.2007 and 26.11.2007 respectively and it was also directed that if the petitioners are otherwise on merits, except to the bar of age, shall be given admission in the morning classes subject to payment of usual charges.
Learned counsel for the petitioners submit that on the strength of orders passed by this Court, the petitioners were granted admission, they completed the requisite course satisfactorily, examination is scheduled to be held on 10.08.2008, requisite examination fees have already been deposited and if the writ petitions are not allowed there is apprehension of non-suiting the petitioners.
Learned counsel submit that it is a clear case of discrimination as there is no bar of age for the evening classes but imposing a condition of age in the morning classes is violative of Article 25 of the Constitution of Pakistan when the similarly placed applicants are being treated differently.
Learned counsel for the petitioners rely on Riaz-ul-Haq vs. Selection Committee constituted for admission in Bolan Medical College and 6 others (1997 SCMR 1845) and Dr. Liaqat Ali vs. Vice Chancellor University of Agriculture Faisalabad and 2 others (PLD 1999 Lahore 454).
On the other hand, learned AAG submits that it is prerogative of the departmental authorities either to accede petitioners' request for relaxation of upper age limit in accordance with the order of 1992 or fuse and no one can challenge the refusal through the course of writ.
Arguments heard. Record perused.
It is an admitted position that in the same subject i.e. admission is B.Ed. the candidates for evening classes are not facing the said condition of overage whereas the applicants for the morning classes in the same discipline are facing the imposition of upper age limit, which otherwise does not seem to be justified on the touchstone of fair play equity and reasonableness.
In the present case, there is another important aspect that the petitioners were admitted in B.Ed. classes in compliance with the orders of this Court, they have completed the requisite course without any complaint whatsoever i.e. satisfactorily, examination is also scheduled to be held on 10.08.2006 and for that the requisite fee has already been deposited by the petitioners and in such like controversy the Hon'ble Supreme Court of Pakistan in a case of Riaz-ul-Haq supra held "admission having been given to appellant by act of Court none from respondent side had come to challenge such act of Court, therefore, it has been treated final qua appellant to complete his education".
In the present case, on behalf of respondents learned AAG is of course present in the Court but did not controvert the factual position after consulting the relevant record that the petitioners have already completed the course and they are going to sit in the forthcoming examination of 10th August 2008 and for that they have deposited the requisite fee, so the judgment supra is fully attracted in the impugned matter.
This judgment of the Hon'ble Supreme Court of Pakistan was followed in the case reported as Dr. Liaqat Ali vs. Vice Chancellor University of Agriculture Faisalabad and 2 others (PLD 1999 Lahore 454). Relying on these judgments, the petitioners are held entitled for appearing in the final examination of B.Ed, classes. Resultantly, writ petitions are allowed in the above terms.
(M.A.K.Z.) Petitions allowed.
PLJ 2009 Lahore 332
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ASHRAF--Applicant
versus
ARSHAD PARVAIZ--Respondent
F.A.O. No. 61 of 2007, heard on 23.6.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 13--Ejectment on ground of personal need--Challenge to--Respondent is the owner of the house--House was let out to the appellant by the respondent under a written agreement executed by the appellants--He had acknowledged that respondent is the owner and he is the tenant and there was no mention of any one else being the owner--Appeal dismissed. [P. 334] A
Mr. Mahmood-ul-Hassan Awan, Advocate for Applicant.
Mr. Muhammad Irshad Rana, Advocate for Respondent.
Date of hearing: 23.6.2008.
Judgment
On 3.1.2006 the respondent filed an application for the ejectment of the appellant from a house located in Rawalpindi Cantonment. It was stated that the respondent is the owner of the said house and the appellant entered the same as a tenant under the agreement dated 5.5.2003 subject to payment of Rs. 4,000/- per month as rent. The ejectment was sought on the ground of bona fide personal requirement and also default in payment of rent at the enhanced rate since July, 2005. The appellant filed a written statement who admitted that the respondent is the owner and he is the tenant in terms of the said agreement under him. He, however, denied having committed and default and also denied that the house is required for bona fide personal use and occupation of the respondent. Following issues were framed by the learned Rent Controller:--
Whether the respondent is a willful defaulter and did not tender or pay the enhance rent since July 2005? OPP.
Whether the petitioner requires the suit house for his own personal use and occupation? OPP.
Whether the ejectment petition is not maintainable in view of the preliminary objection was raised by the respondent in his written reply? OPP.
Relief.
Evidence of the parties was recorded. The learned Rent Controller found that the appellant has not committed default in the payment of rent. He, however, answered Issue No. 2 in favour of the respondent holding that he does require the house for his personal use and occupation bona fide. The application was allowed and an ejectment order was passed on 16.4.2007.
Learned counsel for the appellant contends with reference to some portions of the cross-examination of the respondent as PW.-1 that since he was not owner of the house, he could not claim the ejectment of the appellant on the said ground. Relies on the case of Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig (1990 MLD 1009). Learned counsel for the respondent, on the other hand, contends that the facts of the said judgment are quite distinct and in the present case, there is no denial that the respondent delivered possession to the appellant under the said agreement as a tenant representing himself to be the owner of the house. In fact, the specific averment was admitted by the appellant.
I have gone through the re-cords of the learned trial Court, with the assistance of the learned counsel for the parties. So far as the merits of the Issue No. 2 are concerned, it has come on record that the tenancy agreement has expired and that the respondent is not in possession of any house owned by him in the Rawalpindi Cantonment suitable for his needs.
Coming to the said contention of the learned counsel, it was stated in the ejectment petition that the respondent is the owner of the house and let out the same to the appellant on terms contained in agreement Ex.P.4 which facts were admitted by the appellant. It is true that in the course of his cross-examination, it was first suggested to the respondent and he admitted that he is paying the taxes in respect of the suit property but he clarified that the receipts are in the name of old owner. He then stated in response to a question that the house is in the name of a lady Moeeza Naheed wife of Waseem Shah. It is in his name but he has a power of attorney. He then admitted that he has incorrectly stated that he is the owner of the house. The cross-examiner did not stop and ultimately the respondent volunteered that he is the actual owner but in the papers the name of the said lady continues. He denied a suggestion that he was not the owner of the suit house. This statement was recorded on 1.7.2006. The statement of the appellant was recorded on 30.11.2006. H is examination-in-chief is in the form of an affidavit Ex.R. 1. In this affidavit, there is no denial that the respondent is the owner of the house. It has been admitted that the house was let out to the appellant by the respondent under a written agreement. In his cross-examination, he admitted agreement Ex.P.4. It has been executed by the appellant and narrates that he has obtained the house on rent from the respondent, namely, Arshad Pervaiz who is the owner of the house. He further confirmed that he had acknowledged that Arshad Pervaiz respondent is the owner and he is the tenant and that there was no mention of any one else being the owner.
In view of the said pleadings and evidence on record, I do agree with the learned counsel for the respondent that the judgment in the case of Muhammad Kashif Kamal Siddiqui is not at all attracted. Their lordships have narrated the entire history of the case in the said judgment. What happened was that, in the first instance, the tenant in the said case specifically pleaded in his written reply (reproduced at page 1012 of the report) that father of the said Muhammad Kashif was the owner of the premises and he had filed an ejectment petition against the said tenant. The matter went up-to the Hon'ble Supreme Court where the appeal of the said father of Muhammad Kashif was dismissed on 9.5.1982. It was on 10.1.1984 that Muhammad Kashif filed the ejectment petition for the same premises against the same tenant. It was in the said background that the said findings were recorded which are being relied upon by the learned counsel. The facts are clearly distinguishable. No other point has been urged The FAO is dismissed. However, the appellant is directed to hand over vacant possession of the house in question to the respondent on or before 31.8.2008. In case he fails to do so, the respondent shall be entitled to execute the ejectment order. No orders as to costs.
The records of the learned Rent Controller be remitted back immediately.
(M.A.K.Z.) Appeal dismissed.
PLJ 2009 Lahore 335
Present: Syed Hamid Ali Shah, J.
MUHAMMAD SOHAIL BUTT--Petitioner
versus
CAPITAL INSURANCE CO. LTD. etc.--Respondents
C.O. No. 57 of 2006, decided on 29.6.2007.
Companies Ordinance, 1984 (XLVII of 1984)—
----S. 148--Membership of dry port trust--Challenge to--Prays for rectification of the register of members of company by seeking removal of the names of Dry Port Trust, as shareholder--Objections were raised--Imposes restriction--Bar--No notice of any trust shall be entered on the register of members--Restriction statedly, creates the bar on trust--S. 148 implies the restriction to keep the company out of any controversy, with regard to rights of a shareholder as trustee and transferee as cestus qua trust--Held: Only restriction in this respect, is when instrument of trust fails to provide or prohibits the trust to become member/shareholder in a company--Instrument of trust, if imposes conditions then trust can become member, subject to those conditions--Petitioner has failed to make out a case for rectification of register or members of the respondent company--Petition dismissed.
[Pp. 338, 340 & 341] A, G & K
Words and Phrases--
----Trust--Trust is commonly used for a `trust' registered and created under Trust Act, 1882, or for the right to the beneficial enjoyment of property, to which another person holds the legal title. [P. 338] B
Words and Phrases--
----Confidence--Confidence reposed in and accepted by the owner--Person who reposes or declares the confidence is called the "Author of Trust" the person who accepts the confidence is called
trustee'--Persons for whose benefit the confidence is accepted is called thebeneficiary' or beneficiaries'--The subject-matter of trust is called theTrust Property' or Trust Money' and the instrument, if any, by which the trust is declared is calledInstrument of Trust' it can be private or public i.e. charitable. [P. 338] C
Words and Phrases--
----Manifestation--Person in such relation, who holds something or accept some obligation for benefits of other is called the
"Trustee" and for whose benefit something is held, is called
beneficiary' orastus que trust'. [P.
338] D
Words and Phrases--
----Trust--Reference to Palmer's Company Law (13th Edition). [P. 338] E
Words and Phrases--
----Beneficial interest--A company cannot inquire into a shareholder's motive and invalidate his voting right, by going deep into the scrutiny and see that legal as well as beneficial estate vests in such shareholder. [P. ] F
Words and Phrases--
----Cestus que trust--A constructive trust comes into existence, which make it obligatory on the part of trustee to transfer the corpus and income to cestus que trust. [P. 340] H
Trust Act, 1882 (II of 1882)—
----S. 94--Constructive trust--Severance of interest in such like situation creates a constructive trust, within contemplation of S. 94 of Trust Act. [P. 340] I
Companies Ordinance, 1984 (XLVII of 1984)--
----S. 2(21)--General Clauses Act, (VI of 1956), S. 3(39)--Quest of admissibility of trust as member of company--A person is eligible to become a member of a company--Trust on its registration become a person within the contemplation of S. 3(39) of General Clauses Act.
[P. 340] J
Mr. Irfan Mahmood Sheikh, Advocate for Petitioner.
Sh. Muhammad Ismail, Advocate for Respondent No. 1.
Mr. Shahid Karim, Advocate for Respondent No. 2.
Mr. Javaid Iqbal Bhinder, Advocate on Court's call.
Date of hearing: 21.5.2007.
Order
Sialkot Dry Port Trust, according to the register of members of the respondent company, is shareholder to the extent of 2710219 shares of the value of Rs. 2,71,02,190/-, out of total capital of the company, amounting to Rs. 8,03,00,000/-. The petitioner through filing of instant petition, prays for rectification of the registered of members of respondent company by seeking removal of the name of Sialkot Dry Port Trust, as shareholder/member of the company. The respondent company contested the petition, filed reply, controverted the assertions of the petition and raised various preliminary objections Sialkot Dry Port Trust/shareholder also filed reply to the petition and controverted the assertions made in the petition.
Learned counsel for the petitioner has contended that Sialkot Dry Port Trust is not a legal entity, hence it cannot be a shareholder in the company. Learned counsel has submitted that notice of any trust expressed implied or constructive can not be entered on the register of Members nor such notice can be received by the Registrar, according to Section 148 of Ordinance, 1984. He added that bar imposed on receiving or entering the notice of trust, on the register of members, means that a trust cannot become a member of the company. Learned counsel further submitted that the shareholder of the company is entitled to receive the dividend while the Trust can only be registered for a charitable purpose. Becoming a member in company, affects the very object of trust and its nature changes into profitable instead of charitable. Learned counsel has referred to the case of E.D. Sasson and Company Limited Vs. Kapatch (XLV Bombay Law Reporter 46) to contend that a Trust can be restrained from attending meeting of company and to enjoy and sign the proxy with regard to shares. Learned counsel further submitted that Sialkot Dry Port Trust is sum total of individuals/human being and as such does not qualify to be designated as a person, within the contemplation of Section 2(21) of the Companies Ordinance, 1984. Learned counsel has lastly submitted that the capital has been increased to turn existing members of the company into a minority.
Mr. Shahid Karim, Advocate, learned counsel for the trust, on the other hand, has submitted that increase in capital was not due to any mala fide or with an intent to turn petitioner into negligible minority, but it was made to meet the mandatory requirement of Section 28 of the Insurance Ordinance, 2000. He contended that Sialkot Dry Port Trust is a legal entity and clause 3(xii)(c) of the instrument of Trust, which is a registered document, authorized the trust to invest in stocks. He further submitted that the Trust falls within the definition of person as contemplated in Section 1(39) of the General Clauses Act. Trust, which is duly registered, is eligible to become a member of the company. Learned counsel has submitted that the term "trust" in Section 148 starts with small "t", which is meaningful and pertains to a person who holds share in trust for another person. Learned counsel explained that under Section 148 of the Companies Ordinance a shareholder, cannot issue notice or to convey to a company that a certain person, who holds share in trust for another, can not represent the original shareholder in the meetings of the company, etc. Learned counsel supported this contention by referring to page 446 of Palmer's Company Law. Learned counsel for Respondent No. 1, Sh. Muhammad Ismail, Advocate, has submitted that as per record of the company, Sialkot Dry Port Trust holds shares in its name, of the value of Rs. 2,71,02,190/-. He adopted the arguments of Mr. Shahid Karim, Advocate and submitted further that the name of Respondent No. 2 had been entered in the register of members in legal manner, and no illegality has been committed in this respect.
Heard. Learned counsel for the parties and record perused.
The membership of Sialkot Dry Port Trust, has been challenged by the petitioner, on the ground that Section 148 of the Companies
Ordinance, 1984 (Ordinance XLVII of 1994), imposes restriction that not notice of any trust shall be entered on the register of members. The restriction statedly, creates the bar on trust, to be made a member in a company. To resolve this issue. The term "trust" used in Section 148 of
Ordinance, 1984, needs its determination first. Term "Trust" is commonly used for a Trust' registered and created under Trust Act, 1882; or for the right to the beneficial enjoyment of property, to which another person holds the legal title. Trust in the former case is an obligation annexed to the ownership of property and arising out of confidence reposed in and accepted by the owner, or declared and accepted by him for the benefit of another or the owner. The person who reposes or declares the confidence is called the
"Author of trust", the person who accepts the confidence is calledtrustee'. The person(s) for whose benefit the confidence is accepted is called the beneficiary' orbeneficiaries'. The subject-matter of trust is called the
Trust Property' orTrust money'; and the instrument, if any, by which the trust is declared is called the `instrument of trust' it can be private or public i.e. charitable.
The trust in the latter case, signifies the relation whereby one or more persons hold something material or accept some obligation in trust for another or for the benefit of other persons. The relation, when it finds manifestation in its practical form is named as trust'. The person in such relation, who holds something or accept some obligation for benefit of other is called theTrustee' and for whose benefit something is held, is called beneficiary' orcestui que trust'. So in the former case, it is in an
`institution' while in the latter it is relation or confidence.
Coming to the expression "trust" used in Section 148 of the Companies Ordinance, 1984, it is to be seen that which kind of trust, is mentioned in the said section. Reference to Palmer's Company Law (13th Edition) is necessary, where dealing with similar situation, at page 446, it has been expressed that:
"In the case of companies registered in England, no notice of any trust is to be entered on the register or is receivable by the company (s. 117). This is one of the key sections of the Act. Its effect is that a beneficiary who is not registered as a holder of shares has no connection with or rights in, a company in which shares are held on trust for him. He cannot, for instance, except by taking legal proceedings to seek the protection of the Court for his interests, interfere with the normal transfer procedure."
Reference to the following paragraph of the judgment of Lord Coleridge in the case of "Perkins etc. Vs. Mexican Santa Barbra Mining Co." [(1890) 24 QBD 613] is relevant:-
"It seems to me extremely important not to throw any doubt on the principle that companies have nothing whatever to do with the relation between trustees and their cestui que trust in respect of the shares of the company. If a trustee is on the company's register as the holder of share, the relations which he may have with some other person in respect of the shares are matter with which the company have nothing whatever to do; they can look only to the man whose name is on the register."
Case of E.D. Sasson and Company Limited Vs. Kapatch (Volume XLV 1943 Bombay Law Reporter 46). relied upon by the petitioner himself, deals with situation, where purchaser of the share in the company, took delivery of share certificates and transfer deeds. Suit was filed for injunctive order of the Court against the defendant (seller of shares) to vole in the meeting of the company according to wishes of plaintiff to enable them to get themselves registered as share holder of the company or in the alternative sign the proxy forms. Court found that Section 33 of the Indian Companies Act, which forbids notice of trust to be received on the register, implies that there can be trust of shares. It was observed in the judgment that control of vote on share holder by cestui que trust will render provision of Section 33 of Indian Companies Act nugatory, while depriving the beneficiary to control the trustee would defeat the provisions of Section 94 of Trust Act, 1882. It was also observed that the position with regard to such shares is simple. As between company and seller, the seller is shareholder while it is the beneficiary, who is a shareholder inter-se the seller and purchaser, Court decreed the suit, restrained the defendant to attend meeting and directed to sign proxy forms. This judgment though referred by learned counsel for the petitioner, supports the stance of the respondents.
A person whose name is entered in the register of members is the shareholder/member of the Company according to provisions of Ordinance, 1984 (ibid). Thus the transferor remains the shareholder of company as long as his name remains on the register and until the time the name of transferee is entered on the register. Sale and purchase of shares some time creates a situation, where after the sale, transferor receives consideration, signs transfer deeds and delivers share scrip. But the name of transferee is yet to be entered in the register of members. In spite of concluded transaction, the seller/transferor is holder of shares and legal title in this respect vests with him although beneficial interest has been transferred to purchaser/transferee. A company cannot inquire into a share holder's motive and invalidate his voting right, by going deep into the scrutiny and see that legal as well as beneficial estate vests in such shareholder. Section 148 further implies the restriction to keep the company out of any controversy, with regard to rights of a shareholder as trustee and the transferee as cestui que trust. Beneficial owner is alien to the provisions of Companies Ordinance, 1984. Permitting the beneficial owner to control voting etc., in meetings of the Company, will render Section 148 of the Companies Ordinance nugatory. The transferor, who holds the legal title, has no right to receive dividend or other benefits because due to concluded contract the transferee is beneficial owner. Transferor is bound to pay the dividend and other benefits to the transferee, even when there is no express contract between the parties to that effect. A constructive trust comes into existence, which make it obligatory on the part of trustee to transfer the corpus and income to cestui que trust. The position which emerges in such situation, is that as between company and trustee, the trustee is shareholder. While on the other hand as between the trustee and beneficiary, it is beneficiary who is shareholder. The severance of interest in such like situation creates a constructive trust, within the contemplation of Section 94 of the Trust Act, 1882, which reads:
"94. Constructive trusts in cases not expressly provided for.--In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands."
Above discussion and resume of case law brings me to conclude that word `trust' used in Section 148 of the Companies Ordinance, 1984, relates to a trust, where relationship of trustee and cestui que trust is created. The provisions of Section 148 do not extend to a trust as an institution, registered and created under Trust Act, 1882.
I will now advert to the question of admissibility of a trust as member of company. Section 2(21) of the Companies Ordinance, provide that a `person' is eligible to become a member of a company. Trust on its registration become a person, within the contemplation of Section 3(39) of the General Clauses Act. Sub-section 39 is reproduced hereunder:
"Person" shall include any company or association or body of individuals, whether incorporated or not."
Trust, according to above definition is person and in that capacity can enter on the register of members as shareholder of a company. The trust in the instant case is a registered body and its bye-laws permit the trustee to invest in securities and derive profit therefrom. Clause 3(xii) (c) is reproduced as under:--
"3
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(vii)
(ix)
(x)
(xi)
(xii) With the above objects in view to do all or any of the following things:-
(a)
(b)
(c) To receive, take title to hold and use the proceeds and income of stock, bonds, obligations, or other securities of any corporation or corporations, domestic or foreign, but only for foregoing purposes, or some of them."
The crux of the above discussion is that Respondent No. 2, falls within the definition of person. It is capable of becoming a member in a company. Only restriction in this respect, is when the instrument of trust fails to provide or prohibits the trust to become member/ shareholder in a company. The instrument of trust, if imposes conditions then trust can become member, subject to those conditions. The petitioner has failed to make out a case for rectification of the register of members of the respondent company.
For the foregoing, this petition has no merit and the same is accordingly dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 342
[Bahawalpur Bench Bahawalpur]
Present: Zubda-tul-Hussain, J.
Malik MUHAMMAD AFZAL--Petitioner
versus
MANAGER AUQAF (MALIK GHULAM HYDER) BAHAWALPUR and another--Respondents
W.P. No. 3100/BWP of 2008, decided on 28.10.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Appointment of bailiff--Detenus were produced before High Court--Report of bailiff--Detenus were set at liberty--Validity--Copy of the writ petition alongwith the order and the report of the bailiff be transmitted to D.P.O. for necessary action in accordance with law because the matter involves such factual inquiry which cannot be determined by High Court in exercise at the writ jurisdiction u/Art. 199 of Constitution--Petition was disposed of.
[P. 343] A
Raja Muhammad Sohail Iftikhar, Advocate for Petitioner.
Ch. Shafi Muhammad Tariq, AAG.
Mr. Abdul Jaleel Sajid, Bailiff of Court.
Mr. Muhammad Shamsheer Chughtai, Advocate for Respondents.
Date of hearing: 28.10.2008.
Order
Pursuant to the order dated 27.10.2008 the alleged detenus namely Malik Adnan son of Haji Muhammad Iqbal Akhtar and Muhammad Imran son of Manzoor Ahmad, have been produced before this Court. The detailed report of the Bailiff has been perused. Both of them are, therefore, set-at-liberty.
The contentions of both the parties and their learned counsel have been heard at length. Keeping in view the history of the case narrated by them and the circumstances stated by the Bailiff as well as the allegations levelled in the petition, it seems appropriate that the copy of the writ petition alongwith this order and the report of the Bailiff be transmitted to the D.P.O. Bahawalpur for necessary action in accordance with law because the matter involves such factual inquiry which cannot be determined by this Court in exercise of the writ jurisdiction under Article 199 of the Constitution.
According a copy of the writ petition and the report of the Bailiff shall be transmitted to the D.P.O. Bahawalpur. He is directed to look into the matter for such necessary action as may be envisaged in the matter in accordance with law.
It has been told by the learned counsel that aforesaid person i.e. Malik Adnan was on ad-interim pre-arrest bail which because of his appearance before this Court and his absence from the concerned learned Court has been dismissed and there is every apprehension that he shall immediately be arrested by the police. The learned counsel for the petitioner has requested for his protective bail in case FIR No. 468-2008, dated 12.10.2008, under Sections 448, 506 PPC enabling to Malik Adnan son of Haji Iqbal Akhtar to approach the concerned Court, so that he may surrender himself before the Court of competent jurisdiction for the relief of pre-arrest bail. The request seems to be genuine. The aforesaid Malik Adnan is admitted to protective/transitory bail till 31.10.2008 so that he may surrender himself and submit his application for pre-arrest bail before the Court of competent jurisdiction. The order of protective bail shall stand vacated automatically after the said date.
The writ petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 343
Present: Syed Zahid Hussain, C.J.
Mst. MUMTAZ BEGUM (now deceased) and 6 others--Petitioners
versus
ADDITIONAL CUSTODIAN OF ENEMY PROPERTY FOR PAKISTAN and 6 others--Respondents
C.M. No. 2297 of 2004 in W.P. No. 117-R of 1998, heard on 26.11.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2), O.XLI, R. 21--Ex-parte proceedings--Rehearing of matter--Application for--For invoking S. 12(2) of CPC qua a judgment, decree or order, it is to be shown that same was result of fraud, misrepresentation or want of jurisdiction--Material on record did not show any element of "fraud" or "misrepresentation" in matter or there was not any "want of jurisdiction" of Court--Provisions of S. 12(2) CPC are thus not attracted nor there is any infirmity in judgment in question on merits of matter--View taken by Court in judgment in-question holds good even now as during rehearing of matter again nothing substantial has been brought forth which could impair or erode factual or legal efficacy of the same--Application dismissed.
[P. 347] A & B
Mr. Muhammad Asif Bhatti, Advocate for Applicants/ Respondents No. 4 and 5.
Mr. A.R. Shaukat, Advocate for Respondents/writ petitioners.
Dates of hearing: 25.11.2008 & 26.11.2008.
Judgment
This is application under Section 12(2) read with Order 41 Rule 21 of the Code of Civil Procedure, 1908 qua judgment of this Court dated 9.7.2002 whereby W.P. No. 117-R/l998 was accepted.
It may be observed that against the judgment dated 9.7.2002, I.C.A. No. 620/2002 was filed by the Custodian, Enemy Property of Pakistan, etc. which appeal was dismissed by a learned Division Bench of this Court on 15.1.2003 observing that the appellants had no locus standi to maintain the said appeal. The matter ended with that so far as the official parties were concerned as it was not assailed further. The present application was filed by the successors of Muhammad Siddique and Muhammad Sardar on 13.9.2004 pleading that Muhammad Sadiq Bhatti, Advocate, Kasur, who had to represent them, had no notice of the date of hearing of the writ petition. Notice in the application was issued on 21.9.2004. The application was dismissed for non-prosecution on 24.1.2005, which, however, was restored vide order dated 21.9.2005. On 14.11.2005, the application was dismissed observing that since the judgment (9.7.2002) in the writ petition was assailed in I.C.A. No. 620/2002 which was dismissed by the learned Division Bench on 15.1.2003, the application under Section 12 (2) of the Code of Civil Procedure, 1908 did not lie before this Court. That order was assailed by the present applicants (respondents in the writ petition) through I.C.A. No. 42/2006 which was accepted on 5.9.2007 with the observation that C.M. No. 2297/2004 shall be deemed pending and to be decided accordingly. This is how that the matter is being heard now.
The case was fixed for 25.11.2008, it was heard partly and was adjourned for today (26.11.2008). The learned counsel for the applicants contends that as the petitioners had not filed any form for shops, they could not have been transferred the same on C.H. Form; that at one time they had withdrawn the transfer price and thus order of Deputy Settlement Commissioner dated 5.12.1959 against which they had filed appeal in the year 1962 would not clothe the said order of Deputy Settlement Commissioner with finality. According to him, being sitting occupants of the shops, they were entitled to its transfer. The learned counsel for the writ petitioners makes reference to the judgment of the Hon'ble Supreme Court of Pakistan in The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (PLD 1964 Supreme Court 616) and Mst. Hafizan Mohsan Atta and 4 others v. Custodian of Enemy Properties and 3 others (PLD 1983 Lahore 342) as maintained with certain modifications by the Hon'ble Supreme Court of Pakistan in Abdul Rauf and others v. Mst. Hafizan Mohsan Atta and others (1986 SCMR 1893). According to him, since the whole of the property which was indivisible had been applied for by the predecessor-in-interest of the petitioners, it was rightly transferred and the consequential P.T.O. had never been cancelled. According to him, while deciding the writ petition the Court had taken correct view of the matter in order dated 9.7.2002 and nothing new has been brought forth even now during the course of hearing of this application.
The salient features of the case are that Ch. Ghulam Mustafa the predecessor in interest of the petitioners was transferred Property No. IV-9-R-154 Railway Road, Kasur as a whole considering that the same was indivisible, by the Deputy Settlement Commissioner vide order dated 5.12.1959 for the evaluation price was Rs. 20,320/-. PTO was issued to him, schedule of property described therein was "shops and house No. IV-9-R-154". Being dissatisfied with the assessment of the price he agitated the matter and revised appendix-X was issued to him for Rs. 15,400/- on 14.12.1960. He is stated to have paid the price through Compensation Books and Association Deeds. Since the property belonged to the Punjab Co-operative Bank, dispute as to the status of such properties and power of Settlement Authorities to deal with the same had arisen which eventually reached the Supreme Court of Pakistan. The matter was decided vide judgment dated 29.4.1964 reported as The Punjab Co-operative Bank Ltd Vs. The Republic of Pakistan and 128 others (PLD 1964 S.C. 616). It was inter alia held that the transfer orders issued for such like properties would not be maintained and must be set aside. Later on notification dated 3.9.1968 was also issued by the Central Government that the properties and assets of the Bank being enemy property shall vest in the Custodian of Enemy Property for Pakistan. It may be observed that Allah Ditta the predecessor in interest of Respondent No. 4 and Muhammad Sardar Respondent No. 5 had also applied for the transfer of shops but were unsuccessful. The transfer of the property as a whole in favour of late Ghulam Mustafa had remained intact. As mentioned above, since the property had vested in the Custodian of Enemy Property, for the disposal thereof a letter dated 21.3.1972 was issued by the Government and then Memo dated 8.3.1979 by the Custodian of Enemy Property. A notice dated 10.10.1983 was issued by the Assistant Custodian intimating that the matter regarding transfer of the portion of the above property was being considered and that you should arrange payment of a sum of Rs. 14,928.66. Similar intimations were statedly issued to the occupants of the shops. Late Ghulam Mustafa challenged the same through W.P. No. 406-R/83. The said petition was disposed of vide judgment dated 10.2.1992 remitting the matter to the Custodian of Enemy Property to decide it in accordance with law by affording opportunity of hearing to the parties. It is in this background that order dated 30.5.1998 was passed by the Additional Custodian of Enemy Property whereby he took the view that the claim of late Ghulam Mustafa qua the residential portion of the property could only be classified under category "B" of the Memo dated 8.3.1979 and the shops in occupation of Muhammad Siddique son of Allah Ditta, legal heirs of Fazal Ellahi and Muhammad Sardar could fall in category "C" of the said Memo. He ordered the transfer of the property in that manner.
It may be kept in view that it was the judgment of Hon'ble Supreme Court Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (PLD 1964 Supreme Court 616) which rendered the transfer of such properties as illegal and memorandum dated 21.3.1972 and of 8.3.1979 were issued. The same came up for consideration by the learned Division Bench in Mst. Hafizan 's case (supra) and the judgment is quite instructive on the subject. The legal position as to the construction, import and legal efficacy of letter dated 21.3.1972 and Memo dated 8.3.1979 is quite clear and plain. Late Ghulam Mustafa had since been transferred the whole of the property and the PTO was also issued to him for the whole of it, that matter became final qua all concerned. In the earlier writ petition i.e. W.P. No. 406-R/83 in which the respondents were also parties, while referring to the transfer order dated 5.12.1959 it was observed that the property was indivisible and was transferred as such to late Ghulam Mustafa which had attained finality. Despite pendency of this writ petition for long, no reply or written statement was filed by any of the respondents to controvert the assertion of the petitioners. It is thus to be taken as correct that transfer order dated 5.12.1959 passed by the Deputy Settlement Commissioner had become final and divisibility or otherwise of the property having already been determined by the Deputy Settlement Commissioner, the Additional Custodian of Enemy Property could not reopen that aspect of the matter.
It may not be lost sight of that for invoking Section 12(2) of the Code of Civil Procedure, 1908 qua a judgment, decree or order, it is to be shown that the same was result of fraud, misrepresentation or want of jurisdiction. On rehearing of the matter and consideration of the material on record thoroughly, I have not been able to discover that there was any element of "fraud" or "misrepresentation" in the matter or there was any "want of jurisdiction" of this Court. The provisions of Section 12 (2) of the Code of Civil Procedure, 1908 are thus not attracted nor there is any infirmity in the judgment dated 9.7.2002 on merits of the matter. In the circumstances, the contentions of the learned counsel for the applicants loose their significance".
The application stand dismissed accordingly.
(Sh.A.S.) Application dismissed.
PLJ 2009 Lahore 347
[Bahawalpur Bench Bahawalpur]
Present: Muhammad Ashraf Bhatti, J.
QUAID-E-AZAM MEDICAL COLLEGE, BAHAWALPUR through its Principal--Petitioner
versus
MUHAMMAD ASLAM and another--Respondents
C.R. No. 53 of 2008, heard on 24.9.2008.
Limitation Act, 1908 (IX of 1908)—
----S. 5--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Condonation of delay--Controversy between the parties--Execution petition under reference was filed though belatedly with petition for condonation of delay--Father of respondent was used to pursue the matter as General Attorney--After the death of his father he immediately moved execution petition for recovery of decretal amount as compensation--At no stage affidavit of any functionary from petitioner's side was got placed on record to controvert the contentions to seek extension--In absence of such a counter affidavit in his petition for condonation would be deemed to have been admitted by opposite side which is the case here--There is nothing on the face of record to make a case for interference by High Court with impugned orders when under the law execution Court had condoned the limitation in exercise of its discretionary powers in terms of S. 5 of Limitation Act, after proper appreciation of facts of the case--Revision dismissed. [Pp. 348 & 349] A & B
Mian Faraz-us-Samad, Advocate for Petitioner.
Mr. Muhammad Hashim Tatari, Advocate for Respondents.
Date of hearing: 24.9.2008.
Judgment
In the instant civil revision Quaid-e-Azam Medical College, Bahawalpur through its Principal (hereinafter referred as petitioner) has called in question the orders dated 20.2.2007 and 26.10.2007 passed by Senior Civil Judge, Bahawalpur and the Additional District Judge, Bahawalpur respectively whereby Muhammad Aslam/Respondent No. 1's petition for condonation of delay was accepted.
It has been opposed by the learned counsel representing the Respondents No. 1 and 2.
Both the parties have been heard and record perused.
There is no cavil to say that the controversy between the parties was set at rest at the level of Hon'ble Supreme Court of Pakistan as a result of which, the execution petition under reference was filed though belatedly with a petition for condonation of delay giving reasons therefor. There is also no denial of the fact that originally father of Respondent No 1, namely, Rehmat Ali used to pursue the matter as General Attorney. The case of the petitioner before the learned lower forums was that being a permanent resident of Karachi in connection with his private business there, the moment he came to know about the judgment of the Hon'ble Supreme Court of Pakistan in his favour after the death of his father Rehmat Ali, he immediately moved execution petition for recovery of decretal amount to the tune of Rs.5,00,000/- as compensation passed against Province of the Punjab through Collector/Respondent No. 2 The reasons given for extension were duly supported by an affidavit filed on his behalf.
Perusal of the impugned orders would reveal that at no stage affidavit of any functionary from petitioner's side was got placed on record to controvert the contentions/reasons advanced by the Respondent No. 1 to seek extension. So, therefore, in absence of such a counter affidavit the contentions raised and supported by affidavit in his petition for condonation would be deemed to have been admitted by the opposite side which is the case here. In this regard reliance has been placed on Civil Aviation Authority Vs. M/s. Providence Aviation (Pvt) Limited (2000 CLC 1722), Basham Khan and others Vs. Syed Shafi Shah and others (1983 SCMR 183), President of Pakistan through Chairman, P.W.R., Lahore Vs. Sarfraz Khan (1980 CLC 541), Muhammad Farooq M. Memon, Advocate Vs. Government of Sindh through its Chief Secretary, Karachi (1986 CLC 1408).
When confronted with the above position, learned counsel for the petitioner has been unable to advance any plausible explanation. So, therefore, there is nothing on the face of record to make a case for interference by this Court with the impugned orders when under the law the learned executing Court had condoned the limitation in exercise of its discretionary powers in terms of Section 5 of the Limitation Act after proper appreciation of the facts of the case. Therefore, the findings of both the Courts below are neither perverse nor arbitrary calling for any interference by this Court in revision. Accordingly, it is dismissed, being devoid of any merit.
(R.A.) Revision dismissed.
PLJ 2009 Lahore 349
Present: Hafiz Tariq Nasim, J.
BASHARAT AHMAD and another--Petitioners
versus
DEPUTY DISTRICT EDUCATION OFFICER (M) TEH. KHARIAN, DISTT. GUJRAT and another--Respondents
W.P. No. 16622 of 2008, decided on 19.2.2009.
Constitution of Pakistan, 1973—
----Art. 13(a)--Appointed though proper channel--Termination--Re-instated--Again terminated--Three rounds of litigation--Repeated inquiriest--Violation of Art. 13(a)--Held: Undisputedly, the petitioners are being prosecuted/are being made subject of repeated inquiries, which offends the specific provisions of Art. 13(a) of the Constitution impugned notices were declared illegal, without lawful authority and were set aside--Held: Civil servants cannot only be vexed twice but they cannot be proceeded against repeatedly--Petion allowed. [P. 352] A & B
Mr. Asif Nazir Awan, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate-General with Muhammad Ashfaq, Litigation Officer, Rashid Ahmad DEO Elementary Education and Muhammad Yousaf Deputy DEO Elementary Education.
Date of hearing: 19.2.2009.
Order
Brief facts leading to this writ petition are that the petitioners were appointed as SV Teachers (BS-9) vide order dated 04.03.1993 on recommendations of District Recruitment Committee, Gujrat, both of them joined their duties and started functioning, however, in the meantime one Mst. Saiqa Khanum filed a writ petition before this Court, which was decided on 14.04.1993 directing the Education Department that the recruitment policy of the Government of Punjab be strictly followed and all the appointments be made on merit.
Misinterpreting the said judgment of this Court both the petitioners were terminated from service, they filed Writ Petition No. 11629/1993 contending that their cases are distinguishable to that of Saiqa Khanum and others as they did not get appointment on any political motivation, rather their appointment was purely on merit. This writ petition was disposed of with a direction to decide the matter within two weeks vide order dated 07.09.1993. Ironically, the departmental authorities took approximately two years for decision of the matter and finally on 28.02.1995 the petitioners were reinstated.
Even after reinstatement, the petitioners were continuously victimized on one pretext or the other and the petitioners had to approach Punjab Service Tribunal but their appeals were dismissed and the petitioners filed CPLAs before the Hon'ble Supreme Court of Pakistan. The appeals were accepted by the Hon'ble Supreme Court but the matter was remanded to the Punjab Service Tribunal for fresh decision on merit. After remand by the Supreme Court the learned. Tribunal accepted the appeals of the petitioners vide judgment dated 19.04.2004 with a specific direction to pay all back benefits to them from the date of their termination from service to the date of reinstatement.
Learned counsel submits that judgment of the Service Tribunal was not implemented, the petitioner had to file an application for implementation of the same and on notice by the PST the departmental representative appeared on 27.10.2004 and made a statement that the payment of all back benefits has been made. Adds that another inquiry was got conducted against the petitioners and after thorough probe the inquiry officer concluded that both the petitioners were appointed on 04.03.1993, the department had no proper record to evaluate their merit as the original merit list could not be produced, hence any complaint against them cannot be entertained. A new DEO is posted in the district, who has reopened the case once again and issued notices to the petitioners threatening their dismissal. Learned counsel submits that the petitioners are performing their duties with full devotion but they are being dragged into repeated inquiries through different modes, which otherwise is violative of Article 13 of the Constitution of Pakistan.
On the other hand, learned Assistant Advocate-General stood behind the departmental action but could not advance his case when he is asked that how the department can justify the proposed action against the petitioners and that too with no fault of them.
Arguments heard. Record perused.
Certain facts are undisputed even today and those are:--
(i) The petitioners were appointed in the year 1993 on the recommendations of the Selection Committee.
(ii) The petitioners' eligibility is not under challenge/not disputed.
(iii) The petitioners' suitability was determined and appointment orders were issued by the competent authority.
(iv) The petitioners started performing their duties but later on they were terminated.
(v) The petitioners filed writ petition, this Court issued directions, their cases were examined in pursuance of the directions of this Court and they were reinstated into service in the year 1995.
(vi) Different inquiries were conducted and petitioners could not be found deficient in their eligibility threshold and no political motivation could be found by the departmental authorities behind the petitioners' appointment.
(vii) Article 13 of the Constitution of Pakistan is much clear, which is reproduced as follows:--
"13. No person--
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself."
After hearing both the parties at length and perusal of record, I am of the view that the impugned notices are departure from the specific provisions of Article 13 of the Constitution of Pakistan as the petitioners cannot only be vexed twice but they cannot be proceeded against repeatedly.
Undisputedly, the petitioners are being prosecuted/are being made the subject of repeated inquiries, which offends the specific provisions of Article 13(a) of the Constitution of Pakistan, thus keeping in view all the circumstances mentioned above, the impugned notices are declared illegal, without lawful authority and are set aside.
Writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2009 Lahore 352
Present: Muhammad Ashraf Bhatti, J.
MUHAMMAD IRSHAD--Petitioner
versus
SECRETARY, LOCAL GOVERNMENT & RURAL DEVELOPMENT LAHORE and 2 others--Respondents
W.P. No. 2994 of 2006, decided on 25.9.2008.
Constitution of Pakistan, 1973—
----Art. 199--Common questions of law and facts--Incentive for voluntary retirement and availed of the benefits of ensuring--Petitioners were employees in Municipal Committee--Providing of package--Order of voluntary retirement was recalled, as they were ready to pay the gratuity--Request was not acceded--Appeal before Deputy Commissioner who accepted the request--Instead of compliance petitioners chose to approach Secretary Local Govt. to seek reversal of the returned order of gratuity with interest, or in alternative sought for payment of the same in installments, but in vain--Challenged through constitutional petitions--Held: Secretary Local Government shall treat these petitioners as representations/written requests on the part of the petitions, hear them and then treating it a case of hardship dispose them of in accordance with law a view to explore possibility to accommodating them subject to compliance of the order of then Deputy Commissioner. [Pp. 353 & 354] A & B
Mr. M. Shamsher Iqbal Chughtai, Advocate for Petitioner.
Mr. Abdul Khaliq Khan Sadozai, A.A.G.
Ch. Abdul Latif Shahid, Advocate for Respondent.
Date of hearing: 25.9.2008.
Order
This common order is intended to dispose of Writ Petitions No. 2994-S-2006/BWP, 2915-S-2006/BWP and 2993-S-2006/BWP as common questions of law and facts are involved in these petitions.
(i) Appellant shall repay amount of pension gratuity with interest;
(ii) Intervening period will be treated as earned leave on half pay.
Instead of compliance of above conditions, the petitioners chose to approach the Secretary Local Government and Rural Development, Lahore to seek reversal of the `return order of gratuity etc.' with interest or in the alternative sought for payment of the same in installments, but in vain. Hence, the above writ petitions, particularly having based their case on a decision passed by this Court in W.P. No. 4805 of 2001, the facts of which are identical to the petitions in hand.
While opposing these petitions, it is contended by the learned Law Officer submits that the same are hit by latches. According to him, the petitioners remained dormant on their own and have now approached this Court after lapse of five years; therefore, in the wake of institutional and structural changes after the devolution, the orders passed in appeal have gone infructuous by afflux of considerable time.
When faced with the above position of the case, the learned counsel for the petitioners has submitted that grievance of the petitioners would be redressed if direction is passed that the petitioners, if make representations to the quarters concerned for re-joining the TMA (as re-constituted after devolution) on compliance on their part of the conditions as set out in the order passed by the then Deputy Commissioner on 31.7.2000, the same shall be dealt with and disposed of after affording opportunity of hearing to the petitioners, treating it a case of hardship and that then the petitioners shall have no objection to disposal of these petitions.
In the light of the above, let a copy each of the above cited writ petitions alongwith annexures be sent at the petitioners' expense to the Respondent No. 1 and others with the direction that the Respondent No. 1 shall treat these petitions as representations/written requests on the part of the petitioners, hear them and then treating it a case of hardship dispose them of in accordance with law with a view to explore possibility to accommodating them subject to compliance of the aforesaid order of the then Deputy Commissioner dated 31.7.2000.
In the light of the above terms, these petitions are disposed of.
(R.A.) Petitions disposed of.
PLJ 2009 Lahore 354
Present: Khurshid Anwar Bhinder, J.
SAFDAR HUSSAIN--Petitioner
versus
JUDICIAL MAGISTRATE SECTION 30 FEROZEWALA, DISTRICT SHEIKHUPURA and 2 others--Respondents
W.P. No. 16181 of 2008, decided on 30.1.2009.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 167--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Physical remand--Jurisdiction of--Duty magistrate to discharge of an accused--After expiry of the period of remand submitted an application seeking further remand of accused--Produced before duty magistrate who discharged the accused--Challenge to--Impugned order has been passed by judicial magistrate without jurisdiction and same is void ab initio--Held: Duty magistrate was not competent to pass an order of discharge of the accused while exercising his power u/S. 167, Cr.P.C.--Petition was accepted. [P. 356] A & B
Ch. Muhammad Yousaf, Advocate for Petitioner.
Mr. Sarfraz Ali Khan, AAG for Respondents No. 1 & 2.
Mr. Muhammad Akhtar, Advocate for Respondent No. 3.
Date of hearing: 30.1.2009.
Order
Through the present constitutional petition, Safdar Hussain petitioner has challenged the legality of the impugned order dated 27.8.2008, passed by the learned Magistrate Section-30, Ferozwala, whereby he discharged Respondent No. 3.
Briefly the facts leading to the filing of this constitutional petition are that petitioner got registered FIR No. 564/2006 dated 9.11.2006, under Section 395 PPC at Police Station Sharaqpur alleging therein that on 9.11.2006 some unknown persons had committed dacoity in his house while armed with deadly weapons, severely tortured the inmates of the house and took away with them Rs.56,000/-, gold ornaments weighing 20 tolas and valuable clothes. Thereafter the petitioner nominated Respondent No. 3 as an accused person alongwith others and on 19.8.2008, Respondent No. 3 was arrested. The Investigating Officer obtained the physical remand of Respondent No. 3 and after the expiry of the period of remand submitted an application dated 27.8.2008 seeking further remand of Respondent No. 3. Respondent No. 3 was produced before the Duty Magistrate Section 30, Ferozwala who vide order dated 27.8.2008 discharged Respondent No. 3, hence the present constitutional petition.
Learned counsel for the petitioner submits that the impugned order is without jurisdiction as the Duty Magistrate was not competent to discharge the accused person and the impugned order is violative of Section 167 Cr.P.C.
The learned Law Officer submits that in view of the provisions of Section 167, Cr.P.C. the Duty Magistrate has no jurisdiction to discharge an accused person as he has no jurisdiction to try the case or send it for trial. He could only order the accused to be forwarded to a Magistrate having such jurisdiction.
Learned counsel for Respondent No. 3 has supported the impugned order.
I have heard all the learned counsel and have also perused the available record. In the instant case the impugned order was passed by a Duty Magistrate. It is clear from the language of Section 167 Cr.P.C. that "if he has no jurisdiction" to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction, meaning thereby that if a Magistrate has no jurisdiction to try an accused person produced before him for remand, he may authorize the detention but if he considers the detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, as such, the impugned order has been passed by Respondent No. 1 without jurisdiction and the same is void ab initio.
The upshot of the above discussion is that the Duty Magistrate/Respondent No. 1 was not competent to pass an order of discharge of the Accused/Respondent No. 3 while exercising his powers under Section 167 Cr.P.C. Resultantly, this writ petition is accepted and the impugned order is hereby set aside being illegal, unjustified and untenable.
(R.A.) Petition accepted.
PLJ 2009 Lahore 356
Present: S. Ali Hassan Rizvi, J.
KOUSAR PERVEEN alias SHAMEEM--Petitioner
versus
MUHAMMAD FAYYAZ and 2 others--Respondents
W.P. No. 1068 of 2009, decided on 22.1.2009.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Custody of minors--Male children was handed over to father, who was a civil servant and even educated person--Application for custody to extent of the male children was accepted--Appeal was dismissed--Challenged through writ petition--Right of custody for male minors who are above 7 years--Validity--Question raised through writ petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors--Held: Civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along--Right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling--No illegality or infirmity calling for interference in exercise of Constitutional jurisdiction of High Court--Petition was dismissed. [P. 358] A
Mr. Muhammad Sana Ullah Khan, Advocate for Petitioner.
Date of hearing: 22.1.2009.
Order
The petitioner is aggrieved of the judgment of the learned trial Court dated 14.07.2008 whereby the custody of the minors male children was handed over to Respondent No. 1 and the dismissal of the appeal on 22.11.2008, there-against.
(i) Whether the applicant is entitled for the custody of the minors as Welfare of minors lies with him? OPA
(ii) Whether the application/suit is false and frivolous and same has been filed just to avoid the payment of maintenance allowance? OPR
(iii) Relief.
After recording evidence, learned Guardian Judge/trial Court decided Issue No. 1 and held that Respondent No. 1 was a civil servant and even educated person. The custody of female child Mst. Ishrat Fatime was declined while for the male minors who were above 7, was given to the respondent observing that it was in the welfare of the minors if custody was given to Respondent No. 1. Resultantly, the application of the respondent for custody to the extent of the male children Naeem Sultan, Saleem Sultan and Waseem Sultan was accepted. The petitioner filed an appeal which was dismissed, hence, this writ petition.
Learned counsel for the petitioner has alleged that the minors are getting education in a school and change of custody shall jeopardize their future. In his view, change of educational institution is sufficient ground as in the circumstances the minors shall suffer with a set back, qua their education, which is supreme.
Heard. Respondent No. 1 as PW1 in his main petition has alleged that male minors Naeem Sultan, Saleem Sultan and Waseem Sultan were student of Sun Rise Public School when they were taken away by the petitioner and their future was put to winds.
Perusal of the record reveals that there is no rebuttal of the above version. A suit for restitution of conjugal rights is also pending. The admitted fact is that Respondent No. 1 is a civil servant and an educated one. The male minors all are above 7. They were studying in Sun Rise Public School at the time of removal. The father deposed in his evidence as PW1 that he was worried about the future of the minors and intended to provide them better schooling and facilities. The basic consideration for the Guardian Judge remains and continues to be the welfare of the minors. The learned Guardian Judge after recording evidence was of the opinion that the welfare of the male minors lay in giving their custody to the respondent. The question raised through this petition is that change of custody from mother to father shall change the scenario, and would damage the future of minors. As far as appreciation of evidence is concerned, a different view cannot be taken that a civil servant being an educated person will not care for future of his minor sons for whom he was much concerned all along. The right of custody for male minors who are above 7 for father is to be preferred as he is in a better position to facilitate and arrange schooling. There is no illegality or infirmity calling for interference in the exercise of Constitutional jurisdiction of this Court. Dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 358
Present: S. Ali Hassan Rizvi, J.
Mst. SHAMIM ARA--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION, CIVIL LINES, DISTRICT GUJRANWALA and 2 others--Respondents
W.P. No. 1250 of 2009, decided on 23.1.2009.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 420, 468 & 471--Quashing of FIR--Accused prepared a forged document--Document was executed at Wazirabad while FIR was registered at Gujranwala--Property was also situated at Wizarabad--Agreement to sell was based on facts of which authenticity could be tested in Civil Court--Matter of factual controversy--Alternate remedy to file an application u/S. 249-A, Cr.P.C.--No bar to initiate civil and criminal proceedings--Maintainability--Validity--High Court in writ jurisdiction cannot examine the genuineness of the agreement to sell--Petitioner has an alternate remedy to file an application u/S. 249-A, Cr.P.C. to trial Court on proper showings--Held: Genuineness of the document in-question cannot be deeply gone into at such stage--Quashing of FIR would tantamount to short circuit and deflect the normal procedure of Cr.P.C.--No bar to initiate civil and criminal proceeding simultaneously because both are different in origin in character and result--No death of authority on such points--Petition was not maintainable. [Pp. 359 & 360] A
2006 SCMR 276, rel.
Mst. Khalida Parveen, Advocate for Petitioner.
Date of hearing: 23.1.2009.
Order
Through this writ petition, quashment of FIR No. 730, registered with Police Station Civil Lines, Gujranwala on 05.12.2008, under Sections 420/468/471, PPC is sought on the ground that document in question was executed at Wazirabad while FIR was registered at Police Station Civil Lines, Gujranwala; that the property was also situate at Wazirabad and that the agreement to sell was based on facts of which authenticity could be tested in the Civil Court.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 360
Present: Hafiz Tariq Nasim, J.
IRFAN ALI ABBASI, SUB-DIVISIONAL OFFICER, ICHHARA
SUB-DIVISION, WASA, LDA, LAHORE--Petitioner
versus
DIRECTOR GENERAL, LDA and another--Respondents
W.P. No. 14091 of 2008, heard on 16.12.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Civil servant--Criteria for promotion to post of Deputy Director--Question of--Whether there is any embargo in Rules applicable to WASA employees--Diploma holder cannot be promoted to post of XEN--Civil servant joined WASA as sub-engineer--After completion of 11 years service, the petitioner was promoted as assistant director on acting charge basis--Considered for regular promotion--Awarded move-over--Challenge to--Validity--No condition of passing B.Sc. (Engineering) or there is not slightest bar/embargo on the promotion of any diploma holder to the post of deputy director--Promotion has put more than seven years against the said post, which was mandatory requirement for further promotion to the rank of deputy director--Held: Regulations do not make any bar on departmental authority to promote a diploma holder to the post of Deputy Director (Engineering) provided he fulfills the conditions for his promotion--Further held: Petitioner was eligible for promotion to the rank of deputy director and such respondents were directed to place the petitioner's promotion--Petition was allowed. [P. 363] A, B & C
Mr. Mushtaq Ahmad Mohal, Advocate for Petitioner.
Mr. Nayyar Iqbal Ghori, Advocate for Respondents.
Date of hearing: 16.12.2008.
Judgment
The backdrop of this writ petition is that the petitioner joined WASA (LDA) as Sub Engineer (BS-11) in the year 1972. After completion of 11 years service, the petitioner was awarded BS-16 and that too after passing the departmental examination through order dated 10.12.1983. The petitioner was further promoted as Sub Divisional Officer (BS-17) but on contract basis through order dated 18.03.1987 and on acting charge basis vide order dated 03.06.1987.
The petitioner was considered for regular promotion as SDO (BS-17), the Departmental Promotion Committee recommended his name, he was regularly promoted on 16.03.2001 and later on he was awarded move-over (BS-18) on 14.05.2003.
Learned counsel for the petitioner submits that the petitioner is expecting his regular promotion to BS-18 in view of his eligibility but he is being deprived of the same on wrong premises and as such the respondents be directed to consider his promotion case for BS-18 in the next forthcoming meeting of Departmental Promotion Committee.
On the other hand, learned counsel for the respondents submits that so far the facts of the case are concerned, those are undisputed, the petitioner is performing his duties without any complaint whatsoever, he was granted promotion to the rank of SDO as per Rules but the Rules do not permit a diploma holder for promotion as XEN (BS-18) and in support of his contention, learned counsel has relied on the case of Fida Hussain vs. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 S.C. 701) and submits that the petitioner has no case at all and his writ be dismissed.
Arguments heard. Record perused.
The only point which is required to be resolved through this writ petition is that whether there is any embargo in the Rules applicable to the WASA employees, whereby the department's stance could be substantiated that a diploma holder cannot be promoted to the post of XEN (BS-18) and whether the law relied upon by the learned counsel for the respondents is applicable in the present case or not ?
For filling the post of Grade-17, LDA (Appointment and Conditions of Service) Regulations 1978, provide the following method/criteria:--
"Pay Name of the Appointing Minimum Method of
Scale post Authority qualification recruitment.
for initial
recruitment
Grade Assistant Managing Bachelor's 80% by initial
17 Director Director Degree in recruitment or
(Engineering) Civil/ deputation from
Mechanical/ Government; and
Electrical 20% by promotion
Engineering on the basis of
from a seniority-cum-
recognized fitness from
University. amongst Sub-
Engineers with at
least 10 years
services as Sub-
Engineers.
If suitable
candidates are not
available, vacancies
to be filled by
deputation from
Government."
When confronted with this that whether the petitioner despite his status of diploma holder, was promoted to the post of SDO against 20% quota as per regulations, the learned counsel for the respondents after consulting the record frankly conceded that the petitioner was of course promoted as SDO/Assistant Director (Engineering) (BS-17) as per quota of promotees.
When the promotion of the petitioner as SDO is admitted, then we have to advert to the regulation concerning promotion to Grade-18, which is reproduced as follows:--
"Pay Name of the Appointing Minimum Method of
Scale post Authority qualification recruitment.
for initial
recruitment
Grade Deputy Managing -- By promotion on
18 Director Director the basis of
(Engineering) seniority-cum-
fitness from
amongst Assistant
Directors
(Engineering)/
Junior
Maintenance
Engineers S.D.O.
with at least 5
years service in
Grade 17"
A plain reading of Regulation/eligibility/criteria for promotion to the post of Deputy Director (Engineering) (BS-18) conveys a clear message that there is no condition of passing B.Sc. (Engineering) or there is not a slightest bar/embargo on the promotion of any diploma holder to the post of Deputy Director (Engineering), provided he is the holder of post of Assistant Director (Engineering)/Junior Maintenance Engineer/SDO with at least 5 years service in Grade 17. There is no denial by the respondents that the petitioner was promoted as Assistant Director (Engineering)/SDO on regular basis in the year 2001 and since his promotion he has put more than seven years against the said post, which was a mandatory requirement for further promotion to the rank of Deputy Director (Engineering).
It is well settled law laid down by the Hon'ble Supreme Court of Pakistan that "if a thing is required to be done in a particular manner, it must be done in that manner only and not otherwise".
It is also settled by the Hon'ble Supreme Court of Pakistan once for all in the case reported as Accountant General, Sindh and others vs. Ahmad Ali U. Qureshi and others (PLD 2008 SC 522) that "rule of harmonious interpretation is to be followed in case of interpretation".
Even otherwise, in the present case plain reading of Regulations 1978 which are applicable to the petitioner's case do not require any interpretation. However, it is held that the Regulations ibid do not make any bar on the departmental authorities to promote a diploma holder to the post of Deputy Director (Engineering), provided he fulfills the conditions which are contained in the Regulations for his promotion to BS-18 as Deputy Director (Engineering), thus I hold that the petitioner is eligible for promotion to the rank of Deputy Director (Engineering) and as such the respondents are directed to place the petitioner's promotion case in the forthcoming meeting of the Departmental Promotion/Selection Committee, who shall consider the same fairly, justly and without being influenced from any observation made by the departmental authorities previously.
Writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2009 Lahore 364
[Multan Bench Multan]
Present: Muhammad Akram Qureshi, J.
Hafiz MUHAMMAD IQBAL--Petitioner
versus
STATE and another--Respondents
W.P. No. 5181 of 2006, decided on 22.1.2009.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Judicial proceedings cannot be quashed by exercising powers under Art. 199 of the Constitution--Writ petition be converted into petition u/S. 561-A, Cr.P.C. [P. 365] A & B
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 4(h), 173 & 195(1)(a)--Pakistan Penal Code, (XLV of 1860), S. 188--Petition for quashment of proceedings pending before Magistrate on the basis of report of police--Held: Section 4(h) of Cr.P.C. specifically excludes the report of police officer from the domain of word "complaint"--A report submitted u/S. 173, Cr.P.C. cannot be considered to be a complaint as provided by Section 4(h) of Cr.P.C.--Section 195, Cr.P.C. places a specific embargo upon the trial Court not to take cognizance on the report of police officer but on the complaint in writing of the concerned officer or of some other public servant to whom he is subordinate--Declaration to prohibit publication, supply and possession was issued by Govt. of Punjab--Home Secretary was the only authority to ledge complaint with the Court of competent jurisdiction--Matter was reported to the trial Court by SI who was having no jurisdiction to do it--Held: Cognizance having been taken by trial Court is illegal and the proceedings conducted by him is an abuse of process of law--Proceedings quashed. [P. 367] C
Mr. Ata-ul-Manan, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, AAG for Respondents.
Date of hearing: 22.1.2009.
Order
It has been intimated by the learned AAG that the report of police officer u/S. 173 Cr.P.C. has already been submitted before the Court of competent jurisdiction on 4.8.2006 and the case is pending for trial.
I am afraid, judicial proceedings cannot be quashed by exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
At this juncture, learned counsel for the petitioner submits that the present writ petition may be converted into application u/S. 561-A Cr.P.C. and the proceedings pending before the Court of learned Illaqa Magistrate be quashed.
The request being genuine is allowed. Let this writ petition be converted into petition u/S. 561-A Cr.P.C. Be registered.
Briefly, the facts of this case are that Home Department, Govt. of Punjab had issued a Circular prohibiting the publication, supply and possession of "Daily Al-Fazal". An information was received by Muhammad Saleem, SI that sufficient number of copies of prohibited "Daily Al-Fazal" are available with the petitioner and others. A raid was conducted. On seeing the police party, the accused persons fled away. During search, 31 copies of prohibited "Daily Al-Fazal" were recovered from the office of the petitioner. As a result, the present FIR was registered against him under Section 188 PPC.
Learned counsel for the petitioner has drawn the attention of this Court towards the definition of word "Complaint" which is as under:--
S.4(h) "Complaint"
"Means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the reports of a police officer."
Learned counsel for the petitioner further submitted that Section 173 Cr.P.C. defines the word "Report of Police Officer" which is as under:--
(1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon a it is completed, the officer incharge of the police station shall, (through the public prosecutor), (a) forward to a Magistrate empowered to take cognizance of the offence on a police report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (of arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given."
Learned counsel for the petitioner also submitted that word "Challan" is alien to the provisions of Cr.P.C. However, the report of police officer has been defined as challan by Police Rules, 1939. Learned counsel contends that word "Complaint" excludes the word "Report of police officer" from its ambit and report of a police officer is not a complaint.
Learned counsel for the petitioner afterwards draws the attention of this Court towards the provisions of Sections 195(1)(c) Cr.P.C. which deals with the provisions of Sections 172 to 188 PPC and stated that a cognizance of the offence u/S. 188 PPC cannot be taken on the basis of report of police officer and secondly Muhammad Saleem, SI was having no authority at all to register this case and submit report under Section 173 Cr.P.C. before the Court of learned Illaqa Magistrate. The learned trial Magistrate was not competent to take cognizance of offence on the basis of police report submitted u/S. 173 Cr.P.C. He also submits that the trial Court should have taken cognizance of the offence on a complaint in writing of the officer whose orders have been violated by the accused. He further submits that taking of cognizance by the Magistrate and further proceedings are nullity in the eyes of law and the proceedings pending before the learned Magistrate be quashed.
Learned Law Officer has vehemently opposed this petition stating that Muhammad Saleem, SI was fully competent to register this case. There was no embargo on the police officer to investigate it, record statement of witnesses and submit report u/S. 173 Cr.P.C. He further stated that in the proceedings having been conducted by the I.O. and the learned trial Court, no illegality has been committed by any of the forums. He also stated that it is a rule that in like matters, the accused are required to approach the Court of competent jurisdiction at the first instance and in case of failure, he may submit an application under the relevant sections of law. He submitted that this Court may not take cognizance of the matter. He further submitted that heinous offence has been committed by the petitioner and that he is not entitled to the concession claimed by them.
After hearing the learned counsel for the parties and perusing the record, it has been noticed by this Court that the learned trial Court was not competent to take cognizance of the offence on a police report having been submitted by Muhammad Saleem, SI or SHO. Section 4(h) Cr.P.C. specifically excludes the report of police officer from the domain of word "Complaint". A report submitted u/S. 173 Cr.P.C. cannot be considered to be a complaint as provided by Section 4(h) ibid. Section 195 Cr.P.C. places a specific embargo upon the trial Court not to take cognizance on the report of police officer but on the complaint in writing of the concerned officer or of some other public servant to whom he is subordinate. In the present case, declaration to prohibit publication, supply and possession was issued by the Home Secretary, Govt. of Punjab. He was the only authority to lodge complaint with the Court of competent jurisdiction. In the present case, the matter was reported to the trial Court by Muhammad Saleem, SI who was having no jurisdiction to do it. Resultantly, the cognizance having been taken by the learned trial Court is illegal and the proceedings conducted by him is an abuse of process of law.
Consequently, the present, petition is accepted and the proceedings pending before the trial Court in case FIR No. 227 dated 26.7.2006 registered under Section 188 PPC at Police Station City District Dera Ghazi Khan are hereby quashed.
(M.S.A.) Petition accepted.
PLJ 2009 Lahore 367
[Multan Bench Multan]
Present: S. Ali Hassan Rizvi, J.
Mst. IMRANA NAZIR--Petitioner
versus
S.P. REGIONAL INVESTIGATION BUREAU, BAHAWALPUR and 6 others--Respondents
W.P. No. 1847 of 2008, decided on 18.8.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Restraining to create illegal harassment and to interfere into matrimonial life--Held: SHO was directed to the police not to create any illegal harassment or to interfere into matrimonial life of the petitioner--S.P. Investigation was also restrained to act upon than due course of law--Petition disposed of. [P. 368] A
Mr. Shahzad Ashraf Mohandra, Advocate for Petitioner.
Ch. Shafi Muhammad Tariq, AAG with Muhammad Afzal, Inspector/SHO Respondent No. 4 with record.
Date of hearing: 18.8.2008.
Order
Parawise comments have already been filed.
Instant writ petition is filed restraining Respondents No. 1 to 4 not to create illegal harassment as allegedly the petitioner has entered into marriage with one Imran but Respondent No. 7 is behind her to disgrace and earlier to that he has also caused injuries to her brother; that an FIR No. 20/2008 under Section 337-F(v), PPC was registered and challan has been submitted but now Respondent No. 7 becoming in league with one Syed Imran Shah is creating illegal harassment and the petitioner apprehends that police would involve him in any case in order to support the said Respondent No. 7. The matrimonial life of the petitioner is in danger as Respondents No. 6 and 7 are creating harassment. That Respondent No. 1 has also summoned the petitioner in his office in connection with transfer of investigation in case, referred above, whereas there is no such order for the transfer of investigation.
Heard.
Respondent No. 4/SHO, present in Court, undertakes not to create any harassment and also states that he never summoned the petitioner.
In the light of undertaking given by Respondent No. 4/SHO, it is directed to the police not to create any illegal harassment or to interfere into the matrimonial life of the petitioner. Respondent No. 1 is also restrained to act upon otherwise than due course of law. This petition stands disposed of accordingly.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 368
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
NAEEM RIZWAN--Petitioner
versus
ADDITIONAL INSPECTOR GENERAL OF POLICE (INVESTIGATION), PUNJAB, LAHORE and 6 others--Respondents
W.P. No. 1900 of 2008, heard on 6.5.2008.
Constitution of Pakistan, 1973—
----Art. 199--Police Order, 2002--Art. 18(6)--Constitutional petition--Transfer of investigation--Recommendation of standing board--Challan had been submitted in Court--Validity--Investigator exonerated accused of the charged would not absolve him in his liability to stand trial on the charge of murder--Opinion of the investigator favourable to the accused is neither relevant nor admissible in evidence--Held: Investigation after submission of challan would be meaningless--Court of Session has already taken cognizance of the case and, therefore, reinvestigation of the case would not serve any purpose--Petition dismissed in limine.
[P. 369 & 370] A
Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner.
Date of hearing: 6.5.2008.
Judgment
Naeem Rizwan, petitioner got registered murder case F.I.R. No. 287/2007 at Police Station Saddar Bure Wala, Distt. Yehari, against Kaleem Ullah, Waseem Ullah and their father, Muhammad Anwar alongwith Allah Ditta with an allegation that they all in furtherance of common intention had committed Qatl-e-Amd of Saeed Ahmad. Muhammad Anwar, accused did not make himself available for investigation as a result of which he was declared as proclaimed offender. The investigator found the evidence deficient to the extent of Allah Ditta, accused and resultantly placed him in Column No. 2 of the challan. However, Kaleem Ullah and Waseem Ullah were challaned to Court to stand trial on the charge of murder.
Feeling aggrieved of the result of investigation favourable to Allah Ditta accused, the complainant made an application for transfer of investigation, which was examined by the Standing Board constituted and established under the Police Order, 2002. The Board recommended transfer of investigation. The Addl. Inspector General of Police (Investigation Branch), Punjab informed the Regional Police Officer, Multan that the recommendation of the Board had been consigned to record as the case was sub-judice.
The complainant has filed this constitutional petition for transfer of investigation of the murder case in the light of the recommendation of the Standing Board.
The challan has been submitted in Court against all the accused persons. The mere fact that the investigator exonerated Allah Ditta, accused of the charge would not absolve him of his liability to stand trial on the charge of murder. This is an established principle of law that opinion of the investigator favourable to the accused is neither relevant nor admissible in evidence. The question of guilt or innocence of Allah Ditta accused would be decided by the trial Court. Although re-investigation of a case after submission of challan is permissible but I would say that investigation after submission of challan would be meaningless. The Court of Session has already taken cognizance of the case and, therefore, re-investigation of the case would not serve any purpose. I, therefore, dismiss this petition in limine, however, with an observation that the petitioner-complainant would be at liberty to prosecute his case and case qua Allah Ditta accused before the learned trial Court.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 370
[Multan Bench Multan]
Present: Muhammad Khalid Alvi, J.
MUHAMMAD HUSSAIN and 2 others--Petitioners
versus
ADDL. DISTRICT JUDGE, BUREWALA and 4 others--Respondents
W.P. No. 1104 of 2007, heard on 13.5.2008.
West Pakistan Urban Rent Restrictions Ordinance, 1959 (VI of 1959)—
----S. 13--Constitution of Pakistan, 1973--Art. 199--Relationship of landlord and tenant--Ejectment petition--Ejectment was sought on various grounds including default personal need and damages to property--Property being sought to be evicted by the petitioners was not identifiable--Description also did not tally with each other--Petitioners might be co-sharers in a big joint khata but certainly they had failed to identify the property being sought to be ejected by giving exact detail of its location--Petition dismissed. [P. 372] A & B
Mr. Muhammad Ramzan Khalid Joyia, Advocate for Petitioners.
Mr. Saghir Ahmed Bhatti, Advocate for Respondents.
Date of hearing: 13.5.2008.
Judgment
With the concurrence of learned counsel for the parties this case is being treated as a "Pacca Case".
Brief facts of the case are that petitioners filed an ejectment petition on 19.2.2004 against the respondents with regard to a house situated in Khewat No. 257, Khatooni No. 487 share 218/235728 measuring 12 Marlas 1 Sirsahi according to Jama Bandi of the year 2001 situated in Chak No. 439/EB on an oral tenancy for a sum of Rs. 1000/- per month since December 2001. Ejectment was sought on various grounds including default, personal need, damage to the property etc. Respondents filed their written reply and denied existence of relationship of landlord and tenant. Both the parties led their respective evidence and the learned Rent Controller vide order dated 26.11.2005 allowed the application and directed ejectment of the respondents. Respondents preferred appeal, which was allowed on 16.1.2007 and the ejectment petition was dismissed. This order is being assailed through the instant constitutional petition.
It is contended by the learned counsel for the petitioners that the learned appellate Court has taken into account some alien considerations as to the dispute between the fathers of the parties with regard to a shop, which was got vacated by the petitioners' father from respondents' father in the year 1990, therefore, it was a presumption that further relationship of landlord and tenant cannot be established in the next generation. It is further submitted that according to Exh. A/2 Jamabandi for the year 2000-2001 petitioners are recorded as owners of the property in dispute which is also reflected from Exh.A/3, which is P.T.1 Register. It is further argued that since the tenancy was oral, therefore, no documentary evidence was produced. Oral evidence led by the petitioners is sufficient to establish the fact of oral tenancy between the parties.
On the other hand, learned counsel for the respondents contends that according to Exh. A/3 read with Exh.A/1 which is the self-prepared site-plan by the petitioners, the description of the property does not tally with each other.
I have considered the arguments of the learned counsel for the parties.
During the course of arguments I had put a query to the learned counsel for the petitioners as to how the property/house can be identified which is being sought to be ejected. According to the Para 1 of the plaint only share of a large undivided joint Khata measuring 654 Kanals 16 marlas, an area of 12 Marlas 1 Sirsahi is being owned by the petitioners which is also reflected in the Jamabandi but Exh.A/1 while the site-plan prepared by the petitioners himself does not indicate as to what is situated on the four sides of the house in dispute; on the northern side with some distance Multan Road is shown. It is also not shown that what is situated between Multan Road and the house in dispute. In this view of the matter, the property being sought to be evicted by the petitioners from the respondents is not identifiable. According to Exh.A/1 there are only two rooms in the house whereas Column No. 9 of Exh.A/3 shows that there are three rooms; one kitchen and one bath. This description also does not tally with each other. Petitioners may be co-sharers in a big joint undivided Khata but certainly they have failed to identify the property being sought to be ejected by giving exact detail of its location, therefore, finding no merit in this petition, the same is accordingly dismissed.
Before parting with the judgment, it may be observed that any observation made by the learned Rent Controller, the learned Appellate Authority and even by this Court with regard to the title of the property will have no bearing on any proceeding that may be initiated by the parties to established their title.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 372
[Bahawalpur Bench Bahawalpur]
Present: Malik Saeed Ejaz, J.
MUNICIPAL CORPORATION, BAHAWALPUR through Mayor of Corporation--Petitioner
versus
COMMISSIONER BAHAWALPUR, DIVISION (CONTROLLING AUTHORITY) and 2 others--Respondents
W.P. No. 81 of 1992, heard on 13.2.2009.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Jurisdiction--Allotment of plot--Respondent applied for allotment of plot before chairman, improvement trust, which approved the application--Allotment order was issued and possession was also handed over to him--Proposal was adopted that land not be alloted more than 3 Kanal--Challenged in appeal before commissioner and matter was remanded--Declared--Committee could not reduce the size of plot--Bonafide allottee--Petitioner could not verify its authenticity and sough time to go through original record--Validity--Plots were allotted to the persons with its full dimension and not in parts--Plea was descriminatory--Held: Respondent was very rightly allotted plot in its entirety with full strength of measurement and impugned order passed by commissioner did not suffer from any illegality or irregularity--Petitioner had not been able to demonstrate from any document that in the same vicinity and scheme any plot was allotted to any person in parts, as such, contentions have no foundation to stand on and in constitutional jurisdiction High Court cannot upset a legal order.
[Pp. 374 & 375] A & B
Mr. Masood Ashraf Sheikh, Advocate for Petitioner.
Ch. Abdul Ghaffar Bhutta, Advocate & Ch. Shafi Muhammad Tariq, AAG for Respondents.
Date of hearing: 13.2.2009.
Judgment
Briefly the facts are that Respondent No. 3 (Col. Karmat Ullah) applied for allotment of Plot No. 20 by moving an application on 04.1.1966 before the Chairman, Improvement Trust, Bahawalpur, which application was approved by him on 23.2.1966, as such Plot No. 20 was allotted to Respondent No. 3 and on 28.4.1966 Rs.2000/- were deposited by the respondent towards part consideration of the said plot. On the basis of order of allotment, a notice dated 28.4.1966 was issued to Respondent No. 3 through which he was informed that Plot No. 20 had been formally approved by the Chairman in Model Town-A Extension Scheme. After the said allotment, site-plan for construction over the said plot measuring 54000-Sq.Feet was sanctioned by X.E.N building and possession was also handed over to him. The matter was then put in the meeting of Improvement Trust, Bahawalpur held on 14th of May, 1969, wherein, a proposal was adopted that land not more than 3-kanal of the said plot be allotted to Respondent No. 3. The said proposal of the Meeting was conveyed to Respondent No. 3 vide letter (ANNEX-C) dated 15.5.1969, which was challenged in appeal before the Deputy Commissioner and the matter was remanded to the Improvement Trust. However, again the order was passed against Respondent No. 3. The Respondent No. 3 assailed the said order before the Commissioner, Bahawalpur Division who vide order dated 10.07.1991 accepted the appeal of Respondent No. 3 and declared that Municipal Committee could not reduce the size of Plot No. 20 in its meeting dated 14.5.1969 and that Respondent No. 3 was a bona fide allottee of Plot No. 20 measuring 54000-sq.Foot, as such the respondent was directed to deposit Rs.38500/- at the rate of 75 Paisa per Square Foot, as approved by the Members of the Improvement Trust Board. This writ petition has been filed by the Municipal Corporation against the above decision of the Commissioner.
Learned counsel for the petitioner argued that plot in question was in fact allotted to Respondent No. 3 to the extent of 3-kanal only instead of 54000-sq. Ft. in the meeting held on 14.5.1969. Further submits that after perusal of the minuets of the said meeting, it becomes clear that suggestion was given to the department that plot measuring 54000-Sq.Feet should not be allotted to Respondent No. 3 in its entirety i.e. not more than 3-kanals. It was further argued that order dated 25.4.1966 passed by the Chairman Improvement Trust Board by itself was not sufficient to validate the allotment of the entire plot in favour of Respondent No. 3, rather the same was only subject to approval of the Board and that the Board in its meeting had only consented to the allotment of 3-kanal portion of Plot No. 20 in favour of Respondent No. 3 and not more. It is thus, concluded that through the impugned order Commissioner could not hold the Respondent No. 3 entitled for whole of the plot.
On the other hand, learned counsel for Respondent No. 3 has contended that according to the minutes of the meeting of the Improvement Trust Board, Plot No. 20 was allotted as a whole in favour of Respondent No. 3 by confirming the earlier allotment order issued by the Chairman Improvement Trust Board dated 23.2.1966. According to the learned counsel this fact was further endorsed by the Board in its meeting held on 26.11.1969 (ANNEX-D). It is further contended that after allotment in favour of Respondent No. 3, even the site-plan submitted by Respondent No. 3 was also approved by X.E.N. Building for whole of the plot and only thereafter, he raised construction over the said plot. It is lastly argued that there is no precedent available with the petitioner to show that in the said Scheme any plot was allotted in piecemeal but was allotted in its entirety.
I have heard the arguments of learned counsel for the parties and have also gone through the available record with their assistance.
During the course of arguments, learned counsel for Respondent No. 3 referred to a document, purportedly the minutes of the meeting dated 24.9.1969, which document when presented to the learned counsel for petitioner, he could not verify its authenticity and sought time to go through the original record of the petitioner department. Today, Muhammad Ashraf Clerk of the department appeared along with original record and when seen by this Court, the said document is very much available on department papers, in original. Furthermore, the learned counsel for the petitioner was also required to produce any document as precedent to show that in the year 1969 any plot in the same vicinity was allotted to any one in parts. After perusing the entire record, learned counsel has also not been able to cite any such document, as such, it is established that plots were always allotted to the persons with its full dimension i.e. 54000-Sq.Ft. and not in parts, whereas, in the case in hand, the petitioner department is pleading that petitioner could not be allotted Plot No. 20 in full, which plea is discriminatory. It is also matter of record that Model Town-A scheme consisted of 8-kanals, 11-kanals or 12-kanals, etc. and this was the basic purpose behind the scheme for allotment of the plot to the persons as a whole and not by parts.
Apart from that, the master plan of the entire Model Town Scheme also shows that each and every plot in the said Scheme was not measuring less than 8-kanals. Furthermore, the site-plan submitted by Respondent No. 3 was also approved by the concerned authorities, and through the said site-plan the respondent had sought construction over the entire plot. Had there been any ambiguity about the allotment of whole plot in favour of the respondent, the concerned authority could have validly objected to such site-plan, whereas, it is admitted position that the site-plan submitted by Respondent No. 3, was validly approved.
Learned counsel for the petitioner has failed to point out any provision or any specific order through which Plot No. 20 was allotted to Respondent No. 3 only to the extent of 3-kanals, but on the contrary the original allotment order dated 23.2.1966 in favour of Respondent No. 3 is further supported/strengthened by the minutes of meeting held on 24.9.1969, which document has been verified to be correct and genuine, being available on the department papers in original shape.
There is yet another aspect of the matter that Respondent No. 3 remained in uninterrupted and continuous possession of entire Plot No. 20 with measurement of 54000-Sq.Feet but none came forward to claim that any part of the said plot was transgressed or illegally occupied by respondent, meaning thereby, since 1966 the title of Respondent No. 3 over Plot No. 20 remained unchallenged and further on consideration for such an allotment had also been deposited by Respondent No. 3 and received by the petitioner department. This fact also could not be controverted by learned counsel for the petitioner.
For what has been discussed above, I feel no hesitation in observing that Respondent No. 3 was very rightly allotted Plot No. 20 in Model Town-A Scheme, in its entirety i.e. with full strength of measurement, and the impugned order passed by the Commissioner, Bahawalpur Division, does not suffer from any illegality or irregularity. Except bald oral assertions, as detailed above, the learned counsel for the petitioner has not been able to demonstrate from any document that in the same vicinity and Scheme any plot was allotted to any person in parts, as such, the above contentions of learned counsel have no foundation to stand on; and in constitutional jurisdiction this Court cannot upset a legal order, merely on surmises and conjunctures. This petition, therefore, fails and is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 376
Present: Mian Saqib Nasir, J.
ZAFAR IQBAL and 6 others--Petitioners
versus
Ch. MUHAMMAD ASLAM and 4 others--Respondents
C.R. No. 383 of 2005, decided on 22.10.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Specific Relief Act, (I of 1877), Ss. 42, 19--Agreement to sell--Question of entering into deal and executing the agreement--Appreciation of evidence--If the finding of two decisions were based upon any misreading or non-reading of the evidence--As regarded the agreement that because the allotment had been made in favour of deceased, therefore, it should be presumed that she was alive till that date, suffic it to say that it did not help the case of the petitioners, because the process of allotment had initiated in favour of Mst. "M" may be much prior to that date and during such period if she had died and his legal heirs without seeking their incorporation got the allotment in her name, it could not positively be held, that the lady was alive at the relevant time--Petition dismissed. [P. ] B
Civil Procedure Code, 1908 (V of 1908)—
----O. XLI, R. 27 & S. 115--Application for additional evidence--No substantial evidence in rebuttal had been produced by petitioner at trial or appeal stage--Validity--Documents now sought to be produced as additional evidence were quite unreliable e.g., in the death certificate her father's name though written as Sooba, but it did not correspond to register from which the entry had been carried, where the name was Shafi--Affidavit on the basis of which the petitioners claimed that death entry was incorporated, there was a clear overwriting and the figure "6" had been attempted to be made as "8"; likewife same as interpolation appeared to have been made in the death register too, therefore, High Court did not incline to allow these documents in additional evidence--Application dismissed.
[P. 378] A
Mr. Zafar Iqbal Chaudhry, Advocate for Petitioners.
Mian Muhammad Waheed Akhtar, Advocate for Respondent
No. 1.
Date of hearing: 22.10.2008.
Order
Petitioner filed a suit for declaration and specific performance against the respondents claiming that Mst. Muhammad Bibi alias Mandoo Bibi through an agreement dated 09.08.1965 had agreed to sell the suit land measuring 105 Kanals 10 Marlas situated in Chak No. 88-South, Tehsil and District Sargodha, for a consideration of Rs.67344/-, which was paid to her at the time of the agreement.
"2. Whether the plaintiffs are owners in possession of the disputed-property by way of agreement to sell Dt:09.08.65 and the Defendants No. 1 and 2 have no concern with the disputed property? OPP"
Both the parties led evidence and the suit was dismissed by the learned Trial Court while mainly giving findings on this issue, through the judgment and decree dated 28.06.2004. Aggrieved of the above, petitioners unsuccessfully assailed the matter in appeal, which has been dismissed on 7.1.2005.
There is concurrent finding of facts recorded by the two Courts below that Mst. Mandoo had died in the year 1964 i.e. before the date of the agreement to sell, as the mutation of inheritance regarding her estate was sanctioned on 22.12.1964 Exh.D7 upon the statement of her brother Siraj Din. This document has been primarily relied upon by the two Courts in holding that the lady had demised before the date of the agreement, therefore, the question of her entering into the deal and executing the agreement does not arise.
Learned counsel for the petitioners submits that Mst. Mandoo Bibi in fact was a Mangla Dam affectee; the allotment of the suit land in her favour was made on that account on 25.05.1965, which at that time was in possession of the petitioners; this means that she was alive till the date of her allotment The view, therefore, formed by the two Courts is against the admitted fact on the record. The petitioners counsel also submits that an application for the additional evidence has been moved to adduce the affidavit of Ch. Muhammad Ashraf, who has deposed that he is grandson of Mst. Mandoo, and that Qaim Din was not her legal heir. Besides, the affidavit of Qaim Din son of Nathu filed by the said deponent with the Municipal Committee, Mirpur, in which it is stated that Mst. Mandoo died on 10.10.1984; moreover, the copy of the death register of the Corporation Mirpur showing that the date of death is 1984, are the relevant documents which are necessary for the just decision of the case and were not earlier in possession and power of the petitioners, so as to be produced in evidence.
I have heard the learned counsel for the parties. The most important document in this case is Ex.D7, Admittedly, Siraj Din son of Sooba is the real brother of Mst. Mandoo. The mutation, mentioned above has been entered and sanctioned on his statement on 22.12.1964, in which the pedigree of the family is also given, whereas no substantial evidence in rebuttal has been adduced by the petitioners at the trial or appeal stage. Whereas, the documents now sought to be produced as additional evidence are quite unreliable e.g in the death certificate her father's name though written as Sooba, but it does not correspond to the register from which the entry has been carried, where the name is Shafi. The entry was also incorporated 03.12.1997. Moreover, in the affidavit of Qaim Din on the basis of which the petitioners claim that death entry was incorporated, there is a clear overwriting and the figure "6" has been attempted to be made as "8"; likewise same interpolation appears to have been made in the death register too, therefore, I am not inclined to allow these documents in additional evidence. Resultantly, the application for additional evidence, which is not even numbered till yet, is dismissed.
Coming back to the main case, the learned counsel for the petitioners has not been able to satisfy this Court, if the findings of the two decisions are based upon any misreading or non-reading of the evidence. As regards the argument that because the allotment had been made in favour of Mst. Mandoo on 25.05.1965, therefore, it should be presumed that she was alive till that date, suffice it to say that even this does not help the case of the petitioners, because the process of the allotment had initiated in favour of Mst. Mandoo may be much prior to that date and during this period if she had died and his legal heirs without seeking their incorporation got the allotment in her name, it cannot positively be held, that the lady was alive at the relevant time. Resultantly, I do not find any merit in this petition which is hereby dismissed.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 379
Present: Syed Zahid Hussain, CJ.
Syed HASSAN ASKARI--Petitioner
versus
BOARD OF REVENUE, PUNJAB and 2 others--Respondents
W.P No. 2-R of 2005, heard on 22-10-2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Allegation of fraud and forgery--Initiation of proceedings--Issuance of process--Duty of official functionaries--Held: Official functionaries of state are expected to take maximum care before initating proceedings in such matter on mere bald assertion of fraud and forgery--Due application of mind is necessary before issuing the process so that abuse of law and misuse of power is avoided. [P. 382] A
1999 SCMR 1719, 1999 YLR 1627, 2002 CLC 384, PLD 1982 SC 413 & PLD 1975 SC 450, ref.
Mirza Hafeez-ur-Rehman, Advocate for Petitioner.
Mr. Muhammad Hanif Khatana, A.A.G. Punjab Rana Maqbool Hussain, Advocate for Respondent.
Ex-parte for Respondent No. 3.
Date of hearing: 22.10.2008.
Judgment
Memorandum dated 26.10.2004 whereby the petitioner was directed to appear before the Deputy Secretary (S&R) Board of Revenue, Punjab "for statement/documents in support of allegations leveled by the complaint failing which the case will be decided ex parte" is sought to-be assailed through this petition under Article 199. of the Constitution of the Islamic Republic, of Pakistan, 1973.
The circumstances in which this petition arises are that the predecessor-in-interest of the petitioner was allotted land measuring 371 K 5M in Shadiwal, Tehsil Depalpur, District Okara on 29.9.1963 against the claim duly verified which area, however, was later on reduced as a result of consolidation process to 368K 18M. Ever since, the allotment has remained in the. field until the above mentioned memorandum was received by the petitioner in the year 2004 which was issued at the instance of Iftikhar Ahmad Khan, Respondent No. 3. The entertainment of the miscellaneous application and, assumption of jurisdiction is being assailed on several grounds including that the allotment which had become final long before the repeal of Evacuee Laws in the year 1975, cannot be reopened on any such miscellaneous application.
In the parawise comments filed by the respondents, the vital factum of allotment in favour of Syed Khurshid Ahmed, the predecessor-in-interest of the petitioner, is admitted. It is, however, stated that pursuant to the complaint of Respondent No. 3 a preliminary probe was carried out and it was found that the allotment was prima facie bogus and that the settlement authorities are competent to make determination of issues of fraud and to cancel such allotments. The comments since were not supported by any document i.e. the application of Respondent No. 3 or the "preliminary probe", the learned counsel for the Settlement Department was directed to produce the original file which has been produced today.
Respondent No. 3 has already been proceeded ex parte in the connected petition (W.P. No. 114-R/2006). Both the petitions are between the same parties and concern the same subject matter. In that petition, assumption of jurisdiction by the official respondents on another application of 2006 moved by the same person has been assailed on identical grounds. Thus, due to commonality of the factual and legal position, both the petitions have been heard together and are being decided accordingly.
The prime contention of the learned counsel for the petitioner is that reopening of a past and closed matter of allotment of land is a sheer abuse of process of the Court; the only object behind which is to cause harassment by involving the petitioner into an uncalled for litigation as the allotment was free of any taint and was validly made. He has placed reliance upon Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board, of Revenue, Punjab, Lahore and others (1999 SCMR 1719), Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others (1999 YLR 1627) and Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others (2002 CLC 384) to support his contentions.
The essential fact as to the allotment of land made in the year 1963 in favour of the predecessor-in-interest of the petitioner has not been denied. It is also admitted that as per "Misl-e-haqiat pertaining to the year 1966-67 prepared after consolidation, the land is recorded as 368K-18M." The allotment remained undisputed and unchallenged till the year 2004 when for the first time, Respondent No. 3 made a miscellaneous application that the same was bogus. Much before that in the year 1975, Evacuee Laws were repealed, conferring finality through legislative measure i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The object was to close the chapter of allotments and matters pertaining thereto except where the proceedings were pending on 1.7.1974 or the matter was remanded by any Superior Court. There was another possibility for scrutiny of allotments where prima facie fraud had been committed. In the instant case, the long standing entries in the revenue record would prove the factum of allotment and its continuous existence in the name of the allottee. Mere assertions made in the miscellaneous application/complaint by Respondent No. 3 would not have impaired its finality. From the file produced by the official respondents and perusal of the statement of Munshi Muhammad Boota, Patwari and Niaz Ahmed Dogar, Naib Tehsildar, Depalpur, this fact further finds affirmation that long before repeal of the Evacuee Laws, the allotment in the name of the predecessor-in-interest of the petitioner did exist on the record. The statements made by the said officials are of 09.08.2004 whereas the memorandum impugned in the petition was issued on 26.10.2004. There was nothing in their statements attributing any element of fraud or forgery in obtaining the allotment. The said memorandum apparently had no valid basis whatsoever for reopening of the matter of allotment having attained finality. In Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others (2002 CLC 384) this Court had the occasion of examining somewhat identical issue and it was observed that "In Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719, it was observed that "any petition or representation, filed by the petitioners with regard to the matter which otherwise stood finalized long back or even where aggrieved person may. believe to have legitimate claim, same under the law could not be entertained by the Chief Settlement Commissioner or notified officer or any other Settlement authority by virtue of "the Repealing Act". Therefore, proceedings drawn by the Settlement Commissioner which culminated in passing of order, dated 26.2.1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground". In Syed Istijab Hasan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab,, Lahore 1999 YLR 1627, it was observed that since no proceedings were pending against the petitioners' allotment at the time of the repeal of Settlement Laws, the Settlement Authority acted without lawful authority in taking proceedings on a Mukhbari application, filed after the repeal of the laws. In Jamal-ud-Din v. Member, Board of Revenue and 4 others 2001 CLC 81, the view taken by this Court was that a matter of transfer of evacuee property which had assumed finality before the coming into force of repealing law i.e. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could not be reopened after the repeal of Settlement Laws. The judgment of this Court in Jamal-ud-Din's case (supra) was upheld by the Honourable Supreme Court in Civil Petition No. 2546/L of 2000. There is thus, no obscurity as to the legal position that obtains on the subject." It may be observed that mere allegation of "fraud and forgery" does not ipso facto vest the respondents with the jurisdiction in a matter which has otherwise attained finality. If such a course is allowed to be adopted, there will be no end to it. In Begum Shams-un-Nisa v. Said Akbar Abbasi and another (PLD 1982 SC 413), it was observed that "We have, therefore, no doubt in our mind that the allegations of fraud and forgery leveled against the appellant are false and concoctious. In fact, we regret to note that it has become fashionable to make reckless allegations of fraud etc. against respectable persons in order to obtain some unjust advantage and such practices deserve to be noticed seriously and discouraged by Courts of law. In the instant case, the allotment has existed in the records since 1963 which was never assailed by any one, its reopening for enquiry after about four decades on mere bald assertion of Respondent No. 3, who has even failed to come forward to support and substantiate his allegations in the complaint before this Court, would be a futile exercise. Issuance of impugned memorandum for initiation of proceedings,, thus was without due application of mind to the factual and legal aspects of the matter. In Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450) assumption of jurisdiction by the Labour Court was held to be without lawful authority observing that "if Respondent No. 2 proceeds to hear the complaint of Respondent No. 1, the proceedings will be wholly without jurisdiction and, therefore a nullity." The proceedings initiated and pending before the Labour Court were declared to be without lawful authority and of no legal effect and were thus, quashed. In view of the circumstances apparent on the record, the issuance of memorandum and the initiation of proceedings by the official respondents are, thus, without any factual or legal justification and are declared as of no legal effect. It is, however, observed that the official functionaries of State are expected to take maximum, care before initiating proceedings in such matters on mere bald assertions of fraud and forgery. Due application, of mind is necessary before issuing the process so that abuse of law and misuse of power is avoided. This way valuable time in conducting futil proceedings can be saved.
For the above reasons, both these petitions are accepted. Since Respondent No. 3 has chosen to remain away from the proceedings, I make no order as to costs.
(W.I.B.) Petition accepted.
PLJ 2009 Lahore 383
[Bahawalpur Bench Bahawalpur]
Present: Kh. Farooq Saeed, J.
SHAKEEL ASGHAR KHAN--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER RAHIM YAR KHAN and 3 others--Respondents
W.P. No. 2183-S/BWP of 2008, decided on 11.3.2009.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Civil servant--Maintainability of--Recommendation--Order to repatriate the civil servant to his earlier department--Reliquishment of the right of seniority available to him in previous service--Repatriation was without giving him a chance of being heard which is violation of principle of natural justice--Term adjustment in service--Civil servant was neither transferred nor sent on deputation--Adjusted in new job--Validity--Civil servant was on deputation and it is adjustment/posting which is under discussion, one would, therefore, go by the meaning as per law--Held: Action of respondents to transfer the civil servant back to his parent department was considered without any authority and impugned order was set aside--Petitioner, therefore, was directed to be posted to its original position with all back benefits. [P. 386] A
Words and Phrases--
----Adjust, defined by Judicial Dictionary Eleventh Edition by Aiyar's means settlement in respect of claim, liabilities or payment, define of existing assets. [P. 386] B
Civil Servant--
----Power to transfer--Distinguishes the posting from transfer--DCO had no power to transfer a person from the health department is correct and accepted, but, since it is not a case of transfer and that of posting--Respondent cannot be allowed to go back to their earlier stand.
[P. 387] C & D
Locus Poenitentiae--
----Vested right--Respondents having posted the petitioner to a new post depriving him from the benefit of earlier service had for all practical purposes posted the person by way of a new appointment--Through impugned order, they had lost locus poenitentiae, thus a vested right had accrued in favour of the petitioner which cannot be withdrawn.
[P. 387] E
PLJ 2000 Lah. 455, rel.
Adversely Effect--
----An individual who is likely to be adversely effected by orders of some authority is entitled to a hearing before any decision against him.
[P. 387] F
Mr. Muhammad Shamsher Iqbal Chughtai, Advocate for Petitioner.
Ch. Shafi Muhammad Tariq, A.A.G. with Shabbir Hussain Mirani, Naib-Tehsildar, Staff Officer, of DOR, Rahim Yar Khan.
Mr. Abdul Wahid, Litigating Officer, Office of EDO (R) Rahim Yar Khan.
Date of hearing: 11.3.2009.
Order
Brief facts to the present writ petition are that the petitioner who is graduate was appointed as `Junior Clerk' (CDC Supervisor) in BPS-5 vide Order No. DHO/11767/C dated 7.6.1995 in Health Department. Thereafter, the health department became a part of the District Government under the Punjab Local Government Ordinance, 2001. The petitioner by that time had passed LL.B from Shah Abdul Latif University, Khairpur. After devolution, plan was introduced by the government, some posts of the Junior Clerks were found lying vacant in the revenue department. The petitioner applied for the same. The Respondent No. 1 referred the matter to Respondent No. 2 and the E.D.O. (Health) issued NOC vide No. 9-11-12 dated 6.6.2002. The NOC was subject to the condition that he will not claim his seniority in his new posting and was consequently adjusted vide order dated 17.6.2002. His service book from E.D.O. (Health) Rahim Yar Khan was sent to the Respondent No. 2. Later on 4.8.2008 the Respondent No. 3 became wiser and prepared a report on the said date stating as follows:--
"I think that such adjustment orders made by the then DCO does not seem appropriate and are improper".
(i) That the adjustment in revenue department was practically a new posting which is evident from the adjustment letter itself. The reason being that the same is subject to relinquishment of the right of seniority available to him in previous service;
(ii) That the petitioner has served thereafter about six years. His name is obtaining in the seniority list at Sr. No. 76 and he was promoted from BPS-5 to BPS-7 by obviously considering him as a regular employee;
(iii) That the repatriation is without giving him a chance of being heard which is violation of principal of natural justice.
The case of the respondent on the other hand is that it was only an adjustment from health department to revenue department which was not within the jurisdiction of the then DCO. Further that the petitioner had retained his lien with the principle department and alternate remedy is available to him in terms of appeal before the labour Court.
So far as the maintainability of this writ petition is concerned, the emphasis of the petitioner's side remains that since the order is in ignorance of the legal position, hence the same is maintainable in all respect. The respondents' claim, however, remained that since the DCO has no power to appoint or adjust, the entire superstructure raised thereafter is illegal.
On a query of this Court it was pointed out that the Board of Revenue Punjab was declared as administrative department with respect to ministerial post in the office of District Nazim, Deputy District Nazim, DCO, XEN (F-P), XEN (C-D) and District Officer (Finance) (HRM) and (Co-Ordination) vide Notification No. SOR-III(S&GAD) 1-3/98 dated 13.11.2003. The above notification also inter alia explained that for the posts located in the aforementioned offices and not reflected in the existing rules, the Board of Revenue shall get the necessary amendment in the rules as required.
Further argument on the basis of above discussion, therefore, is that the petitioner being employee of health department, his services could not be transferred by the then DCO, Rahim Yar Khan, hence, the same was void ab initio.
One could agree with the respondent, but, however, the facts does not support their claim. The petitioner made applications for adjustment/posting in revenue department. The DCO, Rahim Yar Khan, through its Letter No. 9-11-12 dated 6.6.2002 referred the matter to EDO (Revenue), Rahim Yar Khan to grant an NOC. The E.D.O (Revenue) vide Letter No. 1289 dated 7.6.2002 issued NOC with the subject adjustment/posting in revenue. The said letter reads as follows:--
"To
The District Coordination Officer, Rahimyarkhan.
No. 1289 Dated 7.6.2002
Subject: ADJUSTMENT/POSTING IN REVENUE DEPARTMENT.
Kindly refer to your Letter No. DCO/HRM/9-11-12 dated 4th June, 2002, this office has no objection, if Mr. Muhammad Shakeel Asghar Khan Sangh, Junior Clerk (CDC Supervisor BS-5) Health Department is adjusted/posted in Revenue Department subject to the condition that he will not claim his seniority.
Executive District Officer (Revenue)
Rahimyarkhan."
The DCO office approved the recommendations on 17.6.2002. In consequence thereof, order was released on 12.6.2002 which was subsequently notified by the E.D. (Revenue) Rahim Yar Khan dated 8.7.2002. His service book was got transferred on 20.6.2002.
In fact the arguments of the respondents side are self contradictory. The claim that the DCO does not have any authority to transfer the employee of the health department to revenue department is self contradictory. Obviously, if he does not have any power to transfer a person from the health department to revenue department, conversely he can also not enjoy the power to transfer him from the revenue department to health department. In fact in such eventuality he could at best place the services of the official to the provincial government with the recommendation by declaring him either surplus or otherwise not required within his jurisdiction.
Even on asking many questions the respondents were unable to explain as to what was meant by the term adjustment in service. The petitioner has neither been transferred nor sent on deputation. He has been adjusted/posted in the new job. In fact it is not being claimed that the petitioner was on deputation and it is the adjustment/posting which is under discussion, one would, therefore, go by the meaning thereof as per law.
Adjust defined by Judicial Dictionary Eleventh Edition by AIYAR'S means settlement in respect of claim, liabilities or payment, define of existing assets. The purpose to adjust is to restore the true balance. It, therefore, does not explain the status of a person who has been adjusted.
Since the term has been used alongwith appointment, the meaning of the same shall prevail. The same as per the aforementioned Judicial Dictionary means as follows:--
"In its ordinary dictionary meaning the word to post' may denote either (a) to station someone at a place, or (b) to assign some-one to a post i.e. a posting or a job, especially one to which a person is appointed [See Webster's New World Dictionary (1962). The wordposting' cannot be understood in the sense of transfer' to operate at a stage beyond appointment and promotion. Ifposting' was intended to mean transfer', the draftsman would have hardly chosen to place it betweenappointment' and
promotion' and could have easily used the wordtransfer' itself. [State of Assam
Vs. Rangs Muhammad (1967)I SCWR 219; AIR 1967 SC 903]"
The above definition which is supported by the case law as well as meanings adopted in other dictionaries distinguishes the posting from transfer clearly. The claim that the DCO had no power to transfer a person from the health department is correct and accepted, but, since it is not a case of transfer and that of posting, the respondent cannot be allowed to go back to their earlier stand.
It is true that the process which has been evolved is not as if the petitioner was being appointed afresh. However, it also cannot be stated that the posting would amount to a transfer or service on deputation from one department to another as the procedure with respect thereto also is different.
In any case, the petitioner had acquired a vested right in terms of "locus poenitentiae" as has been held in (P.L.J 2000 Lahore 455) re: "Muzaffar Ali Khan Additional Director General (Horticultural) L.D.A Lahore Vs. Lahore Development Authority through Director General and 3 others". The above quotation means that the respondents having posted the petitioner to a new post depriving him from the benefit of earlier service had for all practical purposes posted the person by way of a new appointment. Through the order of 2002, they had lost locus poenitentiae, thus, a vested right had accrued in favour of the said petitioner which cannot be withdrawn.
Further the case of the respondent suffer from another patent illegality. The aforementioned judgment in terms of P.L.J 2000 Lahore 455 (supra) inter alia holds that a right having been accrued to a person in a job, he cannot be reverted back to his earlier post having been absorbed in the new department. Besides, he could not have been sent back without giving a right of being heard.
An individual who is likely to be adversely effected by the orders of some authority is entitled to a hearing before any decision against him.
The upshot of the above discussion, therefore, is obvious. The action of the respondents to transfer the petitioner back to his parent department is considered without any authority and the impugned order is set aside. The petitioner, therefore, is directed to be posted to its original position immediately with all back benefits without any order as to cost.
(R.A.)
PLJ 2009 Lahore 388
Present: Syed Asghar Haider, J.
MAJEED AHMED KHAN--Petitioner
versus
ADDL. DISTRICT JUDGE, FAISALABAD and others--Respondents
W.P. No. 14077 of 2008, decided on 21.10.2008.
Limitation Act, 1908 (IX of 1908)—
----S. 5--Constitution of Pakistan, 1973, 1973, Art. 199--Application for vacation of injunctive relief, dismissal of--Struck off right--Appeal was filed after lapse of one year--Barred by time--Provisions of S. 5 of Limitation Act, seeking condonation of delay are not applicable to revision petition. [P. 389] A
2006 SCMR 676, ref.
Rao Manzoor-ul-Haque Khan, Advocate for Petitioner.
Date of hearing: 21.10.2008.
Order
The Respondent No. 3/plaintiff filed a suit for possession through specific performance with the prayer for permanent injunction against Respondents No. 4 to 19, interim injunction was granted by the learned trial Court. The petitioner filed an application for vacation of injunctive relief, it was dismissed. The petitioner was also directed to file written statement, the needful was not done, therefore, his defence was struck off. The petitioner filed an appeal which also was dismissed, hence the present petition.
The learned counsel for the petitioner contended that the impugned order suffers from patent illegalities, the same is not reflective of the correct position on record, the petitioner had a vested right to file written statement and forfeiting the right is illegal, as the petitioner was not granted adequate opportunity in this context.
Heard.
I have appraised the record of the proceedings with the assistance of the learned counsel. It is clear that the trial Court dismissed the suit to the extent of Defendants No. 2 to 17 on 26.10.2007, and struck off the right of the petitioner to file the written statement, after recording that at least 14 opportunities to the petitioner to file the written statement. It also is clear from the tenor of the order that the written statement was not filed within the stipulated period of 30 days. Thus the order of the trial Court is unexceptionable. Now adverting to the judgment of the lower appellate Court, it is clear that aggrieved of this order, an appeal was filed on 8.9.2008 after almost lapse of one year. The lower appellate Court held that appeal was not competent and converted the proceedings into a revision petition. But also ruled that it is barred by limitation as the same was required to be filed within 90 days of the order impugned. A bare perusal of record reflects that the revision petition was filed much later thus it is clearly barred by limitation. The provisions of Section 5 of the Limitation Act seeking condonation of delay are not applicable to revision petitions. Reference City District Government, Lahore through District Coordination Officer, Lahore vs. Mian Muhammad Saeed Amin (2006 SCMR 676). Therefore, the impugned order is unexceptionable, resultantly, this petition has no merits and is therefore, dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 389
Present: Syed Hamid Ali Shah, J.
M/s. AL-KHAN CONSTRUCTION CO. (PVT.) LTD.--Petitioner
versus
PROVINCE OF PUNJAB etc.--Respondents
W.P. No. 314 of 2009, decided on 19.2.2009.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Availability of alternate remedy--Maintainability--Termination of the contract and invocation of clause 63.1--Petitioner was awarded contract for construction of road--Period for completion of project was 18 months, which was enhanced to 24 months--Petitioner failed to accomplish the task within target date--Assailed--Grounds of--Due to unavoidable circumstances, delay was caused, bills were not paid timely and the drawing were not provided within time--Principle of natural justice--Validity--Delay in accomplishment of construction work were not any direction to respondent was legally permissible without ascertainment of factual controversy--Held: Writ jurisdiction cannot be exercised to perpetuate injustice--Fairness is the virtue of a petitioner in writ jurisdiction for grant of discretionary relief--Petitioner has remedy to invoke the arbitration clause which is adequate remedy--Further held: Availability of alternate remedy for resolution of dispute through invoking the arbitration clause and for the fact that petitioner's neglect and delay is inconvenient to public--Petition cannot be entertained. [P. 391] A, B & C
Mr. Shahzad A. Elahi, Advocate for Petitioner.
Mr. Faisal Ali Qazi, A.A.G. alongwith Mr. Safdar Khan, Project Director DEC.
Date of hearing: 14.1.2009.
Order
Petitioner was awarded contract for the construction of "Pindi Bhattian--Chiniot--Kamalpur Road", the project of ABD Loan No. 1928-PAK. The bid of the petitioner was accepted and the petitioner was awarded contract. The period for completion of the project was 18 months, which was subsequently enhanced to 24 months. The petitioner failed to accomplish the task within the target date, which gave rise to the respondent to invoke clause 63.1 of the general conditions of the contract. Resultantly, the contract was terminated.
The petitioner assailed the termination of the contract and invocation of clause 63.1, on the grounds that due to unavoidable circumstances, the delay was caused, the bills were not paid timely and the drawings were not provided within time. Learned counsel for the petitioner has referred to other contracts, wherein the contractors, who were assigned the task of construction, were provided time and (sic) referred to these projects, which are P-2, P-3 and P-4 awarded to Channar Water and Electric Company (CWE). Learned counsel submitted with vehemence that the contract was terminated without notice to the petitioner. While referring to the cases of "Tehmina Mufti vs. University of Sindh Jamshoro and another" (1995 SCMR 65). "Pakistan and others vs. Public at large and others" (PLD 1987 SC 304), "Central Inland Water Transport Corporation Limited and another vs. Brojo Wath Ganguly and another" (AIR 1986 SC 1571), he contended that actions where the principles of natural justice are denied, is not legally sustainable. Learned counsel then submitted that notice is contrary to the provisions of contract and contrary to the public interest. It was then submitted that fundamental rights of the petitioner, as guaranteed by Articles 18, 23 and 24 of the Constitution, have been infringed. Learned counsel supported this contention by referring to the cases of "Messrs Ramna Pipe and General Mills (Pvt.) Limited vs. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others" (2004 SCMR 1274), "Messrs Airport Support Services Vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268), "Habibullah Energy Limited through General Manager vs. Water and Power Development Authority through Chairman WAPDA, Lahore and 5 others" (2008 YLR 2612), "Network Television Marketing Ltd. vs. Government of Pakistan and another" (2001 CLC 681) and "Messrs Wak Orient Power and Light Limited through Chief Executive Lahore vs. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others" (1998 CLC 1178).
Learned Law Officer, on the other hand, submitted that 37 K.M. road from Pindi Bhattian to Chiniot, has been dismantled and the public is facing inconvenience. The petitioner has not accomplished 25% of the work at site. He was warned time and again to accomplish the task within the target date, but the petitioner miserably failed. Petitioner submitted an undertaking on 3.12.2008, but showed no progress.
Heard learned counsel for the parties and record perused.
The questions raised by the petitioner to justify the delay in the accomplishment of construction work, are (sic) nor any direction to the respondents is legally permissible, without ascertainment of the factual controversy. It is claimed by the respondents that despite extension in time, the petitioner has not carried 1/5th of the work at site. 18% of the work has been carried while 82% work at the project is still unaccomplished.
Writ jurisdiction cannot be exercised to perpetuate injustice. The fairness is the virtue of a petitioner, in writ jurisdiction for the grant of discretionary relief. The petitioner has the remedy to invoke the arbitration clause, which is adequate remedy.
In view of availability of alternate remedy for the resolution of dispute through invoking the arbitration clause and for the fact that the petitioner's neglect and delay is inconvenient to the public, this petition cannot be entertained. Dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 392 (DB)
Present: Hafiz Tariq Nasim and Syed Hamid Ali Shah, JJ.
ATTIQUE REHMAN etc.--Appellants
versus
ENVIRONMENTAL TRIBUNALS etc.--Respondents
E.A. No. 1 of 2006, decided on 23.2.2008.
Pakistan Environmental Protection Act, 1997—
----S. 16(1)--Air pollution--Chilli grinding unit--Cause of discharge or emission of effluent, which results into severe air pollution--Some persons of locality filed a complaint against appellant that they have established chilli grinding unit in residential area--Notice was issued--Unpleasant chilli smell order, was irritant and causes air pollution--Tribunal affirmed the decision qua closure of industrial unit--Validity--Report of Inspector Environment unit was found constant cause for pollution--Loading and unloading was not found upto standards--Crushing and grinding was found creating severe chilli dust and there were various points wherefrom chilli dust escaped through holes in the roof, walls and doors--Held: Environmental Protection Order was passed, while the appellant was delaying the matter, by fighting on mere technicalities for the past ten years--Unit had been established in a residential area and permitting to function such industrial project for a considerable long time by offending the provisions of the Act, 1997 will not save the purpose of law and justice--Illegal activity had to come to an end--It should not be allowed to be carried on, under shelter of frivolous and technical objections--Appeal was dismissed. [P. 394] A
Mr. Akhtar H. Awan, Advocate for Appellants.
Mr. Muhammad Zia-ud-Din Ansari, Advocate for Respondent No. 3.
Mian Ehsan-ul-Haq Sajid, Addl. A.G. for Respondents.
Date of hearing: 1.12.2008.
Order
Syed Hamid Ali Shah, J.--19 persons of the locality of Khaliq Street, Ihata Barkat Ali, outside Mochi Gate, filed a complaint against the appellants that they have established a chilli grinding unit in the residential area. It causes TNT and respiratory emissions. A report was called on 1.5.1989 and after receiving the report, notice to the appellant was issued under Section 16(1) of the Pakistan Environmental Protection Act, 1997. Environmental Protection Order (EPO) was issued on 4.8.1989, wherein it was found that industrial unit of the appellants spreads spices' dust and causes severe air pollution. The appellants assailed the order in W.P. No. 15358 of 1999. The petition was disposed of vide order dated 26.8.1989 with the direction that no coercive measures shall be adopted against the appellants, till the functioning of the Tribunal. The Tribunal subsequently directed for re-inspection of the industrial unit. The site was inspected on 2.10.2004, 04.10.2004 and 08.10.2004. It was reported that unpleasant chilli smell odour, is a constant irritant and causes air pollution. The Tribunal vide impugned order dated 27.10.2005 affirmed the decision regarding closure of the industrial unit, but set aside the order of the provincial agency, regarding shifting of the chilli grinding unit, from it's existing premises.
The appellant, through instant appeal, has now assailed the judgment of learned Tribunal.
Learned counsel has repeated the arguments, which were addressed before the learned Tribunal. It was submitted that no inquiry had been conducted nor the appellants were associated with any inquiry. The mandatory notice under Section 16(1) was not issued to the appellant. The action against the appellant is mala fide and provincial agency has no lawful authority to pass the order of shifting of the grinding unit. The impugned action is without jurisdiction. Learned counsel in support of this contention has referred to the case of "State Life Insurance Corporation of Pakistan v. Director General Military Lands and Cantonments, Rawalpindi and 4 others" (2005 SCMR 177). He has referred to the judgment reported as AIR 1995 Orrisa 1984 (from Indian jurisdiction) and contended that order of shifting of the unit is not within the jurisdiction of the respondent agency.
Learned counsel for the respondent has, however, submitted that the appellant was provided adequate opportunity of hearing. DG, EPA visited the premises thrice and his report was submitted to the Tribunal on 08.08.2004. The limit is involved in the business, which has adverse effects on the health of the residents of the locality.
Heard learned counsel for the parties and record perused.
The appellants' unit was found constant cause of discharge or emission of effluent, which results into severe air pollution. Environmental Protection Order dated 08.05.1999 was passed, while exercising powers under Section 16 of the Act of 1997 and the petitioner was directed to stop the operation of the unit. The appellant was served with the notice, which was received by his nephew Muhammad Asif. The notice regarding Environmental Protection Order dated 04.08.1999 was received by appellant's son Khalique-uz-Zaman. The Environmental Consultant Engineer, Mumtaz Hussain studied the report of the Inspector Environment and visited the unit. As per Environmental officers, the unit was found constant cause for pollution. Loading and unloading was not found up to the standards. Crushing and grinding was found creating sever chilli dust and there were various points wherefrom chilli dust escaped through holes in the roof, walls and doors. The inspection of the project was carried on the direction of the Tribunal. The report submitted after three visits to the units reveals that emission from, the project, is injurious to the health of the residents and constant source of irritation, which causes various respiratory diseases. The Environmental Protection Order. Environmental Protection Assessment and the report of Director General (Environment) (on the direction of the learned Tribunal), is sufficient evidence to prove that the appellants are involved in a business, which offends provisions of the Environmental Protection Act, 1997.
The notices were issued under Section 16(1) of the Act and impugned action against the appellant was taken within the parameters of law. The order, therefore, is devoid of any illegality or infirmity to call for interference in this appeal. Learned counsel for the appellants has wrongly contended that the Tribunal has affirmed the order/direction of EPA, regarding shifting of unit from existing place to some other place. The impugned order passed by the Tribunal is clear. It has been held by learned Tribunal that shifting of the unit from it's existing place to another site, is not a lawful order and such order is in conflict with the provisions of PEPA, Act and it's preamble. Learned Tribunal, therefore, set aside the order, whereby the appellant was directed to shift it's project.
Environmental Protection Order was passed on 04.08.1999, while the appellant is delaying the matter, by fighting on mere technicalities for the past ten years. The unit has been established in a residential area and permitting to function such industrial project (obnoxiously) for a considerable long time by offending the provisions of the Act, will not save the purpose of law and justice. This illegal activity has to come to an end. It should not be allowed to be carried on, under the shelter of frivolous and technical objections.
This appeal, for the foregoing, has no force and is accordingly dismissed.
(R.A.) Appeal dismissed.
PLJ 2009 Lahore 395
Present: Ali Akbar Qureshi, J.
DAEWOO PAKISTAN MOTORWAY SERVICE LTD. LAHORE through Chief Executive--Petitioner
versus
MUHAMMAD AKRAM--Respondent
C.R. No. 2139 of 2006, heard on 14.11.2008.
Civil Procedure Code, 1908 (V of 1908)—
----Ss. 12(2), 115 & O. IX, R. 13--Arbitration Act, (X of 1940)--Ss. 17, 20 & 41--Setting aside decree ex-parte--Rule of Court--Furnishing the name of arbitrators--Question of the validity of order--Jurisdiction--Necessary to examine the proceedings recorded by trial Court to decide the fate of the case--Not pointed out a single stance or ingredient of fraud and misrepresentation--Respondent filed application u/S. 20 of Arbitration Act--Arbitrators were appointed by parties--Directed the parties to furnish the name of Arbitrators--Petitioner failed to furnish the name of arbitrator--Non-appearnace--Proceeded was ex-parte--Arbitrator was appointed to resolve the controversy--Arbitrator announced the award and filed in the Court--No objection was filed--Rule of Court--Petitioner claimed in application u/S. 12(2) of CPC that fact of making the award Rule of Court come into knowledge when bailiff appointed by the Court to execute the decree and petitioner without delay filed an application--Validity--Record indicated that petitioner duly replied the application u/S. 20 of Arbitration Act, and fully participated in proceedings when trial Court allowed the application u/S. 41 of Arbitration Act and the parties were directed to provide the name of their Arbitrators--Respondent provided the name of Arbitrator whereas the petitioner obtained adjournment and thereafter filed an appeal against the order--Held: When no one appeared on behalf of the petitioner neither any application for setting aside the ex-parte proceedings were filed, the trial Court appointed sole Arbitrator to resolve the controversy--Trial Court provided an opportunity to parties to file the objection and no body filed the objection--Trial Court having no option in law made the award Rule of Court but while making the award Rule of the Court, the trial Court also observed that the petitioner has already been proceeded ex-parte--Further held: If the fraud and misrepresentation is alleged, that has to be proved by the person who is alleging the same the petitioner has miserably failed to point out or to mention any ingredients or particulars of fraud in his pleadings and also failed to prove in evidence--Petitioner has miserably failed to meet with the requirement of S. 12(2), CPC--Petitioner has failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence--Revision was dismissed. [Pp. 400 & 404] A, B, J & L
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 165--Ex-parte proceedings--Not advance any plausible explanation--Unbelievable--Conduct and non-appearance of petitioner--During the course of argument when counsel for petitioner was asked to explain the conduct and non-appearance of the petitioner, when ex-parte proceedings were ordered, the date of filing the application u/S. 12(2) of CPC--Counsel could not advance any plausible explanation but to submit that petitioner remained unaware about proceeding of trial Court because of death of his counsel--Held: It is unbelievable that an advocate who is legal advisor of a well established company, if dies during the pendency of the case and its official dealing with legal cases remained unaware about the death of counsel not for a month but about four years--Revision dismissed. [P. 401] C & D
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2) & O. IX, R. 13--Validity of order--Ingredients of fraud--Court functionaries--Stance of connivance with Court functionaries--Trial Court appointed arbitrators to resolve the matter--Direction to the parties to submit the name of arbitrators--Petitioner was failed to provide the name of his arbitrator--Ex-parte proceeding--Challenge to--Whereby the award was made Rule of Court on the ground that award and decree on the basis of award was procured and obtained by playing fraud and misrepresentation--Held: The witness had not pointed out a single stance or ingredient of fraud and misrepresentation and that is reason, the petitioner elected to challenge the judgment and decree u/S. 12(2), CPC--Allegations levelled by the witness was totally contrary to record and allegations mentioned in application u/S. 12(2), CPC, wherein the petitioner has not referred even a single stance of connivance with the Court functionaries--Revision dismissed. [Pp. 402 & 403] E, F & G
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Ex-parte proceeding--Fraud, misrepresentation and want of jurisdiction--Remedy to a person to challenge the judgment and decree--Validity of judgment--Legislature has provided a remedy to a person to challenge the judgment and decree by way of the application instead of filing an independent suit and has used very significant three words on the basis of which the judgment and decree can be questioned--Held: Any person who is aggrieved of any judgment and decree or order can file an application on the grounds of fraud, misrepresentation and want of jurisdiction. [P. 404] H
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--Particulars to be given where necessary--Order on basis of fraud and misrepresentation--Law makers--Validity of order--If a party questions the validity of any order on the basis of fraud and misrepresentation, the particulars of fraud alongwith dates and items should be mentioned in the pleadings so that the other party could meet with or rebut the same in his own way. [P. 404] I
Arbitration Act, 1940 (X of 1940)--
----S. 17--Civil Procedure Code, (V of 1908)--S. 12(2) & O. IX, R. 13--Proceedings of arbitration--Ex-parte decree--Validity of judgment--Question of--Set aside the judgment and decree--Requirement of both the provisions of law are different--Rule of Court--Awarded was granted by trial Court--S. 17 of Arbitration Act, wherein the award if filed in the Court is to be made Rule of the Court and that order shall follow a decree--Petitioner has also failed to point any misconduct committed by Arbitrator or with the proceedings of the arbitration.
[P. 404] K
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Civil revision--Principle of law--Revisional jurisdiction--Each case has to be decided on its own merits--There is hardly any reason to interfere with the findings recorded by Courts below while exercising the revisional jurisdiction u/S. 115 of CPC.
[Pp. 404 & 405] M
Ch. Muhammad Saleem, Advocate for Petitioner.
Mr. Aurangzeb Mirza, Advocate for Respondent.
Date of hearing: 14.11.2008.
Judgment
This civil revision is directed against an order dated 6.10.2006 passed by the learned trial Court whereby the application under Section 12(2) CPC, Order 9, Rule 13 CPC and Section 17 of the Arbitration Act was dismissed.
The respondent in the instant petition filed an application under Section 20 of the Arbitration Act, 1940 on the basis of an agreement wherein it was agreed between the parties that in case of any dispute, the matter shall be referred to two Arbitrators appointed by both the parties. The said application was contested by the petitioner by filing the reply. As per the clause of the agreement, the learned trial Court on 14.10.2000 directed both the parties to furnish the name of their Arbitrators. The respondent provided the name of his Arbitrator but the petitioner failed to furnish the name of his Arbitrator. The petitioner because of non-appearance was proceeded ex-parte on 22.12.2001. The learned trial Court consequently appointed sole Arbitrator to resolve the controversy on 24.7.2002. The said Arbitrator announced the award and finally filed in the Court on 21.4.2003. The learned trial Court thereafter adjourned the case for filing the objection by the parties but no one objected the award announced by the Arbitrator, resultantly the learned trial Court made the award Rule of the Court on 15.9.2003. The petitioner has claimed in the application under Section 12(2) CPC that the fact of making the award Rule of the Court came into his knowledge on 21.9.2004, when the Bailiff appointed by the Court came to the office of the petitioner to execute the decree and the petitioner without delay filed an application under Section 12(2) CPC.
The petitioner has questioned the validity of the order dated 15.9.2003 whereby the learned trial Court while exercising the jurisdiction under Section 17 of the Arbitration Act made the same Rule of the Court, mainly on the ground that the petitioner was proceeded ex-parte and could not get the knowledge of the said order because of the death of his learned counsel and no notice by the Arbitrators nor from the Court at the time of making the award Rule of the Court was issued. The respondent vehemently contested the application and controverted the contents by filing a detailed reply. The learned trial Court out of the pleadings of the parties framed as many as 11 issues, recorded the evidence of the parties and finally after hearing the arguments, dismissed the application, hence this civil revision.
The main thrust of the argument of the learned counsel for the petitioner is that the petitioner was proceeded ex-parte because of the death of the learned counsel during the proceedings; that no notice by the Arbitrator or by the Court at the time of filing the award in the Court or making the same Rule of the Court was issued; the proceedings recorded by the learned trial Court are self contradictory as the presence of the learned counsel for the petitioner had continuously been marking by the learned trial Court, although, the learned counsel of the petitioner had died on 6.8.2001; the Arbitrator has not announced the award in accordance with law and has also travelled beyond his jurisdiction and the same has been procured by the respondent by playing fraud and mis representation. The learned counsel specifically drew my attention to the proceedings recorded by the learned trial Court dated 22.11.2001 when the presence of the learned counsel for the parties was marked whereas the learned counsel for the petitioner had died much prior the said date i.e. 6.1.2008, and the proceedings dated 22.12.2001 when the petitioner was proceeded ex-parte and lastly the proceedings dated 24.7.2002, when the sole Arbitrator was appointed wherein the learned trial Court has itself recorded that the petitioner has been proceeded ex-parte on 22.12.2001; and submitted that all the proceedings recorded by the learned trial Court while marking the presence of the learned counsel for the petitioner is wholly without jurisdiction, without lawful authority and contrary to the factual aspect of the case. Lastly contended that the respondent has obtained the ex-parte judgment and decree by playing fraud and mis-representation. Reliance is placed on Abdul Khaleq v. Province of East Pakistan and another (PLD 1964 Dacca 166), Meer Muhammad Sharif v. Mirza Muhammad Ashraf and 4 others (1980 CLC 1984), Syed Naeem Naqi v. Syed Zameer Haider and 2 others (2000 YLR 386), Muhammad Iqbal v. P.I.D.C. (2000 CLC 876), Sh. Din Mohammad v. Jan Mohammad and another (PLD 1971 Quetta 30), Punjab Province through Secretary to Government of the Punjab Irrigation and Power Department Lahore and another v. Messrs Chauhan & Company through Managing Partner (PLD 2000 Lahore 314) and Mrs. Anis Haider and 3 others v. Additional District Judge, Lahore and 6 others (2003 CLC 462).
Conversely, the learned counsel for respondent submitted that the petitioner was very much aware about the proceedings recorded by the learned trial Court as the petitioner filed the reply of the application under Section 12(2) CPC; that the petitioner participated subsequent proceedings and even this fact has been admitted by the witnesses appeared on behalf of the petitioner and even otherwise the petitioner has failed to make out a case under Section 12(2) CPC, and the judgment passed by the learned trial Court is well-worded and has been passed after adverting to all the aspect of the case. Reliance is placed on Baqir v. Mst.Shamim Bibi and others (2001 SCMR 946), Machin Khan v. Sher Muhammad Khan (2003 YLR 742), Chiragh Bibi and another v. Mst. Rashida Begum and others (PLD 1958 SC (Pak.) 209, Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) and Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300).
I have heard the learned counsel for the parties and perused the record.
It is necessary to examine the proceedings recorded by the learned trial Court to decide the fate of the case as the petitioner has mainly questioned the validity of the proceedings recorded by the learned trial Court particularly to the effect that the petitioner was proceeded ex-parte and the presence of his counsel had been marking despite the fact the learned counsel died during the proceedings and thereafter no notice was served either by the Arbitrators or by the Court. The record maintained by the learned trial Court indicates, that the petitioner duly replied the application under Section 20 of Arbitration Act, and fully participated in the proceedings when the leaned trial Court allowed the application on 14.10.2000 under Section 41 of the Arbitration Act and the parties were directed to provide the name of their proposed Arbitrators. The respondent provided the name of his Arbitrator whereas the petitioner obtained adjournment and thereafter filed an appeal against the order dated 14.10.2000. The petitioner, as record shows had been appearing in the case before the learned trial Court during the pendency of the appeal and even on 22.11.2001 the petitioner was present when the order passed by the learned appellate Court was conveyed to the learned trial Court and on the said order, the learned trial Court again directed the parties to provide the name of the Arbitrators. On the next date i.e. 22.12.2001 no one appeared on behalf of the petitioner and the ex-parte proceedings were ordered. On 24.7.2002 when no one appeared on behalf of the petitioner neither any application for setting aside the ex-parte proceedings were filed, the learned trial Court appointed sole Arbitrator to resolve the controversy. The record which starts from 12.10.2002 shows that the petitioner again started appearing and even the petitioner was present through his counsel on 17.3.2003 when the award was filed in the Court. The learned trial Court on 21.4.2003 provided an opportunity to both the parties to file the objection and till 15.9.2003 no body including the petitioner filed the objection, therefore, the learned trial Court having no option in law made the award Rule of the Court but while making the award Rule of the Court, the learned trial Court also observed that the petitioner has already been proceeded ex-parte.
It is also necessary to discuss the evidence produced by the parties. AW-1 who is Manager Finance of the petitioner while appearing in the witness box stated in examination-in-chief as under:--
"I have been maintaining the record of the cases pending in the Court regarding Daewoo Corporation. I am responsible for maintaining the record."
In the cross-examination, the said witness stated:
"According to order dated 14.10.2000, the stay order was confirmed in respect of non-cancellation of licence of the petitioner. The petitioner filed an appeal against the said order dated 14.10.2000 and the same was accepted."
AW-2 who was driver and clerk of the learned counsel namely Mahmood Ahmad, deceased, only stated that the counsel of the petitioner's company died during the proceedings of the learned trial Court but could not succeed to support the contentions of the petitioner. AW-3 who was Account Officer of the respondent-Company stated in the examination-in-chief regarding receiving of the notice, which is even much important, keeping in view the facts of the case so the same is reproduced as under:--
"AW-3: The notice received by me in September 2000, was in respect of the stay order.
The important witness AW-4 who stated regarding fraud committed by the respondent in the following lines: --
"AW-4 The respondents got the decree on the basis of dishonesty and misrepresentation, fraud and with connivance of Court functionaries."
The said witness also stated as under:--
"I joined the petitioner's company on 1.6.2006. Yes my knowledge about the present case is not my personal knowledge and it is based on company record.
"It is correct that after remand of the case, the Daewoo Company was represented in the original case a per the record of the case."
(a) No notice of appointment of arbitrator was ever served upon the petitioner Company.
(b) The arbitrator did not issue any notice of arbitration to the petitioner before announcing the alleged award. The petitioner was condemned unheard.
(c) After submission of the award in the Court the predecessor of this learned Court did not invite any objections. No notice of submission of award was ever issued and served upon the petitioner. All the proceedings are corrum-non-judice. Those are nullity in the eyes of law.
(d) The predecessor of this learned Court had absolutely no jurisdiction to make the award as Rule of the Court without inviting objections from the petitioner.
(e) The alleged arbitrator traveled beyond his jurisdiction. He had no jurisdiction to grant the amount in dispute to the respondent. There was no basis to grant amount of alleged damages.
(f) The respondent obtained the award and the judgment and decree thereon by playing fraud. ft is result of misrepresentation. The petitioner is not bound by said award.
(g) The petitioner company came to know about passing the judgment and decree dated 15.9.2003 yesterday i.e. 21.9.2004 when the bailiff of the Court visited another company having no concern with the present petitioner. Hence this application is being filed without any delay.
(h) Even otherwise the alleged award is liable to be set aside being without jurisdiction.
Section 12(2) CPC: Where a person challenges the validity, of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
Fraud: criminal deception: the use of false representations to gain an unjust advantage. 2. a dishonest 3. a person or thing not fulfilling what is claimed or expected of him, her, or it. 4. the crime of obtaining money by deceiving people; someone or something that deceives people by claiming to be; someone or something that they are not:
Misrepresentation: represent wrongly; give a false or misleading account of idea of. 2. to describe falsely an idea, opinion or situation or the options of someone, often in order to obtain an advantage.
Order 6, Rule 4 CPC: Particulars to given where necessary "In all cases in which the party pleading relies on any misrepresentation, fraud breech of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the form of aforesaid particulars (which dates and items if necessary) shall be stated in the plaint."
The Law maker were very much conscious while inserting this provision in the Code of Civil Procedure that if a party questions the validity of any order on the basis of fraud and misrepresentation, the particulars of fraud along with dates and items should be mentioned in the pleadings so that the other party could meet with or rebut the same in his own way Even otherwise the law requires that if the fraud and misrepresentation is alleged, that has to be proved by the person who is alleging the same whereas in this case, the petitioner has miserably failed to point out on or to mention any ingredients or particulars of fraud in his pleadings and also failed to prove in evidence, therefore, the petitioner has miserably failed to meet with the requirement of Section 12(2) CPC, It is also notable that the petitioner on the one hand has questioned the validity of the judgment and decree under Section 12(2) CPC but on the other hand has also asked for setting aside the said judgment and decree on the strength of the provisions of Order 9, Rule 13 CPC which to my mind have no nexus with each other. The requirement of both the provisions of law are different. The petitioner has also mentioned Section 17 of the Arbitration Act wherein the award if filed in the Court is to be made Rule of the Court and that order shall follow a decree. The petitioner has also failed to point any misconduct committed by the Arbitrator or with the proceedings of the arbitration.
Learned counsel for the petitioner has otherwise failed to point out any jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence with the judgment, impugned herein. The judgments referred by the learned counsel for the petitioner has no relevance with the legal proposition involved in this case. Even otherwise, the facts of the instant case is all together different. It is also settled principle of law each case has to be decided on its own merits, therefore, there is hardly any reason to interfere with the findings recorded by the learned Court below while exercising the revisional jurisdiction under Section 115 CPC.
Resultantly, this civil revision has no force and is dismissed with no order as to costs.
(R.A.) Revision dismissed.
PLJ 2009 Lahore 405
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
NAZIMA SHAHZADI and another--Petitioners
versus
SHO and 4 others--Respondents
Writ Petition No. 357 of 2008, heard on 9.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B & 376--COnstitutional petition--Abduction & rape--Registration of FIR--Submission of challan in Court u/S. 173 Cr.P.C.--Quashment of proceedings--Complainant alleged in FIR that accused had abducted her daughter--During investigation alleged abductee alongwith accused appeared by producing Nikahnama stated that they were validly married spouses and no offence of abduction had happened--Held: In absence of any supporting statement of the abductee, no criminal case regarding offence of abduction or rape was made out against the couple or their co-accused persons--Further proceedings before the trial Court would amount to abuse of process of the Court--Proceeding quashed--SHO and the Investigator were imposed Rs. One lac as penal/commensatory cost.
[Pp. 408, 409, 412 & 414] A, B, C, D & E
Raja Muhammad Tariq Khan, Advocate for Petitioners.
Syed Husnain Kazmi, AAG for Respondents No. 1 to 3.
Malik Waheed Anjum, Advocate for Respondent No. 4.
Date of hearing: 9.2.2009.
Judgment
Khan Malik, Complainant/Respondent No. 4 got registered case F.I.R. No. 72 dated 18.3.2008 with Police Station Pindi Ghaib, Distt. Attock with an allegation that on the night between 11/12.3.2008 his 20/21 years old daughter Mst. Nazima Shehzadi, who was married to Irfan Khan on 6.1.2008 without her ceremonial departure (Rukhsati) went in fields to respond the call of nature and did not return home; that he went behind his missing daughter and met with Mehr Khan and Muhammad Sufail, P.Ws. who disclosed that she had been taken away by Muhammad Khan, petitioner and others in a car; that he returned home and found gold ornaments and Rs. 25000/- missing; that he approached the accused persons to get back the hands of his abducted daughter, but unsuccessfully and that the accused persons abducted Mst. Nazima Shehzadi for zina.
Rab Nawaz, Sub-Inspector of Police drew up crime report on the statement of Khan Malik, complainant to the above effect with an observation that prima facie offences punishable under Sections 365-B and 376 P.P.C. were made out against the accused persons. Mst. Nazima Shehzadi, alleged abductee/the victim of rape joined investigation and made a statement before Rab Nawaz, investigator on 14.4.2008 to the effect that she had not been abducted by the accused persons as alleged in the F.I.R. and that as a matter of fact she contracted a valid marriage of her choice with Muhammad Khan, accused/petitioner. In support of the plea, she produced Nikah Nama dated 12.3.2008 and dismissed the claim of her complainant-father that she had been married to Irfan Khan.
Muhammad Khan, the alleged abductor also owned and adopted the above said plea of marriage. Tasaduq-uz-Zaujain coupled with Nikah Nama dated 12.3.2008 did not find favour with Rab Nawaz, investigator who decided to challan all the accused persons including Muhammad Khan, petitioner to Court on the charge of abduction and rape. He laid the file before Muhammad Shafiq, S.H.O., Police Station Pindi Ghaip for preparation of final report under Section 173 Cr.P.C. The S.H.O. examined the file and endorsed the above said opinion formed by Rab Nawaz, investigator. Resultantly, the S.H.O. prepared the challan against the accused persons under Section 365-B and 376 P.P.C., which was forwarded by Ch. Muhammad Zulfiqar, D.S.P./S.D.P.O. Pindi Ghaip to the Distt. Public Prosecutor, Attock for examination and scrutiny. It so happened that the Distt. Public Prosecutor also approved and endorsed the investigation conducted by Rab Nawaz, Sub-Inspector and sent up the accused persons to Court to stand trial on the charge of abduction and rape punishable under Sections 365-B and 376 P.P.C. It is note worthy that Mst. Nazima Shehzadi, who had allegedly been abducted and raped was neither cited as P.W. nor as an accused. After submission of challan in Court, the Distt. Public Prosecutor, Attock wrote a Letter No. 396 DPP/AK dated 20.10.2008 to the S.S.P. (Investigation), Attock that the investigator failed to cite Mst. Nazima Shehzadi as an accused in the final report and in the circumstances supplementary final report citing her as an accused should be prepared and submitted within three days. The S.S.P. (Investigation), Attock directed the S.H.O. Police Station Pindi Ghaip to do the needful in obedience to the direction of the Distt. Public Prosecutor, Attock. The S.H.O. prepared supplementary challan in the case and got it submitted in the Court of Session through Distt. Public Prosecutor, wherein Mst. Nazima Shehzadi had also been cited as an accused of abduction and rape. Through this Constitutional petition, Mst. Nazima Shehzadi and Muhammad Khan, petitioners prayed for quashing of the proceedings in the case on facts and law.
I have heard learned counsel for both the parties and perused the record very carefully. Rab Nawaz, Investigator, Muhammad Shafiq, S.H.O. and Ch. Muhammad Zulfiqar, the then D.S.P./S.D.P.O. also explained their position in writing qua the investigation conducted by them.
The following important legal questions have arisen for determination by this Court:--
(a) Whether Mst. Nazima Shehzadi, alleged abductee can be prosecuted under Section 365-B P.P.C. for having abducted herself?
(b) Whether Muhammad Khan, petitioner and his co-accused can be prosecuted under Section 365-B P.P.C. for having abducted Mst. Nazima Shehzadi, who dismissed the allegation regarding her abduction and was challaned to Court to stand trial on the charge of her own abduction?
(c) Whether Mst. Nazima Shehzadi, accused can be prosecuted under Section 376 P.P.C. even if the prosecution story is believed in toto?
(d) Whether Mst. Nazima Shehzadi and Muhammad Khan, petitioners are liable to stand trial on the charge of fornication under Section 496-B P.P.C. in the light of the result of investigation that they both had been committing sexual intercourse with each other despite not validly married?
(e) Whether Mst. Nazima Shehzadi and Muhammad Khan, petitioners committed the offence punishable under Sections 494 and 497 P.P.C. as agitated by Muhammad Shafiq, S.H.O. in his written reply?
(f) Mst. Nazima Shehzadi and Muhammad Khan, petitioners joined investigation and claimed to have contracted a valid marriage with each other vide Nikah Nama dated 12.3.2008. She also dismissed the claim/allegation by her father that she had already been given in the Nikah with one Irfan Khan. This is a matter of record that she filed a suit for jectitation of marriage against said Irfan Khan before the Judge Family Court. In the circumstances, whether police station or the criminal Court are the competent forums for determination of the above said matrimonial dispute.
(g) Whether Mst. Nazima Shehzadi can be prosecuted under Section 380 P.P.C. for having taken sway gold ornaments and cash from the house which was also in her possession alongwith other family members?
I find it convenient to take up the first two questions simultaneously. The investigating agency challaned the alleged abductee and the abductor (petitioners herein) to stand trial under Section 365-B P.P.C., which reads as under:
"365-B:--Kidnapping, abducting or inducing woman to compel for marriage etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing, it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intern that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. "
A bare perusal of the above said provision of law read with Section 362 of the Pakistan Penal Code 1860 would show that abduction means removal of any person from one place to another by force or inducement or by any deceitful means. In the case in hand Mst. Nazima Shehzadi, petitioner who had allegedly been taken away by Muhammad Khan, petitioner and others appeared before the investigator and stated expressly that she was neither taken away by force/inducement or by deceitful means and that she contracted valid marriage of her own choice with Muhammad Khan, petitioner. To a question as to how the alleged abductee could be prosecuted for her own abduction, the learned Law Officer and learned counsel for the complainant were left with no other option but to admit in clear terms that it was not permissible under the law for the investigating agency to challan her to Court on the charge of her own abduction. Here, I must say that there was no legal justification for the learned trial Court to take cognizance of the offence of abduction against the abductee. The most shocking aspect of the matter is that the S.H.O., the D.S.P. and the Distt. Public Prosecutor mechanically and blindly forwarded the challan wherein the alleged abductee had been blamed for her own abduction. The Distt. Public Prosecutor was required in terms of Section 9(4) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 to examine and scrutinize the case file in order to ascertain as to whether or not the case was fit to lay before the Court for trial. Initially, the Distt. Public Prosecutor forwarded the challan to Court wherein the alleged abductee had neither been cited as P.W. nor an accused. Later on he got challaned her to Court to stand trial on the charge of her own abduction and rape. This is a text book example of incompetency on the part of the investigator, the S.H.O., the D.S.P. and the Distt. Public Prosecutor.
After coming to the conclusion that the alleged abductee is not liable to face trial for her own abduction, the next question which I take up is as to whether Muhammad Khan, petitioner and his co-accused are liable to face trial on the charge of her abduction, particularly when she dismissed the complainant's version before the investigator and was subsequently arrayed as an accused. This is a novel case in which the male accused persons had been challaned to Court on the charge of abduction despite the fact that there was/is no abductee to support the charge. Mst. Nazima's statement that she had not been abducted as alleged, demolished the charge of abduction. It is not understandable as to how the alleged abductee and abductors were sent up to Court on the charge of abduction. For the above reasons, it is not difficult to hold that all the accused persons including the alleged abductee are not liable to stand trial under Section 365-B P.P.C.
The S.H.O. in his written reply pleaded that the petitioners committed cognizable offences punishable under Sections 494 and 497 P.P.C.
Section 494 P.P.C. deals with marrying again during life time of husband or wife whereas Section 497 P.P.C. relates to adultery. Here I would say that the S.H.O. does not have adequate knowledge of criminal law. Section 494 P.P.C. was made non-cognizable offence on 2.12.2006 by the Protection of Women (Criminal Laws Amendment) Act VI of 2006 whereas Section 497 P.P.C. stood repealed by clause (a) sub-section (2) of Section 19 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and resultantly the said penal provision of law is no more on the Statute Book since then. Hence, they are not liable to face trial under Sections 494 and 497 P.P.C., particularly when they were not challaned for the offence.
The prosecution case set up in the F.I.R. was that Mst. Nazima Shehzadi, petitioner had been abducted by Muhammad Khan, petitioner for zina. The complainant and the investigator reshaped the allegation set up in the F.I.R. when she repudiated the said allegation of her abduction for zina by making a statement before the investigator that she contracted a valid marriage of her choice with Muhammad Khan, petitioner. Initially, she was not cited as P.W. or an accused but later on she was also arrayed as an accused in the supplementary challan on the charge of her own abduction and rape on the direction of Distt. Public Prosecutor. The learned Law Officer and learned counsel for the complainant frankly conceded that the petitioners were/are not liable for the offence of rape. A bare perusal of Sections 375 and 376 P.P.C. would show that to constitute an offence of rape it is must that the sexual intercourse with a woman is against her will; without her consent; with her consent, when the consent has been obtained by putting her in fear of death or of hurt; with her consent when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married and with or without her consent when she is under 16 years of age. The charge of rape leveled against the petitioners herein does not qualify the above said legal test. Admittedly Mst. Nazima Shehzadi, petitioner had not been subjected to sexual intercourse by her co-petitioner Muhammad Khan against her will or without her consent or under any of the above noted circumstances. Furthermore, only the male accused committing rape with a woman as defined by Section 375 P.P.C. is liable to stand trial on the said charge punishable under Section 376 of the Code. It is not understandable as to how the investigator, the S.H.O., the D.S.P. and the Distt. Public Prosecutor challaned Mst. Nazima Shehzadi, petitioner to Court on the charge of rape, which had allegedly been committed with her. This is a ridiculous state of affairs, which must be deprecated.
Now adverting to the charge of fornication punishable under Section 496-B P.P.C., for two reasons it can be said safely that the petitioners are not required to stand in dock for the said charge. Firstly, the offence of fornication which deals with a situation in which a man and a woman not married to each other are said to commit sexual intercourse with each other, is not cognizable. Secondly, as per Section 203-C of the Cr.P.C. as amended by the Protection of Woman (Criminal Laws Amendment) Act, 2006 no Court shall take cognizance of an offence under Section 496-B of the Pakistan Penal Code, except on a complaint lodged in the Court of competent jurisdiction.
The complainant made an allegation that her daughter Mst. Nazima Shehzadi, petitioner had been abducted by Muhammad Khan, petitioner for zina. For the sake of arguments if it is admitted for a moment that the petitioners committed the offence of zina even then the investigating agency was not competent to challan them to the Court on the said charge because of the bar contained in Section 203-A of the Cr.P.C. to the effect that no Court shall take cognizance of an offence under Section 5 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 except on a complaint lodged in the Court of competent jurisdiction. For facility of reference and in order to bring on record that it was beyond the jurisdiction of the police to prosecute the petitioners on the charge of zina or fornication, the procedure for trial on the charge of zina and fornication provided by Section 203-A and 203-C Cr.P.C. is reproduced below:
Section 203-A reads as under:
Complaint in case of Zina.--(1) No Court shall take cognizance of an offence under Section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), except on a complaint lodged in a Court of competent jurisdiction.
(2) The Presiding Officer of a Court taking cognizance of an offence on a complaint shall at once examine, on oath, the complainant and at least four Muslim, adult eye-witnesses, about whom the Court is satisfied having regard to the requirement of tazkiyah-al-Shaheed, that they are truthful persons and abstain from major sins (Kabair) of the act of penetration necessary to the offence.
Section 203-C is as under:
Complaint in case of fornication.--(1) No Court shall take cognizance of an offence under Section 496-B of the Pakistan Penal Code, except on a complaint lodged in a Court of competent jurisdiction.
(2) The Presiding Officer of a Court taking cognizance of an offence shall at once examine on oath the complainant and at least two eye-witnesses to the act of fornication.
(3) The substance of the examination of the complainant and the witnesses shall be reduced to writing and shall be signed by the complainant, and the witnesses, as the case may be, and also by the Presiding Officer of the Court.
(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding, the Court shall issue summons for the personal attendance of the accused:
Provided that the Presiding Officer of a Court shall not require the accused to furnish any security except a personal bond, without sureties, to ensure attendance before the Court in further proceedings.
(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if after considering the statements on Oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.
(6) Notwithstanding the foregoing provisions or anything contained in any other law for the time being in force no complaint under this section shall be entertained against any person who is accused of Zina under Section 5 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (Ordinance No. VII of 1979) and against whom a complaint under Section 203-A of this Code is pending or has been dismissed or who has been acquitted or against any person who is a complainant or a victim in a case of rape under any circumstances whatsoever.
The complainant alleged in the F.I.R. that her 20/21 years old daughter Mst. Nazima Shehzadi had been given in Nikah with one Irfan Khan without her ceremonial Rukhsati. I have already observed in the preceding paragraphs that Mst. Nazima Shehzadi, petitioner joined investigation and dismissed the above said claim of her father with the plea that she did not contract marriage with afore-mentioned Irfan Khan and as a matter of fact she contracted a valid marriage with Muhammad Khan, petitioner with her free consent and will. Muhammad Khan, petitioner also accepted the plea of valid marriage put forward by Mst. Nazima Shehzadi. They both produced Nikah Nama in support of their version. To their hardluck, the investigator did not attach any importance to Tasaduq-e-Zaujain supported by Nikah Nama and challaned them to Court. This state of affairs forced Mst. Nazima Shehzadi to file a suit for jectitation of marriage against aforesaid Irfan Khan before the learned Judge Family Court. Here, I would conveniently say without fear of contradiction that police station or the Criminal Court are not the competent forums for resolution of the above said matrimonial dispute.
Allegedly, Mst. Nazima Shehzadi, petitioner had taken away ornaments and cash from the house in which she also lived with her complainant father. For the sake of arguments if it is believed that she took away the ornaments and cash as alleged by the complainant even then the offence punishable under Section 380 or 379 P.P.C. is not made out. Before her alleged abduction from the house from where the ornaments had been taken away was also in her joint possession as she lived there alongwith her family members including the complainant. Section 378 P.P.C. defines that it is essential to make out a case for theft to show that moveable property of a person had been taken away from his possession without his consent dishonestly. In the case in hand Mst. Nazima Shehzadi, petitioner allegedly removed gold ornaments and cash from the house in joint occupation of its inmates including herself. In this view of the matter she cannot be held responsible and liable for the charge of theft. Furthermore, the allegation with regard to theft was a mere self assertion of the complainant, which he could not substantiate with evidence during the course of investigation. The investigator also did not challan the petitioners to Court on the charge of theft. In the circumstances, the vague and bald allegation of theft by the father against his own daughter is not worthy of credence, nor the same provides a legal basis to prosecute her on the charge of theft.
It is painful to note at the cost of repetition that after coming to the conclusion that Mst. Nazima Shehzadi, petitioner eloped with Muhammad Khan, petitioner and she had not been taken away by him in the alleged manner, the investigator chose to challan both of them on the charge of abduction. Needless to add that where there is no taking away of a woman, no offence of her abduction is made out or committed. It is the prosecution case set up in the final report under Section 173 Cr.P.C. that Mst. Nazima Shehzadi, petitioner had of her own free will gone away with Muhammad Khan, petitioner to marry him and, therefore, there was no question of their trial on the charge of abduction under Section 365-B P.P.C. In fact will and consent of the alleged abductee determines the fate of the charge of abduction but in the case in hand the investigator and the Distt. Public Prosecutor attached importance to the will of her father in utter disregard of the provisions of Section 365-B Cr.P.C. The Distt. Public Prosecutor got challaned Mst. Nazima Shehzadi, petitioner to Court on the charge of abduction and rape despite the fact that it had been established on record that she bad gone out of her father's house and contracted Nikah with Muhammad Khan willingly and without any body having exerted any compulsion on her. The investigator and the Distt. Public Prosecutor took a ridiculous decision to prosecute Mst. Nazima Shehzadi on the charge of her own abduction and on the charge of rape allegedly committed with her. The investigator and the Distt. Public Prosecutor did not bother to go through the provisions of Sections 375 and 376 P.P.C. A combined examination of these two provisions of law would show that only a man committing rape with a woman under the circumstances mentioned in Section 375 P.P.C. is liable to face trial under Section 376 of the Code. It is also manifest from these provisions of law that if a man has sexual intercourse with a woman with her consent, it is not rape under the law and at the most the offence of fornication is committed which is not a cognizable offence.
For what has been stated above, I am of the considered view that no offence whatsoever was/is made out against the petitioners and their co-accused persons. The petitioners faced the agony of investigation for the offence which had not been committed by them. No doubt the subject of investigation of criminal cases comes within the exclusive domain of police, yet this Court in exercise of constitutional jurisdiction and inherent powers is required to keep the public functionaries within their allotted sphere. The police cannot be and should not be allowed to prosecute the accused for the offences which they did not commit. The investigation conducted by the investigating agency and the proceedings so far conducted by the Court on submission of challan being illegal and without lawful authority are liable to be struck down. The learned trial Court entertained the challan without application of judicial mind and took cognizance of an offence which had not been committed by the challaned accused. Further proceedings before the trial Court in the circumstances would amount to abuse of process of the Court. I, therefore, accept this constitutional petition and quash the proceedings in the case being illegal, without jurisdiction and nullity in the eyes of law.
The investigating officer and the S.H.O. played havoc with the administration of criminal justice. They did not remain within their allotted sphere. They unnecessarily dragged the accused persons in frivolous litigation. The respondent-complainant got registered a case with them with an allegation that his daughter had been abducted by the accused persons. After recording statement of the alleged abductee that she had not been abducted the investigator should have recommended cancellation of the case without proceeding further. It is Constitutionally guaranteed right of all citizens to be treated in accordance with law of the land. In the case in hand the investigator and the Distt. Public Prosecutor prosecuted the petitioners over and above the law by adopting a self styled procedure based on perverted sense of authority. In the circumstances, I impose penal/compensatory cost of
Rs. 1,00,000/- on Rab Nawaz, Sub-Inspector/investigator and Muhammad Shafiq, S.H.O. which on its realization by the learned Sessions Judge, Attock by adopting legal means meant for execution of money decree, shall be paid to the petitioners in equal shares.
(J.R.) Petition accepted
PLJ 2009 Lahore 415
Present: S. Ali Hassan Rizvi, J.
Syed SIKANDAR ALI SHAH--Petitioner
versus
Mst. OMAIRA ANWAR and 4 others--Respondents
W.P. No. 3309 of 2009, decided on 20.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Family Courts Act, 1964--S. 10(4)--Constitutional petition--Writ petition was filed through real mother--Suit for dissolution of marriage on the basis of khula was decreed--Case was remanded in appeal--Jurisdiction--Only order of Family Court which could conceivably be challenged--Petitioner was insane and confined to Distt. jail--He should have been summoned at pre-trial stage to record statement before passing a decree--Petitioner was not granted an opportunity to cross-examine--Validity--Notwithstanding any decision or judgment of any Court or tribunal, the family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass a decree for dissolution of marriage--Held: If the petitioner was indeed insane and suffered from schizophrenia, it passes my comprehension as to what would have been the use of calling him from jail--Question of jurisdiction was irrelevant for purposes of dissolution of marriage and decree for dissolution was sound both on law and facts--Petition appears to have been filed in a circuitous manner, to take a chance and to make a cobweb of litigation--Further held: Petitioner has no justifiable cause to be examined in extra ordinary jurisdiction of High Court.
[Pp. 417 & 418] A & C
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--No limitation to file writ petition--Question of laches--Suit for dissolution of marriage on basis of Khula--Case was remanded in appeal--Order passed by Family Court which was sough to be challenged in writ petition--Held: No limitation to file a writ petition albeit question of laches would be relevant--Impugned order was dated 15.9.2008 whereas the writ petition was filed on 19.2.2009--Petitioner had challenged the order dated 6.9.2008 before Appellate Court and he was successful vide judgment dated 14.10.2008 passed by Distt. Judge--Order dated 15.9.2008 to all intents and purposes was quite lawful and with jurisdiction--Proceedings before chairman, arbitration council would also be quite within the mandate of the authority. [P. 417] B
Syed Muhammad Kaleem Ahmad Khurshid, Advocate for Petitioner.
Date of hearing: 20.2.2009.
Order
In this writ petition filed by Syed Sikandar Ali Shah through his real mother Mst. Salma Bokhari, following prayer has been made:
"It is, therefore, respectfully prayed that the order passed by Respondent No. 4 as well as the subsequent proceedings before the Respondent No. 5 may please be declared to be without lawful authority and of no legal effect and pending the decision of the writ petition, the operation of the impugned order may please be suspended."
In the prayer clause reproduced above, it has not been shown as to which order of learned Family Court (MS Abhar Gul) was sought to be set aside. I find that she had passed an order on 15.9.2008, decreeing the suit for dissolution of marriage on the basis of Khula in consideration of dower. The relevant order is Annexure-G to the writ petition. The other order passed by the same learned Family Judge was of 6.9.2008, which was challenged in appeal. Mr. Zafar Ullah Tarar, the learned Addl. District Judge while accepting the appeal set aside the order dated 6.9.2008 and remanded the case to the learned trial Court vide judgment dated 14.10.2008 passing certain directions. It is, therefore, evident that the order dated 6.9.2008 is not in the field. The only order of the learned Judge Family Court which could conceivably be challenged, was of 15.9.2008 (Annex-G). This impression is further strengthened from the second part of the prayer that the subsequent proceedings pending before the Chairman, Arbitration Council (Respondent No. 5) be declared to be without lawful authority.
I, therefore, find that it was the order dated 15.9.2008, passed by the learned Judge Family Court which was sought to be challenged in this writ petition.
The grounds taken in support of the writ petition was that the petitioner Sikandar Ali was insane and confined to District Jail, Faisalabad; that he should have been summoned at pre-trial stage to record his statement before passing a decree for dissolution of marriage on 15.9.2008; that learned counsel for the petitioner was not granted an opportunity to cross-examine Respondent No. 1 Mst. Omaira Anwar; that the impugned judgment and decree was hit by the law laid down in 2007 CLC 505 and 2008 SCMR 240; that the medical report pertaining to the petitioner showing him as an insane person suffering from Schizophrenia was not appreciated; that the petitioner was condemned unheard and that the impugned orders passed by Respondent No. 4 and subsequent proceedings pending with Respondent No. 5 were illegal, unwarranted and without lawful authority. Referring to Section 10(4) of the Family Court Act, 1964 and the law laid down in PLD 1973 Lah. 95, it was argued that the passage of the order dated 15.9.2008 amounted to reviewing the order dated 7.6.2008.
I have considered the arguments of learned counsel for the petitioner and have gone through the entire record appended with the writ petition.
It is stated in ground (vi) of the writ petition itself that by order dated 7.6.2008, only the plaint to the extent of dowry articles was returned whereas by order dated 15.9.2008, suit for dissolution of marriage was decreed on the basis of Khula in consideration of dower. Section 10(4) was amended and a proviso was added to the effect that notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass a decree for dissolution of marriage forthwith and shall also "restore to the husband the Haq Mehar received by the wife in consideration of marriage at the time of marriage." The key words are "if reconciliation fails." In the present case, it is the case of the writ petitioner himself that he was insane and was confined in jail. He was suffering from Schizophrenia. If the petitioner was indeed insane and suffered from Schizophrenia, it passes my comprehension as to what would have been the use of calling him from the jail. He was not a "person" competent according to the contents of the writ petition themselves. The present writ petition has been filed through his mother. The rulings, namely, 2007 CLC 505 and 2008 SCMR 840 were entirely in different situations. In none of those cases, the male partner was an insane person. The order dated 15.9.2008 passed by the learned Judge Family Court (Respondent No. 4) was with jurisdiction and at least to the extent of dissolution of marriage, territorial limits were irrelevant. I am conscious that there is no limitation to file a writ petition albeit question of laches would be relevant. The impugned order is dated 15.9.2008 whereas the present writ petition was filed on 19.2.2009. The petitioner had challenged the order dated 6.9.2008 before the learned Appellate Court as aforementioned and he was successful vide judgment dated 14.10.2008 passed by Mr. Zafar Ullah Tarar, learned Addl. District Judge, Lahore. The order dated 15.9.2008 to all intents and purposes was quite lawful and with jurisdiction. Consequently, subsequent proceedings before the Chairman, Arbitration Council (Respondent No. 5) would also be quite within the mandate of his authority. It was not denied that the factual position stated in Para 7 of the order dated 6.9.2008 passed by the learned Judge, Family Court was correct. It was noted that Respondent No. 1 had to shift to Lahore as of compulsion because the present petitioner had committed murder of a neighbourer and that her life was seriously at stake. In any case, question of jurisdiction was irrelevant for purposes of dissolving marriage and the relevant decree for dissolution was sound both on law and facts. The writ petition appears to have been filed in a circuitous manner, to take a chance and to make a cobweb of litigation against Respondents Nos.1 to 3.
For all the above reasons, the petitioner has no justiciable cause to be examined in the extra-ordinary writ jurisdiction of this Court. Consequently, it is dismissed in limine.
(R.A.) Petition dismissed
PLJ 2009 Lahore 418
Present: Tariq Shamim, J.
MUHAMMAD IRFAN ZIA--Petitioner
versus
TEHSIL MUNICIPAL ADMINISTRATION through its TOWN MUNICIPAL OFFICER CHINIOT DISTT. JHANG
and another--Respondents
W.P. No. 8102 of 2008, heard on 2.2.2009.
Punjab Local Government (Auctioning of Collection Rights) Rules, 2003--
----R. 8--Constitution of Pakistan, 1973--Art. 199--Tehsil Municipal Administration--Power of--Auction for awarding contract for collection of taxes--Petitioner was directed to deposit amounts apart from deposit at call--Permission to deposit the requisite amount did not accord--Contract was awarded to other person who had not participated in auction--Validity--Local Council is authorized under the law to collect tax through award of contract for collection of taxes are to be granted through open auction--Petition was allowed.
[P. 420] A
Punjab Local Government (Auctioning of Collection Rights) Rules, 2003--
----R. 11(2)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Nazim of Tehsil Municipal Administration--Procedure adopted by council for holding fresh auction on basis of fresh offer--Person who had not participated in auction had given highest offer for same contract and tehsil nazim was inclined to award the contract to him by holding fresh auction--Challenged through constitutional--petition--Validity--Highest bid equal to or in excess of reserved price shall be accepted by nazim and placed before council within 10 days for acceptance--Bid was made by petitioner in open auction and had been accepted by auction committee which recommended its approval--Substantial number of bidders had come forward to participate in auction and tehsil municipal administration being fully satisfied with the proceedings did not call upon the three highest bidders for negotiation to increase the amount--Tehsil municipal administration entertained the offer and tehsil council declined to accept the bid of petitioner and directed fresh auction--Held: Procedure adopted by council for holding for auction on basis of offer made by other person who had not participated was not only novel but also not supported by law as such was not a valid consideration on which a bid can be rejected--Further held: If public auctions are allowed to be nullified on basis of a subsequent offer, then there would be no end to exercise as people would continue to come up with better offers even for personal reasons--Petition was allowed.
[P. 421] B & C
Mr. Zafar Iqbal Bhatti, Advocate for Petitioner.
Mr. Muhammad Ramzan Chaudhry, Advocate and Mr. Amjad Ali Chattha, Assistant Advocate-General Punjab for Respondents.
Date of hearing: 2.2.2009.
Judgment
Tax was levied by the Tehsil Municipal Administration, Chiniot, District Jhang on transfer of immovable property. The contract to collect tax is awarded in terms of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003. Auction for awarding contract for collection of the aforementioned tax was held on 14.6.2008 under the supervision of the Auction Committee and the petitioner's bid of
Rs. 2,52,15,000/- being the highest was accepted and through letter dated 27.6.2008 the respondents conveyed approval to the petitioner. The petitioner was directed to deposit certain amounts apart from the deposit-at-call submitted by the petitioner and encashed by the respondents. On receipt of the letter, the petitioner sought permission of the respondents to deposit the requisite amount but the respondents did not accord the permission and verbally informed him that the Tehsil Council had not confirmed the auction. However, he subsequently came to know through his own source that one Haji Zabita Khan, who had not participated in the auction, had given an offer of Rs. 2,80,00,000/- for the same contract and the Tehsil Nazim was inclined to award the contract to him by holding fresh auction. Being aggrieved thereof, the instant petition has been filed by the petitioner.
Notice was issued to the respondents and report and parawise comments were furnished by them. The parties have keen heard at length and the relevant documents have also been perused.
According to the learned counsel for the petitioner, the bid of the petitioner, being the highest, was approved by the Sub-Committee and recommended for acceptance by the Auction Committee. The deposit-at-call submitted by the petitioner was encashed by the Administration, however, later on Haji Zabita Khan, a front man of the Tehsil Nazim, made an offer of a higher amount and the Tehsil Administration taking into consideration the said offer, declined to award the contract to the petitioner which could not have been done under the law being not permissible. It was argued by the learned counsel that the said Haji Zabita Khan had failed to participate in the auction and consequently he could neither seek nullification of the open auction nor the Tehsil Municipal Administration was empowered to do so. It was also argued by the learned counsel that the petitioner's bid was the highest and above the reserve price fixed by the respondents and that the auction proceedings had been conducted in a most transparent manner by the Auction Committee and therefore, the Tehsil Municipal Administration was legally bound to award the contract to the petitioner.
On the other hand, the learned counsel representing the respondents contended that the petitioner could not challenge the decision of the Tehsil Council as it had the right to reject the bid made by the petitioner and that it was in the interest of the public to obtain the highest bid for the contract. It was also argued by the learned counsel that approval was not accorded by the Tehsil Council and consequently the bid was not finally accepted and the Tehsil Council was fully empowered to under Rule 11 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 to order fresh auction.
The local council is authorized under the law to collect tax through award of contract for a period not exceeding one financial year and the contracts for collection of taxes etc. are to be granted through open auction as provided in Rule 8 of the above referred Rules. The sub-rule (2) of Rule 11 provides that the highest bid equal to or in excess of the reserved price shall be accepted by the Nazim and placed before the Council within 10 days for acceptance. Admittedly the petitioner was the highest bidder whose bid had been accepted by the Nazim which is evident from the letter dated 27.6.2008. The bid was made by the petitioner in the open auction and had been accepted by the Auction Committee which recommended its approval/acceptance. It has been noticed that a substantial number of bidders had come forward to participate in the auction and the Tehsil Municipal Administration being fully satisfied with the proceedings did not call upon the three highest bidders for negotiation to increase the amount. However, the Nazim of the Tehsil Municipal Administration entertained the offer of Haji Zabita Khan and on basis thereof the Tehsil Council declined to accept the bid of the petitioner and directed fresh auction. The said Haji Zabita Khan is allegedly the front man of the Nazim. Although the allegation has remained unsubstantiated, yet the circumstances reflect that all is not well as has been portrayed by the respondents. The procedure adopted by the Council for holding fresh auction on basis of offer made by Haji Zabita Khan is not only novel but also not supported by the law as this is not a valid consideration on which a bid submitted by the contractor can be rejected. There is nothing on the record to even remotely suggest that the auction proceedings were not transparent or that there were some other flaws in the proceedings. Further, the Tehsil Municipal Administration falls within the definition of "Government" and being so it is required to deal with persons who transact business with it in a just and a fair manner so as not to lose trust of the public. In the instant case the decision of the Tehsil Council and its Nazim to hold fresh auction is not above board. If public auctions are allowed to be nullified on the basis of a subsequent offer, then there would be no end to this exercise as people would continue to come up with better offers even for personal reasons. The Hon'ble Supreme Court of Pakistan in an un-reported case titled Tehsil Municipal Administration etc. v. Chaudhry and Co. and another (Civil Petition No. 2170-L of 2004) has observed as under:
"6. Learned Counsel for the petitioner claimed that the Council had the prerogative to cancel the auction which prerogative have rightly been exercised and hence should not have been interfered with by the High Court. We do not find ourselves in agreement with the argument because the Council has to exercise its powers within the given rules and regulations juxtaposed with the circumstances of the case. As discussed earlier that there was no reason at all under the rules to cancel the auction, the Council did so because of the intervention of Muhammad Yousaf. This is where the mala fides crept in and was rightly set at naught by the High Court".
There shall be no order as to costs.
(R.A.) Petition allowed.
PLJ 2009 Lahore 422
Present: Raja Muhammad Shafqat Khan Abbasi, J.
ASIF ALI--Petitioner
versus
SHO, P.S., HARBANSPURA, LAHORE and 3 others--Respondents
W.P. No. 5332 of 2009, decided on 25.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakitan Penal Code, (XLV of 1860)--Ss. 365-B & 386--Quashing of FIR--Factual inquiry--Constitutional jurisdiction--Scope of--Purpose of quashing the FIR through exercise of constitutional jurisdiction is provided to save a person from rigours of an unjustified investigation--If investigation of a criminal case has been finalized High Court generally slow in interfering--Held: After submission of challan before trial Court, alternate remedies will become available to accused--Petition was dismissed. [Pp. 423 & 424] A
PLD 2003 Lah. 1 rel.
Specific Relief Act, 1877 (I of 1877)--
----S. 56(c)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Investigation should be stopped--Quashing of FIR--Validity--Till decision of suit for dissolution of marriage filed by abductee against her husband who is complainant in FIR--Held: U/S. 56(c) of Specific Relief Act, no such restraint order can be issued against criminal investigation--Petition was dismissed. [P. 424] B
Mr. M. Tanveer Chaudhry, Advocate for Petitioner.
Date of hearing: 25.3.2009.
Order
Through this petition, the petitioner seeks quashing of case F.I.R. No. 120, dated 18.2.2009. registered with Police Station Harbanspura, Lahore for offences under Sections 365-B & 380 P.P.C. at the instance of Muhammad Shaaban son of Meraj Din-complainant for the abduction of his wife by the petitioner and taking away of gold ornaments and some cash amount.
It has been contended that the petitioner has been falsely involved in this six days delayed F.I.R.; that Mst. Rubina Kausar wife of the complainant has filed a suit for dissolution of marriage, in which she stated that she had left the house of her husband on 4.2.2009 and this fact negates the contents of the F.I.R.
It has straightaway been observed that the petitioner has specifically been nominated in the F.I.R. and stands saddled with definite allegations. If the contents of the F.I.R. are taken at its face value, the same prima-facie discloses commission of cognizable offences. In order to appreciate the contentions of the learned counsel for the petitioner, a factual inquiry needs to be undertaken, which, I am afraid, cannot be undertaken by this Court in the present summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reference can profitably be made to the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 S.C.M.R. 276), wherein it was held that High Court has no jurisdiction to resolve disputed questions of fact in constitutional jurisdiction. It was further observed by their lordships that if prima-facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash FIR by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 S.C.M.R. 512) the Hon'ble apex Court held that disputed questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise, the case in hand is at preliminary stage as having been registered on 18.2.2009, therefore, any interference by this Court at this stage in its constitutional jurisdiction would amount to pre-empting the functions of the investigating agency or the trial Court, which is neither appropriate nor desirable.
Allegation levelled against the petitioner in the F.I.R. was regarding the abduction of Mst. Rubina Bibi, by her husband, requires holding of factual inquiry. This exercise cannot be undertaken by this Court in summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, hence, it will be pre-mature for this Court to comment upon the veracity or otherwise of the allegations contained in the F.I.R. Purpose of quashing the F.I.R. through exercise of constitutional jurisdiction is provided to save a person from the rigours of an unjustified investigation. If investigation of a criminal case has already been finalized. High Court generally slow in interfering. After submission of challan before the trial Court, alternate remedies will become available to the accused/petitioner. Reliance is placed on the case of Mst. Azra Israr v. Inspector General of Police Punjab and others (P.L.D. 2003 Lahore 1).
There is no force in the contention of the learned counsel for the petitioner that till decision of suit for dissolution of marriage filed by the alleged abductee. Mst. Rubina Bibi against her husband, who is complainant in the impugned F.I.R., investigation should be stopped. Under Section 56(c) of the Specific Relief Act no such restraint order can be issued against the criminal investigation.
For what has been observed above, no occasion has been found by this Court for interference in the matter at this stage. There being no merit in this petition, the same is dismissed in limine.
The petitioner, if so advised, may approach the Investigating Officer and brought to his notice his stance in the shape of oral as well as documentary evidence, who, in turn, shall entertain all his evidence and investigate the matter fairly, justly and in accordance with law.
(R.A.) Petition dismissed
PLJ 2009 Lahore 424
Present: Sayed Zahid Hussain, CJ.
ABDUL ALEEM and 4 others--Appellants
versus
ABDUL GHAFOOR and 8 others--Respondents
R.S.A. No. 70 of 2005, heard on 4.12.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 21--Civil Procedure Code, (V of 1908), S. 100--Regular second appeal--Agreement to sell--Suit for specific performance decreed by trial Court--Equal share in joint khata--No terminal date for completion was fixed--Clear and ascertainable contents--Enforcability of--Entitlement to grant of equitable relief of specific performance--Appeal was dismissed by ASJ--Disposing of only a part of his share in the joint holding which was well within his permissible right--Respondent could undoubtedly dispose of land to that extent--It would not be overlooked that all the three parties were real brothers and appeared to have acted on the basis of prior understanding and appellant undertook that he would get possession from deceased and delivered it to respondent at the time of registration of sale deed--Since the contents and the terms of the agreements were clear and ascertainable the agreement would not lose its efficacy nor frustrated and was enforceable in law--Appeal dismissed. [P. 429] A
Mr. Rafique Javed Butt, Advocate for Appellants.
M/s. Muhammad Anwar Ghumman & Muhammad Shafique Akram Awan, Advocates for Respondent No. 1.
Date of hearing: 4.12.2008.
Judgment
This Regular Second Appeal arises out of a suit for specific performance instituted by Abdul Ghafoor (Respondent No. 1) which was decreed by the trial Court on 11.12.2003 and appeal preferred thereagainst by the appellants was dismissed by the learned Additional District Judge, Kasur on 15.2.2005. Connected with the said litigation is C.R. No. 1123-D/2005 which arose out of a declaratory suit which was instituted by Muhammad Ramzan (deceased) which was dismissed by the trial Court vide the same judgment dated 11.12.2003 and appeal thereagainst also met with the same fate on 15.2.2005. Both these matters have been heard together and will stand disposed of through this judgment.
"ISSUES:
Whether the suit is pre-mature? OPD
Whether the plaintiff has not come with clean hand ? OPD
Whether the suit is not maintainable in its present form? OPD
Whether the suit is hit by Section 21 of Specific Relief Act ? OPD
Whether the defendant has validly cancelled the impugned agreement to sell vide notice dated 30.7.1996, if so its effect? OPD
Whether the defendant entered into an agreement to sell the disputed land with the plaintiff for a consideration of Rs.3,48,450/- and has received Rs. 1,55,000/- as earnest money ? OPP
Whether the plaintiff has fulfilled all the conditions of the agreement ? OPP
Whether the plaintiff is entitled to get the decree for specific performance as prayed for? OPP
8-A. Whether the suit is hit by Order 7 Rule 11 of CPC in view of preliminary Objection No. 2 of the amended written statement submitted by Defendant No. 2? OPD-2
8-B. Whether the Defendant No. 2 has no cause of action or locus standi to file the connected Suit No. 446/97? OPD-1
8-C. Whether the Defendant No. 2 is estopped by his word and conduct to file the connected Suit No. 446/97? OPD-1
8-D. Whether the Defendant No. 1 is entitled to get special costs under Section 35-A of CPC from Defendant No. 2 for filing a false, frivolous and vexatious Suit No. 446/97 ? OPD-1
8-E. Whether the connected Suit No. 446/97 has not been properly valued for the purpose of Court fee and jurisdiction? If so, its effect? OPD-1
8-F. Whether the connected Suit No 446/97 is not maintainable in its present form? OPD-1
8-G. Whether the impugned agreement dated 29.10.1995 renewed on 22.1.1996 is against law and facts, is a fictitious and forged document, in operative upon the rights of the Defendant No. 2 and as such is liable to be set aside? OPD-2
8-H. Whether the Defendant No. 2 is entitled to get decree for Declaration as prayed for in the connected Suit No. 446/97? OPD-2
8-I. Whether the Court fee affixed upon the plaint is deficient to the tune of Rs.14644/- and the plaint is liable to be rejected on this score ? OPD
Relief."
The respondent-plaintiff produced Abdul Razzaq (PW-1) Deed Writer/Stamp Vendor, who was scribe of both the agreements. Ch. Asghar Ali Gujjar, Advocate (PW-2) was produced in whose presence Abdul Shakoor had put his signature and thumb mark. Abdul Ghafoor plaintiff himself appeared as PW-3. Another witness to the transaction was Haji Muhammad Hanif, who appeared as PW-4. From the defendants side Zahida Perveen wife of Abdul Aleem appeared as DW-1. Labba appeared as DW-2. Abdul Aleem son of Abdul Shakoor appeared as DW-3 whereas Liaquat Ali son of Muhammad Ramzan appeared as DW-4. On consideration of the evidence, the learned trial Court decreed the suit for specific performance in favour of Abdul Ghafoor plaintiff with the direction to the defendants "to execute the registered sale-deed in favour of plaintiffs qua the suit land. They are also allowed to withdraw the remaining sale consideration of Rs. 1,93,750/- concurrently deposited in the Court". The declaratory suit instituted by Muhammad Ramzan (the predecessor-in-interest of the petitioners in the revision petition) was dismissed. Appeals preferred by the parties, as mentioned above, were dismissed by means of common judgment dated 15.2.2005.
The learned counsel for the parties have been heard. The prime contention of the learned counsel for the appellants is that specific `khasra' numbers, possession whereof was not with the vendor, could not be sold; that there was no reason for entering into a second agreement dated 22.1.1996 in presence of agreement (Exh.P-1) dated 29.10.1995. According to him, the subsequent agreement was result of foul play and misrepresentation on the part of the respondent/plaintiff. It is further contended that since the possession of the land was with Muhammad Ramzan, no executable decree can be passed in such circumstances, thus, the suit should have been dismissed. He has cited Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 Supreme Court (Pak.) 9), Shah Hussain v. Abdul Qayum and others (1984 SCMR 427), Mustafa Khan and 3 others v. Muhammad Khan and another (PLD 1978 SC (AJ&K) 75), Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others (2007 CLC 1372) and Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation (PLD 1984 Karachi 233). The learned counsel for the revision petitioners supports the above contentions of the learned counsel for the appellants. From the respondent's side, his learned counsel has supported the concurrent findings recorded by the two Courts below and makes reference to the deposition of Liaquat Ali (DW-4) to contend that there was a family settlement inter se the brothers as to possession of land.
Record has been perused and respective contentions have been considered. The parties i.e. Abdul Shakoor, Abdul Ghafoor and Muhammad Ramzan are brothers inter se, who had joint holding of 90 kanals 4 marlas of land. Through agreement dated 29.10.1995 (Exh.
P-1), admittedly, Abdul Shakoor had agreed to sell 18 kanals of land in favour of his brother Abdul Ghafoor. The discoverable reason from the record for subsequent agreement dated 22.1.1996 (Exh.P-2) is that in the first agreement (Exh.P-1) a completion date had been mentioned i.e. 1.2.1996. The suit property was since encumbered, the agreement could not be performed. The subsequent agreement was arrived at with no terminal date for completion thereof. It was also mentioned that the land was since in possession of Muhammad Ramzan (the real brother of the parties) from whom the possession will be taken and delivered to Abdul Ghafoor. It is of significance to note that both the documents (Exh. P-1 and Exh.P-2) bear the signature and thumb impressions of the parties. It is, thus, hard and difficult to deny the execution of these documents. A feeble attempt, however, was made to wriggle out of the same that the stamp paper meant for a receipt was unauthorized converted into an agreement to sell (Exh.P-2) by Abdul Ghafoor or the same was cancelled vide notice dated 30.7.1996 (Exh.P-6). There are concurrent finding by the Courts below on this aspect and the preponderance of the evidence was in support of the valid execution of agreements (Exh.P-1 and Exh. P-2). The second agreement (Exh.P-2) indeed was in affirmation and continuation of Exh.P-1. In view of the evidence on the record, I am left with no doubt whatsoever that correct appreciation of the evidence has been made by the Courts below.
In the original agreement, it was mentioned that he was in possession, who, however, appear to have delivered possession to Muhammad Ramzan, his brother, before execution of later agreement (Exh.P-2) and had undertaken to arrange delivery of possession at the time of registration of the sale-deed. It is of significance that he was disposing of only a part of his share in the joint holding which was well within his permissible right. He could undoubtedly dispose of land to that extent. It cannot be overlooked that all the three parties, namely, Abdul Shakoor, Abdul Ghafoor and Muhammad Ramzan were real brothers and appear to have acted on the basis of prior understanding and Abdul Shakoor undertook that he will get possession from Muhammad Ramzan and deliver it to Abdul Ghafoor at the time of registration of sale-deed. Since the contents and the terms of the agreements were clear and ascertainable, the agreement would not lose its efficacy nor frustrated and was enforceable in law. In Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189), it was observed that "It is true that grant of relief of specific performance is discretionary with the Court but this discretion cannot be exercised arbitrarily. The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find some thing in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it." Thus, on no sound basis factual or legal, the plaintiff-respondent could be refused enforcement of agreement. His suit was rightly decreed by the Courts below.
In view of the above, I find no justification for interference with the impugned judgment, as a consequence whereof the appeal as also the revision petition stand dismissed. No order as to costs.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Lahore 430
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
SHAHID MAHMOOD and another--Petitioners
versus
ADDL. DIRECTOR ANTI-CORRUPTION, MULTAN and 5 others--Respondents
W.P. No. 7197 of 2005, heard on 27.10.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 467, 468, 471, 420 & 161--Prevention of Corruption Act, 1947, S. 5(2)--Constitution of Pakistan, 1973--Art. 199--Allegation of fraud and corruption--Question of quashing FIR--Production of bogus and fake deed--Registration of three FIRs, two by the Revenue Authority and one by the beneficiary of the forged document--Quashment of FIR registered on the instance of DCO with the plea that FIRs could not be lodged the same occurrence--Validity of--Revenue officials and beneficiary of bogus document got registered two cases; one with the local police and the other with Anti Corruption Establishment apprehending their own prosecution on the charge of fraud, forgery and corruption--Record did not show as to why and for what consideration, police station and Anti-Corruption Establishment accommodated the principal accused persons and registered two FIRs at their instance for the offence allegedly committed by themselves--DCO rightly took cognizance of the matter and got registered the case against the all culprits, who played havoc with the revenue administration--No question of quashing the FIR at the instance of DCO--Petition dismissed. [Pp. 422 & 423] A
Mian Ahmad Mahmood, Advocate for Petitioners.
Mr. Mubashir Latif Gill, AAG for Respondents.
Date of hearing: 27.10.2008.
Judgment
Brief facts giving rise to this Constitutional petition may be given first.
Ahmad Hassan, Tehsildar/Consolidation Officer, Respondent No. 5 got registered case F.I.R. No. 103 dated 8.4.2003 under Sections 468/471/420 P.P.C. at Police Station City Ali Pur, Distt. Muzaffargarh with an allegation that Muhammad Zahid, Respondent No. 4 got entered/sanctioned Mutation No. 8868 dated 26.3.2003 on the basis of fictitious and bogus deed No. 2870 dated 22.12.1979 in his favour regarding 40 kanals agricultural land located in Murad Pur Janubi, Tehsil Ali Pur, Distt. Muzaffer Garh owned by Abdul Karim son of Abdus Sattar and others (not party to the petition) and thereafter sold 20 kanals of land out of 40 kanals in favour of Ahmad Yar (not party to the petition) vide Mutation No 8872 dated 27.3.2003.
On 29.7.2003 aforementioned Muhammad Zahid, respondent got registered case F.I.R. No. 48 of 2003 under Sections 161/420 P.P.C. read with Section 5(2) of the Prevention of Corruption Act, 1947 at Police Station Anti Corruption Establishment. Muzaffargarh with an allegation that his grand father gifted the disputed 40 kanals of land in his favour through registered gift deed No. 2870 dated 22.12.1979; that he paid Rs. 70,000/- to Malik Ahmad Hassan, Tehsildar; Rs.20,000/- to Javaid Iqbal, Kanoogo, petitioner No. 2, and Rs. 10,000/- to Muhammad Shahid, Patwari, Petitioner No. 1 and got entered/sanctioned the mutation in question in his favour on the basis of registered deed; that on the asking and advice of Malik Ahmad Hassan, respondent-Tehsildar, he alienated 20 kanals of land out of the total 40 kanals for Rs. 2,00,000/- vide Mutation No. 8872 dated 27.3.2003. but the sale price had been retained and misappropriated by the respondent-Tehsildar.
The Distt. Coordination Officer, Muzaffargarh got registered another case F.I.R. No. 16 dated 17.3.2005 under Sections 420/467/468/471 P.P.C. read with Section 5 (2) of the Prevention of Corruption Act, 1947 at Police Station Anti Corruption Establishment, Muzaffargarh against Muhammad Zahid, Ahmad Hassan, Tehsildar, Javaid Iqbal, Gardawar, Shahid Mahmood, Patwari and others after coming to the conclusion as a result of domestic inquiry that they all joined hands and deprived the original owners of their land through fraud and cheating after having got sanctioned mutations on the basis of fake and bogus gilt deed. The afore-mentioned Gardawar and Patwari have prayed for quashing of the F.I.R. registered at the instance of D.C.O, Muzaffargarh with the plea that it was not permissible under the law to lodge three F.I.Rs. about the same offence.
Before adverting to counter claims of both the sides, I find it convenient to bring on record the facts, which are not in dispute or disputable:--
(i) Muhammad Zahid, complainant of case F.I.R. No. 48/2005 got entered and sanctioned the mutations in question on the basis of fake fictitious and bogus gift-deed.
(ii) Shahid Mahmood, Patwari, Petitioner No. 1 entered the mutation in question on 18.3.2003 on the basis of fake and bogus registered deed dated 22.12.1979.
(iii) Javaid Iqbal, Gardawar, Petitioner No. 2 recorded comparison note on the disputed mutation.
(iv) Ahmad Hassan, Tehsildar/Consolidation Officer, Respondent No. 5 sanctioned the mutation in question on 26.3.2003 on the basis of bogus and fake document.
(v) Muhammad Zahid, beneficiary of the fake and bogus documents acquired interest in the land on 26.3.2003 and then alienated 20 kanals of land on the following day i.e. 27.3.2003 in favour of Ahmad Yar Jatt.
(vi) Muhammad Zahid, beneficiary of the forged, fake and bogus document succeeded to get registered case F.I.R. No. 48 of 2003 at Police Station Anti Corruption Establishment, Muzaffargarh against the revenue officials with the claim that he acquired ownership in the disputed land on the basis of genuine registered gift-deed despite knowing that the deed was bogus and fake.
(vii) Ahmad Hassan, Tehsildar who sanctioned the mutation in question on the basis of fake and bogus deed got registered case F.I.R. No. 103 of 2003 and attempted to assume the role of complainant.
A combined examination of the above said admitted state of affairs/record would provide a basis to say without any fear of contradiction that the revenue officials and Muhammad Zahid, beneficiary of bogus document got registered two cases; one with the local police and the other with Anti Corruption Establishment apprehending their own prosecution on the charge of fraud, forgery and corruption. The available record does not show as to why and for what consideration, Police Station City Ali Pur and Anti Corruption Establishment, Muzaffargarh accommodated the principal accused persons and registered two F.I.Rs. at their instance for the offences allegedly committed by themselves. The Distt. Coordination Officer, Muzaffargarh rightly took cognizance of the matter and got registered the case against all the culprits, who played havoc with the revenue administration. In the circumstances, no question of quashing the F.I.R. lodged at the instance of the D.C.O., Muzaffargarh would arise. The petitioners and beneficiary of fraud (Muhammad Zahid) won the favour of police and Anti Corruption Establishment and for this reason alone, I do not feel inclined to reward them with the relief prayed for.
For what has been stated above, the writ petition being without substance is dismissed.
For the reasons recorded in the preceding paragraph, case F.I.R. No. 103/2003 registered with Police Station Ali Pur, Distt. Muzaffargarh and pending trial with Area Magistrate stands transferred to the Court of learned Special Judge Anti Corruption, Multan. The conduct of the Anti Corruption Establishment, Muzaffargarh does not appear to be above board. Admittedly, Muhammad Zahid got sanctioned the mutation in question with the active support of the revenue officials on the basis of fake and bogus document. The Anti Corruption Establishment introduced Muhammad Zahid as the complainant. The available record does not tell as to what ground/reasons weighed with the Anti Corruption Establishment, Muzaffargarh while introducing Muhammad Zahid as the complainant, who undoubtedly and admittedly got sanctioned the mutation in question on the basis of fake and bogus gift-deed. This is a conduct rather mis-conduct on the part of the local Anti Corruption Establishment, which cannot/should not be approved. A copy of this order may be sent to the Director General Anti Corruption Establishment, Punjab, Lahore (by name) for necessary action on administrative side.
In the given circumstances, the Director General Anti Corruption Establishment, Punjab, Lahore is expected to make over investigation of above said cases to an officer of good repute not amenable to any pressure.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Lahore 434
Present: Kh. Farooq Saeed, J.
AHSAN-UL-HAQ BHATTI--Petitioner
versus
FEDERAL BOARD OF REVENUE, ISLAMABAD through its Chairman and 5 others--Respondents
W.P. No. 14360 of 2008, heard on 22.1.2009.
Sales Tax Act, 1990 (VII of 1990)--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Deduction of with holding tax through electricity bills as unlawful and ultra vires to Power Federal Board of Revenue--Minimum fixed charges--Scope and purpose--Minimum fixed charges were not only a sort of security for retention of electricity connection--Whenever the petitioner opted to utilize the electricity he might do so by just intimating the WAPDA authorities of his intention that the unit was coming into production--There was no electric supply while the issue was minimum fixed charges--Interference was not justified. [P. 436] A & B
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 235(1)(2)--Constitution of Pakistan, 1973--Art. 199--Deduction of tax on account of electricity bill--Validity of--Deduction as per Section 235(1) was on account of electricity bill of the commercial or industrial consumer--However, the instructions for the deducting authority which is provided in S. 235(2) is that the advance tax shall be charged in the manner electricity consumption charges are charged--Deduction being subject to the manner of consumption of electricity, there was no question of charge in the instant case, wherein the electricity consumption was zero--Deduction from his bill was unlawful and un-just and should remain as long as he did not consume the electricity. [Pp. 437 & 438] C & D
Principle of Interpretation--
----Basic principle of interpretation which is called the golden principle is to remain within the mandate of law and not to go beyond its language--Interpretation of High Court being at per with the fundamental rights as well as other accepted norms of justice is to be applied as it is. [P. p] E
Kh. Saeed-uz-Zafar, Advocate for Petitioner.
Mr. Muhammad Nawaz Waseer, Standing Counsel for Respondent.
Dr. Muhammad Irtaza Awan, Advocate for Respondent No. 5.
Date of hearing: 22.1.2009.
Judgment
Through this writ petition direction has been sought for declaring the deduction of with-holding tax through electricity bills as unlawful and ultra vires to the powers of the Federal Board of Revenue.
The petitioner has taken a number of arguments including that the Federal legislative list does not include charge of with-holding tax in the manner the present petitioner is being subjected to etc, but, however, since the matter in respect of this petitioner otherwise is clear and simple, the same is decided accordingly.
Brief facts are that the petitioner is a Steel Re-rolling Mill which was in operation up till the last 9/10 months. Subsequent to the same, the production having been discontinued, the petitioner requested WAPDA authorities to dis-continue its electric supply, however, retained the right to subsequently re-use and is paying the fixed charges. The said fixed charges are being regularly paid. However, the Government having imposed with-holding income tax as well as sales tax, the same have been added both the taxes in addition to the fixed electricity charges.
As per bill attached with the present writ petition, the petitioner has been directed to deposit Rs.50,000/- as fixed charges on which Rs. 8000/- have been added as GST and Rs. 5000/- as income tax. Thus, the total amount of payment has been claimed at Rs.63,001/-. Rs. 1/- in the above figure is on account of billing adjustment.
The arguments of the petitioner are three fold:--
(i) It is a case of fixed charges and the Hon'ble Supreme Court of Pakistan has held that since there is a general crisis of electricity in Pakistan, hence, even fixed charges should be 50 % of the normal rate;
(ii) The petitioner having not consumed any electricity as is evident from the bill itself, the charging provision of Section 3 of the Sales Tax Act, 1990, does not come into operation. As a result, the income is not subject to charge at all, hence, there is no question of with-holding tax on the same;
(iii) For the same reasons the petitioner having not consumed any electricity the provision of Section 235 of the Income Tax Ordinance, 1979, is also inapplicable.
So far as the first preposition is concerned, the petitioner relies on (1999 S.C.M.R 494) re: "Water and Power Development Authority and another Vs. M.N Steel Rerolling Mills and 23 others".
The arguments are purely a misconception. The minimum fixed charges are only a sort of security for retention of electricity connection. It means that when ever the petitioner opts to utilize the electricity he may do so by just intimating the WAPDA authorities of his intention that the unit is coming into production. The judgment referred is distinguishable. The issue discussed over there is "maximum fixed charges" payable to WAPDA by the consumer of electricity. In the present case, there is no electric supply while the issue is `minimum fixed charges'. The argument, therefore, is repelled and no interference is made to the said extent.
6A. Coming to the charge of sales tax, it will be appropriate to reproduce the charging provision which is Section 3 of the said Act. The same reads as follows:--
"Section 3"
"Scope of tax--(1) Subject to the provisions of this Act, there shall be charged, levied and paid a tax known as sales tax at the rate of [fifteen] per cent of the value of---
(a) taxable supplies made [\ \ ] by a registered person in the course of furtherance of any [taxable activity] carried on by him; and
(b) goods imported into Pakistan."
The charge is very clear and the language therein does not leave any doubt so far as the present controversy is concerned.
"The definition is inclusive, thus obviously of wide import. However, certain examples in terms of goods acquired produced or manufactured in the course of business, auction or disposal of goods to satisfy a debt owed by a person, possession of taxable goods held immediately before a person or such other transaction as the Federal Government may, by Notification in the official Gazette specify makes it particular to a great extent. It is true that the definition being inclusive can cover more items. However, the thing which requires strict application of the above provision of law is that the said supply should be the disposition of goods and in furtherance of a business. It means it shall include those goods which are sold in continuation of the business being carried on by the said taxpayer."
The charge, therefore, is only on the manufacturing and supply of goods and goods supplied in furtherance of said business. This situation is not applicable on the facts of this case.
Even if this Court considers the electricity supply to be as `goods' (for argument sake) the petitioner has not consume even a single unit of the same. Thus, there is no concept of an actual supply to him or any additional transfer in furtherance thereof. The charge of with-holding tax, in these circumstances, therefore, is held to be as not covered within the provision of Sales Tax Act at all. The deduction of with-holding, therefore, can easily be held to be as confiscatory and not within the mandate provided by the Sales Tax Act.
Similar is the condition in respect of the charge under Section 235 of the Income Tax Ordinance, 2001. For the ready reference the provision thereof also are reproduced:--
"Section 235"
"Electricity consumption:--(1) There shall be collected advance tax at the rates specified in Part-IV of the First Schedule on the amount of electricity bill of a commercial or industrial consumer.
(2) The person preparing electricity consumption bill shall charge advance tax under sub-section (1) in the manner electricity consumption charges are charged.
(3) Advance tax under this section shall not be collected from a person who produces a certificate from the Commissioner that his income during tax year is exempt from tax"
The above provision of law is very clear in its application. In addition to the discussion made in respect of Sales Tax, the above with-holding provision in itself does not give rise to any such deduction as is being made in respect of this case. The deduction as per Section 235 (1) is on account of electricity bill of the commercial or industrial consumer. However, the instructions for the deducting authority which is provided in sub-section (2) of Section 235 is that the advance tax shall be charged "in the manner electricity consumption charges are charged". The Deduction being subject to the manner of consumption of electricity, there is no question of a charge in this case, wherein, the electricity consumption is zero.
It does not need any reference to quote that the basic principle of interpretation which is called the golden principle is to remain within the mandate of law and not to go beyond its language. The language being very clear and also our interpretation being at par with the fundamental rights as well as other accepted norms of justice is to be applied as it is.
The obvious conclusion, therefore, is that the with-holding tax collected from the present writ petitioner under Section 235 also is not within the mandate provided therein. The deduction from his bill is un-lawful and un-just and shall remain so long as he does not consume the electricity.
This Court, therefore, without any further discussion or dilation holds that:--
(i) the charge of fixed minimum charges by the LESCO is fully justified and needs no interference;
(ii) the charge of with-holding tax in terms of GST as well as income tax both are against law of Sales Tax and law of Income Tax of Pakistan, hence, are directed to be deleted from the electricity bills of the petitioner.
(M.A.K.Z.) Petition disposed of
PLJ 2009 Lahore 438
Present: Zubda-tul-Hussain, J.
Mst. RABIA KHIZAR and another--Petitioners
versus
SHO, POLICE STATION CHOOCHAK DISTRICT, OKARA and 6 others--Respondents
W.P. No. 17027 of 2008, decided on 29.12.2008.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-B--Abduction--Plea of marriage--Puberty--Quashment of FIR--Petitioner had already attained the age of majority as report of S.M.B. and even if she was not yet over the age of 18 years she was admittedly a pubert lady and as such she was entitled to enter into a contract of marriage by her choice--Allegation of abduction and the occurrence as alleged in the FIR having totally been refuted by the alleged abductee--Impugned FIR had no basis for legal proceedings--FIR was quashed.
[P. 441 & 442] A & B
Mian Abdul Khaliq, Advocate for Petitioners.
Mr. Hassan Ahmad Khan Kanwar, Advocate for Complainant.
Rana Abdul Hameed, Additional Advocate General Punjab for Respondents.
Date of hearing: 29.12.2008.
Order
Mst. Rabia Khizer Petitioner No. 1 has claimed that she married Inam Ullah alias Saeed/Petitioner No. 2 of her own free will but this matrimony being without the blessing of the private respondents especially Respondent No. 3, Khizer Hayat who is father of the Petitioner No. 1, a false case under Section 365-B PPC has been registered at the instance of the said Khizer Hayat at Police Station Choochak District Okara vide FIR No. 619 dated 16.11.2008. The Petitioner No. 1 has completely refuted the allegation that she has been abducted by the Petitioner No. 2 and the other persons nominated as accused in the FIR. The petitioners have accordingly filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 for quashment of the said FIR.
It is an admitted fact that the Petitioner No. 1 Mst. Rabia Khizer also filed a complaint before the Illaqa Judicial Magistrate against her father, i.e. respondents 3 and 5 other persons under Sections 506, 148 and 149 PPC wherein she reiterated the factum of her marriage with the Petitioner No. 2 and accused the said persons for causing threats to her life. She also recorded her statement before the learned Magistrate in support of the complaint. It has been argued on behalf of the petitioners that in the wake of assertions of the Petitioner No. 1 not only the FIR is totally baseless and source of misuse of process of law but during the investigation of the case has also been found false.
The learned counsel for the Respondent No. 3 has questioned the maintainability of the writ petition on the ground that the Petitioner No. 1 by filing the aforesaid complaint under Section 506 PPC has availed of an alternate remedy and before the conclusion of the proceedings of the complaint the writ petition was not proceedable. The learned counsel pointed out that the said complaint was filed on 18.11.2008 whereas the present constitutional petition has been instituted subsequently on 26.11.2008, which according to him, was sufficient to show that the petitioners were prosecuting their cause simultaneously at two different forums. The learned counsel then vehemently argued that the Petitioner No. 1 i.e. Mst. Rabia Khizer is not sui juris as she is minor by age, not competent to enter into a contract of marriage of her own free will.
I am afraid, the contention of the learned counsel for the respondents have no bearing on the facts and circumstances of the case. The institution of the complaint under Section 506 PPC is not alternate remedy but is based on absolutely different alleged cause of action. The relief prayed for in the instant writ petition, is not admissible in the complaint case. The objection against the maintainability of the writ petition on this score is, therefore, not tenable.
Regarding the age of the Petitioner No. 1 Mst. Rabia Khizer, there are two fold aspects of the matter. The learned counsel for the respondents has relied upon the School Leaving Certificate showing the date of birth of the Petitioner No. 1 in the year 1997. The other aspect of the matter is that under the order of this Court the Petitioner No. 1 was got medically examined by the Special Medical Board constituted for the purpose. In the opinion of the Board, on physical, Radiological and Dental Examination, the Petitioner No. 1 Mst. Rabia Khizer was found to be of 18/19 years of age.
There is no doubt that according to the School Leaving Certificate the Petitioner No. 1 has not yet attained the age of majority but at the same time it is not disputed that she is a pubert lady which facts is further strengthened by the unanimous opinion Medical Board indicating her age as 18/19 years. By virtue of this report she has also attained the age of majority but even otherwise she being pubert lady shall be deemed to be sui juris and is entitled to enter into a tie of marriage of her own volition. She has completely refuted the allegation of her abduction and, therefore, the allegation contained in the FIR including the alleged mode and method of abduction are baseless in the given situation, and there hardly remains occasion or chance of conviction of the accused in the aforesaid FIR No. 619 of 2008 when the alleged abductee has denied the allegation of abduction and has admitted her Nikah/marriage with the Petitioner No. 2. The prosecution of the case under the aforesaid FIR will be nothing but an abuse of process of law.
It is true that if prima facie an offence is made out of the contents of the FIR, the ordinary course of trial before the competent Court should not be allowed to be deflected by resorting to constitutional jurisdiction of the High Court but where the extra ordinary circumstances exist on the face of the record and the spouses have openly admitted and pronounced their valid marriage which is also supported by the formal Nikah Nama, the offence alleged against them would not be deemed to have been committed. In such a situation the extra ordinary jurisdiction under Article 199 of the Constitution can be exercised to the rescue of the petitioners because when the law does not prohibit the petitioners from marrying each other and they have entered into a valid contract of marriage, it is the duty of the State to protect the marriage and the family and at the same time it is the duty of the Court to satisfy itself that fundamental rights guaranteed to the petitioners under the Constitution are not infringed and violated by any Government or State Functionary. Reliance in this behalf may be placed upon the case of Mst. Dilshad Akhtar and another Versus State etc. (PLJ 1996 Lahore 91).
The Nikah Nama, as already stated, is admitted by the Petitioners No. 1 and 2 and the law does not permit the third party to challenge its validity when the contents thereof are admitted by the husband and the wife. The contention of the learned counsel for the respondents that the Nikah of the Petitioner No. 1 was invalid for want of permission of "Wali" and the marriage of the petitioner was also not valid in the eye of law is without any force. Nikah of sui juris girl could not be invalid for the reason that the "Wali" had not extended his permission. It may also be mentioned that the petitioners have personally appeared before the Court and they have testified the factum of their marriage. The judgments in the case of Shabbir Hussain alias Papu Versus Station House Officer, Police Station Bumbanwala District Sialkot and 3 others (2006 P.Cr.L.J 1260) and Muhammad Musa Versus The State and 5 others (2007 P.Cr.LJ 1342) relied upon by the learned counsel for the petitioners are on all fours to the case of the petitioners.
Even if the contention of the learned counsel for the respondents regarding the age of the Petitioner No. 1 Mst. Rabia Khizer is not disputed, the marriage contracted by the petitioners would not be invalid or void. It was held in the case of Mst. Hajran Khatoon and another Versus Station House Officer, Police Station Fateh Jang, District Attock and 2 others (PLD 2005 Lahore 316) that the female though not having attained the age of majority had attained puberty could not be compelled to sever her Nikah/marriage entered by her own free will.
In all, the aforesaid cited judgments, the FIRs registered against the accused were quashed by accepting the constitutional petition. In the instance case, as already stated, firstly the Petitioner No. 1 Mst. Rabia Khizar has already attainted the age of majority as per report of the Special Medical Board and even if she is not yet over the age of 18 years she is admittedly a pubert lady and as such she was entitled to enter into a contract of marriage by her choice, with the Petitioner No. 2. The allegation of abduction and the occurrence as alleged in the FIR having totally been refuted by the alleged abductee, the impugned FIR has no basis for legal proceedings. The writ petition, is therefore, accepted and to save the petitioners from the abuse of process of law the FIR in question is quashed.
Before parting with the order it may also be mentioned that by an order dated 27.11.2008 passed by this Court the Petitioner No. 1 Mst. Rabia Khizer was directed to be lodged at Darulaman. She has, however, today stated that she does not want to remain in the Darulaman any more and she wants to accompany of her husband. As the FIR has already been quashed and the petitioner Mst. Rabia Khizer has been found to be sui juris, she is allowed to proceed according to her own free will. The order for her retention in the Darulaman is vacated.
(M.A.K.Z.) FIR quashed.
PLJ 2009 Lahore 442
Present: S. Ali Hassan Rizvi, J.
ABDUL RASHEED--Petitioner
versus
DUBEER AHMED and 12 others--Respondents
W.P. No. 3979 of 2009, decided on 2.3.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application for amendment in the plaint--Written agreement instead of oral agreement of sale--Application was dismissed--Revision petition was dismissed--Misplaced of agreement--Volte face cannot be allowed to be pleaded--Validity--Suit was brought on the basis of alleged oral agreement of sale and now when suit was at the stage of recording evidence and one witness has been recorded on his behalf, he wanted to introduce a fact that his claim was based on written agreement of sale--Claim was based on written agreement and that the original was misplaced somewhere--Version in the application for amendment was that he be allowed to base his claim on written agreement of sale--Such a volte face cannot be allowed to be pleaded--Litigant alleging contradictory things on material questions, they say, cannot be heard--Orders were sound and did not call for interference in writ jurisdiction. [P. 443] A
Mr. Arif Mehmood Rana, Advocate for Petitioner.
Date of hearing: 2.3.2009.
Order
In a suit for specific performance brought by the petitioner on 12.07.2004, evidence was being recorded when he moved an application under Order VI Rule 17, CPC seeking amendment in the plaint so as to assert that his claim was based on a written agreement instead of oral agreement of sale. The learned Civil Judge by order dated 01.01.2009 dismissed the application. Revision petition filed thereagainst was also dismissed by the learned Additional District Judge on 02.02.2009.
Learned counsel for the petitioner contended that the amendment sought for neither changed the character of the suit nor did it have any bearing on the subject-matter and that even at the final stage, an amendment in the pleadings could be allowed.
There is absolutely no cavil with the proposition tried to be canvassed by learned counsel for the petitioner. However, the fact remains that the suit was brought by the petitioner on the basis of alleged oral agreement of sale and now when the suit was at the stage of recording evidence and one witness has also been recorded on his behalf, he wanted to introduce a fact that his claim was based on a written agreement of sale. According to him, this agreement was already misplaced somewhere and was located afterwards. It may be noted that it was never his case that his claim was based on a written agreement and that the original was misplaced somewhere. His version in the application for amendment was that he be allowed to base his claim on the written agreement of sale. Such a volte face cannot be allowed to be pleaded. Earlier, when his claim was based on an oral agreement of sale, the same was duly verified on oath. Now he was taking a shift. A litigant alleging contradictory things on material questions, they say, cannot be heard. Both the Courts below rejected his application for amendment. Their orders were sound and did not call for interference in writ jurisdiction. Dismissed in-limine.
(R.A.) Petition dismissed
PLJ 2009 Lahore 443
Present: Mian Saqib Nisar, J.
ZAHIDA BIBI (WIDOW) and 4 others--Petitioners
versus
NEAR SULTANA (WIDOW) and 15 others--Respondents
W.P. No. 141 of 2006, heard on 4.12.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 115--Constitution of Pakistan 1973, Art. 199--Constitutional petition--Judgment & decree on the basis of fraud--Challenge to--Dismissal of petition--Conceding statement had not been recorded by presiding officer of the Court--Name of the counsel out of the two, who was present, was not mentioned--Counsel was never examined as witness--Only the number of NIC was mentioned without retaining its copy on record--There was no order on record that the referee was ever appointed or was directed by the Court to act as so--Such facts spoke loud about fraud but was glaringly ignored by lower Courts on the basis of non-reading or misreading of evidence--Petition accepted. [Pp. 447 & 448] A, B & D
Conciliation Committee--
----Part of Secretary--Matter was before the Secretary--Validity--Whereas the secretary is not a part of conciliation committee under law and had no jurisdiction to proceed with it. [P. 449] F
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Decree against a dead person--Legal heirs were not brought on record--Validity--During the proceeding respondent died and admitted legal heirs were not even brought on record, and even it was not spelt out from record--Held: If the facts of death was disclosed to the Court before passing of the decree, therefore, decree was obtained against a dead person. [P. 448] C
Unsigned Document--
----Unsigned document by Chairman Union Council--No copy of notice was brought on record--Neither any proof who authored the notice nor any entry about receipt of the notice in record of union council--No postal record was produced--Validity--All the documents of the proceedings before union council are not signed by the chairman and upon inquiry it was found that such proceedings were not genuine, thus no sanctity in law can be attached thereto. [P. 449] E
Miss Shazia Hassan, Advocate for Petitioners.
Mr. Ahmad Waheed Khan, Advocate for Respondents.
Date of hearing: 4.12.2008.
Judgment
All the petitions bearing W.P. No. 141/2006, C.R. No. 39/2006 and C.R. No. 379/2006 involve common questions of law and facts, therefore, are being disposed of together.
Haji Muhammad Rafique died on 12.10.1999; he admittedly was survived by six sons and two daughters from his first wife, namely, Mst. Saira Bibi, while there is a dispute between the parties if he had divorced his second wife Mst. Zahida Bibi and Sohail Rafiq is his son or not from Zahida Bibi. Anyhow, after the death of Muhammad Rafiq, a Mutation No.5352 was attested on 23.12.1999, whereby his estate (the suit property comprising of land and building) inter alia, was mutated in favour of Mst. Zahida Bibi, Sohail Rafique, Muhammad Shafique (sons), Shahida Rafique and Sobia Rafique (daughters), (the children born to Zahida). The respondents, who are the sons from Mst. Saira Bibi, filed two suits claiming that Zahida Bibi was divorced by the Rafique during his life time, while Sohail is not his son, as he was born to Zahida on account of her previous marriage with one Sarwar Ali, therefore, both are not entitled to the inheritance. The two suits were consolidated.
During the pendency of the suits, it came to the notice of the petitioners that the respondents had earlier filed a suit against Muhammad Rafique and procured a consent decree dated 26.10.1999 in their favour, according to which the disputed property was declared to have been gifted to them by Rafique. The petitioners challenged this judgment and decree through filing an application under Section 12(2) C.P.C.
After the trial in all the matters, the suit of the respondents that Mst. Zahida Bibi had been divorced by the deceased Muhammad Rafique during his life time was allowed, while their claim that Sohail Rafique was not the son of Muhammad Rafique, was disallowed by the learned trial Court, vide judgment and decree dated 11.03.2005; while the application of the petitioners under Section 12(2) C.P.C. was also dismissed the same day. Aggrieved, the petitioners filed one appeal and a revision (challenging the order under Section 12(2) C.P.C), whereas the respondents filed one appeal; all the above have been dismissed on 01.10.2005 by the learned Addl. District Judge maintaining the judgment/order and decrees of the learned trial Court. Hence W.P. No. 141/2006 arises out of the proceedings under Section 12(2) C.P.C., C.R. No. 39/2006 is against the judgment and decree in the suit of the respondents declaring that Mst. Zahida was divorced by the deceased, while C.R. No. 379/2006 has been filed by the respondents against the judgment and decree whereby Sohail Rafique was declared to be the son of Muhammad Rafique.
It is argued by the learned counsel for the petitioners that the two Courts below have failed to correctly read the record of the proceedings under Section 12(2) C.P.C. and that of the suit of the respondents decreed in their favour on 26.10.1999, which on the face of it speaks volumes about their fraud etc. practiced in obtaining the said decree, but has been ignored; the counsel for the parties have also made submissions in attacking and defending the impugned orders/judgments and decrees, which shall be duly reflected in this judgment.
Heard. The suit by the respondents was filed against Muhammad Rafique on 26.07.1999 and summons/notices were directed to be issued to him for 28.07.1999, from the record it transpires that neither those were issued nor were served upon him, rather Muhammad Rafique allegedly of his own appeared before the Court on the said date, filed a conceding written statement through his two counsel and made an oral statement before the Court as well, learned counsel for the respondents, however, states that the suit was not decreed upon the conceding statement alone, but is based upon the decision of the referee as well. Anyhow, the case was adjourned for 18.09.1999 for final arguments, whereafter for the same purpose it was postponed to 01.10.1999; on this date the record reveals that following order was passed:--
On the adjourned date, a "faisla Referee" was filed by Ijaz Khalid Cheema, Advocate; one or two adjournments were granted for submission of the proof of Rafique's ownership qua the property and ultimately the judgment reproduced below was passed on 26.10.1999:--
"The suit was contested by the defendant. The parties, however reached a compromise to decide the case through referee. Ch. Ejaz Khalid Cheema, Advocate was appointed referee by the parties. The learned referee filed his award on 8.10.99 in favour of the plaintiffs. The award operates to create right, title and interest in property, therefore it is registerable under the provisions of Sec: 17 of Registration Act read with Sections 14, 17 and 20 of the Arbitration Act 1940. This suit of declaration is decreed on the basis of award dated 8.10.99. Since the decree is based upon the award, it shall be registerable under the provisions of Registration Act within four months. No order as to costs. File be consigned to the record room."
It may be pertinent to state here that the suit was never contested by Muhammad Rafique, as is mentioned in the opening part of the noted judgment, rather as per his alleged oral and written statement he conceded the gift in favour of the respondents; besides the "faisla" is only confined about providing future needs of Muhammad Rafique; there is no mention in the "faisla" if the property was gifted to the respondents (plaintiffs of that case), but strangely the Court while passing the judgment dated 26.10.1999 misread the "faisla" in this behalf; illegally considered it as an award, whereas it is not, and based the judgment and decree thereupon.
Besides the above, the notable facts, which highlights that the decree dated 26.10.1999 was not procured by the respondents in a lawful manner, rather is tainted by fraud and misrepresentation, are that the suit was instituted on 26.07.1999, in which notices/summons were directed to be issued to Muhammad Rafique for 28.07.1999, there is no proof if those were issued or served upon him; still from the record he is shown to have appeared on the said date and allegedly filed a written statement admitting the gift, an oral statement to the same effect was also made by him, though there was no such occasion and requirement of such statement in the presence of the written statement; this obviously is an overdoing. However, in both these statements some extraneous facts, such as about the divorce to Zahida and that he only has one son and two daughters from the marriage and about his maintenance claim from the income of the said property were also mentioned, meaning thereby that an abortive attempt was made to exclude Zahida and Sohail Rafique from his inheritance, which in the circumstances of the case was not relevant to be mentioned in the written statement/oral statement and undoubtedly seems to be with ulterior object and mala fide intention. The written statement has been filed on behalf of Muhammad Rafique, through M/s. Ch. Muhammad Afzal Cheema and Ch. Muhammad Rehmat Ali Khan, Advocates, but they have not been examined to prove, if it was prepared by them for and on behalf of Muhammad Rafique and upon his instructions and signed/verified by him, besides it is not disputed by the counsel for the respondents that the power of attorney of the two named lawyers is not on the record. Interestingly, the conceding statement of Muhammad Rafique has not been recorded by the Presiding Officer; the name of the counsel out of the two who was present at that time is not mentioned, the said counsel has not been examined as a witness to depose if that statement was made by Rafique, only the National Identity Card No. 302-30-575705 of Rafique is mentioned at the end of the statement without any copy having been retained on the file; even it is not noted by the learned Judge or the Reader that Muhammad Rafique was identified on account of the N.I.C. Mr. Ijaz Khalid Cheema, who is stated to have acted as a referee between the parties, again has not been examined by the respondents to prove either the agreement for reference dated 28.07.1999 or his "faisla" Exh.R 10; moreover, in the opening line of his "faisla" he states that--
There is no order on the record if he was ever appointed or was directed by the Court to act as a referee in the case.
The view formed by the Courts below that it was the duty of the petitioners to have proved that Muhammad Rafique did not file the written statement and appeared before the Court and they should have got his signatures and thumb impressions examined through expert and that the statement of the Reader of the Court, namely, Muhammad Aslam/RW2 has established that it was Muhammad Rafique, who appeared and recorded his statement, is absolutely misconceived, because the statement of the petitioners that Muhammad Rafique has not filed his written statement and appeared before the Court, was sufficient to discharge the negative burden and it was thereafter incumbent upon the respondents to positively establish that it is he who had come to the Court despite the non-issuance and non-service of the summons/notices and filed the written statement, made an oral statement, engaged the two counsel, entered into an agreement for appointing Mr. Ijaz Khalid Cheema as a referee etc., but as has specified no such positive evidence was led. The statement of RW2 does not help the case of the respondents as admittedly Muhammad Rafique was not personally known to him and there is no noting on the file if Muhammad Rafique was identified on the basis of the Identity Card; his bald statement much after the happening of the event, does not improve the respondents' case. Besides, it is the respondents, who had to seek the expert opinion about the signatures/thumb impressions of Muhammad Rafique on his written/oral statements and the lapse on their part cannot be considered as a vice of the petitioners' case. It may not be out of place to mention here, that before the decree dated 26.10.1999, Muhammad Rafique has died on 12.10.1999, and his admitted legal heirs such as two daughters, namely, Shahida Rafique and Sobia Rafique and son Muhammad Shafique were not even brought on the record, and even it is not spelt out from the record, if the fact of his death was disclosed to the Court before the passing of the decree, therefore, the decree was obtained against a dead person.
The above mentioned facts speaks loud about the fraud practiced by the respondents in obtaining the impugned judgment and decree, but have been glaringly ignored by the two Courts below, therefore, the case squarely falls within the purview of non-reading and misreading of the evidence on the record, thus the impugned orders, are set-aside with the result that the application of the petitioners under Section 12(2) C.P.C. shall be deemed to have been accepted and they shall be entitled to file a written statement in the matter and the case should be proceeded on merits.
In C.R. No. 39 of 2006, the case set out by the respondents in the plaint is, that Muhammad Rafique on 18.03.1999 had divorced Mst. Zahida Bibi, sent a notice of divorce followed by another dated 16.05.1999 repeated to the Chairman, Union Council, upon which the proceedings were conducted and as no reconciliation could be achieved, Talaq became effective on 21.08.1999. In the written statement Mst. Zahida Bibi denied the contents of the relevant paragraphs and stated that the Chairman, Reconciliation Committee enabled a patch up between her and Muhammad Rafique, however, she categorically controverted that the notice of Talaq dated 16.05.1999, which she claimed to be based upon fraud and categorically mentioned that she had made an application to the Chairman, Union Council, about the notice and the so-called proceedings on that account, who on inquiry held that all this was fake and fictitious. On the basis of the pleadings of the parties, issues were framed, one of the respondents Iqbal Ahmad appeared as PW1 and deposed that Muhammad Rafique had divorced Mst. Zahida Bibi during his life time. In the cross-examination he states that he has been appearing before the Committee along with his father and that the reconciliation proceedings took place in March 1999 before the Secretary, whose name was Toor. In documentary evidence the respondents produced the alleged notice of Talaq dated 16.05.1999, in which it is mentioned that prior to this a notice dated 18.03.1999 was sent to the Chairman through post; but, on inquiry it transpired that the same is not available on the record, therefore, another notice as reminder is being sent. Exh.P2 is a copy of the register, in which an entry dated 20.05.1999 appears envisaging about a divorce matter pertaining to Haji Muhammad Rafique against one Majeedan Bibi; Exh.P3 is the alleged proceedings of the Chairman before the Conciliation Committee and Exh.P5 is some statement of Haji Muhammad Rafique dated 19.08.1999 before the Committee, that he does not want a reconciliation, and therefore, the matter be finalized; Exh.P4 is the Divorce Certificate while Exh.P6 is allegedly a statement of Mst. Zahida Parveen that she wants to patch up with her husband, which allegedly is thumb marked by her. The other documentary evidence pertains to the proceedings of the suit for declaration, which the respondents filed against their father, in which the decree dated 26.10.1999 was alleged to have been passed in their favour. There is absolutely no proof on the record if Muhammad Rafique had pronounced Talaq upon Zahida on 18.03.1999. No independent witness in this behalf has been examined, though he in the cross-examination has stated that
The advocate has not been examined; no copy of this notice has been brought on the record; there is neither any proof who authored the notice, it was sent/posted to Zahida or the Union Council nor is there any entry about the receipt of the notice in the record of the Council. About the notice dated 16.03.1999 it is not established if it bears the signatures or thumb impressions of Rafique, it is authored by him and if not who is the scribe of the same, when it was sent/posted to Zahida or the Union Council. No postal record has been produced. The only reason that an entry appears in the register of Union Council does not mean if it is the notice which was sent by Rafique, because the copy of the notice produced does not carry the signatures of the Chairman, rather allegedly of the Secretary who has not been examined. Moreover, all the documents of the proceedings before the Union Council are not signed by the Chairman and upon the inquiry it has been found that such proceedings are not genuine, thus no sanctity in law can be attached thereto. Even otherwise, an important admission has been made by PW1/Iqbal Ahmad in his cross-examination that the proceedings before the Committee took place in March 1999, whereas according to those produced by the respondents it pertains to May 1999; even according to Iqbal Ahmad, the matter was before the Secretary by the name of Toor, whereas the Secretary is not a part of the Conciliation Committee under the law and had no jurisdiction to proceed with it. Even otherwise, as mentioned earlier according to the order of the Chairman, Conciliation Court/Administrator, Municipal Committee, Daska, dated 18.01.2000 (Exh.D13), passed on the application of Mst. Zahida Bibi (Exh.D14) dated 21.12.1999, such proceedings have been found to be absolutely fake. I am not convinced by the argument of the learned counsel for the respondents that as Zahida Bibi in the written statement has admitted the Talaq, therefore, the proceedings and the Certificate of Talaq should be considered valid; in this regard, it may be specified that the admission is qualified and it is stated that the matter was patched upon on the intervention of the Chairman, Conciliation Committee. This when considered in the light of the statement of PW1 that the proceedings took place in March 1999, seems to be the true position. All these important aspects have not been considered by the two Courts below and have totally ignored to read the evidence in the legal perspective. As admittedly Rafique and Zahida were married and the respondents have failed to prove the termination of the marriage during the lifetime of the former, therefore, the suit of the respondents was liable to be dismissed. Resultantly, by allowing this petition the impugned judgments and decrees of the two Courts below are set-aside and the suit of the respondents is dismissed.
(J.R.) Order accordingly.
PLJ 2009 Lahore 451
[Rawalpindi Bench Rawalpindi]
Present: Syed Hamid Ali Shah, J.
SAFDAR HUSSAIN--Petitioner
versus
M. AZAM KHAN--Respondent
C.R. No. 251 of 2007, heard on 16.10.2008.
Land Records Manual--
----Para 7.4--Wajibul Arz--Procedure for preparation of--Held: Procedure for preparation of wajibul Arz is mentioned in Para 7.4(E) of Land Records Manual which is to be in accordance with form XXXVI of West Pakistan Land Revenue Rules, 1968--Wajibul Arz describes the rights and liabilities among the villagers inter se, like enjoyment of proceeds of common land and rights of grazing or common land and so it carries statutory presumption of correction.
[P. 456] A & B
Land Records Manual--
----Chiragah--Whether partionable--Held: Properties of shamilat which had been excluded from partition are specified and are pond, passage roads, khanqah, graveyard and residential land under the use of village population--As mountain/chiragah had not been mentioned in this category as per shart Wajibul Arz, so it is partionable. [P. 457] C
Transfer of Property Act, 1882--
----S. 41--Qanun-e-Shahadat Order, (10 of 1984), Art. 101--Document of 30 years old--Presumption of truth--Held: Partition proceeding regarding shamilat land was carried with the consenses of parties without any objection and the mutation was attested on 19.5.1990--Public record more than 30 year old, so having presumption of truth could not be termed as fraudulent--Moreover ownership had changed hands, on a number of occasions--Sale in favour of bona fide purchaser on the basis of longstanding entries in the revenue record was protected under S. 41 of Transfer of Property Act, 1882--Concurrent judgments of Courts were upheld--Petition dismissed.
[P. 458] D, E & F
PLD 2005 SC 418; 2000 MLD 1581; PLD 1949 Lah. 352; 1990 MLD 223; 1997 CLC 423; PLD 1985 Rev. 6; PLD 2001 Lah. 481; 2003 SCMR 1857; 1994 CLC 1419; AIR 1930 Lah. 150; PLD 1954 Lah. 356 & AIR 1979 SC 861, ref.
Mrs. Shaista Altaf, Advocate for Petitioner.
Sardar Muhammad Ghazi, Advocate for Respondent
Date of hearing: 16.10.2008.
Judgment
Backdrop of the instant controversy, in a narrow compass, is that land measuring 3277 kanals and 3 marlas, comprising Khasra Nos.703 to 712, situated in village Dhoke Pore Tehsil Taxila, District Rawalpindi, was Shamilat land. Land measuring 1474 kanals and 2 marlas, out of the said land, was meant for Guzara Chirahgah
" ", vide Settlement ( ) for the year 1905-06. This chirahgah, as per shart wajbul arz " ", is reserved for the general use of the residents of the village. Predecessor in interest of Respondents No. 1 to 31, vide Mutation No. 55, got sanctioned a mutation of partition on 19.05.1910, based upon report Roznamcha No. 311 dated 19.05.1910. Afsar Maal ( ), through his decision, permitted sanctioning of the mutation. The entries remained unchanged, from the date of it's sanction till 19.11.1997 i.e. the date of filing of the instant suit.
The appeal against dismissal of the suit, met the same fate on 27.01.2007. Now this petition against concurrent findings of the two Courts below.
( ) for the year 1905-06, 1956-57 and 1984-85. Learned counsel went on to argue that oral testimony of the witnesses of plaintiff, proved the factum of chirahgah and it's nature of being un-partitionable. Concurrent findings of Courts below, suffer from the defect of mis-reading and non-reading of the evidence. Learned counsel referred to Exh.P-1 to Exh.P-9 and contended that in each settlement i.e. 1905-06, 1956-57 and 1984-85, the suit land has been shown as chirahgah, but the Courts below, failed to consider these exhibits. It was also contended that as per Exh. P-8, the land is Ghair mumkin pahar " " and has been mentioned as chirahgah in "Wajib ul Arz". It has been described as the part of land from village upto the mountain and beside the water course i.e. "Nullah". Learned counsel then submitted that suit has not been contested through an authorized person. Statement of DW-1 (Col. (R) Abdur Rashid, was referred, who admitted in his cross-examination that authority letter (Exh.D-4) pertains to the case before the revenue authority and not regarding the suit of the plaintiffs (petitioners). It was added that Respondent No. 32, contested the suit, filed written statement and led evidence through unauthorized person. Learned counsel submitted that Exh.D-9 (copy of Mutation No. 55) and Exh.D-10 is not the primary evidence, while procedure for leading secondary evidence, within the contemplation of Articles 76 and 77 of Qanoon-e-Shahadat Order, 1984, had not been adopted. Cases of "Imam Din and 4 others vs. Bashir Ahmad and 10 others" (PLD 2005 SC 418) and "Muhammad Aslam and others Vs. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others" (2000 MLD 1581) were referred. To support this contention, learned counsel has pointed out that Mutation No. 55 (Exh.D-9) was attested on 06.04.1910. The entry in it's column-13 reflects that mutation was sanctioned on the basis of decision dated 03.05.1910 of the Court. Learned counsel added that the mutation was entered on 19.05.1910 and the attestation of mutation, as has been shown, is of later date. Learned counsel emphasized that this fact alone proves that mutation is fabricated transaction. While defending the objection of limitation, it was contended that the land was sold in the year 1996 and the period prescribed for assailing the sale is 06 years under Article 120 of the Limitation Act, 1908. The petitioners filed the suit within one year of knowledge of the impugned sale and of illegal partition of the suit land. Learned counsel went on to argue that DW-1 admitted in his cross-examination that khasra numbers, which Respondent No. 32, has purchased, are not shamilat-e-deh, rather these khasra numbers comprise of ownership land. Learned counsel then contended that cultivated land could be partitioned without hindrance between the owners thereof, but the land forming part of pasture, could only be partitioned, keeping the purpose of pasture intact i.e. grazing rights of the people. The contention was supported by relying upon the cases of "K.B. Muhammad Abdul Rahim Khan vs. Humaira and others" (PLD 1949 Lahore 352), and "Lal Hussain and others vs. Pakistan and 6 others" (1990 MLD 223). Reliance was then placed on the case of "Shoukat Zaman Khan and others Vs. Karam Din" (1997 CLC 423) to contend that presumption of correctness is attached to the entry regarding right of grazing, recorded in Wajibul arz, which remained unaltered throughout in various settlements/bandobast. Learned counsel laid considerable emphasis on the entry in Short Wajibul Arz that suit land is chirahgah, it is village pasture and it is for the common use of the inhabitants of the village. The partition of chirahgah has no legal sanctity and as such not sustainable. Learned counsel in support of other contentions, placed reliance on the cases of "Mian Ali Nawaz and 20 others vs. Khalid Hussain and 28 others" [PLD 1985 Rev. 1 (Punjab)]. "K.B Muhammad Abdul Rahim Khan, deceased represented by Fazal Rahim and others vs. Hussaina and others" (PLD 1949 Lahore 352). "Lal Hussain and others vs. Pakistan and 6 others" (1990 MLD 223), "Shaukat Zaman Khan and others vs. Karam Din" (1997 CLC 423), "Maskin and another vs. Mst. Bagh Sultan and 15 others" (PLD 2001 Lahore 481). "Ahmad Khan Vs. Member (Consolidation), Board of Revenue, Punjab, Lahore and others" (2003 SCMR 1857) and "Lal Khan and another vs. Rehmat" (1994 CLC 1419).
Learned counsel for Respondent No. 32, on the other hand, stood behind the concurrent findings of the two Courts below. He submitted that Mutation No. 55 (Exh.D-9) was attested on 19.05.1910, on the basis of order of the Revenue Officer, in the judicial proceedings, who decided that shamilat land be given to the land owners of the village. None from the village, challenged the mutation from 1910 to 1997. Vehran Housing Society purchased 1500 kanals of land in the year 1990 out of which, 623 kanals of the disputed land was included in the impugned sale. Mutation (Exh.D-8) was sanctioned on 21.11.1990 and one of the petitioners i.e. Ellahi Dad (PW-2), in his cross-examination, admitted that he had knowledge of this sale. The society subsequently sold this land to Respondent No. 32 and mutation (Exh.D-7) was attested on 10.11.1993. Respondent No. 32 purchased remaining land from other land owners of the village. It was contended that the suit was filed on 18.11.1997. Issue No. 3 was regarding limitation. Petitioners admitted that they had the knowledge of Exh.D-8 i.e. mutation dated 27.11.1990, whereby the land was transferred to society. Petitioners could file the suit within six years i.e. by or before 20.11 1996, but the same was filed on 18.11.1997, which is barred by limitation. Learned counsel vehemently contended that Mutation No. 55 is unchallenged even in the present suit, therefore, the suit of plaintiffs/petitioners is not competent. Learned counsel submitted that specific land is always reserved for chirahgah. Such land remains under the control of the Provincial Government and it is necessary requirement that specific khasras, in which the chirahgah falls, are to be mentioned in Shart Wajibul Arz. He has submitted that there is not a single Jamabandi, wherein the factum of chirahgah, with reference to specific khasra numbers, is mentioned. Learned counsel further submitted that longstanding entries in the revenue record, which remained unchallenged throughout, are not open to exception. Learned counsel, while defending secondary evidence, contended that Respondent No. 32, applied for certified copies and was informed of the copying agency that the record had been gutted, therefore, secondary evidence was led. He referred to the statement of Saif-ur-Rehman (PW-1), who admitted that Mutation No. 55, was never challenged by any of the residents of the village and the petitioners are inhabitants of the village for the past fifty (50) years. Learned counsel submitted that Elahi Dad (PW-2) also admitted that no one challenged Mutation No. 55 and that the suit land had not been mentioned in the revenue record as chirahgah. Suit land stood transferred to various owners of the village, at least four decades, prior to the petitioners' attaining status of village inhabitants. The petitioners have no locus standi.
Heard learned counsel for the parties and record perused.
Land measuring 1474 kanals and 2 marlas, out of 3377 kanals and 3 marlas of Shamilat-e-Deh, was chirahgah, as recorded in Shart Wajibul Arz, pertaining to the year 1905-06 (Exh.P-2), Short Wajibul Arz, pertaining to the year 1956-57 (Exh.P-3) and Short Wajibul Arz, pertaining to the year 1984-85 (Exh.P-1). The statement of custom/Shart Wajibul Arz, needs perusal for the resolution of the controversy inter se the parties. The statement regarding rights of grazing chirahgah is mentioned in Section 4 of Wajibul Arz, it's heading is and it reads:--
Section 7 deals with partition of the joint land, it's sub-section 7 i.e.
( ) pertains to the partition of Shamilat-e-Deh. It reads:--
Detail of Shamilat has been mentioned and it includes cultivated ( ), passage ( ), graveyard ( ), pond
( ), uncultivable mountain ( ) and village population ( ).
The procedure for preparation of Wajibul Arz is mentioned in Paragraph 7.4 (E) of the Land Records Manual. It appears from bare reading of the above paragraph that the statement is prepared in the Form XXXVI, of the West Pakistan Land Revenue Rules, 1968. It is simple statement to the customs, which is ascertained to exist. The information contained in Wajibul Arz must not offend justice, equity or good conscience. Nor there shall be an entry, which has been declared to be void. Initially, a preliminary statement (chitha) is prepared and is attested by Qamungo/Supervising Tapedar and Naib Tehsildar (Head Munshi). Tehsildar Mukhtar Kar is authorized finally to attest all the entries in chitha in Wajibul Arz and he is to fix a date for attestation and shall summon the persons interested to appear on that date, at the place in the estate to which the statement relates. The entries, which are found to be disputed, are required to be referred for decision, to Assistant Collector [now DDO (R)], who is to decide the dispute in a manner provided in Section 44 of the Land Revenue Act. 1967.
Wajibul Arz, prepared by a public servant as above, at the time of settlement, carries statutory presumption of correctness is attached to it. Wajibul Arz describes the rights and liabilities among the villagers inter se, such as enjoyment of proceeds of common land and rights of grazing on common land etc Allahabad High Court, in the case of "Kallan Khan Vs. State" (AIR 1961 Allahabad 207), has held that Wajibul Arzes do not constitute absolute proof. Their value would depend upon the circumstances, which came out in regard to how they were recorded. Wajibul Arzes lose their value because one does not know precisely, who gave that information, which was embodied therein. It was observed in the case of "Mian Ali Nawaz and 20 others Vs. Khalid Hussain and 28 others" (PLD 1985 Rev. 6) that there is always a danger that some stipulation may be inserted as an agreement on the part of all the land owners, while they might have not concurred the same. It was also observed that Wajibul Arz is always considered as most important document. Indeed, if fairly and properly drawn up, it is all important, but this can so seldom be done that it's value has been much exaggerated.
The entries in Wajibul Arz. are capable of rebuttal. Reference in this respect can be made to the cases of "Sher Singh Vs Thakar Singh and others" (AIR 1930 Lah. 150). "Mst. Bhagh Bhari etc. Vs. Mst. Bhaggan and an other" (PLD 1954 Lah. 356) and "Avadh Kishore Dass Vs Ram Gopal and others" (AIR 1979 SC 861).
An analysis of the statement of custom/Shart Wajibul Arz, reveals that chirahgah was reserved for grazing and for collecting firewood and inhabitants of the village could enjoy this facility/right, free of cost. A joint owner, for the purposes of partition, can file suit. Land in the shape of graveyard, passage/road. Khanqah ( ), pond and village population residential, is excluded. The land, which is mountain, was left for village inhabitants and for grazing.
The properties ( ), which had been excluded from partition, are specific and are pond, passage/roads, Khanqah, graveyard and residential land under the use of village population. Mountain ( ) has not been mentioned in this category/class. Thus chirahgah/mountain, as per Shah Wajibul Arz is partitionable. Non-mention of chirahgah, in various categories of un-partitionable land, speaks of the fact that chirahgah can be partitioned among the owners.
While interpreting Section 7 (alif) of Wajibul Arz, I will rely on the maxim Tout ee qua la loi defend pas est pernis", which means that everything that is not forbidden, is permitted. Chirahgah has not been excluded specifically from partition, therefore, the land reserved for chirahgah can be partitioned as Shamilat among land owners of the village.
The land, as a result of partition, remained in the uninterrupted use and possession of the landowners. It's use and nature changed altogether. Longstanding entries in the revenue record further substantiate this fact.
While entering the relevant entries in the Wajibul Arz, at the time of settlement, there is nothing on record to show that the statement was read over in presence of persons in attendance and their signatures or thumb impressions were obtained as provided in Paragraph 7.44(E)6(6). The disputed entries have been incorporated ignoring the ground realities as they exist. The land owners, whom the land stood transferred by virtue of partition, were not associated in the course of preparation of the statement in Wajibul Arz, thus, the entries therein cannot be used against these land owners.
The Revenue record has been examined. Summary of the orders
( ), passed in the partition proceedings (at Page-589). reflects that partition proceedings were instituted on 30.06.2007 and remained pending for considerable long time The defendants, in the said proceedings, assailed the order of partition of joint land/shamilat in appeal before Commissioner, Rawalpindi. Mr. J. M. Donie, the then commissioner passed the judgment on 17.07.1908 (Page 636). the translation whereof, is at Page-634 of this file. Reports of Patwari, Girdawar and Naib Tehsildar are at Pages 379, 380, 384 and 312. The record transpires that revenue officers went through the process of checking and rechecking and on completion of ( ), Afsar Mall passed order (Page 381) that objection, if any, be filed, failing which partition proposed, will be accepted. There is statement of defendants to the effect that they accept partition. The partition proceedings were carried with the consensus of the parties. No one raised objection at the relevant time. Thus, after going through a lengthy process, impugned mutation was attested on 19.05.1910.
The above record regarding partition of Shamilat, is public record and is more then 30 years old Presumption of truth is attached to it, as envisaged in Article 101 of Qanoon-e-Shahadat Order, 1984. The record, beyond the iota of any doubt, negates the stance of the petitioners that impugned Mutation No. 55, is fraudulent.
The property, eversince it's partition, remained unchallenged for over three quarters of a century. The ownership changed hands, during this period, on a number of occasions. Sale in favour of bona fide purchaser, on the basis of longstanding entries, in the revenue record, is protected under Section 41 of the Transfer of Property Act, thus, the concurrent findings of the two Courts below, which do not suffer from the defect of mis-reading or non-reading of evidence and are based on correct appreciation of law, are not open to exception, in the revisional jurisdiction of this Court.
There is another angle to view this controversy. The property has been mentioned, in the Jamabandi for the year 1912-1913, in Column No. 4, as. The nature of property, as mentioned in the Map/ " ", is
" . The land, after it's partition, in the year 1910, came in the ownership of the landowners of the village and record reflects that it vests in the ownership of Respondents No. 1 to 31 and their predecessor. The entries in Shart Wajibul Arz, transpire that land in question, is commonly used as chirahgah. But nature and use of land in dispute change subsequently and it became part of the ownership of land owners of the village for their personal use, to the extent of their respective shares in Shamilat. An entry in Wajibul Arz, prohibiting the partition of Shamlat lands, does not necessarily operate as bar to partition. The duty is cast upon the Revenue Officer, dealing with the partition to decide whether such a clause should prevail or not. Wajibul Arz was drawn up at a point of time, when the land was valued only for the village pasture, but subsequently, it had since been broken up for cultivation and there was reduction of cattle kept by the community In view of drastic change in the society and for the fact that at the time of partition of Shamilat, none from the community, contested the partition, the Revenue Officer was justified in sanctioning the mutation.
(J.R.) Petition dismissed
PLJ 2009 Lahore 459
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ASHRAF--Petitioner
versus
GHULAM SAFDAR--Respondent
C.R. No. 116 of 2009, decided on 26.1.2009.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Right of pre-emption--Direction to deposit amount within time--Amount was deposited short of 1/3rd of ostensible price--Duty of Court--Neither the Court nor the petitioner ever objected--Trial Court directed the respondent to deposit a specified amount as 1/3rd--It was deposited within the prescribed time--Neither the Court nor the petitioner ever objected--It was the respondent himself who pointed out the mistake to the Court and sought permission to deposit the requisite amount--Such permission was granted with consent of all concerned including the Court and the petitioners--Section 24 of the Punjab Pre-emption Act, 1991, primarily lays down a duty upon the Court to require the plaintiff to deposit 1/3rd of the sale price in cash within such period as it fixed--However, the law lays down an embargo upon extention of period beyond 30 days of the filing of the suit. [Pp. 460 & 461] A & B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Rule of "Actum Curie Nemanem Gravabit"--Duty of Court--Direction to deposit amount within time--Amount was deposited short of 1/3rd of ostensible price--Neither the Court nor the petitioner ever objected--Court did pass such an order and the respondent did comply with the same within the specified period of time--Addl. DJ had very correctly invoked the rule of "Actum curie Nemanem Gravabit"--Revision dismissed in limine. [P. 461] C
Mr. Muhammad Arif Gondal, Advocate for Petitioner.
Date of hearing: 26.1.2009.
Order
Vide Mutation No. 2209 attested on 24.6.2003 the petitioner purchased the suit land for a consideration of Rs. 2,75,000/-. On 2.9.2003 the respondent filed a suit for possession by pre-emption. His case was that the land has, in fact, been sold for Rs. 2,50,000/-. He claimed to be a Shafi Sharik, Khalit and Jar. Performance of talbs was also pleased. The petitioner filed a written statement. The suit came up before the learned trial Court on 2.9.2003 when a direction was issued to the respondent to deposit a sum of Rs.83,334/- within 30 days by way of 1/3rd. This was done. On 21.6.2004 the respondent himself filed an application that the Court has passed an incorrect order and sought permission to deposit Rs.8333/-. The petitioner did not object and the amount was accordingly deposited. Issues arising out of the pleadings of the parties were framed. All the issues including the matter of superior right and talbs were answered in favour of the respondent while it was held that the land has been sold for Rs. 2,75,000/-. After answering all the issues in the manner aforesaid, the learned trial Court proceeded to dismiss the suit on 2.4.2008 on the ground that the respondent has failed to deposit the entire 1/3rd (described in the judgment as Court fee) within 30 days. The first appeal was filed by the respondent. The petitioner did not at all question the findings on the issues. The appeal had been allowed by the learned ADJ, Mandi Baha-ud-Din, on 7.10.2008 and the suit has been decreed subject to payment of the balance amount of consideration.
Learned counsel contends that since the respondent knew that the amount of consideration mentioned in the mutation is Rs. 2,75,000/-, it was his own duty to have himself deposited the 1/3rd accordingly within the time prescribed by law.
I have examined the copies of the records. The history of the case has been stated above. There is no denial that the learned trial Court directed the respondent to deposit a particular amount as 1/3rd. It was deposited within the prescribed time. The amount was short of the 1/3rd of the ostensible price. Neither the Court nor the petitioner ever objected. It was the respondent himself who pointed out the mistake to the Court and sought permission to deposit the requisite amount. This permission was granted with consent of all concerned including the Court and the petitioner. The amount was, in fact, deposited.
Coming to the contention of the learned counsel, I find it to be without any force. Section 24 of the Punjab Pre-emption Act, 1991, primarily lays down a duty upon the Court to require the plaintiff to deposit 1/3rd of the sale price in cash within such period as it fixed. However, the law lays down an embargo upon extension of period impugned 30 days of the filing of the suit. The Court I did pass such an order and the respondent did comply with the same within the said period of time. The learned ADJ has very correctly invoked the rule of "Actum Curie Nemanem Gravabit." The civil revision accordingly is dismissed in limine.
(Sh.A.S.) Revision dismissed.
PLJ 2009 Lahore 461
Present: Kh. Farooq Saeed, J.
KHURRAM ZULFIQAR ALI--Petitioner
versus
Mst. BENISH MUBARAK and another--Respondents
W.P. No. 17463 of 2008, decided on 4.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Forgery in nikahnama at columns--Suit for recovery of dower, dowry articles--During the proceedings receipts of dowry article were filed--Objected to be as forged--Challenge to--Piece of evidence should not be deprived to bring on record--Receipts of dowry articles produced by respondent were forged hence should not be allowed to be exhibited--Question of--Presentation of document by one person and exhibiting--Interocutory order--Evidential value--Validity--Law of evidence and Civil Procedure Code not being applicable the concept of exhibiting a document in a civil case would not apply in a family matter--Permission to allow to exhibit a document even in civil case does not amount to its acceptance as an alternate evidence--It was only a receipt and acknowledgment and permission to make it a part of record--One can always challenge its validity, correctness or genuineness during cross-examination at the time of final argument--Held: If some body wants to bring on record certain piece of evidence he should not be deprived from doing so--Every authority as far as possible should not refuse to entertain the evidence produced by parties in support of their claim--Authorities, therefore, need to be benevolent in receiving, however, prudent in accepting its evidential value--Petition was dismissed. [P. 463] A
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Inter locutory order--Maintainability--Nothing mere than an interlocutory order against which writ petition even otherwise is normally not allowed to be entertained--Held: Writ petition does not lie against such an interlocutory order through which the matter has not been decided finally. [P. 463] B
1991 MLD 1097, ref.
Mr. Naveed Aslam, Advocate for Petitioner.
Mian Rafaqat Ali, Advocate for Respondent No. 1.
Date of hearing: 4.2.2009.
Order
The writ petition filed by the petitioner husband is on the basis of the facts that the Respondent No. 1 and petitioner entered into a contract of marriage on 9.7.2006 but the same could not pull on statedly for the reasons of forgery in the Nikah Nama at Column Nos.10, 17, 19 and 20 by the father of the Respondent No. 1. The petitioner, therefore, lodged a criminal case through F.I.R No. 1039/06 at Police Station Ghalib Market on 28.12.2006 which was registered under Sections 420/468/471 PPC.
The respondent also filed suit for recovery of dower, dowry articles and gold ornaments. During the course of the proceedings he filed receipts of dowry articles which are objected to be as forged by the present petitioner. The petitioner filed an application challenging the same. The objection of the present petitioner is that the receipts of the dowry articles produced by the respondent of this writ petition are forged hence should not be allowed to be exhibited.
By placing reliance on a plethora of case law which has already been reproduced in Para No. 3 of the order of the Judge Family Court dated 12.11.2008, the petitioner counsel reiterated that the receipts which are not properly prepared and their evidential value is doubtful, hence, should not have been allowed to be exhibited. There appears to be some misconception in the minds of the petitioner. The reason being that in family matters neither the law of evidence is applicable nor the provisions of Civil Procedure Code are applied. All the judgments referred by the petitioner counsel are with regard to the proceedings under C.P.C. The same, have been held to be as not applicable in the said proceedings by the Family Judge to which this Court also agrees in principle.
The petitioner counsel when pointed out conceded that since the above two enactments have been held to be as not applicable by the Family Court Act itself he obviously does not have the case to the said extent. He, however, urged that there must be some procedure for appreciating the evidence. The comment is quite un-necessary as every Judicial Officers understands as to what procedure should be adopted by him while deciding an issue before him. The prime purpose has always been to provide substantial justice and the present judicial system having a long history of progressive changes in law of jurisprudence administratively and on the basis of the judgments of the superior Courts is rich enough to take care of the same.
In this regard one can refer (2008 C.L.C 806) re: "Shafqat Ali Vs. Nighat Perveen and others". The Hon'ble Court has clearly held that the law of evidence is not strictly applicable on family matters, but, however, one needs to look into the correctness of the documents after due application of mind, as obviously the effect of acceptance or rejection of the same would either deprive or grant a right to persons.
The important factor which needs consideration is that presentation of document by one person and exhibiting it would not always mean acceptance of its contents also especially in a family case. As already mentioned law of evidence and Civil Procedure Code not being applicable the concept of exhibiting a document in a civil case would not apply in a family matter either. Even otherwise, the permission to allow to exhibit a document even in civil case does not amount to its acceptance as an alternate evidence. It is only a receipt and the acknowledgement and the permission to make it a part of record. One can always challenge its validity, correctness or genuineness during the cross-examination or thereafter at the time of final argument. In fact if some body wants to bring on record certain piece of evidence he should not be deprived from doing so. Every authority as far as possible should not refuse to entertain the evidence produced by the parties before then in support of their claim. However, it obviously does not mean acceptance of the same without checking its veracity as well as correctness and justification. The authorities, therefore, need to be benevolent in receiving, however, prudent in accepting its evidential value.
This, therefore, is nothing more than an interlocutory order against which writ petition even otherwise is normally not allowed to be entertained. It has been held in a long line of judgments that writ petition does not lie against such an interlocutory order through which the matter has not been decided finally. Reference may be placed on (1991 M.L.D 1097) re: "Rao Muhammad Owais Qarni Vs. Mst. Tauheed Aisha and 2 others".
The gist of the above discussion is obvious. This writ petition does not have any merit, hence, is dismissed.
(R.A.) Petition dismissed
PLJ 2009 Lahore 464
Present: Khurshid Anwar Bhinder, J.
CHAKAR KHAN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE-II, TANDLIANWALA, DISTT. FAISALABAD and 3 others--Respondents
W.P. No. 9302 of 2008, decided on 9.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--Ss. 190(2) & 202--Constitutional petition--Maintainability of petition against revisional order--Private complaint--Offence triable exclusively by a Court of Sessions shall without recording any evidence, send the case to Court of Sessions for trial--Validity--Magistrate is legally bound to send the case to the Court of Sessions for trial u/S. 190(2), Cr.P.C.--Held: Magistrate is not competent to hold inquiry without specific order of Court of Sessions u/S. 202, Cr.P.C.--Constitutional petition is not maintainable against revisional order. [Pp. 466 & 467] A & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 202--Pakistan Penal Code, (XLV of 1860)--S. 302--Constitution of Pakistan, 1973--Art. 199--Private complaint--Usurpation of jurisdiction vested in Court of Sessions--Magistrate is not competent to conduct inquiry without order of Court of Sessions--Question of--Whether offence triable by Court of Sessions is made out or not--Determination--If a private complaint is filed under the offence exclusively triable by Court of Sessions, the Magistrate has to send complaint to Court of Sessions for trial as the authority vests with the Court of Sessions in order to determine the matter that whether the offence triable by the Court of Sessions is made out or not and whether the complaint is triable and accused may be summoned or not--Validity--Magistrate has no authority to take cognizance of offence exclusively triable by Sessions Court of original jurisdiction and thus cannot start inquiry on a private complaint having not been transferred u/Ss. 191 & 192, Cr.P.C. and he is not competent to hold inquiry without specific order of Sessions Court. [P. 467] B & C
Rana Muhammad Arshad Khan, Advocate for Petitioner.
Mr. Sarfraz Ali Khan, AAG for Respondents.
Syed Zahid Hussain Bokhari, Advocate for Respondent No. 3.
Date of hearing: 9.2.2009.
Order
Through the present constitutional petition, Chakar Khan, petitioner assails the validity of order dated 7.7.2008 passed by the learned Additional Sessions Judge, Tandlianwala District Faisalabad whereby, he, while allowing the revision petition filed by Respondent No. 3 set aside the order dated 23.6.2008 passed by the learned Judicial Magistrate, Tandlianwala.
Briefly the facts of the case are that Muhammad Ramzan complainant/Respondent No. 3 instituted a complaint before the learned Magistrate Section 30, Tandlianwala alleging therein that on 30.4.2006, at about 10.30 a.m. he alongwith Muhammad Altaf, Maqsood Ahmad and Ishfaq Ahmad went to his land situated in Square No. 1 Kill Nos. 1 and 2 Chak No. 421/GB where all the accused alongwith 35/40 unknown P.Os. were present armed with sota and fire-arm weapons with object to murder them and to take possession of their land. As soon as they reached on the land Chakar Wattoo raised lalkara to murder the complainant and his nephew Abbas accused gave blow with butt of kalashanikov on the left hand of the complainant, accused Rustam Bhatti gave blow of butt of kalashanikov on the middle of thumb and index finger of left hand. Accused Chakar Wattoo gave blow with butt of kalashnikov on the back side of head of Ishfaq Ahmad, accused Chakar and Abbas started firing while remaining accused gave repeated blows with their sotas and butts of guns on the person of the complainant, Muhammad Altaf, Maqsood Ahmad, Ishfaq Ahmad and Muhammad Rizwan. Accused also snatched mobile, gold chain, watches and cash amount from the complainant as well as from the PWs. It was further alleged in the complaint that firstly accused persons caused injuries on the person of complainant and PWs and thereafter they came near the house of Yaqoob Malik where all the accused persons to avoid criminal liability committed Qatl-e-amd of their co-accused Abraz Ali in furtherance of their common object and in that respect false case FIR No. 529/2006 dated 30.4.2006 under Sections 302/148/149/109 PPC registered at Police Station Tandlianwala against the complainant and others. Police conducted partial and dishonest investigation and intentionally did not record statement of the complainant and the witnesses correctly. The learned Magistrate vide his order dated 23.6.2008 held that the complaint prima facie is triable by the learned Area Magistrate and the complainant was directed to produce cursory evidence against which Respondent No. 3 filed a revision petition before the learned Additional Sessions Judge, Tandlianwala who vide his judgment dated 7.7.2008 accepted the revision petition and set aside the order dated 23.6.2008 passed by the learned Magistrate, hence the present constitutional petition.
Learned counsel for the petitioner submits that since the offence under Section 302 PPC is not made out at all from the facts and circumstances of the private complaint, therefore, the learned Magistrate has rightly taken the cognizance of the matter and the learned Additional Sessions Judge has illegally upset the well reasoned order of the learned Magistrate. He further submits that under sub-section (1) of Section 190 Cr.P.C. the Magistrate was competent to take the cognizance of the matter as according to FIR No. 554/2006 no person was murdered, as such, the learned Magistrate has rightly passed the order dated 23.6.2008.
Learned counsel for Respondent No. 3 submits that since there was allegation of murder of a person in the private complaint and the provisions of Section 302 PPC were attracted in the case, as such, the learned Magistrate was not competent to take the cognizance in the matter and the learned Additional Sessions Judge has rightly set aside the order passed by the learned Magistrate while allowing the revision petition. In support of his arguments he has relied upon the case of Abdul Waheed v. The State (PLD 1986 Lahore 81).
Learned Assistant Advocate-General while supporting the impugned judgment, submits that since the provisions of Section 302 PPC were attracted from the facts of private complaint, therefore, the Magistrate was not competent to take the cognizance in the matter under sub-section (2) of Section 190 Cr.P.C.
I have heard all the learned counsel and have also perused the available record. The perusal of private complaint instituted by Respondent No. 3 disclosed commission of offences under Sections 337-A(i)/337-A(ii)/337-F(i)/337-F(ii)/337-H(ii)/337-L(ii)/354/302/148/149 PPC and Section 11-B of the Arms Ordinance, 1965. Sub-section (2) of Section 190 Cr.P.C. clearly lays down that a Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial. Since the private complaint disclosed the commission of offence under Section 302 PPC alongwith other offences, therefore, a Magistrate is legally bound to send the case to the Court of Sessions for trial under sub-section (2) of Section 190 Cr.P.C. Even a Magistrate is not competent to hold inquiry without specific order of Court of Sessions under Section 202 Cr.P.C. In such a situation, the order of the learned Area Magistrate amounted to usurpation of jurisdiction vested in the Court of Sessions as the Magistrate is not competent to conduct an inquiry without subsequent order of Court of Sessions under Section 202 Cr.P.C. If a private complaint is filed under the offence exclusively triable by the Court of Sessions, the learned Area Magistrate has to send complaint to the Court of Sessions for trial as the authority vests with the Court of Sessions in order to determine the matter that whether the offence triable by the Court of Sessions is made out or not and whether the complaint is triable and the accused may be summoned or not.
From the afore-referred provisions of law, it is crystal clear that the Magistrate has no authority to take cognizance of offence exclusively triable by Sessions Court of original jurisdiction and thus cannot start inquiry on a private complaint same having not been transferred to him under Sections 191 and 192 Cr.P.C. and he is not competent to hold inquiry without specific order of Court of Session under Section 202 Cr.P.C. The learned Additional Sessions Judge has rightly set aside the order dated 23.6.2008 passed by the learned Magistrate.
Even otherwise, this constitutional petition is not maintainable against a revisional order as per law laid down in the case of Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 Supreme Court 399).
For what has been discussed above, I find no merit in this constitutional petition which is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 467
[Bahawalpur Bench, Bahawalpur]
Present: Abdul Sattar Goraya, J.
MUHAMMAD AKHTAR--Petitioner
versus
EXECUTIVE DISTRICT OFFICER EDUCATION BAHAWALPUR and 3 others--Respondents
W.P. No. 3816 of 2008/BWP, heard on 17.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Recruitment policy--Civil servant--Without lawful authority and no legal affect--Civil servant was appointed as Naib Qasid on contract basis for a period of three years by D.D.E.O.--Appointment was irregular--Post was not advertised--Imparted instructions to withdraw the appointment order--Department lost the right to repent--Validity--Competent authority passed the order in faithful compliance of direction given by D.E.O., who had no jurisdiction to interfere in the matter and impart necessary instructions in functions of the competent authority, which alone was competent to pass the order--Impugned order passed by D.E.O. was declared to be without jurisdiction, without lawful authority and of no legal affect.
[Pp. 471 & 472] C & E
Punjab Civil Servants Act, 1974 (VIII of 1974)--
----S. 4--Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974--Scope of--Civil servant--Civil servant was appointed on contract for a period of three years--Recruitment on regular basis--Contract can be extended--Satisfaction of the competent authority--Validity--Contract can be extended for further period but subject to the satisfaction of the competent authority and assessment shall be made on basis of performance and the work done during tenure of contract period. [P. 471] A
Punjab Civil Servants Act, 1974 (VIII of 1974)--
----S. 4--Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--Scope of--Power of appointment--Jurisdiction--Civil servant was appointed on contract for the period of 3 years--Creation of statutes--Validity--Power of appointment being creature of statute can neither be guided nor controlled by an officer of supervisory jurisdiction. [P. 471] B
Constitution of Pakistan, 1973--
----Art. 3--Punjab Civil Servants Act, (VIII of 1974), S. 4--Civil servant--Salary was withheld--Contemplation of--Even the civil servant worked for some time on basis of some irregular order, he is entitled to salary for the period he performed his duty--Non-payment of salary can safely be termed to be an exploitation within contemplation of Art. 3 of the Constitution. [P. 472] D
Malik Manzoor Ahmad Misson, Advocate for Petitioner.
Ch. Tariq Muhammad Shafi, AAG for Respondents.
Date of hearing: 17.3.2009.
Judgment
Through this Constitution petition, petitioner prayed for a declaration that the order dated 06.07.2007 passed by Respondent No. 3/Deputy District Education Officer (M), Fortabbas is without lawful authority and of no legal affect and the same be declared as such.
Vide order dated 18.12.2008, this Court directed Respondents No. 2 & 3 to submit the report & para-wise comments which have since been received. Report and para-wise comments show in vivid terms that on 30.03.2007, petitioner was appointed as Naib Qasid (BPS-01) on contract basis for a period of three years by the Deputy District Education Officer (M), Fortabbas. In faithful compliance of the order of appointment afore-noted, petitioner submitted his joining report on 14.04.2007.
It appears that some time back, on scrutiny made by the District Education Officer (M-EE), Bahawalnagar, it came to the light that appointment of the petitioner was irregular because before passing the said order of appointment on contract basis, the post was not advertised and thus, imparted instructions to the Deputy District Education Officer (M), Fortabbas, to withdraw or cancel the appointment order.
Para 9 of the petition has been answered as under:--
"The appointment of the petitioner was illegal/unlawful and cancelled on 06.7.2007 by the appointing authority (Competent authority) in the compliance of the order of next higher authority (the District Education Officer (EEM) Bahawalnagar), the Respondent No. 2. No comments."
This is a common ground between the two contesting parties that the petitioner worked in the Department for a period of 84 days and not only he has been thrown out of service but also salary for the said period has also not been paid.
Learned counsel for the petitioner contended with full vehemence that before passing the impugned order by which the appointment order of the petitioner has been rescinded, no notice whatsoever was given to him of being heard. Learned counsel further came-out with the plea that once the order has been acted upon between the parties, there was no power left available with the Departmental Authority either to withdraw or cancel the appointment order.
Conversely the learned Assistant Advocate General argued that since the appointment order was suffering from illegalities and irregularities, the Department was justified in withdrawing the said order and in doing so, no act of excess has been done to the petitioner.
Arguments heard. Record produced by the Department has been perused.
This is stark reality that the appointment was made on contract basis on 03.03.2007 by the competent authority for a period of three years, on the basis of which the petitioner submitted his joining report in Government Elementary School, Chak No. 302/HR, Fortabbas. Petitioner has been working in the Department for 84 days. In any case, on the basis of order of appointment, the decisive steps had been taken there-under and the Department lost the right to repent and the appointment order could not have been either cancelled or withdrawn. This question arose in Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCMR 413) wherein the august Supreme Court held in unambiguous terms that even if the appointment of the civil servant is found to be irregular for any reason, the Department had no jurisdiction to pass an order of termination of service or to withdraw the same and if the order has been found to be illegal or irregular for any reason in subsequent proceedings, the action can only be taken against the appointing authority who was responsible for the wrong done and the civil or Govt. servant who achieved some status in life and acquired scarce of livelihood, cannot be made to suffer. Muhammad Zahid Iqbal vs. EDO Mardan & others (2006 PLC (CS) 1216) is also quoted with advantage in support of the above proposition of law.
In the Recruitment Policy vide No. SOR-IV (S&GAD) 10-1/2003 dated 17th September 2004, the position has been made further clear by the Government of Punjab, Services & General Administration Department (Regulation Wing). In para 17(v) & (vi):--
"(v) Where appointment orders on regular or contract basis have already been issued and later it is determined that such appointments were made in violation of merit/selection criteria, etc., further action may be taken in accordance with law and terms and conditions of contract.
(vi) Departments should take disciplinary action against the persons responsible for committing irregularities in recruitment process".
Para 4(i) of the afore-noted Policy also provides in terms that recruitment on regular basis is always made under the provisions of the Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and on contract basis under the Policy Decision dated 17.9.2004. The contract according to the existing instructions, can be extended for further period but subject to the satisfaction of the competent authority and the assessment shall be made on the basis of performance and the work done during the tenure of contract period.
"The Municipal Committee and after its supersession the Administrator alone was competent to order the removal of the petitioner under Section 29 of the Ordinance read with Article 45(4) of the Order. When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers. It was held in B.S. Industries v. Deputy Registrar, Trade Marks (1) that even an Executive Officer when he performs a statutory function is not to be influenced by any direction from any quarter".
In any event, the position, therefore, which emerges is that in the case in hand, the decision has been taken by the competent authority on asking of the District Education Officer, who was not the competent authority in case of the petitioner. The competent authority passed the order in faithful compliance of the direction given by the District Education Officer, who had no jurisdiction whatsoever to interfere in the matter and impart necessary instructions in the functions of the competent authority, which alone was competent to pass the order.
I have also been intimated by learned counsel for the petitioner that for the period, petitioner served in the Department, the salary has been withheld and no part of it has been paid to the petitioner till date. The proposition of law is too settled to admit any debate that even the petitioner or the Government servant worked for some time on the basis of some irregular order, he is entitled to the salary for the period he performed his duty. Non-payment of salary can safely be termed to be an exploitation within the contemplation of Article 3 of the Constitution. Altaf Hussain Bhatti and 5 others Vs. Secretary to Government of Balochistan, Services & General Administration Department, Balochistan Civil Secretariat, Quetta and 2 others (1988 SCMR 1247) can successfully be quoted in support of the said proposition.
For what has been stated above, the impugned order dated 06.07.2007 passed by Respondent No. 2 is declared to be without jurisdiction, without lawful authority and of no legal affect. Petitioner shall be reinstated in service and the period he spent out of service, shall further be included in his contract initially entered between the parties. Respondent No. 3 is also directed to release the salary for the period the petitioner served in the Department and make payment to him in accordance with law.
(R.A.) Order accordingly.
PLJ 2009 Lahore 472
Present: Rana Zahid Mehmood, J.
Mst. AMINA SAEED KHAGA--Petitioner
versus
JUDGE FAMILY COURT, LAHORE and another--Respondents
W.P. No. 3649 of 2008, decided on 11.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Special power of attorney in favour of special attorney can be rectified and cured by personal appearance--Legality--Power of attorney was written on simple paper without payment of stamp paper--Not verified by Oath Commissioner--Document was found defective in law--Reservation on signature of petitioner--Validity--Irregularity or illegality in execution of special power of attorney in favour of special attorney can be rectified and cured by personal appearance before trial Court--Case was remanded to trial Court. [P. 473] A
Raja Jahanzeb Akhtar, Advocate for Petitioner.
Respondent No. 2 proceeded ex-parte.
Date of hearing: 11.3.2009.
Order
This is a constitutional petition filed by the petitioner challenging dismissal of her suit vide judgment and decree dated 31.03.2008 passed by Respondent No. 1/learned Judge Family Court, Lahore which was a suit for dissolution of marriage with Respondent No. 2, while the suit was dismissed on the ground that special power of attorney placed on record as Mark-A was written on simple paper without payment of stamp duty and was also not verified by the Oath Commissioner, therefore, as the petitioner had not appeared before the learned Judge Family Court and suit was filed through special attorney as well, the document stated above was found defective in law, therefore, the learned Judge observed that had the petitioner appeared before him, the irregularity and the illegality stated above could be cured. It is also important to mention that the learned trial Judge had also shown his reservation on the signatures of the petitioner in favour of the special attorney.
Learned counsel for the petitioner has submitted that since the petitioner is present in person in Court today and she can also appear before the learned Judge Family Court, therefore, any illegality or irregularity highlighted by the learned Judge Family Court on the special power of attorney can be cured, therefore, petition may be allowed, case may be remanded to the learned trial Court for proceeding in accordance with law and petitioner undertakes to appear before the learned trial Judge. He submitted that a direction may be given to the learned trial Court to decide the suit within 15-days.
Respondent is proceeded ex-parte as notices were issued to him through TCS and the receipt is available on record, therefore, as none is present from his side, therefore, he is proceeded ex-parte.
Since the petitioner is present in person before this Court today and can conveniently appear before the learned Judge Family Court and the irregularity or illegality in the execution of the special power of attorney in favour of the special attorney can be rectified and cured by her personal appearance before the trial Court, therefore, this petition is accepted and the case is remanded to the learned trial Court/Judge Family Court to proceed further in accordance with law after the petitioner appears before him in person and supports the execution of special power of attorney through her specific statement in accordance with law or may seek the indulgence of the Court by direct appearance and a power of attorney in favour of the counsel. The trial Court is directed to expedite the trial to conclude the same within 60 days.
(R.A.) Order accordingly
PLJ 2009 Lahore 474
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD ISMAIL--Petitioner
versus
REHMAT ALI--Respondent
W.P. No. 6051 of 2008, decided on 29.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2), 115 & 151--Specific Relief Act, 1877--S. 22--Constitution of Pakistan, 1973--Art. 199--Suit for specific performance of contract--Withdrawal of suit without any reservation to file afresh--Allegation of fraudulent promise to resolve the matter out of Court--Open fraud--Revision accepted--Application u/S. 12(2), CPC dismissal of--Invoking of constitutional jurisdiction--Inherent jurisdiction--Impugned judgment was maneuvered through active collusion between petitioner and respondent was being defrauded by keeping him out the arena--Fraud, they say, vitiated the most solemn proceedings, and nobody should be allowed to take any benefit from his own fraudulent omissions and commissions--Court has no jurisdiction to take cognizance of an open fraud--Held: No rule is required to correct a wrong--Court has always inherent powers to prevent abuse of the process of law by moulding relief in appropriate cases--Provision of S. 151, CPC were rightly invoked by the revisional Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent the abuse of the process of the Court and to avoid a situation resulting in stalemate--Putting the parties to trial on the application u/S. 12(2), CPC was nothing but wastage of precious time of Court--Court is a high office and its working must reflect rather more serenity--High Court while sitting in writ jurisdiction would not interfere with an order like the one being impugned herein, which was just and proper--Application dismissed. [P. 477] A & B
Miss Shazia Hassan, Advocate for Petitioner.
M/s. Jahangir A. Jhoja and Ghulam Hussain Awan, Advocates for contesting Respondent No. 1.
Nemo for other Respondents.
Date of hearing: 29.1.2009.
Order
This writ petition filed by Muhammad Ismail, petitioner, seeks to challenge the revisional order dated 6.5.2008 passed by Mr. M. Sheraz Kiyyani, learned Addl. District Judge, Hafizabad whereby he set aside not only the order dated 18.12.2008, passed by Mr. Khyzer Hayat Gondal, learned Senior Civil Judge, Hafizabad but also the judgment/decree dated 13.6.2000, passed by Ch. Shahid Naseer, the earlier Senior Civil Judge, Hafizabad.
This case has a chequered history. The dispute relates to a plot of 14 marlas i.e. 14/80 Hissa of 4 kanals situate in Khewat No. 1435, Khatoni No. 3017, Khasra No. 1678 in Mauza Ghari Awan, Tehsil and District Hafizabad. The background of the case is that Muhammad Ismail, writ petitioner had on 20.1.1987 filed a suit against Muhammad Anwar, Respondent No. 2 for specific performance of alleged contract dated 17.3.1986, on payment of total consideration of Rs. 1,20,000/-. On 6.7.1988, the suit was sought to be withdrawn from before the learned Duty Judge without any reservation as to filing of the suit afresh. On 23.7.1988, the suit was dismissed as withdrawn in the light of the statement of Malik Muhammad Jamil Awan, Advocate representing Muhammad Ismail. Instead of filing a fresh suit, Muhammad Ismail filed an application u/S. 12(2) CPC on 13.5.1998 for setting aside the order of dismissal dated 23.7.1988. It was alleged that the suit was withdrawn because Muhammad Anwar, Respondent No. 2 herein had made promise to perform his part of the contract. It was also alleged that the withdrawal of the suit was the result of fraudulent promise made by Muhammad Anwar. It was also claimed that the learned Duty Judge had no authority to record the statement with regard to the withdrawal of the suit. An application u/S. 5 of the Limitation Act was also moved. On 8.6.2000, Mr. Muhammad Afzal Cheema, Advocate got recorded his statement to the effect that Muhammad Anwar had since received the consideration amount of the plot in question and that he would have no objection if the suit filed by the writ petitioner (plaintiff) was decreed. The suit was then decreed by Ch. Shahid Naseer, the learned Senior Civil Judge, Hafizabad on 13.6.2000, without adverting to the pungency of the provisions of Order XXIII, Rules 1 & 2 CPC. In the aforesaid proceedings u/S. 12(2) CPC, Rehmat Ali Respondent No. 1 herein was not made a party although the suit brought by Rehmat Ali against same Muhammad Anwar for possession through specific performance with regard to the same plot stood already decreed on 19.10.1993 on the conceding statement made by Muhammad Anwar. Pursuant to the consent decree, mutation had also been recorded and sanctioned in favour of Rehmat Ali. This fact was concealed by the writ petitioner as also by Muhammad Anwar.
The order dated 19.12.2007, passed by Mr. Khyzer Hayat Gondal, the learned Senior Civil Judge, Hafizabad whereby he had partly allowed the application for amendment of a petition filed u/S. 12(2) CPC by Rehmat Ali through a special attorney challenging the validity of the judgment/decree dated 13.6.2000, was agitated in revision. The said application was filed seeking the setting aside of the judgment/decree dated 13.6.2000, which was passed in favour of Muhammad Ismail.
The learned Addl. District Judge accepted the revision petition holding that material facts were concealed to get the aforementioned judgment dated 13.6.2000; that Muhammad Ismail knew fully posted with the knowledge that on 13.6.2000, he was not the owner of the property in question and that he was fraudulently making a conceding statement. The learned Addl. District Judge went deep into the history of the case and concluded in the light of the judicial record that Muhammad Ismail and Muhammad Anwar had collided with each other and had manoeuvered the aforementioned judgment dated 13.6.2000 toeing the line of each other to the detriment of the interest of Rehmat Ali, who was not impleaded as a party.
It was vehemently contended by the learned counsel for the writ petitioner that the learned Addl. District Judge, Hafizabad while sitting in revisional jurisdiction, had travelled beyond the scope of Section 115 CPC and at all events, had no jurisdiction to set aside the judgment and decree dated 13.6.2000. According to learned counsel, at best, the case could have been remanded because the revision was filed against the order dated 19.12.2007, passed by the learned Senior Civil Judge, Hafizabad whereby he had partly accepted the application for amendment of an application u/S. 12(2) CPC filed by Rehmat Ali, Respondent No. 1 herein through his special attorney against the judgment and decree dated 13.6.2000. Reliance was placed on 2008 SCMR 236, 2007 CLC 1877, 1999 MLD 3038, PLD 2005 SC 775, 2007 CLD 1637, 1983 CLC 3140 and 2006 CLC 1018.
Conversely, learned counsel for the respondents relying on 1993 MLD 486, 1994 CLC 2443, NLR 1995 Civil 330, 1982 CLC 55, 1993 CLC 918, 1992 CLC 2282, PLD 1973 SC 236, PLD 1982 SC 413, 1986 SCMR 1561 and PLD 2003 Lah. 148, argued that the order passed by the learned Revisional Court dated 6.5.2008 was clothed with authority and that controversial questions of fact could not be gone into in the exercise of writ jurisdiction of this Court.
I have gone through the case-law referred to by the learned counsel for the parties. I have also gone through the record appended with the writ petition from cover to cover. Findings were recorded by the learned Revisional Court in its impugned judgment dated 6.5.2008 that at the time of passage of the consent judgment dated 13.6.2000, material facts were actively concealed, in that, respondent Muhammad Anwar was not owner of the property in question, yet he was making a statement confessing judgment against him with regard to the same plot which stood decreed in favour of Rehmat Ali, Respondent No. 1 herein as back as 19.10.1993, which was followed by mutation. He was causing a circumstance to exist, which to his active knowledge did not exist. The aforementioned findings were based on judicial record, of which authenticity was not open to question. I am not persuaded to accept the contention that the learned revisional Court had no authority to accept the application moved u/S. 12(2) CPC and to set aside the judgment/decree dated 13.6.2000 challenged therein in the exercise of powers u/S. 115 read with Section 151 CPC. No doubt is lurking in my mind that the judgment dated 13.6.2000 was manoeuvered through active collusion between Muhammad Ismail writ petitioner and Muhammad Anwar Respondent No. 2 and thereby Rehmat Ali Respondent No. 1 (petitioner before the revisional Court and applicant before the trial Court), was being defrauded by keeping him out of the arena. Fraud, they say, vitiates the most solemn proceedings, and nobody should be allowed to take any benefit from his own fraudulent omissions and commissions. I am unable to hold that a Court has no jurisdiction to take cognizance of an open fraud. It is axiomatic that no rule is required to correct/rectify a wrong. A Court has always inherent powers to prevent abuse of the process of law by moulding relief in appropriate cases. PLD 1975 SC 331 is direct authority on the point. The provisions of Section 151 CPC were rightly invoked by the learned revisional Court in aid of justice, as it was thought necessary in the circumstances of this case to prevent the abuse of the process of the Court and to avoid a situation resulting in stalemate. Putting the parties to trial on the aforesaid application u/S. 12(2) CPC was nothing but wastage of precious time of the Court. A Court is a high office and its working must reflect rather more serenity. This Court while sitting in writ jurisdiction would not interfere with an order like the one being impugned herein, which is just and proper.
In the result, I would dismiss the writ petition with costs.
(Sh.A.S.) Petition dismissed
PLJ 2009 Lahore 478
Present: Ali Akbar Qureshi, J.
ALLAH DITTA--Petitioner
versus
NASREEN AKHTAR and another--Respondents
C.R. No. 1327 of 2007, heard on 5.11.2008.
Contract Act, 1872 (IX of 1872)--
----Ss. 214, 215 & 188--Specific Relief Act, 1877, S. 42--Civil Procedure Code, (V of 1908), S. 115--Gift through attorney--Validity of--Preparing the power of attorney fraudulently and by concealment of fact--Gift by attorney without consulting the principal--Fraud and misrepresentation--Plea of--Respondents could not substantiate their stance by adducing any oral or the documentary evidence but appellate Court had traveled totally beyond the jurisdiction conferred upon him under the law and rendered a conclusion which was only, against the facts of the case but also consistent view maintained in the judgments by superior Courts--Petition had succeeded to prove that before making the gift by respondent, no consultation or prior admission was obtained by him and further, that the petitioner had not given the authority to respondent while executing the power of attorney to alienate the suit property in any manner whatsoever, therefore, the judgments of the appellate Court being contrary to the facts and violative of law, was unable to sustain--Revision allowed.
[Pp. 482 & 483] A, B & C
Mr. Nisar Ahmad Baig, Advocate for Petitioner.
Mian Javed Rashid, Advocate for Respondents.
Date of hearing: 5.11.2008.
Judgment
The petitioner through this civil revision has sought the invalidation of judgment and decree dated 27.3.2007 passed by the learned appellate Court whereby the learned appellate Court while accepting the appeal of the respondents, dismissed the suit filed by the petitioner.
The power of attorney was executed in favour of Respondent No. 2 wherein he was delegated or given the authority only to the extent to receive the compensation from the Pakistan Army, who wanted to acquire the land to establish training school but Respondent No. 2 taking undue advantage of old age and illiteracy of the petitioner, while preparing the power of attorney fraudulently and by concealment of facts, also written in the power of attorney, the authority to alienate the suit land owned by the petitioner although, the petitioner had no intention to grant any such authority. It was also stated in the plaint that Respondent No. 2 by playing fraud and mis-representation executed and registered a power of attorney on 9.4.1994 and on the basis of the said power of attorney, Respondent No. 2 prepared a gift deed in favour of Respondent No. 1 who is wife of the brother of the Respondent No. 2. Neither the attorney given the power to alienate the land in any manner whatsoever nor the gift was made in favour of Respondent No. 2, therefore, the petitioner through the aforesaid suit prayed cancellation of the power of attorney as well as the gift deed, got registered by fraud and misrepresentation.
The suit was contested by both the respondents, controverting the contents of the plaint and also raised preliminary objections and prayed for dismissal of the suit. The learned trial Court, out of the pleadings of the parties, to resolve the controversy, framed as many as 10 issues and put the case for recording the evidence of the parties.
The learned trial Court after hearing the arguments of the parties, finally decreed the suit in favour of the petitioner. The respondents being not satisfied with the judgment and decree, preferred an appeal, which was accepted and resultantly, the suit filed by the petitioner was dismissed, hence this civil revision.
It is contended on behalf of the learned counsel for the petitioner that the petitioner who is illiterate and simple man, never given any authority to Respondent No. 2 to alienate the suit land in any manner whatsoever in favour of any one because the Respondent No. 2 was appointed attorney only to receive the compensation in case the land is acquired by the Pakistan Army and even otherwise, the petitioner successfully proved his contention by adducing impartial, cogent and confidence inspiring evidence, therefore, the learned trial Court rightly reached to a conclusion after appreciating all the material available on the record and decreed the suit whereas on the other hand, the learned appellate Court ignored the evidence available on the file and also the law applicable thereto, while accepting the appeals, and dismissed the suit of the petitioner which is in fact result of jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence. Next contended that even if for the sake of arguments, it is admitted that the power of attorney was executed by the petitioner, the gift made by the Respondent No. 2 in favour of the Respondent No. 1, is unsustainable in law because of violative of the rule laid down in the judgments reported as Mst. Bandi v. Province of Punjab and others (2005 SCMR 1368), Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818), Muhammad Jalil and 4 others v. Muhammad Sami and 8 others (PLD 2007 Lahore 467) and Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618). Lastly contended that the learned appellate Court has also failed to take the cognizance of the material aspect of the case, that Respondent No. 2 made the gift in favour of Respondent No. 1, who is wife of his real brother which is otherwise violative of the dictum laid down in Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618) supra.
Conversely, the learned counsel for respondents supported the vires of the judgment rendered by the learned appellate Court. Next contended that the petitioner himself has admitted the execution of the power of attorney in favour of Respondent No. 2, therefore, the petitioner has no reason to deny the execution of the gift executed in favour of the Respondent No. 1. Also contended that the petitioner could not place on record anything in support of his stance and the prayer made by him, therefore, in presence of the admission made by the petitioner, the petitioner is not entitled for the decree claimed by him.
I have heard the learned counsel for the parties and perused the record.
The most important aspect of the case, which is not denied by the respondents is that the Respondent No. 2 on the basis of the power of attorney disputed by the petitioner, executed a gift-deed in favour of Respondent No. 1 who is wife of his real brother but without consulting the principal i.e. the petitioner. There is no evidence available on the record to show that Respondent No. 2 before making the gift questioned herein, consulted the petitioner and even otherwise it was imperative upon Respondent No. 2 to seek the instruction and permission from the petitioner because of the admitted fact that Respondent No. 2 made the gift in favour of his close relative i.e. wife of his brother.
The other aspect of the instant case, which requires consideration, is that the Respondent No. 1 is not the daughter of the petitioner and his father's name is Akhlas Khan. The relation of Respondent No. 1 with the plaintiff is to the extent that her mother Mst. Nazir Begum after getting divorce from the aforesaid Akhlas Khan contracted second marriage with the petitioner and the said Nazir Begum, as revealed from the record, has died some years ago. Respondent No. 1 about 25 years ago, entered into nikah with one Muhammad Rafique who is the real brother of Respondent No. 2. From the aforesaid relation inter-se the parties, it is proved that Respondent No. 1 was step daughter of the petitioner and if the petitioner had any intention to make the gift in her favour, this would have been done by the petitioner himself.
While dealing such like proposition, their Lordships of Hon'ble Supreme Court of Pakistan has observed as under:--
1994 SCMR 818
Contact Act (IX of 1872)
----Ss. 214 & 215--Constitution of Pakistan (1973), Art. 185 (3)--Leave to appeal was granted to consider as to whether an attorney could have exercised the right and power of the owner to make a mental decision for purpose of making a gift as against form of alienations like sale without the donor himself having taken a mental conscious decision of making a gift, particularly, on the basis of alleged power of attorney which allegedly gave power to alienate only through a general power of attorney and whether law laid down by Supreme Court regarding transfers by attorneys in favour of next of kin without the specific approval from the principal had been followed in the case.
2005 SCMR 1368
(a) Islamic Law--
----Gift--Gift through attorney--Essentials---Power of attorney in such case must specifically authorize attorney to make a gift of property in favour of specified person.
PLD 2007 Lahore 467
(a) Islamic Law--
---Gift through agent--Scope--Personal acts of principal-donor depending upon his own mental decision cannot be delegated to agent--Decision to whom gift should be made being sole prerogative of donor cannot be left at the choice and whim of agent--Only after making declaration of gift, donor can appoint agent for accomplishment of the object--Principles.
A Muslim in the mattes of gifts, divorce etc. can confer the authority to an agent. But where it is the personal act of the principal, which is dependent upon his own mental decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whims of the agent, rather it is the sole prerogative of the donor, which cannot be delegated or deputized. However, once the decision is taken, and the donor makes a declaration, only thereafter an agent for the accomplishment of the object can be appointed. A Muslim cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntary transfer of the property to another made gratuitously and without consideration; it is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self consideration of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision can be delegated to an agent. The donor himself, has to make the gift, whereafter he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction.
2004 SCMR 618
Contract Act (IX of 1872)--
--Ss. 188, 214 & 215--Sale of land by Attorney to his own wife without consulting the principal--Validity--Attorney, if wanted to exercise such power in his own favour, had to consult the principal before doing so--Such sale was liable to be struck down.
The learned counsel for respondents when confronted with the golden principles, referred in the judgments supra, which are squarely applicable on the facts of the instant case, the learned counsel had no answer and also could not refer any judgment contrary to the above-referred esteemed judgments.
The learned trial Court while decreeing the suit rightly observed that the respondents could not substantiate their stance by adducing any oral or the documentary evidence but the learned appellate Court has traveled totally beyond the jurisdiction conferred upon him under the law and rendered a conclusion which is not only, as observed above, against the facts of the case but also the consistent view maintained in the judgment supra. The petitioner has succeeded to prove that before making the gift by Respondent No. 2 in favour of Respondent No. 1, no consultation or prior admission was obtained by him and further, that the petitioner had not given the authority to Respondent No. 2 while executing the power of attorney to alienate the suit property in any manner whatsoever, therefore, the judgments of the learned appellate Court being contrary to the facts and violative of law, is unable to sustain.
For the foregoing reasons, this revision petition is allowed, the impugned judgment and decree passed by the learned appellate Court is set aside and that of the learned trial Court is affirmed. No order as to costs.
(Sh.A.S.) Petition allowed
PLJ 2009 Lahore 483
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD RAMZAN--Petitioner
versus
ADDL. SESSION JUDGE--Respondent
W.P. No. 1807 of 2009, decided on 24.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Remedy against revision order--Purchase and sale of vehicle--Petitioner's application for superdari of vehicle dismissed by two Courts below--Petitioner also brought a civil suit for settlement of ownership dispute but he was not given any interim relief uptil appeal--Selling vehicles without securing full ownership, is a practice but any practice which is opposed to legal provisions, cannot claim any precedence--Petitioner as per his own showings, has sold vehicle to a person with condition that he would hand over transfer letter on receipt of entire consideration--First Appellate Court rightly observed that his status as owner of vehicle, if any, stood terminated when he sold same and that at most, he could claim balance amount from purchaser--Vehicle was directed to be given on superdari to respondent (another purchaser) by Magistrate and upheld in revision by First Appellate Court--Law does not provide any remedy against revisional order passed by a Court of Sessions, in hierarchy of Criminal Procedure Code--High Court would, therefore, be slow in entertaining a writ petition against revisional orders passed by Court of Sessions, particularly when it is based on evidence and is clothed with authority--Controversial questions of facts cannot be determined in writ jurisdiction--Proper forum is Civil Court and a civil suit has already been filed by writ petition in which he had failed to get any interim relief--Writ petition is not maintainable and consequently dismissed in limine. [Pp. 484 & 485] A, B & C
Malik Sahib Khan Awan, Advocate for Petitioner.
Date of hearing: 24.2.2009.
Order
Muhammad Ramzan, petitioner has challenged the legality of the order dated 21.11.2008, passed by Mr. Muhammad Zulfiqar Lone, learned Addl. Sessions Judge, Faisalabad whereby he had dismissed the revision petition brought before him against the order dated 31.7.2008, passed by Ch. Munir Ahmad, learned Magistrate, Section 30, Faisalabad.
The dispute relates to Vehicle No. SAB-1853, the subject matter of FIR No. 323/06 registered under Sections 420/468/471 PPC Police Station Civil Lines, Faisalabad. The case of the petitioner was that he had purchased the above said vehicle on open transfer letter from one Siraj Ahmad son of Ghulam Qadir of Sanda Khurd, Lahore and had sold the same to Respondent No. 7, Muhammad Ismail for a sum of Rs.3,30,000/-; that he had received earnest money as Rs.70,000/- and balance amount was settled to be paid in monthly installments of Rs.5000/- each; that it was agreed that after full payment, he would give the transfer letter to Muhammad Ismail, Respondent No. 7 but that Muhammad Ismail in connivance with Respondents Nos.5 and 6 (Asghar Ali and Muhammad Latif), prepared a fake and forged transfer letter and got the vehicle transferred in the name of Respondent No. 5 (Asghar Ali). The contention is that the petitioner was entitled to the Superdari of the vehicle but that the two learned Courts below had illegally dismissed his application without any lawful justification.
I have heard learned counsel for the petitioner and gone through the record appended with the writ petition. It reveals from the record, and there is no denying of this fact, that Siraj Din was the original owner of the aforesaid vehicle. It was transferred by way of sale transaction by Siraj Din in favour of Ghulam Jilani. Ghulam Jilani then transferred the same to Muhammad Ramzan, petitioner. Muhammad Ramzan by way of an agreement, sold to Muhammad Ismail, Respondent No. 7 and the latter further transferred the vehicle to Asghar Ali (Respondent No. 5). Lastly, it was sold by Asghar Ali to Muhammad Bashir. The matter was taken to the authorities of the Excise & Taxation Department. The Motoring Registration Authority, Faisalabad vide order dated 3.10.2007, summed up the issue with the direction that the parties should invoke the jurisdiction of the civil Court for settlement of the ownership dispute. The petitioner also brought a civil suit but he was not given any interim relief uptil appeal. Selling vehicles without securing full ownership, is a practice but any practice which is opposed to legal provisions, cannot claim any precedence. The petitioner as per his own showings, had sold the vehicle to Muhammad Ismail with the condition that he would hand over the transfer letter on receipt of the entire consideration. The learned Addl. Sessions Judge in the impugned order dated 21.11.2008, rightly observed that his status as owner of the vehicle, if any, stood terminated when he sold the same and that at the most, he could claim the balance amount from the purchaser Muhammad Ismail. The preponderance of record appended with the writ petition by the petitioner himself, was clearly against him. The vehicle was directed to be given on Superdari to Muhammad Bashir, Respondent No. 3, by the learned Magistrate Section 30, Faisalabad vide his order dated 31.7.2008. This order was upheld in revision by the learned Addl. Sessions Judge, Faisalabad vide the impugned order dated 21.11.2008. The law does not provide any remedy against the revisional order passed by a Court of Session, in the hierarchy of the Criminal Procedure Code. The High Court would, therefore, be slow in entertaining a writ petition against the revisional orders passed by the Court of Session, particularly when it is based on evidence and is clothed with authority. No non-reading or misreading of the material on record was pointed out either.
In the present case, I find that both the learned two Courts below had passed the impugned orders on sound reasoning and taking into consideration the relevant facts. Controversial questions of facts cannot be determined in writ jurisdiction. The proper forum is the civil Court and a civil suit has already been filed by the writ petitioner in which he failed to get any interim relief.
For all the above reasons, the writ petition is not entertainable and the same is consequently, dismissed in limine.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Lahore 485
Present: S. Ali Hassan Rizvi, J.
LIAQAT ALI--Petitioner
versus
ADDITIONAL SESSIONS JUDGE--Respondent
W.P. No. 3450 of 2009, decided on 23.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Ex-officio Justice of Peace--SHO was directed to record version--Meticulous precautions--Recording of second FIR--Jurisdiction--Murder case--Petitioner got registered FIR for murder of his wife against accused persons--Application before Ex-officio Justice of Peace alleged therein that petitioner in collusion with police has got lodged FIR against facts whereas he alongwith other accused (named in application) are real accused for murdering of her daughter--Ex-officio Justice of Peace directed SHO concerned to record revision of respondent and to proceed in accordance with law--In presence of an FIR in respect of same occurrence second FIR cannot be lodged and it was not appropriate for Ex-officio Justice of Peace to order for registration of same--When earlier petitioner had become complainant in FIR, he took meticulous precautions--When second FIR has lawfully been directed to be recorded at instance of mother of deceased (respondent) giving altogether a different version, there may be nothing wrong with it--No illegality in exercise of jurisdiction by Ex-officio Justice of Peace calling for interference--Petition dismissed in limine. [Pp. 486 & 487] A, B & C
2007 P.Cr.L.J 1532, rel.
S. Sheharyar Khan, Advocate for Petitioner.
Date of hearing: 23.2.2009.
Order
The instant writ petition is filed against the order dated 11.02.2009 passed by learned Additional Sessions Judge as Ex-officio Justice of Peace whereby on the application of Respondent No. 4, the SHO concerned was directed to record version of the respondent above-said and to proceed in accordance with law.
No. 4 Mst. Khalida Bibi was married with petitioner and he in order to grab her agricultural land had been insisting upon and in the night in between 15/16.12.2008 along with his co-accused committed her murder. Further alleged therein that the petitioner in collusion with the police has got lodged the FIR against the facts whereas he alongwith other accused named in the application are the real accused for murdering of her daughter.
Learned counsel argued that already FIR No. 483/08 on his statement stands registered against other accused persons for the murder of his wife Mst. Khalida for the motive that one Muhammad Ayub had demanded the agricultural land of his wife to be transferred in his name; that one of the accused namely Ashiq alias Samran son of Liaqat Ali has got recorded his confessional statement and he alongwith other co-accused has committed her murder. In the view of the learned counsel in the presence of an FIR in respect of the same occurrence the second FIR cannot be lodged and it was not appropriate for the learned Ex-officio Justice of Peace to order for registration of the same.
Mst. Muhammad Bibi-Respondent No. 4 is the real mother of the deceased Mst. Khalida Bibi. According to the allegation contained in the application moved by Respondent No. 4 for registration of the case, the present petitioner Liaqat Ali treating his wife Khalida deceased as a tutelage in his hand, goading her to transfer her agricultural land in his name. However, she was extremely reluctant. It was allegedly for this reason that the petitioner along with co-accused had done her to death. In the relevant application details and reasons for the occurrence were given. The poor lady was done to death by causing sharp edged weapon injuries. When earlier the petitioner had cleverly become complainant in FIR No. 483/08, he took meticulous precautions and in order to crown his mischief, got recorded the statement of Muhammad Ayub accused. When it was a case of direct evidence, there was no occasion of getting the statement of Muhammad Ayub recorded under Section 164, Cr.P.C. His statement having not been recorded in the presence of the accused, would have its own ramifications in terms of Section 164, Cr.P.C. Be that as it may now when second FIR has lawfully been directed to be recorded at the instance of Respondent No. 4 giving altogether a different version, there may be nothing wrong with it. Recording of second FIR in the peculiar circumstances like the ones here, was permissible. D.B. ruling reported as Allah Yar v. S.H.O. (2007 P.Cr.LJ. 1352) may be aptly followed. In my view, there is no illegality in exercise of jurisdiction by the learned Ex-officio Justice of Peace calling for interference in exercise of Constitutional jurisdiction of this Court. Dismissed in-limine.
(Sh.A.S.) Petition dismissed
PLJ 2009 Lahore 487
Present: Maulvi Anwar-ul-Haq, J.
RIAZ MEHMOOD SHEIKH--Petitioner
versus
SHAMSHER ALAM KHAN and another--Respondents
W.P. No. 16603 of 2008, heard on 13.1.2009.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Deposit of rent--Personal requirement--Jurisdiction of rent controller--Constitutional jurisdiction of High Court--Rent stood paid to the landlord, the order striking off the defence and directing delivery of possession was the wholly without jurisdiction as the only fact which authorize rent controller to pass such an order was non-compliance of the order u/S. 13(6) of Ordinance, 1959 for depositing of rent--Impugned order was illegal and illegality was floating on its surface--Art. 203 of the Constitution vests High Court with supervisory jurisdiction over all Courts subordinate to it and in the exercise of the authority to correct any jurisdictional or legal defect in order impugned before it--Writ petition allowed. [P. 490] B & C
Constitution of Pakistan, 1973--
----Art. 199--Availability of alternate remedy--Constitution jurisdiction--Scope of--Availability of alternate remedy did not constitute a bar upon jurisdiction of High Court to entertain a writ petition and to exercise constitutional jurisdiction if the circumstances so warrant.
[P. 490] A
Mr. Salman Aslam, Advocate for Petitioner.
Mr. Muhammad Mohsin Rana, Advocate for Respondents.
Date of hearing: 13.1.2009.
Judgment
On 26.5.2007 the Respondent No. 1 filed an application for ejectment of the petitioner from a house located in Lahore urban area. According to him the petitioner is a tenant subject to payment of rent at the rate of Rs. 8500/- per month under a written agreement dated 3.7.98. It was alleged that the petitioner has not paid rent at enhanced rate as agreed between the parties and has committed default in payment of rent. Bonafide personal requirement was also pressed. The petitioner filed a written statement denying the said allegations of default and personal requirement. On 15.4.08 the learned Rent Controller passed an order under Section 13 (6) of the Punjab Urban Rent Restriction Ordinance, 1959. The rate of rent was fixed tentatively at the rate of Rs. 8500/- per month and directed the petitioner to pay the arrears from May 2007 i.e date of institution to March 2008 within one month and to pay future rent before the 15th day of every succeeding month. He, however, observed that the petitioner will be entitled to deduct the amount already paid. Issues were framed. The case was adjourned to 15.5.08 when an application was filed for recalling the said order dated 15.4.08. It was stated that the rent was being paid regularly through cross cheques and direction for arrears ought not to have been issued. Another application was filed stating that the rent for the month of May 2008, has been paid to the respondent by means of cheque and has been deposited in Court as well and same be adjusted. An application was filed by the respondent also for modifying order dated 15.4.08 by fixing rent at the rate of Rs. 13281.25. Yet another application was filed by the Respondent No. 1 for framing an issue as to the rate of rent. All these applications were taken up on 25.7.08. The application for adjustment of rent of May 2008, which had been, paid twice, was allowed. The application for recalling order dated 15.4.08 was dismissed. At the same time it was observed that the petitioner has failed to produce proof for payment of rent from May 2007 to January 2008. The defence was struck off and the petitioner was directed to deliver the possession. At the same time the case was adjourned to 17.9.08 for arguments on the application for framing of additional issue. The petitioner filed an application for review of the said order dated 25.7.08 stating that he has paid the rent by mean of cheques which have been cleared and paid into the account of the respondent. This application was dismissed on 15.11.08 on the ground that the order cannot be reviewed. This writ petition came up on 20.11.2008 when notice was issued to the respondent who put in appearance alongwith learned counsel on 4.12.08. He was confronted with statement of the bank accounts produced by the petitioner. He stated that he had remained out of country and is maintaining accounts at two banks that he will check up with his banks.
Learned counsel for the respondent has candidly conceded that the rent in fact had been paid into account of the respondent.
Learned counsel for the petitioner contends that the rent for January 2007 to March 2008 having been admittedly paid into the account of the respondent, the learned Rent Controller has acted without lawful authority while striking off the defence and directing delivery of possession. Learned counsel for Respondent No. 1 while not denying due payment of the rent vehemently urges that the petitioner ought to have filed an appeal against the order dated 25.7.08 which by all means was a final order of ejectment and notwithstanding the fact that the rent had been paid the learned Rent Controller has passed a lawful order on 15.11.08 dismissing the review application for the reason that he had no jurisdiction to review the order.
I have gone through the records of the learned Rent Controller. The details of the proceedings have already been noted above. It is an admitted position that the rent from May 2007 to January 2008 stood regularly paid each month into bank account of the respondent Thus, there was no non-compliance of the order passed by the learned Rent Controller under Section 13 (6) of the said Ordinance, 1959.
Coming to the said contention of the learned counsel. It is true that order passed on 25.7.08 directing the petitioner to deliver the possession after striking off his defence was appealable. However, it is equally true that in the peculiar circumstances of the case when the learned Rent Controller kept the proceedings pending and in fact adjourned the case for arguments on the application filed by the Respondent No. 1 for framing an additional issue and further in view of the admitted position that the rent had actually been paid to the landlord, it cannot be said that the petitioner acted malafide while bringing the said fact to the notice of the learned Rent Controller.
The availability of alternate remedy does not constitute a bar upon jurisdiction of this Court to entrain a writ petition and to exercise constitutional jurisdiction if the circumstances so warrant. It is more regulatory provision than a rule of law. In case in hand when it is admitted that rent stood paid to the landlord, the order striking off the defence and directing delivery of possession is wholly without jurisdiction as the only fact which authorize the learned Rent Controller to pass such an order is non-compliance of the order under Section 13(6) of the said Ordinance, 1959 for deposit of rent. The impugned order is patently illegal and illegality is floating on its surface. Besides, Article 203 of the Constitution vests this Court with supervisory jurisdiction over all Courts subordinate to it and in the exercise of said authority to correct any jurisdictional or legal detect in order impugned before it. Reference be made to the cases of Government of Punjab through Ministry for Revenue, Board of Revenue Lahore and others v. M/s. Crescent Textile Mills Ltd. (PLD 2004 SC 108) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279).
Learned counsel for the petitioner expresses no objection to the framing of additional issue as to the rate of rent. Following additional Issue No. 1-A is accordingly framed:
"At what rate the rent is payable by the respondent to the petitioner in accordance with agreement between the parties?"
(Sh.A.S.) Petition allowed
PLJ 2009 Lahore 491 (DB)
Present: Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ.
CHANCELLOR G.C. UNIVERSITY, FAISALABAD and 4 others--Appellants
versus
MUHAMMAD MUSHTAQ, REGISTRAR G.C. UNIVERSITY, FAISALABAD--Respondent
I.C.A. No. 288 of 2005 in W.P. No. 5506 of 2005, heard on 15.12.2008.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Constitution of Pakistan, 1973--Art. 199--Intra Court Appeal--Jurisdiction of High Court--Legality--Civil servant ousted from service through notification--Causing a serious prejudice--Termination from service on the basis of allegation--Termination order was set aside--Assailed--Allegations against the respondents specifically mentioning in the writ petition was not disputed then it was obligatory on the part of the appellants establishment to afford a fair chance to the respondent to defend himself and that too through the course of regular inquiry where he must had been associated but such aspect was altogether ignored by the appellate Court while dealing with the case--No allegation or infirmity was framed in impugned order--Intra Court Appeal dismissed. [P. 493 & 494] A & B
Mian Ehsan-ul-Haq Sajid, Addl. Advocate-General for Appellants.
Mr. Tariq Mahmood Gill, Advocate for Respondent.
Date of hearing: 15.12.2008.
Judgment
Hafiz Tariq Nasim, J.--The backdrop of this Intra Court Appeal is that the respondent Muhammad Mushtaq was appointed as Register of Government College University, Faisalabad in BS-19 for a period of three years vide notification dated 11.02.2004, he assumed the charge, performed his duties and vide notification dated 26.03.2005 his terms and conditions of service were notified, however, only after four days of issuance of the said notification, he was ousted from service through notification dated 30.03.2005, causing a serious prejudice to the respondent, who invoked the jurisdiction of this Court under Article 199 of the Constitution of Pakistan. The writ petition was contested by the present appellants, however, the writ was allowed and termination order of the respondent was set aside through judgment dated 03.06.2005, which is under challenge in the present appeal.
Learned counsel for the appellants argued the case at length and submits with vehemence that the learned Judge in Chamber traveled beyond the scope of jurisdiction resulting into serious miscarriage of justice, did not advert to the points raised in its true perspective and case law referred by the appellants was not considered at all.
Learned counsel reiterated his arguments which were raised in the writ petition and relied upon the same judgments which were referred before the learned Judge in Chamber.
On the other hand, learned counsel for the respondent stood behind the impugned judgment and relied on the same judgments which were made the basis of granting relief to the respondent by the learned Judge in Chamber.
Arguments heard. Record perused.
Suffice it to refer para-9 of the reply filed by the present appellants in the writ, which shall be advantageous to reproduce as under:--
"9. That Para No. 9 is correct to the extent that notification dated 30th of March 2005 has been issued but the remaining para is incorrect. There are certain allegations/complaints against the petitioner about his inefficiency his role for promotion of the bratheryism, polarization and illegal admissions made by him as per Annexure C, D and E. The petitioner was apprised of the same and counseling was made by the Vice Chancellor but of no vain. He was given an opportunity of personal hearing on 14.01.2005, as per Annexure F and F/1. The petitioner appeared before the Chancellor but could not deny the charges. However, the case remained under considerations of the Respondent No. 1 and ultimately on 30.03.2005 the services of the petitioner were dispensed with."
"3. That it may quite pertinently be submitted here that during the above while, there have been complaints against the respondent in regard to his having promoted bradri-ism, polarization and made illegal admissions vide annex "E" to the appellants' reply to the main writ petition, wherefor he was complained against by Appellant No. 2 to Appellant No. 1 and it was thus only that the services of the respondent were dispensed with by the latter directly dint of Notification No. GS(B)8-9/2004-146, dated the 30th of March, 2005."
"(g) That the respondent has been a medium to promote bradri-ism, polarization and a delinquent in making illegal admissions in the University vide annex "E" to the appellants' reply to the writ petition. Further, an aspersion of forging a document partnership deed relating to Appellant No. 2 and others was also cast upon the respondent in regard whereto a criminal case was lodged against him vide case FIR No. 135/2005 registered with Police Station Gulberg, District Faisalabad, by all of which facts he brought a bad name to the University wherefore he was not entitled to any relief from this Hon'ble Court, for, he himself did not do equity and had come to it with unclean hands."
After going through the pleadings of the appellants before the learned Judge in Chamber, it shall not be difficult to arrive at the conclusion that the respondent was terminated from service on the basis of some allegations. When this practical situation is evident from the record, then the law laid down by the Hon'ble Supreme Court of Pakistan shall come to the rescue of the respondent, which is reported as Muhammad Amjad vs. WAPDA (1998 PSC 337), wherein it is held by the apex Court that even in case of a contract employee's termination if some stigma attaches, then without resorting to the procedure of regular inquiry the employee cannot be non-suited.
In the present case even today, the allegations levelled against the respondents specifically mentioning in the paras of reply to the writ petition as referred above are not disputed then it was obligatory on the part of the appellants' establishment to afford a fair chance to the respondent to defend himself and that too through the course of regular inquiry where he must have been associated but this aspect is altogether ignored by the present appellants while dealing with the case.
The learned Judge in Chamber not only discussed each and every aspect agitated by the appellants in the impugned judgment in depth rather relied upon the law laid down by the Hon'ble Supreme Court of Pakistan like Khawaja Ghulam Sarwar vs. Pakistan through the General Manager, P.W.R. Lahore (PLD 1962 SC 142), Pakistan and others vs. Public at Large and others (PLD 1987 SC 304), A.R. Azar, Deputy Chief Engineer, West, North-Western Railway Lahore and others vs. The Federation of Pakistan and another (PLD 1958 (W.P.) Lahore 185), Commissioner Income Tax, East Pakistan vs. Fazal-ur-Rehman (PLD 1964 SC 410), Province of East Pakistan and another vs. Noor Ahmad and another (PLD 1964 SC 451), PIAC through its Chairman vs. Nasir Jamal Malik and others (2001 SCMR 934), Pakistan State Oil Company Limited vs. M. Akram Khan and others (2004 PLC (CS) 992) and Farasat Hussain and others vs. Pakistan National Shipping Corporation (PLJ 2005 SC 212).
In para-11 of the impugned judgment the learned Judge in Chamber very ably distinguished the judgments referred by the present appellants and then accepted the writ petition.
The ratio in all the judgments referred by the learned Judge in Chamber in support of respondents claim is further endorsed by the Hon'ble Supreme Court of Pakistan in the cases of Arshad Jamal vs. N.-W.F.P Forest Development Corporation and others (2004 SCMR 468) and PIA vs. Nadeem Murtaza Khan (2007 PLC (CS) 334).
Viewing the case from all angles, we could not find any illegality or any infirmity in the impugned judgment passed by the learned Judge in Chamber. The Intra Court Appeal being devoid of any force is dismissed.
Before parting with this judgment, taking the advantage from a judgment dated 11/12.06.2008 passed by the apex Court in Civil Appeal No. 558/2008 (Shahid Hayat vs. Federation), we would direct the present appellants to allow the respondent to serve for a period of 01-year, 10-months and 14-days equivalent to the interrupted period of his service from 20.03.2005 to 13.02.2007 (the time of expiry of his contract), as the denial to the respondent of his right to actively serve the University without any fault on his part is established, which brought humiliation and suffering to the respondent.
(N.I.) Appeal dismissed.
PLJ 2009 Lahore 494
[Bahawalpur Bench Bawalpur]
Present: Malik Saeed Ejaz, J.
JABBAR ALI and 3 others--Petitioners
versus
TEHSIL MUNICIPAL ADMINISTRATION, KHAIRPUR TAMEWALI through Nazim & another--Respondents
W.P. No. 631/BWP of 2003, heard on 19.2.2009.
Constitution of Pakistan, 1973--
----Arts. 199--Civil Procedure Code, (V of 1908), S. 34-A--Constitutional petition--Servant of town committe--Surplus due to abolishen of Zila tax and Octri--Servants were offered option to retire voluntarily with benefit admissible under the rules--Pensionary benefit were given--Challenge to--Entitlement to get profit over the amount of gratutity--Applicability--No direction was ever given therein by High Court to the respondents for making payment of gratuity to the petitioners alongwith the profits/interest--Only the pension/gratuity benefits were to be paid to the petitioners and not the interest/profit due to delayed payment--At the time of receiving pension/gratuity benefits, none of the petitioners raised any objection or refused to receive the same without profit--Petitions dismissed. [P. 496] A & B
Mr. M. Shamshir Iqbal Chughtai, Advocate for Petitioners.
Mr. Masaud Ashraf Sheikh, Advocate for Respondents.
Date of hearing: 19.2.2009.
Judgment
This judgment will dispose of Writ Petition No. 631 of 2003 (Jabbar Ali etc. vs. TMA & another) and Writ Petition No. 1024 of 2004 (Nisar Ahmad vs TMA & another) as both these petitions involve similar facts and circumstances.
Brief facts giving rise to these petitions are that the petitioners were the employees of Town Committee, Khaipur Tamewali, District Bahawalpur, which stands replaced by Tehsil Municipal Administration under the new local government set up. They became surplus due to abolition of Zila Tax and Octroi Tax. Vide letter dated 20.8.1999, issued by the Government of the Punjab, Local Government & Rural Development Department, Lahore, such employees were offered option to retire voluntarily with benefits admissible under the rules. Pursuant to the aforesaid letter, they were retired but were given pensionary benefits after a considerable delay. The grievance of the petitioners is that out of the pension fund of the employees of the Town Committee, thirteen Saving Certificates, valuing Rs.4,26,180/- were purchased in the year 1994, which became Rs. 12,57,135/- after adding the profit accrued thereon and the petitioners were entitled to get profit at the rate of rupees eleven per cent which was gained by the respondents with effect from the date of their retirement till the date of release of their gratuity, as the same was not released to them in time by implementing the order of this Court passed in Writ Petitions No. 1538 & 68 of 2001 on 27.11.2002.
Arguments heard. Record perused.
The contention of the learned counsel for the petitioners is that according to Section 34-A of the CPC, the petitioners are entitled to get profit over the amount of gratuity. Before proceeding further, I would like to reproduce the aforesaid Section 34-A, which reads as under:--
"34-A. (1) Where the Court is of opinion that a suit was instituted with intent to avoid payment of any public dues payable by the plaintiff or on his behalf the Court may, while dismissing such suit, make an order for payment of interest on such public dues at the rate of two per cent, above the prevailing bank rate.
(2) Where the Court is of opinion that recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent, above the prevailing bank rate.
Explanation.--In this section,--
(a) "bank rate" means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and
(b) "public dues" include the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority."
The afore-quoted provision of law reveals that it relates to the public dues payable to the Government and as such, the same is not applicable to the facts of the instant case. Even otherwise, a perusal of the above referred order of this Court reveals that no direction was ever given therein by this Court to the respondents for making payment of gratuity to the petitioners along with the profit/interest. The relevant portion thereof is as follows:--
"The respondent-Tehsil Municipal Officer (Mr. Abdul Ghani) is directed to get encashed the above referred Defence Saving Certificates and disburse the pension/gratuity benefits to all the petitioners including Nazar Hussain and Noor Muhammad retired employees who have not approached this Court."
Thus, it is clear that only the pension/gratuity benefits were to be paid to the petitioners and not the interest/profit due to delayed payment. It is also worthwhile to mention here that at the time of receiving pension/gratuity benefits, none of the petitioners raised any objection or refused to receive the same without profit.
(N.I.) Petition dismissed
PLJ 2009 Lahore 497
Present: Zafar Iqbal Chaudhry, J.
NAJEEB ULLAH--Petitioner
versus
Mst. MAKHDOOM AKHTAR and another--Respondent
W.P. No. 4583 of 2009, decided on 11.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Reversing of pending--Condition for return of gold ornaments was struck down--Suit for dissolution of marriage was decreed on the basis of khula--Wife was held liable to return the amount which she received as Haq Mehr as well as gold oranments--Condition for return of gold ornaments was struck down by Appellate Court--Validity--If husband wants to divorce his wife, then she should not tease her to get the dower back--If he does not want to divorce but the wife is bent on separation, the gold ornaments did not include in Haq Mehr of the wife--Petition dismissed. [P. ] B
PLD 2004 Lah. 290, rel.
Khula--
----Meaning to take off--It means take off a marriage bond (by women)--Allah give the husband the right to divorce and to balance the rights of the spouses. [P. ] A
Mr. Zahid Hussain Khan, Advocate for Petitioner.
Date of hearing: 11.3.2009.
Order
Challenges the judgment and decree dated 17.1.2009 passed by the learned Additional District Judge Khushab whereby the appeal filed by Respondent No. 1 was accepted and while reversing the finding of the learned trial Court on Issue No. 2, the petitioner was not held entitled to recover gold ornaments.
I have heard the learned counsel for the parties and perused the documents attached with this petition. Both the petitioner and Respondent No. 1 were married to each other on 10.9.1997, but having developed hatred against the petitioner, Respondent No. 1. filed a suit for dissolution of marriage and the learned trial Court vide judgment and decree dated 23.10.2008 decreed the same on the basis of Khula and Respondent No. 1 in lieu thereof was held liable to return the amount of Rs.500/- which she received as Haq Mehr as well as gold ornaments weighing 1 tola, 1 masha 4 rati, a ring weighing 3¬ masha and a pair of Maganath 3 tola 4 rati to the petitioner as consideration of Khula. However, on filing appeal by Respondent No. 1, the condition for return of the gold ornaments was struck down by the learned appellate Court through the impugned judgment and decree.
The learned counsel contends that Respondent No. 1 had herself executed Iqrarnama (Ex:D-1) for the return of the gold ornaments to the petitioner in case she demanded for Khula. Admittedly the gold ornaments are not mentioned in the Nikahnama as Haq-e-Mehr. The learned appellate Court has rightly observed that the agreement Ex:D-1 was most doubtful document, which cannot be relied upon and the respondent has fully explained that her signatures on the said stamp were obtained for employment purposes, After perusal of Ex:D-1 it does not appeal to mind that the respondent being wife would have written such a document with consent when her marriage with the petitioner still existed.
Khula means to take off. In this context it means take off a marriage bond (by women). Allah (SWT) gave the husband the right to divorce and to balance the rights of the spouses; He gave the women the right to separate. Allah (SWT) says:
".....And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul' (divorce)..." (Al-Baqarah 2:229)
Narrated Ibn Abbas (RA):--
"The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostlel I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-lslamic manner (if I remain with him)." On that Allah's Apostle said (to her), "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet said to Thabit, "O Thabit! Accept your garden, and divorce her once." (Sahih Al-Bukhari)
The above discussion shows that if the husband wants to divorce his wife, then he should not tease her to get the dower back. This is unlawful for him but if he does not want to divorce but the wife is bent on separation, then she should return the dower and seek separation. As discussed above the gold ornaments did not include in the Haq-e-Mehr of the respondent and the learned appellate Court has rightly relied upon PLD 2004 Lahore 290 wherein it has been observed that the bridal gifts given by husband is absolute property of the wife and it could not be snatched away from her. The learned counsel has failed to point out any illegality or jurisdictional defect in the impugned judgment and decree, which being based on valid reasons is maintained.
(R.A.) Petition dismissed
PLJ 2009 Lahore 499
Present: S. Ali Hassan Rizvi, J.
ZAFAR HAYAT--Petitioner
versus
Mst. SHAMIM BIBI and 2 others--Respondents
W.P. No. 1750 of 2009, decided on 30.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Custody of minors--Age of minors is below ten--Entitlement of custody of minors--Welfare of minor lay with mother--Validity--When real mother is alive and father has entered into second marriage the female minors who are below ten, cannot be said to form an intelligence preference--Minors were residing with step mother--Paramount consideration ought to be for securing the welfare and happiness of the minors to live with the mother who in case of female is better to look after as compared to father who has entered into second marriage--Held: No substitute of the real mother for her female children--No illegality in impugned order calling interference in exercise of Constitutional jurisdiction of High Court. [P. ] A
Mr. Zia Ullah Khan Niazi, Advocate for Petitioner.
Date of hearing: 30.1.2009.
Order
Instant writ petition is filed against the judgment dated 23.07.2008 of the learned trial Court and of Additional District Judge passed in appeal on 22.12.2008.
Brief facts are; that Mst. Shamim Bibi filed an application for custody of minors against the petitioner as both were residing separately. Allegedly, the petitioner had snatched two minor daughters from Respondent No. 1 (mother) and expelled her from the house after giving beatings. The learned Judge, Family Court framed the issues arising out of pleadings of the parties and after recording evidence observed that the welfare of the minor lay with the respondent (mother) and she was entitled to the custody of the minors. The petitioner preferred an appeal, which was also dismissed. Hence, this petition.
Learned counsel for the petitioner argued that the minors are grown up being of the age of about 11/12 years; they are happy with the father and the learned trial Court examined them and on every occasion they preferred to live with their father. The learned lower Courts have not taken into consideration the intelligent preference of the minors and evidence on record, therefore, the impugned orders of the Courts below are liable to be set aside. Reliance is placed on Mst. Zar. Bibi v. Haji Malik Abdul Ghaffar and others (1998 MLD 1697).
Heard. Undoubtedly, the petitioner has entered into second marriage and the female minors are residing with step-mother while Respondent No. 1 is real mother who allegedly has been expelled from the house after entering into second marriage by the husband (petitioner). The age of both the minors is below ten. The minors were produced in Court by the father and they at the time of appearing in Court for interview were continuously weeping. They could not satisfactorily reply to the answer on asking whether they want to live with their mother or father. Both the minors were appearing under the superintendence of the petitioner/father. Learned trial Court had also observed depression on their faces. The learned Court having regard to the problem of the female children was of the view that minors could not be left at the mercy of their step-mother. In the situation, when the real mother is alive and the father/petitioner has entered into second marriage the female minors who are below ten, cannot be said to form an intelligence preference. The minors are residing with the step mother. The lower Courts both have rightly decided the issue framed that the paramount consideration ought to be for securing the welfare and happiness of the minors to live with the mother who in case of female is better to look after as compared to father who has entered into second marriage. There may be no substitute of the real mother for her female children. There is no illegality in the impugned order calling for interference in exercise of constitutional jurisdiction of this Court. Dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 501 (DB)
Present: Sayed Zahid Hussain, C.J. and
Raja Muhammad Shafqat Khan Abbasi, J.
Ch. MUHAMMAD ASLAM--Petitioner
versus
ISLAMIC REPUBLIC OF PAKISTAN through Secretary to the Govt. of Pakistan Law, Justice and Human Rights Division
Islamabad and another--Respondents
W.P. No. 10168 of 2005, heard on 12.3.2009.
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983--
----Art. 32--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petitioner assailed the order passed President of Pakistan--Petitioner being consumer of Sui Nortern Gas Company filed a complaint against exorbitant bill before Wafaqi Mohtasib--Alleging maladministration and wrong billing--Challenging the order of Acting Ombudsman--Objection as to limitation as well as maintainability of representation in his reply before President--Validity--While performing his functions u/Art. 32 of Order, the President acts in a quasi judicial and not in an administrative capacity--Question of limitation has not been dealt within impugned order which ought to have been dealt as a vested right accrues to either of the party on expiry of limitation--Order suffers from such flaw of serious nature--Petition disposed of. [P. ] A & C
PLD 1989 SC 109 & 1999 SCMR 2189, rel.
Principle of Natural Justice--
----Recording of reasons--Requirement of law--Recording of reasons while setting aside the recommendations of Ombudsman is consonance with the principle of natural justice. [P. ] B
1999 SCMR 2744, ref.
Mr. Allah Rakha, Advocate for Petitioner.
Mr. Aamir Rehman, Deputy Attorney General for Pakistan and Mr. Umar Sharif, Advocate for Respondents.
Date of hearing: 12.3.2009.
Judgment
Raja Muhammad Shafqat Khan Abbasi, J.--Through this writ petition, petitioner has assailed the order dated 26.8.2004 passed by the President of Islamic Republic of Pakistan, under Article 32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 whereby order dated 22.1.2000 passed by the Acting Ombudsman on the representation filed by Respondent No. 2 was set aside.
No. L/3962/99/1167 on 18.5.1999 against exorbitant bill of Rs. 1,87,895/- before the Wafaqi Mohtasib alleging maladministration and wrong billing on the part of Respondent No. 2.
"In view of the facts of the case and discussions held, the Agency is advised to charge the consumer from 12/97 to 6/98 according to the average consumption of the years 1997, 1998 and 1999 i.e. 37.872 HM P.M. that of Okara Bakery, restore connection on payment of revised bill without reconnection charges and also take disciplinary action against the meter reader who failed to record correct monthly reading".
While implementing the directions of the learned Ombudsman, Respondent No. 2 issued revised bill of Rs.83,948/- which was duly deposited by the petitioner.
Respondent No. 2 also filed representation under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman), Order 1983 on 16.6.2003 before the President of Islamic Republic of Pakistan challenging the order/recommendation of learned Acting Ombudsman dated 22.1.2000.
The petitioner took objections as to limitation as well as maintainability of the representation in his reply/comments before the President. However, the representation of the respondent/Company was accepted on 26.8.2004 whereby Acting Mohtasib's recommendation dated 21.1.2000 in complaint No. L/3962/99/1167 were set aside.
The learned counsel for the petitioner submits that no opportunity of hearing was provided to the petitioner by the President while setting aside the recommendation of learned Ombudsman. He further submits that finding/recommendation of the learned Ombudsman dated 22.1.2000 was challenged by the respondent Company through representation dated 16.6.2003 which was filed after about three years and six months whereas under Article 32 of President's Order 1 of 1983, any person aggrieved by a decision or order of the Ombudsman could make representation within thirty days to the President. According to the learned counsel, the representation of the Agency (which is available on the file as annexure-F) reflects that review under Article 11(2-A) of Ordinance was filed by the Agency against the finding dated 22.1.2000 was also dismissed on 10.5.2003, which show that Respondent No. 2 had assailed the final order dated 22.1.2000 after dismissal of review. The learned counsel submits that while deciding the representation the question of limitation or maintainability of the representation has not been decided in its true perspective.
Conversely the learned counsel for Respondent No. 1 supports the impugned order and submits that as per the scheme of law, it was not possible for President to provide personal/oral hearing to the parties. He placed reliance on Federation of Pakistan v. Dr. Anwar (2006 SCMR 382). Regarding limitation issue the learned counsel states that limitation will be reckoned from the date when reasons for non-compliance are rejected by the Ombudsman.
It may be observed that while performing his functions under Article 32 of the Order, the President acts in a quasi judicial and not in an administrative capacity. Reliance is placed on Hafiz Muhammad Arif Dar v. Income Tax Officer P.L.D. 1989 S.C. 109) and Federation of Pakistan vs. Muhammad Tariq Peerzada (1999 SCMR 2189). Recording of reasons while setting aside the recommendations of the Ombudsman is the minimum requirement under the law, which is in-consonance with the principle of natural justice. Reference for this purpose is made to Federation of Pakistan vs. Muhammad Tariq Peerzada (1999 SCMR 2744). The question of limitation has not been dealt with in the impugned order which ought to have been dealt as a vested right accrues to either of the party on expiry of limitation. The order suffers from this flaw of serious nature.
There is consensus that issues of like nature were considered by a learned Division Bench of this Court comprising one of us (Sayed Zahid Hussain, CJ) in ICA No. 296/2004 and the judgment rendered therein is reported as Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another V. Akhlaq Cloth House, Faisalabad and another (2008 PTD 965). The operative part of the judgment is as follows:
"In view of the preceding discussion, it follows that all such cases where the person/party concerned had notice/opportunity of filing comments/reply to the representation, the decision of the President cannot be annulled simply for the reason that personal/oral hearing was not afforded. But where the person/party concerned had no notice/opportunity of filing comments or reply and decision was made without affording such opportunity, the representation need to be considered and decided after notice and affording an opportunity of filing reply/comments to the same."
In the present case the non-application of mind to the issues emerging from the reply filed by the petitioner, is apparent which need to be decided afresh in accordance with law.
In this view of the matter, we declare the order dated 26.8.2004 as of no legal effect with the observation that representation dated 16.6.2003 in complaint No. L/3962/99/1167 filed by the respondent Company will be deemed to be pending before Respondent No. 1, which will be considered and decided afresh in accordance with law. It is also clarified that contents of the reply to the representation filed by the petitioner may also be given due weight while deciding the representation. In order to avoid further delay in the matter, it is observed that the matter, if possible, should be considered expeditiously i.e. within three months.
With the above observations, this writ petition is disposed of.
(R.A.) Petition disposed of
PLJ 2009 Lahore 504
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
MUHAMMAD YASIN--Petitioner
versus
STATE etc.--Respondents
W.P. No. 5942 of 2008, decided on 19.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Superdari of vehicle--Ex-parte proceeded--No other claimant whereas in the present proceedings, they have been proceeded against exparte and only claimant before High Court is the present petitioner--Petition was allowed with direction that the vehicle will be given on superdari in the terms that the petitioner shall approach Magistrate requesting for determination of marked price of the vehicle, purchase the saving certificates to be invested in profit bearing scheme transmits saving certificates so received to treasurer of High Court for safe custody--Petitioner shall be given vehicle on superdari and produce the vehicle before any Court of law and the amount of saving certificate alongwith profit shall be disbursed to a party who is declared as a lawful owner by competent Court of law. [P. ] A & B
Malik Javed Iqbal Ojla, Advocate for Petitioner.
Mian Abbas Ahmed, Addl. A.G. for State.
Nemo for Respondent No. 3.
Date of hearing: 19.3.2009.
Order
None has appeared for Respondent No. 3, therefore, he is proceeded against ex-parte.
The petitioner calls in question the orders dated 10.7.2007, passed by learned Ilaqa Magistrate and order dated 22.9.2008, passed by learned Addl. Sessions Judge, Multan, vide which his application seeking Superdari of vehicle Bearing No. TLA/539, Nissan Tanker, Model 1992, Chasis No. CV450YN-02107, Engine No. PF6-115025-A was rejected. Similar application and revision filed by Respondent No. 3 was also turned down by the learned Courts below with a direction to both the parties to approach the learned Civil Court for decision of question of title in a properly filed suit.
Learned counsel for the petitioner inter-alia contends that the vehicle in question was taken into possession from the petitioner by the police u/S. 550 Cr.P.C. and that the same is lying in the compound of Police Station, Muzaffarabad, Multan and the vehicle is likely to be deteriorated and the same is not properly maintained. Further submits that the petitioner is ready to furnish surety of any value, as directed by this Court.
Learned Addl. Advocate General is also of the view that the vehicle in question instead of allowing to be deteriorated, it would be in the fitness of things, if the same is given to any of the claimant subject to deposit of amount, equivalent to the market price of the vehicle in response to the query of the Court, he submits that the matter may be remanded to the learned trial Court Illaqa Magistrate for determination of market price of the vehicle in question, whereafter the learned Illaqa Magistrate may be directed to require the person obtaining the vehicle on Superdari to deposit with him the Saving Certificates of the equivalent value, which should be transmitted to the trexsurer/DR(J) of this Court for the safe custody till the time controversy is resolved by the Court of competent jurisdiction.
At present, there is no other claimant. The petition Bearing No. 6588/2008, filed by Respondent No. 3 has already been dismissed for non-prosecution, whereas in the present proceedings, they have been proceeded against ex-parte and the only claimant before this Court is the present petitioner. In view of above, I allow this petition and direct that the vehicle Bearing No. TLA/539, Nissan Tanker shall be given to the petitioner on Superdari in the following terms:--
(a) The petitioner shall approach the learned Illaqa Magistrate alongwith copy of this order requesting for determination of market price of the vehicle in question.
(b) The learned Illaqa Magistrate without loss of time shall determine the market value of the vehicle in question and thereafter shall require the petitioner to purchase the Saving Certificates, to be invested in any profit bearing scheme preferably from the National Saving Centre.
(c) The learned Illaqa Magistrate without loss of time shall transmit the Savings Certificates so received to the teasurer/DR(J) of this Court for safe custody. The treasurer of this upon receipt of the Saving Certificates shall keep the same in safe custody and shall not disburse them without order of this Court.
(d) Thereafter, the petitioner shall be given vehicle on Superdari. The petitioner shall be bound to produce the vehicle in question before any Court of law, if and when required.
(e) The petitioner shall get resolved the issue of ownership from a competent Court of law. The amount of Saving Certificates alongwith profit shall be disbursed to a party, who is declared as a lawful owner by a competent Court of law.
(R.A.) Petition disposed of
PLJ 2009 Lahore 507
Present: Maulvi Anwar-ul-Haq, J.
Mst. ZAINAB BIBI (deceased) through L.R.--Petitioner
versus
Mirza MUHAMMAD AQEEL and 9 others--Respondents
W.P. No. 10551 of 2002, heard on 31.10.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Suit was filed by next friend of deceased--Lady was not a person of unsound mind, the suit filed by a next friend on her behalf is not competent and plaint was rejected--Validity--Rejection of plaint would not constitute a bar to subsequent suit--Plaint in earlier suit was rejected on the sole ground that person filing the suit was not competent to do so on behalf of deceased--Instant suit was filed by the petitioners in their own right being the legal heirs of deceased--Petition was allowed. [P. ] A
Mr. Mushtaq Ahmad Mohal, Advocate for Petitioner.
Malik Noor Muhammad Awan, Advocate for Respondent No. 1.
Nemo for Others.
Date of hearing: 31.10.2008.
Judgment
On 27.4.2001 the petitioners filed a suit against the respondents. A registered deed dated 1.3.1994 purported to have been executed by Mst. Zainab Bibi in favour of the Respondent No. 1 was questioned. The Respondent No. 1 filed an application under Order VII, Rule 11 CPC on 9.6.2001 stating that Noor Hussain earlier filed a suit as next friend of Mst. Zainab but it was found that she is not a lady of unsound mind and the plaint was rejected on 1.3.2001. It was accordingly prayed that the plaint be rejected. The application was replied. The learned trial Court dismissed the application on 26.10.2001 stating that the matter requires recording of evidence. The Respondent No. 1 filed a revision petition, which was allowed by a learned ADJ, Hafizabad, on 20.5.2002 who has rejected the plaint of the petitioners.
Learned counsel for the petitioners contends that apart from the fact that the present suit had been filed by the petitioners in their own right as LRs of Mst. Zainab Bibi, in the earlier suit the plaint was rejected and the suit was not dismissed, the present suit was, therefore, not barred under any provision of law. Learned counsel for the contesting Respondent No. 1, on the other hand, contends that since the main question as to whether or not Mst. Zainab Bibi was of sound mind stands decided, the present suit was barred by res judicata.
I have gone through the copies of available documents particularly the earlier order dated 1.3.2001 relied upon by the learned ADJ. I find that the order was passed in a suit stated to have been filed on behalf of Mst. Zainab Bibi through a next friend. The learned Civil Judge observed that there has been an earlier decision on 5.10.2000 that Zainab Bibi was of sound mind. He then observed that since Zainab Bibi is not a person of unsound mind, the suit filed by a next friend on her behalf is not competent and the plaint was rejected.
It will be seen that nothing was decided in the said suit through the said order. All that was held with reference to an earlier decision was that the suit could not have been filed by the next friend on behalf of Zainab Bibi and the plaint was rejected.
Order VII, Rule 12 CPC lays down in categorical term that the rejection of plaint would not constitute a bar to a subsequent suit. Apart from the said categorical statutory position, the plaint in the earlier suit was rejected on the sole ground that the person filing the suit was not competent to do so on behalf of Mst. Zainab Bibi. The present suit has been filed by the petitioners in their own right i.e. being the LRs of Mst. Zainab Bibi and they are disputing the said transaction. They have every right to do so and in case there are able to prove that the land was not sold by the lady to the respondent, they are entitled to a decree in their favour. Needless to state that the order dated 5.10.2000 relied upon by the learned Civil Judge in order dated 1.3.2001 itself is under revision vide my judgment recorded in the connected Civil Revision No. 2065/02. The writ petition accordingly is allowed. The impugned order dated 20.5.2002 of the learned ADJ, Hafizabad, is set aside. The result would be that the suit filed by the petitioners shall be deemed to be pending. The parties shall appear before the learned Senior Civil Judge, Hafizabad, on 16.12.2008. The learned Senior Civil Judge shall requisition the records, take a written statement from the contesting defendants, frame issues arising out of the pleadings and to decide the matter after recording evidence. I may further point out that any observations in this judgment made by this Court are only for the purposes of this judgment and are not to influence the learned trial Court in the matter of decision of the suit on its merits. No. orders as to costs.
A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Hafizabad.
(R.A.) Petition allowed
PLJ 2009 Lahore 509
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
AMEER KHAN--Petitioner
versus
JUDGE FAMILY COURT--Respondent
W.P. No. 7093 of 2008, decided on 22.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--No additional issue was framed--Procedure was adopted by consent of the parties--Suit for maintenance allowance, decree--Order was set aside by allowing the application seeking to produce additional documentary evidence--Petitioner was also permitted to amend his written statement to that extent by remanding the suit--With consent of the parties no additional issue was framed and proceeded to decide the suit on the basis of evidence already recorded--Suit was again decreed--Challenged through the writ petition after about nine months--Validity--By non-framing of any additional issue no prejudice was caused to either of the parties, for the simple reason that entire controversy revalue around the issues which have already been framed--Held: Even of any issue was to be specifically framed as is being agitated for the petitioner--No prejudice to either of the parties and has not any way effected the impugned order or interest of the parties--Further held: Once a made/produce adopted by the Court on the request of the parties and an order or judgment is passed in pursuance thereof the parties are bound by it and are estopped from assailing the mode or judgment--Petition dismissed. [P. ] A, D & E
Constitution of Pakistan, 1973--
----Art. 199--Appeal was with drawn--Petition was filed after nine months against the order of Family Court--Principle of laches--Applicability--Law of limitation is not attracted but principle of laches do apply--Petition was dismissed in limine on the principle of laches. [P. ] B
(iii) Approbate and Reprobate--
----A party cannot be allowed to approbate and reprobate simultaneously. [P. ] C
Mr. Sagheer Ahmad Bhatti, Advocate for Petitioner.
Date of hearing: 22.4.2009.
Order
The petitioner Ameer Khan assails the judgment and decree dated 22.03.2008 passed by learned Judge Family Court, Burewala vide which suit for maintenance allowance filed by Respondent No 2-Lal Bibi has been decreed.
Briefly stated facts as those emerge out of this petition are that respondent Mst. Lal Bibi, ex-wife of the petitioner filed a suit for past and future maintenance on 16.5.2005 in the Court of learned Judge Family Court, Burewala District Vehari alleging therein that she was married to the petitioner 28 years ago and as a result of wedlock between the parties two children were born. The minor girl died whereas minor son is alive and is in her custody; that she was expelled from the house by the petitioner 10/11 years ago in three plain clothes whereafter she never paid any maintenance allowance either to her or the minor son. The suit was contested by the present petitioner alleging therein that he with the consent of respondent Lal Bibi contracted second marriage about 20 years ago and both the wives have been residing in the same house with him and that he has been maintaining both the wives in accordance with Islamic Law properly. The parties led their respective evidence oral as well as documentary whereafter the suit was decreed vide judgment and decree dated 17.2.2007 where against an appeal was preferred before the learned Additional District Judge, Burewala and with the consent of the parties the judgment and decree impugned therein was set aside by allowing the application filed by the present petitioner seeking to produce additional documentary evidence subject to payment of cost of Rs.500/-. The present petitioner was also permitted to amend his written statement to that extent by remanding the suit back to the learned trial Court for fresh decision.
In post remand proceedings learned Judge Family Court, allowed the petitioner to amend his written statement and after hearing the learned counsel tor the parties, with their consent no additional issue was framed and proceeded to decide the suit on the basis of evidence already recorded. Vide the impugned judgment and decree dated 22.3.2008 the suit of Respondent No. 2 was decreed, where against the petitioner preferred an appeal before the learned District Judge on 15.4.2008 which was withdrawn on 14.11.2008. This petition is directed against judgment and decree dated 22.3,2008 passed by learned Judge Family Court, which has been filed after about nine months.
It is inter alia contended by Mr. Saghir Ahmad Bhatti, learned counsel for the petitioner that in the first round of litigation Mst. Lal Bibi Respondent No. 2 filed a suit for recovery of maintenance allowance on 16.05.2005 which was decreed by learned Judge Family Court, Burewala, District Vehari vide judgment and decree dated 17.2.2007 where against appeal filed by the present petitioner was allowed by the learned District Judge, Vehari at Burewala vide judgment dated 14.3.2007. Further submits that alongwith the afore stated appeal an application was also filed before the learned appellate Court with the prayer that he may be allowed to file amended written statement before the learned Judge Family Court, which too was allowed and the learned appellate Court in remand order has observed in categorical terms that if in the amended written statement, any fresh point is urged in that eventuality learned Judge Family Court, shall frame additional issue and shall also allow the parties to lead evidence in support of their respective contentions. Further submits that the amended written statement was filed wherein a new point was urged to the effect that petitioner also divorced Respondent No. 2 Mst. Lal Bibi which became effective from 01.10.2005. The learned Judge Family Court, it is averred that instead of framing an additional issue proceeded to direct the parties to produce evidence. The parties in compliance whereof did produce evidence in the shape of affidavits. The parties inspite of being afforded an opportunity of cross-examination opted not to avail the same and the learned Judge Family Court, on the basis of oral as well as documentary evidence decreed the suit filed by Respondent No. 2 vide judgment and decree dated 22.3.2008.
In response to Court quarry as to what prejudice has been caused to him by not framing additional issue, he submits that the learned Judge Family Court, while decreeing the suit has granted an additional amount of Rs.28,000/- only to the petitioner, which according to the learned counsel for the petitioner is not in accordance with the evidence led by the parties and it is a case of misreading and non-reading of the evidence.
I have heard learned counsel for the petitioner and with his able assistance have also minutely gone through the record.
No doubt, law of limitation is not attracted but principle of laches do apply. On merits I find that the learned Judge Family Court, has exhaustively dealt with all the issues with sound reasons. The emphasis of learned counsel for the petitioner primarily is on the point that in post remand proceedings learned Judge Family Court, has failed to frame an additional issue in compliance with the remand order passed by learned Additional District Judge, therefore, the impugned judgment is not sustainable at this score alone, answer to which can also be found in the impugned judgment itself. In Para 3 it is in categorical, terms mentioned that with the consent of the learned counsel for the parties no additional issue was framed. Not even a single word has been uttered by the learned counsel to controvert the observation so made by the learned Judge Family Court. Now it is well settled law that a party cannot be allowed to approbate and reprobate simultaneously. Before the learned Judge Family Court, learned counsel, gave a clear consent and for that reason no additional issue was framed, even otherwise by non-framing of any additional issue no prejudice has been caused to either of the parties, for the simple reason that the entire controversy revolve around the issues which have already been framed, therefore, I am of the considered view that even if any issue was to be specifically framed as is being agitated by the learned counsel for the petitioner, the same caused no prejudice to either of the parties and has not any way effected the impugned judgment or interest of any of the parties. For all practical purposes the learned Judge Family Court has attended to all substantial points while passing the impugned judgment. As observed in preceding paras, the additional issue was not framed with the consent of parties, thus subsequently the petitioner cannot be allowed to resile from his commitment. By now it is well settled principle of law that once a mode/ procedure is adopted by the Court on the request of the parties and an order or judgment is passed in pursuance thereof the parties are bound by it and are estopped from assailing the such mode or judgment subsequently. In my view I seek guidance from 1999 CLC 1371 "Muhammad Hussain Vs. Muhammad Taqi."
For what has been discussed above I am not inclined to interfere in the well reasoned judgment passed by learned trial Court which is upheld. This petition being devoid of any merits is hereby dismissed in limine on the principles of laches as well as on merits.
(R.A.) Petition dismissed
PLJ 2009 Lahore 512
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
DR. MUHAMMAD IBRAHIM--Petitioner
versus
SECRETARY HEALTH etc.--Respondents
W.P. No. 4065 of 2007, decided on 16.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petitions--Civil servants--Terminated without completion of contract when there was no complaint qua performance of duties by petitioners--Allegations of absence and commission of misconduct were denied by the petitioners--No reason was mentioned in order of termination--Validity--If services of any employee are dispensed with on account of any misconduct or other allegations and if he denied the same in that eventually a regular inquiry is a must--Principle equally applies to all employees whether ad-hoc, contract, contractual or permanent--No distinction can be drawn between them for simple reason that every employee has a right to defend himself to get the stigma removed--Impugned order was declared to be without lawful authority. [P. ] A
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Terminated without completion of contract period--Question of payment of unpaid salaries controversy cannot be determined in constitutional petition--Respondents have taken a categorical stance to effect that petitioners remained absent and never performed their duties which itself involves factual controversy and cannot be determined in constitutional petition--Respondents shall be at liberty to hold inquiry, of courses by giving a fair opportunity, to petitioners and thereafter if allegations are not proved, in that eventuality, the petitioner, shall be paid salaries for period they actually performed duties--Petitions disposed. [P. ] B
Mr. Muhammad Naveed Hashmi, Advocate for Petitioner.
Mian Abbas Ahmad, Additional Advocate General with Dr. Pervaiz Haider Altaf, Respondent No. 2 and Dr. Umer Farooq, DMO.
Date of hearing: 16.4.2009.
Order
Through this single order I intend to dispose of following three writ petitions as common question of law and facts are involved therein.
I. W.P. No. 4065/2007
II. W.P. No. 4137/2007
III. W.P. No. 4142/2007
These petitions are admitted to regular hearing and are being disposed of as admitted cases.
Briefly stated facts as those emerge out of these petitions are that the petitioners in all these writ petitions, after passing their MBBS exams, joined the Health Department, during the year 2002 and were posted in different Basic Health Units and statedly they were performing their duties perfectly in accordance with the terms of the contract since there was no complaint to their high-ups, therefore, their contract period was extended for another two years up to 31.3.2008; and that without completion of the contract, in particular when there was no complaint qua performance of duties by the petitioners, their services were terminated vide order dated 14.7.2007 with immediate effect without assigning any reasons. The respondents in their statements had contradicted the stance taken by the petitioners.
It is inter alia contended that the petitioners who performed their duties perfectly in accordance with the terms of their contract have not only been illegally removed from service but also they had not been paid any wages for the actual period of duties performed by them. It is averred with vehemence that the rights guaranteed to the petitioners by the constitutional of Islamic Republic of Pakistan are being violated and that it is the obligation of the state to provide to citizens employment within available resources and every employee has to be properly remunerated/paid for the duties performed by him.
Conversely learned Additional Advocate General upon instructions, controverts the stance taken by the petitioners and with vehemence submits that the petitioners had absconded without permission, from their places of posting and had not performed any duties, therefore, not entitled to any relief. Adds that as per terms contained in the appointment letter, the contract was liable to termination without any notice. The same stance in categorical terms has been taken by the respondents in their parawise comments.
Arguments heard. Record perused.
In their report and parawise comments as well as during the course of arguments it has come to the light that the services of the petitioners were terminated by leveling certain allegations of absence and commission of misconduct etc., which have been denied by the petitioners. I have also minutely examined the contents of termination letter. Although no such reason has been given in the impugned order of termination still in my considered view the order of termination issued by respondents Secretary Health suffers from two flaws firstly no reasons of whatsoever nature has been assigned therein. Secondly in the report as well as comments categorical stance has been taken by the respondents in Para 8 in the following words--
"The petitioner remained absent from duty and draw the salaries without performance of any official duties. He was terminated on the charge of misconduct."
By now it is well settled proposition of law that if services of any employee are dispensed with on account of any misconduct or other allegations and if he denies the same in that eventually a regular inquiry is a must. This principle equally applies to all employees whether ad-hoc, contract, contractual or permanent. No distinction can be drawn between them, for the simple reason that every employee has a right to defend himself, to get the stigma removed.
In view of above, the impugned orders passed by respondents Secretary Health vide which services of the petitioners have been terminated is declared to be without lawful authority. Consequently the same is hereby set aside.
So far as question of payment of unpaid salaries is concerned, since the respondents have taken a categorical stance to the effect that the petitioners remained absent continuously and never performed their duties, which itself involves factual controversy and cannot be determined in constitutional petition, in view thereof the respondents shall be at liberty to hold inquiry, of course, by giving a fair opportunity in accordance with law, to the petitioners and thereafter if allegations are not proved, in that eventuality, the petitioners shall be paid salaries for the period they actually performed duties. With these observations this petition stands disposed of.
(R.A.) Petition disposed of
PLJ 2009 Lahore 515
Present: Maulvi Anwar-ul-Haq, J.
NOOR MUHAMMAD--Petitioner
versus
ADDL. DISTT. JUDGE MIANWALI and 2 others--Respondents
W.P. No. 1083 of 2004, decided on 4.11.2008.
Court Fee Act, 1870 (VII of 1870)--
----S. 7(vi) r/w Court Fees (Amendment) Act, (V of 1990)--S. 2--Constitution of Pakistan, 1973--Art. 199--Deficiency of Court fee--Direction to make up deficiency in accordance with statement of not profit and khasra girdawari--Order was found that no Court fee was required as per price index unit--Neither the parties nor trial Court was aware of amendment in clause (vi) of S. 7 of Court Fee Act, 1870--Validity--Proceeded to direct the petitioner to pay Court Fee in accordance with statement of net profit and Khasra girdawari and it appears that petitioner was ultimately directed to pay the Court fee on the amount of net profit--Entire exercise was, therefore, illegal and without jurisdiction--Held: No fault can be attributed to the petitioner when there is a finding by trial Court that no Court fee is payable as per price Index Unit--Petition allowed. [P. ] A & B
Malik Zafar Iqbal, Advocate for Petitioner.
Mr. Naveed Shahryar & Miss Najma Perveen, Advocates for Respondent No. 2.
Nemo for Respondent No. 3.
Date of hearing: 4.11.2008.
Judgment
For the purposes of this writ petition detailed pleaded facts need not to be stated, suffice it to say that on 30.9.98 the petitioner filed a suit against Respondent No. 2 for possession by pre-emption of suit land purchased by latter vide mutation no. 1707 attested on 7.8.96. It was stated in the relevant para-9 of the plaint that value of the suit for the purposes of Court fee and jurisdiction is being fixed as Rs. 20,000/- and that deficiency will be made up on preparation of net profit. The suit came up before the learned trial Court on 30.9.96. The respondent was summoned for 26.10.96 and the petitioner was directed to make up deficiency in accordance with the statement of net profit and Khasra Girdawari till the said date. On 26.10.96 a learned counsel filed power of attorney for respondent and the case was adjourned for written statement to 10.11.96. There is nothing about the Court fee in this order. Same is case with the order dated 26.10.96. The written statement was filed on 11.12.96. On 15.1.97 the Presiding Officer was busy in some election matters. On 22.2.97 the Presiding Officer was on leave. On 17.3.97 the case was adjourned for recording of better statement. On 12.4.97 the Court was informed that another suit has been filed (by Respondent No. 3). An amended plaint was ordered to be filed. The plaint was filed on 25.2.98. I may note here that in between the case was adjourned from time to time primarily for reasons of absence of the Presiding Officer. On 25.3.98 the written statement was filed. The case was adjourned from time to time. After completing formalities relatable to rival pre-emption suit, issues were framed on 9.10.98. The case was adjourned for evidence of the petitioner to 3.12.98. It was on this date when an application was filed for dismissal of the suit. The reply was filed on 17.3.99. Thereafter the case was being adjourned for arguments on said application. On 8.9.01 the said application was fixed, none was present but the suit was dismissed for non-prosecution. It was restored on 12.1.2002. In the same order it was found that no Court fee is required as per price index unit. The case was adjourned for 6.2.2002 for evidence of the petitioner. On 19.12.02 it was noted that the petitioner has not affixed the Court fee according to the net produce. The amount was found to be Rs. 37,383.29. The petitioner was directed to pay the Court fee within 30 days and the case was adjourned to 23.1.2003. On this date an application was filed for extension of time to pay the Court fee, which was granted till 1.2.2003. On this date the Court fee was paid.
The Respondent No. 2 filed a revision petition against order dated 23.1.03 extending time which was allowed by a learned Additional District Judge, Mianwali, on 23.12.2003 and the said order was set aside.
Learned counsel for the petitioner contends that the suit was filed in the year 1996 and no order as envisaged in Order VII, Rule 11 (a) CPC was passed directing the petitioner to pay the Court fee in accordance with law. According to him, the learned Additional District Judge has acted without lawful authority while passing the impugned order. Learned counsel for Respondent No. 1 support the impugned order with reference to the conduct of the petitioner as pointed out in the impugned judgment by the learned Additional District Judge.
I have examined the copies of the record. I may note here that at one stage I had called for record of the learned trial Court but I find that copy of the order sheet which was to be examined had already been placed on record by the petitioner. I have already referred to several orders passed by the learned trial Court above. As noted by me above, the suit was filed in the year 1996. It appears that neither the parties nor the learned trial Court was aware of the amendment made in clause (vi) of Section 7 of the Court Fee Act, 1870 vide Section 2 of the Court Fees (Amendment) Act, 1990 (Act V of 1990) whereby the said provision was substituted as follows:--
"(vi) To enforce a right of pre-emption--
In suits to enforce a right of pre-emption--
a) Where the subject-matter is land, according to the value of the land in respect of which the right is claimed calculated by multiplying the produce index units of such land with the money value of a produce index as notified by the Government; and
(b) Where the subject-matter is a house or garden, according to the value computed in accordance with clause (v) of this section.
Explanation. "Produce index unit" means the measure notified by the Government is terms of which the productivity of an acre of land of a particular kind in a particular assessment circle or area is computed. "
The learned trial Court, on the other hand, proceeded to direct the petitioner to pay Court fee in accordance with statement of net profit and Khasra Girdwari and it appears that the petitioner was ultimately directed to pay the Court fee on the amount of net profit. The entire exercise was, therefore, illegal and without jurisdiction. Apart from this no fault can be attributed to the petitioner when there is a finding by the learned trial Court on 12.1.2002 that no Court fee is payable as per price index unit.
The learned Additional District Judge in oblivion of the said circumstances apparent on the face of record and, of course, of the law on the subject has proceeded to allow the civil revision and to set aside the order extending time for payment of Court fee.
This writ petition is accordingly allowed. The impugned order dated 23.12.2003 of learned Additional District Judge, Mianwali, is declared to be without lawful authority and void and is set aside. The result would be that the order passed by the learned trial Court on 12.1.2002 with reference to the PIU passed in presence of the learned counsel for the parties and not challenged by any one shall stand restored. The suit shall, therefore, be decided in accordance with law. No order as to cost.
A copy of this judgment be immediately remitted to the learned trial Court.
(R.A.) Petition allowed
PLJ 2009 Lahore 518 (DB)
[Multan Bench Multan]
Present: Muhammad Khalid Alvi and Pervaiz Inayat Malik, JJ.
GHULAM MUSTAFA--Petitioner
versus
SECRETARY HEALTH etc.--Respondents
I.C.A. No. 33 of 2008, decided on 22.4.2009.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Constitution of Pakistan, 1973--Art. 199--Intra Court Appeal--Constitutional petition--Civil servant--Appointment letter was not issued to applicant on account of ban--Case of civil servant was referred for approval before Board of Management which was also granted approval--Appointment letter could not be issued to civil servant on account of ban--Validity--Appellant was duly selected by a committee constituted and approval was also granted by the Board of Management, therefore, there was no bar in issuance of appointment of letter--Intra Court appeal was allowed. [P. ] A
Mian Tahir Iqbal, Advocate for Appellant.
Mian Abbas Ahmad, Addl. A.G.
Mr. Fakher Raza, Assistant Litigation Officer.
Dr. Rashid Ali, DMS, Nishtar Hospital, Multan.
Date of hearing: 22.4.2009.
Order
Brief facts of the case are that appellant applied for the post of "Bearer" in the Nishtar Medical College and Hospital. He competed along with other contenders and was ultimately selected by the Committee appointed for the said purpose and case was referred for approval before the Board of Management which also granted approval but later on, on account of a ban imposed by the Government of Punjab letter of appointment could not be issued to the appellant. Appellant approached this Court through constitutional petition which stands dismissed vide order dated 15.4.2008, same is being assailed through the instant Intra Court Appeal.
It is contended by learned counsel for the appellant with reference to 2006 SCMR 1082 (Muhammad Rasheed Versus Government of Punjab and others) that if process of selection has already been completed then rights accrued in favour of the applicants cannot be denied as they have earned a right of appointment irrespective of ban imposed by the Government.
On the other hand, factual position is not denied by respondents side. Representative present in Court on behalf of the respondents states that on account of lifting of ban fresh advertisements are being published in newspapers excepting the post reserved for appellant under the orders of this Court.
We have considered contentions advanced by both sides.
In the case cited by learned counsel for the appellant, appointment letter was not issued to the applicant on account of a ban imposed by the Government, as is the instant case, and ultimately their lordships in the Hon'ble Supreme Court directed issuance of appointment letter as recruitment had already been completed through transparent process. In the instant case as well appellant was duly selected by a Committee constituted and approval was also granted by the Board of Management, therefore, there was no bar in issuance of appointment of letter. Resultantly, instant ICA is allowed. Respondents are directed to issue appointment letter to the appellant forthwith. Disposed of.
(R.A.) ICA allowed
PLJ 2009 Lahore 520
Present: Ali Hassan Rizvi, J.
SABIR HUSSAIN--Petitioner
versus
NUSRAT BIBI--Respondent
W.P. No. 859 of 2009, decided on 20.1.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 12--Constitution of Pakistan 1973, Art. 199--Suit for recovery of dower and maintenance allowance--Judgments of Family Court and Appellate Court--Constitutional petition--Held: Marriage between the spouses still existed--Claim of the wife was that petitioner/husband had given her 100 kanal land, as dower out of which 50 kanal was got mutated in her favour at the time of nikah--Petitioner never alleged as to how the entry in nikahnama was fictitiously made, after nikah--There was no legal justification to deny the dower settled and maintenance claimed--Appellate Court was final Court of fact--No misreading or non-reading of evidence found--Petition dismissed in limine. [P. ] A, B, C & D
Malik Muhammad Azam Awan, Advocate for Petitioner.
Date of hearing: 20.1.2009.
Order
Through this writ petition, the judgment and decree dated 31.3.2008 passed by Respondent No. 2 in appeal has been impugned to the extent of giving 50-kanals of land as dower to Respondent. 1.
ISSUES:
"1. Whether the plaintiff is entitled to decree for recovery of maintenance allowance and if so to what extent and for what period? OPP
Whether the plaintiff is entitled to decree for recovery of golden ornaments weighing 10 tolas and dowry articles according to list appended with the plaint? OPP
Whether the plaintiff is entitled to the decree for possession of the land measuring 50 kanals detailed in the head note of the plait according to conditions of Nikah Nama dated 2.10.2005? OPP
Whether the plaintiff has a cause of action and locus standi to file this suit? OPP
4-A. Whether the defendant Sabir Hussain is entitled to decree for restitution of conjugal rights? OPD
Issue No. 1 was decided against Respondent No. 1 as she was not found ready to perform the matrimonial obligations and also held to be not entitled to recovery of maintenance allowance. Issue No. 2 to the extent of gold ornaments was declined while according to the list Ex. P. 5, issue was decided in favour of Respondent No. 1 holding her entitled to decree for recovery of dowry articles given in the list. The suit of respondent for decree for the possession of land measuring 50 kanals according to the condition incorporated in Nikah Nama dated 2.10.2005 was declined and decided against Respondent No. 1. Issue No. 4 was decided against the petitioner (defendant) while Issue No. 4-A was decided in his favour, and Respondent No. 1 was directed to go to the house of the petitioner to perform matrimonial obligations. According to the judgment and decree dated 31.3.2008 of the Judge, Family Court, suit of Respondent No. 1 for recovery of maintenance allowance, suit for recovery of possession of land as dower were dismissed whereas the suit filed by the petitioner for restitution of conjugal rights was decreed.
"(i) The appellant/plaintiff is entitled to get maintenance but she can be compensated from the land given to her as dower and from proceeds of land, she can be compensated regarding her maintenance.
(ii) The appeal to the extent of gold ornaments is dismissed while findings of learned Trial Court regarding remaining dowry articles as mentioned at Sr. No. 2 of Ex. P. 5 are hereby up-held.
(iii) The suit of the plaintiff for dower of remaining 50 kanals of land is hereby decreed and appeal to this extent is hereby accepted while the findings of learned Trial Court regarding this issue are hereby reversed accordingly.
(iv) The suit of defendant for restitution of conjugal rights is hereby dismissed while findings of learned Trial Court regarding this issue are hereby reversed and appeal of the plaintiff for this relief is hereby accepted accordingly."
Hence this writ petition is filed against the impugned judgment and decree dated 25.9.2008 passed in appeal by the learned Additional District Judge-II, Bhakkar.
3A. It is argued by the learned counsel for the petitioner that the judgment and decree of the learned Trial Court dated 31.3.2008 was well-reasoned while the appellate judgment and decree to the extent of giving 50 kanals of land as dower to Respondent No. 1 was illegal being the result of mis-reading and non-reading of material evidence. The entry in the Nikah Nama for agricultural land was claimed to be the result of forgery by the respondent because the petitioner had never given at the time of Nikah any land to Respondent No. 1. This entry against Column No. 15 was claimed to be an interpolation. According to learned counsel, Respondent No. 1 had failed to prove her case.
Heard.
The marriage between the spouses still exits. The claim of Respondent No. 1 in the suit as also in appeal throughout was that the petitioner had given her as dower the land measuring 100 kanals out of which 50 kanals of land was mutated in her favour at the time of Nikah while for the remaining land, she had not been transferred the land by the petitioner. In evidence of Respondent No. 1 as PW. 1, a bald question was asked as to the relevant entry vaguely saying that it was fictitious. The following reply is quite revealing:
The petitioner as DW. 1 had admitted his signatures on Nikah Nama Ex. P. 1 and his marriage with Respondent No. 1 taking place on 2.10.2005. The Nikah Nama was executed on 9.10.2005. He admitted during evidence that Mutation No. 554 was entered in favour of Respondent No. 1 on 12.9.2005. This portion of evidence makes it clear that entry in the Nikah Nama in respect of transfer of land, as dower in favour of Respondent No. 1, was genuine. The petitioner had not denied the same, rather admitted that he himself had agreed at the time of Nikah for the transfer of land to his wife (Respondent No. 1). The petitioner has nowhere alleged with details as to how the entry in the Nikah Nama was fictitiously made after the Nikah. The petitioner himself states that on 17.9.2005, he had transferred the land in the name of Respondent No. 1 whereas the date of the marriage given by him is 2.10.2005 and the same is the date of Nikah given in Ex. P. 1. The factum of Nikah and transfer or the had measuring 50 kanals of land in favour of Respondent No. 1 has been admitted. There is no evidence produced in rebuttal to the claim of Respondent No. 1. It is proved that she at the time of Nikah was given 100 kanals of land out of which 50- kanals had already been transferred in her name. It is not shown if the petitioner had initiated any legal action against Respondent No. 1 as to the entry in the Nikah Nama. It is in evidence that the petitioner was involved in abduction of one Zubaida Batool and remained in jail. The respondent had rightly claimed the maintenance allowance. There is no legal justification to deny the dower settled. Therefore, the impugned judgment and decree dated 25.9.2005 passed by the learned Appellate Court is in accordance with law and is based on correct appreciation of the evidence. The Appellate Court was the final Court of facts. No mis-reading or non-reading of evidence has been found. The writ petition is dismissed in limine.
(J.R.) Petition dismissed.
PLJ 2009 Lahore 523
Present: Anwar-ul-Haq Pannun, J.
SHAHZAD MUNIR--Petitioner
versus
NAZIM/CHAIRMAN ARBITRATION COUNCIL U.C. 139, LAHORE and 2 others--Respondents
W.P. No. 2113 of 2009, decided on 31.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Nazim union council has no power to revoke the certificate of talak--Pronouncing upon her three consecutive talaq baim--Divorce-deed drawn on judicial stamp paper was sent to his wife as well as chairman reconciliation--After elapsed a period of ninety days, chairman issued a certificate of effectiveness of talaq--Naib Nazim issued a certificate while cancelling certificate of effectiveness of talaq through impugned certificate--Validity--Naib nazim was directed to appear before Court--Nazim appeared alongwith the record instead of naib nazim and appraised to Court that naib nazim has died and there is no record available with U.C. reading impugned certificate--Being the position, instant petition was disposed of with the observation that as there is no record with U.C. regarding the certificate at it appears that it has been manipulated--Held: After elapse of more than two years, the Naib Nazim has no authority whatsoever to revoke the certificate of talaq. [P. ] A
Rao Manzoor-ul-Haq Khan, Advocate for Petitioner.
Mr. Fawad Malik, A.A.G. for Respondents.
Date of hearing: 31.3.2009.
Order
Through this petition, the petitioner has challenged the order dated 5.7.2006 passed by Respondent No. 2/Naib Nazim, Union Council No. 139, Green Town Lahore.
The necessary facts giving arise for filing the instant petition are that the petitioner was married with Mst. Huma Irshad daughter of Irshad Ahmad, resident of House No. 120-5-A-II, Township, Lahore, according to Muslim Rites. The amount of prompt dower was paid at the time of Nikah. The Nikah of the spouses was registered with Union Council No. 139, Green Town, Lahore as required under the law. For a period of about 2« years after the marriage the spouses lived peacefully and amicably, according to the petitioner, however, within the passage of time the differences between the parties cropped up and resultantly some unhappy incident also took place between the spouses and efforts of reconciliation remained abortive. The petitioner on 12.12.2003 divorced Huma Munir daughter of Irshad Ahmad by pronouncing upon her three consecutive Talaq/Talaq Baim and terminating the relation of husband and wife between the spouses. The divorce deed, duly drawn up judicial stamp paper, was sent to Mst. Huma Munir as well as Chairman. Reconciliation/Arbitration Council. A period of ninety days elapsed, after the pronouncement/sending of the notices to the Chairman Arbitration Council, Union Council No. 139 issued a certificate of effectiveness of Talaq as required under Section 7 of the Act. Copies of the notice of Talaq and the certificate of effectiveness of Talaq issued by the Union Council No. 139 dated 15.4.2004, have been appended with the petition. It is also averred in the writ petition that the ex-wife of the petitioner tried to snatch some property from him by posing herself as his wife with active help and connivance of her brother whereupon the petitioner had fled a suit for permanent injunction against the respondents who was also arrayed as defendant in the suit which was decreed vide judgment and decree dated 13.6.2005 passed by the learned Civil Judge, Lahore. The Respondent No. 2 Malik Shabbir Hussain Khokhar after about a period i.e. 15.4.2004 to 5.7.2006, issued a certificate while canceling the certificate of effectiveness of Talaq through the impugned certificate dated 5.7.2006 with the connivance of the ex-wife of the petitioner "Annex-E".
Learned counsel aggrieved of the certificate/order dated 5.7.2006 has challenged it on the ground that under no law, Naib Nazim, Union Council has the authority whatsoever to revoke the earlier order of the effectiveness of Talaq, therefore, the impugned order dated 5.7.2006 may kindly be set aside declaring to have been passed without jurisdiction being illegal and having no legal effect.
Vide order dated 26.4.2009 the Respondent No. 2, Naib Nazim, Union Council No. 139 was directed to appear before the Court for today. Instead of Respondent No. 2, Khalid Ahmad Butt, Nazim, Union Council has appeared alongwith the relevant record and appraised to the Court that Respondent No. 2 has died and there is no record available with the Union Council regarding impugned certificate dated 5.7.2006. Moreover, he does not own the document as having been issued by the Union Council. This being the position, this petition is disposed of with the observation that as there is no record with the Union Council regarding the certificate dated 5.7.2006 and it appears that it has been manipulated. Had it been validly issued, the record of the same should have been available with the Union Council. Moreover, after elapse of more than two years, the Naib Nazim, Union Council has no authority whosoever to revoke the certificate of Talaq.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 525
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD FAISAL--Petitioner
versus
MUHAMMAD HAFEEZ-UL-REHMAN, JUDGE FAMILY COURT, LAHORE and 3 others--Respondents
W.P. No. 15224 of 2008, decided on 15.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Minor had independent right to ask maintenance from the father--Non-compliance of orders entailed penal action--Order for interim maintenance allowance of minors--Lacks the source of income--Validity--Right of minors cannot be declined merely on the ground that the father is not having source to provide the maintenance--Held: Father must provide maintenance and duty rests upon him--Whereas the father has entered into second marriage and also in application filed u/S. 25 of Guardians and Wards Act, for custody of minor has raised the ground that he is having sufficient financial resources to maintain and noursh his minors--Conduct of the petitioner for non-compliance of orders may also entail penal action--Interim maintenance order was justified and cannot be interfered with by exercise of Constitutional jurisdiction of High Court--Petition dismissed. [P. ] A
Mr. Saqib Gardner, Advocate for Petitioner.
Mr. Nadeem Iqbal Malik, Advocate for Respondents.
Date of hearing: 15.1.2009.
Order
The petitioner has filed this writ petition as is aggrieved from the order dated 30.7.2008 passed by the learned Judge, Family Court wherein he passed the order for interim maintenance allowance of minors at the rate of Rs. 2000/- each per month which shall be paid by the petitioner before 15th of every month in Court in a suit pending for recovery of maintenance allowance, dower and dowry articles mainly on the ground that the petitioner is a retired (compulsorily) for Army on medical ground as he is a cancer patient and under treatment. He had not been paid dues from the army as yet and lacks the source of income.
It is argued that in case of retired Army personnels education and medical treatment is available free of costs. Further that Respondent No. 2 Mst. Shazia Zaheer wife of the petitioner is residing separately from the petitioner without any justification hence interim maintenance order passed is illegal and at exorbitant rate.
The learned counsel or the respondents controverted that the petitioner had approached the learned Guardian Judge for custody of minors alleging therein that he is having sufficient financial resources to maintain and nourish his son and daughter. That the petitioner has entered into second marriage and running a business after taking loan. That father is bound to provide the maintenance to his children, which he has refused. That the conduct of the petitioner dis-entitles him for any relief and there is no illegality in the impugned interim order, which cannot be interfered in exercise of constitutional jurisdiction of this Court. Reliance is placed on 2004 MLD 794 Lahore, 2006 YLR 1708 Lahore, 2007 YLR 1401 Lahore and 1972 P.Cr.LJ 1286 Lahore.
Heard.
The minors had their independent right to ask maintenance from the father. This right of the minors cannot be declined merely on the ground that father is not having source to provide the maintenance. It is a legal obligation that a father must provide maintenance and the duty rests upon him. The prayer made through this writ petition to recall the order for interim maintenance on the sold ground raised that the petitioner is a cancer patient whereas he has entered into second marriage very recently and also in a application filed under Section 25 of the Guardian and Wards Act, 1890 for the custody of minors has raised the ground that he is having sufficient financial resources to maintain and nourish his son and daughter. These grounds raised stand belied from his own version. The conduct of the petitioner for non-compliance of the orders may also entail penal action. The interim maintenance in the turn of Rs. 2000/- each per month is not exorbitant in these days. The impugned interim maintenance order was justified and in the circumstances cannot be interfered with by exercise of constitutional jurisdiction of this Court. This petition stands dismissed.
(R.A.) Petition dismissed
PLJ 2009 Lahore 527
[Multan Bench Multan]
Present: Muhammad Sayeed Akhtar, J.
Mst. RUKHSANA BIBI--Petitioner
versus
SHO, P.S. KAMEER DISTT. SAHIWAL and 2 others--Respondents
W.P. No. 1848 of 2006, decided on 16.5.2006.
Constitution of Pakistan, 1973--
----Art. 199--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Ss. 10(2) & 16--Constitutional petition--Quashment of FIR--Allegation of "Zina"--Abduction--Petitioner has appeared in person and stated that she was neither enticed away or taken away by the accused with an intent to commit zina with any person--Relationship between her husband and herself became strained and she went to live with her relative of her own free will--At present, she is lodged in Darulaman--She has also filed a suit for dissolution of marriage--Nothing has come out during investigation that offence of zina was committed--FIR was quashed. [P. ] A & B
Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner.
Mian Mahmood Rasheed, Advocate for Respondent No. 2.
Mr. Muhammad Qasim Khan, AAG for State.
Date of hearing: 16.5.2006.
Order
A case stands registered against the petitioner vide FIR No. 75 of 2006 dated 02.3.2006 under Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at P.S. Kameer, District Sahiwal.
Conversely the learned counsel for the respondent submitted that the petitioner made a statement under Section 161 Cr.P.C. admitting her guilt under Section 10(2) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979.
Learned A.A.G. states that no such statement exists on the record and that apparently no case is made out under Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979.
Nothing has come out during the investigation that offence under Section 10(2) or Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was committed. This petition is allowed and the FIR No. 75/2006 dated 2.3.2006 registered at P.S. Kameer, District Sahiwal is quashed.
(R.A.) F.I.R. quashed
PLJ 2009 Lahore 529
Present: S. Ali Hassan Rizvi, J.
Mst. SHUMAILA SULTANA--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 522 of 2009, decided on 15.1.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Pakistan Penal Code, (XLV of 1860), S. 496-A--Constitution of Pakistan, 1973, Art. 199--Addition the names of accused--Issuance of direction to magistrate--Application to add specific sentences and accused person by names and roles was filed--Application was dismissed--Challenge to--Malafide--Constitutional jurisdiction--Alleged omission sought to be supplied was in fact an establishment in the earlier statement recorded u/S. 164, Cr.P.C.--No malafide could be attributed to the magistrate proceeding would claim presumption which could not dislodged easily--Statement was recorded after giving her sufficient time to understand its nature and results--There was nothing to infer that she was not free in recording her statement--Statement recorded was duly verified and bore the requisite certificate--There was no illegality in the impugned order calling for interference in the exercise of constitutional jurisdiction of High Court--Petition dismissed in limine. [P. ] A & B
Mr. Tariq Rasheed, Advocate for Petitioner.
Date of hearing: 15.1.2009.
Order
Instant writ petition is filed for issuance of direction to the learned Special Magistrate to add the names of the accused as well as some sentences in the statement earlier recorded under Section 164 Cr.P.C. on 25.11.2008.
The briefs facts of this writ petition are that the petitioner on 8.9.2008 allegedly was abducted by certain accused persons who had been committing zina with her and on 15.9.2008, the accused persons brought her at Okara. The father of the petitioner in the meanwhile got lodged FIR No. 711/08 under Section 496-A PPC at Police Station Rai Wind. She statedly was forced to get recorded her statement under Section 164 Cr.P.C. before Respondent No. 2 on 15.9.2008. Thereafter she succeeded to run away from the cluches of accused persons and filed an application under Section 22-A Cr.P.C. to learned ex-officio Justice of Peace. It was disposed of with the direction to Respondent No. 2 to record her statement under Section 164 Cr.P.C. Consequently the petitioner on 25.11.2008 appeared before Respondent No. 2 and got recorded her statement under Section 164 Cr.P.C. she field an application on 1.12.2008 to Respondent No. 2 to add certain specific sentences and accused persons by name and roles which she mentioned but Respondent No. 2 had not mistakenly recorded. This application of her was dismissed. Hence this writ petition against the order dated 2.12.2008 of Respondent No. 2.
It is argued by the learned counsel that request made through application to the learned Special Judicial Magistrate was in accordance with the law as there is no bar in the Criminal Procedure Code for correction in the statement earlier recorded. The statement was recorded otherwise than the words any sentences used by the maker which was not due to any lapse on petitioner's part but would affect to the fate of the case if the application is not allowed to remove the omission.
Heard.
The addition sought to be supplied in the statement recorded under Section 164 Cr.P.C. on 25.11.2008 as disclosed in the application and in this writ petition is:
"There were 15/20 other persons after taking liquor committed zina with the petitioner."
The petitioner intends further addition as under:
"There were 15/20 other persons out of which Muhammad Aslam alias Pasoori and Rashid alias Rashoo were also there and all of them committed zina-bil-jabr and sodomy with the petitioner and this was all done on the instigation of one Bashir Naz and some other persons and all these occurrence were taken place on different places and on different dates."
The alleged omission sought to be supplied is in fact an embellishment in the earlier statement recorded under Section 164 Cr.P.C. No mala fide could be attributed to the learned Magistrate. His proceedings would claim presumption which cannot be dislodged easily. Her statement was recorded after giving her sufficient time to understand its nature and results. There is nothing to infer that she was not fee in recording her statement. The statement recorded was duly verified and bore the requisite certificate. There is no illegality in the impugned order dated 2.12.2008 calling for interference in the exercise of Constitutional jurisdiction of this Court. Dismissed in limine.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 531
Present: S. Ali Hassan Rizvi, J.
ZAFAR ALI KHAN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, LAHORE
and 3 others--Respondents
W.P. No. 16284 of 2008, decided on 20.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for recovery of maintenance allowance--Family Court enhanced the maintenance allowance--Appreciation of evidence--Modified the decree to extent of quantum of maintenance allowance and was granted decree at rate of Rs. 6000/- per month--Petitioner was a qualified doctor and having two wives--Petitioner had entered into marriage after divorce of respondent--Validity--Evidence of the petitioner was not believable that he was getting only Rs. 7000/- as salary while maintaining two families--Rate of maintenance allowance enhanced in appeal cannot be said to be beyond his means or exorbitant--Bleak sources or means of income of a husband or father was hardly a valid ground in context of maintenance, so as to justify interference in finding recorded by Courts of fact--No case was made out for interference in exercise of Constitutional jurisdiction of High Court. [P. ] A
Mr. Nasir Ahmad Awan, Advocate for Petitioner.
Mr. Muhammad Siddique Awan, Advocate for Respondents No. 3 and 4.
Date of hearing: 20.1.2009.
Order
Instant writ petition is filed against the judgment and decree dated 12.9.2008 whereby the learned Appellate Court modified the judgment and decree rendered by the learned Judge, Family Court and enhanced the maintenance allowance of Respondent No. 3 from
Rs. 2000/- to Rs. 3000/- and of Respondent No. 4 from Rs. 3000/- to
Rs. 4000/-.
Brief facts necessary for disposal of the writ petition are that Respondent No. 3 filed a suit for recovery of maintenance allowance of herself and for her one minor daughter (Respondent No. 4) against the petitioner. The learned trial Court framed the issues arising out of pleadings of the parties and after recording the evidence, the suit for maintenance allowance of Respondent No. 3 at the rate of Rs. 2000/- per month w.e.f. 1.1.2005 till the effectiveness of divorce and qua Respondent No. 4 at the rate of Rs. 3000/- per moth w.e.f. 1.1.2005 till her marriage, was decreed. The petitioner filed an appeal and the learned Appellate Court on 12.9.2008 on appreciation of the evidence, modified the decree to the extent of quantum of maintenance allowance and Respondent No. 3 was granted the decree at the rate of Rs. 6000/- per month wile Respondent No. 4 was granted the maintenance allowance at the rate of Rs. 4000/- per month. Hence, this writ petition.
Learned counsel for the petitioner has not pressed any of the ground raised in the writ petition to the extent of maintenance allowance enhanced by learned Appellate Court in favour of Respondent No. 4 (minor) but argued that Respondent No. 3 was granted the maintenance allowance in wrong appreciation of evidence as the petitioner had no source of income as he is getting salary at the rate of Rs. 7000/-. The learned Appellate Court according to learned counsel has not correctly appreciated the relevant evidence, and in any case, the enhancement was beyond the sources of the petitioner.
Learned counsel for the respondents argued that the petitioner had field an application to the learned executing Court for fixation of installments wherein Respondent No. 3 had filed no objection. Respondent No. 3 has been divorced and her claim would be only for 15 months and in these hard days, the amount granted to her is not excessive. Moreover, the petitioner is an employee in Zubaida Memorial Hospital and getting Rs. 18,000/- as salary and also running a private clinic. Learned counsel referred to a copy of the certificate issued in this context, which had been signed by the Judge Family Court on 11.4.2007.
Heard at preliminary stage.
The petitioner is a qualified Doctor and having tow waives is residing in separate houses, is admittedly running a clinic. It is in the evidence that he already had contracted marriage with four ladies and also had been visiting abroad. He also had entered into marriage after divorce of Respondent No. 3. Respondent No. 3 has been divorced. She has been granted Rs. 6000/- per month till the effectiveness of her Talaq which is for 15 months only. The evidence of the petitioner is not believable that he is getting only Rs. 7000/- as salary while maintaining two families. In the circumstances, the rate of maintenance allowance enhanced in appeal cannot be said to be beyond his means or otherwise exorbitant. Even otherwise, bleak sources or means of income of a husband or father is hardly a valid ground in the context of maintenance, so as to justify interference in the findings recorded by Courts of fact. The impugned judgment and decree dated 12.9.2008 passed by the learned Appellate Court is in accordance with law and based on evidence. No case is made out for interference in exercise of constitutional jurisdiction of this Court. Dismissed in limine.
(R.A.) Petition dismissed
PLJ 2009 Lahore 533
Present: Maulvi Anwar-ul-Haq, J.
HUMA MUMTAZ, etc.--Appellants
versus
DISTRICT & SESSIONS JUDGE, LAHORE etc.--Respondents
Service Appeal No. 20 of 2006, heard on 19.2.2009.
Pensionary Benefits--
----Civil servants--Removal from service--Whether provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 apply to establishment of civil servant--Mandatory upon the competent authority--Question of--Appellants were widow and daughter of civil servant who was Naib Nazar in Civil Court, and was removed from service--Absent from duty--Explanation was called--Notice be repeated and service be effected--Direction to publish a notice--Civil servant was died and by that time he had completed about 29 years service--Entitlement of pensionary benefit--Validity--Confidential Dossier was not present in service record but did not find adverse report against civil servant--Held: Impugned order of removal from service was set aside--Civil servant shall be deemed to have been reinstated--Emoluments payable till his death as also the pensionary benefits will be payable to entitle person under Pension Rules. [P. ] A & B
Appellants in person.
Mr. Mustanser Husnain Shah, Addl. Registrar (G & S), with record.
Date of hearing: 19.2.2009.
Order
The appellants are the widow and daughter of Niaz Hussain Shah who was in Naib Nazar (Tameel) in Civil Courts Lahore and was removed from service vide order dated 4.6.2004 by the learned Senior Civil Judge, Lahore.
The ladies are stating that Niaz Hussain Shah was ill and, in fact, was mentally disturbed. He died on 21.11.2004. According to them, no show-cause notice or charge sheet was ever served upon him before imposing the said the said major penalty and, of course, no inquiry was held.
I have gone through the records, with the assistance of the Additional Register (G&S). I find that an un-dated application or report was made by several Naib Nazars to the learned Senior Civil Judge, Lahore that Niaz Hussain Shah is absent since 12.4.2004 whereas he had obtained leave only for 9.4.2004. On this report, there is a note dated 20.4.2004 stating that the official be summoned for 24.4.2004 and his explanation be called. On 24.4.2004 it was stated that it has been reported that Niaz Hussain Shah has given up his residence ( ) as reported by the landlord who met the Process Server. The COC directed that notice be repeated and service be effected by affixation for 12.5.2004. On this date it was noted that affixation has been made but the neighbours ( ) stated that Niaz Hussain Shah left the Mohallah. Thereafter, there is an order dated 13.5.2004 directing the Civil Nazar to publish a notice in a local newspaper. A date was not fixed. The notice was published in a newspaper i.e. the daily Jurat dated 19.5.2004 and this is followed by the order dated 4.6.2004 removing Niaz Hussain Shah from service. I may further note here that a closed envelop is present in the file. It was returned back with the endorsement that no person of the said name is residing at the address stated thereon. Presumably this envelope contains the impugned order of removal.
I find that the matter has been dealt with rather casually. The Clerk of Court filed a report and the Senior Civil Judge proceeded to observe that in view of the said report in exercise of powers under Section 3 of the Punjab Removal from Service (Special Powers) Ordnance, 2000, Niaz Hussain Shah, Naib Nazar, is removed from service. Apart from the fact that it is doubtful as to whether the provisions of the said Ordinance, 2000, apply to the establishment of the Civil Court. Section 3(2) makes it mandatory upon the competent Authority before passing an order under Section 3(1) of the said Ordinance to inform the accused by order in writing of the action proposed to be taken with regard to him and the grounds of the action. I have examined the notices that were sent as also published in the newspaper and the contents thereof hardly meet with the said mandatory requirement of the said law. Confidential Dossier is not present in the service record but otherwise I do not find any adverse report against the deceased employee in the same.
He was employed vide order dated 12.7.1975 and later promoted as a Naib Nazar. He died on 12.11.2004 and by that time he had completed about 29 years service.
Having, thus, examined the records of the case, I am inclined to allow this appeal. The impugned order dated 4.6.2004 of removal from service is set aside. He shall be deemed to have been reinstated. The employments payable till his death as also the pensionary benefits will be payable to the entitled person under the Pension Rules. These will be worked out accordingly and paid in accordance with law.
(R.A.) Appeal accepted
PLJ 2009 Lahore 535
Present: S. Ali Hassan Rizvi, J.
SHER SHAH--Petitioner
versus
Mst. RANI BEGUM and 5 others--Respondents
W.P. No. 3163 of 2009, decided on 19.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Right of cross-examining--Scheme of family laws is to dispose of family cases expeditiously--No law debarring the closure of right of cross examination--Order passed by Family Court was challenged on the ground that right of cross-examining the witnesses produced by plaintiffs could not have been closed--Opportunity for cross-examination of witnesses was not provided--Validity--No law debarring the closure of right of cross-examination even on the first date if no reasonable cause is shown for adjournment--Scheme of family laws is to dispose of family cases expeditiously--Petitioner should have been careful to avail opportunity for cross-examination of the witnesses--Held: In writ jurisdiction, High Court is not called upon to interfere with the orders which are passed with lawful authority--Petition was dismissed. [P. ] A
Mr. Muhammad Saeed Ansari, Advocate for Petitioner.
Date of hearing: 19.2.2009.
Order
The order dated 10.2.2009 passed by the learned Judge Family Court, Kasur (Respondent No. 6 herein) has been challenged on the ground that right of cross-examining the witnesses produced by the plaintiffs/Respondent Nos. 1 to 5 could not have been closed. According to learned counsel, no reasonable opportunity was granted to cross-examine them.
(R.A.) Petition dismissed
PLJ 2009 Lahore 536
Present: S. Ali Hassan Rizvi, J.
Mian SHAUKAT ALI--Petitioner
versus
Mst. NASEEM BIBI and another--Respondents
W.P. No. 583 of 2009, decided on 16.1.2009.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----Scope of--Close of evidence--No provision in Family Court Act, to effect that evidence of the party shall not be closed in any case. [P. ] A
Close of Evidence--
----Purpose of--Without sufficient cause--Very purpose of the enactment is to ensure expeditious disposal and Court on close the evidence of a party who facts to adduce evidence without sufficient cause. [P. ] B
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 11--Examine the witness--On the date fixed for evidence Family Court shall examine the witnesses produced by the parties in such order as it deems fit. [P. ] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, Rr. 1(3) & 3--Contitution of Pakistan, 1973, Art. 199--Close of evidence--Constitutional jurisdiction--Evidence of respondent was recorded and petitioner was granted last opportunity--Not produce evidence without any justification and his evidence was closed--Validity--Despite a caution of last opportunity to produce the evidence the petitioner as defandant had failed not only to appear in Court but also produced the witnesses--Matter was pending for last more than 10 years--Held: Petitioner was given last opportunity but he did not care even to appear in Court--Trial Court was justified to close evidence--No illegality in impugned order calling for interference in exercise of Constitutional jurisdiction of High Court. [P. ] D
Mian Muhammad Ashraf, Advocate for Petitioner.
Date of hearing: 16.1.2009.
Order
Instant writ petition is filed against the impugned order dated 22.12.2008 whereby the learned Judge Family Court closed the right of evidence.
The brief facts given in the writ petition are that Respondent No. 1 on 28.10.1998 filed a suit for maintenance of herself and three minors. this suit was contested and petitioner denied the relationship and filed a suit for jacitation of marriage against Respondent No. 1. Both these suits were consolidated by the learned Judge Family Court. After framing if issues, evidence of Respondent No. 1 was recorded. while petitioner failed to cross-examine the witnesses. On 29.2.2008, the petitioner filed an application for acceptance of his list of witnesses, which was contested by the respondent and the learned Judge, Family Court dismissed the same. The petitioner preferred W.P. No. 18524/08 in this Court against the impugned order dated 17.11.2008 but the same was dismissed in limine. The suit for maintenance proceeded further. The evidence of the respondent was recorded and petitioner was granted last opportunity. On the next dated (22.12.2008), he did not produce evidence without any justification and his evidence was closed.
Learned counsel for the petitioner has taken the sole ground that on 22.12.2008, the absence of the petitioner was not wilful because he could not produce his witnesses due to certain unavoidable circumstances, therefore, the learned Trial Court should have granted one more opportunity.
Heard.
There is no provision in Family Court Act, 1964 to the effect that evidence of the party shall not be closed in any case. The very purpose of the enactment is to ensure expeditious disposal and Court can close the evidence of a party who fails to adduce evidence without sufficient cause. Section 11 provides that on the date fixed for evidence, the Family Court shall examine the witnesses produced by the parties in such order as it deems fit. In this case, despite a caution of last opportunity to produce the evidence, the petitioner as defendant had failed not only to appear in Court but also produced the witnesses. It was thus a case of double default committed with a view to gain more time. The principle as contained under Order XVII, Rules 1(3) and 3 CPC was attracted. The matter is pending for the last more than 10 years. The petitioner was given last opportunity but he did not care even to appear in Court. The previous adjournment was granted at his own request with a caution. In the circumstances, the Trial Court was justified to close the evidence. There is no illegality in the impugned order calling for interference in the exercise of Constitutional jurisdiction of this Court. Dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 538
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
MADIHA JABEEN--Petitioner
versus
STATE--Respondent
W.P. No. 1141 of 2008, heard on 8.8.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 395 & 412--Bail, grant of--Benefit of doubt--Complainant laid reshaped version before the police qua the role of unmarried young girl without previous criminal record--Complainant attempted to minimize his own role in respect of his telephonic contact with the girl asking her to see him at a place other than his clinic for her medical check up--Petitioner led to the recovery of cell phone, which had been snatched by the male accused persons--Mode and manner of involvement of the woman petitioner in the case, the recovery of the cell phone appeared to be doubtful--Benefit of doubt, however, slight, is right of the accused even at bail stage--Bail granted with direction to re-investigate the case by an officer of good repute. [P. 540] A
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 395 & 412--Constitutional jurisdiction--Right of citizen of dignity--Investigation of criminal case falls within exclusive domain of police--Validity--Reinvestigation of the case by an officer of good repute--High Court in its Constitutional jurisdiction is custodian of constitutionally guaranteed rights of citizens of dignity liberty and privacy--Although subject investigation of criminal case falls within exclusive domain of police, yet High Court is not supposed to decide the matter touching human liberty and dignity in a mechanical way leaving the aggrieved to mercy of investigating agency. [P. 540] B
Ch. Mahmood Akhtar, Advocate for Petitioner.
Ch. Mubarik Hussain, DPG for State.
Date of hearing: 8.8.2008.
Judgment
Mst. Madiha Jabeen petitioner is an unmarried daughter of Muhammad Banaras resident of Dhoke Feroze Chakwal. She was arrested in case FIR No. 139 dated 30.5.2008 under Section 395/412 PPC registered with Police Station Saddar Chakwal and was declined bail by a learned Additional Sessions Judge, Chakwal vide order dated 11.07.2008. Hence, this bail petition.
Tahir Mahmood, complainant is a homoeopathic doctor. He got registered the case on 30.5.2008 with an allegation that on 28.5.2008 at about 9.30 a.m. he alongwith Siddique Ahmad Khan, PW. was on his way to village Dhaab Khushal on a motor bike in connection with some personal job, when two motor cyclists and four car riders armed with deadly weapons over took his motor bike and that unknown six accused persons took him and his companion in a nearby field and deprived him of Rs. 10,000/- cash, ATM card and a cell phone at pistol point.
The complainant further claimed that he privately searched the culprits without approaching the police and learnt as a result of private inquiry that (i) Babar Jameel, (ii) Arif, (iii) Tariq Mahmood, (iv) Tajamal Habib, (v) Shaukat Ali and (vi) Samar were the actual culprits.
The above said case was registered on a written complaint of Tahir Mahmood. After registration of the case the complainant made another written application with an additional allegation that Mst. Madiha Jabeen, petitioner contacted him on cell phone for an appointment for her medical check up; that he also responded her call asking her to reach the village for which he proposed to leave on motor bike and that in his assessment the petitioner telephoned him on the asking of male accused persons nominated in the FIR in order to determine his exact location.
The woman petitioner was arrested when she go recovered call phone, which had been snatched by the six male accused persons.
Admittedly, the petitioner was not present at the spot at the relevant time. She did not joint her co-accused persons when they allegedly looted the complainant. The only allegation against the woman petitioner, in brief, was that she established contact with the complainant doctor on cell phone seeking appointment for her medical check-up. The available record does not tell as to what were the special circumstances which prompted the complainant doctor to ask the patient young girl to see him on the way. In the normal course of events the complainant doctor was expected to give her appointment for medical check-up in his clinic. It was not possible and desirable for the complainant doctor to examine young ailing girl on road side or at any other place other than his clinic. The motive behind involvement of the woman petitioner, in the circumstances, appears to be shrouded in mystery.
The learned counsel for woman petitioner was a little bit reluctant to argue at the cost of decency that the young girl refused to yield to unholy desire of the complainant, upon which he got her involved in a case punishable with imprisonment for life after having joined hands with the Local Police. I exercise a restraint and do not find it appropriate to say at this stage that sexual lust over powered the complainant to such an extent that he hired the services of local police in order to teach a lesson to the girl, who dismissed his unholy immoral demand. I leave this controversy to the judgment of Investigating Agency so long as the case ins under investigation and then to the trial Court, which is solely responsible to determine the question of guilt or innocence of the challaned accused.
Tentative assessment of the material and attending circumstances of the case has provided a basis to say that the complainant laid rashaped version before the police qua the role of unmarried young girl without previous criminal record. It appears that the complainant attempted to minimize his own role in respect of his telephonic contact with the girl asking her to see him at a place other than his clinic for her medical check up. This state of affairs has adversely affected complainant's version.
The learned Law Officer attempted to argue that after her arrest the petitioner led to the recovery of cell phone, which had been snatched by the male accused persons. Keeping in view the mode and manner of involvement of the woman petitioner in the case, the recovery of cell phone appears to be doubtful.
For what has been stated above the allegation against the petitioner is open to serious doubt. Needless to add that the benefit of doubt, however slight, is right of the accused even at bail stage. I, therefore, allow bail to the petitioner subject to furnishing bail bond in the sum of Rs. 50,000/- (Fifty thousand only) with one surety in the like amount to the satisfaction of trial Court.
Before parting with this order I feel persuaded to get the case re-investigated by an officer of good repute. The way a young unmarried girl without previous record was roped in, should not be lightly ignored. This Court in its Constitutional jurisdiction is custodian of Constitutionally guaranteed rights of citizens in respect of their dignity, liberty and privacy. Although the subject of investigation of criminal case falls within exclusive domain of the Police/Investigating Agency, yet this Court is not supposed to decide the matter touching human liberty and dignity in a mechanical way leaving the aggrieved to the mercy of Investigating Agency. In the case in hand, the complainant, who happens to be homoeopathic doctor, established contact with a young unmarried girl, who previously sought appointment for her medical check-up, and asked her to see him at a place other than his clinic. Although, it is not possible to hold mini trial of the allegation before inception of regular trial, but this Court cannot and should not accept and believe ridiculous and flimsy stories offensive to accepted standard of normal human behavior, without application of judicial and legal mind. By converting this bail petition in to a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, I dispose of the matter with a direction to Regional Police Officer, Rawalpindi to entrust investigation of the case to an officer of good repute outside District Chakwal and to get it finalized on facts under his direct and constant supervision.
(R.A.) Bail allowed
PLJ 2009 Lahore 541
Present: Hafiz Tariq Nasim, J.
MUHAMMAD TAHIR--Petitioner
versus
SECRETARY COMMUNICATION & WORKS DEPARTMENT, GOVT. OF PUNJAB, LAHORE and another--Respondents
W.P. No. 13522 of 2008, heard on 3.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Service Tribunals Act, 1974--Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974, R. 13--Constitutional petition--Maintainability--Question of--"Officiating"--Bars of jurisdiction of Tribunal--Applicability of Rules to the promotion--Petitioner joined department of communication--Recommended for promotion--Promoted against a vacant post--Reverted causing a serious prejudice to petitioner--Challenge to--Validity--Petitioner was admittedly eligible for promotion against his quota of 20%, his suitability was determined by DPC, his promotion order was passed by competent authority, if petitioner's promotion was an officiating promotion, which rule or law allows the department to keep the petitioner on officiating basis for a period more than a decade and that too violating the law laid down by SC in case of 1994 PLC (CS) 111--Held: Petitioner's promotion was in a prescribed manner against clear regular vacancy and that too in his quota of 20% and as such could not be termed otherwise than a regular promotion--Conditions of Rule 13 of Punjab Civil Servants (Appointment and Conditions of Services) Rules, were not attracted at time of petitioner's promotion, then it can safely be held that the word `officiating' as used in promotion order of the petitioner, was illegal and beyond the scope of Rules--Petition was allowed.
[Pp. 545 & 546] A, B, C & D
PLD 1970 Quetta 115, 1993 SCMR 609, PLD 1996 SC 8378, 2008 PLC (CS) 715, ref.
1995 SCMR 82, PLD 1996 SC 837, 2001 SCMR 1320, 2004 SCMR 639 & 2007 SCMR 1451, rel.
2007 SCMR 13, 2008 SCMR 1138 & 2009 SCMR 1, follow.
Mr. Mahmood Ahmad Qazi, Advocate for Petitioner.
Mr. Naeem Masood, AAG with Humayun Akhtar Sahi, Deputy Director (Legal), C&W Department for Respondents.
Date of hearing: 3.2.2009.
Judgment
Facts leading to this writ petition are that the petitioner joined Department of Communication and Works, Government of Punjab as Sub-Engineer on regular basis on 30.11.1968. The petitioner became eligible for further promotion as Assistant Engineer/Sub-Divisional Officer against reserved 20% quota from amongst Sub-Engineers on seniority-cum-fitness basis in the year 1996. Keeping in view the eligibility of the petitioner and his certain colleagues, their promotion case was placed before the duly constituted DPC in its meeting held on 14.7.1996, where they were found suitable and were recommended for promotion. Accordingly, promotion order was issued and the petitioner was posted against a vacant post of Assistant Engineer, Highway Circle, Faisalabad, where he joined and since then is performing his duties. On 10.10.2008 notification dated 22.9.2008 was communicated to the petitioner, whereby he was reverted to the post of Sub-Engineer causing a serious prejudice to the petitioner, hence this writ petition.
Learned counsel for the petitioner submits that the impugned notification dated 22.9.2008 is an outcome of established malice, violation of rules and well settled law laid down by the Hon'ble Supreme Court of Pakistan. Further submits that after performing the duties as Assistant Engineer/SDO and that too on the strength of promotion which was granted to the petitioner on the recommendations of DPC a lawful right had been accrued in his favour which could not be rescinded or recalled in view of well settled principle of locus poenitentiae. Adds that even otherwise, the impugned notification offends the well settled principle of natural justice as before passing the said notification neither the petitioner was served with show-cause notice nor he was allowed to explain his case in person which is a sufficient ground for setting aside the impugned notification. Learned counsel further submits that according to Section 2(2) and Section 8 of the Punjab Civil Servants Act, 1974 read with Rule 9 of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 the petitioners promotion of 1996 was regular for all purpose and the usage of word `officiating' virtually amounts to travelling beyond the scope of law and rules. Learned counsel also referred Rule 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974 and contends that after rendering three years satisfactory service from 1996 i.e. the date of promotion, practically the petitioner had already been confirmed against the post of Assistant Engineer/SDO and a confirmed employee cannot be treated in a manner which was adopted in the petitioner's case. In support of his contentions learned counsel has referred (PLD 1970 Quetta 115), (1993 SCMR 609), (PLD 1996 SC 837) and (2008 PLC (CS) 715).
On the other hand, learned Assistant Advocate-General submits that the petitioner's promotion of 1996 was an officiating which cannot give any right to him for its continuation for an indefinite period. Further submits that the petitioner's regularization case was placed before the DPC on 9.9.2008 but due to the incomplete service record his case was deferred. Further submits that the petitioner's regularization of promotion case shall be placed in the next DPC and shall be considered on its own merits. Learned Assistant Advocate-General also questions the jurisdiction of this Court in view of Article 212 of the Constitution of Pakistan.
Arguments heard. Record perused.
So far the question of maintainability of writ petition is concerned, suffice it to refer Section 4 of the Punjab Service Tribunal Act which clearly bars the jurisdiction of the Tribunal in case of determination of fitness to hold a particular post or not. In this respect, the law is too much devolved and there is no doubt in my mind that in the present case which revolves around the determination of fitness to hold a particular post, the objection of the learned Assistant Advocate General is repelled.
Even otherwise, the law laid down by the Hon'ble Supreme Court reported as Governnment of N.W.F.P. through Chief Secretary and others vs. Iqbal Jahangir Khan and another (1995 SCMR 82), Secretary to Government of N.W.F.P. and another vs. Muhammad Nawaz and another (PLD 1996 SC 837), Administrator, District Council, Larkana and another vs. Ghulab Khan and 5 others (2001 SCMR 1320), Government of Sindh through Secretary, Home Department and others vs. Abdul Jabbar and others (2004 SCMR 639) and Asim Khan and others vs. Zahir Shah and others (2007 SCMR 1451) can be relied in that respect.
So far the merit of the case is concerned, it is noticed that the department's entire case revolves around the stance that petitioner's promotion of 1996 was officiating, nothing more nothing less. The resolve this controversy, it shall be appropriate to refer Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, which is as follows:--
"[13. Appointment by promotion an officiating basis:--(i) Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the [\] incumbent or is reserved under the rules to be filed by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(ii) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate Selection Authority.
(iii) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(iv) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion.]"
(i) Whether in the year 1996 a permanent post of Assistant Engineer/SDO under 20% quota of the petitioner was vacant or not?
The reply is yes.
(ii) Whether the petitioner was eligible for the regular promotion against a permanent vacancy in his quota in the year 1996 or not?
The answer is yes.
(iii) Whether the petitioner was promoted in the year 1996 against a post which fell vacant as a result of deputation, position outside the cadre, leave, suspension or appointment on acting charge basis of the incumbent or it was reserved under the rules to be filled by transfer?
After consulting the record, he departmental representative submits that none of these conditions were available when the petitioner was promoted in the year 1996.
If the above questions viz. replies are put in juxta-position to the rules applicable to the promotion, the only conclusion which can be drawn is that the word officiating' used in the petitioner's promotion of 1996 was an alien to the rules and only the usage of the said word ofofficiating' cannot convert the regular promotion into officiating or otherwise.
The petitioner was admittedly eligible for promotion against his quota of 20% in the year 1996, his suitability was determined by the DPC, his promotion order was passed by the competent authority, he took over the charge and right from 1996 till the passing of the impugned order he continuously performed the duties regularly against the post of Assistant Engineer/SDO.
Assuming for a moment that if the petitioner's promotion of 1996 was an officiating promotion, which rule or law allows the department to keep the petitioner on officiating basis for a period more than a decade and that too violating the law laid down by the Hon'ble Supreme Court of Pakistan reported as Sarwar Ali Khan vs. Chief Secretary to Government of Sindh and another (1994 PLC (CS) 411), wherein it is held:--
"When recruitment rules were notified on specified date civil servant stood qualified as having done five years' service in the higher grade with no adverse report, therefore, Department Promotion Committee could have approved civil servant on that specified date; there was no legal justification for getting clearance later and promoting him on regular basis on a subsequent date .... Civil servant's promotion on regular basis from a date subsequent to the one he was entitled to be prompted in absence of plausible explanation, could not be treated as fair and equitable."
"We would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely any every effort should be made to fill posts through regular appointments in shortest possible time."
"Civil servant's appointment being regular appointment within meaning of Section 2(2), Punjab Civil Servants Act, 1974 and having been made in prescribed manner, his services were not liable to summary termination."
In the present case it is noticed that the petitioner's promotion of 1996 was in a prescribed manner against clear regular vacancy and that too in his quota of 20% and as such could not be termed otherwise than a regular promotion.
When it is admitted by the department that the conditions of Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules were not attached at the time of petitioner's promotion in the year 1996, then it can safely be held that the word `officiating', as used in the promotion order of the petitioner, was illegal and beyond the scope of Rules and it is well settled law laid down by the Hon'ble Supreme Court in the case reported as Punjab Workers' Welfare Board, Government of Punjab and Human Resources Department, Lahore vs. Mehr Din (2007 SCMR 13), wherein it is held that basic order to the extent of condition was without lawful authority, therefore, superstructure was to fall on ground automatically.
Before parting with this judgment I can refer a case reported as Jafar Ali Akhtar Yousafzai vs. Islamic Republic of Pakistan and another (PLD 1970 Quetta 115), wherein it is held:
"When continuous officiation is not specifically authorized by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra-disciplinary powers or for other reasons including those of inefficiency and negligence, e.g. failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. I proper cases, therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it."
"Where a person who had completed the requisite number of years and was otherwise fit for promotion was promoted to a higher post, his promotion would be regular and not on current charge bass."
Writ petition is allowed in the above terms.
(R.A.) Petition allowed
PLJ 2009 Lahore 547
Present: Kh. Farooq Saeed, J.
MUSHTAQ SOHAIL CHEEMA--Petitioner
versus
ADDL. DISTT. JUDGE GUJRAT and 3 others--Respondents
W.P. No. 15519 of 2008, heard on 10.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitution petition--Welfare of the child--Determination of the custody--Prohibitory decree of stepfather--Absolute rule--Status of father or second marriage of the mother may in some cases be good reason for depriving the mother from the custody of her children but such obviously cannot be considered as an absolute rule--Petition dismissed. [P. 549] A
Welfare of Child--
----Minors do not want to live with father and would prefer to take some poison and die--Determination to the question--Some times the consent may not prove to be in their welfare because of the age factors--Validity--Living with a man in a prohibitory decree, in some of the cases can prove to be as not safe but in most of the cases have proved to be better than living with stepmother. [P. 549] B
2004 SCMR 990, 2003 CLC 131 & 2002 PLD SC 267 ref.
Mian Javed Iqbal Arain, Advocate for Petitioner.
Ch. M. Javed Ghani, Advocate for Respondent.
Date of hearing: 10.2.2009.
Judgment
Through this writ petition the order of the Addl. District Judge dated 14.7.2008 is challenged inter alia on the basis of following arguments:--
(i) That the respondent mother has married again to a stranger who is in prohibitory decree;
(ii) That under Islamic Law there is a very clear instruction that the girls should not be allowed to stay with their mother in case of separation between the husband and wife if she marries to another person who is in prohibitory decree;
(iii) That the petitioner herself had surrendered the custody through a written agreement at the time of separation;
(iv) That the orders of the two forums below are at Variance.
Supporting above four arguments the petitioner's counsel said that Islamic Law is a devine law and for all practical purposes the directions given by Allah through his Prophet should be considered as superior. In addition to referring Sections 351, 352 and 354 from the famous book of DF Mulla, he remarks that the girls are not permitted to live with their mother if she is married to a person other than their father. He also referred "Surah Nisa" Ayat No. 51. He however, could not give any satisfactory reply on the question of maintainability of the writ petition as apparently there is a no illegality or irregularity in the orders of the two officers below. His reply remained that since the direction to live with mother inter alia includes living with step-father as well as who is in a prohibitory decree, it is illegally.
The respondent on his turn firstly challenged the vary application of Section 354 by stating that the opinion of Mr. DF Mulla at best can be a research work and does not have any binding effect in any form whatsoever. It is neither a code nor even otherwise have any sanctity with regard to its application on the family matters. There are so many other research works which are of much weight and importance and can be referred in such matters more safely. He referred the books like "Fatawa Alamgiree" and "Ainul Hidaya" and the other Sharia books authored by Syed Amir Ali etc. The rule referred by the petitioner has rather been commented to be over simplification and inapplicable in family matters through (2000 SCMR 838) Re: "Mst. Firdous Iqbal vs. Shifaat Ali and others".
Coming to the main arguments the respondent counsel first of all said that the factors which are necessary for determination of the custody ar many fold in number. He however, commented that all such factors ultimately amalgamate to the one final necessary requirement which is "welfare of the child" The other important factors which are ancillary to the determination of welfare include the choice of the minor. Regarding argument of the prohibitory decree of step-father he commented that this again is not an absolute rule.
This Court in principle agree with the respondent side that the status of the father or second marriage of the mother may in some cases be good reason for depriving the mother from the custody of her children but this obviously cannot be considered as an absolute rule. In each case the circumstances can vary like in the present case there is very strong and almost verifiable evidence that the step-mother has maltreated the daughters.
This has also ben stated before the subordinate forums that minors do not want to live with the father and would prefer to take some poison and die. Further the choice of the minor is also an equally important factor for determination of the question. In fact it is the `welfare of the child' which is to be determined through other facts. Some times the consent may not prove to be in their welfare because the minors for the reasons of the age factor may have a disadvantage. Similarly living with a man in a prohibitory decree, in some of the cases can prove to be as not safe but in most of the cases have proved to be better than living with the step-mother. In any case there are not hard and fast parameters.
Coming to the present case the prime consideration being `welfare' it stands proved from record that:--
(i) The step-mother has maltreated the minor;
(ii) The minors are not willing to live with the step-mother or their real father;
(iii) Mother's right of "Hazanat" is intact;
(iv) That there is no apparent mis-reading or non-reading of evidence.
"As ultimate Court in the give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of first instance which had the advantage of hearing the parties witnesses, and watching their demanour. Normally, the Supreme Court does not interfere with the findings of facts reached by the primary Courts or a High Court when it is satisfied that the findings of the Court below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciate of evidence. This would be notwithstanding that a different view might also be possible."
The respondent in favour of his argument has referred a long list of judgments separately but, however, since not a single copy of the same has been provided the same are not being mentioned. For brevity however, (2004 SCMR 990) re: "Mst. Shahista Naz v. Muhammad Naeem Ahmed and another, (2003 CLC 1310) re: "Dr. Ruqia Shaukat v. Additional District and Sessions Judge and another" and (PLD 2002 SC 267) re: "Mst. Hameed Mai v. Irshad Hussain" are mentioned.
The ultimate finding in all the three judgments is that welfare of the child is prime for custody and relying upon the same on the basis of facts discussed above it is held that the welfare has rightly been determined by the Addl. District Judge.
The writ petition therefore, is no of merits hence is dismissed.
(R.A.) Petition dismissed
PLJ 2009 Lahore 551
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
SHER SAMAD KHAN--Petitioner
versus
M.D.A. etc.--Respondents
W.P. No. 1279 of 2009, heard on 2.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintainability of--Petitioner was leased out play land--Possession of land for installation for a period of twenty years--MDA was entitled to receive its share from daily income in terms of lease deed--Petitioner in meantime entered into negotiations with a view to form a partnership to run the business--Partnership between the petitioner and private respondent was yet to be finalized--Proceeded to pass impugned order--Malafide intention and for ulterior motives--Validity--Petitioner himself invoked the jurisdiction of Civil Court regarding the same controversy against respondents which was still pending adjudication besides he himself filed partnership deed before MDA--Question of facts are involved which need through inquiry and such exercise cannot be under taken in Constitutional jurisdiction--Petition was dismissed as being not maintainable. [P. 553] A
Mr. Asmat Ullah Khan Niazi, Advocate for Petitioner.
Mr. Tahir Mehmood, Advocate for Respondents No. 4 to 6.
Mr. Muhammad Ameen Malik, Advocate for Respondents No. 1 to 3.
Date of hearing: 2.4.2009.
Judgment
Briefly stated facts as those emerge out of this petition are that the petitioner was leased out play land phase II by respondent MDA within Shah Shamus Park Multan vide lease agreement dated 14.5.2007, the possession of the land for installation of new games was also handed over to the petitioner for a period of twenty years. As per lease deed the respondent/MDA was entitled to receive its share from daily income of the games in terms of clause VII of the lease deed.
The petitioner in the meantime entered into negotiations with Respondents No. 4 to 6 with a view to form a partnership to run the business aforesaid and also intimated to MDA. The petitioner submitted an application as "Annex-B" of the writ petition which was received in the office of respondent MDA on 19.4.2008. This application remained undecided.
The learned counsel for the petitioner vehemently contends that inspite of the fact that application "Annex-B" is till date undecided and the partnership between the petitioner and private Respondents
No. 4 to 6 was yet to be finalized. But without even hearing the petitioner, respondent MDA proceeded to pass impugned order on 18.2.2009, arbitrarily declaring that Respondents No. 4 to 6 were the partners in the afore-stated business of the petitioner and the petition vide the same impugned order was to distribute the income in accordance with the ratio laid down therein. He prayed that same may be set aside being illegal unlawful and arbitrary. Adds that the petitioner has not yet given his consent and the matter has not been finalized between the petitioner and private Respondents No. 4 to 6. The impugned order has been passed with mala fide intention and for ulterior motives in connivance with the private Respondents No. 4 to 6 thus is without lawful authority and of no legal effect therefore, liable to be set aside.
Further contends that the dispute between the petitioner and private Respondents No. 4 to 6 is at the most of civil nature and MDA having leased out the rights to the petitioner cannot lawfully interfere in the business being run by him. The learned counsel for the petitioner submits that the so-called partnership deed submitted by the Respondents No. 4 to 6 to respondent MDA and relied upon by it rather based upon while passing the impugned order, has already been challenged before the learned Civil Court of competent jurisdiction, wherein status quo has also been granted as far back as on 19.12.2008 which is annexed with this petition as "E" and that the impugned order is not only in excess of jurisdiction but also violative of order passed by the learned Civil Court. Adds that the respondent MDA was also formally informed about the pendency of suit and issuance of status quo order vide application "Annex-D" which was diarized in the office of MDA on 19.2.2009. In response to preliminary query from the Court as to how this petition is competent the learned counsel relied upon 1996 MLD 1972 Hajvari Associate cases, 2007 SCMR 1240, Sargodha Textile Mill, 2007 SCMR 1357.
Conversely Mr. Tahir Mehmood Advocate for Respondents No. 4 to 6 vehemently opposed the submissions made by the learned counsel for the petitioner and submits that disputed questions of facts are involved, therefore, this constitutional petition is not competent. Clause 20 of the lease agreement, an equally efficacious and alternate remedy of resorting to arbitrators is available, therefore, this petition is liable to be dismissed on this score alone; that the petitioner himself having approached the learned Civil Court of competent jurisdiction regarding the same dispute has simultaneously invoked extraordinary constitutional jurisdiction of this Court. This conduct on the part of the petitioner is not appreciable and disentitles him to the relief sought for thus is not entitled to the equitable and discretionary relief in exercise of constitutional jurisdiction. The petitioner deliberately has not placed on record application dated 8.12.2007 submitted by him to the respondent MDA and even has not mentioned it during the course of arguments which is concealment of substantial facts.
Mr. Muhammad Amin Malik Advocate while adopting the arguments advanced on behalf of the private respondents submits that this petition in view of arbitration clause in the aforestated agreement and for the fact that civil suit filed by the petitioner involving same controversy is still pending, this petition is not maintainable.
Arguments heard. Record perused.
Admittedly the writ petitioner himself has invoked the jurisdiction of Civil Court regarding the same controversy against respondent which is still pending adjudication bodies he himself filed partnership deed before the respondent M.D.A. Admittedly the disputed questions of facts are involved which need thorough inquiry and this exercise cannot be undertaken in constitutional jurisdiction. The case law cited at bar by the learned counsel for the petitioner is not of much help to him as those are distinguishable in view of peculiar facts of the case in hand. I, therefore, find on merits in this petition which is hereby dismissed as being not maintainable.
Without touching the merits of the case because it might not prejudice the case of either of the parties. This petition is dismissed on the sole point of being not maintainable. Leaving the parties to bear their own costs.
Before parting I may observe that the petitioner, however, shall be at liberty to raise as many as issues including the one raised in this Constitutional petition before the learned Civil Court in accordance with law.
(R.A.) Petition dismissed
PLJ 2009 Lahore 554
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD NASIR MAHMOOD, ASST. S.I.--Petitioner
versus
EX-OFFICIO JUSTICE OF PEACE/LEARNED ASJ, FAISALABAD and 2 others--Respondents
W.P. No. 17130 of 2008, decided on 28.1.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Registration of the case--Ex-officio Justice of Peace--Statutory duty of police--Incharge of police with regard to commission of a cognizable offence either given in writing or orally is bound to reduce it into writing--Information supplied for commission of a cognizable offence cannot be said is ultimately true--SHO should have been directed to register the case on statement of respondent if any offence of cognizable nature is made out--It is also statutory duty of police to record as to what offences are made out in information supplied--Held: Requirement of law is that the police official has to record to FIR in a cognizable offence u/S. 154, Cr.P.C.--Registration of the case is an independent right of the aggrieved person--Petition was partially allowed. [P. 555] A
Ch. Zulfiqar Ali, Advocate for Petitioner.
Rai Tariq Saleem, AAG for State.
Ch. Muhammad Kashif Shahzad, Advocate for Respondent No. 2.
Date of hearing: 28.1.2009.
Order
Through this writ petition it is prayed to set aside the impugned order dated 17.112008 of the learned Additional Sessions Judge whereby SHO police station Factory Area has been directed to register the case against Respondents No. 2 and 3 described in the application and to investigate in accordance with law. Respondent No. 2 Shaukat Ali applicant was directed to appear before the DIG (Operation) Faisalabad for further proceedings in the case.
The brief facts of the case are that Respondent No. 2 filed an application to learned Ex-Officio Justice of Peace for registration of the case against Nasir SI and Zahid Haleem ASI posted in Police Station Factory Area, Faisalabad, leveling the allegation that one Asif Pasha duped to his friend Dr. Abdul Khalid and grabbed an amount of Rs.1,40,000/- on the pretext to send his son to Malaysia. An application was filed to FIA by the said Dr. Abdul Khaliq. The petitioner/Respondent No. 2 had supported to his friend in enquiry and legal proceedings were initiated against said Asif Pasha who has good relation with two ASIs' and in order to arrest the petitioner, on 18.7.2008, the said police officials entered into the house of the petitioner and took the petitioner to police station. The amount of Rs. 60,000 was taken away from almirah and received Rs. 5000/- in lieu of his release. The petitioner approached to DSP for legal action but the said police official recorded against him an FIR No. 846/08 dated 8.8.2008 u/S. 489-B and 489-C PPC. The petitioner filed an application to the Ex-Officio Justice of Peace for registration of the case. Learned Additional Sessions Judge passed an order for registration of the case observing that nature of the allegation contained in the petition reveals the nature of offence u/S. 222/386 PPC and 155-C of Police Order, 2002 and case was directed to be registered.
It is argued by learned counsel for the petitioner that order has been passed for registration of the case u/Ss. 222/386 PPC and 155-C of Police Order, 2002 which are non-cognizable offences in nature. Hence the impugned order is patently illegal and liable to the set aside.
Learned Law Officer assisted by learned counsel for Respondent No. 2 alleges that offence u/Ss. 342/161/380 PPC along with 5(2) 47 of the Prevention of Corruption Act are also made out from the facts. Hence the impugned order was passed for registration of the case under these sections alongwith other offences, whatsoever are made out.
Heard.
The offences in which the petitioner has been directed to be booked are non-cognizable but the application filed contains on many allegations. These are the facts, which constitute the offence, and the learned Ex-Officio Justice of Peace was not legally justified to direct to SHO to register the case under certain offences. The incharge of the police station with regard to commission of a cognizable offence either given in writing or orally is bound to reduce it into writing. The information supplied for commission of a cognizable offence cannot be said is ultimately true. The SHO should have been directed to register the case on the statement of the respondent if any offence of cognizable nature is made out. It is also statutory duty of the police to record as to what offences are made out in the information supplied. Requirement of law is that the police official has to record the FIR in a cognizance offence u/S. 154 Cr.P.C. The registration of the case is an independent right of the aggrieved person. The learned Additional Sessions Judge has directed to register the case in specific sections which is not warranted by law whereas complaint also discloses other offences. Therefore, the impugned order dated 17.11.2008 of learned Ex-Officio Justice of Peace is modified the SHO is directed to record the statement of Respondent No. 2 and if any cognizable offence is made out to register the case and investigate the matter in accordance with law. This writ petition is partially allowed and disposed of accordingly.
(R.A.) Petition allowed
PLJ 2009 Lahore 556
Present: S. Ali Hassan Rizvi, J.
Mst. SAMINA AFZAAL and others--Petitioners
versus
ZAFAR ULLAH TARAR, ADDL. DISTT. JUDGE, LAHORE
and another--Respondents
W.P. No. 643 of 2009, decided on 5.3.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--No appeal lay against the order passed by Family Court directing payment of interim maintenance allowance--Suit for recovery of maintenance--Direction for payment--Respondent did not pay single penny and preferred an appeal--Validity--Expression "decision"--The word decision will have to be read ejusdem generis with expression decree--Held: No appeal lay against any interim order passed by Family Court and that only final order would be covered by the word decision--Appeal before Distt. Judge filed against the order of Family Court directing interim maintenance was not competent--Impugned order had no legal efficacy--Petition was accepted. [P. 557] A & B
PLD 1999 Lah. 33, ref.
Mr. Muhammad Tanveer Ejaz, Advocate for Petitioners.
Respondent No. 2 in person.
Date of hearing: 5.3.2009.
Order
At the very outset Muhammad Afzaal Respondent No. 2 stated that he would not engage a counsel and would make his submissions himself.
I have heard the learned counsel for the petitioner and also Respondent No. 2.
The facts are that in a family suit brought by Mst. Samina Afzaal and her children (Petitioners No. 2 to 6) seeking recovery of maintenance, the learned Judge, Family Court had passed an order on 24.11.2008 directing payment of interim maintenance at the rate of
Rs. 3000/- per head. Respondent No. 2 did not pay even a single penny and preferred an appeal which was entrusted to Mr. Zafarullah Khan Tarar, learned Additional District Judge, Lahore (Respondent No. 1 herein) against the order dated 24.11.2008.
Rs. 1000/- per head, was without lawful authority. On 16.1.2009, the writ petition was admitted and operation of the impugned order dated 19.12.2008 passed by Respondent No. 1 was suspended. Thereafter, on 13.2.2009, this Court passed another order directing that there would be no restriction in disposing of the appeal pending before Respondent
No. 1 and likewise the trial Court was directed to continue with the proceedings with a clean slate.
Appeal is still pending although the learned Judge, Family Court vide judgment/decree dated 17.2.2009 decreed the suit to the extent of Petitioners No. 2 to 6 who were daughters/sons of Mst. Samina Petitioner No. 1 and Muhammad Afzaal Respondent No. 2. I have no doubt in my mind that no appeal lay against the order passed by the learned Judge, Family Court directing payment of interim maintenance allowance. The expression "decision" as appearing in Section 14 of the Family Court Act, 1964, has already received judicial interpretation in many cases. It was ruled that the word "decision" will have to be read ejusdem generis with the expression "decree". In other words, it was laid down that no appeal lay against any interim order passed by a Judge, Family Court and that only final order would be covered by the word "decision". Muhammad Akram vs. Mst. Raheela etc. (PLD 1999 Lahore 33) may be referred to as a direct authority on the point. I, therefore, quite see that the appeal before learned Additional District Judge, Lahore filed against the order dated 24.11.2008 of the learned Judge, Family Court directing interim maintenance was not competent. Consequently the order passed thereon had also no legal efficacy. Even otherwise, the suit has already been decreed vide judgment/decree dated 17.2.2009 by the learned trial Court to the extent of petitioners/Plaintiffs No. 2 to 6. The said appeal had also become infructuous to that extent.
For reasons stated above, I accept the writ petition and declare that the appeal before Mr. Zafarullah Khan Tarar, learned Additional Sessions Judge, Lahore preferred by Respondent No. 2 Muhammad Afzaal under Section 14 of the Family Court Act, 1964 against the interim order dated 24.11.2008 of the Judge, Family Court, Lahore was not competent. The same shall stand dismissed as such.
A copy of this order is directed to be sent to Mr. Zafarullah Khan Tarar, learned Additional District Judge, Lahore for further guidance.
No order as to costs.
(R.A.) Petition accepted
PLJ 2009 Lahore 558
Present: S. Ali Hassan Rizvi, J.
Rao MUHAMMAD ASHIQ RAZZAQ--Petitioner
versus
Mst. ABIDA SHAMSHAD and 2 others--Respondents
W.P. No. 4391 of 2009, decided on 26.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for maintenance allowance and dowry article--Petition cannot be considered as substitute for an appeal or revision suit for maintenance allowance and dowry articles--Ex-parte proceedings--Application of setting aside ex-parte proceedings but was dismissed--Appellate Court also dismissed his request--Challenge to--Validity--Petitioner did not prosecute his remedy with due care and attendance--If counsel was not prosecuting his case faithfully, the remedy lay by way of damages or through complaint before appropriate forum of Bar Council--Held: Law does not provide any appeal or revision against the appellate judgment/order passed under the family laws--Petitioner has not paid any maintenance and he is grouping here and there--Petition cannot be considered as substitute for an appeal or revision--Petition was dismissed. [P. 559] A
Syed Qamar Nasik, Advocate for Petitioner.
Date of hearing: 26.3.2009.
Order
Rao Muhammad Ashiq Razzaq petitioner has filed this writ petition on 5.3.2009 with the following prayers:
"In view of the above submissions, it is most respectfully prayed that this writ petition may very graciously be accepted, the judgment dated 22.6.2006 passed by the learned Additional District Judge/Respondent No. 2 whereby he dismissed the appeal against the order dated 6.3.2006 for setting aside the ex-parte decree dated 18.11.2005 passed by the learned Judge, Family Court/Respondent No. 3, may very kindly be set aside by declaring the same as illegal, against law and facts of the case, and the case may very kindly be remanded back to the learned trial Court for deciding the same on merits, in the interest of justice."
It was argued on behalf of the writ petitioner that he had engaged a counsel but the counsel every time did not act faithfully in prosecuting his remedy and that it was for this reason that the judgment dated 22.6.2006 is being challenged through the present writ petition.
I have heard learned counsel for the petitioner and perused the record appended with this petition.
Respondent No. 1 had filed a suit for maintenance allowance and dowry articles on 2.3.2005. The present petitioner filed his written statement on 9.6.2005 whereafter he did not prosecute his defence. Ex-parte proceedings were taking against him. On 1.7.2005, he filed an application for setting aside the ex-parte proceedings but the same too was allowed to be dismissed in default on 16.9.2005. Ultimately, the suit was decreed on ex-parte evidence on 18.11.2005. The decree dated 18.11.2005 was sought to be set aside by an application dated 17.11.2005. However, the same was rejected by the learned Judge, Family Court on 6.3.2006. The order dated 6.3.2006 was unsuccessfully challenged before Mehr Muhammad Nawaz, learned Additional District Judge, Arifwala vide judgment dated 22.6.2006. Hence, this writ petition.
The above narration of facts borne out by record would show and show clearly that the petitioner has not been prosecuting his remedy with due care and attendance. He has been engaging counsel of his own choice and if his counsel was not prosecuting his case faithfully, the remedy lay by way of damages or through a complaint before the appropriate forum of Bar Council. This was never done. The writ petition suffers from laches. Even otherwise, law does not provide any appeal or revision against the appellate judgment/order passed under the family laws. It appears that the petitioner has not paid any maintenance and he is groping here and there. Writ petition cannot be considered as a substitute for an appeal or revision. I see no substance in the writ petition and proceed to dismiss the same in limine.
A copy of this order shall be sent to the learned Judge, Family Court/executing Court, for information.
(R.A.) Petition dismissed
PLJ 2009 Lahore 560
Present: S. Ali Hassan Rizvi, J.
SHAKEEL ANWAR HAMDANI--Petitioner
versus
SYEDA SHABANA GILLANI and another--Respondents
W.P. No. 4100 of 2009, decided on 4.3.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Proceeded against ex-parte twice--Suit for recovery of dowry article--Closing of right of cross-examination--Petitioner filed an application seeking setting aside ex-parte proceeding, accepted--Refractoriness of--Jurisdiction--Legality--Law does not provide any appeal/revision in hierarchy of Family Laws as family matters are required to be decided expeditiously--Impugned order is not only clothed with authority but is also fully justified--Petitioner on proper showings would have an opportunity to challenge the same if and when he would bring an appeal against the final decision/judgment in terms of S. 14 of Family Courts Act--No illegality or irregularity in passing the impugned order calling for interference in exercise of Constitutional jurisdiction of High Court--Petition dismissed.
[P. 561] A
Mr. Muhammad Ali Khan Baloch, Advocate for Petitioner.
Date of hearing: 4.3.2009.
Order
The petitioner has challenged the validity of the order dated 26.11.2008 passed by the learned Judge, Family Court whereby the right of the petitioner to cross-examine the witnesses of the plaintiff/Respondent No. 1 was closed.
It is argued that the petitioner remained in attendance throughout and it was the respondent/plaintiff who failed to produce her witnesses in a suit for recovery of dowry articles, that the impugned order dated 26.11.2008 closing the right of cross-examination was too hash and the valuable rights of the petitioner had been closed. In the view of learned counsel, the learned Judge, Family Court has committed material illegality or irregularity while passing the impugned order, which justified interference in the exercise of constitutional jurisdiction.
I have heard the learned counsel and perused the record. Family suit was pending for the last two years. The petitioner/defendant was proceeded against ex-parte twice. On 26.10.2007, he was proceeded against ex-parte and on 28.11.2007 subject to costs, the ex parte proceedings were recalled. Again on 14.1.2008, ex-parte proceedings were taken. The petitioner again filed an application seeking setting aside of the ex-parte proceedings, which was accepted on 11.3.2008. It shows that the petitioner had been trying to prolong the matter. Considering refractoriness of the petitioner, the learned Judge, Family Court was constrained to pass the impugned order. The law does not provide any appeal/revision in the hierarchy of the Family Laws as the Family matters are required to be decided expeditiously. In the circumstances, the impugned order is not only clothed with authority but is also fully justified. The petitioner on proper showings would have an opportunity to challenge the same if and when he would bring an appeal against the final decision/judgment in terms of Section 14 of the Family Court Act. There is no illegality or irregularity in passing the impugned order calling for interference in the exercise of constitutional jurisdiction of this Court. Dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 561
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
ASIM NAZIR--Petitioner
versus
JUDGE FAMILY COURT, BUREWALA and others--Respondents
W.P. No. 2610 of 2009, heard on 13.4.2009.
Constitution Petition--
----Principle of laches--Although no specific time has been provided for filing the constitutional petition, yet the same is hit by principle of laches. [P. 563] A
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for recovery of dowry articles, decreed of--Appeal was dismissed--Execution petition was filed whereupon an application seeking transfer of execution petition was moved--Execution proceedings was stayed subject to deposit of a specific amount--Challenge to--Legality--Conduct of the petitioner--In constitutional jurisdiction High Court cannot substitute its findings with that of lower Courts merely because from reading of evidence an other view can possibly be taken conduct of the petitioner was also not appreciable, which disentitles him even, otherwise to equitable relief--Petition was dismissed. [P. 563] B
Ch. Pervaiz Akhtar Gujjar, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 13.4.2009.
Judgment
Respondent No. 3 Mst. Shahida Parveen, ex-wife of petitioner filed a suit for recovery of dowry articles, which was resisted by the petitioner by filing written statement, however, vide judgment and decree dated 8.4.2008 learned Judge Family Court, Burewala decreed the suit, where-against an appeal was preferred which was dismissed vide judgment and decree dated 18.6.2008 passed by learned Additional District Judge, Burewala District Vehari. Since the petitioner did not return the articles of dowery nor the decretal amount was paid, therefore, an execution petition was filed before the learned trial Court, who issued process against the petitioner whereupon an application seeking transfer of execution petition from the executing Court to some other learned Judge was moved by the petitioner before the learned District Judge, Vehari, who vide order dated 18.3.2009 stayed the execution proceedings before the learned executing Court subject to deposit of a sum of Rs. 100,000/- till 30.3.2009 and meanwhile comments were called for from the concerned judicial officer.
Learned counsel for the petitioner at the very outset was asked as to whether the order of the learned District Judge, Vehari dated 18.3.2009 has been complied with or not. He submits that instead of complying with the aforestated order he has challenged the same before this Court through present constitutional petition.
On merits it is inter alia contended that learned Courts below have proceeded to pass the impugned judgments and decrees on erroneous assumptions and that it is a case of mis-reading/non-reading.
I have heard the learned counsel for the petitioner at quite some length and with his able assistance perused the record as well as the impugned judgments minutely. The impugned order was passed as far back as on 18.6.2008, whereas, this petition has been filed on 11.4.2009. Although no specific time has been provided for filing the constitutional petition, yet the same is hit by principle of laches. On merits no illegality, misreading or non-reading of the impugned judgments and decrees has even been pointed out. The learned counsel for the petitioner with vehemence argued that the learned Courts below have not attended to the submissions made at bar before them but in my view discrepancies pointed out are not of much help to him for the simple reason that in constitutional jurisdiction this Court cannot substitute its findings with that of lower Courts merely because from reading of the evidence an other view can possibly be taken. The conduct of the petitioner is also not appreciable, which disentitles him, even, otherwise to equitable relief. In view of above, I am not inclined to interfere in the impugned judgments and decrees, which are not only concurrent in nature but also well reasoned, and perfectly in accordance with law on the subject. This petition is therefore, dismissed in limine with costs throughout.
A copy of this order shall be sent to the learned executing Court for favour of information.
(R.A.) Petition dismissed
PLJ 2009 Lahore 563
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
MUHAMMAD HABIB--Petitioner
versus
ADDL. SESSIONS JUDGE/JUSTICE OF PEACE JAMPUR DISTRICT RAJANPUR and 2 others--Respondents
W.P. No. 6837 of 2008, heard on 5.12.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A, 22-B--Illegal Dispossession Act, 2005, S. 3--Civil Procedure Code, (V of 1908), Scope--Specific Relief Act, 1877, Ss. 8 & 9--Illegal dispossession--Remedies--Respondent was dispossessed from her owned plot by petitioner, she should have filed a suit on the basis of her entitlement--In case she was not possessed with title or interest in the plot then speedy remedy for restoration of possession u/Ss. 8 or 9 of Specific Relief Act--Respondent chose to invoke the jurisdiction of the Ex-officio Justice of the Peace--Petition should have been dismissed at limine stage asking her to avail remedies permissible under the law--ADJ in fact passed a decree for recovery of possession of immovable property in an application without trial of the dispute in terms of S. 9 of the Act and thus encroached upon the function of Civil Court--Another remedy available to respondent was to file a private complaint u/S. 3 of the Illegal Dispossession Act, 2005--Record did not tell as to what were the circumstances which persuaded the ADJ to allow respondent to prosecute her case and cause touching immovable property before wrong forum over and the law governing the subject--Respondent's application dismissed.
[P. 567] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Illegal Dispossession Act, 2005, S. 3--Civil Procedure Code, (V of 1908), Scope--Specific Relief Act, 1877, Ss. 8 & 9--Illegal dispossession from the plot--Restoration of possession by ADJ under power Ex-officio Justice of Peace--Jurisdiction of--Validity of--There was not any provision of law, which may empower or authorize an Ex-officio Justice of the Peace or ASJ or ADJ to pass a decree of possession of immovable property summarily on an application--In fact the ADJ adopted a self styled procedure unwarranted in law--ADJ passed the impugned order provided a basis to say that he did not have adequate knowledge of criminal and civil law governing the subject--Impugned order being illegal and without jurisdiction could not be allowed to remain in field--Petition was accepted.
[P. 567] C & D
Rana M. Nazeer Khan Saeed, Advocate for Petitioner.
Mr. Mubashir Latif Gill, A.A.G. for Respondents.
Date of hearing: 5.12.2008.
Judgment
Brief facts giving rise to this Constitutional petition may be given first:
Mst. Subhal Mai, respondent made an application before Addl. Sessions Judge/Ex-officio Justice of the Peace, Jam Pur, Distt. Rajan Pur, against Muhammad Habib, petitioner herein with an allegation that she inherited five marlas plot bearing Khewat No. 722 Chah Talhi Wala, located in revenue estate of Basti Randhan, Tehsil Jampur from her husband, that on 9.7.2008 Muhammad Habib, petitioner forcibly occupied the above said plot and raised construction over it and that she unsuccessfully approached him to get back possession of the plot. With the above assertion Mst. Subhal Mai, respondent prayed for restoration of possession of the plot. For facility of reference prayer of Mst. Subhal Mai, respondent laid before Ex-Officio Justice of the Peace is reproduced below in verbatim:
"Counsel of the complainant.
Arguments heard. Record perused.
As per report of Patwari Halqa, the respondent is in illegal possession of the plot of the complainant. Hence, the D.D.O. (R) Jam Pur is directed to get the possession of the said plot delivered to Mst. Subhal Mai, within a period of one month under intimation to this Court. Disposed of. Be consigned."
(a) to make arrest in circumstances mentioned in Sections 54 and 55 Cr.P.C. and to hand over custody of the arrested person to the Officer Incharge of the nearest police station;
(b) to call upon any member of the police force on duty to aid in arresting or preventing the escape of a person involved in commission of a cognizable offence;
(c) to call upon any member of the police force on duty to aid him in the prevention of crime, breach of the peace or disturbance of the public tranquility; and
(d) to issue a certificate of identification of a person, to verify any document and to attest any document.
An Ex-Officio Justice of the Peace i.e. Sessions Judge and nominated Addl. Sessions Judge in the Districts/Session Divisions has the powers to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police official to another and for neglect, failure or excess committed by a police authority in relation to its functions and duties. As the cost of repetition it is not worthy that justice of the peace or Ex-Officio Justice of the Peace is not a Court as envisaged under Section 6 of the Cr.P.C. or the relevant provisions of the C.P.C. The available record does not show as to how and with what authority the learned Addl. Sessions Judge Jam Pur, entertained the request of Mst. Subhal Mai, respondent as Ex-Officio Justice of the Peace, particularly when it is manifest from a bare perusal of Sections 22-A and 22-B Cr.P.C. that the controversy between Mst. Subhal Mai, respondent and Muhammad Habib, petitioner does not fall within the legally defined domain of Justice of the Peace or Ex-Officio Justice of the Peace.
Allegedly, Muhammad Habib, petitioner forcibly occupied the disputed plot owned and possessed by Mst. Subhal, respondent. I have already mentioned in the preceding paragraph that Ex-Officio Justice of the Peace took cognizance of the controversy as Addl. Distt. Judge after having received report from the Patwari to the effect that Muhammad Habib, petitioner was in illegal occupation of the disputed plot. In such a situation legal remedy available to Mst. Subhal Mai, respondent was to invoke jurisdiction of Civil Court in terms of Section 8 or Section 9 of the Specific Relief Act, 1877 which read as under:
"8. Recovery of specific immovable property.--A person entitled to the possession of specific immovable property may recovery it in the manner prescribed by the Code of Civil Procedure.
Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof.
Here, I must say that in case Mst. Subhal Mia, respondent was dispossessed from her owned plot by Muhammad Habib, petitioner, she should have filed a suit under Section 8 of the Act, on the basis of her entitlement. In case she was not possessed with title or interest in the plot then speedy remedy for restoration of possession was available to her under Section 9 of the Act. Instead of filing a suit for possession or suit for restoration of possession under Section 8 or Section 9 of the Specific Relief Act, Mst. Subhal Mai respondent chose to invoke the jurisdiction of the Ex-Officio Justice of the Peace. Her petition should have been dismissed at limine stage asking her to avail of remedies permissible under the law. The learned Addl. Distt. Judge in fact passed a decree for recovery of possession of immovable property in an application without trial of the dispute in terms of Section 9 of the Specific Relief Act and thus encroached upon the functions of Civil Court.
Another remedy available to Mst. Subhal Mai, respondent was to file a private complaint under Section 3 of the Illegal Dispossession Act, 2005. The available record does not tell as to what were the circumstances, which persuaded the learned Addl. Distt. Judge to allow Mst. Subhal to prosecute her case and cause touching immovable property before wrong forum over and above the law governing the subject.
I have minutely gone through the Code of Criminal Procedure, 1898, Illegal Dispossession Act, 2005, Code of Civil Procedure, 1908 and the Specific Relief Act, 1877. Despite a microscopic examination of the above said enactments, I could not find any provision of law, which may empower or authorize as Ex-Officio Justice of the Peace or Addl. Sessions Judge or Addl. Distt. Judge to pass a decree for possession of immovable property summarily on an application. In fact that learned Addl. Distt. Judge adopted a self styled procedure unwarranted in law. The way, the learned Addl. Distt. Judge passed the impugned order provides a basis to say that he did not have adequate knowledge of Criminal and Civil Law governing the subject. Be that as it may, the fact remains that the impugned order being illegal and without jurisdiction cannot be allowed to remain in field.
For the forgoing reasons, I accept this petition, set aside the impugned order and consequently dismiss the application of Mst. Subhal Mai, respondent, however, with the clarification that she would be at liberty to agitate her case and cause, if any, in accordance with law before the competent forum.
(M.A.K.) Petition accepted
PLJ 2009 Lahore 568
[Rawalpindi Bench Rawalpindi]
Present: Syed Hamid Ali Shah, J.
M/s. NATIONAL TOOL INDUSTRY (REGISTERED)--Appellant
versus
TRADE MARK COUNCIL--Respondent
RFA No. 108 of 2000, heard on 13.10.2008.
Trade Marks Act, 1940 (V of 1940)—
----S. 21--Words & Phrases--"Likely to decive" and "cause confusion"--Connotation of--The term "likely to deceive" is wide enough to negate the stance of respondent that absolute proof is needed to make out a case of infringement of trade mark--A plaintiff can establish the case by proving that the impugned trade mark was caused confusion or it so nearby resemble with the registered trade mark & that there is likelihood of its deception, without calling the witness in witness box, who was so deceived--As such infringement of trade mark cannot be proved through bringing the buyers in witness box--Each side can lead evidence of its own choice & pass through the test of cross-examination--Court can examine the material relevant evidence and the two trade marks and decide that the unway purchaser is or is not likely to be deceived. [Pp. 572 & 573] A & B
(V of 1940)—
----S. 10 & 73--Identical trade marks--Dismissal of suit--Assailed--Suit was dismissed on the sole ground that no witness was produced to prove that at the time of purchase, he was deceived--Court had not only committed material irregular but had also neglected to follow the law and the judgments of the superior Courts--Appeal was partially accepted and suit was decreed except claim of damages.
[Pp. 573 & 574] C & D
PLD 1983 K 357 & (1887) 36 Ch. D.1, ref.
Mr. Rizwan Niaz, Advocate for Appellant.
Mr. Muhammad Siddique Qureshi, Advocate for Respondent.
Date of hearing: 13.10.2008.
Judgment
M/s. National Tool Industry (Registered), appellant herein instituted a suit before learned District Judge, Rawalpindi under Section 73 of the Trade Marks Act, 1940, for permanent injunction and recovery of damages against the respondent. The respondent contested the suit and out of the divergent pleadings of the parties, 7 (seven) issues were framed and the evidence of the parties was recorded in response thereto. Learned District Judge, Rawalpindi on conclusion of the trial, vide his judgment and decree dated 9.5.2000, dismissed the suit of the appellant, holding therein that the trade mark used by the defendant is distinct, having no similarity with the trade mark of the respondent. While reaching the said conclusion, it was observed by the learned Court that the appellant has failed to prove that anyone has been deceived by the trade mark of the defendant.
Learned counsel for the appellant has contended that the appellant is a registered proprietor of the trade mark, vide Serial No. 79351 with effect from 2.4.1983. The appellant is selling shovels bearing the trade mark of one camel and falls in the category of Tools and Instruments, forming part of Clause 8 of Schedule 2. The defendant's trade mark is identical in every respect to that one of the appellant except that it contains two camels. Learned counsel while referring to order dated 9.12.86 submitted that the only plea of the defendant in the suit, was dissimilarity. The defendant had not taken the plea of prior use of the trade mark. He has added that Issues No. 2 to 4 were decided in the impugned judgment in favour of the appellant/plaintiff and the findings of learned trial Court qua Issues No. 1, 5 and 6 were against the plaintiff/appellant which are now assailed in this appeal. Learned counsel contended that while passing the impugned judgment has observed that the impugned trade mark is not identical. Learned Court has not compared both the trade marks side by side. Learned Court has failed to ascertain the fact that both the trade marks so merely resemble that there is every likelihood to deceive the customer. Learned counsel submitted that comparison by learned Judge, is valid and recognized manner for determining the similarity or otherwise of the impugned trade mark. Learned counsel in support of his contentions relied on the cases of "Bashir Ahmad vs. Registered Firm Hafiz Habib-ur-Rehman and another" (1980 CLC 1268) and "Austin Nichols & Co. vs. The Assistant Registrar of Trade Marks, Karachi" (PLD 1993 Karachi 129). Learned counsel went on to argue that the evidence of the expert witness is of no avail and supported this contention by relying on the cases of "Messrs Burney's Industrial and Commercial Co. Ltd. vs. Messrs Rehman Match Works" (PLD 1983 Karachi 357). Learned counsel emphasized that the impugned judgment was passed and is now defend by learned counsel for the respondent, on the premises that there is no evidence to prove deception. He added that when get up is so close that it can be ascertained, merely on it's cursory look, no evidence of deception is needed. Learned counsel supported this contention, by referring to the cases of "Messrs K.S. Sulemanji Esmailji & sons vs. Messers M. Sulemanji & Company Ltd." (1986 CLC 775) and "Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories" AIR 1965 S.C. 980). He further submitted that to ascertain deception, over all similarity is to be seen and in his exercise the patron, the size and the colours, are the parameters to Judge the similarity. While placing reliance on the cases of "Jamia Industries Ltd. vs. Caltex Oil (Pak.) Ltd. and another" (PLD 1984 S.C. 8) and "National Match Works, Sivakasi, vs. S.T. Karuppanna Nadar (died) and others" (AIR 1979 Madras 1957), it was contended that broad and essential features is competing trade marks are to be taken into consideration. It was argued that in the comparison of trade marks, the Court has to examine and decide the controversy from various angles namely similarity and dissimilarity of trademarks, over all get up and to find that unvaried purchasers can be deceived in view of close resemblance. The issue of deception can be decided by comparing both the trade marks side by side. Learned counsel submitted that DW. 2 in his cross-examination has admitted that trade mark is pasted around the handle of the shovel horizontally. He then submitted that when trade mark is pasted around the handle one camel disappears and the other becomes conspicuous. Learned counsel while discussing the evidence has submitted that DW. 1 appeared himself and DWs No. 2 to 4 are the shopkeepers of Mochi Bazar, Rawalpindi. They stated that there was no complaint from the customers that they wanted to purchase the shovel with one camel but the shovel having the trade mark of two camels was sold to them. Learned counsel submitted that no purchaser was brought to witness box but the sellers who sell the shovels of the defendant/respondent. The witnesses are interested witnesses and their statement cannot be relied upon.
Learned counsel for the respondent, on the other hand, has submitted that the appellant is manufacturing shovel with it's trade mark "single camel" and the same is registered. While the respondent is manufacturer of shovel carrying the label of "two camels". The appellant has filed a suit for injunction and recovery of damages. He failed to produce a single witness from Rawalpindi who stated that he was misled while purchasing the shovel due to similarity of the brand of the respondent. He added that the appellant has no agent selling his brand in Rawalpindi. Thus the claim of damages is false and not legally tenable. He went further to argue that onus to prove Issues No. 3 to 6 was on the plaintiff who failed to prove the same. P.W.1, the star witness has not stated anything towards infringement of the trade mark. He added that it was a primary responsibility of the appellant to prove infringement of the brand/label. There is remarkable difference between the two brands. The brand of the appellant conspicuously mentioned name of it's manufacturer "National Tools" while the brand of the respondent contains the name of it's manufacturer "Azhar Enterprises". The buyer, through a glance at the brand name, can differentiate between the two. Learned counsel while referring to the case of "Formica Corporation vs. Pakistan Formica Ltd." (1989 SCMR 361) contended that primary test to decide whether a trade mark which was owned by another has become publici juris is to see whether it's use by other persons is still calculated to deceive the public. Learned counsel then contended that wherean unwary user is likely to be deceived, is the test wherefrom infringement of the trade mark can be ascertained. Mere similarity of competing trade marks is not enough. What has to be adopted is that both the trade marks are so striking that unwary purchaser would be deceived. Learned counsel in support of his contention has referred to the cases of "Jamia Industries Ltd. vs. Caltex Oil (Pak.) Ltd. and another" (PLD 1984 S.C. 8), "Insaf Soap Factory vs. Lever Brothers Port Sunlight Ltd." (PLD 1959 (W.P.) Lahore 381) and "Bandenawaz Ltd. vs. Registrar of Trade Marks, Karachi and another" (PLD 1967 Karachi 492). Learned counsel submitted that trademark should not be placed side by side to find out the similarity. He added that both the brand or trade marks should not be compared side by side as allegedly by the appellant but infringement has to be tested while comparing one mark in the absence of other. He supported his contention from the dictum laid down in the case of "The Welcome Foundation Limited vs. Messrs Karachi Chemical Industries (Private) Limited" (2000 YLR 1376).
Heard learned counsel for the parties and record perused.
Learned counsel for the respondent mainly defended the impugned judgment and decree of learned trial Court on the plea that the infringement of a registered trade mark is essentially proved from evidence showing that get up of two trade marks/brands is similar and there is every likelihood of deception by an unwary purchaser. A plaintiff has to lead evidence in this regard and in the absence of such evidence, suit is not liable to be decreed. The contention of learned counsel for the respondent is not convincing. Similarly the observation of the learned Court, is that the plaintiff's failure to produce witness deposing that he fell victim to misunderstanding because of similarity of the trade marks is not well founded. The plaintiff was non-suited on this sole reason/plea, erroneously. Section 21 of the Trade Marks Act, 1940 is relevant which reads as under:
"21(1) Subject to the provisions of Sections 22, 23 and 26, the registration of a person in the register as proprietor of a trade mark in respect of any goods shall give to that person the exclusive right to the use of the trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either--
(a) as being used as a trade mark; or
(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such person as aforesaid is connected in the course of trade."
Perusal of the above provision of law reflects that the legislature in it's own wisdom has used the terms "likely to deceive" and "cause confusion". The term "likely to deceive" is wide enough to negate the stance of the respondent that absolute proof is needed to make out a case of infringement of trade mark. A plaintiff can establish the case of infringement of trade mark, by proving that impugned trade mark has caused confusion or it so nearly resemble with registered trade mark that there is likelihood of it's deception, without calling the witness in the witness-box, who was so deceived.
Necessity of leading evidence to prove the infringement of trade mark came up for consideration before the superior Courts and the issue was examined in the following cases, as under:--
(i) The Privy Council in the case of "Lever vs. Goodwin" (1887) 36 Ch. D. 1) observed that in the matter where there is no evidence that no one has in fact being deceived is immaterial. It is not necessary that there should be evidence that no one in fact had been deceived. It is enough if the plaintiff satisfies the Court that the defendant's good marked in the manner so as to lead the purchaser to believe that there being the goods of the plaintiff.
(ii) In the case of "M/s. Burney's Industrial and Commercial Company Limited vs. Rehman" (PLD 1983 Karachi 357), Hon'ble Sindh High Court observed that evidence of an expert witness or an intelligent customer or even a customer of average intelligence who takes ordinary care while buying goods in the market, would not be relevant as the test is that of an unwary purchaser and it is only the evidence of an unwary purchaser which would be relevant. Learned Court went further and observed that some witnesses for the plaintiff, in a trade mark infringement action, may state that they were deceived by the infringing mark whereas other witnesses giving evidence for the defendant may depose to the contrary. It may, therefore, be observed that invariably the Court, after taking into consideration the two marks, the registered and the infringing, decide whether the unwary purchaser is or is not likely to be deceived.
Survey of above case law and the provisions of Section 21 of the Act, 1940 (now repealed) brings me to conclude that infringement of trade mark cannot be proved through bringing the buyers in the witness box. Each side can lead the evidence of it's own choice and pass through the test of cross-examination. The Court can examine the material relevant evidence and two marks and decide that the unwary purchaser is or is not likely to be deceived.
Learned Court has non-suited the plaintiff and dismissed the suit on the solitary ground that no witness was produced in evidence to prove that at the time of purchase he (the witness) was deceived. Learned Court has not only committed material irregularity while reaching this conclusion but has neglected to follow the law settled through various judgments of the superior Courts. The impugned judgment and decree is based on wrong assumption of law and as such it is not sustainable.
Now, I will divert to the instant controversy. On mere examination of both the trademarks, it is evident that colour scheming, border, design and get up, is similar and closely resembles. Normally, in a picture sky is portrayed in blue while soil/ground is shown as green. In the registered trade mark, the background is yellow and ground is red with grey strips. The respondent has dishonestly followed the same parton and used the same colour scheme, opting to make his lable identical and similar to that one of the appellant. No doubt that both the labels are worded differently. The label of the appellant comprises of the word "Improved" while the respondent's label carries the word "Two Camels". The address mentioned in the former label is National Tool Industry Chowk Kotli Behramji Sialkot No. 3, while Azhar Enterprises Umar Road, Rawalpindi is the address mentioned in the latter label. Lower portion of both the labels is similarly worded. Both the labels comprise three parts and their colour scheming and size creates the element of deception. No matter both the labels are examined side by side, or one in the absence of other. The deception becomes more conspicuous when the label is affixed at the handle of the shovel, which is round in shape. If infringed label is fixed at the top of the handle one of the camels becomes invisible and gives impression of one camel instead of two camels. An unwary purchaser in the instant case is whether a farmer or a labourer or an illiterate person, as the tool is meant for this class of users. Such class of purchasers cannot distinguish the label by the English words used therein. They normally purchase the product by device or get up. This aspect cannot be ignored.
The claim of the appellant for damages is permissible only when the damages claimed are asserted the suit under each head separately and proved through cogent evidence. The appellant has failed to prove damages and his claim has rightly been declined by learned trial Court. Thus, the appeal to this extent is dismissed.
For the foregoing this appeal is partially allowed, the judgment and decree of learned trial Court qua dismissal of the claim of the appellant for infringement of trade mark is set aside, the suit of the plaintiff is decreed for permanent injunction, restraining the respondent from infringing the appellant's registered trade mark. Parties are left to bear their own costs.
(J.R.) Appeal allowed.
PLJ 2009 Lahore 574
[Rawalpindi Bench Rawlapindi]
Present: Mazhar Hussain Minhas, J.
AFTAB AHMAD--Petitioner
versus
JUDGE FAMILY COURT, TAXILA, DISTRICT RAWALPINDI and 3 others--Respondents
W.P. No. 2265 of 2007, heard on 2.2.2009.
Muhammad Law--
----Conversion of Islam--Effect--Under S. 20(4) of the Principles of Muhammdan Law, by D.F. Mulla in case of conversion of Islam by one of the non-muslim spouses, he should offer Islam to the other spouse--In case of refusal by the other one, the marriage can be dissolved and where Islam is not the law of Land, the marriage is automatically dissolved after the lapse of 3 months following the adoption of Islam by one of them. [P. 577] A
(VIII of 1961)—
----S. 5(1) & (4)--Registration of marriage--Effect of non-registration--Held: No doubt, a marriage solemnized under Muslim Law requires its registration under S. 5(1) of the Ordinance, 1961 but the nikah does not become invalid due to its non-registration--If a person does not report the marriage to the Nikah Register, he may be held liable under Clause (4) of S. 5. [P. 579] B
PLD 1989 Lah. 200, PLD 1989 SC 362 & PLD 1988 SC 8, ref.
Mr. Razzaq A. Mirza, Advocate for Petitioner.
Mr. Muhammad Fazil Siddiqui, Advocate for Respondents.
Date of hearing: 2.2.2009.
Judgment
The petitioner has assailed the judgment and decree dated 18.4.2007 passed by learned Judge Family Court, Taxila, District Rawalpindi, whereby suit for recovery of maintenance allowance filed by Respondents No. 2 to 4, has been decreed against him and minor Respondents No. 3 and 4 have been awarded maintenance at the rate of Rs. 500/- per month each from the date of institution of the suit with increment of 10% per annum.
Precisely the facts of this case are that Mst. Taj Bibi Respondent No. 2 embraced Islam and contracted marriage with petitioner in October, 1997 against dower amount of Rs. 50,000/- which was paid in the form of 3« tola gold ornament. Petitioner was already married but his wife alongwith children was residing in District Abbottabad on account of some matrimonial differences and had filed cases against him over there. Respondent No. 2, who was employed in Federal Government School, Wah Cantt., as a maid, was kept by him in a rented house at Nawababad, Wah Cantt. During their cohabitation Respondents No. 3 and 4 namely Khuram Shahzad and Kaniat Shehzadi were born who are in the custody of their mother. Meanwhile Respondent No. 2 was transferred to Karachi, but after some time she was posted back at Wah Cantt., by the efforts of petitioner. During her absence from Wah Cantt., the petitioner shifted her dowry articles from the rented house to his own house. In the meantime he effected compromise with his first wife and brought her back to his house. On her transfer to Wah Cantt. in September, 2001, Respondent No. 1 demanded back her dowry articles but the petitioner refused to return the same and ousted her alongwith the minors from his house. Since then Respondents No. 2 to 4 were not paid any maintenance by the petitioner, which necessitated the institution of suit.
Petitioner contested the suit through written statement whereby he denied his marriage with Respondent No. 2 and also disclaimed the paternity of Respondents No. 3 and 4. In view of divergent pleadings of the parties, following issues were settled by the learned Judge Family Court:--
Whether Plaintiff No. 1 Mst. Taj Bibi is legally wedded wife of the defendant? OPP
Whether the minors Plaintiffs No. 2 and 3 are not descendants/son and daughter of the defendant Aftab Ahmad, if so, its effect? OPD
Whether the plaintiffs are entitled to get maintenance allowance from the defendant, if so, for which period and with what rate? OPP
Whether the suit of the plaintiff is baseless and frivolous one, therefore, the same is label to be dismissed? OPD
Whether the plaintiff has no cause of action against the defendant? OPD
Relief.
After trial learned Judge Family Court held that petitioner and Respondent No. 2 were legally-wedded spouses and Respondents No. 3 and 4 being his legitimate children were entitled to get maintenance from him at the rate of Rs. 500/- per month each from the date of institution of the suit. Hence, present Constitutional petition has been filed.
(i) To affirm the factum of marriage and birth of Khurram Shahzad and Kaniat Shehzadi (Respondents No. 3 and 4) out of the wedlock the determination should be carried through DNA test;
(ii) In case, it is proved through DNA test that the petitioner is biological father of Respondents No. 3 and 4, he will concede to the judgment and decree of learned trial Court and will have no objection as to its execution.
In view of the above consensus, petitioner and Respondents No. 3 and 4 were directed to appear before CAMB (Centre for Applied Molecular Biology), Government of Pakistan, Ministry of Science and Technology, Islamabad, for DNA test. Respondents No. 3 and 4 in compliance with direction of this Court attended the centre for DNA test, but the petitioner despite several opportunities did not appear. Learned counsel for the petitioner has submitted that even today he has tried to contact him on his mobile phone but he did not attend his call.
It is evident from the conduct of the petitioner that he is deliberately avoiding the DNA test, therefore, the writ petition is being disposed of one merits.
Learned counsel for the petitioner contends that Respondent No. 2 is Christian by faith and she is married to one Lawrence Masih resident of Chak No. 12. Gurmula, Tehsil and District Nankana and without obtaining divorce from her husband she was not competent to contract marriage with any other person. He conversion to Islam did not ispo facto dissolve her earlier marriage. According to learned counsel, Respondents No. 3 and 4 are offsprings of said Lawrence Masih who has acknowledged their paternity through an affidavit annexed with the writ petition. Learned counsel submits that petitioner has categorically denied his marriage with Respondent No. 2, therefore, she should seek a declaration from a competent Court that she is legally-wedded wife of the petitioner. It has been next contended by learned counsel that she has failed to prove the alleged nikah with the petitioner through documentary evidence, therefore, Respondents No. 3 and 4 whose paternity has not been acknowledged by the petitioner, are not entitled to receive any maintenance.
Conversely, learned counsel for Respondents No. 2 to 4 has vehemently controverted the above contentions and has supported the impugned judgment and decree.
I have given anxious though to the submissions made by learned counsel for the parties and have gone through the record carefully.
The foremost question requiring determination in this case is whether by conversion of her faith, Respondent No. 2 was automatically relieved of the marital bond with her earlier husband Lawrence Masih or not. In this respect, guidance may be sought from the Principles of Mahomedan Law by D.F. Mulla, Section 20(4) of which provide that if one of the non-Muslim spouses in a country subject to Muslim
Law embraces Islam, he or she should offer Islam to the other spouse, and in the latter refuses, the marriage can be dissolved, and in a country where law of Islam is not the law of land, the marriage is automatically dissolved after the lapse of a period of three months after adoption of Islam by one of the spouses. Respondent No. 2 while appearing as P.W. 1 has stated that three days prior to her marriage, she embraced Islam. A document to this effect was also written which was attested by the petitioner as a witness and original document was in his possession. Photocopy of that document Mark A' was tendered by
Respondent No. 2. Photocopy of MarkA' (affidavit of Respondent No. 2) is available on this file in which it is recorded that she embraced Islam on 22.6.1997 before Maulvi Habib in mosque of 3-G, Wah Cantt., and it bears signatures of petitioner as marginal witness. Her statement has not been challenged in cross-examination, so it is deemed to have been admitted. The petitioner in cross-examination denied the execution of above document in his presence, but he did not adduce any evidence to rebut it. However, he has appended affidavit of Muhammad Siddique Rizvi son of Aziz-ur-Rehman Chishti, Khateeb Jamia Masjid 3-G, Wah Cantt. who has claimed that Maulvi
Habib-ur-Rehman Chishti was his brother who died on 17.3.1989 and any Christian woman did not embrace Islam in his presence as per record of the mosque. Since the deponent of this affidavit has neither appeared before the learned trial
Court nor before this Court to affirm its contents, therefore, it cannot be taken into consideration. It is proved from the evidence on record that after repudiating Christianity, Respondent No. 2 embraced Islam. Although there is nothing on record to show that she invited her husband Lawrence Masih to accept
Islam, but it is established that it was in his knowledge that she had changed her faith and was living with a stranger i.e. petitioner. Despite that he did not challenge their co-habitation in any forum. Therefore, presumption would be in favour of Respondent No. 2 that she offered him Islam but he refused to accept the same. Hence, his marriage with Respondent No. 2 stood dissolved. In this respect reference may be made to "Sardar Masih vs. Haider Masih and others" (PLD 1988 FSC 78):
In "Mst. Zarina and another vs. The State" (PLD 1988 FSC 105), also it has been held by Hon'ble Federal Shariat Court that "by conversion to Islam, a non-Muslim lady's earlier marriage with a non-Muslim Man, is dissolved and on account of her subsequent marriage with a Muslim, she is not guilty of any offence."
In "Abul Majid Khan and another vs. Mst. Anwar Begum" (PLD 1989 SC 362) the Hon'ble Supreme Court has laid down that the presumption regarding Muslim marriage, in absence of direct proof can be raised and acted upon, in the following instances,--
(a) prolonged and continuous cohabitation as husband and wife;
(b) the fact of acknowledgment by the man, of the paternity of the children born to the woman, provided all the conditions of valid acknowledgement are fulfilled; or
(c) the fact of the acknowledgement by the man, of the woman, as his wife.
In "Bashir and others vs. Ilam Din and others" (PLD 1988 Supreme Court 8) also it has been held by the August Apex Court that Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to show that a man and woman have lived together as man and wife for a long time.
As discussed above, there is plenty of evidence on the file to show that petitioner and Respondent No. 2 kept on residing together and Respondents No. 3 and 4 were also born as result of their cohabitation. Therefore, in view of the above judgments of the Honourable Supreme Court of Pakistan, status of petitioner and Respondent No. 2 as husband and wife is provide beyond any reasonable doubt. It would not be out of place to mention that despite the consistent claim of Respondent No. 2 that she is legally wedded wife of the petitioner, the latter has not filed any suit for jactitation of marriage to disprove her assertion.
To establish the paternity of the minors, Respondent No. 2 has offered to get their DNA test of minors conducted, but the petitioner despite undertaking before this Court, has deliberately avoided to appear before the concerned authorities for DNA test without any lawful excuse. This fact alone is sufficient to prove his paternity of the minors leaving aside the other evidence available on record. An affidavit of Lawrence Masih, previous husband of Respondent No. 2 has been annexed with the file in which he has acknowledgment the paternity of both the minors, but this document is not worthy any consideration because said Lawrence Masih has not been examined before the learned trial Court to substantiate his version. It is crystal clear that he has tendered his affidavit out of grudge and malice against Respondent No. 2 who has severed her matrimonial relations with him by embracing Islam. It has been held by the Honourbale Apex Court in "Bashir and others vs. Ilam Din and others" (PLD 1988 SC 8), that legitimacy of a child may be presumed where there has been continuous cohabitation of the alleged parents, acknowledgment of the child by the father, treatment by the father of the mother and child, and repute and notoriety amongst members of the family, the community, all respectable members of the locality.
Before parting with the judgment, it may be observed that the conduct of the petitioner in this case throughout remained highly contumacious rather shameful and he disowned the paternity of his legitimate offsprings just to avoid payment of maintenance which is his legal as well as moral obligation. He maliciously dragged them into litigation and humiliated them in the society. Therefore, it is deemed appropriate to impose special cost against him. Hence, the writ petition is dismissed with special cost of Rs. 25000/- which shall be paid to both the minor respondents in addition to the maintenance allowance awarded by the learned Family Court.
(J.R.) Order accordingly.
PLJ 2009 Lahore 581
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
NOOR MUHAMMAD--Petitioner
versus
DISTRICT REGISTRATION AUTHORITY and others--Respondents
C.R. No. 199 of 2009, heard on 14.4.2009.
Civil Servants (Appointment Promotion & Transfer) Rules, 1973—
----S. 12-A--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Alteration in the date of birth--Challeneged the concurrent judgments and decree--Suit for declaration to effect that in view of report of Radiologist, the date of birth may be declared as 1952 instead of 1943, which was dismissed by Courts below--Assailed--Petitioner's date of birth as year 1943 at the time of joining his service--Now he was aged about 57 years and would be retired within next three years--Validity--Petitioner kept mum for about three decades and when he was close to the age of superannuation he filed a suit, which by itself smells foul play--Held: Date of birth once recorded at the time of joining government service has to be treated as are final, otherwise there can be no end to litigation--Petition was dismissed. [P. 583] A
2007 SCMR 66 & 2004 SCMR 121, ref.
Ch. Muhammad Rafique Arain, Advocate for Petitioner.
Mian Abbas Ahmad, Additional Advocate General for Respondents.
Date of hearing: 14.4.2009.
Judgment
Through this revision petition, the petitioner challenges concurrent judgments and decrees of learned Civil Judge, Vehari dated 20.9.2008 and of the learned District Judge dated 10.10.2008.
Briefly stated facts as those emerge out of this petition are that petitioner filed a suit for declaration to the effect that in view of report of Radiologist his date of birth may be declared as 13.3.1952 instead of year 1943, which was dismissed vide judgment and decree dated 20.09.2008 where against he preferred an appeal which too was dismissed vide judgment and decree dated 10.2.2009.
It is inter alia contended that before the learned Civil Judge, the respondent in their written statement submitted that they have no objection if the relief as prayed for is allowed and despite the fact that conceding statement was made by respondent District Registration Authority, the suit has been dismissed. Places reliance upon 2007 SCMR 66 "Qamar-ud-Din vs. Pakistan through Secretary Establishment and another' and 2004 SCMR 121.
Conversely, learned Additional Advocate General vehemently opposes this submission and submits that the age once recorded in the service record of a Government servant has to be treated final and no change is permissible therein subsequently under the rules. Refers to Rule 12-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
Arguments heard. Record perused.
The petitioner admittedly is a civil servant. He himself got recorded in his service record his date of birth as year 1943 at the time of joining her service. Now he is aged about 57 years and would be retiring on account of superannuation within next three years. Law on the subject is very clear. Section 12-A of the aforesaid rule Civil Servants (Appointment, Promotion & Transfer) Rules 1973 is reproduced hereunder:
"12-A. Alteration in the date of birth. The date of birth once recorded at the time of joining Government service shall be final and thereafter no alteration in the date of birth of civil servant shall be permissible."
The case law relied upon by the learned counsel for the petitioner is also of not much help to him. In 2007 SCMR 66 "Qamar-ud-Din vs. Pakistan through Secretary Establishment and another". Hon'ble Supreme Court while dismissing the petition with similar prayer observed as follows:
"We may observe that lately a tendency has developed whereby unwarranted claims, attempting to show error in date of Birth are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously such practice must be discouraged and effectively curbed."
The second judgment relied upon by the learned counsel for the petitioner (2004 SCMR 121) pertains to Juvenile Justice System Ordinance. On the strength of this judgment, learned counsel has tried to canvass that the opinion of the medical board was accepted as true by this Court regarding age of the accused. A young boy of 20 years of age and that is separate trial was not allowed to be conducted under the Juvenile Justice System Ordinance, 2000.
The law on the subject is very clear. It has in categorical terms been provided in the relevant rules that date of birth once recorded at the time of joining Government service has to be treated as are final.
I also find that the petitioner kept mum for about three decades and when he was close to the age of superannuation he filed a suit during the month of March, 2008 which by itself smells foul play. Both the judgments and decrees impugned are concurrent in nature, besides well reasoned and perfectly in accordance with law on the subject. I, am therefore of the considered view that this move of the petitioner is tainted with mala fide and is for ulterior motives. The age once having been recorded at the time of joining Government service has to be treated as final, otherwise there can be no end to litigation. I, therefore, find no merits in this petition which is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 584
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
IFTIKHAR AHMAD and others--Petitioners
versus
AKHTAR ALI S.H.O. and others--Respondents
W.P. No. 75 of 2009, heard on 20.2.2009.
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 173 & 170--Constitution of Pakistan, 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 294 & 109--Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) Ordinance, 2000--Punjab Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) Act, 2003, Scope--Punjab Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) amended Act, 2006, Scope--Marriage functions--Arranging or watching live dance inside the house--Non-cognizable offence--Validity--Arranging or watching live dance inside the house does not fall within the ambit of any of the provisions of the laws--Marriage functions would show that decoration of street, road or public park or any place other than a house where marriage ceremony is being held, with lights or illumination; firing by fire-arm or exploding crackers or other explosive devices, displaying fire works, displaying dowery to the public eye and serving meal, to the guests except one dish with hot and cold soft drinks have been prohibited--All the offences under the laws are non-cognizable--Arranging or watching dance in a marriage ceremony does not fall within the purview of any of the penal provisions of law regulating marriage functions--SHO illegally apprehended 25 accused persons.
[Pp. 587 & 588] A & B
Pakistan Penal Code, 1860 (XLV of 1860)—
----S. 294--Constitution of Pakistan, 1973, Art. 199--Applicability--Marriage function--Vague and general allegation--Obscene songs or obscene acts--Arranging or watching live dance inside the house--According to S. 294, whoever does any obscene act or signs or utters any obscene song in or near any public place is liable for the offence--SHO made a vague and general allegation that the dancing girls were singing obsence songs and doing obscene acts literal meanings of the word `obscene' is something offensive to modesty or decency--Question of--Whether a certain song is obscene or not, the song itself has to be looked into--Determination--Unless and until actual words are used before the Court it cannot be said that the song was obsence or not--Accused persons could not be held liable under penal provision of law for live dances inside the house.
[Pp. 888 & 589] C, D & E
Constitution of Pakistan, 1973—
----Art. 14--Fundamental right--Constitutional jurisdiction--Conduct of SHO--Dignity of man and privacy of home are fundamental and inviolable right of citizen u/S. 14 of Constitution--When a right is safeguarded by Constitutional guarantee, it is called `Fundamental Right' because by doing so it is placed beyond the power of all organs of the state, to act in violation of it--Scuh a right cannot be taken away or suspended or abridged except in the cases expressly provided by Constitution--High Court in exercise constitutional jurisdiction has always jealously guarded fundamental rights of the people and, therefore, an attempt on the part of police receiving remuneration from government exchequer for protection of life, liberty, property and honour of the citizens, to defame or disgrace the accused persons cannot be and should not be lightly ignored on any ground--SHO accompanied by a heavy contingent of police force intruded into the privacy of petitioner, injured his dignity and that of his guests and thus disturbed the peace and tranquility of his domestic life--Such conduct which must be deprecated. [P. 589] F & G
Right of Privacy--
----Islamic Law attaches great importance to right of privacy--The Holy Quran and Sunnah has prohibited the act of intrusion into any one's house to find out commission of any offence, even the offence of zina--In Sura "Al-Nur" Versus 27 and 28 of the Holy Quran, privacy of home is recognized as inviolable right of the people. [P. 589] H
Pakistan Penal Code, 1860 (XLV of 1860)—
----Ss. 96 & 294--Constitution of Pakistan, 1973, Art. 199--Constitutional Jurisdiction--Duty of Court--Scope of--Question why a search warrant had not been obtained by S.H.O.--Performing of watching live dance in marriage ceremony inside a walled house--High Court while exercising constitutional jurisdiction or inherent powers always judge acts and omissions of government functionaries touching fundamental rights critically in order to protect the people from harassment and blackmailing and also to keep the officials within their allotted sphere. [P. 590] I
Administration of Justice--
----Duty of--Under the law of the land, which is obviously subject to the injunction of Islam, the persons in authority are required to keep an eye over the subject and watch them like parents watch their children--Mutual trust between the person in authority and the subject particularly the less important section of society, is an important pillar of the state--In order to secure trust of the commoners, the government functionaries must be friendly and kind towards them--It is the mandate of Quranic Injunctions that weaknesses of the people should not be exposed or made public--Police violated and disregarded all legal and moral norms of administration of justice. [P. 591] K
Pakistan Penal Code, 1860 (V of 1860)—
----S. 294--Constitution of pakistan, 1973, Art. 199--Quashment of FIR--Live dance--Offence of--Live dances are being telecast on government run T.V. and private T.V. channels--No one can deny that with the permission of the govt. live dances by female artists are being performed and watched in the stage dramas--There is no restriction in shooting film songs at public places--Now-a-days sequential and situational songs are integral part of script of the drama--If shooting of dances and songs at public places in a film and performing such acts in stage dramas is allowed, then why the petitioners and their 20 co-accused were arrested by the SHO while watching live dance in a marriage ceremony inside their walled house--SHO was fully aware that they were not liable u/S. 294 PPC--Alleged obscene act had not been done at any public place--Registration of case, apprehension of accused, seizure of camera, and preparation of challan by the police and declared as illegal, void, without lawful authority and thus amenable to Constitutional jurisdiction and inherent power of High Court--FIR quashed. [Pp. 591 & 592] L, M & N
Sh. Ahsan-ud-Din, Advocate for Petitioners.
Syed Hasnain Kazami, A.A.G. with for Respondents.
Date of hearing: 20.2.2009.
Judgment
Akhtar Ali, S.H.O. Police Station Hassan Abdal, Distt. Attock got registered case F.I.R. No. 267 dated 19.12.2008 under Section 294 of the Pakistan Penal Code, 1860 read with Section 109 of the same code, with Police Station City Hassan Abdal, with an allegation, in brief, that on 18.12.2008 at 11.15 p.m. he alongwith police officials was present in Ghausia Chowk, Hassan Abdal in connection with normal patrol duty when he received spy information that dancing girls had been performing live dance and doing obscene acts to the annoyance of others, in a marriage ceremony being celebrated inside the house of Iftikhar Ahmad, petitioner-accused located in Mohallah Chaudhrian, Hassan Abdal City. The raiding party consisting of 30 police officials (one Inspector, one Sub-Inspector, two A.S.Is. and 26 Constables including three lady Constables), headed by the S.H.O. raided the house of Iftikhar Ahmad, petitioner-accused and observed that two dancing girls identified as Sonia and Neelam were singing obscene songs and doing obscene acts before 23 participants of the ceremony including the petitioners herein. The S.H.O. arrested the dancing girls and 23 male accused persons after drawing a complaint with an observation that they all had violated provisions of Marriage Functions Ordinance. The above complaint by the S.H.O. was received by Abdul Rasheed, Sub-Inspector, Police who drew up the F.I.R. in-question under Section 294 read with S. 109 P.P.C. against 25 accused persons. Investigation of the case was made over to Sajjad Ahmad, Sub-Inspector, who prepared rough site-plan, got detained 25 accused persons in judicial lock up and then placed the file before Akhtar Ali, S.H.O. for preparation of final report under Section 173 Cr.P.C. The S.H.O. who had conducted the raid, arrested the accused persons and seized the video camera with which the live dances were being filmed, prepared the final report under Section 173 read with Section 170 of the Code of Criminal Procedure, 1898. Before submission of challan in Court, the five petitioners/accused persons filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561 of the Cr.P.C. for quashing of the F.I.R.
In the opinion of the S.H.O. the accused persons had violated the provisions of Marriage Functions Ordinance. I have minutely gone through the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000; Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 and the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Amended Act, 2006 on the subject and would say with certainty and without fear of contradiction that arranging or watching live dance inside the house does not fall within the ambit of any of the provisions of the above said laws. A combined examination of the laws governing the subject of marriage functions would show that decoration of street, road, or public park or any place other than a house where marriage ceremony is being held, with lights or illumination; firing by fire-arm or exploding crackers or other explosive devices, displaying fire works, displaying dowry to the public eye and serving meals to the guests except one dish with hot and cold soft drinks have been prohibited. All the offences under the above said laws are non-cognizable. Only an officer or agency notified by the Government can lodge a complaint in writing about contravention of penal provisions of the law before the Court. When confronted with the above said state of affairs, the learned Law Officer very frankly and rightly conceded that arranging or watching dance in a marriage ceremony does not fall within the purview of any of the penal provisions of the law regulating marriage functions. Hence, it is not difficult to conclude that the S.H.O. illegally apprehended 25 accused persons despite the fact that they did not violate the provisions of above said laws.
The Sub-Inspector, who drafted the F.I.R. on the above said complaint by the S.H.O. applied the provisions of Section 294 P.P.C., which is reproduced below for facility of reference.
Section 294 P.P.C:
"Obscene acts and songs. Whoever, to the annoyance of others, (a) does any obscene act in any public place, or
(b) sings, recites or utters any absence songs, balled or words, in or near any public place, Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine or within both."
A bare perusal of the above quoted provision of law would show that whoever does any obscene act or signs or utters any obscene song in or near any public place is liable for the offence. The case in hand does not qualify the above said legal test. Admittedly, the dancing girls had been performing live dances in a marriage ceremony inside the house of Iftikhar Ahmad, petitioner accused. It is evident from the F.I.R. and the rough site-plan prepared by the investigating officer that the police party raided walled house of the accused at night. With no stretch of imagination, the house of Iftikhar Ahmad, accused can be termed or treated as a public place. Further more, the S.H.O. made a vague and general allegation that the dancing girls were signing obscene songs and doing obscene acts. Literal meanings of the word `obscene' is something offensive to modesty or decency. In order to determine as to whether a certain song is obscene or not, the song itself has to be looked into. Unless and until actual words used are before the Court it cannot be said that the song was obscene or not. The F.I.R. statements of the witnesses and the final report under Section 173 Cr.P.C. do not disclose as to what obscene act had been done by the dancing girls or as to what a obscene song had been sung by them. Mere self assertion of the S.H.O., that the dancing girls were singing obscene songs or doing obscene acts could not be made the basis of prosecution of 25 accused persons for the offence under Section 294 P.P.C. Needless to add that self-assertion by the complainant S.H.O. and a few Members of the raiding party is not the substitute of evidence. At the cost of repetition, it is note worthy that dong obscene act or singing obscene song at a public place is a condition precedent for prosecuting the wrong doer under Section 294 P.P.C. which is missing in this case. For the sake of arguments, if it is admitted for a moment that the dancing girls were signing obscene songs in a marriage ceremony inside the house of Iftikhar Ahmad, accused even then they were not liable for the offence under Section 294 P.P.C. With the assistance of the learned law Officer. I have gone through the Pakistan Penal Code and could not find any penal provision of law, whereunder the accused persons could be held liable for watching live dances inside the house. No offence whatsoever is made out against the accused persons even if the story set up in the F.I.R. is believed in toto.
Dignity of man and privacy of home are fundamental and inviolable rights of the citizens, which have been guaranteed under Article 14 of the Constitution of Islamic
Republic of Pakistan. Here I must say that a Right' isan interest' recognized and protected by law. It can be created and enforced either by a
Constitutional provision or by an Act of the Parliament. When a right is safeguarded by Constitutional guarantee, it is called `Fundamental Right' because by doing so it is placed beyond the power of all organs of the State, to act in violation of it. Such a right cannot be taken away or suspended or abridged except in the cases expressly provided by the Constitution. This Court in exercise of Constitutional jurisdiction has always jealously guarded fundamental rights of the people and, therefore, an attempt on the part of police receiving remunerations from Government exchequer for protection of life, liberty, property and honour of the citizens, to defame or disgrace the accused persons cannot be and should not be lightly ignored on any ground. The S.H.O. accompanied by a heavy contingent of police force intruded into the privacy of Iftikhar Ahmad, petitioner-accused; injured his dignity and that of his guests and thus disturbed the peace and tranquility of his family/domestic life. This is a conduct, which must be deprecated.
There is yet another aspect of the matter. Apart from the Constitution of the country or law of the land, the country we live in being Islamic Republic, the Holy Qur'an and the Sunnah of the Holy Prophet (S.A.W.) are the supreme law and every organ of the State is duty bound to seek guidance from the Islamic principles as enshrined in the Holy Qur'an and the Sunnah. The Islamic Law also attaches great importance to right of privacy. The Holy Qur'an has prohibited the act of intrusion into any one's house to find out commission of any offence, even the offence of zina. In Sura "Al-Nur" Verses 27 and 28 of the Holy Qur'an privacy of home is recognized as inviolable right of the people. The translation of the above-noted Verses by Mr. Abdullah Yousaf Ali reads as under:
"27. O ye who believe. Enter not houses other than your own, until ye have asked permission and saluted those in them. That is best for you in order that ye may heed (what is seemly).
By conducting raid without search warrant, the Police disregarded the Quranic injunction as well as law of the land. The action by the S.H.O. is not only illegal and without lawful authority, but is also offensive to passion, kindness and mercy. Here I must say that perverted sense of authority drove the S.H.O. towards crude and brute misuse of official position. There is no answer to the question as to why a search warrant in terms of Section 96 Cr.P.C. had not been obtained by the S.H.O. if in his opinion performing or watching live dance in a marriage ceremony inside a walled house, was an offence. This Court while exercising Constitutional jurisdiction or inherent powers always judge acts and omissions of Government functionaries touching fundamental rights critically in order to protect the people from harassment and blackmailing and also to keep the officials within their allotted sphere. The learned Law Officer attempted to argue that the S.H.O. raided the house of the accused persons in good faith as the accused persons were engaged in immoral acts if not illegal. This argument depicts traditional police officer's perspective, in whose opinion apprehension of 25 accused persons from inside their house at night while watching live dance in a marriage ceremony served as deterrence. Here lies the main problem. I am pained to say that the police officers have been treating sins or immoral acts as cognizable offences. It is inapt and detrimental conduct of the criminal justice system as a whole, which calls for reform, otherwise the unholy tendency to exercise authority over and above the law in a self styled manner, may erode the system. This case might have featured on the S.H.O's and the D.P.O's performance sheet as a crime dealt with an iron hand successfully and worthy of a place in the category of good police work, but I am unable to approve of the police action being violative of law.
The accused persons are human beings like the 30 members of police party headed by the S.H.O. As human beings they suffer from weaknesses and disabilities. They might have committed sin or indulged in immoral activity while watching dance in a marriage ceremony inside their house intentionally or unintentionally or innocently or even foolishly without realizing the enormity of their deed of misdeed. The S.H.O. possessed with official authority was required to use his head, heart and hands with restraint and self control. While entering house of the accused at midnight the S.H.O. and the members of raiding party should not have forgotten that while being possessed with authority over the people, they were subject to the supreme sway and rule of Allah, the supreme Lord. What a pity, the S.H.O. took cognizance of the sin allegedly committed by the accused persons for which they were answerable before the supreme Lord on the day of judgment. The S.H.O. not only made himself liable for an action on judicial and administrative side, but also invited wrath of Allah Almighty. No one, howsoever high in this world and possessed with power or authority can never be free from the need of mercy and compassion from Allah Almighty. The S.H.O. chose to desert the golden principle of forgive and forget and hurriedly decided to punish the 25 accused persons for their alleged immoral act being proud of his official position and authority. Such a conduct rather misconduct by a person in authority is not going to be of much help in the administration of justice. The merciful Allah has fixed and determined rights and duties of each one in the Holy Qur'an as explained through the instructions of the Holy Prophet (S.A.W.) Under the law of the land, which is obviously subject to the Injunctions of Islam, the persons in authority are required to keep an eye over the subject and watch them like parents watch their children. Mutual trust between the person in authority and the subject, particularly the less important section of society is an important pillar of the State. In order to secure trust of the commoners, the Government functionaries must be friendly and kind towards them. It is the mandate of Quranic Injunctions that weaknesses of the people should not be exposed or made public. The police violated and disregarded all legal and moral norms of administration of justice and unnecessary dragged 25 accused persons including two young girls in litigation. Here, I must add that the police officers seized of the matter lowered prestige of their office by scandalizing the accused persons without realizing that scandal-mongers have never been treated with respect in the society.
This is a question of common knowledge that live dances are being telecast on Government run T.V. and private T.V. Channels. No one can deny that with the permission of the Government live dances by female artists are being performed and watched in the stage dramas. There is no restriction in shooting film songs at public places. Now a days sequential and situational songs are integral part of script of the drama. If shooting of dances and songs at public places in a film and performing such acts in stage dramas is allowed, then why the petitioners and their 20 co-accused were arrested by the S.H.O. while watching live dance in a marriage ceremony inside their walled house. While arresting 25 accused persons from inside the house, the SHO was fully aware that they were not liable under Section 294 PPC and that is why he drafted the complainant Marriage Functions Ordinance, without disclosing as to which provision of the law had been disregarded by the accused. It became a case of the SHO versus the Moharar, when the latter draw up FIR under Section 294 PPC despite the admitted position that the alleged obscene act and not been done at any public place. In the circumstances, registration of case, apprehension of accused, seizure of camera, etc. and preparation of challan by the Police are declared as illegal, void, without lawful authority and thus amenable to Constitutional Jurisdiction and inherent powers of this Court.
For what has been discussed above, I am of the opinion that the petitioners and their co-accused did not commit any offence under any law of the land. Allowing the police to investigate the case or to submit challan in the Court would amount to abuse of the process of law. I, therefore, allow this petition and quash the F.I.R. in-question with costs.
A copy of this judgment may be sent to the Inspector General of Police, Punjab, for its circulation amongst all the D.P.Os and the S.H.Os. in the Province for their future guidance.
(N.I.) FIR accused.
PLJ 2009 Lahore 592
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
Lt. Col. GHULAM IDREES--Petitioner
versus
JUDICIAL MAGISTRATE 1ST CLASS and 2 others--Respondents
W.P. No. 3107 of 2006, heard on 28.1.2009.
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 190(1) & 173--Pakistan Penal Code, (XLV of 1860)--Cognizance of offence--Conotation of--Under Section 190(1), Cr.P.C. the trial Court takes cognizance of the offence and not of the offender--Cognizance means application of judicial mind by the trial Court with respect to facts and material laid before it in the form of positive or negative final report u/S. 173, Cr.P.C.--Validity--Magistrate takes cognizance of an offence upon receiving a complaint on facts, which constitutes an offence, (b) upon a report in writing of such facts by any police officer, (c) upon an information received from any person other than the police officer or upon his knowledge or suspicion that such offence has been committed. [P. 595] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 78--Scope and applicability--Proof of signature--If a document is alleged to by signed by any person, the signature of the questioned document as in alleged to be in that person's hand writing must be proved to be in his hand writing--Mere filing or producing photo static copy of such document before the Court or the investigation agency is not enough to make the document a part of record as it will require authentication of the signature of its executant or proof of its genuineness. [P. 596] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 84--Scope--Comparison of signature, writing or seal with admitted or proved--Power of--Procedure--Powers and duties of Magistrate trial Court had ample powers to compare itself the disputed signature--At least, two such documents i.e. mutation and NIC of the petitioner were available on the file containing his admitted signatures for comparison with disputed signature--Procedure of comparison laid down by Art. 84 should have been resorted to by the trial Magistrate, he failed to discharge the duty cast on him by law. [P. 597] C
Pakistan Penal Code, 1860 (XLV of 1860)—
----Ss. 420, 468 & 471--Qanun-e-Shahadat, 1984, Art. 84--Constitution of Pakistan, 1973, Art. 199--Agreement to sell--Petitioner got entered and sanctioned the mutation--Allegation of forged and fabricated signature on the agreement and mutation--Constitutional jurisdiction of High Court--Comparison of signature--Validity--In exercise of Constitutional jurisdiction High Court is not supposed to examine and analyze the material on the file with the yardstick of trial Court--High Court compared the admitted signature--Someone unsuccessfully attempted to forge signatures of the petitioner on the mutation and the agreement--Complainant party won the favour of Patwari, who entered mutation against the entries of record of rights--Petition was prosecuted on the charge of forgery and cheating by those who forged his signatures the questioned documents--Constitutional petition accepted. [Pp. 597 & 598] D, E, F, G & H
Malik Waheed Anjum, Advocate for Petitioner.
Raja Imran Aziz, Advocate for Respondents.
Mr. Haider Mahmood Mirza, Advocate for Respondent No. 4.
Date of hearing: 28.1.2009.
Judgment
Lieutenant Colonel Ghulam Idrees, petitioner, was owner of agricultural land measuring 176 kanals 6 marlas bearing Khewat Nos. 2 to 3, 4/6, 8/10, 13/14 13/15, 14/16, 15/17, 22/24, 24/26 and 450/852 located in Revenue Estate of Kahna Bajjar, District Rawalpindi, who alienated the same in favour of his co-villagers; namely Abdul Basit and Muneeb Amjad sons of Amjad Mahmood by means of Mutation No. 870 dated 22.10.2004, genuineness of which is not in dispute. The petitioner got entered and sanctioned the above said mutation. On 6.01.2006 Khuram Jalil, respondent, got registered a case FIR No. 21 under Sections 420/468/471 PPC with Police Station Rawaat, District Rawalpindi, against the petitioner, with an allegation, in brief, that he on behalf of his mother-in-law Mst. Hakam Bibi executed an agreement to sell in his (complainant) favour with the claim that she was also an owner of agricultural land bearing Khewat Nos. 450/852 etc. of said revenue estate and received Rs. 40,00,000/- as earnest money. The complainant further alleged that Mutation No. 871 was also got entered by the petitioner in the name of his mother-in-law in favour of aforementioned Abdul Basit and Muneeb Ahmad and that latter on it revealed that Mst. Hakim Bibi was not owner of the disputed land and the petitioner through fraud and misrepresentation deprived Khuram Jaleel, respondent/complainant of above said amount. The complainant produced photo static copies of the mutation and the agreement in-question before the Investigating Officer. The petitioner/accused joined investigation and dismissed the allegation with the plea that as a matter of fact that so called vendees and the complainant forged and fabricated his signatures on the above said agreement and mutation.
(i) Ghulam Idrees, accused, is nominated in the FIR.
(ii) Ghulam Idrees, accused, did not co-operate for comparison of his admitted signatures with the disputed one on Iqrar Nama dated 19.10.2004.
(iii) Opinion of the Examiner of FIA, Islamabad was not final.
(iv) It would be determined by the trial Court as to whether or not Ghulam Idrees, petitioner, was present before the Revenue Officer at the relevant time in connection with Mutation No. 871.
The petitioner/accused has challenged legality of above said order of the Area Magistrate by invoking constitutional jurisdiction and inherent powers of this Court with the plea that there was no legal evidence on the file on the basis of which cognizance of the alleged offence could have been taken by the Magistrate.
On the other hand, learned counsel for complainant argued that opinion of Investigator favourable to the petitioner/accused was rightly ignored and disbelieved by the Trial Magistrate.
I have heard both the sides and perused the record very carefully. Before adverting to merits of the controversy, I would say that u/S. 190(1) Cr.P.C. the trial Magistrate takes cognizance of the offence and not of the offender. Cognizance means application of judicial mind by the trial Court with respect to facts and material laid before it in the form of positive or negative final report under Section 173 Cr.P.C. A bare perused of Section 190(1) of the Code of Criminal Procedure, 1898 would show that a Magistrate takes Cognizance of an offence; (a) upon receiving a complaint on facts, which constitutes an offence, (b) upon a report in writing of such facts made by any police officer; (c) upon an information received from any person other than the police officer or upon his knowledge or suspicion that such offence has been committed. It was finally settled by the Apex Court in case Falak Sher another vs. State (PLD 1967 SC 425) that an action of the trial Court taking cognizance of an offence on a negative report by the Investigating Officer, is covered by clause (b) of Section 190(1) of the Criminal Procedure Code, 1898. Now I propose to examine the material available on the file in order to ascertain as to whether or not the facts valid before the Magistrate through negative final report constituted any cognizable offence against the petitioner/accused. This is a case of version and counter version. The respondent/complainant made an allegation that Ghulam Idrees, petitioner, attested the Mutation No. 871 and the agreement to sell on behalf of his mother-in-law Mst. Hakam Bibi despite knowing that she was not an owner of the land in dispute. On the other hand, the petitioner put forward a specific and definite stance that he did not sign the above said two documents and as a matter of fact his signatures had been forged and fabricated. In other words the only question laid before the Investigator and the trial Magistrate was as to whether Ghulam Idrees, petitioner, had signed the disputed documents or his signatures had been forged thereon. The Investigator disbelieved the complainant's version after coming to the conclusion on the basis of collected material that Ghulam Idrees, petitioner, had not signed the disputed documents and that there was no similarity between the disputed and admitted signatures. The same controversy had been placed before the Area Magistrate in the shape of cancellation/negative report under Section 173 Cr.P.C. I have mentioned in the preceding lines that the Area Magistrate took cognizance of the offence on negative report under clause (b) to Section 190(1) Cr.P.C. This is a matter of record that the respondent/complainant failed to produce the original agreement to sell allegedly signed by the petitioner before the Investigator as well as before the trial Magistrate. He attempted to explain that the original agreement had been returned to the petitioner. This explanation or contention by the respondent/complainant is not worthy of credence on any ground. The mutation had been cancelled by the Revenue Officer as Mst. Hakam Bibi was not owner of the land in-question. There is no answer to the question as to why the respondent/complainant returned the original agreement to the petitioner when as per his own version the petitioner had failed to honour his commitment. Only a photo static copy of the disputed agreement to sell had been produced before the Investigator which had rightly been ignored and rejected by the Investigating Agency. Under the law, onus to prove that the questioned documents had been signed by Ghulam Idrees, petitioner, was on the respondent/complainant. Article 78 of Qanun-e-Shahadat Order, 1984 clearly lays down that if a document is alleged to be signed by any person, the signature of the questioned document as is alleged to be in that person's had writing must be proved to be in his hand writing. Mere filing or producing photo static copy of such document before the Court or the Investigating Agency is not enough to make the document a part of record as it will require authentication of the signature of its executant or proof of its genuineness. Unless the agreement in-question is proved in terms of Article 78 of the Order it cannot be read in evidence. This Rule is subject to the only exception that any such document produced by a party may be looked in to without its formal proof at the instance of rival party. In the case in hand the questioned agreement to sell had not been proved before the Investigator as well as before the Area Magistrate nor the rival party i.e. the petitioner made any request that the same might be looked into without its formal proof, therefore, it should have been excluded from consideration by the Area Magistrate.
In the case in hand the Military Intelligence got compared the disputed signatures on the above said photocopy of agreement with the admitted ones of the petitioner and report of the Examiner was adverse to the cause of the respondent/complainant. The Area Magistrate opted to ignore and discard the report of hand writing expert, but failed to have recourse to the procedure prescribed by Article 84 of the Qanun-e-Shahadat Order, which is reproduced below for ready reference:
"84. Comparison of signature, writing or seal with others admitted or proved, (1) in order to ascertain whether a signature, writing or seal is that of the person by whom it purpose to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
It is manifest from a bare perusal of the above said Article that the trial Court has ample powers to compare itself the disputed signatures. At least, two such documents i.e. Mutation No. 870 and National Identity Card of the petitioner were available on the file containing his admitted signatures for comparison with disputed signatures. In the circumstances, the procedure of comparison laid down by Article 84 ibid should have been resorted to by the learned trial Magistrate, but I am pained to say that he failed to discharge the duty cast on him by law.
I am not unmindful of the fact that in exercise of Constitutional Jurisdiction this Court is not supposed to examine and analyze the material on the file with the yardstick of trial Court. However, in the light of peculiar circumstances noted above a particularly inaction on the part of trial Magistrate has provided as basis to have recourse to the mode laid down by Article 84 ibid. I have myself compared the admitted signatures of the petitioner on the Mutation No. 870 and his National Identity Card (original seen and returned) with the disputed signatures on photo static copies of the agreement to sell and the Mutation No. 871 in the open Court in presence of both the sides. It is open to naked eye that some one unsuccessfully attempted to forge signatures of the petitioner on the mutation and the agreement. There is no similarity, whatsoever, between the disputed and admitted signatures as they are significantly different in form and design. The disputed signatures are badly slow drawn and the result of hesitation on the part of scribe. After having compared the disputed signatures with the admitted ones, I would say without any fear of contradiction that Lt. Col. Ghulam Idrees, petitioner, has been wronged.
Mst. Hakam Bibi, mother-in-law of the petitioner, was/is not an owner of the land mentioned in Mutation No. 871. Munir Ahmad, the then Revenue Patwari of Revenue Estate of Kahna Bajaar entered the said mutation. A serious question, which requires consideration, is as to how the Revenue Patwari entered the said mutation in the name of Mst. Hakam Bibi, when she was not an owner of an inch of land. Needless to add that a mutation of sale is entered by the Revenue Patwari on the basis of entry of ownership in "Jamabandi Zair-i-Kar". The Revenue Officer cancelled the mutation with an observation that Mst. Hakam Bibi was not owner of the land, but without taking any action against Munir Ahmad, Revenue Patwari who had entered the mutation against the revenue record. It appears that the complainant party won the favour of Munir Ahmad Patwari, who entered Mutation No. 871 against the entries of record of rights. In the light of above noted state of record I have no doubt in my mind that Lt. Col. Ghulam Idrees was prosecuted on the charge of forgery and cheating by those who forged his signatures on the questioned documents. He was forced to stand in the dock for an offence which he had not committed. The impugned order by the Magistrate being arbitrary, perverse, illegal, without lawful authority and against the record cannot be and should not be allowed to hold the field.
Pursuant to the above discussion this constitutional petition is accepted, impugned order of the learned Area Magistrate is set aside and the proceedings initiated against the petitioner are quashed being abuse of process of the Court.
(N.I.) Petition accepted.
PLJ 2009 Lahore 598
Present: S. Ali Hassan Rizvi, J.
Mst. FARZANA YOUNIS--Petitioner
versus
ADDL. DISTRICT JUDGE, FAISALABAD, and 2 others--Respondents
W.P. No. 18009 of 2008, decided on 24.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Suit for recovery of dowry articles, decreed--Value of dowry article--Price in alternative of dowry articles--Factum of wear and tear of common household articles--Appellate Court reduced the amount as decreed by trial Court--Challenge to--Validity--Factum of wear and tear of the common house hold articles was duly brought into consideration by trial Court an this was the reason why trial Court decreed the price in alternative of dowry articles as against the claim of plaintiff--Held: First Appellate Court did not give any sound reason for reducing the decretal amount--Appellate Court was bound to meet the reasons recorded by trial Court who had advantage of seeing demeanours of witnesses--Appeal allowed. [P. 600] A & B
PLD 1969 SC 617 & PLD 1981 SC 302, ref.
Mr. Riasat Ali, Advocate for Petitioner.
Hafiz Khalil Ahmad, Advocate for Respondent No. 3.
Date of hearing: 24.3.2009.
Order
Mst. Farzana Younis petitioner had filed joint claims for dissolution of marriage, recovery of maintenance allowance and recovery of dowry articles or in the alternative for an amount of Rs. 5,67,041/- as price of dowry articles.
"ISSUES"
Whether the plaintiff is entitled to get a decree for recovery of dowry articles as per list attached or in the alternative amount of Rs. 5,67,041/ as prayed for? OPP.
Relief."
Both the parties led their evidence for and against. Mst. Farzana Younis plaintiff herself appeared as PW. 1 and she examined in support of her claim. Amanant Ali as PW. 2. These witnesses were not cross-examined by the defendant/Respondent No. 3, although numerous opportunities were granted to him. His right of cross-examination was consequently closed. On behalf of the plaintiff documentary evidence like Ex.P. 1 to P. 9 was also produced.
On the other hand, the defendant/Respondent No. 3 himself/appeared as DW. 1 and examined Tahir as DW. 2.
The learned Judge, Family Court decided Issue No. 1 in favour of the petitioner/plaintiff and found that the price of the articles given in the plaint at Sr. Nos. 1 to 31 and 35 to 51 and Rs. 3,72,150/-. He decreed the suit accordingly.
In appeal, the learned Additional District Judge, Faislabad upheld the judgment and decree rendered by the learned Judge, Family Court but reduced the amount of dowry articles from Rs. 3,72, 150/- to Rs. 3,00,000/- vide judgment and decree dated 7.10.2008.
I have heard the learned counsel for the parties and gone through the record.
The learned trial Court while decreeing the suit to the extent of dowry articles relied on the list attached with the plaint and the articles mentioned at Sr. Nos. 1 to 31 and at Sr. Nos. 35 to 51. In the alternative he fixed the value of the dowry articles, as Rs. 3,72,150/- as against
Rs. 5,67,041/- claimed in the plaint. He kept in mind the factum of the wear and tear of the common household articles. The learned Appellate Court reduced the aforesaid amount of Rs. 3,72,150/ as decreed by the learned trial Court as alternative to Rs. 3,00,000/-.
(W.I.) Petition allowed.
PLJ 2009 Lahore 600
Present: Zafar Iqbal Chaudhry, J.
NATIONAL BANK OF PAKISTAN, MAIN BRANCH, LAHORE through its Manager--Appellant
versus
MUHAMMAD AKRAM KHAN and others--Respondents
R.S.A. No. 87 of 2007, heard on 21.11.2008.
Limitation Act, 1908 (IX of 1908)—
----S. 5--Appeal was dismissed being time barred--Suit for damages on account of illegal dismissal from the service--Suit was decreed--Pecuniary jurisdiction--Appellant instead of receiving back memorandum of appeal filed before High Court for re-admission of appeal which was dismissed--Appellant received back memorandum of appeal after more than three months--Question--After first order of High Court for return of appeal, there was no valid reason for appellant to have filed application for re-admission of appeal and having delayed in approaching the proper forum--Held: Appellant has been prosecuting the appeal before High Court without any probable cause and justified reasons--Time consumed in taking back the memorandum of appeal and then to re-file it before the Distt Judge was more than 28 months--No justification to condone the delay and no reason to disagree with the conclusions drawn by Distt. Judge in respect of conduct of the appellant who rightly dismissed the appeal being barred by time--RSA was dismissed. [P. 602] A
Sardar Mashkoor Ahmad, Advocate for Petitioner.
Ch. Muhammad Akbar Gill, Advocate for Respondents.
Date of hearing: 21.11.2008.
Judgment
Through this RSA, the appellant has assailed the order of the learned Additional District Judge, Lahore dated 25.09.2006, whereby an application under Section 5 of the Limitation Act filed by the appellant was dismissed having no merit and consequently their appeal was dismissed being time barred.
Briefly, the facts of the case are that Umar Khan, the predecessor of the respondents had filed a suit for damages on account of his illegal dismissal from the post of Chief Manager, National Bank of Pakistan in the year, 1958. The suit was contested by the appellant. The learned trial Court decreed the same, vide judgment and decree dated 29.6.1998 for a sum of Rs. 11,15,941. The appellant feeling aggrieved filed RFA No. 337/98 before this Court which was ordered to be returned for its presentation before the District Judge in view of the pecuniary jurisdiction, vide order dated 21.9.1999. The appellant instead of receiving back the memorandum of appeal filed a petition before this Court for re-admission of the appeal which was dismissed on 23.10.2001 and the earlier order was upheld. The appellant received back the memorandum of appeal after more than three months on 29.1.2002 and filed the same before the learned District Judge on 1.2.2002.
I have heard the learned counsel for the parties and perused the documents attached with this file.
The learned Additional District Judge in the impugned order has discussed in detail the steps taken by the appellant in prosecution of the appeal before this Court and receiving the memorandum of appeal back for presentation before the learned District Judge. The learned Additional District Judge has observed that the application for condonation of delay was filed after the presentation of appeal before the learned District Judge, i.e. the appeal was filed on 1.2.2002 whereas the application for condonation of delay under Section 5 of Limitation Act, 1908 was filed on 6.2.2002. The original application for condonation of delay was not signed by the appellant nor it was supported by the affidavit of the Attorney. However, an affidavit in support of appeal was submitted by one Ashraf Mahmood, Officer of National Bank of Pakistan and that there is nothing on record to show that the said officer had the valid authority to submit the same.
The learned Additional District Judge was of the view that no sufficient cause for condonation of delay in filing appeal was shown by the appellant, hence their application under Section 5 of the Limitation Act, 1908 was dismissed having no merit. The learned counsel for the appellant has reiterated the facts which were urged before the learned Additional District Judge. He has not been able to advance any tangible justification for having filed appeal before this Court rather than filing it before the learned District Judge in terms of evaluation of the suit. He has also not been able to advance any arguments in support of filing misc. application for re-admission of the appeal when the law in respect of forum of appeal was absolutely clear in this case. It is also observed that there is strength in the arguments of the counsel for the respondents that the appeal before this Court was filed when limitation for filing appeal before the learned District Judge had already expired and to cover their lapse the appellant chose to file appeal before incompetent forum.
The conduct of the appellant and stress in prosecution of the appeal before this Court has not been bonafide. After first order of this Court for return of the appeal dated 21.9.1999, there was no valid reason for the appellant to have filed application for re-admission of appeal and having delayed in approaching the proper forum. It is observed that the appellant has been prosecuting the appeal before this Court without any probable cause and justified reasons. The time consumed in taking back the memorandum of appeal and then to re-file it before the learned District Judge is more than 28 months. So there was no justification to condone the delay and I do not find any reason to disagree with the conclusions drawn by the learned District Judge in respect of the conduct of the appellant, who rightly dismissed the appeal being barred by time. Consequently, this RSA having no merit is dismissed. However, the parties are left to bear their own costs.
(R.A.) RSA dismissed.
PLJ 2009 Lahore 603
Present: Ali Akbar Qureshi, J.
NAZAN BIBI--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, JHANG and 2 others--Respondents
W.P. No. 15249 of 2008, heard on 28.11.2008.
Guardians and Wards Act, 1890 (VIII of 1890)—
----S. 12--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Production of minor--Interim custody--Legality of--Welfare of the minor girl to live with her mother due to only one reason alongwith other that minor girl was getting education and studying in class 8th--Minor son was working on a tea stall--Held: Minor girl was living in a better atmosphere and being carefully looked after and bringing up by petitioner--Conduct and behaviour with minor son was not entitled to ask for custody of the minor girl but any how father was entitled to visit the minor girl but any how father is entitled to visit the minor girl and also to pay maintenance allowance--Petition was allowed. [P. 607] D
Guardians and Wards Act, 1890 (VIII of 1890)--
----Scope of--All the provisions of Guardians and Words Act, revolves around the welfare of the minor and Courts while decides the application for custody/Hazanat of the minor besides only one thing i.e. the welfare of minor--Irrespective of the age of minor and poverty of guardian--Welfare of the minor can be adjudged from the record available on the file and particularly in which circumstances and surrounding the minor is living--Father, although a natural guardian but his right of Hazanat is also sub-ordinate to fundamental principle i.e. welfare of the minor. [P. 606] A
Guardians and Wards Act, 1890 (VIII of 1890)—
----S. 25--Constitution of Pakistan, 1973, Art. --Constitutional petition--Welfare of minor--Ingredients of--Age of minor girl was 13 years--Minor girl was studying in class 8th--Mother had no love and affection for the minor as relinquished her right of Hazanat--Minor was entitled to retain the custody of minor girl--Application for custody of minor girl was allowed and custody of minor girl was given to father--Held: Only the mother can understand the requirement of age of puberty and minor girl in the 13 years age can only tell or discuss the changes in the body because of natural process, with her mother--If ingredients of the welfare of minor is counted, the important and paramount consideration is to get education for a girl who subsequently had to play the role of a mother and it is proved that the minor girl can only continue her studies while living with mother and if the custody of minor girl is disturbed or removed from the mother, it would be amount to deprive the minor girl to get education or to continue her studies, which in any case is not advisable in any society, particularly in an Islamic Society--Further held: Minor girl while appearing in a Court of law has recorded her statement that the girl want to live with her mother and she also marked thumb impression on order sheet of Court. [P. 607] B
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Welfare of the minor--To decide the fate of minor girl--Agreement executed between the parties--Parental jurisdiction--Held: Minors and particularly the minor girl was not party but Courts below elected to decide the fate of the minor girl without keeping in view supreme consideration which is required to be considered while deciding the application under the Guardians & Wards Act, is the welfare of minor. [P. 607] C
Mr. Ali Husnain Mohsin, Advocate for Petitioner.
Malik Muhammad Azeem, Advocate for Respondent No. 3.
Date of hearing: 28.11.2008.
Judgment
This Constitutional petition is directed against the judgment and decree dated 20.9.2008 and 17.3.2008 passed by the learned Courts below whereby the application under Section 12 of the Guardians & Wards Act filed by the respondent for the custody of the minor girl was allowed and the custody of the minor girl was given to the respondent.
Shortly, the facts are that the respondent filed a petition under Section 25 of the Guardians & Wards Act on 22.10.2006 seeking the custody of Mst. Aisha Bibi (the minor daughter aged 11 years). It was stated by the respondent in the petition that the minor girl was living with the respondent but the petitioner on a false assertion made an application under Section 22-A, 22-B Cr.P.C. before the learned Addl. Sessions Judge, Jhang on 2.11.2006 and in result of the order passed by the learned District Judge on the said application, the custody was removed from the respondent and given to the petitioner. The respondent further stated in the application, that a minor son is living with the respondent and the petitioner has no love and affection for the minor as the petitioner earlier to this in result of a compromise relinquished her right of "Hazanat", therefore, the petitioner in any case, keeping in view the welfare of the minor is entitled to retain the custody of the minor girl.
The said application was vehemently contested by the petitioner. In the written reply, the petitioner leveled serious allegation on the character of the respondent. Also stated that because of the growing age of the minor girl, it is in the welfare of the minor that she should live with the petitioner as the petitioner being the real mother of the minor girl can easily understand the requirements of a growing girl. The petitioner stated that the agreement was executed but subsequently the respondent backed out the same.
The learned Guardian Court framed issues, out of the pleadings of the parties, recorded the evidence and finally accepted the petition whereby it was held that it is in the welfare of the minor that the custody of the minor should be given to the respondent. The petitioner being dissatisfied of the said judgment and decree, preferred an appeal but the same was too dismissed by the learned appellate Court.
Learned counsel for the petitioner contended that while deciding the petition under Section 25 of the Guardians & Wards Act, the paramount consideration, which should be in the mind of the Courts, the welfare of the minor. In this case, admittedly the age of the minor girl is about 13 years which is growing age and the requirements of the said age of a girl can only be understood by the real mother. It was contended that the petitioner till today has not contracted second marriage so she is more suitable for the custody of the minor and it is also in the welfare of the minor that the minor should not be removed from the custody of the petitioner. Lastly contended that the minor girl is studying in school in class-8th whereas the minor son who is in the "Hazanat" of the respondent is doing a job on a tea stall so it is sufficient to show that it is in the welfare of the minor that she should be brought up by the petitioner. The learned counsel also contended that both the learned Courts below have in fact relied upon an agreement, at one point of time was executed between the parties but has ignored the welfare of the minor, therefore, the judgment and decree is liable to be set at naught on this score alone. Learned counsel also contended that the respondent to avoid the payment of maintenance allowance has filed the petition under Section 25 of the Guardians & Wards Act. Reliance is placed on Muhammad Yunus Qamar v. Rubina and others (1994 MLD 1950), Zulfiqar etc. v. Mst. Kausar etc. (PLJ 1996 Lahore 1149), Mst. Nasreen Akhtar v. Javed Akhtar (2004 CLC 228), Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri (1994 P.Cr.L.J), Mst. Fazelat Begum v. Public in General and another (PLD 1994 Azad J&K 1) and Mst. Aslam Khatoon v. Muhammad Munir and others (2000 MLD 1216).
Conversely, the learned counsel for the respondent contended that the petitioner is not entitled for the custody of the minor simply on the ground that the petitioner herself relinquished her right of "Hazanat" and handed over the custody of the minor girl to the respondent, therefore, this is sufficient to show the love and affection of the petitioner with the minor. Next contended that the petitioner till today has not denied the agreement executed between the parties, thus both the learned Courts below rightly relied upon the agreement and finally concluded that the petitioner is not entitled to ask for the custody of the minor. Reliance is placed on Mst. Fauzia Begum v. Amin Saddruddin Jamat Gonji (2007 CLC 1403), Mst. Munira Bibi v. Additional District Judge, Sheikhupura and 2 others (2007 CLC 1612) and Shah Bano v. Station House Officer (S.H.O.) Police Station Tandlianwala and another (2007 P.Cr.L.J. 1928).
I have heard the learned counsel for the parties and perused the record.
From the record and the arguments advanced by both the side, it is not denied that the petitioner till today has not contacted the second marriage; the age of minor girl is 13 years; the minor girl is studying in class-8th; the minor son who is in the "Hazanat" of respondent, in minor age is working on a tea stall, meaning thereby not getting education. The learned Courts below have mainly relied upon the agreement executed between the parties while delivering the judgment.
The minor girl who appeared in a Family Court on 12.3.2008 recorded her statement which is reproduced:--
The minor girl who is age of 13 years, also marked her thumb impression on the order sheet maintained by the learned Judge. All the provisions of the Guardians & Wards Act revolves around the welfare of the minor and the Courts while decides the application for custody/Hazanat of the minor besides only one thing i.e. the welfare of the minor, irrespective of the age of the minor and poverty of guardian. The welfare of the minor can be adjudged from the record available on the file and particularly in which circumstances and surrounding the minor is living. The father, although a natural guardian but his right of Hazanat is also subordinate to the fundamental principle i.e. welfare of the minor, the sole criteria, which in any case should be prevailed.
In this case, the minor girl who is living with her mother, is studying in class 8th whereas the minor son is living with the respondent is not studying anywhere but doing a job in this tender age on a tea stall and the atmosphere of a small tea stall of a village can easily be adjudged without referring anything. Further, it is the requirement of the age of the minor girl who is presently 13 years of age, living with her mother, the petitioner and it is undeniable fact that only the mother can understand the requirement of the age of puberty and the minor girl in this age can only tell or discuss the changes in the body because of natural process, with her mother. To my mind, if the ingredients of the welfare of the minor is counted, the important and paramount consideration is to get education particularly for a girl who subsequently had to play the role of a mother and in this case it is proved that the minor girl can only continue her studies while living with the petitioner and if the custody of the minor girl is disturbed or removed from the petitioner, it would be amount to deprive the minor girl to get the education or to continue her studies, which in any case is not advisable in any society particularly in an Islamic society. Further more, the minor girl while appearing in a Court of law as referred above, has recorded her statement, that she want to live with the petitioner and she also marked thumb impression on the order sheet of the learned Court.
Both the learned Courts below have totally ignored this aspect of the case and has not exercised the parental jurisdiction conferred upon them under the provisions of Guardians & Wards Act, rather elected to decide the fete of the minor girl, relying upon an agreement executed between the parties. Admittedly, in the said agreement, the minors and particularly the minor girl was not party but the learned Courts below elected to decide the fate of the minor girl without keeping in view the supreme consideration which is required to be considered while deciding the application under the Guardians & Wards Act i.e. the welfare of the minor.
It is in the welfare of the minor to live with her mother due to only one reason along with other, that the minor girl is getting education and presently studying in class-8th which is also sufficient to establish that the minor girl is living in a better atmosphere and being carefully looked after and bringing up by the petitioner. The respondent because of his conduct and behaviour with the minor son is not entitled to ask for custody of the minor girl but anyhow the respondent is entitled to visit the minor girl and also to pay the maintenance allowance. For visitation, the respondent name file an application to the competent Court of law.
For the foregoing reasons while setting aside the orders/judgment and decree dated 20.9.2008 and 17.3.2008 passed by the learned Courts below, the application filed by the respondent is dismissed and it is held that the petitioner is more entitled than the respondent to have custody of the minor girl.
Resultantly, this petition is allowed and the custody of the minor shall not be disturbed.
(R.A.) Petition allowed.
PLJ 2009 Lahore 608
Present: Tariq Shamim, J.
Rao MANZAR ALI KHAN--Petitioner
versus
SECRETARY HOUSING & PHYSICAL PLANNING DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE
and 3 others--Respondents
W.P. No. 16265 of 2008, decided on 3.3.2009.
Constitution of Pakistan, 1973—
----Art. 199--Acquisition of land--Determination of amount of compensation--Land owner being dissatisfied with amount of compensation claimed that the possession of the two kanals for which he had not been paid be handed over to him--Entire land of the petitioner including the two kanals and structure thereon was acquired by the department in accordance with law and the prevailing market price was deposited by the department as otherwise the petitioner would not have accepted and received from the compensation pool--Petitioner after lapse of 19 years was seeking implementation of the order of the Chief Minister whereby it was desired that the constructed house of the applicant be exempted from ADS, as per policy--Department had clarified in so many words as to why the request of the petitioner could not be entertained--The entire compensation except Rs. 66,066/- was received by the petitioner and the amount was still lying with L.A.C--Land had since been auctioned as per the policy in the years 2000 and 2002 which situation was irreversible as the land in-question could not be retrieved at that stage--Competent authority had communicated the factual position 19 years ago and apparently the petitioner had been sleeping over the matter till 2007--Petitioner did not deliberately received the entire awarded amount and filed an application for adjustment which was not acceded to by the competent authority--Petition dismissed. [Pp. 610 & 611] A, B, C & D
Mr. Hassan Ahmad Khan Kanwar, Advocate for Petitioner.
Mr. Amjad Ali Chattha, Assistant Advocate-General Punjab for Respondents.
Date of hearing: 3.3.2009.
Order
The brief facts of the case are that in the year 1988, the Housing and Physical Planning Department acquired the land measuring 160 kanals and 13 marlas owned by the petitioner situated at Okara Road, Depalpur City. In the award its total price was assessed as Rs.34,26,781/- and after deducting Rs. 66,866/-, the assessed value of two kanals on which Dera of the petitioner was constructed the amount of Rs.33,59,815/- was paid to the petitioner. The claim of the petitioner is that the possession of the two kanals of land for which he had not been paid be handed over to him.
"In this connection, your kind attention is invited to this office Memo No. TP-20/1109, dated 17.2.1991 whereby the matter had already been referred to your office and the decision has not been intimated so far. However, the case was again referred to the Deputy Director, H & PP Division, Sahiwal and the Assistant Director (TP) of this Circle of Superintendence, was also deputed for physical verification/inspection of the site. It has been reported by them that the area in-question (whereby the piece of land demanded to be exempted from the scheme) is under use of Mr. Manzar Ali Khan consisting of 2 katcha rooms, one hand driven fodder cutting machine (Toka Machine) within a katcha hut, a hand pump and open Courtyard. There is no boundary wall and the open yard is being used. The structure is in a very deteriorating condition. A copy of the inspection report of the Assistant Director (TP) along with site-plan of the areas, is enclosed for kind perusal.
Besides, the Land Acquisition Collector of this Circle has already made the award of compensation amounting to Rs.26,000/- for the said structure which has not yet been taken by the said land-owner along with land compensation of 2 kanal land amounting to Rs.40,966/68 where this katcha structure is existing, as he is interested for the exemption of the area from the scheme. As per approved plan of the scheme, the developed plots of one kanal for residential purpose, are provided there and necessary development like sewerage, water supply, roads, has already been carried out.
In view of this position and the site condition as reported by the Assistant Director (TP) of this office, the undersigned is not in favour of adjustment of structure which is katcha one and its compensation amounting to Rs.26,000/- has already been awarded. The area of 2 kanal has been mutated in the name of H&PP Department as reported by the Land Acquisition Collector of this office. Therefore, the same cannot be excluded/exempted from the scheme at this stage."
Subsequently, vide letter dated 1.07.1992, the Director General communicated the factual position to the Secretary to Government of the Punjab, Housing, Physical and Environmental Planning Department and reiterated that land in-question cannot be excluded/exempted.
For what has been discussed above, there is no merit in this petition which is accordingly dismissed.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 611
Present: Hafiz Tariq Nasim, J.
AOSAF ALI SST TEACHER, GOVERNMENT CENTRAL MODEL HIGH SCHOOL, LAHORE--Petitioner
versus
GOVT. OF PUNJAB through Chief Secretary Punjab, Lahore and another--Respondents
W.P. No. 1409 of 2009, heard on 16.3.2009.
Constitution of Pakistan, 1973—
----Arts. 187 & 199--Fundamental Rule, 29--Constitutional petition--Question of--Whether High Court can issue writ or not--Major penalty of reduction to lower pay scale--Appeal was dismissed by service tribunal--After dismissal of appeal, the civil servant filed departmental appeal which was also declined--Challenge to--Held: For implementation of Supreme Court's judgment, High Court has jurisdiction to issue writ. [P. 614] A & B
1999 SCMR 2868, PLD 2008 Kar. 499, rel.
1996 SCMR 1188 & 2009 SCMR 1, foll.
Mr. Taki Ahmad Khan, Advocate for Petitioner.
Mr. Rizwan Mushtaq, Assistant Advocate-General for Respondents.
Date of hearing: 16.3.2009.
Judgment
The petitioner while serving in the Education Department was proceeded against and a major penalty of reduction to lower pay scale i.e. from BS-17 to BS-16 was imposed vide order dated 18.4.2005. The penalty order was challenged in service appeal before the Punjab Service Tribunal, which was dismissed vide order dated 08.05.2006. After dismissal of the appeal by the Punjab Service Tribunal the petitioner filed departmental appeal contending that he be granted the benefit of Fundamental Rule 29 but through letter dated 08.01.2009 his request was declined, hence this writ petition with different prayers. However, the learned counsel while arguing the case, submits that he shall confine to only one point i.e. judgments of the Hon'ble Supreme Court of Pakistan in respect of specifying the penalty as per provisions of F.R. 29 be implemented in the petitioner's case.
On the other hand, learned Assistant Advocate-General submits that the matter has already been adjudicated upon by the Punjab Service Tribunal and the petitioner's representation thereafter is also rejected by the competent appellate authority, hence writ be not issued.
Arguments heard. Available record perused.
First of all, I have to advert to the provisions of Article 189 of the Constitution of Pakistan, which is reproduced as follows:--
"189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
"F.R.29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent."
Now it is to be seen that whether matter is resolved by the Hon'ble Supreme Court by deciding a question of law or not and if it is found that a question of law is decided, then the provisions of Article 189 of the Constitution can be attracted.
I have gone through different judgments passed by the Hon'ble Supreme Court and to resolve the controversy I may refer to the case of Tanvir Ahmad vs. Chief Secretary (2004 SCMR 647), wherein it is held, "Major penalty of reduction in pay to initial of B-17 was inflicted on the petitioner, this order was upheld by the Service Tribunal. The imposition of punishment of reduction to a lower grade without specifying the period of punishment was in violation of FR 29, therefore, it could not have been sustained. The punishment inflicted on the appellant is hereby restricted for a period of four years only".
In case reported as Government of Pakistan through Secretary, Establishment Division, Islamabad and others vs. Muhammad Umer Morio (2005 SCMR 436), the Hon'ble Supreme Court of Pakistan held, "While passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale by the authority, the requirements of FR 29 should be strictly observed".
In case reported as Secretary Kashmir Affairs and Northern Areas Division, Islamabad vs. Saeed Akhtar and another (2008 PLC (CS) 889), the Hon'ble Supreme Court of Pakistan held, "Proceedings carried out in the case suffered from gross legal infirmities such as violation of Rule 29 of the Fundamental Rules as period for punishment was not specified--Acceptance of appeal by the Service Tribunal in case of penalty imposed by the respondent of reduction to a lower pay scale was upheld".
In case reported as Member, Federal Board of Revenue, Islamabad and others vs. Muhammad Ashraf and 3 others (2008 SCMR 1165), the Hon'ble Supreme Court held, "Penalty imposed by departmental authority upon civil servant did not specify length of time, thus, same was violative of Fundamental Rule 29--Penalty for indefinite period was not provided in law".
In another case reported as Muhammad Sadiq vs. Superintendent of Police and others (2008 SCMR 1296), the Hon'ble Supreme Court of Pakistan decided a number of cases holding that while passing the order imposing the penalty of reduction to a lower grade or post or a lower stage in his time scale, the requirement prescribed in FR 29 should have been strictly observed.
After going through these judgments of Hon'ble Supreme Court, I have to examine that whether in the circumstances of the present case, this Court can issue writ or not and for that Article 187 of the Constitution of Pakistan read with the law laid down in Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1186) and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others vs. Sameena Parveen and others (2009 SCMR 1) is to be followed strictly.
So far Article 187 of the Constitution of Pakistan is concerned, that is as follows:--
"187.(1) [Subject to clause (2) of Article 175, the] • Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province.
(3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final."
There is no cavil from the proposition that for implementation of Supreme Court's judgment High Court has the jurisdiction to issue writ and in that respect, reliance can be placed on Khushi Muhammad vs. Inspector-General of Police, Punjab, Lahore and 4 others (1999 SCMR 2868) and Saad Amanullah Khan vs. IVTH-Senior Civil Judge, (South), Karachi and 3 others (PLD 2008 Karachi 499).
So far the precise prayer of the petitioner is concerned, if it is to be examined putting in juxtaposition to the provisions of F.R. 29 read with series of judgments passed by the Hon'ble Supreme Court as discussed above, I am of the considered view that the penalty imposed must be restricted to some specific period, thus following the law laid down in Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1186) and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others vs. Sameena Parveen and others (2009 SCMR 1), the respondent-department is directed to specify the effect of penalty's period (for how many months/years the penalty should remain in the field) as per provisions of F.R.29 within a period of one month.
Writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2009 Lahore 615
Present: Syed Asghar Haider, J.
INTERNATIONAL FINANCE CORPORATION--Plaintiff
versus
SARAH TEXTILES LTD. and 3 others--Defendants
C.O.S. No. 49 of 2006, decided on 2.2.2009.
Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—
----S. 9--suit for recovery of finance--Objection regarding jurisdiction of Court--Agreement clearly reflected--Held: Question of jurisdiction for filing a suit or proceeding or initiating any legal action was for the exclusive benefit of plaintiff/I.F.C., so choice of forum also vested with the plaintiff--Objection over ruled. [P. 624] A
Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)--
----S. 9--Civil Procedure Code (V of 1908), S. 20--Suit for recovery of finance--Institution of suit--Territorial jurisdiction--Objection of--Held: Defendants were residents of Pakistan & agreement was also executed in Pakistan, therefore, Court was bestowed with territorial jurisdiction to take cognizance of the dispute--Objection over ruled.
[P. 624] B
Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)--
----S. 2(a)--Banking Companies Act 1962, S. 27--Financial institution--Whether plaintiff was a financial institution & so is competent to file suit--Held: Plaintiff was created in 1956 by a legislative Act giving its reasons, purposes & powers to sue, so it was a body corporate--The word "includes" in S. 2(a) of the definition of a "financial institution" has its enlarged meanings--It was clearly an investment institution duly recognized by Govt. of Pakistan--Bar of S. 27 of the Act 1962, was not applicable as the enactment was not restricted to transacting banking business only but also covered ancillary or associated business, so suit was competent under the Ordinance 2001.
[Pp. 624 & 625] C, D & E
Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)—
----S. 9--Suit for recovery of finance--Application for leave to defend with condition--Held: Perusal of plaint, PLA replication and the documents appended with plaint including guarantees executed by defendant, documents of title, POA and the admission made in PLA, clearly spelled out that not only a valid agreement was executed by parties but it also stood proved from record--Leave to defend was dismissed and suit decreed. [P. 628] F
1998 SCMR 1618, PLD 1989 SC 128, 2003 CLD 596, 2004 CLD 1356, 2004 CLD 587, 2004 CLD 1338, 2004 CLD 1344 & 2004 CLD 1396, ref.
Syed Ali Zafar & Muhammad Suleman, Advocates for Plaintiff.
Mr. Shahid Ikram Siddiqui, Advocate for Defendants.
Date of hearing: 8.11.2008.
Judgment
The plaintiff filed a suit for recovery under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for recovery of US$. 1,865,473.66 with interest, late payment of interest, charges, costs till the date of realization of the suit amount. Pursuant thereto notices were issued to the defendants as contemplated by Section 9(5) of the Ordinance, 2001. In response thereto the Defendants No. 1 to 4 filed an application under Section 10 of the Ordinance (ibid) for unconditional leave to appear and defend the suit. Thereafter replication was filed by the plaintiff bank.
Ziauddin Siddiqui Vs. Mrs. Rana Sultana and another (1990 CLC 645).
Gul-e-Rana and 4 others Vs. Citi Bank N.A. Lahore through Manager and another (2005 CLD 1126).
Province of Punjab through Collector Rajanpur and 2 others (2005 CLC 1336).
PICIC Commercial Bank Limited. Vs. Spectrum Fisheries Limited (2006 CLD 440).
It was then argued that this Court has no jurisdiction to try and adjudicate the present suit, as Section 2(2)(II) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is applicable to Pakistan only, but the plaintiff is not functioning in Pakistan, nor does it have any branch in Pakistan, in fact the agreement, itself bestows jurisdiction on the Courts of England, reference was made to the agreement dated 23.2.1993, Sec. 9.07(b), Sec. 4.03 and Sec. 8.06. The pith and substance of the argument thus, was, that the jurisdiction of Pakistan Courts is barred and is with the Courts of England exclusively. Thereafter it was argued that the plaintiff does not fall within the definition of a Financial Institution, as defined in the Ordinance (ibid), because it has no authority to do banking business, in view of bar contained in Section 27, of the Banking Companies Ordinance, 1962, as it does not hold a valid license for transacting banking business in Pakistan. Reference National Development Finance Corporation Vs. Spinning Machinery Company of Pakistan Limited (2002 CLD 53). It was argued next that the statement of account is not in accordance with law as it merely is a summary of statement and not a statement of account, as contemplated by Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. To fortify this proposition, reference was made to Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd. Islamabad Vs. Messrs Allied Bank of Pakistan and another (2003 CLD 596), Messrs Ittefaq Industries (Regd.) through Managing Partner and 2 others Vs. Bank of Punjab through Duly Constituted Attorney (2004 CLD 1356), Messrs C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others Vs. Investment Corporation of Pakistan (2004 CLD 587), United Bank Limited Vs. Messrs Ilyas Enterprises through Proprietor Mr. Ilyas Malik and 2 others (2004 CLD 1338), Messrs State Engineering Corporation Limited, Islamabad, through Manager (Personnel) S.M. Akram Farhat Vs. National Development Finance Corporation and another (2004 CLD 1344) and Investment Corporation of Pakistan Vs. Sheikhupura Textile Mills Ltd. And others (2004 CLD 1396). It also was thereafter argued that interest cannot be charged beyond the contractual period, there also are material contradictions in the guarantee executed and statement of accounts, necessary documents for proper adjudication of the dispute have not been placed on record, the lapse is fatal to the maintainability of the suit. Reference Bankers Equity Limited through Principal Law Officer and 5 others Vs. Messrs Bentonite Pakistan Limited and 7 others (2003 CLD 931), Messrs. C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others Vs. Investment Corporation of Pakistan (2004 CLD 587) and Muhammad Nafees Vs. Allied Bank of Pakistan Limited through Manager and another (2004 CLD 937).
"(i) under the guarantee payments a sum of US$ 1,455,037/- as on the date of filing of the suit alongwith interest thereon in accordance with the Guarantee and Indemnity Agreement dated 30.09.2001 (Annex D/l page 145);
(ii) a sum of US$ 1,863,617/- as on the date of filing of the suit alongwith interest thereon in pursuance of the Agreement dated 30.09.2001 (Annex C/2 page 91) in respect of Loan I; and
(iii) a sum of US$ 226,764/- as on the date of filing of the suit alongwith interest thereon in respect of the Put Agreement dated 30.09.2001 (Annex C/2 page 91) in respect of Loan I; and
The Defendants No. 2 to 4 are jointly and severally liable to pay all payments in respect of the guarantee payments and Loan I by virtue of Guarantees dated 23.2.1993 (Annex B page 19) and 30.09.2001 (Annex B/1 Page 30)."
The learned counsel thereafter pleaded that the PLA be rejected outright, since it is not in consonance with the requirements of Section 10(4)(a) of the Ordinance, 2001, as the defendants clearly state that they availed the finance amount, defrayed back the same partially, but, no specific dates in this context are mentioned, which is sine qua non for a valid PLA, therefore, there is no PLA before this Court, consequently legal penalties be inflicted. To fortify his contention, the learned counsel referred to:--
"NBP Vs. Effef Industries Limited and others (2002 CLD 1431).
Bolan Bank Limited Vs. Baig Textile Mills (Pvt.) Ltd. and others (2002 CLD 557).
Saudi Pak Industrial and Agricultural Investment Company Ltd. Vs Mohib Textile Mills Limited and others (2002 CLD 1170).
Bankers Equity Limited Vs. Ventonite Pakistan Limited and others (2003 CLD 931).
Bank of Kbyber Vs. Spencer Distribution Limited and others (2003 CLD 1406).
Allied Bank of Pakistan Vs. Mohib Fabrics Industries Limited (2004 CLD 716).
Zeeshan Energy Limited Vs. Faysal Bank Limited (2004 CLD 1741).
The learned counsel also emphatically stated that there is no specific denial in the PLA by the defendants of availing the finance facilities, therefore, by implication, liability has been accepted by the defendants. Even if for sake of argument, if the same is termed as denial on their part, it amounts to evasive denial, which tantamounts to an admission. To fortify his contention in this context, the learned counsel referred to Haji Ali Khan & Co. Vs. Allied Bank (PLD 1995 SC 362), Allied Bank Vs. Kohinoor Cotton Mills (PLD 1985 Lahore 89), Rubina Jamshed Vs. United Bank (2005 CLD 50) and IDBP Vs. NTN (Pvt.) Limited (2002 CLD 369). To sum up the arguments, on this proposition, the learned counsel concluded that non-denial of loan and due execution of documents, coupled with statement account verified, as ordained by law, is enough to decree the suit.
On the question of jurisdiction, the learned counsel for the plaintiff stated that the word "financial institution" used in Financial Institutions (Recovery of Finances) Ordinance, 2001 in Section 2(a) has enlarged the definition of a banking company, he adverted to the word "means and includes", to submit that the intent of the legislature is clear that any legal or juristic person, transacting business as a financial institution is covered by this definition, it also is applicable not only to companies incorporated in Pakistan but also includes the companies transacting this business outside Pakistan, even by associate or ancillary branches. The plaintiff though was incorporated in Washington, but is also working in Pakistan, under the International Finance Corporation Act 1956 (Act XXVII of 1956), it has branches in Islamabad, Pakistan, therefore, it clearly is a financial institution, as defined in the Ordinance, 2001, therefore, this Court has jurisdiction to adjudicate the dispute. The defendants have availed the finance facilities, therefore, they fall within the definition of a "customer" as envisaged by Section 2(c) of the Ordinance, 2001, thus, they are required to discharge their obligation, which position has not been controverted in the PLA, the suit therefore, be decreed on this ground as well.
As far as the set up of the plaintiff is concerned, it is stated that it is one of the largest financers in the world and has been providing facilities to the Governments worldwide including Pakistan. It also has an office in Islamabad and by enactment of the International Finance Corporation Act, 1956, it falls within the definition of a financial institution and therefore can operate and work under the B.C.R.F.I.O. 2001. The defendants, therefore, are its customers and as such required to liquidate the liability, to fortify his contention, in this context, the learned counsel referred to an unreported judgment of this Court: COS No. 115/2000 titled "IFC Vs. Regent Knitwear".
The learned counsel further submitted that the question of exclusive jurisdiction vesting in the Courts of England qua adjudication and decision is not fathomable. The agreement dated 23.2.1993 stipulates that any action for recovery is for the exclusive benefit of IFC and may be brought in the Courts of England, therefore, discretion in this context vests with the IFC and not with the defendants. Further the word "may" is a significant and it empowers the plaintiff to initiate action for recovery in a Court of its choice. The main agreement itself was executed in Pakistan, the agreement referred to (Guarantee agreement dated 09.03.2002) is irrelevant for the purpose of determining jurisdiction, as it is inter se IFC and UBL, the defendants, therefore, cannot raise issue in this context. Section 4.04 of the agreement specifically provides that legal proceedings can and may be initiated in Pakistan, the issue of jurisdiction is purely legal and the parties cannot divest a Court of its inherent authority in this context, ref: Hitachi Vs. Rupali Polyester Limited (1998 SCMR 1618). As agreements were executed in Lahore, therefore, the Courts in Pakistan have unfettered jurisdiction to entertain the suit. As far as the objection to statement of accounts is concerned, the use of the word "summary" of accounts, it is incorrect, as a detailed statement of account is available with the plaint as required by Section 9, of the Ordinance, 2001, and has been certified in accordance with law. The power of attorney in favour of Mr. Nadeem Siddiqui is in consonance with all legal requirements, it contains a clear stipulation that a recovery suit may be filed against Sarah Textiles Limited and its guarantors, the concerned person has been bestowed with authority to file suits, petitions, affidavits etc. It has been duly attested by the Pakistan High Commission, bears the stamp of the Embassy of Pakistan. The last objection qua "Director Legal's" authority to bestow such powers upon Mr. Nadeem Siddiqui, is irrelevant as a formal resolution was duly passed on 15.12.1997, and the same cannot be objected or challenged to by the defendants. The objection qua power of attorney being effective till 31.12.2006 also is irrelevant as the suit was file earlier to this date, the proceedings commenced earlier and thus would continue unabated without requiring any further authorization. To fortify his contentions, the learned counsel referred to the following precedents:--
"Mashriq Bank vs. Farooq Habib Textile Mills (2007 CLD 320).
Muhammad Nawaz Ch. vs. Citibank (2002 CLD 334).
MCB vs. Rizwan Textile Mills Limited (1998 MLD 529).
Banque Indosuez vs. Jet Travels Limited (1991 CLC 446).
PICIC vs. Bawani Industries Limited (PLD 1998 Karachi 400).
NBP vs. Muhammad Ashraf Sanik (PLD 1987 Lahore 17).
ICEPAC Limited vs. Asian Leasing Corporation (2003 CLD 232).
Robina Jamshaid vs. UBL (2005 CLD 50).
Citibank vs. Judge Banking Court (2001 CLC 171).
2006 CLD 440.
UBL vs. Sheharyar Textile Mills Limited (1996 CLC 106).
Emirates Bank vs. Fair Commission Agencies (1991 CLC 450).
1991 CLC 446.
1990 MLD 538.
HBL vs. Green Garments Manufacturers (PLD 1978 Karachi 1027).
PLD 1966 SC 684.
1986 MLD 2930.
Fida Mohd. vs. Mir Mohd. Jan (PLD 1985 SC 341).
1994 SCMR 818.
M. Yasin Vs. Dost Muhammad (PLD 2002 SC 71)
PLD 1959 Dhaka 636.
Anis Fatima Vs. Anwar Hussain (PLD 1979 Karachi 22).
1992 CLC 2137.
Heard.
As far as the PLA is concerned although the arguments made at the bar and contained in the PLA are not in harmony and consonance with each other, several new dimensions and propositions have been urged, though they were not part of PLA. Normally a party cannot go beyond its pleadings under the principle of "secondum allegata et probata". But as defendants have raised propositions of law and partially facts which are part of PLA, therefore, the PLA cannot be summarily rejected and shall be decided on merits.
The first objection raised by the learned counsel for the defendants is, that the power of attorney on the basis of which, the present suit has been filed, is not in consonance with law, as it expired on 31.12.2006. The contention has no force, the power of attorney, itself stipulates that cessation shall not effect any act, theretofore done, in exercise hereof. The suit admittedly was filed earlier, thus cessation of authority on 31.12.2006, does not abridge the attorney's authority, thus the same is over-ruled.
The next contention that the plaintiff has not placed on record any resolution by the Board authorizing Ms. Jennifer A. Sullivan to authorize Mr. Nadeem Siddiqui to institute the present suit and is violative of Articles 79 and 95 of Qanun-e-Shahadat Order, 1984 is against record, as perusal of record reflects, that Mr. Nadeem Siddiquie, is a legal and validly constituted attorney of the plaintiff, the power of attorney in this context, clearly reflects that it has been signed, notarized and endorsed by the Embassy of Pakistan, in Washington, USA and was duly attested by two witnesses as required (Annex A). It clearly empowers the attorney to file the present proceedings. Authority in this context was duly delegated by Ms. Jennifer A Sullivan, Director and General Counsel, Legal Department of the plaintiff, this clinches the whole issue and there is no need to further dilate upon the matter. A formal resolution in this context also, is available on record.
A perusal of the agreement referred to by the learned counsel for the defendants clearly reflects that Section 4.03 and Section 8.06 relate to applicable law and jurisdiction, Section 9.07(b) of the amended agreement executed inter se the parties relates to the question of jurisdiction. It reads:
"Section 9.07 (b) For the exclusive benefit of IFC, the Company hereby irrevocably agrees that any legal action, suit or proceedings arising out of or relating to this Agreement may be brought in the High Court of Justice of England. By the execution of this Agreement, the Company hereby irrevocably submits to the jurisdiction of any such Court in any such action, suit or proceeding and agrees to designate, appoint and empower Lane and Partners, 46/47 Bloomsbury Square, London WC1A 2RU, England as its authorized agent to receive for and on its behalf serve of the writ of summons or other legal process in any such action, suit or proceedings in such Court. The Company further agrees that, so long as it shall be bound to IFC under the Agreement, it will maintain a duly appointed agent for the service of the writ of summons and other legal process in London, England, for the purposes of any such legal action, suit or proceedings brought by IFC in respect of this Agreement and shall keep IFC advised of the identity and location of such agent."
It clearly reflects that the question of jurisdiction for filing a suit or proceedings or initiating any legal action is for the exclusive benefit of IFC, therefore, choice of forum also vests with the plaintiff in this context. The defendants cannot take exception to the same. The plaintiff has opted to file the proceedings in Pakistan, therefore, by virtue of this agreement, it was fully authorized to initiate proceedings in a Court of its choice, thus the objection qua the jurisdiction is not maintainable. Further various agreements subject matter of the dispute were executed in Pakistan, therefore, under Section 20 of the Code of Civil Procedure, suits qua moveable property, personal actions and where cause of action arises are instituted where any of the said event takes place. In the present matter, the defendants admittedly are residents of Pakistan, agreement was executed in Pakistan, therefore, this Court is bestowed with jurisdiction to take cognizance of the dispute. The matter has already been addressed in Hitachi Vs. Rupali Polyester Limited (1998 SCMR 1618) and COS No. 115/2000 IFC Vs. Regent Knitwear, therefore, the objection qua the jurisdiction of this Court to entertain the present proceedings is also repelled. The precedents referred to by the learned counsel for the defendants in this context are distinguishable and not applicable to present facts.
(i) any company whether incorporated within or outside Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan through its branches within or outside Pakistan and includes a government savings bank, but excludes the State Bank of Pakistan;
(ii) a modaraba or modaraba management company, leasing company, investment bank, venture capital company, financing company, unit trust or mutual fund of any kind and credit or investment institution, corporation or company;
(iii) any company authorized by law to carry or any similar business as the Federal Government may by notification in the official Gazette, specify;
Thus with inclusion of the word "includes" the definition of a "financial institution" stands enlarged, as the word "includes", has been interpreted by the apex Court in the, Don Basco High School Vs. The Assistant Director EOBI and others (PLD 1989 SC 128).
Thus as the principle of "ejusdem generis" is applicable to the present enactment, therefore, it includes the plaintiff. Further the plaintiff, clearly is an investment institution duly recognized by the Government of Pakistan. The bar of Section 27 of Banking Companies Act, 1962, also is inapplicable as the enactment is not restricted to transacting banking business only but also covers ancillary or associated business, therefore, the agreement inter se the parties, permits the plaintiff to sue under the present Ordinance.
Additionally the provisions of the Ordinance as contained in Section 4(ibid) have an overriding effect over other laws and provisions.
The situation becomes even more clear, as the definition of the word "finance" used in Section 2(d) of the Ordinance reads:--
"Section 2(d) "finance" includes--
(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-bak arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or madaraba certificate, term finance certificate;
(ii) facility of credit or change cards;
(iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution;
(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;
(v) a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;
(vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or any award given by an arbitrator; any amount due from a customer to a financial institution which is the subject matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution. "
Therefore, it is clear that the defendants and plaintiff validly executed this agreement recognizing each others status and entity. The word "obligation" as used in the ordinance requires the defendants to liquidate the liability as they have obtained finance from the plaintiff. This position was earlier examined by this Court in COS No. 115/2000 "IFC Vs. Regent Knitwear" and answered in affirmative, therefore, under the principle of consistency, and the discussion made above, there absolutely is no need to take a view contrary to the one already expressed by this Court earlier, as such this objection raised too, is over-ruled.
Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd. Islamabad. Vs. Messrs Allied Bank of Pakistan and another (2003 CLD 596), Messrs Ittefaq Industries (Regd.) through Managing Partner and 2 others Vs. Bank of Punjab through Duly Constituted Attorney (2004 CLD 1356), Messrs CM. Textile Mills (Pvt.) Limited through Chairman and 5 others Vs. Investment Corporation of Pakistan (2004 CLD 587), United Bank Limited Vs. Messrs Ilyas Enterprises through Proprietor Mr. llyas Malik and 2 others (2004 CLD 1338), Messrs State Engineering Corporation Limited, Islamabad, through Manager (Personnel) S.M. Akram Farhat Vs. National Development Finance Corporation and another (2004 CLD 1344) and Investment Corporation of Pakistan Vs. Sheikhupura Textile Mills Ltd. And others (2004 CLD 1396).
Appraisal of record appended with the plaint clearly reflects that the statement of account appended with the plaint is in accordance with the parameters of Section 9 of the Ordinance, 2001, there absolutely is no ambiguity in the same, it has been certified, as required by law, the defendants have not objected to any specific entry in this context, they were required in law to raise a specific objection, but it was not done, as is evident from the contents of PLA, as such they cannot now raise this issue under the principle of "secondum allegata et probata". It is also imperative to state here that the defendants denied liability in law and not on facts, as they did not deny the execution of the documents subject of the present dispute. This objection too is over-ruled. The precedents referred to are of no help to the defendants, and distinguishable on facts.
The contention of the learned counsel that there are material contradictions in the agreements executed inter se the parties and the guarantees executed, also is without any substance. The guarantee agreement was concluded inter se the parties on 23.2.1993, thereafter the same was amended by another agreement dated 30.09.2001. Another guarantee agreement was executed on 09.03.2002 between UBL and IFC, the recitals contained in these compliment each other and prove a valid, legal and binding financial transaction between the parties. Thus defendants were obliged to adhere to their obligations and discharge them. A specific objection was raised qua accounts in Para 10 of the plaint, it states that the claimed amount is US $ 131,503/-. But in the statement of account at page 221, the amount claimed is referred to US $ 251,729.92, thus there is contradiction between the two. The statement of account appended pertains to three transactions, the amount adverted to is covered and reflected in the statement of accounts. It also is in consonance with the plaint, because it contains the entry referred and explains it, alongwith other entries. This objection too is not therefore, tenable.
For what has been stated above the defendants have not been able to raise any substantial question of law or fact, which needs recording of evidence, therefore, the leave application has no merits, and is dismissed.
The perusal of the plaint, PLA, the replication and the documents appended with the plaint, specifically, guarantees executed by the defendants and referred to earlier, the documents of title qua memorandum of deposit of title deeds dated 01.12.1993 and 26.2.2002, deed of floating charge dated 06.12.1993 and 26.2.2002, letter of hypothecation dated 01.12.1993 and 26.2.2002 the general power of attorney and admissions made in PLA, clearly spell out that not only a valid agreement was executed by the parties but it stands proved from the record, as discussed above, these documents jointly and severally prove the transaction made. Therefore, the suit is decreed as prayed for. A decree sheet be accordingly prepared.
In case the defendants fail to liquidate the liability within 30 days, the proceedings shall stand converted into execution petition as contemplated by Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
Now to come up for further proceedings on 17.03.2009.
(J.R.) Suit decreed.
PLJ 2009 Lahore 628
[Bahawalpur Bench Bahawalpur]
Present: Malik Saeed Ejaz, J.
IMTIAZ ALI, ASST. REGISTRAR ISLAMIA UNIVERSITY BAHAWALPUR--Petitioner
versus
SECRETARY TO GOVERNOR, GOVERNOR SECRETARIATE, LAHORE and 3 others--Respondents
W.P. No. 209 of 1999, decided on 17.2.2009.
Constitution of Pakistan, 1973—
----Art. 199--Letter of appear before the syndicate--Challenge to--Matter of appointment of petitioner as Assistant Register was under controversy before the chancellor/Governor who referred it to the syndicate--It was astonishing that petitioner who was the employee of the university was reluctant to appear before syndicate which itself consisted of a Judge of H.C., Vice Chancellor of the University and so many other dignitaries--Court only had directed the chancellor/ Governor of Punjab to pass appropriate order and the governor, in capacity as chancellor, referred the matter to the syndicate--Thus there was no violation of any order of Court--Petition dismissed.
[Pp. 630 & 631] A & B
Mr. Shamshair Iqbal Chughtai, Advocate for Petitioner.
Malik Muhammad Aslam, Advocate for Respondent.
Date of hearing: 17.2.2009.
Order
Through the instant constitutional petition, the letter dated 14.1.1999 issued by the respondent-University was challenged, by which the petitioner was directed to appear in person before the Syndicate on 16.1.1999, on basis of an order dated 13.12.1997 passed by the Governor of Punjab as Chancellor of the University.
No. 2611/1996 on the ground that petitioner was not equipped with requisite qualification of Master Degree, as such, was not eligible for the said post of Assistant Registrar and that he (Respondent No. 4) having M.A qualification fulfilled the criteria, as such, was eligible to be appointed. The said writ petition was disposed of by this Court on 19.11.1997 with the following order:
"Copy of this petition along with annexures are transmitted to the Secretary to the Governor of Punjab, Governor House, Lahore who shall place this matter before Chancellor for appropriate order."
In compliance with the above order, the Governor of Punjab vide letter dated 13.12.1997 directed that application of Respondent No. 4 be placed before the Syndicate for its examination and necessary action in accordance with rules, within one month. Aggrieved by the above letter of the Chancellor, the petitioner filed a W.P.No. 1443-S/ 1998-BWP, wherein following order was passed:
"Let a copy of this petition be transmitted to the Secretary to the Governor Punjab, Governor House, Lahore, for such action as the Governor may like to in the facts and circumstances of the case in his capacity as Chancellor of the Islamia University, Bahawalpur."
Afterwards, the Deputy Registrar of the respondent-Islamia University vide impugned letter dated 14.1.1999 directed the petitioner to appear before the Syndicate on 16.1.1999, which direction has in fact been assailed through the instant writ petition.
Learned counsel for the petitioner contends that petitioner is not bound to appear before the Syndicate as in the earlier writ petition the matter was referred by this Court to the Chancellor, who was the competent authority to decide the issue.
On the other hand, learned counsel representing the respondent-University by rebutting the above assertion of learned counsel for the petitioner, submits that instant petition is not maintainable and the petitioner in fact intends to linger on the matter only with a desire to circumvent the proceedings of the Syndicate.
I have considered the arguments of learned counsel for the parties and have also gone through the available record.
It is astonishing to note that petitioner, who is employee of the respondent-University, is reluctant to appear before the Syndicate of the said University itself, which otherwise is indicative of his highhandedness, in fact. The Syndicate includes a Judge of this Court, Vice-Chancellor of the University, and so many other dignitaries. As such, it is far from imagination that any adverse action will be taken by such like constituted Syndicate, against the petitioner without listening him or ignoring the real facts. Therefore, hesitation and reluctance on the part of the petitioner to appear before the Syndicate is not understandable at all, whereas, the matter is lingering on since 1999 on the basis of instant writ petition, wherein, the petitioner had succeeded in getting a stay order. The contention of learned counsel for the petitioner that matter was only referred to the Chancellor, is not true. This Court only had directed the Chancellor/Governor of the Punjab to pass appropriate order and the Governor of Punjab in his capacity as Chancellor referred the matter to the Syndicate, thus, there is no violation of any order of this Court.
In view of the above, I see no substance in this petition, which is accordingly dismissed, with a direction to the petitioner to appear before the Syndicate where the Respondent No. 3 shall place his matter and the Syndicate shall finally decide the matter of course after full opportunity of hearing to the petitioner.
(J.R.) Petition dismissed.
PLJ 2009 Lahore 631
Present: Mian Saqib Nisar, J.
SHAUKAT ALI and 2 others--Petitioners
versus
GOVT. OF PUNJAB through Secretary Local Government and C.D.D. Civil Secretariat, Lahore and 5 others--Respondents
W.P. No. 13754 of 2008, decided on 22.12.2008.
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----Ss. 111 & 112(7)--Preparation of annual budget--Competency of--Under the law a considerable autonomy and authority has been conferred upon the Local Govt. the council in preparing and approving budget and this in the "ordinary course"--However S. 112(7) is an exception to this ordinary course and shall automatically play when for whatever reasons, the council fails to approve its budget within the prescribed time--When under this provision Govt. under-takes this responsibility, it is an "extraordinary course" envisaged by law and this is omnipotent to prepare, approve and authenticate the budget. [Pp. 634 & 635] A & B
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 112(7)--Preparation & approval of annual budget by Govt. of Punjab--Challenge to--Locus standi--Admittedly the election of both the nazim & naib nazim of the council was annulled by High Court--Naib nazim was restored by Supreme Court and under the law he automatically had to act as nazim till an officiating nazim or new nazim was elected--As no Nazim was elected, so the naib nazim remained to act as nazim and ceased to be naib nazim, and precluded to convene the meeting or preside over the same--Movoer out of 155 members only 3 had come forward to challenge the budget without pinpointing and showing any personnel loss to themselves or to their union councils--Petitions had no sufficient locus standi--Petition dismissed. [Pp. 635 & 636] C & D
Dr. M. Mohy-ud-Din Qazi & Mr. Azam Nazir Tarar, Advocates for Petitioners.
Mr. Muhammad Hanif Khatana, Addl.AG for Respondents No. 1 & 2.
Ch. Aamir Rehman, Advocate for Respondents No. 3 to 5.
Date of hearing: 12.12.008.
Order
The petitioners being the Union Nazims are the members of Zila Council, Kasur ("the Council"); they are aggrieved of the budget of the Council for the year 2008-2009, prepared, approved and authenticated by the Government of Punjab while exercising its power under the provisions of Section 112(7) of the Punjab Local Government Ordinance, 2001 ("the Ordinance"). It is their case that the budget in the above manner has been enforced in violation of various prescribed rules of the Punjab District Government & TMA (Budget) Rules, 2003 ("the Rules"); the exercise of authority in this behalf is mala fide; the object behind is to thwart the ongoing development projects duly undertaken by the Council since 2007-2008, besides, to deprive the members of the Council and the respective Union Councils from the future development works; and in the garb of impugned budget, with ulterior object and motive the MNAs and MPAs belonging to Pakistan Muslim League (N) have been accommodated, who otherwise have their own independent allocation for development programmes, and are not entitled under the law to utilize the funds of the Council.
In elaboration of his submissions, Dr. M. Mohy-ud-Din Qazi, the learned counsel for the petitioners, has made reference to the provisions of Articles 32, 140(A) of the Constitution of Islamic Republic of Pakistan. 1973 ("the Constitution") and the preamble of the Ordinance to argue that according to the spirit of the law, the local governments at the gross root level must be encouraged, promoted, effectively installed and enabled to solve the problems of the people; but due to the impugned action, the above purpose has been flagrantly violated. It is also submitted that one of the key functions and powers of the Council as enunciated by Section 39 of the Ordinance is to approve long term and short term development plans; the supplementary budgetary proposals of the district government and approve the annual budget of the Council, for the purposes of which, a complete procedure has been prescribed by Sections 111, 112 of the Ordinance and the Rules, as to how the budget shall be prepared by the Local Government ("LG") and approved by the Council, but in the instant case, such mandatory procedure has been ignored and bypassed, which amounts to frustrating the law and is the usurpation of the power of the LG/Council; further by reference to proviso to Section 22 and Section 42(5), it is argued that where the Nazim or the Naib Nazim are dysfunctional for any reasons, the members on the panel of the Council elected there-under (under Section 42(5) shall performs their duties and functions respectively, therefore, in the circumstances of the present case the preparation and approval of the budget should have been allowed to be passed in ordinary course and the members of the panel could have accordingly acted for the Nazim and Naib Nazim. Without prejudice to the above, it is stated that the members of the Council on 08.09.2008 tabled a motion for the revision of the budget in terms of Section 112(11) of the Ordinance, which was carried by the house on 25.09.2008 being presided over by the Naib Zila Nazim, who by that time was restored by the Honourable Supreme Court vide order dated 21.08.2008, thus in any case, as the budget was revised to the extent of the development schemes, which accordingly were reallocated to the members who were genuinely entitled thereto, resultantly the Government was bound to give effect to the revision and, therefore, the advertisement issued by Respondents No. 3 to 6 for award of development works on the basis of the impugned budget is without jurisdiction and lawful authority; the noted resolution has not so far been annulled by the Chief Executive of the Province as provided by Section 45 of the Ordinance, and still holds the field; he has further argued that for the year 2007-2008, the budget was duly approved by the Council and the matter came under litigation before this Honourable Court in W.P.No. 8000/2007, in which the said approval was endorsed, therefore, such budget has to be necessarily given effect in the subsequent year 2008-2009, as the works which remained incomplete during last financial year requires to be accomplished; that if the projects as per the Government budget are allowed to be undertaken, it shall complicate the matter vis-a-vis the payments to be made, because the amounts allocated for development schemes are part of the local funds and cannot be allocated to the MNAs and MPAs, who have their own independent development funds.
Conversely, Mr. Muhammad Hanif Khatana, learned Additional Advocate General, and Ch. Aamer Rehman, advocate, submit that the Government has rightly and lawfully invoked and applied the provisions of Section 112(7) of the Ordinance because in the peculiar circumstances of the case, it had become imperative to do so, as the preparation and the passing of the budget by the LG/Council was impossible for the reason that the election of both the Nazim and Naib Nazim had been annulled by this Court; both the posts were vacant and because of an ongoing dispute between the two groups of the Council, no panel of the members was elected or notified under Section 42(5), to perform the functions under proviso to Section 22; the Naib Nazim was restored by the Honourable Supreme Court of Pakistan on 21.08.2008 i.e. after the period in which the budget has to be passed by the Council, therefore, the Government in order to safe a chaotic situation necessarily had to step in and perform its statutory obligation; when the Naib Nazim was restored, he was duty bound to call/convene the session of the house within ten. days for the purposes of electing an officiating Nazim, but he miserably tailed to do so, which constitutes a misconduct on his part; it is also submitted that in view of Rule 56(2) of the Rules, the revisional or the supplementary budget had to undergo the same process and procedure prescribed for the annual budget, which was not followed while passing of the resolution dated 25.09.2008, which otherwise could not be passed as the house was not legally convened and presided over, therefore, no valid revision in the budget was ever made; the budget was enforced by the Government for full year, thus it cannot be revised by the Council.
Heard. When specifically questioned, the learned counsel for the petitioners has conceded that the budget was neither prepared by the LG nor was approved by the Council within the statutory period provided under Section 112(6); it further conceded that the petitioners are not challenging the vires of Section 112(7) of the Ordinance and/or the authority of the Government to pass the budget, but according to him, that could only be done in appropriate cases squarely falling, within the scope and ambit thereof and this is not such a case. In the light of above, the key propositions which arises for consideration and determination are:
(i) Whether the instant case falls within the purview of the sub-section (7) of Section 112 of the Ordinance;
(ii) Whether while preparing the budget, the Government was required to follow the prescribed procedure and has failed to do so;
(iii) Whether the resolution dated 25.09.2008 is valid and if so, its effect;
(iv) Whether the budget has been passed with mala fides.
Taking up first two questions together, it may be stated that Section 111 in general enunciates the principles to be followed while preparing the budget of the LG, whereas sub-section (6) thereof specifies that before the commencement of a financial year each local Government shall, from its funds, prepare in the "prescribed manner" a budget in conformity with the provisions of Section 119, obviously meaning thereby that by strictly adhering to the Ordinance and the Rules. The mechanism of the presentation of the budget and its approval or otherwise by the Council (except sub-section (7)) and its authentication by the Nazim is given in Sections 111 and 112. From the object and the spirit of the constitutional provisions and the Ordinance mentioned above, a considerable autonomy and authority should be construed to have been conferred upon the LG and the Council in preparing and approving the annual budget, and this in my view is the "ordinary course" for the budget. However, Section 112(7) is an exception to this "ordinary course" and shall automatically come into play, when for whatever reasons the Council fails to approve its budget within the prescribed time. The Government under this authority, which can be termed analogous to its statutory duty, with a view to meet an emergency situation caused and created due to the default of the Council itself in approving the budget, comes into motion, and under the command of the law steps in to prevent the catastrophe, financial impasse and the standstill of the Council; this undoubtedly is a rescuing measure, which the Government imperatively is required to take in order to bail out the Council for a chaos. When the Government undertakes the responsibility of enforcing the budget under the provision ibid, it is an "extraordinary course" envisaged by law and thus it is omnipotent to "prepare", "approve" and "authenticate" the budget. And while doing so, is not bound to follow the "prescribed procedure", as required to be adhered to by the LG in terms of sub-section (6) of Section 111, which reads "before the commencement of a financial year each local council shall, from its funds, prepare in the prescribed manner a budget for that year in conformity with the provisions of sub Section 119". The condition of the "prescribed manner", is conspicuously missing in the sub-section (7) ibid, which clearly depicts the intention of the legislature that the Government has been absolved of all the restrictions/requirements, which are essential for the making of the budget in "ordinary course". Therefore, it is a clear case where due to the failure of the Council to pass the budget within the time provided by law, the situation warranted the exercise of authority by the Government in terms of Section 112(7) and while adopting the extraordinary course, it was not required to follow the prescribed procedure The above provides the answers to propositions No. (i) and (ii).
Attending to proposition No. (iii), suffice it to say that admittedly the election of both the Nazim and Naib Nazim of the Council had been annulled by this Court. The Naib Nazim was restored by the Honourable Supreme Court on 21.08.2008 and according to Section 22, he automatically has to act as the Nazim till an officiating Nazim or new Nazim was elected. There is no discord between the parties that till the date the Nazim as per Section 156 of the Ordinance has not been elected. Thus, for all intents and purposes the Naib Nazim remains to act as the Nazim and ceased to be the Naib Zila Nazim and under the law was precluded to hold two offices simultaneously by wearing two caps on one head, therefore, in terms of Section 42-A of the Ordinance, he could neither convene the meeting nor could preside over the same, but it was so done. Resultantly, the meetings of the Council dated 08.09.2008, 09.09.2008 and 25.09.2008, even if requisitioned by the members (which is not clear from the record), were not legally convened and chaired and thus, any proceedings conducted thereby or the resolution passed i.e. 25.09.2008 is unauthorized, illegal, having no sanctity and existence in the eye of law. Therefore, the question of the annulment of such a resolution by the Chief Executive does not arise. Even otherwise, Rule 56 sub-rule (2) of the Rules provides that a supplementary budget shall be presented in the same form and manner as prescribed for the annual budget. According to Section 112(1), it is the Nazim of a Council, who has to present the budget for the approval, but in this case, the revision of the budget has been attempted through a table resolution, which is not in accord with the above. It is not established from the law, if the revision in the annual budget could be done in the noted manner. However, it may be pertinent to observe here that I am not convinced by the argument of Mr. Aamer Rehman, the learned counsel for Respondents No. 3 to 5, that as the Government in terms of Section 112(7) is empowered to enforce the budget for full year, therefore, it cannot be revised by the Council at all; in my view, such a bar shall not only be against the spirit and object of the law for which the LG is created, but shall also reflect upon financial autonomy of the Council as mentioned above; moreover, it shall amount to reading into the Section ibid a prohibition which is not specifically there. The above discussion answers the relevant proposition.
As far as the proposition No. (iv) is concerned, it may be mentioned that bald allegations of mala fides have been made in the petition without any proof on the record. Only for the reason that some new projects have been undertaken in the budget and other ongoing projects have been left out, as alleged, by itself cannot be considered a sole factor to impute mala fides to the Government; from the record or the impugned budget itself, it is not established if with a dishonesty of purpose, any MPA or MNA of Muslim League (N) has been accommodated. Besides, the submission that this Court in an earlier judgment had approved the budget for the year 2007-2008 which included the ongoing projects and thus those should have been kept intact in the present budget, has no force, as the judgment in no way has commanded that in the next budget made in "ordinary" or "extraordinary course", the ongoing projects should be kept intact and allowed to be accomplished.
Before parting it may be observed that out of 155 members, only three have come forward to challenge the budget and they in the petition have not been able to specifically pinpoint and show any personal loss to themselves or to their union councils. Therefore, when the entire house has not agitated against the budget of the Government, only three would not have a sufficient locus standi to impugn the same.
In the light of above, I do not find any merit in this petition, which is hereby dismissed.
(J.R.) Petition dismissed
PLJ 2009 Lahore 647 (DB)
Present: Syed Hamid Ali Shah & M. A. Zafar, JJ.
ZAKI FAROOQ--Appellant
versus
SAEED AKHTAR etc.--Respondents
R.F.A. No. 109 of 1999, heard on 22.10.2008.
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Civil Procedure Code, (V of 1908), O. XXVI, R. 9--Suit for specific performance of agreement--Demarcation of disputed land through local commission--Validity--According to the agreement plaintiff/buyer was liable to make payment of that area only which was found to be in his possession after demarcation, otherwise he was liable to penalty--Subsequently parties changed their stance in the previous round of litigation before High Court where they agreed for fresh demarcation and completion of sale on the basis of such demarcation though Local Commission--Right to seek imposition of penalty stood waived when honourable apex Court directed for carrying the demarcation and ascertainment of the area to the satisfaction of the parties--Held: No question of forfeiture of earnest money or the remaining sale price in favour of their party was to arise--Impugned decree of specific performance was modified in plaintiff's favour subject to payment of remaining sale price in one month. [Pp. 655 & 656] A, B, C & D
PLD 2003 SC 430, 2002 CLC 1578, 2003 SCMR 953, 1998 CLC 55, 1998 MLD 536, 2000 MLD 251 & 1996 SCMR 575, ref.
Mian Abdul Rauf & Mian Tariq Mehmood Khan, Advocates for Appellant.
Ch. Mushtaq Ahmad Khan, Ch. Zafar Iqbal & Rana Kashif Saleem, Advocates for Respondents.
Date of hearing: 22.10.2008.
Judgment
Syed Hamid Ali Shah, J.--Property known as 25 Kashmir Cottage, Jhika Gali Murri, measuring 5 kanals, 2 marlas 40 square feet, was sold by appellant, through an agreement to sell dated 5.9.1991 (Ex.P-29). The agreement was subsequently substituted with another agreement dated 11.11.1991 (Ex.P-28). The price of land by virtue of subsequent agreement was enhanced to Rs.63,00,000/- from Rs.62,00,000/-, the earnest money was increased from Rs.5,00,000/- to Rs.20,00,000/- and an amount of Rs. 15,00,000/- was paid in addition to Rs.5,00,000/- towards the earnest money. The property was undemarcated and period for completion of the contract was fixed, as per novated terms of the contract, four months from the date of demarcation. The possession was delivered. The plaintiff also claims that huge amounts were spent on renovation and repair of the property.
The appellant served upon the respondents notice dated 22.01.1992, which was replied by learned counsel for the respondents on 14.03.1992. The communication reflects that both the parties accused each other for non-performance of obligations under the contract. Appellant filed the suit for specific performance on 12.4.1992, while respondents filed the suit for possession, on 19.4.1994. Both suits were consolidated and 14 consolidated issues were framed. Learned trial Court proceeded to record evidence. During the course of recording of the evidence, the appellant lodged F.I.R. No. 16 (Ex.P-24) wherein the respondent was accused of procuring fake demarcation. Respondent assailed the same in Writ Petition No. 1716 of 1996, wherein the quashment of F.I.R. was declined and the writ petition was dismissed, vide order dated 14.11.1994 (Ex.P-22). The matter, thereafter came up before learned Division Bench of this Court in ICA No. 12 of 1997 where the parties agreed to the settlement of dispute amicably. The order dated 26.3.1997 was passed, keeping in view the consensus of the parties, that demarcation of the property be carried out through a Local Commission/Revenue Officer and after the ascertainment of area to the satisfaction of the parties, the suit be decreed according to the terms of the agreement. Despite resolution, the matter was not resolved and order by consensus was again assailed before the Honourable Apex Court in C.P. No. 394/1997. The Honourable Court vide order dated 4.12.1998 refused the grant of leave to appeal and directed the trial Court to carry out demarcation A through an expert and whatever the area is found on spot, the appellant be asked to pay the price thereof, according to the terms of the agreement.
Learned trial Court, keeping in view the directions of this Court and of the Honourable Apex Court, vide order dated 15.5.1997, appointed a Joint Commission comprising of Tehsildar and Haji Muhammad Aslam (Retired) S.D.O Buildings. The Commission was directed to demarcate the property, subject matter of suit and to measure the property failing in the possession of plaintiff and also demarcate and measure the building, subject matter of agreement alongwith the detail of it's occupants. Although Court appointed Joint Commission, but each Local Commissioner submitted his report separately.
The appellant filed written objections, on the reports, as the reports were silent on third point of reference. An additional issue (issue No. 13-A) was framed and evidence of the parties, was recorded in response thereto. Learned Court, vide impugned judgment and decree dated 7.7.1999, decreed the suit for specific performance of the agreement. The plaintiff was directed to pay the balance sale consideration of Rs.43,00,000/- and a penalty of Rs.5000/- per day as damages, as per stipulation of the agreement from 22.6.1992 till the date of payment. Two months' period was granted for payment and in case of non-payment within the /Stipulated period, the suit was deemed as dismissed with forfeiture of earnest money. Suit was treated as suit for possession and decree to that effect was also passed.
The impugned judgment and decree was assailed by both the parties, in these appeals, therefore, this single judgment will dispose of RFA No. 110/1999 titled "Zaki Farooq Vs. Saeed Akhtar Malik etc." and RFA 153/1999 titled "Saeed Akhtar Malik Vs. Zaki Farooq", as both the appeals involve common questions of fact and the law and arose out of the same judgment. The parties will be referred in this judgment according to the parties name, as they appear in RFA No. 109/1999.
Learned counsel for the appellant contended that after compromise before this Court, it was nobody's case that penalty be imposed. Perceiving that question of imposition of penalty was not in issue, the appellant led no evidence in this regard that the imposition of penalty was not in issue and why this point was not agitated in the written arguments, which the parties submitted before the trial Court. It was contended that framing of Issue No. 13-A, rendered all other issues redundant. Learned trial Court has unnecessarily stretched it's jurisdiction and proceeded to decide other issues. Learned counsel went on to argue that the reports as to the demarcation, were not credible and the F.I.R. was lodged regarding the fake demarcation and fresh demarcation was directed by this Court, in the proceedings where question of FIR was in issue. Learned counsel submitted that while passing the impugned decree, learned Court has imposed penalty, ignoring the directions of this Court and also of the Honourable Supreme Court of Pakistan. The respondents have never claimed the penalty and their contest to the suit was rescission of contract and forfeiture of earnest money.
Learned counsel for the respondent (who is also appellant in connected Appeal No. 153/1999) contended that according to the terms of agreement to sell (Ex.P-28), the penalty for non-performance of the agreement is Rs.5000/- per day and it has rightly been imposed upon the appellant. The land was twice demarcated and the appellant, instead of performing his part of contract, kept the respondents involved in criminal case (Ex.P/24). Transfer fee was deposited vide Ex.P.15, on 27.11.1991. Transfer fee is received in the normal course, when the land sought to be sold, is ascertained and demarcated. The appellant had himself undertaken the responsibility of demarcation of the suit land, according to the clear stipulation in the second agreement to sell (Ex.P-29). It was submitted that appellant was never ready and willing to perform his part of contract. The suit was erroneously decreed in favour of the appellant. The contention was supported by relying upon the cases of "Mst. Amina Bibi Vs. Mudassar Aziz" (PLD 2003 S.C. 430), "Shaukat Ali and 3 others Vs. Javed Qureshi and 5 others" (2002 CLC 1578) and "Haji Abdul Hameed Khan Vs. Ghulam Rabbani" (2003 SCMR 953). Learned counsel added that valid demarcation stands proved through Ex. D-2, Ex. P-18 and Ex. P-19. The property was correctly demarcated, which fact stands established through the reports of Local Commissioners, which transpire that area in occupation of the appellant, is more than the one mentioned in agreements to sell. Learned counsel contended that appellant was in possession of suit land and in order to prolong his possession, he involved the respondents in frivolous litigation. He converted that nature of the property commercial and vendee started earning from the suit property, without paying the balance amount of sale consideration. It was vehemently argued that institution of suit before the lapse of period for completion of sale, establishes the mala fides of the appellant. Learned counsel referred to the statement of witnesses and contended that demarcation dated 22.2.1992 was correct demarcation and appellant's refusal to accept the demarcation, entails no other consequences except rescission of the contract and forfeiture of the earnest money. Learned counsel submitted that it is essential for the vendee to keep the sale consideration ready for payment and sale consideration is required to be in the pocket of vendee to perform his part of contract. Learned counsel, in this regard, referred to the cases of "Mst. Zahida Begum and another vs. Saeed Yousaf Sehikh and another" (1998 CLC 55), "Wali Muhammad vs. Sardar Muhammad" (1998 MLD 536), "Noor Muhammad and another Vs. Muhammad Ishaq and another" (2000 MLD 251) and "Board of Intermediate and Secondary Education, Lahore Vs. Saima Azad" (1996 SCMR 575).
Heard learned counsel for the parties and perused the record.
Issue No. 1 relating to maintainability of the suit, Issue No. 3 relating to mala fides of the plaintiff, Issue No. 4 relating to claim of special costs under Section 35-A and Issue No. 5 relating to cause of action, were not pressed by the plaintiff before the lower Court and were decided accordingly.
Issue No. 2 relating to forfeiture of earnest money of 20 lacs rupees was decided against the plaintiff that if he failed to perform his part of the contract and get the sale-deed executed in his favour in terms of the impugned judgment, the said amount will stand forfeited in favour of the defendants.
Issue No. 6 relating to the enforceability and effectiveness of agreements of sale dated 5.9.1991 (Ex.P-29) and dated 11.11.1991 (Ex.P-28) was decided against the plaintiff on the ground that subsequent agreement did not contain a "superseding clause".
Issues No. 7 & 8 relating to the defendants' liability to get land demarcated before 30.4.1992 were decided in favour of the defendants with the observation/finding that the property was got duly demarcated by the defendants on 22.2.1992, as well as on subsequent dates but the demarcation could not be finalized due to the conduct of the plaintiff in raising unnecessary objections thereto.
Issue No. 9 relating to plaintiffs authority under the agreement to make alternation at the side was decided in favour of the plaintiff.
Issue No. 10 relating to inquiry about the disputed area under actual possession of the plaintiff was answered as 5 kanals 11 marlas and 174 sq. ft.
Issue No. 11 relating to forfeiture of remaining sale price 23 lacs rupees in favour of the plaintiff was decided against the plaintiff on the ground that the property had already been demarcated and the defendants were not at fault.
Issue No. 12 relating to plaintiffs entitlement to the decree for specific performance of the contract was decided in favour of the plaintiff with the condition that he would pay Rs. 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992 when he committed default in the payment of remaining sale price.
Issue No. 13 relating to defendants entitlement to possession of the suit property, was decided with the observation that if the plaintiff failed to pay the remaining sale price of 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992, the defendants would be entitled to possession of suit property.
Additional Issue No. 13-A related to the property of the report of local commission dated 2.10.1997, was decided against the plaintiff after considering his objections thereon.
Findings of learned trial Court on Issues No. 1, 3, 4, 5, 9 and 10 do not require any discussion as the findings are not controverted. Findings on Issues No. 6, 7, & 8 need to be appreciated afresh (re-examined). The learned trial Court found that agreement dated 11.11.1991 had not superseded the earlier agreement dated 5.9.1991 as there was no superseding clause in Ex.P-28. An examination of both the agreements shows that substantial amendments were made in the subsequent agreement of sale dated 11.11.1991 (Ex.P-28) e.g. the amount of sale price was increased by Rs. one lac; the time frame for implementation of the agreement was changed and its performance was made conditional on demarcation, of the sold property to be carried out at the responsibility of the defendants. The vendee was also made liable to pay a penalty of 5 thousand rupees per day if he failed to make payment of the remaining sale price till the fixed date. The date of performance of the contract by the plaintiff/buyer was to start from the date of completion of demarcation. By all standards the subsequent agreement of sale dated 11.11.1991 had substituted the earlier contract dated 5.9.1991 and it had effectively novated the first agreement of sale, in terms of Section 62 of the Contract Act, 1872. Accordingly the rights of the parties are governed by the subsequent agreement of sale Ex.P-28.
The period of 4 (four) months was fixed for the execution of sale-deed from the date of execution of the agreement of sale i.e. 11.11.1991. However, Ex.P-28 also mandated that the seller was bound to get the property demarcated during this period and that the period for execution of sale-deed would be calculated from the date when the demarcation of the property in dispute, was completed. Learned trial Court in its findings on Issues No. 7 and 8 observed that the defendants/sellers had in fact got the property demarcated on 22.2.1992 and the sale therefore, had to be completed before 30.4.1992, but the plaintiff unnecessary objections to avoid and delay payment of the balance amount of consideration and finally filed the present suit on 12.4.1992, even before the date which was fixed for finalization of demarcation i.e. 30.4.1992. Learned Court while reaching the conclusions had ignored subsequent later proceedings in this case.
While the civil suit for specific performance was pending and evidence was being recorded, the plaintiff registered a criminal case against the defendants under Sections 420/467/468/471/109 PPC read with Section 5 of the Prevention of Corruption Act, 1947 at ACE Rawalpindi vide FIR No. 16 dated 3.3.1996 alleging that demarcation carried out at the behest of the defendants was fictitious. A writ petition was filed for quashing of the FIR which was dismissed. An Intra Court Appeal was filed against the dismissal order of the Honourable Single Bench. The Intra Court Appeal was disposed off vide order dated 23.3.1991 with the following observation:
"Both the parties desired in the course of hearing of appeals that controversy between them be determined for good, and for that it has been offered by both the parties that they are willing to abide by the terms of the agreement to sell already arrived at between the parties. In the larger interest of the parties we are inclined to direct the learned Civil Judge who is seized of the civil suit for specific performance of contract between the parties to have demarcation of the property carried out through a local commission/Revenue Officer and after the area is ascertained to the satisfaction of the parties, the suit will be decreed in accordance with law on the terms incorporated in agreement to sell between the parties. The civil suit shall be disposed of positively by 30.4.1997.
"The perusal of this para discloses that the learned Civil Judge who is seized of the civil, suit between the parties has been directed to carry out the demarcation through an expert and whatever area out of the disputed land is found on the spot the petitioner should pay its price in accordance with the terms in the agreement to sell and the civil suit should then be decreed in accordance with law keeping in view the stipulations in the agreement. We feel that no criminal liability arises, in the matter and the grievance of the petitioner can be redressed in accordance with law. We find no legal flaw in the impugned. order as no offence is constituted on the admitted factual aspect of the case as narrated above. Leave is refused and the petition is dismissed."
The competing claims of the parties, their respective claims under the agreement and contractual obligations, are required to be determined in the light of above decisions. No departure from the judgments/orders dated 23.3.1991 and 4.12.1998 is legally permissible.
Proceeding further in the matter, in pursuance of the order of the High Court, learned Senior Civil Judge, Rawalpindi, through his order dated 15.5.1997 constituted a local commission comprising of Tehsildar, Revenue Murree and Haji Muhammad Aslam, Retired SDO Building to demarcate the suit property. The relevant, portion of the order of learned Senior Civil Judge is reproduced below:
"The parties have been allowed an opportunity to nominate some commission unanimously, but they could not succeed: Since land and construction both have to be measured so, for causing demarcation of suit property, I issue a joint commission to the Tehsildar, Revenue Murree alongwith Haji Muhammad Aslam, Retired SDO Building for the following reference:--
(i) To demarcate the property, subject matter of agreement to sell dated 5.9.1991.
(ii) To demarcate and measure the property now falling in the plaintiff s custody, (iii) To demarcate and measure the building existing in land subject matter of the agreement to sell dated 5.9.1991 alongwith their occupants.
The Commissions will cause demarcation on a date and time communicated to the parties through their counsel, telegraphically, as well through Agency of this Court and they may seek assistance of revenue and Municipal staff, if they so desired. The commissions may also get assistance from the documents to be produced by the parties, if any, and they would make reference to these documents in their report. Fee of commissions is fixed at Rs.5000/- each to be shared by the parties equally and to be deposited into Court within seven days."
Subsequently the plaintiff moved another application and through order dated 14.6.1997, the earlier order of demarcation was amended so as to include in Para No. 2 of the reference, mention of agreements dated 5.9.1991 and 11.11.1991 with direction to read them collectively for purposes of demarcation. The report of Commission was submitted on 21.10.1997 which was objected upon by the plaintiff through written objections. The learned trial Court framed Issue No. 13-A to be decided alongwith other issues to resolve the objections of the plaintiff.
We are of the view that the order dated 26.3.1997 passed by the High Court in Intra Court Appeal was a sequel to the "desire" of the parties to have the controversy determined "for good". In response to their desire, the High Court directed, the trial Court to arrange demarcation of property in dispute. The order of the High Court was approved by the Honourable Supreme Court and both the parties were estopped by their conduct as well as by the judgment of the Honourable Courts to back out from their commitment made in the Court. In any case the judgment of the Honourable High Court and the Supreme Court had attained finality and are binding on the parties. The commitment of the parties before the Honourable High Court had altered Clause No. 2 of the agreement of sale dated 11.11.1991 and previous demarcations, if any, were of no consequence. Since the parties had agreed on fresh demarcation, the penalty clause connected with agreement of sale-deed dated 11.11.1991 also ceased to exist.
According to the report of the Local Commission an area of 5 kanals 11 marlas and 174 sq. ft is found in possession of the plaintiff. We have gone through the objections raised by the plaintiff on the demarcation report dated 2.10.199. These are mostly technical in nature and it has not been alleged or claimed that the plaintiff is in possession of lesser area than the one shown in the report. The plaintiff who appeared as a witness in support of his claim under Issue No. 13-A also did not allege that the area transferred to him was less than the area shown in the demarcation report. The demarcation report dated 12.11.1997 is coupled with a detailed site-plan, which shows the area of the suit property is 5 kanals 11 marlas and 174. sq ft. According to Ex.P-28 the plaintiff/buyer is liable to make payment of that area only which is found to be in his possession after demarcation and in the event if the area falls short, an amount at the rate of rupees 56,426/- per marla is to be deducted for the lesser area found in his possession. The Hon'ble Supreme Court in its order dated 4.12.1998 had also confirmed this aspect of the agreement. The penalty clause could have been invoked, if the parties had stuck to their original stance, under the agreements to sell. Parties subsequently changed their stance, agreed for fresh demarcation and completion of sale on the basis of demarcation through commission. The performance of agreement was made subject to fresh demarcation by mutual consent. The right to seek imposition of the penalty, stood waived when the Honourable Apex Court directed for carrying the demarcation through commission and ascertainment of the area to the satisfaction of the parties. The parties which persuade a Court to decide the matter his in a particular manner, cannot subsequently deviate from it and the controversy has to be decided in that manner. Parties curtailed their dispute to demarcation through commission and payment of sale consideration on the basis of area ascertained by the commission. The agreement becomes capable of performance when uncertainty or vagueness in the agreement is removed or made certain. When the parties left it to the decision of commission to ascertain the area, the contract becomes capable of performance after determination of land subject matter of the sale. The imposition of penalty will offend mutual consent of the parties and also the decision of this Court and the Honourable Apex Court. We are, therefore, not inclined to accept the pleas of the plaintiff, and are of the view that he has A been transferred possession of 5 kanals 11 marlas 174 sq. ft. He is, therefore, liable to make payment of the remaining sale price i.e. 43 lacs rupees. We are also of the view that as the agreement dated 11.11.1991 Ex.P-28 has been novated due to commitment of the parties before the Honourable High Court and the question of forfeiture of the earnest money or the remaining sale price in favour of either of the parties does not arise. We do not confirm the findings of the learned Court on Issues No. 2 and 11.
In the sequel of above discussion, we modify the judgment and decree of the learned trial Court to the effect that decree for specific performance of contract regarding the suit property is passed in favour of the plaintiff subject to payment of the remaining sale price of 43 lacs rupees within a month on receipt of false certified copy of the judgment failing which the suit shall be deemed to have been dismissed. If the remaining sale price is paid by the plaintiff till the fixed date, the suit of the respondents shall stand dismissed. If the amount is not paid till the fixed date the suit of the respondents shall be deemed to have been decided in their favour and decree shall follow accordingly.
(J.R.) Order accordingly.
PLJ 2009 Lahore 647 (DB)
Present: Syed Hamid Ali Shah & M. A. Zafar, JJ.
ZAKI FAROOQ--Appellant
versus
SAEED AKHTAR etc.--Respondents
R.F.A. No. 109 of 1999, heard on 22.10.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O. XXVI, R. 9--Suit for specific performance of agreement--Demarcation of disputed land through local commission--Validity--According to the agreement plaintiff/buyer was liable to make payment of that area only which was found to be in his possession after demarcation, otherwise he was liable to penalty--Subsequently parties changed their stance in the previous round of litigation before High Court where they agreed for fresh demarcation and completion of sale on the basis of such demarcation though Local Commission--Right to seek imposition of penalty stood waived when honourable apex Court directed for carrying the demarcation and ascertainment of the area to the satisfaction of the parties--Held: No question of forfeiture of earnest money or the remaining sale price in favour of their party was to arise--Impugned decree of specific performance was modified in plaintiff's favour subject to payment of remaining sale price in one month. [Pp. 655 & 656] A, B, C & D
PLD 2003 SC 430, 2002 CLC 1578, 2003 SCMR 953, 1998 CLC 55, 1998 MLD 536, 2000 MLD 251 & 1996 SCMR 575, ref.
Mian Abdul Rauf & Mian Tariq Mehmood Khan, Advocates for Appellant.
Ch. Mushtaq Ahmad Khan, Ch. Zafar Iqbal & Rana Kashif Saleem, Advocates for Respondents.
Date of hearing: 22.10.2008.
Judgment
Syed Hamid Ali Shah, J.--Property known as 25 Kashmir Cottage, Jhika Gali Murri, measuring 5 kanals, 2 marlas 40 square feet, was sold by appellant, through an agreement to sell dated 5.9.1991 (Ex.P-29). The agreement was subsequently substituted with another agreement dated 11.11.1991 (Ex.P-28). The price of land by virtue of subsequent agreement was enhanced to Rs.63,00,000/- from Rs.62,00,000/-, the earnest money was increased from Rs.5,00,000/- to Rs.20,00,000/- and an amount of Rs. 15,00,000/- was paid in addition to Rs.5,00,000/- towards the earnest money. The property was undemarcated and period for completion of the contract was fixed, as per novated terms of the contract, four months from the date of demarcation. The possession was delivered. The plaintiff also claims that huge amounts were spent on renovation and repair of the property.
The appellant served upon the respondents notice dated 22.01.1992, which was replied by learned counsel for the respondents on 14.03.1992. The communication reflects that both the parties accused each other for non-performance of obligations under the contract. Appellant filed the suit for specific performance on 12.4.1992, while respondents filed the suit for possession, on 19.4.1994. Both suits were consolidated and 14 consolidated issues were framed. Learned trial Court proceeded to record evidence. During the course of recording of the evidence, the appellant lodged F.I.R. No. 16 (Ex.P-24) wherein the respondent was accused of procuring fake demarcation. Respondent assailed the same in Writ Petition No. 1716 of 1996, wherein the quashment of F.I.R. was declined and the writ petition was dismissed, vide order dated 14.11.1994 (Ex.P-22). The matter, thereafter came up before learned Division Bench of this Court in ICA No. 12 of 1997 where the parties agreed to the settlement of dispute amicably. The order dated 26.3.1997 was passed, keeping in view the consensus of the parties, that demarcation of the property be carried out through a Local Commission/Revenue Officer and after the ascertainment of area to the satisfaction of the parties, the suit be decreed according to the terms of the agreement. Despite resolution, the matter was not resolved and order by consensus was again assailed before the Honourable Apex Court in C.P. No. 394/1997. The Honourable Court vide order dated 4.12.1998 refused the grant of leave to appeal and directed the trial Court to carry out demarcation A through an expert and whatever the area is found on spot, the appellant be asked to pay the price thereof, according to the terms of the agreement.
Learned trial Court, keeping in view the directions of this Court and of the Honourable Apex Court, vide order dated 15.5.1997, appointed a Joint Commission comprising of Tehsildar and Haji Muhammad Aslam (Retired) S.D.O Buildings. The Commission was directed to demarcate the property, subject matter of suit and to measure the property failing in the possession of plaintiff and also demarcate and measure the building, subject matter of agreement alongwith the detail of it's occupants. Although Court appointed Joint Commission, but each Local Commissioner submitted his report separately.
The appellant filed written objections, on the reports, as the reports were silent on third point of reference. An additional issue (issue No. 13-A) was framed and evidence of the parties, was recorded in response thereto. Learned Court, vide impugned judgment and decree dated 7.7.1999, decreed the suit for specific performance of the agreement. The plaintiff was directed to pay the balance sale consideration of Rs.43,00,000/- and a penalty of Rs.5000/- per day as damages, as per stipulation of the agreement from 22.6.1992 till the date of payment. Two months' period was granted for payment and in case of non-payment within the /Stipulated period, the suit was deemed as dismissed with forfeiture of earnest money. Suit was treated as suit for possession and decree to that effect was also passed.
The impugned judgment and decree was assailed by both the parties, in these appeals, therefore, this single judgment will dispose of RFA No. 110/1999 titled "Zaki Farooq Vs. Saeed Akhtar Malik etc." and RFA 153/1999 titled "Saeed Akhtar Malik Vs. Zaki Farooq", as both the appeals involve common questions of fact and the law and arose out of the same judgment. The parties will be referred in this judgment according to the parties name, as they appear in RFA No. 109/1999.
Learned counsel for the appellant contended that after compromise before this Court, it was nobody's case that penalty be imposed. Perceiving that question of imposition of penalty was not in issue, the appellant led no evidence in this regard that the imposition of penalty was not in issue and why this point was not agitated in the written arguments, which the parties submitted before the trial Court. It was contended that framing of Issue No. 13-A, rendered all other issues redundant. Learned trial Court has unnecessarily stretched it's jurisdiction and proceeded to decide other issues. Learned counsel went on to argue that the reports as to the demarcation, were not credible and the F.I.R. was lodged regarding the fake demarcation and fresh demarcation was directed by this Court, in the proceedings where question of FIR was in issue. Learned counsel submitted that while passing the impugned decree, learned Court has imposed penalty, ignoring the directions of this Court and also of the Honourable Supreme Court of Pakistan. The respondents have never claimed the penalty and their contest to the suit was rescission of contract and forfeiture of earnest money.
Learned counsel for the respondent (who is also appellant in connected Appeal No. 153/1999) contended that according to the terms of agreement to sell (Ex.P-28), the penalty for non-performance of the agreement is Rs.5000/- per day and it has rightly been imposed upon the appellant. The land was twice demarcated and the appellant, instead of performing his part of contract, kept the respondents involved in criminal case (Ex.P/24). Transfer fee was deposited vide Ex.P.15, on 27.11.1991. Transfer fee is received in the normal course, when the land sought to be sold, is ascertained and demarcated. The appellant had himself undertaken the responsibility of demarcation of the suit land, according to the clear stipulation in the second agreement to sell (Ex.P-29). It was submitted that appellant was never ready and willing to perform his part of contract. The suit was erroneously decreed in favour of the appellant. The contention was supported by relying upon the cases of "Mst. Amina Bibi Vs. Mudassar Aziz" (PLD 2003 S.C. 430), "Shaukat Ali and 3 others Vs. Javed Qureshi and 5 others" (2002 CLC 1578) and "Haji Abdul Hameed Khan Vs. Ghulam Rabbani" (2003 SCMR 953). Learned counsel added that valid demarcation stands proved through Ex. D-2, Ex. P-18 and Ex. P-19. The property was correctly demarcated, which fact stands established through the reports of Local Commissioners, which transpire that area in occupation of the appellant, is more than the one mentioned in agreements to sell. Learned counsel contended that appellant was in possession of suit land and in order to prolong his possession, he involved the respondents in frivolous litigation. He converted that nature of the property commercial and vendee started earning from the suit property, without paying the balance amount of sale consideration. It was vehemently argued that institution of suit before the lapse of period for completion of sale, establishes the mala fides of the appellant. Learned counsel referred to the statement of witnesses and contended that demarcation dated 22.2.1992 was correct demarcation and appellant's refusal to accept the demarcation, entails no other consequences except rescission of the contract and forfeiture of the earnest money. Learned counsel submitted that it is essential for the vendee to keep the sale consideration ready for payment and sale consideration is required to be in the pocket of vendee to perform his part of contract. Learned counsel, in this regard, referred to the cases of "Mst. Zahida Begum and another vs. Saeed Yousaf Sehikh and another" (1998 CLC 55), "Wali Muhammad vs. Sardar Muhammad" (1998 MLD 536), "Noor Muhammad and another Vs. Muhammad Ishaq and another" (2000 MLD 251) and "Board of Intermediate and Secondary Education, Lahore Vs. Saima Azad" (1996 SCMR 575).
Heard learned counsel for the parties and perused the record.
Issue No. 1 relating to maintainability of the suit, Issue No. 3 relating to mala fides of the plaintiff, Issue No. 4 relating to claim of special costs under Section 35-A and Issue No. 5 relating to cause of action, were not pressed by the plaintiff before the lower Court and were decided accordingly.
Issue No. 2 relating to forfeiture of earnest money of 20 lacs rupees was decided against the plaintiff that if he failed to perform his part of the contract and get the sale-deed executed in his favour in terms of the impugned judgment, the said amount will stand forfeited in favour of the defendants.
Issue No. 6 relating to the enforceability and effectiveness of agreements of sale dated 5.9.1991 (Ex.P-29) and dated 11.11.1991 (Ex.P-28) was decided against the plaintiff on the ground that subsequent agreement did not contain a "superseding clause".
Issues No. 7 & 8 relating to the defendants' liability to get land demarcated before 30.4.1992 were decided in favour of the defendants with the observation/finding that the property was got duly demarcated by the defendants on 22.2.1992, as well as on subsequent dates but the demarcation could not be finalized due to the conduct of the plaintiff in raising unnecessary objections thereto.
Issue No. 9 relating to plaintiffs authority under the agreement to make alternation at the side was decided in favour of the plaintiff.
Issue No. 10 relating to inquiry about the disputed area under actual possession of the plaintiff was answered as 5 kanals 11 marlas and 174 sq. ft.
Issue No. 11 relating to forfeiture of remaining sale price 23 lacs rupees in favour of the plaintiff was decided against the plaintiff on the ground that the property had already been demarcated and the defendants were not at fault.
Issue No. 12 relating to plaintiffs entitlement to the decree for specific performance of the contract was decided in favour of the plaintiff with the condition that he would pay Rs. 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992 when he committed default in the payment of remaining sale price.
Issue No. 13 relating to defendants entitlement to possession of the suit property, was decided with the observation that if the plaintiff failed to pay the remaining sale price of 43 lacs rupees plus 5 thousand rupees per day with effect from 22.6.1992, the defendants would be entitled to possession of suit property.
Additional Issue No. 13-A related to the property of the report of local commission dated 2.10.1997, was decided against the plaintiff after considering his objections thereon.
Findings of learned trial Court on Issues No. 1, 3, 4, 5, 9 and 10 do not require any discussion as the findings are not controverted. Findings on Issues No. 6, 7, & 8 need to be appreciated afresh (re-examined). The learned trial Court found that agreement dated 11.11.1991 had not superseded the earlier agreement dated 5.9.1991 as there was no superseding clause in Ex.P-28. An examination of both the agreements shows that substantial amendments were made in the subsequent agreement of sale dated 11.11.1991 (Ex.P-28) e.g. the amount of sale price was increased by Rs. one lac; the time frame for implementation of the agreement was changed and its performance was made conditional on demarcation, of the sold property to be carried out at the responsibility of the defendants. The vendee was also made liable to pay a penalty of 5 thousand rupees per day if he failed to make payment of the remaining sale price till the fixed date. The date of performance of the contract by the plaintiff/buyer was to start from the date of completion of demarcation. By all standards the subsequent agreement of sale dated 11.11.1991 had substituted the earlier contract dated 5.9.1991 and it had effectively novated the first agreement of sale, in terms of Section 62 of the Contract Act, 1872. Accordingly the rights of the parties are governed by the subsequent agreement of sale Ex.P-28.
The period of 4 (four) months was fixed for the execution of sale-deed from the date of execution of the agreement of sale i.e. 11.11.1991. However, Ex.P-28 also mandated that the seller was bound to get the property demarcated during this period and that the period for execution of sale-deed would be calculated from the date when the demarcation of the property in dispute, was completed. Learned trial Court in its findings on Issues No. 7 and 8 observed that the defendants/sellers had in fact got the property demarcated on 22.2.1992 and the sale therefore, had to be completed before 30.4.1992, but the plaintiff unnecessary objections to avoid and delay payment of the balance amount of consideration and finally filed the present suit on 12.4.1992, even before the date which was fixed for finalization of demarcation i.e. 30.4.1992. Learned Court while reaching the conclusions had ignored subsequent later proceedings in this case.
While the civil suit for specific performance was pending and evidence was being recorded, the plaintiff registered a criminal case against the defendants under Sections 420/467/468/471/109 PPC read with Section 5 of the Prevention of Corruption Act, 1947 at ACE Rawalpindi vide FIR No. 16 dated 3.3.1996 alleging that demarcation carried out at the behest of the defendants was fictitious. A writ petition was filed for quashing of the FIR which was dismissed. An Intra Court Appeal was filed against the dismissal order of the Honourable Single Bench. The Intra Court Appeal was disposed off vide order dated 23.3.1991 with the following observation:
"Both the parties desired in the course of hearing of appeals that controversy between them be determined for good, and for that it has been offered by both the parties that they are willing to abide by the terms of the agreement to sell already arrived at between the parties. In the larger interest of the parties we are inclined to direct the learned Civil Judge who is seized of the civil suit for specific performance of contract between the parties to have demarcation of the property carried out through a local commission/Revenue Officer and after the area is ascertained to the satisfaction of the parties, the suit will be decreed in accordance with law on the terms incorporated in agreement to sell between the parties. The civil suit shall be disposed of positively by 30.4.1997.
"The perusal of this para discloses that the learned Civil Judge who is seized of the civil, suit between the parties has been directed to carry out the demarcation through an expert and whatever area out of the disputed land is found on the spot the petitioner should pay its price in accordance with the terms in the agreement to sell and the civil suit should then be decreed in accordance with law keeping in view the stipulations in the agreement. We feel that no criminal liability arises, in the matter and the grievance of the petitioner can be redressed in accordance with law. We find no legal flaw in the impugned. order as no offence is constituted on the admitted factual aspect of the case as narrated above. Leave is refused and the petition is dismissed."
The competing claims of the parties, their respective claims under the agreement and contractual obligations, are required to be determined in the light of above decisions. No departure from the judgments/orders dated 23.3.1991 and 4.12.1998 is legally permissible.
Proceeding further in the matter, in pursuance of the order of the High Court, learned Senior Civil Judge, Rawalpindi, through his order dated 15.5.1997 constituted a local commission comprising of Tehsildar, Revenue Murree and Haji Muhammad Aslam, Retired SDO Building to demarcate the suit property. The relevant, portion of the order of learned Senior Civil Judge is reproduced below:
"The parties have been allowed an opportunity to nominate some commission unanimously, but they could not succeed: Since land and construction both have to be measured so, for causing demarcation of suit property, I issue a joint commission to the Tehsildar, Revenue Murree alongwith Haji Muhammad Aslam, Retired SDO Building for the following reference:--
(i) To demarcate the property, subject matter of agreement to sell dated 5.9.1991.
(ii) To demarcate and measure the property now falling in the plaintiff s custody, (iii) To demarcate and measure the building existing in land subject matter of the agreement to sell dated 5.9.1991 alongwith their occupants.
The Commissions will cause demarcation on a date and time communicated to the parties through their counsel, telegraphically, as well through Agency of this Court and they may seek assistance of revenue and Municipal staff, if they so desired. The commissions may also get assistance from the documents to be produced by the parties, if any, and they would make reference to these documents in their report. Fee of commissions is fixed at Rs.5000/- each to be shared by the parties equally and to be deposited into Court within seven days."
Subsequently the plaintiff moved another application and through order dated 14.6.1997, the earlier order of demarcation was amended so as to include in Para No. 2 of the reference, mention of agreements dated 5.9.1991 and 11.11.1991 with direction to read them collectively for purposes of demarcation. The report of Commission was submitted on 21.10.1997 which was objected upon by the plaintiff through written objections. The learned trial Court framed Issue No. 13-A to be decided alongwith other issues to resolve the objections of the plaintiff.
We are of the view that the order dated 26.3.1997 passed by the High Court in Intra Court Appeal was a sequel to the "desire" of the parties to have the controversy determined "for good". In response to their desire, the High Court directed, the trial Court to arrange demarcation of property in dispute. The order of the High Court was approved by the Honourable Supreme Court and both the parties were estopped by their conduct as well as by the judgment of the Honourable Courts to back out from their commitment made in the Court. In any case the judgment of the Honourable High Court and the Supreme Court had attained finality and are binding on the parties. The commitment of the parties before the Honourable High Court had altered Clause No. 2 of the agreement of sale dated 11.11.1991 and previous demarcations, if any, were of no consequence. Since the parties had agreed on fresh demarcation, the penalty clause connected with agreement of sale-deed dated 11.11.1991 also ceased to exist.
According to the report of the Local Commission an area of 5 kanals 11 marlas and 174 sq. ft is found in possession of the plaintiff. We have gone through the objections raised by the plaintiff on the demarcation report dated 2.10.199. These are mostly technical in nature and it has not been alleged or claimed that the plaintiff is in possession of lesser area than the one shown in the report. The plaintiff who appeared as a witness in support of his claim under Issue No. 13-A also did not allege that the area transferred to him was less than the area shown in the demarcation report. The demarcation report dated 12.11.1997 is coupled with a detailed site-plan, which shows the area of the suit property is 5 kanals 11 marlas and 174. sq ft. According to Ex.P-28 the plaintiff/buyer is liable to make payment of that area only which is found to be in his possession after demarcation and in the event if the area falls short, an amount at the rate of rupees 56,426/- per marla is to be deducted for the lesser area found in his possession. The Hon'ble Supreme Court in its order dated 4.12.1998 had also confirmed this aspect of the agreement. The penalty clause could have been invoked, if the parties had stuck to their original stance, under the agreements to sell. Parties subsequently changed their stance, agreed for fresh demarcation and completion of sale on the basis of demarcation through commission. The performance of agreement was made subject to fresh demarcation by mutual consent. The right to seek imposition of the penalty, stood waived when the Honourable Apex Court directed for carrying the demarcation through commission and ascertainment of the area to the satisfaction of the parties. The parties which persuade a Court to decide the matter his in a particular manner, cannot subsequently deviate from it and the controversy has to be decided in that manner. Parties curtailed their dispute to demarcation through commission and payment of sale consideration on the basis of area ascertained by the commission. The agreement becomes capable of performance when uncertainty or vagueness in the agreement is removed or made certain. When the parties left it to the decision of commission to ascertain the area, the contract becomes capable of performance after determination of land subject matter of the sale. The imposition of penalty will offend mutual consent of the parties and also the decision of this Court and the Honourable Apex Court. We are, therefore, not inclined to accept the pleas of the plaintiff, and are of the view that he has A been transferred possession of 5 kanals 11 marlas 174 sq. ft. He is, therefore, liable to make payment of the remaining sale price i.e. 43 lacs rupees. We are also of the view that as the agreement dated 11.11.1991 Ex.P-28 has been novated due to commitment of the parties before the Honourable High Court and the question of forfeiture of the earnest money or the remaining sale price in favour of either of the parties does not arise. We do not confirm the findings of the learned Court on Issues No. 2 and 11.
In the sequel of above discussion, we modify the judgment and decree of the learned trial Court to the effect that decree for specific performance of contract regarding the suit property is passed in favour of the plaintiff subject to payment of the remaining sale price of 43 lacs rupees within a month on receipt of false certified copy of the judgment failing which the suit shall be deemed to have been dismissed. If the remaining sale price is paid by the plaintiff till the fixed date, the suit of the respondents shall stand dismissed. If the amount is not paid till the fixed date the suit of the respondents shall be deemed to have been decided in their favour and decree shall follow accordingly.
(J.R.) Order accordingly.
PLJ 2009 Lahore 656
Present: Kazim Ali Malik, J.
MUHAMMAD AKHTAR--Petitioner
versus
STATE through Circle Officer ACE, Lahore--Respondent
W.P. No. 4661 of 2009, heard on 18.3.2009.
Constitution of Pakistan, 1973—
----Art. 199--Petitioner filed application under Sections 249-A and 265-K, Cr.P.C. for his acquittal before the trial Court--Dismissal of--Constitutional petition--Validity--Framing of charge does not stand in way of the petitioner to seek constitutional interference by High Court, because no such absolute or invariable rule of law exists--It depends upon the facts and circumstances of each case whether to allow the proceedings to continue or to drop the same. [P. 661] A
Criminal Procedure Code, 1898 (V of 1898)—
----S. 190--Trial Court takes cognizance of the offence and not of the challaned accused--The expression of taking cognizance of the offence has not been defined in the code--However, in broad and literal sense coupled with case law on the subject, taking cognizance of an offence means taking notice of the offence which does not include intention of the Court to initiate judicial proceedings against those challaned accused against whom there is no material which could have been made the basis of charge sheet--Sections 190(1)(b) and 265-D of the Criminal Procedure Code, 1898 would show that not only the report u/S. 173 or the F.I.R. but also all the documents and statements are to be taken into consideration in order to form an opinion as to whether there are sufficient grounds for proceedings with the trial of the accused--Object of framing the charge is to make the accused aware of the material on the basis of which allegations are made against him--When the Court take cognizance of the offence, it become seized of the entire case in other words, the Court is possessed with jurisdiction over all the persons involved in the commission of the offence whether challaned or not under this legal principle the Court while taking cognizance of the offence is empowered u/S. 190(1)(c) of the Code to summon all those persons against whom there is material in support of the allegation irrespective of the fact whether or not their names are mentioned in the list of accused persons. [Pp. 662, 663 & 664] B, C & D
Criminal Judicial System--
----System is standing on three pillars i.e. investigation, prosecution, and trial for smooth functioning of the system these three pillars should be appropriately balanced with their respective allotted sphere--Powers of police to investigate cognizable or non-cognizable offence have been given in Chapter XIV of the Code--Investigation consists of inspection of spot, ascertainment of facts and circumstances and collection of evidence coupled with apprehension of accused--Opinion of the investigating officer qua guilt or innocence of the accused is alien to his allotted sphere--Prosecution means to bring on record material falling with in the definition of evidence in support of the charge--Trial means judicial determination of guilt or innocence of the accused--Petition allowed. [P. 655] E
Mr. Khalid Javed Saleemi, Advocate for Petitioner.
Mr. Hashim Sabar Raja, A.A.G. for State.
Date of hearing: 18.3.2009.
Judgment
To start with, I am pained to say that case F.I.R. No. 25 of 2006 registered with Police Station Anti Corruption Establishment, Lahore to the extent of Muhammad Akhtar, Superintending Engineer, Irrigation Department/petitioner, giving rise to this Constitutional petition at his instance, is a text book example of perverted sense of authority which drove and persuaded the Circle Officer, Anti Corruption Establishment, Lahore/Investigating Officer to challan the petitioner to Court for an offence which he did not commit.
The petitioner sought his acquittal under Section 249-A read with 265-K of the Code of Criminal Procedure, 1898, (hereinafter to be referred as Code) unsuccessfully. His contention that it was beyond the authority of the investigator to transpose a prosecution witness from the list of P.Ws. to the list of accused persons, did not find favour with the learned trial Court.
The prosecution case, in brief, is that the Government acquired private lands for construction of Ladhe Ke Drain. The X.E.N. Drainage, Lahore/Drawing and Disbursing Officer (challaned accused) received compensation amount for disbursement to the owners of above said lands. The S.D.O. Drainage and a few other lowly ranked officials of the department (challaned accused persons) disbursed the compensation amount to four persons; namely, Rehmat Ali, Akber Ali, Yaqoob Ali and Muhammad Aslam (proclaimed offenders), which was due for payment to 27 land owners. Authority letters on the basis of which the compensation amount had been disbursed to the above said four absconders were found fake, bogus and forged. On receipt of a complaint about embezzlement of public money, the Chief Engineer, Irrigation Department, Lahore Zone (Authority, on the administrative side) deputed the petitioner-Superintending Engineer to dig out the facts and submit a comprehensive report. In compliance with the order of the Authority, the petitioner visited the spot, examined the land owners, collected other relevant material and submitted a detailed report to the following effect:--
(i) An amount of Rs. 28,59,000/- due for payment to 27 land owners had been disbursed to the four absconders on the basis of fake and bogus authority letters.
(ii) Some compensation amount had been received by the above said offenders in the name of those land owners whose land had not been used for construction of the drain.
(iii) 11 land owners had completely been deprived of their share in the compensation amount.
(iv) Three land owners were paid a meager amount much less than their entitlement.
(v) The revenue Patwari and the Gardawar prepared list of affectees against the record. Arshad Mahmood, Sub-Engineer River Survey Sub-Division, Lahore did not verify genuineness of the above said list of owners. Apart from them, Kashif Hussain, Oath Commissioner, Saif Ullah Khan Khalid, Notary Public, Ch. Muhammad Younis Habib, Nazim Union Council and Ch. Akber Didar Sindhu, Member Distt. Council, Kasur contributed towards fabrication and preparation of above said bogus authority letters.
After coming to the above said conclusions, the petition/Inquiry Officer proposed a thorough probe by a committee of three senior officers of Irrigation, Police and Revenue Departments.
On 18.6.2005 Muhammad Yousaf, X.E.N. Drainage, Lahore Division/Drawing and Disbursing Officer (challaned accused) got registered case F.I.R. No. 139 of 2005 with Police Station Mustafabad, Lahore with an allegation that he had learnt from Muhammad Sarwar, Accounts Clerk that his subordinates had withdrawn an amount of Rs.50,46,637/- entrusted to him for payment to the land owners in lieu of the lands used for construction of Ladhe Ke drain, with his forged signatures. He further alleged that the cheques had been stolen away from the custody of Nawab Baig, Revenue clerk and got encashed in connivance with the officials of Irrigation Department and Treasury Office, Lahore. Under an order dated 6.3.2006 of this Court investigation of the said case was withdrawn from the local police and made over to the Anti Corruption Establishment, Lahore. Although there was no bar to investigate the case already registered with the local police, yet the Circle Officer, A.C.E. Lahore in his wisdom registered another case on 6.3.2006 at the instance of the X.E.N. Drainage with an allegation in line with the case F.I.R. No. 139/2005, Police Station Mustafa Abad, Lahore.
On 14.4.2006 Kh. Muhammad Naeem, a busy body, got registered case F.I.R. No. 25 of 2006 with Police Station Anti Corruption Establishment, Lahore with an allegation, in brief, that Muhammad Yousaf, X.E.N., Liaqat Ali, S.D.O., Naqi Hassan, S.D.C. and Arshad, Sub-Engineer had misappropriated compensation amount in lacs due for payment to the land owners on the basis of fake documents. In this way three cases were registered; one with the local police and two with the Anti Corruption Establishment regarding the same incident. The investigating officer dropped the proceedings in the cases registered at the instance of Muhammad Yousaf, X.E.N. after having disbelieved his above stance. During the course of investigation of the case in hand, the land owners whose land had been used for construction of the drain also blamed the X.E.N. Irrigation and his subordinates for misappropriation of compensation amount. It so happened that the investigating officer summoned Muhammad Akhtar, Superintending Engineer/Inquiry Officer/petitioner to the office of Deputy Director General, Anti Corruption Punjab, Lahore on 2.6.2006 and recovered Rs.5,00,000/- by means of a recovery memo attested by two Constables of the Establishment. The investigating officer prepared a supplementary challan placing the petitioner in the column of accused persons and sent up to Court to stand trial alongwith the X.E.N., the S.D.O. and the other petty officials of the Irrigation Department. In this way the star prosecution witness had been made principal accused.
At the inception of trial, the learned Special Judge, Anti Corruption, Lahore charge sheeted the petitioner and the other accused persons under Sections 468/471/420/409 read with 109 of Pakistan Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947. The petitioner made an application under Section 249-A/265-K of the Cr.P.C. before the learned trial Court for his acquittal as mentioned above, which was dismissed. Hence, the instant petition.
I am fully aware that scrutiny and analysis of the evidence/material with the yardstick of the trial Court is neither permissible nor desirable while exercising Constitutional jurisdiction or inherent powers. I, therefore, find it advantageous to resolve and determine the points in issue in the light of the following facts of the case, which are not in dispute or disputable:
(a) Compensation amount in-question had been entrusted to Muhammad Yousaf, X.E.N. Drainage, Lahore/Drawing and Disbursing Officer (challaned accused).
(b) The S.D.O. Drainage and a few other lowly ranked officials of the department (challaned accused persons) disbursed the compensation amount partially to only four persons; namely, Rehmat Ali, Akber Ali, Yaqoob Ali and Muhammad Aslam (proclaimed offenders), which was due for payment to 27 land owners whose land had been used for construction of the drain.
(c) The above named accused officials made payment to the four absconders on the basis of fake forged and bogus authority letters.
(d) The petitioner Superintending Engineer had nothing to do with the entrustment or disbursement of the disputed money.
(e) Under an order of the Chief Engineer, Irrigation Department (Authority on administrative side), the petitioner-Superintending Engineer conducted an inquiry at the spot, examined the land owners, collected relevant material and then submitted a comprehensive report (Annex-F) to the Authority with a recommendation for a detailed inquiry and thorough probe.
(f) The investigating officer collected a copy of the inquiry report, (Annex-F) but withheld the same while submitting challan in the Court. However, the same is available on the police file.
(g) The land owners did not utter a single word against the petitioner.
When confronted with the above noticed state of record and undisputed facts, the learned Asstt. Advocate General very rightly conceded that for successful prosecution of the officials of Irrigation Department to whom the compensation amount had been entrusted for disbursement, it was must for the investigating agency to cite the petitioner as prosecution witness enabling him to prove the comprehensive inquiry report by means of which he unearthed fraud, forgery and misappropriation of public money on administrative side. He, however, tried to argue that after framing of charge, the petitioner was estopped to invoke constitutional jurisdiction of this Court but could not point out any hard and fast rule in support of his contention. I would like to say at this very juncture that framing of charge does not stand in way of the petitioner to seek Constitutional interference by this Court because no such absolute or invariable rule of law exists. It depends upon the facts and circumstances of each case whether to allow the proceedings to continue or to drop the same.
Keeping in view the above discussed state of record, following three important legal questions have arisen in the case in hand, for determination:
(i) Whether the trial Court takes cognizance of the offence or of the offender?
(ii) Whether the trial Court is required to frame the charge on the basis of collected material falling within the definition of evidence or in the light of result of investigation set up in the final report under Section 173 Cr.P.C.?
(iii) Whether framing of charge in a criminal case debars this Court to quash the proceedings initiated against the accused arbitrarily and against the record?
Section 190:
Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence:
(a) ................
(b) upon a report in writing of such facts made by any police-officer;
(c) ................
It is manifest from a bare perusal of the above quoted provision of law that the trial Court takes cognizance of the offence and not of the challaned accused. The expression of taking cognizance of the offence has not been defined in the Code. However, in broad and literal sense coupled with case law on the subject, taking cognizance of an offence means taking notice of the offence which does not include intention of the Court to initiate judicial proceedings against those challaned accused against whom there is no material which could have been made the basis of charge sheet. In the case Waqar Ilyas and another v. The State through Federal Investigating Agency Commercial Banking Cell, Quetta (PLD 1993 Quetta 49) it has been ruled that the trial Court takes cognizance of the offence and not of the offender. It is settled proposition of law that the trial Judge before whom a final report under Section 173 read with Section 170 or 169 of the Code has been laid, is not bound to follow opinion of the investigating officer in order to determine as to whether or not there are sufficient grounds to proceed against the accused. While taking cognizance of the offence the trial Court is required to form an independent opinion on the basis of record without being influenced by an opinion of the investigator because the same is neither relevant nor admissible in evidence. Under this very absolute legal principle which is subject to no exception, the learned trial Court is competent to take cognizance of the offence in a case in which the investigator submits a negative/cancellation report in terms of Section 173 read with Section 169 Cr.P.C. Here I would say without fear of contradiction that the case in hand qua the role of the petitioner does not qualify the above said legal test. The learned trial Judge charge-sheeted the petitioner mechanically and without application of judicial and legal mind probably under the wrong impression that he was bound to charge sheet the petitioner as he had been challaned by the investigator.
The charge sheet in-question does not disclose as to how and in what manner the petitioner committed the offence of fraud, cheating, forgery and corruption. The learned trial Court drafted the charge sheet in vague terms in utter disregard of the statutory provisions governing the subject contained in Chapter XX of the Code. This is a matter of record that not a single penny out of the misappropriated amount had been entrusted to the petitioner. The documents collected by the investigator clearly indicate that the amount in-question had been entrusted to the X.E.N. and the same had been disbursed dishonestly by his subordinates. I have already observed in the preceding paragraphs that before registration of the case in hand the accused X.E.N. got registered two cases; one with the local police and the other with the Anti Corruption Establishment with an allegation that his subordinates with the active support of the treasury office had withdrawn the amount in-question with his forged signatures. Admittedly, the petitioner is/was not a party to the unholy transactions. The learned A.A.G. halfheartedly attempted to argue that rupees five lacs had admittedly been recovered from the petitioner, which had been treated as tainted money while framing the charge under Section 409 P.P.C. against the petitioner. I could not persuade myself to attach any importance to the argument for the simple reason that the compensation amount in-question was neither entrusted to the petitioner nor disbursed by him to the land owners rightly or wrongly. The petitioner was an inquiry officer, who unearthed fraud, forgery, cheating and embezzlement of public money by means of his report, referred above. In this background it is not difficult to say that the investigating officer extorted rupees five lacs from the petitioner through harassment or blackmailing. Extortion of Rs. 5,00,000/- from the petitioner must have featured on the investigator's performance sheet as a crime dealt with successfully and worthy of place in the category of job well done. Showing fake and artificial performance to the superiors by hook or crook is a traditional police officer's perspective, which cannot be and should not be endorsed or approved of. The learned Law Officer has not pointed out an iota of direct or indirect evidence which may provide a basis to infer that the amount recovered or extorted from the petitioner was tainted money. Had the learned trial Court examined the entire record while taking cognizance of the offence, the petitioner would not have been charge sheeted in vague terms. I, therefore, conclude that the learned trial Court disregarded and violated the basic legal principle that the Court takes cognizance of the offence and not of the challaned accused.
A combined examination of Sections 190(1)(b) 265-D of the Criminal Procedure Code, 1898 would show that not only the report under Section 173 or the F.I.R. but also all the documents and statements are to be taken into consideration in order to form an opinion as to whether there are sufficient grounds for proceeding with the trial of the accused. The object of framing the charge is to make the accused aware of the material on the basis of which allegations are made against him. In fact the petitioner accused remained ignorant about the basis of allegation as the learned trial Court framed a vague charge sheet. In the light of above discussed admitted and undisputed facts, the petitioner is chief prosecution witness, who unearthed the mischief by means of his above said report. I fail to understand as to why the learned trial Court attached so much importance to the opinion of the investigating officer while framing the charge against the petitioner.
When the Court takes cognizance of the offence, it becomes seized of the entire case. In other words, the Court is possessed with jurisdiction over all the persons involved in the commission of offence whether challaned or not. Under this legal principle the Court while taking cognizance of the offence is empowered under Section 190(1)(c) of the Code to summon all those persons against whom there is material in support of the allegation, irrespective of the fact whether or not their names are mentioned in the list of accused persons. The above said provisions of the Code require that facts constituting an offence and not opinion of the investigator should be taken into consideration while framing the charge. This view of mine gets support from the law laid down in Sardar Ali and others v. The State (PLD 1966 (W.P.) Lahore 790).
Now, I proceed to determine the scope of inherent powers and constitutional jurisdiction of this Court in such like cases. The investigator transposed the petitioner from the list of P.Ws. to the list of accused persons. Legal and factual state of record escaped notice of the trial Court, which charge sheeted the petitioner. Despite all this, how can this Court allow the investigator and prosecutor to blind fold the Criminal Justice System. By doing so, this Court has not floated philosophical idea. The point in issue is very simple. The petitioner is an important prosecution witness. The investigating officer was obliged to cite the petitioner as prosecution witness enabling him to prove the inquiry report. The investigator stepped over the legal authority when he treated the petitioner as an accused. It is painful to note that the authority approved judicial action against the petitioner. This is an extreme example of misuse of official position. The investigator who posed himself to be stickler for rule of law and. eradication of corruption, slaughtered legal rights of the petitioner with the sword of his authority. The need of the hour is to nip the evil in the bud. This is high time to dispel common impression amongst the masses that police is not amenable to law of the land or that fundamental rights are not available to the lay man. Supremacy of law cannot be achieved without elimination of the police-whim-factor in the administration of criminal Justice. The Police Order, 2002 has not attended to the deficiencies in the legal frame work of the police. Without unqualified allegiance to rule of law, whimsy investigation tainted with mala fide is not going to be of much help for improvement of the system. Defective, dishonest, poor and motivated investigation of criminal cases is like a festering sore, which may prove fatal to the whole system. In exercise of constitutional jurisdiction, this Court is supposed to take effective steps to safeguard legal rights of the people and the system. Without building checks on arbitrary exercise of powers by the investigating agency, no improvement in the system can be expected. Fortunately, the opportunity to make good on lost prospects still exists. The trial Court needs to distance itself from the prosecution. General tendency amongst a sizeable number of trial Judges to assume the role of prosecutor while holding trial is an alarming threat to the system. The cast-iron provisions of law either escape notice of the trial Court or the same are not pressed into service on account of expediency. Resultantly, the distance between the trial Court and the prosecutor is drastically minimized adverse to the cause of defence. Keeping in view the above said ground realities, parameters for the trial Court and the scope of its powers need to be re-defined in order to avoid police autocracy.
The System is standing on three pillars i.e. Investigation; Prosecution; and Trial. For smooth functioning of the System these three pillars should be appropriately balanced within their respective allotted sphere. Powers of police to investigate cognizable or non-cognizable offence have been given in Chapter XIV of the Code. In the light of these provisions, it can be said that investigation consists of inspection of spot; ascertainment of facts and circumstances and collection of evidence coupled with apprehension of accused. Opinion of the investigating officer qua guilt or innocence of the accused is alien to his allotted sphere. Prosecution means to bring on record material falling within the definition of evidence in support of the charge. Trial means judicial determination of quilt or innocence of the accused. In the case in hand the investigator did not remain within his allotted sphere. Instead of collecting evidence, he chose to force an important prosecution witness (the petitioner) to stand in the dock. The prosecution did not render proper assistance to the learned trial Court. The prosecutor should have fairly conceded that there was no legal and factual justification to charge sheet the petitioner, who ought to have been cited as witness to prove the charge against the other challaned accused persons. In the circumstances, I have been left with no other option but to say that the learned trial Court also failed to discharge the duty cast on it by the law. The sacred judicial function should not have been mortgaged to the investigator or the prosecutor.
For what has been stated above, I am of the calculated and considered opinion that a serious legal error of omission and commission had accrued in the investigation and commencement of trial against the petitioner. It is, therefore, fully justified to exercise constitutional jurisdiction and inherent powers to enforce law of the land and stop further violation of absolute, accepted and recognized legal principles, which had been disregarded in this case with impudence. Such an action by the Court does not amount to interference in the domain of investigating agency or the trial Court. Resultantly, I accept this petition and quash the proceedings initiated by the learned trial Court against the petitioner under the impugned F.I.R. The extorted amount of Rs.5,00,000/- is directed to be returned to the petitioner forthwith against proper receipt.
The observations and remarks by this Court would not adversely affect the case and cause of other accused persons. The petitioner would be at liberty to prosecute the investigating officer on account of malicious prosecution, if he feels so advised.
(M.S.A.) Petition accepted.
PLJ 2009 Lahore 666
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
IJAZ HUSSAIN--Petitioner
versus
ADL etc.--Respondents
W.P. No. 4107 of 2007, decided on 28.4.2009.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Civil servant--Transfers of an employee cannot be claimed as a matter of right--Posting and transfer is exclusively within domain of competent authority which cannot be agitated through Constitutional jurisdiction--Employee of union council was transferred in the public interest--Suspension on account of misconduct and non-compliance of the order of competent authority--Validity--No employee has vested right of posting at particular place or against a vacancy--It is also domain of the competent authority to initiate proceedings against its subordinate employee if found guilty of misconduct or any act of insubordination are noticed--Constitutinal petition being misconceived was hereby dismissed. [P. 667] A
Ch. Muhammad Akram, Advocate for Petitioner.
Ch. Faqeer Muhammad, Advocate for Respondent No. 3.
Mr. Mubashir Lateef, Assistant Advocate General for Respondents.
Date of hearing: 28.4.2009.
Order
The petitioner an employee of Local Council through this constitutional petition calls in-question orders dated 28.7.2007 and 17.8.2007 passed by Respondent No. 1 vide which initially the petitioner Ijaz Hussain was transferred from U.C. 51 to 59 with immediate effect in the public interest and thereafter was placed under suspension on account of misconduct and non-compliance of the order of competent authority.
It is interalia contended that the impugned transfer of the petitioner was with unlawful authority and mala fide and thereafter initiation of proceedings against him was also unjustified and he is being victimized. That the impugned orders have not been passed with independent and judicious mind, rather on the contrary the same were passed under the influence of local MPA.
Conversely learned counsel for the respondents as well as learned Assistant Advocate General vehemently opposed this petition and submits that posting and transfer is exclusively within the domain of the competent authority which cannot be agitated through constitutional jurisdiction; that the posting and transfers of an employee cannot be claimed as a matter of right. That suspension of the petitioner for alleged commission of misconduct is also within jurisdiction of competent authority and that constitutional petition in such like matters is not competent.
Arguments heard and record perused.
By now it is well settled law that no employee has vested right of posting at a particular place or against a particular vacancy. It is also the domain of the competent authority to initiate proceedings against its subordinate employee if found guilty of misconduct or any act of insubordination etc: are noticed. Besides the order impugned is interim in nature. This constitutional petition, therefore, being misconceived is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 668
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
Hafiz NOOR MUHAMMAD--Petitioner
versus
BISE--Respondent
W.P. No. 3444 of 2006, decided on 20.5.2009.
Substitute findings--
----Departmental authorities--Substitute findings--High Court cannot substitute findings arrived at by departmental authorities with his own. [P. 669] A
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Entitlement of regularization of service--Civil servant was appointed on daily wages--Appointment order was liable to be terminated upon induction of a regular employee--Despite direction from High Court and relaxation having been given on upper age limit services of the civil servant have not been regularized--Determination of fitness--Jurisdiction--Validity--High Court allowed relaxation of age in view of inaction of department for which the civil servant was not at fault, however, it was no where directed that the petitioner must be appointed--Held: Determination of fitness being within exclusive domain of departmental authorities cannot be interfered within constitutional jurisdiction--Petition was dismissed. [P. 669] B & C
Ch. Muhammad Shafi Meo, Advocate for Petitioner.
Malik Javed Akhtar Wains, Advocate for Respondents.
Mr. Mubashar Latif Gill, Assistant Advocate General for Respondent.
Date of hearing: 20.5.2009.
Order
Briefly stated facts as those emerge out of this petition are that the petitioner was appointed as "Daftri" vide order dated 4.3.1996 by Respondent No. 3 on daily wages. His services as per terms of appointment order were liable to be terminated upon induction of a regular employee against the post. The petitioner claims that since he was working against a permanent post therefore was entitled to regularization of services.
It is inter alia contended that the petitioner earlier filed Writ Petition No. 6030/2005 which was decided vide order dated 17.5.2007 and that despite clear direction from this Court and relaxation having been given on upper age limit services of the petitioner have not been regularized. The case of the respondent was that the petitioner submitted three applications against three different posts. His case was considered alongwith other competitors but was not found FIT for that posts.
Arguments heard. Record perused.
The petitioner has no vested right to claim appointment against a particular post and for that purpose he was, under the law to compete with the other competitors who were equally entitled, being citizens of Pakistan.
He was not found fit by the departmental competent authorities. By now it is well settled proposition of law that this Court cannot substitute findings arrived at by departmental authorities with his own. I have also perused the order dated 17.5.2006 passed by this Court in Writ Petition No. 6030/2005 and I find that this Court certainly allowed relaxation of age in view of inaction of the department for which the petitioner was not at fault, however, it was no where directed that the petitioner must be appointed. The only direction was that the application filed by the petitioner in response to the advertisement issued by the respondents shall be considered on its merits, of course alongwith other candidates for the posts. From the minute examination of record I am of the considered view that the observations made by this Court in the writ petition referred to above were complied within letter and spirit and the determination of fitness being within exclusive domain of departmental authorities cannot be interfered with in constitutional jurisdiction. In view whereof this petition being devoid of any merits is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 669
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
MUHAMMAD SHAFIQUE--Petitioner
versus
SHO--Respondent
W.P. No. 2228 of 2007, decided on 28.4.2009.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 411 & 109--Forest Act, 1927, Ss. 62 & 68--Constitutional petition--Quashing of FIR--Allegation--Caused loss to state exchequer by stealing woods from the forest--Effected compromise--Validity--Once the forest department having agreed to compound the case subject to petitioner's payment of penalty imposed upon him the offence if any relating to theft of wood stood sorted out and settled according to rules and regulations of department--Further prosecution of the petitioner in respect of same offence u/S. 379, PPC is an attempt to vex the petitioner twice for the same offence--Held: In respect of the same offence is unreasonable, mala fide and amounts to punishing the petitioner twice for the same offence--FIR was quashed.
[P. 671] A & B
1987 PCr.L.J. 452 and 1979 PCr.LJ 452 rel.
Mr. Sagheer Ahmad Bhatti, Advocate for Petitioner.
Mian Bashir Ahmad Bhatti, Deputy Prosecutor General for State.
Date of hearing: 28.4.2009.
Order
The petitioner seeks quashing FIR No. 213/2007 dated 27.4.2007 registered at Police Station Gago, District Vehari under Section 411/109 PPC.
The allegation against the petitioner is that he caused loss to the State Exchaquer by stealing woods from the forest.
It is inter alia contended that under the provisions of Section 62 of the Forest Act, the department received the price of the alleged stolen woods and effected compromise with the petitioner by receiving Rs. 69,000/- and that in view of Section 68 of the Forest Act, 1927 no case could be registered nor could the petitioner be penalized for twice. Places reliance upon the law laid down by this Court in 1987 P.Cr.L.J. 452.
Conversely learned Deputy Prosecutor General opposes the submissions made at bar by the learned counsel for the petitioner. However, had no answer to the point of law urged by him.
Arguments heard. Record perused.
Almost similar proposition came under discussion before this Court in the case law referred to supra by the learned counsel for the petitioner wherein it was observed that once the Forest Department having agreed to compound the case subject to petitioner's payment of penalty imposed upon him the offence if any relating to theft of wood stood sorted out and settled according to rules and regulations of the department. It was further observed that further prosecution of the petitioner in respect of same offence under Section 379 PPC is an attempt to vex the petitioner twice for the same offence.
Admittedly the Forest Department agreed to compound the case subject to petitioner's deposit of Rs. 69,000/- only to which there is no denial of the fact. Further prosecution of the petitioner, therefore, in my considered view in respect of the same offence is unreasonable, mala fide and amounts to punishing the petitioner twice for the same offence. In my above views, I am also fortified by law laid down in (1979 P.Cr.L.J. 452).
In these circumstances, this petition is allowed and the FIR impugned is hereby quashed.
With these observations this petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 671
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
IKRAM-UL-HAQ--Petitioner
versus
T.M.A. etc.--Respondents
W.P. No. 5550 of 2008, decided on 11.5.2009.
Punjab Local Government (Auction of Collection Rights) Rules, 2003—
----R. 16(4)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Wrongful gain for causing wrongful loss--Evasive denial of a specific plea cannot be considered as a denial in law--Aggrieved of in-action on part of respondents and refusal to refund a sum deposited by the petitioner--Being registered contractor, with good reputation and statute participated in auction for collection of fee for transfer of immovable property within jurisdiction of T.M.A.--Petitioner submitted a call deposit amount which was not entertained by T.M.A. nor petitioner was allowed to work--Neither petitioner was served with any notice nor any proceedings were initiated--Validity--Allegation levelled by petitioner in writ petition qua victimization under wrongful gain for causing wrongful loss to the petitioner having specifically been denied--Allegation of illegal demands have not been denied including non fulfilment statutory obligations which also not been denied--Held: Evasive denial of specific plea cannot be considered as a denial in law--On contrary, the evasive denial was deemed to be as admission on facts--They have mis-interpreted and they have forfeited the amount without any lawful justification--Petition was allowed and respondents were directed to refund the specific amount. [P. 673] A, B & C
Malik Muhammad Naeem Iqbal, Advocate for Petitioner.
Haji Muhammad Aslam, Advocate for Respondents.
Date of hearing: 11.5.2009.
Judgment
Through this constitutional petition, the petitioner is aggrieved of in-action on the part of respondents and subsequent refusal to refund a sum of Rs. 12,00,000/- only deposited by the petitioner as earnest amount.
The Briefly stated facts as those emerged out of this constitutional petition are that petitioner being a Registered contractor, with good reputation and statutes, in response to advertisement published in daily news paper participated in the auction for collection of fee for transfer of Immovable property, within the jurisdiction of respondents, for a period of nine months with effect from 1.10.2008 to 30.6.2009. Statutory pre-requisite for participation in the open auction was submission of Call Deposit of Rs. 12,00,000/- only as earnest money/Zare-advance at the rate of 5% reserved price of the contract.
It is inter alia contended that petitioner being a Registered contractor, with good reputation and status, in response to advertisement published in daily news paper participated in the auction for collection of fee for transfer of immovable property, within the jurisdiction of respondents and having been declared as successful bidder, was required to submit call Deposit of Rs. 54,65,630/- only in lieu of Rs. 46,00,000/- through letter dated 27.9.2008. In compliance whereof just within a period of three days i.e. 30.9.2008 the petitioner submitted a Call Deposit of Rs. 46,00,000/- which was not entertained by respondents nor the petitioner was allowed to work; that the petitioner, thereafter, approached the respondents with repeated requests that either he may be allowed to work as per terms of advertisement for entertaining the call deposit dated 27.9.2008 in terms of the advertisement and conditions of auction or earnest money amount may be refunded/returned to him but neither the petitioner was allowed to work nor the amount has been refunded. Further submits that neither the petitioner was served with any notice nor any proceedings were initiated against him and arbitrarily the respondents are withholding the aforestated amount of the petitioner as that under Rule 16 of the Punjab Local Government (Auction of Collection Rights) Rules, 2003, the petitioner was obliged to deposit 2% of the Reserved Price, as earnest money in the fund of Local Government for taking part in the auction, whereas he deposited 5% of the reserved price. Further refers to Rule 2 ibid that earnest money of successful bidder can be retained as a security in successful completion of contract alongwith other dues prescribed in the agreement whereas under Rule 3 the earnest money of unsuccessful bidders has to be retained after completion of auction. Rule 4 whereof in unequivocal terms says that earnest money reserved shall be refunded to the contractor after successful completion of contract and production of a certificate from the head of Revenue Department of respective Local Government that nothing is due from the contractor and that contract has been completed successfully. The case of the petitioner, while taking at a logical conclusion attracts provisions of sub-rule (3) of Rule 16 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 he having been, though arbitrarily declared as successful contract, his amount has to be refunded.
Conversely, the respondents while admitting the contents of writ petition in paras 1 to 4 add that instead of 2% under the instructions of Government the security deposit was enhanced to 5% and that since the petitioner failed to deposit the earnest money within a period of three days, therefore, the earnest money was forfeited. It is admitted, however, in terms that he submitted an application for refund of the aforestated amount but the same stood forfeited.
Arguments heard. Record perused.
The parawise replies to the writ petition are evasive, which under the law are deemed to have been admitted as correct. The allegation levelled by the petitioner in the writ petition qua victimization under wrongful gain for causing wrongful loss to the petitioner having specifically been denied. Likewise, the allegation of illegal demands by the respondents have also not been denied including the non fulfilment statutory obligations by respondents which have also not been denied.
In view of the observation given earlier, the evasive denial of a specific plea cannot be considered as a denial in law. Rather, on the contrary, the evasive denial is deemed to be as admission on facts.
This petition was admitted to regular hearing on 5.5.2004. In presence of learned counsel for the nor the respondents have bothered to place on record any additional document nor have filed any formal written statement.
In view of the above, I am of the considered view that facts as narrated in the petition have been under the law admitted by the respondents. They have mis-interpreted Rule 16, in particular sub-rule (4) of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 and they have forfeited the amount of Rs. 12,00,000/- without any lawful justification. This petition is therefore allowed and respondents are directed to refund the above said amount of Rs. 12,00,000/- within a period of seven days, failing which the petitioner shall also be entitled to the interest at the prevailing bank rates from the date of its deposit.
With these observations, this petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 674
[Multan Bench, Multan]
Present: Pervaiz Inayat Malik, J.
DILDAR AHMED--Petitioner
versus
PROVINCE OF PUNJAB and another--Respondents
Civil Revisions No. 338 & 339-D of 2000, heard on 7.5.2009.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Civil revision--Concurrent findings of facts and law--No mis-reading or non-reading was pointed out--Petitioners were allotted lands against cultivation scheme which were not subsequently extended--Civil suit for declaration was dismissed by Courts below--Assailed--Maintainability--Land in-question was means for tube well sinking schemes which law could not be allotted to the petitioners under temporary cultivation scheme--Held: Policy making is within the exclusive domain of executive which is normal course cannot be interfered by the Courts unless the same is in-conflict either with provisions of law of land or against the provisions of Constitution--Concurrent findings of facts and law against the petitioners, wherein no mis-reading or non-reading has even been pointed out--In revisional jurisdiction High Court cannot interference in the concurrent findings of facts arrived at by Courts below merely on the ground that another opinion possible can be formed which law does not permit--Petition was not maintainable. [P. 677] A & B
PLJ 1986 SC 149, 1997 SCMR 520, PLD 1976 SC 435, PLD 1975 Lah. 445 & 2007 SCMR 8181, rel.
Sardar Riaz Kareem, Advocate for Petitioner.
Mr. Mubashar Latif Gill, Assistant Advocate General for Respondent No. 1.
Mr. Muhammad Ramzan Khalid Joyia, Advocate for Respondent No. 2.
Date of hearing: 7.5.2009.
Judgment
Since in both the revision petitions common question of law and facts are involved, therefore, through this single judgment I intend to dispose of both these petitions.
Briefly stated facts as those emerge out of this petition are that the petitioners were allotted certain lands against cultivation scheme during the year 1962 on lease, which were not subsequently extended. Feeling aggrieved whereof they approached authorities in the Revenue Department and after remaining unsuccessful there from they filed civil suit seeking declaration before the learned Civil Judge, Sahiwal which were dismissed vide impugned judgments and decrees dated 14.1.1988 where against appeals were preferred which were too dismissed by learned Additional Sessions Judge, vide judgment and decree dated 8.2.2000 in civil revision, which are being assailed through separate civil revision, in both the revision petitions.
It is inter alia contended by Sardar Riaz Kareem, Advocate, learned counsel for the petitioner with reference to para 10 of the impugned judgment that the learned Civil Judge misread the evidence on record, and committed illegality by observing that after lapse of five years period of time, the petitioner was not entitled for extention under the law, which is in conflict with the notification issued by the Government, vide which no extention was required because the Government has in categorical terms held that extention in lease rights was applicable to six years prior to year 1993 and it stood automatically expired; the observations of the learned Civil Judge not only are against facts but also against the law applicable to the case as well; the learned Civil Judge has misread the terms of temporary lease; Places reliance upon PLD 1976 S.C 435, PLD 1975 Lahore 445, to canvass that the statement of condition has the force of law. Since the lease rights were given to the petitioner not treating him as temporary, therefore requirement of extention after five years is not correct; although the learned Civil Judge in the impugned judgment in Para No. 9 thereof has noted down specifically objection raised by the petitioner, to the effect that order passed by the Collector was ab-initio void and of no legal effect violative of Section 163 (2-D) Land Revenue Act; the order passed by the Member Board of Revenue being a superstructure built on void order have to fall on the ground; reliance placed upon 2007 SCMR 8181 (M) yet the objection has not been attended to by the learned Civil Judge which makes the impugned judgment a case of non-reading. Adverting to the impugned judgment passed by the learned Additional District Judge refers to Para No. 13 thereof and submits that since the learned Additional District Judge has not decided the case issue wise, therefore, this sole ground makes the impugned order null and void in the eye of law. Places reliance upon 1996 S.C.M.R 669, refers to Order 41, Rule 31 of the CPC to canvass that the learned Additional Judge should have given issue-wise finding and should have announced the judgment after putting signature thereon and that in that the case was remanded to the learned Additional District Judge for rewriting the judgment. It is in the interest of justice that land laws losses instead of accommodating. Places reliance upon NLR 1995 Revenue 100.
Conversely Mr. Muhammad Ramzan Khalid Joiya, Advocate learned counsel for private respondents in both the civil revisions submits that there are concurrent findings of facts and in revisional jurisdiction there is very limited scope for this Court for interference, places reliance upon PLJ 1986 S.C 149, 1997 SCMR 526, 1986 SCMR 412; dispute primarily between the parties relates to lease right which is exclusive domain of Revenue Authorities; Relies upon 1985 CLC 7962, 1987 CLC 204, refers to the order dated 09.03.1994 passed by Member Colonies Board of Revenue, wherein it is categorically observed, that land in-question was meant for Tube-Well Sinking Scheme, therefore, could not be allotted to the present petitioner under temporary cultivation scheme. The learned Civil Judge did not make any observation of his own rather those were based upon the orders passed by the Competent Authority in Revenue hierarchy of the country; in revenue record the petitioners have admittedly been shown as illegal occupant. Adds that most of the arguments advanced by the learned counsel for the petitioner related to such documents which are not part of the record; neither those were raised before the learned Civil Court nor before the learned appellate Court, therefore, for the first time before this Court in revisional jurisdiction, cannot be allowed to be agitated. The petitioner has wrongly tried to take advantage of notification of the year 1995, the suit was filed on 24.03.1994, therefore, the said notification has no application because it cannot have retrospective application. So, for as objection qua writing of judgment issue wise is concerned, that too has not been raised even in the revision petition it has been introduced for the first time in the arguments.
Arguments heard. Record perused.
I find that the learned counsel for the petitioners has mostly referred to such documents which are not part of the record. Some of his submissions have been introduced for the first time while arguing this
revision petition. Sufficient evidence on the record is available to demonstrate that the land in-question was meant for tube well sinking schemes which under the law could not be allotted to the petitioners under temporary cultivation scheme. By now it is well settled law that policy making is within the exclusive domain of the executive which in normal course cannot be interfered by the Courts unless the same is in-conflict either with some provisions of law of the land or against the provisions of constitution. Even otherwise I do not find any wrong with the said policy which is in the interest of public-at-large. There are concurrent findings of facts and law against the petitioners, wherein no mis-reading or non-reading has even been pointed out. In revisional jurisdiction this Court cannot interfere in the concurrent findings of facts arrived at by learned Courts below merely on the ground that another opinion possibly can be formed which the law does not permit. I have also minutely examined the case law referred by the learned counsel for the petitioner. I may respectfully submit that the same do not apply in view of peculiar facts and circumstances of the case. To the contrary cited at bar the case law, by Mr. Muhammad Ramzan Khalid Joyia, Advocate, in my considered view is fully attracted and while respectfully following the law laid down by the Hon'ble Supreme Court of Pakistan in 1997 SCMR 526, 1998 SCMR 412. I hold that these petitions are not maintainable. I am not even otherwise inclined to interfere in the concurrent findings of facts arrived at by both the learned Courts below, which are not only well reasoned, besides are perfectly in accordance with law. These petitions, therefore, being devoid of any merits are hereby dismissed, leaving the parties to bear their own costs.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 677
Present: Syed Asghar Haider, J.
HIRA TEXTILE MILLS LTD. through Director--Petitioner
versus
EXECUTIVE DISTRICT OFFICER REVENUE, KASUR and 4 others--Respondents
W.P. No. 739 of 2008, heard on 19.1.2009.
Companies Ordinance, 1984 (XLVII of 1984)—
----Ss. 39 & 40--Registration Act, 1908, S. 17--Change of name be incorporated in the revenue record--Direction to patwari to incorporate the necessary change--Revenue staff stated that the petitioner was a new entity and, therefore, it was required to get a formal sale-deed registered in its name--Demand made by revenue department was illegal and ultra vires of law--Validity--Petitioner company is governed by provisions of Companies Ordinance--S. 39 of Company Ordinance envisages and authorizes a company to change the name, if it so desires with the approval of registrar and S. 40 authorizes registration of the name and its effect thereon--Held: After invoking these provisions the company opted to change its name but remains the legal entity--Petitioner company has not ventured any exercise violating the exceptions contained in S. 17(2) because no transfer of immovable property has taken place, identity of the petitioner was same, therefore, it falls within exception to S. 14 of Registration Act--Petitioner company acted u/S. 39 & 40 of Companies Ordinance, which do not contemplate transfer of any property--Petition was allowed. [Pp. 680 & 682] A & C
West Pakistan Land Revenue Act, 1967 (XVII of 1967)—
----S. 114--Recovery of arrears of land revenue--Applicability--Company has not in any manner prayed for remission qua arrears of land revenue not is it the case of respondents that it has defaulted in this context--Such provision is inapplicable to the dispute. [P. 680] B
PLD 2001 Lah. 834 & 2008 SCMR 644 ref.
Mr. Salman Akram Raja, Advocate for Petitioner.
Mr. Shujat Ali Khan, AAG for Respondents.
Date of hearing: 19.1.2009.
Judgment
The petitioner is a limited company duly incorporated in accordance with law, it commenced business in August, 1991 and is governed by the provisions of Companies Ordinance, 1984. Initially being a corporate entity, it was working under the name and style, Sharif Spinning Mills Ltd. through the then, Chief Executive, Haji Muhammad Sharif, it purchased property, which has been mentioned in para (ii)(a) of the petition, measuring 136 kanals 18 marlas. Pursuant to a special resolution by the share holders, the name of the company was changed from Sharif Spinning Mills Ltd. to Hira Textile Mills Ltd., this change was duly approved by the Corporate Law Authority on 14.6.1995 and a certificate in this context was duly issued on 21.7.1996, thus for all intents and purposes the name of Hira Textile Mills Ltd. stood substituted with earlier name of the company, Sharif Spinning Mills Ltd. In 1996 the petitioner moved an application to the Assistant Commissioner, Kasur, requesting that the change of name be incorporated in the revenue record, the request was acceded to and a letter bearing No. AC/CC/1914, dated 19.3.1996, was issued in this context and a direction was also issued to the concerned Patwari to incorporate the necessary change. On 21.2.2007 an application was moved to Respondent No. 2 praying that despite incorporation of the name in the Roznamcha Waqiati, the needful has not been done. The application was forwarded to Respondent No. 1, who directed Respondent No. 2 to proceed further in the matter in accordance with law, but instead of acceding to the request of the petitioner, the revenue staff stated that the petitioner was a new entity and, therefore, it was required to get a formal sale-deed registered in its name, and thereafter the necessary change shall be incorporated in the revenue record. According to the petitioner the demand made by the respondents is illegal and ultra vires of law, hence, this petition.
The learned counsel for the petitioner contended, inter alia, that the petitioner is governed by the Companies Ordinance, 1984, it is body corporate and a legal entity, therefore, it is empowered under Sections 39 and 40 of the same, to change its name as and whenever it so desires, after fulfilling legal and codal formalities. In the instant case the same was duly done as is reflected from Annex. D and E (letters issued by the Corporate Law Authority and Securities and Exchange Commission of Pakistan).
The learned AAG contested the contentions of the petitioner's counsel to plead that former entity, Sharif Spinning Mills Ltd., was a separate entity with a different Chief Executive and the present entity is totally different, therefore, the request for change in revenue record was rightly declined. To further augment his submission he stated that the petitioner is governed by the Land Revenue Act, 1967 (Sec. 114), therefore, unless a formal sale-deed is executed no mutation can be sanctioned. To support his contention the leaned AAG referred to Mazhar Iqbal Vs. Falak Naz and 2 others (PLJ 2001 Lahore 834) and Mst. Nasima Fatima Versus Bashir Ahmad and others (2008 S.C.M.R. 644).
Heard.
The main point for adjudication and decision in the instant petition is as to whether the petitioner is governed by the provisions of the Companies Ordinance, 1984 and is there a conflict between the Companies Ordinance, 1984 and the Land Revenue Act, 1967, and is the petitioner required to get a formal sale-deed executed for incorporation of change in its name in the revenue record or not. Perusal of record appended with the writ petition clearly reflects that the petitioner company initially was incorporated as Sharif Spinning Mills Ltd., the Chief Executive was Haji Muhammad Sharif and a certificate to this effect was duly issued by the Corporate Law Authority (now Securities and Exchange Commission of Pakistan) on 10.8.1991, therefore, the petitioner is body corporate and legal entity. It also is clear that in view of the incorporation referred to above, the petitioner company is governed by the provisions of the Companies Ordinance, 1984. Section 39 of the Companies Ordinance clearly envisages and authorizes a company to change the name, if it so desires with the approval of the Registrar and Section 40 authorizes registration of the name and its effect thereon. Thus, after invoking these provisions the company opted to change its name from Sharif Spinning Mills Ltd. to Hira Textile Mills. Ltd, but remains the same legal entity.
Section 114 of the Land Revenue Act, 1967, is applicable to recovery of arrears of land revenue. In the instant matter the company has not in any manner prayed for remission qua arrears of land revenue nor is it the case of the respondents that it has defaulted in this context, therefore, this provision is inapplicable to the present dispute, thus, the precedents referred to Mazhar Iqbal Vs. Falak Naz and 2 others (PLJ 2001 Lahore 834) and Mst. Nasima Fatima Versus Bashir Ahmad and others (2008 S.C.M.R. 644) are inapplicable.
Section 17(1) of the Registration Act embodies the documents, which are required to be compulsorily registered, they are:--
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
Explanation.--In the case of an assignment of a mortgage the consideration for the deed or assignment shall be deemed to be the value for registration;
(c) non-testamentary instruments (other than the acknowledgment of a receipt or payment made in respect of any transaction to which an instrument registered under clause (o) relates) (Added ibid) which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) lease of immovable property from year to year; or for any term exceeding one year, or reserving a yearly rent:
Provided that the (Provincial Government) may, by order published in the (official Gazette), exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent or the value of one hundred rupees and upward, to or in immovable property:
Section 17(2) is an exception to clauses (d) and ( c) as contained in Section (17(1). Section 17(2) relates to companies and it reads as under:-
(2) Nothing in clauses(d) and ( c) of sub-section (1) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consists in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) -----------"
As is clear from the contents of this petition that the petitioner company has not ventured or undertaken any exercise violating the exceptions contained in Section 17(2) because not transfer of immovable property has taken place, the identity of the petitioner is same, therefore, it falls within the exception to Section 17 of the Registration Act, as such it is not required to get any sale-deed registered. It also is equally clear that the petitioner company acted under Sections 39 and 40 of the Companies Ordinance, 1984, which do not contemplate transfer of any property. Therefore, this petition is allowed as prayed for. No orders as to costs.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 682
Present: Maulvi Anwar-ul-Haq, J.
SAGHEER MUHAMMAD KHAN and 5 others--Petitioners
versus
MEMBER (JUDICIAL-V) BOARD OF REVENUE, PUNJAB and 4 others--Respondents
W.P. No. 19-R of 2008, heard on 4.2.2009.
Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIII of 1975)--
----Ss. 2 & 3--All the proceedings pending before the authorities appointed thereunder stood transfer for final disposal to officers to be notified by the provincial government in the official gazette and similarly all cases to be remanded by the Supreme Court and High Court were to be remitted to the officers so notified--Under Section 3 of the Act, 1975 all properties which were available for disposal immediately before the repeal of the Act or which become available for disposal after such repeal as a result of final order to be passed under Section 2(3) of the Act, 1975 shall stand transferred to provincial government for disposal, in case of urban property, by the provincial government under the scheme to be prepared by it in such behalf. [Pp. 685 & 686] A & B
Chief Settlement Commissioner--
----Chief settlement commissioner is no longer an entity much less a legal entity--Even before the repeal of the laws once transfer documents had been issued questions arising as to their genuineness were to be decided by the Civil Court--Petition allowed. [P. 687] C
Mr. Muhammad Nawaz Kasuri, Advocate for Petitioners.
Mr. Khurram Gulzar, Advocate for Respondents No. 1 to 3.
Mr. Iftikhar Ahmad Mian, Advocate for Respondent No. 4.
Mr. Muhammad Shahzad Shaukat, Advocate for Respondent No. 5.
Date of hearing: 4.2.2009.
Judgment
According to the contents of this writ petition, (written statement has not been filed by any of the respondents) Plot No. 89, G-Block, Model Town, Lahore (hereinafter to be referred as the said plot) was an evacuee property. An application was filed by two persons for its transfer under Settlement Scheme No. VIII to Deputy Settlement Commissioner (Plots) who rejected the said form vide order dated 18.6.74. W.P. No. 19-R-83 filed by one of the said person, namely, Hafiz Abdul Ghani was dismissed on 18.1.83 while CPLA No. 1370-L/83 was withdrawn on 14.4.90. Sabra Begum the late wife of the petitioner took possession of 4 kanals out of the said plot in 1979, a plan was got approved from the Cooperative Model Town Society, water and electricity connections were also provided in the year 1975 as also sui gas. Her name was registered in the record of Excise and Taxation Department in 1975-76. A suit filed by her against the said Society was decreed on 25.9.94 and affirmed in first appeal on 13.3.96. S.K. Masood Mirza and others fabricated some sale proceedings and got issued a transfer order on 29.6.74. This transfer order was later cancelled by the Settlement Authorities and the plot was declared to be available property. W.P. No. 191-R/78 filed by the said persons was dismissed on 6.3.90 (judgment reported as PLJ 1990 Lahore 283). A direction was issued to D.S.C (Plots) to keep the file under a seal to avoid any future attempt at forgery. The case was remitted to Notified Officer vide judgment dated 27.5.92 passed in C.A. No. 867-L/90 filed by the said S.M. Masood Mirza etc. While the matter was pending before Ch. Talib Hussain, Member Board of Revenue. S.M. Masood Mirza etc. themselves moved an application that one Rabia Begum widow of Muhammad Shafi had been transferred the plot on 22.7.76. The finding regarding fraud was reiterated by the said Member, Board of Revenue in order dated 21.11.92. However, Mst. Rabia Begum was held to be transferee. This order was challenged by the said wife of the petitioner in W.P. No. 90-R-1993. One Hafiz Abdul Ghani also filed W.P. No. 95-R-93. These writ petitions were decided on 9.4.2002. The matter was remitted to the Board of Revenue/Notified Officer for determining the validity of the transfer order dated 22.7.1976 issued to Mst. Rabia Begum. Attempts were made to alienate the plot on the basis of the said transfer order dated 22.7.76. The late wife of the petitioner filed a suit on 10.4.96. The learned Civil Judge summoned the records. The suit was decreed on 4.7.98, as it was stated on behalf of the settlement department that the plot had not been transferred to anyone. His wife died on 25.12.2000 and apart from the petitioner four daughters were left as L.Rs. An application was filed complaining non-implementation of the said decree wherein the Secretary S.R,. Board of Revenue took the plea that the property has not been transferred to anyone. The matter is still pending. W.P. No. 62-R-2002 was filed which was disposed of on 15.2.2002 with the direction to the Member Board of Revenue/Notified Officer to conclude the proceedings. Crl. Org. No. 843-W-06 was filed. Learned counsel for the Department assured that the matter will be decided within 3 months. The Criminal Original was disposed of on 22.11.2006. Vide order dated 20.2.2007 the said Member Judicial-I declared transfer order dated 22.7.76 in favour of Mst. Rabia Begum to be illegal and held Mst. Sabra Begum late wife of the petitioner to be entitled for transfer of 4 kanals out of the said plot. The matter of documentation was to be done by Deputy Administrator (R.P), Lahore.
In May, 2007 the petitioner learnt that the Secretary of the Cooperative Model Town Society has written a letter dated 31.3.07 to Secretary S.R, Board of Revenue seeking verification of transfer order dated 23.6.60 purported to have been passed by Khan Muqarrab Khan, D.S.C (Plots) Lahore, in the name of Khera son of Kaka. It was also stated that Respondent No. 5 has requested for grant of membership of the Society on the basis of said document i.e PTO dated 27.12.60 and PTD dated 24.5.62. The petitioner filed an application on 14.5.2007 before the Provincial Verification Committee stating all the said facts. Verification Committee met on 9.7.07 under the Chairmanship of Ch. Muhammad Zafar Iqbal, Member Judicial-V and expressed its inability to verify the PTD in the name of Khera. Thereafter the petitioner was directed to appear before same Ch. Muhammad Zafar Iqbal on 3.8.07 in connecting with some inquiry. Ultimately on 7.12.2007 the said Ch. Muhammad Zafar Iqbal claiming himself to be the Chief Settlement Commissioner Punjab, Lahore, proceeded to hold the said PTD to be genuine. At the same time he rejected the application of the petitioner for transfer of the property.
Mr. Muhammad Nawaz Kasuri, learned counsel for the petitioners contends that the Chief Settlement Commissioner ceased to exist and the said Officer who was a Member of Board of Revenue had no lawful authority to set aside the order of the Administrator (R.P) and further to verily or to hold the said document to be genuine. Learned counsel has stated several reasons, which are also mentioned in the memo of writ petition that there was no question of said document having been issued either in fact or law. Learned counsel for Respondents No. 1 to 3 has supported the impugned order stating that it has been passed with lawful authority. Learned counsel for Respondent No. 4 Cooperative Society states that it had only sought verification of the document presented by Respondent No. 5. Mr. Muhammad Shahzad Shaukat, learned counsel for Respondent No. 5 urges that Respondent No. 1 in his capacity as Chief Settlement Commissioner was not bound to follow his own findings while sitting as Chairman of the Verification Committee. He, however, has opined that even if fresh inquiry is required a panel of Notified Officers be constituted for the purpose.
I have gone through the copies of the records. For the order I propose to pass in this writ petition I will not be commenting upon the merits of the case i.e as to whether or not the said documents i.e PTO dated 27.12.60, PTD dated 24.5.62 and basic transfer order dated 23.6.60 are genuine or not. However, I find force in the contentions of Mr. Muhammad Nawaz Kasuri, Advocate, that the Chief Settlement Commissioner as an entity had ceased to exist. Since there is no dispute that the property is urban in nature, I find that the Chief Settlement Commissioner was a creature of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under Section 9 thereof Central Government was authorized to appoint a Chief Settlement Commissioner who was to discharge his functions and perform his duties under the general superintendence and control of the Central Government, of course, subject to provisions of the said Act while the other officers i.e. Settlement Commissioner etc. were to perform their functions and duties under the general superintendence and control of the Chief Settlement Commissioner subject to provisions of the said Act and all the orders to be made by the Central Government in this behalf. Under Section 10 of the said Act, subject to provisions thereof and Rules made thereunder the Chief Settlement Commissioner or an Officer authorized in writing by him were competent to transfer or dispose of any property out of the compensation pool constituted under Section 4 of the said Act. By virtue of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, XV-1974 and later under Section 2 of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 several Acts including the said Displaced Persons (Compensation and Rehabilitation) Act, 1958 were repealed. Under sub-section (2) of Section 2 of the said Act 1975 all the proceedings pending before the authorities appointed thereunder stood transfer for final disposal to officers to be notified by the Provincial Government in the official gazette and similarly all cases to be remanded by the Supreme Court and High Court were to be remitted to the officers so notified. Chief Settlement Commissioner is not one of such Officers.
In the case of Province of the Punjab through Member Board of Revenue (Residual Prosperities) Lahore and others v Muhammad Hussain through Legal Heirs and others (PLD 1993 S.C 147) a decree was passed ex-parte, inter alia, against the Government of Pakistan sued through Chief Settlement Commissioner, Board of Revenue Punjab, Lahore. An appeal filed against the said decree was dismissed and so was the case with civil revision filed in this Court. The appeal was filed by the Province of Punjab (through Member Board of Revenue (Residual Properties) Lahore). I need to mention that lawyers of such eminence as Mr. Zaki-ud-Din Pal, Mr. K.M. Samdani (senior Advocates) and Mr. Saleem Saghal appeared for Provincial Government. Inter alia, the plea taken was that the property in-question had vested in the Provincial Government under the said Act, 1975 and the Chief Settlement Commissioner no longer exists. It was, thus, observed by the Hon'ble Supreme Court of Pakistan in para 7 of the judgment at page 153 of the report:--
"Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974-much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws."
I, therefore, am in complete agreement with the learned counsel for the petitioners that there is no such entity as a Chief Settlement Commissioner under any of the statutory dispensation in force after repeal of the said Act 1958.
I also find that under Section 3 of the said Act, 1975 all properties which were available for disposal immediately before the repeal of the said Act or which become available for disposal after such repeal as a result of final order to be passed under Section 2 (3) of the said Act, 1975 shall stand transferred to Provincial Government for disposal, in case of urban property, by the Provincial Government under the scheme to be prepared by it in this behalf.
Vide order dated 20.2.07 an Officer exercising powers of Administrator (R.P) under the relevant scheme directed the disposal of the form of late wife of the petitioner after holding the property to be available. There is no appeal or revision or any other remedy provided against this order in the said Scheme framed in the year 1977. This order could have been challenged either before this Court in the constitutional jurisdiction or in a properly constituted civil suit. Nothing of the sort was done. The documents were examined by a Committee headed by the said Ch. Muhammad Zafar Iqbal and three other members and they observed that they are not in a position to give decision about the genuineness or otherwise of the PTD issued in favour of Khera because they cannot totally ignore the decision of the various Courts starting from Civil Judge to Hon'ble Supreme Court and Chief Settlement Commissioner and Notified Officer of the Settlement Department. The reference, of course, is to the fact that the record was examined at all forums and said documents were not present anywhere. They proceeded to submit the case to the Chief Settlement Commissioner Punjab. It was in the said capacity that Ch. Muhammad Zafar Iqbal deceased proceeded to hold the PTD to be genuine. The order is absolutely non-speaking. It fails to answer the questions arising from the circumstances established on the face of record in view of the history of the case, spreading over more than three decades prior to the consideration by Ch Muhammad Zafar Iqbal.
Be that as it may, I have held that the Chief Settlement Commissioner is no longer an entity much less a legal entity. Even before the repeal of the said laws once transfer documents had been issued questions arising as to their genuineness were to be decided by the Civil Court.
This writ petition is accordingly allowed. The impugned order dated 7.12.2007 (Annex-PII) passed by Ch. Muhammad Zafar Iqbal deceased claiming himself to be Chief Settlement Commissioner is declared without lawful authority and is set aside. It will, however, be open to Respondent No. 5, if so advised to file properly constituted suit to establish the genuineness of the documents being relied upon by him. No order as to costs.
A copy of the judgment be immediately remitted to the learned Senior Member, Board of Revenue Punjab, Lahore.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 688
Present: Kh. Farooq Saeed, J.
MIAN ZAMEER TUFAIL--Petitioner
versus
AYESHA BIBI and 2 others--Respondents
W.P. No. 3077 of 2008, heard on 4.2.2009.
Guardians and Wards Act, 1890 (VIII of 1890)—
----S. 12--Constitution of Pakistan, 1973, Art. 199--Constitutional petition against interlocutory order--Interim custody to mother is un-exceptional--Petition for custody of three minor daughters--Minor was tender age--Mother has right of "Hazanat"--Guardian Judge granted the custody of one of the three minors to the respondent--Appeal was dismissed by First Appellate Court was responsibility of their father, the minor--Held: Finding of the two forums below with respect to the interim custody to the mother is un-exceptional--It is evident from the record that father was not present in Pakistan and he did not visit very often, hence, for all practical purposes the minors are not having paternal love and affection in any manner--It may be true that the respondents are living in systematic life in the house of their grand mother, but, obviously she cannot be a substitute to the mother and even father either--Since the maintenance of the children was can still have the same level of the education and the treatment even while remaining under the shelter of her mother--Depriving the mother from all her three children at the same time especially when she is entitled to the "Hazanat", will be unfair--Still further the minor is too young to be taken care of by an old lady, grand mother or by her elder sisters who also are not even in teen ages--Interim custody allowed, therefore, was confirmed and the writ petition was considered without any merit--Petition dismissed. [P. 691] A
PLD 1967 Kar. 645; 1988 CLC 1741; 1980 CLC 909 ref. 1980 CLC 909 ref. PLD 1967 Kar. 645; 1988 SCMR 1234 & 1986 CLC 851; PLJ 2004 Lah. 1048; 2000 YLR 3046 and PLD 2004 Lah. 395 rel.
Mr. Shahid Mubeen, Advocate for Petitioner.
Mr. Abdul Razzaq, Advocate for Respondents.
Date of hearing: 4.2.2009.
Judgment
Brief facts of this case are that the petitioner and respondent after marriage were living together while the respondent after leaving the house of the petitioner filed petition for custody of the three minor daughters namely Naiha, Aneeqa and Huma. An application under Section 12 was also filed alongwith the said petition. The Guardian Judge decided the said petition under Section 12 on 16.4.2007 and granted the custody of one of the three minors to the respondent. Appeal filed before the Addl. District Judge failed in the manner that he has confirmed the said order vide his order dated 26.3.2008.
In fact this Court normally does not entertain the writ petition against interlocutory order. However, through order transfer of custody though interim is likely to take place which is in relation to protection of the person during the said intervening period. Besides, making a child a rolling stone by various interim order also is not appropriate for his personality and well being, hence, the respondent objection to this extent is ignored for the time being. However, other objection that there is nothing illegal in the order of two forums below definitely needs consideration and dilation. The same, however, shall be taken up in the latter part of this order.
The basic objection of the petitioner against the order is that the finding is totally on the argument that the minor is of tender age and the mother has the right of "Hazanat" which in his opinion has not been approved by the higher Courts in the chain of judgments. He has referred (PLD 1967 Karachi 645) re: "Muhammad Sadiq Butt Vs. Mst. Khalida Parveen" (1988 C.L.C. 1741) re: "Zulfiquar Ahmad Vs. Mst. Qaisra Sattar" and (1980 C.L.C 909) re; "Mirza Muhammad Yusuf Vs. Mst. Razia Sultana".
His second line of argument was that neither any urgency has been established in this case nor question of welfare has been addressed. The Courts have never approved the custody of a child where it is in ignorance of the prime question i.e. welfare of the child. In favour of his arguments he has placed reliance upon (P.L.D 1967 Karachi 645) re: "Muhammad Sadiq Butt Vs. Mst. Khalida Parveen". The next argument was that the minor should not be made shuttle cock as the same obviously is not welfare, rather damaging and the reliance is on (1988 S.C.M.R 1234) Re: "Khushi Muhammad Vs. Mst. Arshad Bibi and others" and (1980 C.L.C. 851) re: "Allah Rakha Vs. Hamida Bibi".
Regarding other controversies he pointed out that all the three sisters are of an age in which they are united with the love bond. They share one room and also other amenities of life. They are going to one school and are also studying under the instructions of one tutor and one moulvi. They are having good care with their father and the paternal grand mother. Besides the petitioner is willing to accept back, the respondent to join him for performing her matrimonial responsibilities. He, therefore, urged that the orders of the two forums below may be set aside.
The respondent as already mentioned started with his preliminary objection with regard to maintainability. He raised another objection by challenging the power of attorney of the petitioner which in his opinion does not cover filing of a writ petition before this Court, though, it does give the authority to file other cases in other Courts through a specific mentioning in Clause-7. This objection also is of no avail as the other clauses which are general in nature give authority to the attorney to file suits in other forums including this Court. It is general power of attorney and the same gives a more wide authority.
The other arguments were that since there is no illegality or jurisdictional error in the orders of subordinate Courts, writ jurisdiction should not be invoked. Moreover, the right of "Hazanat" is such a prime right of the mother that the same supercedes all other connecting matters. In tender age, the protection which a mother can provide is unmatchable. Nothing on earth can supercede her right which she thus can exercise being a natural and best caring guardian because of natural love and affection which she bears for her children. Relying upon (P.L.D 1999 Peshawar 59) re: "Nazar Gul Vs. Sessions Judge and others" which is D.B. judgment, the petitioner claimed that tender age is not a disqualification but rather advantageous to the mother for obtaining the custody.
It is true that the superior Courts have always directed to decide the matter of custody of child after due care and proper inquiry etc, but no where it has ever been held that any body especially a father who does not remain present within the country having his permanent abode at Dubai can have a preferential right over the mother. He further argued that once it is decided that the interim custody shall remain with the mother it should not be changed unless there is very material change in the circumstances of the two parties.
The respondent counsel denied that she left the house of the petitioner at her option or voluntarily. Further that there is no delay in filing of the petition as claimed by the petitioner as during the intervening period she remained involved in getting the custody of the children through seniors of the family as well as through friends and relatives. However, on failure of the said seniors, she decided to invoke the jurisdiction of the Guardian Judge. It was also argued that the respondents working in Beauty Parlor is no bar in taking the custody. It is a lawful business and there is no prohibition against any body to work at such or similar places.
Furthermore, this fact alone that the respondent is not present in Pakistan and the children are living with their grand mother also gives force to the claim of the respondent. Reliance in this regard is placed on (P.L.J 2004 Lahore 1048) re: "Mst. Khurshid Begum Vs. Additional District Judge, Rawalpindi and 2 others", (2000 Y.L.R 3046) "Mst. Farah Waqar Vs. Dr. Waqar Ahmad Khan and another" and (P.L.D 2004 Lahore 395) re: "Mrs. Khurshid Begum Vs. Additional District Judge, Rawalpindi and 2 others".
After hearing both the parties and perusal of the record as well as case law, I am convinced that ultimate finding of the two forums below with respect to the interim custody to the mother is un-exceptional. It is evident from the record that the respondent father is not present in Pakistan. He does not visit very often, hence, for all practical purposes the minors are not having paternal love and affection in any manner. It may be true that the respondents are living in systematic life in the house of their grand mother, but, obviously she cannot be a substitute to the mother and even father either. Since the maintenance of the children is the responsibility of their father, the minor can still have the same level of the education and the treatment even while remaining under the shelter of her mother.
Furthermore, depriving the mother from all her three children at the same time especially when she is entitled to the "Hazanat", will be unfair. Still further the minor is too young to be taken care of by an old lady, grand mother or by her elder sisters who also are not even in teen ages. The interim custody allowed, therefore, is confirmed and the writ petition is considered without any merit.
It may be mentioned here that the legislature by not providing a second appeal in such matters have given the impression of culmination of such issues at the stage of Addl. District Judge. The intention of the legislature should not be circumvented with by using the powers of a writ substitute of an appeal. While giving the order of interim custody, no illegality or even irregularity has been done by any of the two forums. The writ petition, therefore, is without merit, hence is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 692 (DB)
Present: Syed Hamid Ali Shah & S. Ali Hassan Rizvi, JJ.
I.G. PUNJAB--Appellant
versus
AKHTAR JAVED etc.--Respondents
I.C.A. No. 154 of 2008, alongwith I.C.A. Nos. 156 & 157 of 2008, decided on 6.3.2009.
Punjab Service Tribunal Act, 1974 (IX of 1974)--
----S.
4--Police Act, 1861, S. 12--Police Rules, 1934, Rr. 13-1 & 13.8--Law
Reforms Ordinance, 1972, S. 3--Out of turn promotion to the post of head constable--Confirmation by High Court--Appeal against--Promotion to the post of head constable is not dependent merely on qualifying the lower school exam. but it is a stepwise promotion with first step being promotion as selection grade constable--After that, entry in list B' is next step for being nominated for
Lower School Course--Third step is entry in the ListC' after qualifying the
Lower School Course--No concept of accelerated or out of turn promotion in the police force, except on the grounds of feats of extra ordinary courage and bravery and outstanding performance--As office order of the I.G. Police was issued without approval by the Govt. of Punjab, so it had no legal sanctity--Held: One step promotion as head constable was considered as temporary measure and could not be considered a regular promotion--Order was rightly withdrawn--Appeals accepted.
[Pp. 697, 698, 699 & 700] A, B, C, D & E
1999 SCMR 1594, 1997 PLC (CS) 1150, PLJ 1999 SC 873 & 1998 SCMR 2013, ref.
Mr. Muhammad Nawaz Bajwa, Advocate for Appellant.
M/s. Omar Alvi & Tariq Javed, Advocates for Respondents.
Date of hearing: 26.8.2008.
Judgment
Syed Hamid Ali Shah, J.--This intra court appeal is directed against the judgment of learned Judge in Chamber, whereby one step promotion as Head Constable on joining the training school was treated as regular promotion/confirmation in all respects.
The case of the respondents in all the three writ petitions, as set out in the petitions is that they were initially appointed as Constables and were granted one step promotion as Head Constable Instructor on their joining the staff of Police Training School and they claimed confirmation in the rank of Head Constable from the date of one step promotion. The I.G Police through letter dated 22.03.2008 declined their request on the ground that they had not qualified Lower School Course and could be detailed for such course on completion of at least 3 years at the Training School; and after having it completed successfully, only then they could be promoted as Head Constable and could retain their rank. They sought the declaration that one step promotion be declared "promotion for all purposes and they may be allowed to join "Intermediate Training Course". The Writ Petitions were accepted by treating one step promotion of the respondents as Head Constables, a regular promotion in all respects. The respondents were also held entitled for Intermediate Training Course required for promotion as A.S.I.
The department through present Appeal has assailed the judgment of learned Judge in Chamber on the grounds that the issue of determination of seniority of officials gaining benefit of one step promotion in training centers as well as undergoing Lower School Training Course, creates bad precedents and also causes resentment amongst regularly promoted Head Constables, therefore, the competent authority rightly directed to withdraw their promotion orders; that according to Police Rules 13.1 and 13.8, Lower School Course qualification/seniority is pre-requisite for promotion of a Constable to the rank of Head Constable. After qualifying Lower School Course a Constable is brought on Promotion List and becomes eligible for Promotion as Head Constable; that the selection policy issued by the Central Police office vide Circular No.6025/T-3 dated 08.11.2002 does not indicate that an official can claim his promotion from the date he joins any Police Training School/police Training Institution. On the contrary, it clearly says that his seniority in the rank of Head Constable will be considered along with the batch mates of the Lower School Course; that even the posting order to Police Training Institute makes it very clear that they are transferred to Police Training Institution on "one step". The word promotion is not used in the transfer order. They are merely posted to the Police Training School/Police Training Institution as Instructor and are liable to be repatriated to their home district as Constable if their performance is considered unsatisfactory within a minimum period of 3 years of their stay in training centers; that even no show cause notice or enquiry is required in this case as one step posting does not endow them with the vested right of seniority or regular/substantive promotion; that the respondents got the benefit of seniority amongst regular Head Constables by misinterpretation of law and by encroaching upon the vested rights of seniority of regular Head Constables as they gain seniority according to Police Rule- 13.1 and 13.8, which clearly lays down that seniority/promotion shall be governed according to merit list of Lower School Course result. It was further contended that there was resentment all over the Province amongst Head Constables over one step promotion on posting in training centres. This policy will ensure that only senior most Head Constables on list "C-I" are sent for inter class course purely in order of merits, according to the rules; that the impugned judgment is on old circular of 19.4.94 which had no concern with the prevailing policy of 2002 which was in accordance with Police Rule 13.1 and 13.8 and regulated one step posting in Training Centers. Hence the impugned order passed by the learned Judge in Chamber, is coram-non-judice and not in consonance with the facts and law. Reference was made to rule 13.1, 13.8 and para 7a of circular letter No.6025/T-3 dated 08.11.2002.
Learned counsel for the respondents submit that the petitioners were promoted as Head Constables on one step promotion basis and were confirmed as such in view of the policy letter dated 30.09.2006 and in line with the judgment of the Punjab Service Tribunal in S.A. No. 888 of 2005 dated 6.4.2006 titled "Khalid Farooq vs. Inspector General of Police" and the judgment of the apex court reported as Inspector General of Police, Lahore vs. Qayyum Nawaz Khan (1999 SCMR 1594). However, contrary to the well established practice, the confirmation from the date of one step promotion was declared as incorrect through memorandum dated 22.3.2008. It was claimed that the office memorandum dated 22.3.2008 was a nullity in the eye of law because it had adversely affected respondents' prospects of promotion and seniority etc., as they were un-able to join the Intermediate Course for promotion as ASI, which was pre-requisite for promotion.
Learned Assistant Advocate General assisted by the Additional Inspector General of Police (Legal) submitted that one step promotion was granted to the petitioner as an incentive on joining the training center and their seniority in the rank of Head Constable could only be considered alongwith their batch mates of the Lower School Course. Further added that the word promotion is not used in the transfer order because they was liable to be repatriated to their home district as constable if their performance was considered unsatisfactory within a period of three years of their stay in training centre.
Admittedly the respondents gained the benefit of lower school course as well as one step promotion by virtue of their posting in Training Centers i.e. Police Training School. This policy gave the respondents financial as well as promotion benefits. Besides the above two benefits, these officials are now trying to jeopardize the Principal of seniority, which is the vested right of every Government Official; that an illegal order cannot attain finality merely on the grounds of its issuance. No financial benefits are being withdrawn from the officials, only principles of seniority are being followed for the rule of the law.
Heard learned counsel for the parties and record perused.
Under section 12 of the Police Act, 1861 the Inspector-General of Police was empowered, with the prior approval of the provincial Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police force. The ranks and classes of police officers, are classified in Rule 1.13 of Police Rules, 1934. Under the said rule "Enrolled Police Officers" include Inspectors, Sergeants, Sub Inspectors, Assistant Sub Inspectors, Head Constables and Constables. The police officers above the rank of Assistant Sub Inspector are called "Upper Subordinate" while all others are "Lower Subordinates". Rule 12 deals with appointment, confirmation and seniority of "enrolled police officer". It is provided that head constable and constables will be borne on district rolls and will receive constabulary number. Seniority of lawer subordinates, as provided in Rule 12.2. reckons from dates of appointment subject to condition of Rule 12.24. Promoted officer is ranked senior to direct appointee in the same rank on the same date. The Head constables as per Rule 12.10 are appointed by promotion from selection grade constables in accordance with Rules 13.7 & 13.8. According to Rule 13.1, the factors for promotion are seniority, efficiency and honesty. Specific qualifications in nature of training courses or practical experience are also the consideration. Rule 13.2 provides for six promotion lists i.e. A, B, C, D, E & F which are to be maintained in each district. Rule 13.5, makes the promotion of constable (subject to vacancy) contingent upon his capability of reading and writing simple Urdu and English sentences, Character roll without stigma and physical fitness upto required standard. Temporary promotion to the selection grade, according to Rule 13.5(4), is accorded to those who are posted to onerous and responsible duty such as Instructors permanent traffic staff, secret service and central investigation agency etc. The constable having educational qualification above matriculation and exceptional family claims can be promoted to selection grade immediately on passing their recruitment course with credit, as envisaged in Rule 13.5(5). The officiating promotion to the selection grade, according to Rule (sic) recruits training course and ordinarily such promotion is granted to the recruit who gains first place in the order of merit. Rule 13.6(2), speaks about grant of promotion to those constables who gain 1st and 2nd place in the order of merit on the recommendation of principal. It will advantageous to reproduce Rules 13.7 & 13.8 here under :--
ENTRY OF LIST "B"
R. 13.7 List B (in Form 13.7) shall also be maintained by each Superintendent of police and shall be divided into two parts
(1) Selection grade constables considered suitable as candidates for the Lower School course at the Police Training School.
(2) Constables (selection or time-scale) considered suitable for drill and other special courses at the Police Training School.
Selection shall be made from this list as vacancies occur for admission to the courses concerned at the Police Training School, provided that no constable shall be considered eligible for any such course until the entry of his name in list `B' has been approved by the Deputy Inspector-General of the Range. Ordinarily seniority in age shall be given prior consideration in making such selections, irrespective of the date of admission to the list, and care must be taken that a constable borne on the list is not allowed to become over age for admission to the school before having selected. The restrictions on admission to the lower school course and Instructors courses at the Police Training School limit the conditions for admission to list B. No constable shall be admitted to that list whose age is such that he cannot in the normal course be sent to the Training School before he attains the age of [33] years. No constable, who has failed to qualify at the Training School, shall re-admitted to the list unless the Superintendent and the Principal of the school are in agreement that he is deserving of another chance of qualifying in the courses, in the event of disagreement as to such a case the Deputy Inspector-General shall decide.
LIST C PROMOTION TO HEAD CONSTABLES
R. 13.8
(1) In each district a list shall be maintained in card index form [Form 13.8 (1)] of all constables who have passed the Lower School Course at Phillaur and are considered eligible for promotion to head constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2), and notes by the Superintendent himself, or furnished by gazetted officer under whom the constable has worked, on his qualifications and character.
(2) Promotions to head constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the Police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to head constable up to a maximum of the ten per cent of vacancies.
Combine reading of above referred rules bring us to conclude that Promotion of a constable to the selection grade head constable shall be made if he (a) fulfills the required physical standard (b) can read and write simple Urdu sentences and English numerals, (c) has a character roll clear of any stigma, (d) earns marks as per marking system laid down in rule 13.5(2) and (e) availability a vacancy. However the following exceptions have been made to the rule:
(i) Constables posted to onerous and responsible duties such as instructor etc may be given temporary promotion to the selection grade.
(ii) Matriculate constables having exceptional family claims may be promoted to the selection grade immediately on passing recruits course with credit.
(iii) Officiating promotion may be made to the selection grade in respect of those recruits who show outstanding merit in the recruit training course.
All constables who have passed Lower School Course are considered eligible for promotion to the rank of head constable and their names are entered in list "C" maintained in Form No. 13.8(l).
Promotions to the rank of head constables are made from amongst constables who have qualified Lower School Examination after taking into consideration order of merit in the examination passed.
Promotion to the post of head constable is not dependent merely on qualifying the Lower School Examination but it is a stepwise promotion, the first step being promotion as selection grade constable. After earning selection grade, entry in list "B" is next step for being nominated for Lower School Course. The third step is entry in list "C" after qualifying the Lower School Course. Promotion to the head constable is made from the constables who have been enlisted in list "C". The selection of course is dependent on merit, qualification and seniority of the constables. Seniority alone is not the main criteria for promotion. Even, date of confirmation is not relevant as seniority of lower subordinates is to be reckoned from the dates of their appointment.
To resolve the instant controversy, what actually is relevant, that have the respondents had been duly promoted as selection grade head constables as provided in the rules discussed above? If they were not so promoted then they were not entitled to be detailed/nominated for the Higher School Course in preference to the regularly promoted selection grade head constables.
Apart from the above there is no concept of accelerated or of out of turn promotion in the police force except on the grounds of feats of extraordinary courage and bravery and outstanding performance in the line of duty. Reference in this regard can be made to the case of Abdul Ghaffar etc. Vs. D.I.G. etc. 1997 PLC (CS) 1150; wherein it was held:--
Grievance of the petitioners is that since they were given out of turn promotion for their outstanding performance on different occasions, therefore, they were exempted to take examination and qualify the same for being enlisted in list B/1 of District Multan. However, the S.S.P., Multan had conducted such examination in the year 1995, wherein the petitioners did not appear. Rule 13.1 of Police Rules, 1934 no doubt, bases promotion of police officials on general concept of seniority-cum-fitness, but Rules and Regulations also do exist whereby the police officials who had sustained injuries and shown bravery at critical times were awarded out of turn promotion and such instructions and Rules had been implemented carrying force of law behind them in order to boost up courage of the police force.
Order passed by the D.I.G. deleting the names of the petitioners from the said List B/1 and all consequent orders passed in pursuance thereof, were set aside in circumstances.
One step promotion was allowed to the instructional staff of Training Institutions of the Punjab Police through Office Order No.6025/T-3 dated 08.11.2002 issued by the Inspector-General of Police Punjab Lahore. Perusal of the office order reflects that vide Para 7(2) of the order one step promotion was allowed to a constable as head constable inspector on his posting in the Police-Training Institution. Para 7(3) provided that on successful completion of three years tenure the said head constable will be sent for Lower School Course. On successful completion of Lower School Course he will be brought on list C-1 as head constable and will be reverted back to his District/Unit as head constable of list C-1. Through the impugned letter dated 22.03.2008 the preferential treatment given to the head constables of Police Training School, was withdrawn and it was directed that such officers shall not be treated as regularly promoted head constables and on their return to their department shall be reverted to their substantive post.
It was observed in the impugned judgment that respondents were accorded one step promotion as head constable, on appointment as instructor in the Police Training School. Respondents were treated as confirmed head constable on the strength of the law laid down in the case of Inspector General of Police, Lahore Vs. Qayyum Nawaz Khan 1999 SCMR 1594. Office memorandum dated 22.03.2008 was declared departure from policy and violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan.
The rules and procedure for promotion as head constable has been examined in some detail above. The rules do not admit of any out of term promotion except on the two grounds mentioned above. The Hon'ble Single Judge has relied on the case of Inspector General of Police, Lahore Vs. Qayyum Nawaz Khan (1999 SCMR 1594) which deals with the promotion of Upper Subordinates only. The seniority of Upper Subordinates is finally determined from the date of their confirmation in the post. While the seniority of Lower Subordinates is determined from the date of their appointment and their confirmation for the said purpose is immaterial.
Under Section 12 of Police Act, Inspector-General of Police may, from time to time, and subject to approval of Provincial Government, frame such orders and rules as he deems expeditious relating to the organisation, classification and distribution of police force and for rendering such force efficient in discharge of its duty. Word "approval" occurring in Section 12 of Act implies act of passing judgment, use of discretion, and a determination as a deduction therefrom, to confirm, rectify, sanction or to consent to some act or thing done by Inspector-General of Police. Word "approval" implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action. Merely because a Standing Order has held ground for a number of years is not sufficient to assume grant of "approval". Standing Order No. II issued, by Inspector-General of Police having not been approved by Provincial Government was devoid of its legal status and was, therefore, of no legal authority.
Honourable Supreme Court dealt with identical in the case of Siddiq Akbar, A.S.I and others Vs. Sanobar Khan, A.S.I, and others (1998 SCMR 2013) as under:--
Under Section 12 of Police Act, Inspector-General of Police may, from time to time, and subject to approval of Provincial Government, frame such orders and rules as he deems expeditious relating to the organisation, classification and distribution of police force and for rendering such force efficient in discharge of its duty.
The word "approval" occurring in Section 12 of Act implies act of passing judgment, use of discretion, and a determination as a deduction therefrom, to confirm, rectify, sanction or to consent to some act or thing done by Inspector-General of Police. The word "approval" implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action. Merely because a Standing Order has held ground for a number of years is net sufficient to assume grant of "approval: of issuance of Standing order by Provincial Government.
Applying the dictum of the honourbale apex court in the above referred cases, to the case in hands, we have no hesitation to hold that office order dated 23.02.2002 issued by Inspector General Police, without approval of the Govt. of Punjab has no legal sanctity.
(J.R.) Appeals accepted.
PLJ 2009 Lahore 701
Present: Hafiz Tariq Nasim, J.
Rana MUHAMMAD GHOUS--Petitioner
versus
GOVT. OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and 3 others--Respondents
W.P. No. 13558 of 2008, decided on 16.12.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Supersession of promotion--Challenge to--Petitioner was promoted and had been continuously working as Chief Engineer on officiating basis since July 2004 but was refused to be regularized--Held: Entire service record revealed that no such complaint was available which could lead the allegation of his being corrupt--There was not any justifiable reason for supersession, as mere allegation of corruption, without its substantiation through some material fact/record was nothing but an absurd accusation having no legal sanctity--Impugned supersession was set aside and converted into deferment--Petition accepted.
[Pp. 701 & 703] A, B, C & D
2003 PLC (CS) 503, 207 PLC (CS) 669 & 2007 SCMR 682, ref.
Mr. Iqbal Mahmood Awan, Advocate for Petitioner.
Mr. Naeem Masood, Assistant A.G. for Respondents.
Date of hearing: 16.12.2008.
Order
Brief facts leading to this writ petition are that the petitioner while serving in the Communication and Works Department, Government of the Punjab, was promoted as Chief Engineer (BS-20) but on officiating basis on 14.07.2004 and since then he is continuously performing his duties without any interruption whatsoever but his promotion as Chief Engineer (BS-20) is not being regularized, which has caused a serious prejudice to him.
"The officer may be deferred for regular promotion to the post of Chief Engineer (BS-20) due to incomplete service record. However, he may be allowed to continue working as Chief Engineer (BS-20)."
"Superseded for promotion to the rank of Chief Engineer/EDO (W&S) (BS-20) due to persistent bad reputation. Board also recommended that officer should not work as EDO (W&S) City District Govt. Multan on officiating basis in view of the doubtful integrity."
The petitioner filed a representation against the said supersession with a particular submission that he is at the fake end of his service as he is going to be retired on 24.05.2009 and such like treatment shall humiliate him amongst colleagues and society, hence the wrong be rectified but unfortunately his well reasoned request was not acceded to, thus he has no alternate remedy except to file this writ petition.
On the other hand, learned Assistant Advocate General submits that the petitioner's case was considered by the PSB in its true perspective, he could not prove himself up to the mark and he was rightly superseded due to his reputation being a corrupt. Further submits that this Court lacks jurisdiction in the matter of supersession which is a sufficient ground for the dismissal of writ petition.
Arguments heard. Record perused.
So far the competency of the writ is concerned, it is already resolved by this Court as well as by the Hon'ble Supreme Court of Pakistan in a number of cases that in case of supersession writ is competent. If any authority is required, reference can safely be made to the cases of Muhammad Zaheer Abbasi vs. Government of Pakistan (2003 PLC (CS) 503), Muhammad Ashraf vs. Government of Pakistan through Secretary Establishment, Government of Pakistan and another (2007 PLC (CS) 669) and Muhammad Iqbal and others vs. Executive District Officer (Revenue), Ladhran and another (2007 SCMR 682).
So far the merits of the case is concerned, with the help of learned Assistant Advocate General the petitioner's entire record which is produced by the departmental representative is perused. The same reflects that throughout service there was only one minor penalty of censure in the year 1999 but despite this penalty the petitioner was promoted in the year 2000 as Superintending Engineer and then he was promoted as Chief Engineer (BS-20) on officiating basis on 14.07.2004. The entire service record reveals that no such complaint is available which could lead the allegation of reputation being a corrupt.
When confronted with that whether officiating promotion as Chief Engineer (BS-20) is still in field or right from the year 2004 to-date, it was ever withdrawn or discontinued, the departmental representative, after consulting the record submits that the officiating promotion as Chief Engineer (BS-20) awarded to the petitioner by the competent authority in the year 2004 was not withdrawn or discontinued and that the petitioner is enjoying with the same even today.
When all these facts are admitted as referred above, it is really shocking that on one hand the department insists on the allegation that the petitioner having reputation of being a corrupt officer is allowed to continue as Chief Engineer on officiating basis but on the other hand the word Officiating is not beings converted into Regular on the pretext of that very allegation, which otherwise could not qualify a civil servant for his retention in service even for a single day.
Neither the departmental representative not the learned Assistant Advocate General could justify the reasons of supersession which is made the basis for filing of this writ petition. It is well settled law that mere allegation of corruption without its substantiation through some material fact/record is nothing but an absurd accusation having no legal sanctity.
It is an admitted fact that the petitioner is going to superannuate in near future and regularization of his officiating promotion, which he otherwise is enjoying since 2004, shall not cause any prejudice to any of the petitioner's colleagues and it shall not harm to the Government too, who otherwise is benefiting him since 2004 by allowing him to get all benefits of the post of Chief Engineer. In the attending circumstances, the impugned supersession dated 01.09.2008 is declared illegal, set aside and is converted into deferment. Resultantly, the writ petition is allowed and Respondents No. 1 and 3 are directed to place the petitioner's case for regular promotion before Respondent No. 2 i.e. Provincial Selection Board-I, who shall consider the same in its forthcoming meeting fairly, justly and without being influenced from any previous supersession/extraneous consideration. The entire exercise shall be finalized within a period of six weeks from today.
(J.R.) Petition accepted.
PLJ 2009 Lahore 704
Present: M.A. Zafar, J.
Mst. ZOYA RAFIQUE--Petitioner
versus
DEPUTY INSPECTOR GENERAL OF POLICE (INVESTIGATIONS), LAHORE and 7 others--Respondents
W.P. No. 6858 of 2009, decided on 14.5.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Statement of victim--Removed her shalwar and tried to commit zina with her but could not succeed--No penetration took place but due to the act of respondent, her shalwar and clothes become wet--Police found accused innocent and submitted report before Magistrate--According to report of chemical examiner, no zina was committed--Investigation of the Police was mala fide and partial in presence of statement of victim--Validity--Commission of zina was negated by report of chemical examiner though no such allegation was leveled by the victim--He has not given any importance to the statement of the victim recorded u/S. 164, Cr.P.C. and similarly upon the report of investigating officer, passed the impugned order--Police officer did not bring into the notice of the magistrate at the time of passing of order--Impugned order was set aside. [P. 706] A
Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.
Ch. Irfan Saeed, Advocate for Respondent No. 7.
Date of hearing: 14.5.2009.
Order
Brief facts of the case are that the petitioner submitted an application to S.H.O. Police Station Shera Kot, Lahore stating therein that on 27.1.2009 at about 7:00 p.m., the petitioner was present in her house and one Mian Ijaz Ahmed s/o Ch. Muhammad Tufail was also present in her home as guest. The daughter of the petitioner namely Mst. Aisha Mushtaq aged 11 years was not seen to be present, that is why the petitioner searched her and she went upstairs on roof of her house. Then she heard hue and cry of her daughter, which was coming from the roof of a house of her neighbour. The petitioner in a crying and weeping position ran downstairs and when Mian Ijaz Ahmed and she went upstairs to the roof of her neighbour from where voice of hue and cry of the daughter of the petitioner was coming and there was a room on roof of the house of her neighbour which was bolted from inside and from that room the voice of hue and cry of her daughter was coming. The petitioner peeped into the room and saw that Intizar Ali respondent was committing Zina with her daughter. The petitioner and Mian Ijaz Ahmed knocked at the door forcibly and suddenly the door was opened and Intizar Ali accused succeeded to flee away.
After registration of case, Mst. Aisha Mushtaq, the alleged victim, moved an application before the learned Ilaqa Magistrate stating therein that she is 11 years of age and student of 5th class. Intizar Ali respondent took her in a room on the roof of his house and he started indecent acts with her and on her hue and cry, he put hand on her mouth and removed her Shalwar and tried to commit Zina with her but could not succeed. She further stated in the application that no penetration took place but due to the act of respondent, her Shalwar and clothes became wet. The learned Judicial Magistrate, Lahore on 23.2.2009, recorded her statement in which she reiterated whatever she had stated in her application.
During investigation, the police found Intizar Ali accused innocent and submitted report before the learned Ilaqa Magistrate stating therein that according to the report of the Chemical Examiner, no Zina was committed with Mst. Aisha Mushtaq and acting upon the report of Muhammad Maqsood ASI/Investigating Officer of Police Station Shera Kot, Lahore, which was forwarded by the Incharge Investigation as well as B.S.P. Nawankot Circle, Lahore, the learned Ilaqa Magistrate vide orders dated 2.3.2009 discharged the accused and directed to release him. Before passing of the said order on the same day in the presence of Muhammad Maqsood ASI, the learned Additional Sessions Judge Lahore dismissed the bail application of Intizar Ali respondent with certain observations holding that the investigation of the police is mala fide and partial and did not believe the findings of the police in the presence of the statement of victim and other PWs.
Learned counsel for the petitioner submits that there was no allegation of committing Zina and thus the report of Chemical Examiner being in negative was of no help to the accused as according to the statement of Aisha Mushtaq, it was only a case of an attempt to commit Zina. He further submits that whatever respondent did with Aisha Mushtaq, she narrated the same in her application as well as in her statement recorded by the learned Magistrate under Section 164 Cr.P.C.
On the other hand, learned counsel appearing on behalf of Respondent No. 7 submits that the order passed by the learned Magistrate is perfectly in accordance with law and according to the investigation conducted by the police. He submits that as in the FIR in clear terms, it was stated that the respondent was seen committing Zina with Aisha Mushtaq and in view of the report of Chemical Examiner in negative, the prosecution moulded their case by stating that only an attempt to commit Zina was made by the respondent.
After hearing learned counsel for the parties and perusing the record, I have noticed that the impugned order appears to have been passed merely on the basis of the investigation reports of police officer. The learned Magistrate does not appear to have independently considered the material on record. He passed the impugned order on the presumption that the commission of Zina has been negated by the report of the Chemical Examiner, though no such allegation was leveled by the victim. He has not given any importance to the statement of the victim recorded under Section 164 Cr.P.C. and similarly upon the report of the investigating officer, passed the impugned order. The police officer did not bring into the notice of learned Magistrate at the time of passing of order that early in the morning, certain observations have been made by the learned Additional Sessions Judge while dismissing the bail of Intizar Ali respondent.
Resultantly, the impugned order dated 2.3.2009 passed by the learned Judicial Magistrate, Lahore releasing the Respondent No. 7 after being discharged from the case, is set aside and the Respondent No. 7 be put to the position prior to 2.3.2009.
(R.A.) Petition accepted.
PLJ 2009 Lahore 706
[Bahawalpur Bench Bahawalpur]
Present: Abdul Shakoor Paracha, J.
MUHAMMAD SAFDAR--Petitioner
versus
RENT TRIBUNAL AHMAD PUR EAST and another--Respondent
W.P. No. 1395 of 2008, decided on 13.5.2009.
Punjab Rented Premises Ordinance, 2007--
----S. 22(2)(6)--Constitution of Pakistan, 1973--Art. 199--Ejectment petition--Rent Tribunal may pass final order--Question of--Defendant failed to move the application for leave to contest within stipulated time of 10 days from his first appearance before tribunal--Petitioner filed an application u/S. 22(6) of Ordinance, 2007 for passing final order--Aplication filed u/s. 22(6) was rejected and application for leave to contest was allowed--Application for condonation of delay was also accepted by observing that order for ejectment cannot be passed who has not established his right of ownership--Validity--If the leave to contest was refused or respondent failed to file application for leave to contest within the stipulated time, Rent Tribunal shall pass the final order--Held: Plaintiff did not file application for leave to contest within ten days, therefore, there was no jurisdiction with the Rent Controller to accept the application for leave to contest which was not with the time and for passing the final order on the ejectment petition of the petitioner was mandatory--Rent Controller had not exercised the jurisdiction vested in it, order was declared illegal which was without lawful authority.
[Pp. 707 & 708] A & B
Mian Muhammad Bashir, Advocate for Petitioner.
Mr. Liaqat Ali Malik, Advocate for Respondent No. 2.
Date of hearing: 13.5.2009.
Order
Muhammad Safdar, petitioner, through this constitutional has assailed the order dated 06.10.2008, passed by the Rent Controller/learned Civil Judge, Ist-Class, Ahmadpur East, Bahawalpur, through which the application, filed by the petitioner/plaintiff under Section 22(6) of the Punjab Rented Premises Ordinance, 2007 for passing the final order upon the Ejectment petition on the ground that respondent/defendant has failed to move the application under Section 22(2) of the Punjab Rented Premises Ordinance, 2007, for leave to contest within stipulated time of 10 days from his first appearance before the tribunal, has been dismissed.
The brief facts of the case are that the petitioner/plaintiff filed an application for ejectment against the Respondent No. 2 before the Rent Controller/learned Civil Judge, Ahmad Pur East Bahawalpur on 19.5.2008 on the basis of Rent Agreement dated 13.2.2008. The notice was issued to the Respondent No. 2. After service of the notice, the respondent/defendant appeared through his counsel and the case was adjourned for 21.6.2008 and thereafter to 03.7.2008. On 05.7.2008, Javaid Iqbal/Respondent No. 2 filed an application seeking permission for leave to contest along with application for condonation of delay and extension of time. The petitioner also filed an application under Section 22(6) ibid on 23.6.2008 for passing final order as the respondent defendant did not apply for leave to contest within 10 days from his first appearance before the Tribunal. The application of the petitioner/plaintiff was rejected and the application of the respondent/defendant for leave to contest was allowed. The application for condonation of the delay was also accepted by observing that order for ejectment cannot be passed in favour of the petitioner/plaintiff, who has not established his right of ownership over the disputed property as yet.
The learned counsel for the petitioner/plaintiff contends that by virtue of Section 22(2) read with Section 22(6) ibid, the learned Rent Controller was bound to pass a final order in the ejectment petition on the failure of tenant/respondent in filing the application for leave to contest.
Conversely, the learned counsel for the respondent/defendant opposed the petition while contending that relation of the landlord and the tenant is denied, therefore, the application for leave to contest has rightly been granted after condoning the application of the respondent/defendant.
I have heard the arguments of the parties and perused the record.
To resolve the controversy, Sections 22(2) and (22(6) ibid are produced which are as under:--
"Subject to this Ordinance, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal;
"If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order".
The plain reading of Section 22(2) ibid reveals that it was obligatory for the respondent/defendant to file the application for leave to contest within ten days of his first appearance before the learned Rent Controller. The penalty has been provided in sub para 6 of Section 22 ibid which says that if the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order. In the instant case, admittedly, the respondent/plaintiff did not file application for leave to contest within ten days; therefore, there was no jurisdiction with the Rent Controller to accept the application of the respondent for leave to contest which was not within the time and for passing the final order on the ejection petition of the petitioner/plaintiff was mandatory. The learned Rent Tribunal has not exercised the jurisdiction vested in it.
For what has been discussed above, the order dated 06.10.2008 is declared illegal which was without lawful authority. The learned Rent Tribunal is directed to pass the final order in the ejectment petition of the petitioner/plaintiff. This order may be sent to the learned Rent Controller concerned. Disposed of as such.
(R.A.) Case remanded.
PLJ 2009 Lahore 709
[Multan Bench Multan]
Present: Mazhar Hussain Minhas, J.
GHULAM ABBAS etc.--Petitioners
versus
BOARD OF INTERMEDIATE etc.--Respondents
W.P. No. 11699 of 1998, decided on 18.4.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Question of final seniority list--Petitioners and respondents were appointed as junior clerks subject to qualifying typing test--Consolidated tentative seniority list was notified--Dissatisfied with their seniority reflected--Two seniority lists one of senior clerks and other relating to junior clerks--Validity--Seniority of a civil servant under Civil Servants (Seniority) Rules, 1993 is reckoned from the date of his regular appointment--Candidates were appointed subject period which was extended from time to time--Held: Petitioners and respondents qualified the typing tests on different dates and their seniority was to be fixed from the dates on which they qualified the requisite test--Petition was allowed. [P. 710] A
Mr. Khadim Nadim Malik, Advocate for Petitioners.
Mr. Allah Bukhsh Khan Kalachi, Advocate for Respondents.
Date of hearing: 24.3.2008.
Judgment
Through this writ petition the petitioners have called in question the final seniority list dated 1.8.1998 notified by Respondent No. 3.
Relevant facts giving rise to this writ petition are that petitioners and Respondents Nos. 4 to 46 were appointed as Junior Clerks in the Board of Intermediate & Secondary Education, Dera Ghazi Khan, subject to qualifying typing test, during the period from 1989 to 1991. In the year 1993, sixty-six more Junior Clerks were appointed and typing tests were conducted from time to time for their regularization. On 2.5.1997 a consolidated tentative seniority list was notified by Respondents Nos. 1 to 3. Dissatisfied with their seniority reflected in that list, the petitioners submitted applications to Respondent No. 2 with the prayer that the seniority list be prepared afresh in the light of observations of the Audit Officer of the Board that the appointment of Clerks would be considered regular from the date they qualified the typing test for the purposes of selection grade. Their applications, however, did not find favour and were filed on 26.6.1997. Feeling aggrieved, the petitioners filed W.P. No. 5731/97 which was dismissed as withdrawn vide order dated 14.9.1998, in view of the parawise comments submitted by Respondents Nos. 1 to 3 that they had already issued the final seniority list. Thereafter the petitioners submitted their representation before Respondents Nos. 1 to 3 which was also dismissed. Therefore, they filed the present writ petition. In their parawise comments, Respondents Nos. 1 to 3 submitted that the final seniority list has been prepared keeping in view the objections of the Audit Officer dated 21.4.1994 and 5.5.1994 and no irregularity has been committed in this regard.
To substantiate their contentions, the petitioners have annexed with the writ petition two seniority lists, one of Senior Clerks issued vide Notification No. 860/Estt. Dated 1.8.1998 and the other relating to Junior Clerks bearing Notification No. 862/Estt. Dated 1.8.1998. In the seniority list of Senior Clerks, the date of appointment as well as date of promotion have been mentioned against each incumbent, but in the seniority list of Junior Clerks, only dates of appointment have been mentioned. The dates on which different Junior Clerks qualified the typing test have not been mentioned in this list and it appears to have been prepared on the basis of their dates of appointment.
It is settled law that the seniority of a civil servant under the Civil Servants (Seniority) Rules, 1993 is reckoned from the date of his regular appointment. The candidates among the petitioners and Respondents Nos. 4 to 46 were appointed subject to the condition of qualifying the typing test within a specified period which was extended from time to time. It is thus quite evident that the petitioners as well as Respondents Nos. 4 to 46 qualified the typing tests on different dates and their seniority was to be fixed from the dates on which they qualified the requisite test.
For the foregoing reasons allowing this writ petition, seniority list of the Junior Clerks bearing Notification No. 862/Estt. Dated 1.8.1998 is set aside and Respondents Nos. 1 to 3 are directed to reconsider the seniority of petitioners qua Respondents Nos.4 to 46 in the light of the above observations. Disposed of accordingly.
(R.A.) Petition allowed.
PLJ 2009 Lahore 711
[Multan Bench Multan]
Present: Muhammad Khalid Alvi, J.
Rana MUHAMMAD HASHIM--Appellant
versus
Haji SHAFAAT AHMED--Respondent
R.F.A. No. 14 of 2002, decided on 9.2.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96 & O. XXXVII, Rr. 1 & 2--Limitation Act, 1908--Art. 73--Suit for recovery on the basis of a pronote--Objection of limitation--Period begins to run, as "the date of the bill or note"--Date/day on which the bill or note was executed is starting point of limitation and cannot be excluded--Held: Since the date of execution of pronote requires to be included in the period of limitation, therefore, the suit filed by respondent was barred by limitation--Appeal was allowed.
[P. 712] A & B
Mian Ashfaque Ahmad, Advocate for Appellant.
Malik Muhammad Lateef Khokhar, Advocate for Respondent.
Date of hearing: 9.2.2009.
Judgment
Brief facts of the case are that respondent filed a suit on 3.1.2000 under Order XXXVIII, Rules 1 and 2 CPC for recovery of Rs. 100,000/- (rupees one hundred thousand only) against the appellant on the basis of a pronote executed on 24.12.1996. Suit was contested by the appellant wherein an objection with regard to limitation was also raised. After grant of leave parties led their respective evidence and the suit was decreed on 5.11.2001. Same is being assailed through the instant appeal.
Learned counsel for the appellant has raised solitary argument with regard to the limitation of suit. It was submitted that the pronote was executed on 24.12.1996 and the period for limitation under Article 73 of the Limitation Act, 1908, is three years. The last date when the suit could have been filed fell on 23.12.1999, therefore, the suit is barred by time, Relies on "Sheikh Abdul Samad versus Khan Bahadur Muzaffar" (PLD 1953 Lahore 446) to contend that date of execution of a pronote is to be calculated towards the count of limitation.
On the other hand learned counsel for the respondent with reference to "Jainaraven Bapu versus Vithora and another" (AIR 1923 Nagpur 556) contends that date of execution of pronote is to be excluded for the calculation of limitation. He has also relied upon Section 12 of the Limitation Act to contend that the day from which period is to be reckoned shall be excluded and if the date of execution of pronote is to be excluded then the last date comes to 24.12.1999 and the said day was the first winter vacation which lasted till 02.01.2000 and the suit was filed on the very next date of re-opening of the Court, therefore, the same was within limitation.
I have considered the arguments advanced on behalf of the parties and examined the record.
Article 73 of the 1st Schedule of Limitation Act 1908 in column 3 provides time from which period begins to run, as "the date of the bill or note", meaning thereby that the date/day on which the bill or note was executed is the starting point of limitation and cannot be excluded. Same is the view taken by this Court in the case "Sheikh Abdul Samad versus Khan Bahadur Muzaffar" (PLD 1953 Lahore 446). Judgment cited by learned counsel for respondent is with reference to Section 19 of the Limitation Act, which deals with the acknowledgement, therefore, As not relevant for the purpose of decision of this case. In view of the above, since the date of execution of pronote requires to be included in the period of limitation, therefore, the suit filed by the respondent on 03.01.2000 was barred by limitation. Resultantly this appeal is allowed and judgment & decree passed by the learned trial Court is set aside. No order as to costs.
(R.A.) Appeal allowed.
PLJ 2009 Lahore 712
Present: Ali Akbar Qureshi, J.
SHAUKAT HAYAT--Petitioner
versus
SHAKIL AHMAD MUGHAL--Respondent
C.R. No. 1712 of 2007, heard on 31.10.2008.
Banking Court Act, 1997--
----S. 27--Civil Procedure Code, (V of 1908)--Ss. 115 & 51, O.VII, R. 11--Rejection of plaint--Jurisidctional of civil Court to entertain the matter relating to affairs of Banking Company--Barred by law--Questioning the auction made by Banking Court in execution of decree--Civil Court has no jurisdiction to entertain and decide the matter--Petitioner purchased land in-question in open auction being highest bidder--Validity--Civil Court had no jurisdiction to entertain a civil suit wherein the judgment only remedy available to respondent to challenge validity of sale made in favour of the petitioner in pursuance of auction conducted by Banking Court by filing and objection petition before Banking Court, who had jurisdiction to validate or invalidate the auction, if not conducted in accordance with law--Petition was allowed. [Pp. 714 & 715] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXI, R. 89--Civil Court cannot sit in a judgment if some auction has been made regarding the property of a person who has interested in the same. [P. 714] B
PLD 1993 SC 109 & 2002 SCMR 338, rel.
Rana Nasrullah Khan, Advocate for Petitioner.
Respondent in person.
Date of hearing: 31.10.2008.
Judgment
This civil revision is directed against the order dated 2.7.2007 passed by the learned Addl. District Judge, Sialkot whereby the order of the learned trial Court to reject the plaint under Order VII, Rule 11 CPC was set aside and the case was remanded for afresh decision.
The respondent instituted a suit questioning the auction made by the learned Banking Court No. 4, Lahore in execution of a decree passed in the suit titled as Grindlays Bank Limited v. Samanda and Sons (Suit No. 41/1997). The said property was purchased by the petitioner on 23.6.2000 and in consequence of the said sale, a sale certificate was issued to the petitioner on 18.7.2000. The petitioner mainly challenged the sale on the ground that the property was part of joint Khata and undivided, therefore, the sale of the land giving specific area and number could not be auctioned. The petitioner field an application under Order VII, Rule 11 read with Section 151 CPC whereas the other defendants of the suit filed the consenting written statement in the application under Order VII, Rule 11 CPC. The petitioner submitted that as the sale was made in pursuance of an auction by the learned Banking Court in execution of a decree under the Banking Courts Act, 1997, therefore, the Civil Court has got no jurisdiction to entertain and decide the matter. It was also submitted in the said application that the sale made by the Banking Court can only be questioned by the respondent by filing an objection petition under the relevant law. The learned trial Court after receiving the reply of the application and hearing the matters of the parties, finally accepted the application under Order VII, Rule 11 CPC and rejected the plaint being barred by law. The respondent being aggrieved of the said order, filed an appeal. The learned appellate Court heard the arguments of the parties and finally accepted the appeal on the ground that the Civil Court has the jurisdiction to entertain and decide the matter and finally set aside the judgment and decree and remanded the case afresh to the learned trial Court.
The learned counsel for the petitioner contended that in view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109) because of the specific bar given in the Banking Court Act, 1997, the Civil Court had not jurisdiction and entertain and decide the matter. The learned counsel also submitted that the judgment and decree and the sale by auction, can only be challenged by filing the petition under Order 21, Rule 92 CPC and the learned trial Court rightly rejected the plaint whereas the learned appellate Court accepted the appeal on a flimsy ground not available in the law. The learned counsel has also placed reliance on S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338).
The respondent present in person, submitted that the Civil Court has the jurisdiction to entertain and decide the matter as the learned Banking Court has auctioned the undivided property of the petitioner and the petitioner has already filed a suit for partition, which is still pending adjudication. The respondent again and again submitted that the land auction by the Banking Court was neither mortgaged nor pledged with the Bank and the same is owned by the respondent, therefore, the Civil Court can take the cognizance of such type of illegalities, if committed by any one but the respondent has failed to cite any law to confront the contention raised by the learned counsel for the petitioner regarding the maintainability of the suit before the Civil Court.
I have heard the learned counsel for the petitioner as well as the respondent in person and perused the record.
Undeniably, the petitioner purchased the land in question in open auction being highest bidder conducted by the learned Banking Court No. 4, Lahore to execute a decree passed by the said learned Court. In the aforesaid Banking Court Act, 1997, Section 27 deal with this proposition whereby the jurisdictional of the Civil Court to entertain the matter relating to the affairs of the Banking Company has barred. Further, the judgment referred by the learned counsel for the petitioner is very much clear on the point and there is no cavil with the proposition that the Civil Court had no jurisdiction particularly in such like cases to entertain a civil suit wherein the judgment and decree or any action of Banking Court has been challenged. The learned appellate Court in a very novel way has observed in Para-7 of the judgment that "no where in this section (Order 21, Rule 89 CPC) has been mentioned that Civil Court cannot sit in a judgment if some auction has been made regarding the property of a person who has interested in the same. The only remedy available to the respondent to challenge the validity of the sale made in favour of the petitioner in pursuance of an auction conducted by the learned Banking Court IV, Lahore by filing an application/objection petition before the learned Banking Court, who had the jurisdiction to validate or invalidate the auction, if not conducted in accordance with law. The learned appellate Court has committed jurisdictional defect, legal infirmity and material irregularity by accepting the appeal and set aside the judgment and decree passed by the learned trial Court.
For the foregoing reasons, this petition is allowed with no order as to costs.
(R.A.) Petition allowed.
PLJ 2009 Lahore 715
Present: Zafar Iqbal Chaudhry, J.
IMTIAZ AHMED CHATTHA--Petitioner
versus
SALAH-UD-DIN SIDDIQUI, ADDL. DISTRICT JUDGE, FAISALABAD and 4 others--Respondents
W.P. No. 14464 of 2008, decided on 24.10.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Ejectment petition--Tenants were directed to deposit monthly rent--Tenants failed to deposit the rent--Right of defence was struck off--Directed to vacate the possession of disputed premises within a period of 30 days--Assailed--During pendency of execution petition--Petitioner filed an application u/S. 12(2) of CPC operation of order was suspended--Revision petition was accepted--Assailed--Validity--Even if being erroneous on facts of law, cannot be interfered in constitutional jurisdiction and passed a well-considered order--Revisional Court had exercised the jurisdiction so vested in it or had acted in exercise of its jurisdiction illegally or with material irregularity rather the revisional Court on basis of proper reading, consideration and appreciation of evidence, has passed the reasoned order, which cannot be upset--Petition was dismissed. [P. 717] A
1991 SCMR 970, PLD 1985 SC 131 & PLD 1991 SC 65, rel.
Syed Nisar Ali Shah, Advocate for Petitioner.
Date of hearing: 24.10.2008.
Order
Imtiaz Ahmad Chatta petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenging the validity of order dated 15.10.2008 passed by learned Additional District Judge, Faisalabad whereby revision petition filed by Hashmat Ali Akhtar Respondent No. 4 against the order dated 1.7.2008 passed by learned Rent Controller, Faisalabad, was accepted.
Brief facts giving rise to this Constitutional petition are that Hashmat Ali Akhtar Respondent No. 4 filed an ejectment petition against Ijaz Qadeer etc. During the course of proceedings, the tenants were directed to deposit the monthly rent in view of Section 13 (6) of the Rent Restriction Ordinance, 1959. The tenants failed to deposit the rent and on 18.10.2007 in view of Section 13(6) of the Rent Restriction Ordinance, 1959, their defence was struck off and they were directed to vacate the possession of the disputed premises within a period of 30 days subject to depositing of usual rent. Hashmat Ali Akhtar Respondent No. 4 moved an execution petition regarding eviction of the tenants.
During the pendency of the execution petition, Imtiaz Ahmad Chatta etc (petitioner) moved an application against Habib-ur-Rehman, Hashmat Ali, Ijaz Qadeer and Ahmad Raza under Section 12(2) CPC stating therein that the respondents obtained the order dated 18.10.2007 regarding eviction of the tenants on the basis of fraud and misrepresentation. Vide order dated 1.7.2008 passed by learned Civil Judge 1st Class/Rent Controller, Faisalabad issues were framed and operation of the order dated 18.10.2008 was suspended till the decision of the application under Section 12 (2) CPC.
Feeling aggrieved by the above-said order dated 1.7.2008, Hashmat Ali Akhtar Respondent No. 4 preferred revision petition before the learned Additional District Judge, Faisalabad and the same has been accepted through impugned order dated 15.10.2008, which has been assailed through this writ petition.
Learned counsel for the petitioner has argued that, the revisional Court has grossly misread and ignored the important piece of evidence on the record; the findings of the Court are perverse and cannot be sustained. The learned counsel for the petitioner in support of contention that writ petition is maintainable against the revisional order has relied upon the following cases law:--
Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362)
Qamar-ud-Din v. Muhammad Din and others (PLD 2001 Supreme Court 518).
Muhammad Asghar v. District Judge, Sialkot and 3 others (1984 SCMR 1225), Mst. Sardar Begum v. Malik Khalid Mahmood and others (1986 CLC 2342), Muhammad Munir v. Munir Ahmad (2002 YLR 3196), Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2006 MLD 12), The Administrator-General of Auqaf, Government of Pakistan and another v. The District Judge, Sargodha (2001 CLC 218), Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322), 6. After hearing the learned counsel for the petitioner and perusing the material on the record, I find that the impugned order of the learned revisional Court, even if being erroneous on facts or law, cannot be interfered in the Constitutional jurisdiction, as the writ against such order is incompetent. However, the learned revisional Court had judiciously exercised its jurisdiction and passed a well-considered order. In the present case there is nothing to show that the learned revisional Court had exercised the jurisdiction not vested in it by law or had failed to exercise a jurisdiction so vested in it or had acted in the exercise of its jurisdiction illegally or with material irregularity rather the learned revisional Court on the basis of proper reading, consideration and appreciation of the evidence, has passed the reasoned order, which cannot be upset. Reliance is placed on the following case law:--
"Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970), Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131), Hasan Din v. Hafiz Abdus Salam (PLD 1991 SC 65)
In case of Noor Muhammad, it was held that there was an increasing tendency to file Constitution petitions even when the Courts, whose orders were challenged, had the jurisdiction to pass those orders. Further, it was observed that so was done notwithstanding the fact that where the Court has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it without lawful authority and certainly not illegal.
In the case reported as Hassan Din, leave to appeal was granted to examine, whether the decision of this Court in above-referred Noor Muhammad case did not oust the jurisdiction of the High Court to interfere in Constitutional jurisdiction with an order passed by the District Judge under subsection (2) of Section 115 of the Civil Procedure Code. It was held that the effect of the judgment delivered in Noor Muhammad case is not that a Constitutional petition is in no case permissible whatsoever the nature of the defect in the proceedings before District Judge be. Further, it was observed that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitutional petition.
The case law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case. Hence, following the dictum laid down by the August Supreme Court of Pakistan which is fully applicable to the facts and circumstances of the present case, I do find no merit in this writ petition which is hereby dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 718 (DB)
Present: Mian Muhammad Najam-uz-Zaman and
Khurshid Anwar Bhinder, JJ.
SHAUKAT ALI--Petitioner
versus
SPECIAL JUDGE ANTI-TERRORISM COURT NO. IV, LAHORE and 2 others--Respondents
W.P. No. 13553 of 2008, heard on 30.10.2008.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 23 & 7--Pakistan Penal Code (XLV of 1860) Ss. 302, 109, 148 & 149--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Application for transfer of case to Court of general/ordinary jurisdiction--Deceased were murdered by accused due to previous enmity between the parties and an act of private revenge based on personal venditta is not act of terrorism--Occurrence took place at midnight in a room of the house and no mentioning that hearing the fire shots the people of locality attracted or because of firing of the accused there was a terror or sense of fear and insecurity in the society--Held: Intention of accused was not at all to create sense of insecurity or in destabilizing public at-large or to advance any sectarian cause--House of the deceased was not a public place, therefore, element of striking terror or creating sense of fear and insecurity in the people or any section of the people is missing, the provisions of Anti-Terrorism Act, are not attracted in the case and trial Court has erroneously assumed jurisdiction--Petition was allowed. [P. 721] A
Mr. Muhammad Waseem, Advocate Assisted by Mr. Azam Nazeer Tarar, Advocate for Petitioner.
Mr. Waqar Hussain Mir, Advocate and Mr. Muhammad Akbar Tarar, Addl. A.G. for Respondents.
Date of hearing: 30.10.2008.
Judgment
Khurshid Anwar Bhinder, J.--Through the present constitutional petition, Shaukat Ali complainant has challenged the legality of the impugned order dated 6.10.2008, passed by the learned Judge ATC-IV, Lahore, whereby he dismissed the application filed by the petitioner under Section 23 of the Anti-Terrorism Act, 1997 for transfer of case FIR No. 32 dated 29.1.2008, registered under Section 302/109/148/149 PPC and Section 7 of the Anti-Terrorism Act, 1997, at Police Station Sharqpur Sharif to the Court of general/ordinary jurisdiction.
Briefly the facts leading to the filing of this constitutional petition are that Ghulam Rasool, complainant lodged the aforesaid FIR stating therein that in the midnight of 28/29.1.2008, he and his uncle Riasat Ali were sleeping in a room of their house situated at Mauza Khana Wali whereas Muhammad Mansha (his father) along with Ali Sher aged 13/14 years and Ali Ahmad aged 10 years (his nephews) were sleeping in the adjacent BETHAK when at about 1.00 a.m. Dani son of Hassan knocked at the door of the BETHAK whereupon Muhammad Mansha after asking about identity of Dani opened the door of the BETHAK where after the said Dani armed with dagger, Feroz alias Fauji armed with kalashnikov, Falak Sher alias Falkoo armed with 222 bore rifle, Mukhtar alias Mokhi armed with kalashnikov and Jaffar Ali made their entrance in the BETHAK, the light of which was already on. As result of the noise, the complainant and his uncle woke up and looked into the BETHAK through holes of the door between the common wall of the room and the BETHAK wherein they saw that Jaffer and Dani had caught hold of Muhammad Mansha (father of the complainant) when in the meanwhile, Dani accused cut the throat of Muhammad Mansha with his dagger while the other accused namely Feroz alias Fauji, Falak Sher alias Falkoo, Mukhtar alias Mokhi and Jaffer Ali resorted to firing at the father and aforesaid nephews of the complainant while raising lalkaras that despite their warning to desist from prosecuting the case regarding murder of Basheer, Muhammad Mansha had not abandoned the prosecution of the same and now was not to be left alive to prosecute. As a result of the said actions of the said accused, Muhammad Mansha (father of the complainant), Ali Sher and Ali Ahmad (nephews of the complainant) lost their lives at the spot. The complainant further alleged that the occurrence had taken place in pursuance of planning, instigation and abetment of Shaukat Ali son of Khushi Muhammad who in the noon of 28.1.2008 had been heard by Riaz Ahmad and Basharat Ali while imparting instructions in the Courts compound Sheikhupura to finish Muhammad Mansha as he was not giving up prosecution of case FIR No. 44/2007 registered under Sections 302/364/201/148/149 PPC about murder of Basheer Ahmad with Police Station Sharqpur District Sheikhupura against the accused party.
After investigation, the police declaring Feroz alias Fauji, Falak Sher alias Falkoo, Mukhtar alias Mokhi, Dani son of Hassan Muhammad and Jaffer Ali as proclaimed offenders and after the arrest of Shaukat Ali submitted challan before the Anti-Terrorism Court No. IV, Lahore where the petitioner filed an application for transfer of the case to the Court of ordinary jurisdiction which was dismissed through impugned order, hence the present constitutional petition.
Learned counsel for the petitioner submits that from the bare perusal of the FIR it reveals that though three persons were done to death by the accused but the occurrence was the result of previous enmity between the parties and that the provisions of Section 6 of the Anti-Terrorism Act, 1997 are not attracted in the circumstances but the learned trial Court has erroneously while taking cognizance of the matter has dismissed the application of the petitioner filed under Section 23 of the Act ibid.
Learned counsel for Respondent No. 2 submits that the action of the accused persons falls under the provisions of Section 6(1)(b) and subsection (2)(a)(b) of the Anti-Terrorism Act, 1997 therefore, the learned trial Court has rightly dismissed the application filed by the petitioner for transfer of the case as the night time occurrence has greater effect than the occurrence at day time. He, while relying upon the case of Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323) submits that the action of the accused persons created terror and fear in the community as they murdered three persons, as such, the case falls within the parameters of Anti-Terrorism Act, 1997.
Learned Additional Advocate-General while adopting the arguments advanced by the learned counsel for Respondent No. 2 has supported the impugned order.
We have heard the learned counsel for the parties and have also perused the record. The perusal of the FIR shows that the deceased were murdered by the accused persons due to the previous enmity between the parties and an act of private revenge based on personal vendetta is not an act of terrorism. The occurrence took place at midnight in a room of the house and there is no mentioning of the fact that hearing the fire shots the people of the locality attracted or because of the firing of the accused there was a terror or sense of fear and insecurity in the society. From the surrounding circumstances of the case, it appears that the intention of the accused persons was not at all to create sense of insecurity or in destabilizing the public-at-large or to advance any sectarian cause. Since the house of the deceased persons was not a public place, therefore, the element of striking terror or creating sense of fear and insecurity in the people or any section of the people is missing, as such, the provisions of the Anti-Terrorism Act, 1997 are not attracted in the instant case and the learned trial Court has erroneously assumed the jurisdiction.
As far as the judgment cited by the learned counsel for Respondent No. 2 is concerned, the same is not relevant under the facts and circumstances of the present case and the law laid down by the Apex Court in the case of Mohabbat Ali and another v. The State and another (2007 SCMR 142).
For what has been discussed above, we allow this writ petition, set aside the impugned order dated 6.10.2008, passed by the learned trial Court and transfer the aforesaid case to the Court of learned Sessions Judge, Sheikhupura for its disposal in accordance with law.
(R.A.) Petition allowed.
PLJ 2009 Lahore 722
Present: Syed Asghar Haider, J.
AHMAD SHER KHAN--Petitioner
versus
SENIOR MEMBER, BOARD OF REVENUE PUNJAB, LAHORE and another --Respondents
W.P. No. 5612 of 2008, decided on 27.10.2008.
Board of Revenue Act, 1957 (XI of 1957)--
----S. 8--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--A review--Controversy--Question of maintainability of second review--Second review petition was dismissed--Gravitates around judicial interpretation--Signifies a singular form--Only one review is competent before Board of Revenue and it was duly filed by petitioner earlier but was dismissed, therefore, a second review on the same subject is not maintainable and was rightly so held by Board of Revenue--Petition was dismissed. [P. 723] A
Mr. Amir Abdullah Khan Niazi, Advocate the Petitioner.
Mr. Shujaat Ali Khan, Assistant Advocate General for Respondent No. 1.
Qureshi Muhammad Saeed Asadi, Advocate for Respondent
No. 2.
Date of hearing: 27.10.2008.
Order
The petitioner is aggrieved of order dated 07.04.2008 passed by the Respondent No. 1 wherein a second review petition filed by the petitioner was dismissed.
The learned counsel for the petitioner contended that the orders passed by the revenue hierarchy are not in consonance with the legal requirements and in cases of gross illegality, there is no impediment with the Board of Revenue to adjudicate and decide the matter denovo to ward off such injustice.
The learned AAG and the learned counsel for the Respondent No. 2 submitted that the moot point for adjudication in the present matter is as to whether there is any provision in the Board of Revenue Act, 1957 enabling it to exercise powers for a second review or not. According to the learned counsel, only one review is permissible under Section 8, the same was availed by the petitioner and it was dismissed and thereafter the second review petition on the same subject matter is incompetent, consequently, the petition may be dismissed.
Heard.
The controversy in hand revolves and gravitates around the judicial interpretation of Section 8 of the Board of Revenue Act, 1957. For ready reference Section 8 of the Board of Revenue Act is reproduced:--
"Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require."
The language couched in this section clearly adverts to a review in the manner "A Review". The word "A" is very significant and important and itself clearly signifies a singular form, thus, if read together with "the word a review it clearly indicates that only one review is competent before the Board of Revenue." Had the intention of the legislature been otherwise the words certainly would have been "Reviews" and not a review. As only one review is competent before the Board of Revenue, and it was duly filed by the petitioner earlier, but was dismissed on 16.5.2007, therefore, a second review on the same subject is not maintainable and was rightly so held by the Respondent No. 1. This petition thus has no merits and is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 724
Present: Syed Shabbar Raza Rizvi, J.
SOOFI MUHAMMAD ALAM--Petitioners
versus
CITY DISTT. GOVT. through Ditt. Coordinatioon Officer, Distt. Faisalabad and 3 others--Respondents
W.P. No. 8115 of 2007, decided on 29.10.2008.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 5(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Qualification for appointment of nikah khawan--Appointment of Nikah Khawan in a ward--Annulment of license issued to respondent as nikah khawan--Only one nikah khawan is envisaged in a ward--Introduction of Punjab Local Government Ordinance, 2001--Provision of ward was abolished--Validity--Contentions--Every town is divided into different union council--Corresponding changes were not introduced in Muslims Family Law Ordinance--Contention of the petitioner stands evaporated and leaves no basis for edifice--Held: No specific qualifications are prescribed in the Muslim Family Laws Ordinance for appointment of nikah khawan--Petition dismissed. [P. 725] A
Mian Muhammad Saeed, Advocate for Petitioner.
Mr. Shabbir Ahmad Khan, Advocate for Respondent No. 3.
Mr. Muhammad Nawaz Bajwa, AAG for Respondents.
Date of hearing: 29.10.2008.
Order
The learned counsel seeks annulment of license issued to Respondent No. 3 as Nikah Khawan of Union Council No. 275-Faisalabad, on the ground that in one Ward only one person is contemplated as Nikah Khawan. According to the petitioner, he was appointed as Nikah Khawan on 2.2.1994 and since then has been performing his function in the above capacity. He refers to Section 5(2) of the Muslim Family Laws Ordinance, 1961, to reiterate that only one Nikah Khawan is envisaged in a Ward. He further submits that total population of the Ward comprises 1003 voters, per voters list of year 2007. Both petitioner and Respondent No. 3 are residents of the same Street No. 7 of the same Ward.
According to the learned counsel for the petitioner, Respondent No. 2 Nazim Union Council No. 275-Faisalabad is a close friend of Respondent No. 3 and on the basis of said relationship he appointed Respondent No. 3, and issued license of Nikah Registrar for Walipura Ward, Union Council No. 275, on 26.3.2006. According to the teamed counsel, Respondent No. 3 is running a shop, therefore, is not otherwise qualified for issuance of impugned license. According to the learned counsel, issuance of impugned license means infringement of legal rights of the petitioner and also violation of statutory provisions i.e. Section 5 of the Ordinance, 1961.
I have heard the learned counsel for the petitioner at length followed by submissions of the learned Assistant Advocate General, Punjab and the learned counsel for the Respondent No. 3.
I have examined different provisions of the Muslim Family Laws Ordinance, 1961. Section 5(2) provides for appointment of a Nikah Khawan in a Ward. It may be pointed out that after introduction of Punjab Local Government Ordinance, 2001, provision of Ward has been abolished. Every town/ city is divided into different union councils. It seems that the corresponding changes have not been introduced in the Muslim Family Laws Ordinance, 1961. In either case, since Wards do not exist anymore in Union Council No. 275-Faisalabad, therefore, the whole argument of the learned counsel for the petitioner stands evaporated and leaves no basis for his argument/edifice. Likewise, no specific qualifications are prescribed in the Muslim Family Laws Ordinance, 1961 for appointment of Nikah Khawan.
In view of the above, this writ petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 725
[Multan Bench Multan]
Present: Zafar Iqbal Chaudhry, J.
AKHTAR IQBAL --Petitioner
versus
MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 3237 of 2008, heard on 14.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Appointment of lambardar--Recommendation of revenue functionaries relating to suitability of appointment of lambardar--Challenged the order of Board of Revenue--Petitioner being grandson filed an application alongwith others for appointment of lambardar--Distt. Collector (Revenue) after scrutinizing all applications considered respondent as a suitable candidate and appointed him as lambardar--EDO (R) accepted the appeal--Board of Revenue accepted revision petition--Assailed--Petitioner was 28 years old, owner of 8 kanals land, grandson of deceased lumberdar and a kalandra u/Ss. 107 & 150, Cr.P.C.--Respondent was 42 years old, owner of 13 kanals land, no criminal case was registered against him and 38 candidates withdrew their claims for appointment as lumberdar in his favor--DDO (R) had also recommended respondent for appointment as lamberdar--Validity--Board of Revenue observing that 38 candidates had withdrawn their candidature in favour of respondent who appeared to be influential person and a suitable person for appointment of lamberdar that under law no person can claim his vested right for appointment of lamberdar--Held: Revenue functionaries are bound to select suitable candidate for appointment of lamberdar who would facilitate the revenue functionaries as well as population of locality in discharging of duties assigned to lamberdar and that choice of Distt. Officer is to be regarded unless it is found foolish and perverse in the eyes of law--Constitutional petition cannot be heard as an appeal from orders of subordinate Courts--Petitioner has failed to show any illegality or improbability jurisdictional defect in impugned order, which having been passed on valid reason is maintained--Petition was dismissed.
[Pp. 728 & 729] A & B
1992 CLC 612, rel.
Syed Muhammad Mumtaz Hussain Sh., Advocate for Petitioner.
Rana Luqman Ali Khan, Advocate for Respondent No. 3.
Date of hearing: 14.1.2009.
Judgment
Through this Constitutional petition the petitioner has challenged the order dated 20.5.2008 passed by Respondent No. 1 whereby he accepted the revision petition by setting aside the order dated 24.01.2007 passed by the Executive District Officer (Revenue) Khanewal, restoring the order dated 20.5.2006 passed by the District Collector, Multan.
The brief facts of the case are that after the death of Barkat Ali Lambardar of Chak No. 151/10-R Tehsil Jahanian District Khanewal the petitioner being his grandson filed an application along with others for the appointment of Lambardar. The District Collector (Revenue) after scrutinizing all the applications considered Respondent No. 3 Muhammad Akbar as a suitable candidate and appointed him as Lambardar vide order dated 29.07.2002. Aggrieved by the said order the petitioner filed appeal before the EDO(R) who accepted the same vide order dated 24.01.2007 and set aside the order of District Collector (Revenue). Respondent No. 3 challenged the said order before the learned Member, Board of Revenue who accepted the revision petition vide order dated 20.5.2008 and set aside the order of the appellate Court dated 24.01.2007.
Learned counsel for the petitioner has submitted that Respondent No. 1 has ignored the fact that the petitioner was grandson of Barkat Ali deceased Lambardar and under the hereditary claim he was entitled for the post of Lambardar, who even otherwise has a full support by the majority of inhabitants of the village, but this aspect has been ignored by all the Tribunals below except EDO(R) who had accepted the appeal filed by the petitioner on valid reasons; that the petitioner in the life time of his grandfather remained Sarbarh Lambardar and gained sufficient experience in this field, but this aspect was also not considered and he could not be knocked out merely on the ground that he was involved in criminal case.
Learned counsel for Respondent No. 3 submits that so far as right of hereditary is concerned, the petitioner cannot claim this post on the basis of this principle as has been settled for ever by the Hon'ble Supreme Court of Pakistan in Maqbool Ahmad Qureshi Vs. Islamic Republic of Pakistan (P.L.D. 1989 SC 484). It is further argued that there was a criminal case registered against the petitioner under Section 392 PPC and not only that he was also declared defaulter for an amount of Rs. 1,68,000/- on the application of Respondent No. 3 after holding inquiry by the revenue authorities, but the said amount has not been paid as yet by the petitioner and keeping in view the conduct of the petitioner he is not entitled for this post as during the period when the petitioner was Sarbarah Lambardar with mala fide intention did not receive the land revenue from Respondent No. 3 just to make an excuse against him that he was not suitable candidate for this job, who approached the concerned Tehsildar in this behalf for payment of amount through one Muhammad Rafique and this conduct of the petitioner clearly shows that he is a mischievous person; that majority in the village is in support of the Respondent No. 3 and the other 31 candidates also withdrew their candidature in favour of Respondent No. 3; that keeping in view these facts and circumstances, Respondent No. 3 is a suitable candidate and the learned Member, Board of Revenue has rightly held so while allowing revision petition filed by him. It is also argued that the Respondent No. 3 is owner of 13 kanals of land while the petitioner is owner of only 8 kanals of land.
I have heard the learned counsel for the parties and perused the orders passed by the revenue authorities and the other documents attached with this petition. The District Officer (Revenue)/District Collector, Multan vide order dated 20.5.2006 noted that Akhtar Iqbal petitioner was 28 years old, owner of land measuring 8 Kanels, grandson of the deceased Lumberdar and a Kalandra u/S. 107/150 Cr.P.C. dated 6/7/2003 stood registered against him while Muhammad Akbar respondent was 42 years old, owner of land measuring 13 Kanals, no criminal case was registered against him and 38 candidates withdrew their claims for appointment as Lumberdar in his favour. The Tehsildar and Deputy District Officer (Revenue) had also recommended Respondent No. 3 for appointment as Lumberdar. In such facts and circumstances, Respondent No. 3 was found most suitable candidate for appointment of Lumberder. On appeal the said order was set aside by the Executive District Officer (Rev), Khanewal vide order dated 24.1.2007 mainly on the reason that Akhtar Iqbal petitioner had remained as Sarbrah Lumberdar and his family owned more land in the village than the other candidates including Respondent No. 3. The Board of Revenue through order dated 20.5.2008 has restored the order dated 20.5.2006 passed by the District Collector, Multan while observing that 38 candidates had withdrawn their candidature in favour of Respondent No. 3, who appeared to be influential person and a suitable person for appointment of Lumberdar, that under the law no person can claim his vested right for appointment of Lumberdar against the said post; that the revenue functionaries are bound to select suitable candidate for appointment of Lumberdar who would facilitate the revenue functionaries as well as the population of the locality in discharging of duties assigned to the Lumberdar, and that choice of the District Officer is to be regarded unless it is found foolish and perverse, in the eyes of law. It was also found that a case F.I.R. No. 404 dated 2.9.2005 had also been registered against the petitioner. It has been held in 1992 C.L.C. 612 that recommendation of the Revenue Functionaries relating to suitability of appointment of Lumberdar should be given weight and kept in view. I do not agree with the learned counsel for he petitioner that his claim of hereditary was not Kept in view while passing the impugned order as in the column drawn in para No. 4 of the said order "Hereditary" was at Sr.No. 1 and It was recorded that the petitioner belonged to Lumberdar Family. The Hon'ble Supreme Court of Pakistan Court in Maqbool Ahmad Qureshi's case has held as under:--
"Appointment against an office, official agency, job or employment has to be made on merits of a person who is honest trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship or descent cannot be made basis for claiming preference in the matter of appointment."
It has been further held as under:--
"It is necessary for the appointing authority to ensure that the person intended to be appointed to an office is capable of performing his duties honestly and has all necessary qualification/requirements for that office."
I am of the view that the impugned order has been passed on valid reasons while considering each and every aspect of the case. It is now well settled principle that a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 of the Constitution cannot be heard as an appeal from the orders of the subordinate Courts. The learned counsel for the petitioner has failed to show any illegality or improbability jurisdictional defect in the impugned order, which having been passed on valid reasons is maintained.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 729
Present: S. Ali Hassan Rizvi, J.
NAWAB BIBI--Petitioner
versus
ZULFIQAR ALI--Respondent
R.A. No. 27 of 2009, decided on 5.3.2009.
(i) Review--
----Ground for review--Scope of--Review is not a rehearing of the whole lis--Even wrong explosition of law is never a ground for review.
[P. 730] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 114 & 151--Review--Remedy--Order passed by High Court was irksome, remedy lay elsewhere and not by way of the review application--Application rejected. [P. 730] B
Mr. Niaz Ahmad Wahla, Advocate for Petitioner.
Date of hearing: 5.3.2009.
Order
Mst. Nawab Bibi petitioner through this application seek review of the order passed by this Court on 18.02.2009 while dismissing Writ Petition No. 3056/09 in limine. Relying on 2009 MLD 36 it was contended by learned counsel that the order passed as afore-mentioned ought to be reviewed.
(R.A.) Application dismissed.
PLJ 2009 Lahore 730
[Bahawalpur Bench Bahawalpur]
Present: Habib Ullah Shakir, J.
MUHAMMAD AMEER KHAN--Petitioner
versus
SUPERINTENDENT NEW CENTRAL JAIL, BAHAWALPUR
and 4 others--Respondents
W.P. No. 1831 of 2009/BWP, decided on 21.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Direction to shift back the petitioner's son new central jail--Report submitted by Asstt. Superintendent was not satisfactory--Neither Asstt. Superintendent was able to elucidate as to under what reason the petitioner's son was transferred to Distt. Jail from New Central Jail especially when latter was declared his "Centre" for taking F.A. Examination--Held: Respondents were directed to immediately shift back to new central jail, enabling him to take the examination. [P. 731] A
Mrs. Kausar Bhatti, Advocate for Petitioner.
Mr. Abdul Khaliq Khan Saddozai, AAG for Respondents.
Date of hearing: 21.4.2009.
Order
At the very outset, learned counsel for the petitioner seeks permission to array I.G, (Prisons) Punjab, Lahore as Respondent No. 5, Allowed. She has done the needful by putting her initials before this Court on the first page of the petition in hand.
In pursuance of order passed by this Courts, Asstt. Superintendent, Bahawalpur, is present along with the report, which is not satisfactory in any sense; neither the said Asstt. Superintendent has been able to elucidate as to under what reason the petitioner's son has been transferred to District Jail, Dera Ghazi Khan from the New Central Jail, Bahawalpur especially when the latter has been declared his "Center" for taking the F.A. examination.
In view of the above Respondents No. 1 to 3 and 5 are directed to immediately shift back the petitioner's son to the New Central Jail Bahawalpur from the District Jail, Dera Ghazi Khan enabling him to take the aforesaid examination commencing 23.4.2009, in the "Center". New Central Jail, Bahawalpur. further, Respondent No. 1 is directed to get medically examined the petitioner's son from the B.V.H. Bahawalpur and submit a report in this regard within three days from the issuance of this order. Learned AAG as well as the office shall ensure compliance of this order. Muhammad Shaukat, Assistant Superintendent. New Central Jail, Bahawalpur, present in Court, shall also convey this order to Respondent No. 1.
Adjourned to 30.5.2009.
Copy Dasti.
(R.A.) Order accordingly.
PLJ 2009 Lahore 731
[Bahawalpur Bench Bahawalpur]
Present: Khurshid Anwar Bhinder, J.
NOOR JAHAN--Petitioner
versus
JUDGMENT ANTI TERRORISM COURT BAHAWALPUR
and 8 others--Respondents
W.P. No. 1350 of 2007/BWP, decided on 30.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 380, 447, 148 & 149--Anti-Terrorism Act, 1997--S. 9--Constitutional petition--Cognizance of offence--Creating terror at spot had tried to dispossess and acquire possession of residential house--Anti-terrorism Court, can give findings of non-commission of terrorism after recording of statements of the witnesses--No element of terrorism or panic was created by accused--Validity--Words used in S. 23, Anti-Terrorism Act, are very clear on the point that Judge can pass order after taking cognizance of an offence--Held: At the time of passing of the order Judge had not taken cognizance of offence and not sufficient material was available on record to delete the offence, impugned order was premature--Petition was allowed. [P. 733] A
Ms. Kausar Bhatti, Advocate, for Petitioner.
Mr. Nazeer Ahmad Chaudhry, Advocate for Respondents No. 2 to 9.
Date of hearing: 30.1.2009.
Order
The facts leading to this petition are that Mst. Noor Jahan widow of Abdul Majeed-writ petitioner had lodged Case FIR No. 235, at Police Station City `A' Division, Rahim Yar Khan, for offences under Sections 380/447/148/149, PPC read with Sections 6 and 7, Anti-Terrorism Act, 1997, on 20-05-2007 alleging therein that the accused mentioned therein, while armed with firearms came at the spot with pre-consultation and resorted to aerial firing. The accused after causing injuries to the son of informant and creating terror at the spot had tried to dispossess and acquire the possession of residential house of the informant. During investigation Idrees and eight other accused were arrested, and when their remand papers were presented before the learned Judge Anti-Terrorism Court, Bahawalpur, who vide order dated 22-05-2007, directed the deletion of Sections 6 and 7, Anti-Terrorism Act, 1997, by observing that contents of the FIR attract the provisions of Sections 448/452, PPC and do not attract the provisions of Sections 6 & 7, Anti-Terrorism Act, 1997. Being aggrieved of the said order the petitioner has preferred this writ petition.
Learned counsel for the petitioner submits that according to Section 23, Anti-Terrorism Act, 1997, learned Judge could pass order after taking cognizance of the offence. As in the instant case the learned Judge had not taken cognizance of the offence, impugned order cannot be passed.
On the other hand, learned counsel appearing on behalf of the respondents submits that the learned Judge has powers and jurisdiction to order deletion of the above noted offences, as from the contents of FIR no element of terror created by the accused is made out.
Heard and record perused. The Hon'ble Supreme Court of Pakistan in NLR 2005 Criminal 561 (Mirza Shaukat Baig vs. Shahid Jamil etc. has held that the learned Judge, Anti-Terrorism Court, can give findings of non-commission of terrorism after recording of statements of the witnesses, which would bring out that no element of terrorism or panic was created by the accused. Moreover, the words used in Section 23, Anti-Terrorism Act, 1997, are very much clear on the point that the learned Judge can pass order after taking cognizance of an offence at the relevant time. In these circumstances, we find that at the time of passing of impugned order the learned Judge had not taken cognizance of the offence and no sufficient material was available on record to delete the offence, therefore, the impugned order was pre-mature.
In view of the above discussion, we allow this writ petition, set aside the impugned order and direct the learned Judge, Anti-Terrorism Court, Bahawalpur, to decide the matter after taking cognizance of the offence and with application of judicial mind, after some evidence is recorded by the learned trial Court.
(R.A.) Petition allowed.
PLJ 2009 Lahore 733
[Bahawalpur Bench Bahawalpur]
Present: Kh. Farooq Saeed, J.
Mrs. KAUSAR IQBAL BHATTI, ADVOCATE HIGH COURT BAHAWALPUR--Petitioner
versus
SHAFQAT ATTA S.H.O. POLICE STATION CANTT., BAHAWALPUR and 25 others--Respondents
W.P. No. 1490 of 2009, decided on 30.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Cancellation of election result of High Court Bar Association--Irregularities and illegalities were noticed and found to be as correct--Maintainability--Facts--During course of election illegalities and irregularities were noticed, on which election was stopped but however, later, same was conducted again--Validity--An aggrieved person can undoubtedly challenge the order of any functionary working in or under Federal Government, Provincial Govt. or local authorities--High Court Bar Association, is obviously neither performing the functions of Federal Govt. or Provincial Govt. or a local authority--High Court Bar Association, is basically an "Association"--Its by laws and rules have been prepared for its members to manage its own affairs--It is a association within its own framework for which its members and election rules, if any, are prepared to conducts its affairs within themselves--Election Commission having been nominated under the Rules of Association also does not have any status of a functionary dealing with matters of State--Provisions of Art. 199 of Constitution, therefore, would not apply in any form--Facts are not being discussed obviously for the reason of maintainability of writ petition--Petition as well as respondent all are private litigants--Controversy cannot be decided in Constitutional jurisdiction--Petition was dismissed.
[Pp. 734, 735 & 736] A & B
2002 CLC 673 & 2002 SCMR 923, rel.
Petitioner in person.
Date of hearing: 30.3.2009.
Order
Through, this writ petition, the petitioner has sought cancellation of election result of High Court Bar Association, Bahawalpur for the year, 2009-10.
The brief facts of the case are that the petitioner contested the elections for the above year as President. During the course of elections, as per her version, certain illegalities and irregularities were noticed, on which, the election was stopped but, however, later, the same was conducted again against the wishes and the consent of the present petitioner.
Since the irregularities and illegalities were noticed and found to be as correct, the subsequent conduct and election is challenged to be as a illegal exercise of jurisdiction. Consequently, through this writ petition, the direction is sought for declaring the election result to be as illegal, ineffective. Further directions are sought to hold the same again after mutual agreement harmoniously acceptable to all concerned.
The petitioner was asked to explain as to how a writ petition in the circumstances of this case was maintainable. Her answer was that there is no other remedy. She, however, did not reply as to how the respondents in this case became a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority.
In fact, writ petition in this case cannot be entertained as the same is not against a person defined under Article 199 of the Constitution of the Islamic Republic of Pakistan. Under Article 199, An aggrieved person can undoubtedly challenge the order of any functionary working in or under the Federal Government, a Provincial Government or local authorities of this country. The High Court Bar Association, Bahawalpur, is obviously neither performing the functions of the Federal Government or a Provincial Govt. or a local authority. The High Court Bar Association Bahawalpur is basically an "Association". Its by-laws and rules have been prepared for its members to manage its own affairs. It is an association within its own frame-work for which its members and election rules, if any, are prepared to conducts it affairs within themselves. The Election Commission having been nominated under the said rules of the Association also does not have any status of a functionary dealing, with the matters of State. The provision of Article 199 of the Constitution, therefore, would not apply in any form thereon. The facts mentioned in the petition are not being discussed obviously for the reason of the maintainability of a writ petition under the circumstances. Reliance in this regard can be placed on the judgment of this Court in the case of Ardeshir Cowsjee and 7 others vs. K.B.C.A and others (2002 CLC 673) wherein while dealing, Article 199 of the Constitution of Islamic Republic of Pakistan, it has been stated that:--
"Persons expressly mentioned in Article 199 of the Constitution include persons performing functions in connection with the affairs of the Federation, a Province or a local authority. Builder in a private business is not a "person performing functions in connection with the affairs of the Federation, a Province or a local authority". No direction to, or order against a private person can be made a constitutional petition".
Further reliance can be placed on Maqsood Ahmed Toor and 4 others vs. Federation of Pakistan through the Secretary to the Govt. of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928) wherein it has been held that:--
"Person performing function in connection with affairs of Federation/Province". Primary test must always be as to whether the functions entrusted to the organization or person or indeed function of the State involving some exercise of sovereign or public powers; whether the control of organization insubstantial manner is in the hands of Government and whether the bulk of the funds is provided by the State. Foundation executing a social welfare on "no profit no loss basis" by virtue its registration under companies ordinance does not enjoy the status of a statutory corporation establish and control by the Federation nor it is performing any of sovereign function of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation".
decided in a writ jurisdiction and the petitioner, at her own sweet will, may avail the other alternate remedy.
(R.A.) Order accordingly.
PLJ 2009 Lahore 736
[Bahawalpur Bench Bahawalpur]
Present: Muhammad Ashraf Bhatti, J.
MUHAMMAD IRSHAD--Petitioner
versus
SECRETARY, LOCAL GOVT. & RURAL DEVELOPMENT LAHORE and others--Respondent
W.P. No. 2994 of 2006, decided on 25.9.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Common questions of law--Petitioners were employees in Municipal Committee--Package/incentive for voluntary retirement was provided--Petitioners opted for voluntarily retirement and availed of the benefits of ensuing--Policy was held in abeyance--Approached the Municipal Committee to get recalled order of voluntary retirement--Ready to pay back gratuity and other emoluments--Request was not acceded to--Held: Secretary Local Govt. was directed to treat the petitions as representations/written requests on part of the petitioners with a view to explore possibility to accommodating subject to compliance of the order of Deputy Commissioner--Petitions disposed of. [P. 737] A
Mr. M. Shamsher Iqbal Chughtai, Advocate for Petitioner.
Mr. Abdul Khaliq Khan Sadozai, A.A.G.
Ch. Abdul Latif Shahid, Advocate for Respondent.
Date of hearing: 25.9.2008.
Order
This common order is intended to dispose of Writ Petitions No. 2994-S-2006/BWP, 2915-S-2006/BWP and 2993-S-2006 BWP as common questions of law and facts are involved in these petitions.
(i) Appellant shall repay amount of pension gratuity with interest.
(ii) Intervening period will be treated as earned leave on half pay.
Instead of compliance of above conditions, the petitioners chose to approach the Secretary Local Government and Rural Development, Lahore to seek reversal of the `return order of gratuity etc' with interest or in the alternative sought for payment of the same in installments, but in vain. Hence, the above writ petitions, particularly having based their case on a decision passed by tins Court in W.P. No. 4805 of 2001, the facts of which are identical to the petitions in hand.
While opposing these petitions, it is contended by the learned Law Officer submits that the same are hit by laches. According to him, the petitioners remained dormant on their own and have now approached this Court after lapse of five years; therefore, in the wake of institutional and structural changes after the devolution, the orders passed in appeal have gone infructuous by afflux of considerable time.
When faced with the above position of the case, the learned counsel for the petitioners has submitted that grievance of the petitioners would be redressed if direction is passed that the petitioners, if make representations to the quarters concerned for re-joining the TMA (as re-constituted after devolution) on compliance on their part of the conditions as set out in the order passed by the then Deputy Commissioner on 31.7.2000, the same shall be dealt with and disposed of after affording opportunity of hearing to the petitioners, treating it a case of hardship and that then the petitioners shall, have no objection to disposal of these petitions.
In the light of the above, let a copy each of the above cited writ petitions alongwith annexures be sent at the petitioners' expense to the respondent No. 1 and others with the direction that the Respondent No. 1 shall treat these petitions as representations/written requests on the part of the petitioners, hear them and then treating it a case of hardship dispose them of in accordance with law with a view to explore possibility to accommodating them subject to compliance of the aforesaid order of the then Deputy Commissioner dated 31.7.2000.
In the light of the above terms, these petitions are disposed of.
(R.A.) Petitions disposed of.
PLJ 2009 Lahore 738
[Bahawalpur Bench Bahawalpur]
Present: Saghir Ahmad, J.
Malik NOOR AHMAD--Petitioner
versus
S.H.O., P.S. RUKKANPUR, DISTT. RAHIMYAR KHAN
& another--Respondents
W.P. No. 2918 of 2008, decided on 15.10.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Bailiff recovered detenue from illegal custody of police--Bailiff stated that detenue was in handcuffs and the detenue was kept on different places in different manners by SHO--Inspector told on query by High Court that two brothers of detenue were involved in criminal cases--Detenue was detained illegally by SHO and other police officers who arrested him--Held: Distt. Police Officer was directed to register a criminal case against SHO and other concerned and further to hold departmental inquiry, take departmental action and then to submit report before High Court. [P. 739] A
Mr. Shahzad Ashraf Mohandra, Advocate for Petitioner.
Mr. Abdul Khaliq Khan Saddozai, AAG for Respondents.
Date of hearing: 15.10.2008.
Order
Pursuant to order dated 14.10.2008, the bailiff has recovered Abdul Qadir, detenu from the illegal custody of the police from Police Station Rukanpur. The bailiff has stated in his report that the detenue was in handcuffs and when he asked the detenu, he hold that he had been arrested by the police one and a half month before and detained by the police in police station. It has further been reported by the bailiff that said detenue was kept on different places in different manners by the SHO and other police officers. On my query, Noor Asghar, Inspector/SHO of Police Station Rukanpur, present in Court, told that the detenu's two brothers are involved in two criminal cases, which prima facie, established that the detenue was detained illegally by the SHO and other police officers who arrested him.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 739
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
MUSHTAQ AHMAD--Petitioner
versus
S.H.O., P.S. BUDHLA SANT DISTT. MULTAN
and another--Respondents
W.P. No. 3716 of 2008, decided on 14.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--No power to change the investigation after entrustment--Question of--Whether S.S.P. investigation on basis of order of Addl. I.G. had authority to keep on changing the investigation from one Inspector to other--Validity--S.S.P. investigation, once having exercised his power to entrust the investigation to inspector pursuant of the single order of A.I.G. he could not withdraw the investigation frame one inspector and to entrust the same to another inspector--Held: Investigation conducted Inspectors cannot be sustained in the eye of law--Investigations conducted by both inspectors were declared illegal, without lawful authority and of no legal effect--Further held: Investigations conducted by Inspectors shall be presumed to have been conducted by S.S.P. Investigation was not tenable in all and being erroneous was repelled. [Pp. 741 & 742] A & B
2006 P.Cr.L.J. 1998 and 2007 P.Cr.L.J. 1170, rel.
Sardar Mehboob, Advocate for Petitioner.
Mr. Mehmood Khan Ghouri, Advocate for Respondent No. 2.
Mr. Zafar-Ullah Khan Khakwani, AAG for Respondent No. 1.
Date of hearing: 14.1.2009.
Order
Through the instant petition, the investigation entrusted to Rizwan and Israr Shah both Inspectors from Regional Investigation Branch, has been challenged on the ground that SSP, Regional Investigation Branch, had no power to change the investigation after entrustment of the same to Abdul Majeed Inspector pursuant to the order of the Additional I.G., Investigation Branch, Lahore dated 24.3.2007.
The facts of the case are that Investigation of case F.I.R No. 146/06 under Sections 302/109/34 PPC registered with Police Station Budhla Santt, Multan, was entrusted by the Additional I.G., Investigation Branch, Lahore, vide order dated 24.3.2007 to the Regional Investigation Branch, Multan on the application of Mushtaq Ahmad petitioner and the SSP Regional Investigation Branch while exercising his power and implementing the order of the Additional I.G., Investigation Branch, Lahore entrusted the investigation to one Abdul Majeed Inspector on 4.4.2007 vide Zimni No. 17, who initiated investigation, but thereafter, on the application of the petitioner the SSP, R.I.B withdrew the investigation from Abdul Majeed Inspector and entrusted the same to Rizwan Inspector from Regional Investigation Branch on 5.6.2007, which was in progress when respondent Altaf filed an application to the SSP Regional Investigation Branch showing his dissatisfaction over the investigation being conducted by Rizwan Inspector and this request of Altaf respondent was acceded to by the SSP, R.I.B and consequently the investigation was withdrawn from Rizwan Inspector and entrusted to Israr Shah Inspector from Regional Investigation Branch on 02.2.2008 vide Zimni No. 34, who declared the nominated accused innocent and sent the file to the SHO of the concerned Police Station for tracing out the actual culprits.
Learned counsel for the petitioner submits that SSP- R.I.B had no authority to change the investigations without getting orders from the Additional I.G. Investigation after the recommendations of the District Standing Board, as such, transfer of investigation from Abdul Majeed Inspector to Rizwan Inspector and thereafter to Israr Shah Inspector is illegal, thus liable to be set-aside. Learned counsel in support of his contention has placed reliance on precedence "Abdur Razzaq versus The State and others" (2006 P.Cr.L.J. 1998) and "Alam Sher versus Additional Inspector General of Police Investigation Punjab, Lahore and 5 others" (2007 P.Cr.L.J. 1170).
On the other hand, learned counsel for the respondent submits that since the investigation had been transferred by the Additional I.G. Investigation to the Regional Investigation Branch and not to an individual, therefore, the SSP-R.I.B had the power to change the investigation from one of his subordinates to another. It is further argued that since the SSP is head of the Regional Crimes Branch, as such, it will be presumed that, investigation was entrusted to him and he may seek help from his subordinates, therefore, the investigation conducted by Abdul Majeed Inspector, Rizwan Inspector or Israr Shah Inspector shall be presumed to have been conducted by the SSP-R.I.B.
I have considered the respective arguments of learned counsel for the parties and have also perused the record.
From perusal of the order dated 24.3.2007 passed by the Additional I.G. on the recommendations of the District Standing Board, it reveals that investigation of the case was transferred to the SSP-R.I.B and the SSP pursuant to the said order of the Additional I.G. (Investigation), Lahore, entrusted the investigation to Abdul Majeed Inspector of the Regional Investigation Branch. On consideration of the arguments advanced by learned counsel for the parties, the question arose whether the SSP-R.I.B on the basis of the order of the Additional I.G, had the authority to keep on changing the investigation from one Inspector to the other? This Court in the case "Alam Sher versus Additional Inspector-General of Police (Investigation), Punjab, Lahore and 5 others" (2007 P.Cr.L.J. 1170), has held as under:--
"Once in the light of order passed by Additional I.G. Police, the investigation was taken up by the Incharge Regional Investigation Branch, D.S.P., could not further direct change of investigation to other Inspectors, without obtaining appropriate orders from Inspector General of Police (Provincial Police Officer) within the meaning of proviso Second to Art. 18(6) of Police Order, 2002,"
In the light of the above case law, I am fully convinced that SSP-Regional Investigation Branch, once having exercised his power to entrust the investigation to Abdul Majeed Inspector pursuant to the order of the Additional I.G, became fictious officio and on the basis of the same single other of the Additional I.G, he could not withdraw the investigation from Abdul Majeed and to entrust the same to Rizwan Inspector and thereafter, even to withdraw the investigation from Rizwan and handover the same to Israr Shah Inspector, though all of the same Branch. As such, subsequent orders of the SSP-R.I.B entrusting the investigation of the case to Rizwan and then to Israr Shah Inspectors, are totally illegal and unwarranted, as such the investigation conducted by Rizwan and Israr Shah Inspectors also cannot be sustained in the eye of law. Resultantly, by disposing of this writ petition, both the investigations conducted by Rizwan Inspector as also Israr Shah Inspector, are declared illegal, without lawful authority and of no legal, effect. As regards the contention of learned counsel for the respondent to the effect that investigations conducted by the Inspectors shall be presumed to have been conducted by the S.S.P Regional Investigation Branch, is not tenable in all and thus being erroneous the same is repelled.
As before the passing of the subsequent impugned orders by the SSP-R.I.B, the investigation was with Abdul Majeed Inspector, who reportedly is still posted in the Regional Investigation Branch, therefore, said Investigation Officer is directed to hear the concerned parties, record their versions, collect documentary evidence (if produced) and then finalize the investigation under the supervision of the SSP-R.I.B, strictly in accordance with law, without being prejudiced or influenced by the earlier illegal orders of SSP-Regional Investigation Branch or even the result of investigation illegally conducted by Rizwan Inspector and Israr Shah Inspector. The investigation shall now be finalized by Abdul Majeed Inspector within a period of two months, of receipt of this order. However, it is made clear that in case any party feels dissatisfaction over the conduct of investigation by said Abdul Majeed, the concerned party may move application through proper channel and in such an eventuality the District Standing Board shall decide such application within fifteen days of such move, positively strictly in accordance with law.
At this stage, it has been pointed out that investigation now is being conducted by the local police on the directions of the SSP-Regional Investigation Branch. I am afraid once the impugned orders of the SSP-R.I.B withdrawing the investigation from Abdul Majeed Inspector and entrusting the same to other Inspectors, have been set-aside by this Court, the investigation so conducted by the local police also being illegal, is set-aside. The Sub-Inspector present in Court shall place the file before the S.S.P, Regional Investigation Branch, for compliance of this order.
With above observations and directions, this petition is disposed of.
(R.A.) Petition disposed of.
S
PLJ 2009 Lahore 743 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq and Abdul Shakoor Paracha, JJ.
KHIZAR HAYAT and another--Petitioners
versus
JUDGE SPECIAL COURT ANTI-TERRORISM RAWALPINDI
and 2 others--Respondents
W.P. No. 2048 of 2008, decided on 15.12.2008.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 23 & 7--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 148, 149, 427 & 120-B--Constitution of Pakistan, 1973, Art. 199--Transfer of case from Anti-Terrorism Court to Court of Sessions--Indiscriminate firing--Caused sense of fear and insecurity in residents of locality--Application was dismissed--Constitutional petition--Validity--Occurrence took place at 3.30 p.m. at adda and allegedly accused party came on truck, all the persons armed with kalashnikoves and resorted to firing as a result of which two persons of the complainant party lost their lives and six persons who had no enmity with either party, got injured--Held: Act of the accused was to strike terror or create a sense of fear and insecurity in the people or section of the people--Venue of the occurrence was the public place--Weapons which were used in commission of the offence were automatic--Further held: Alleged offence falls within the jurisdictional domain of special Court constituted under Anti-Terrorism Act--Jurisdiction has rightly been exercised trial Court in rejecting the application of the petitioners, which order needs no interference by High Court--Petition was dismissed.
[Pp. 745 & 746] A & B
PLD 2001 SC 521 & PLD 1998 SC 1445, rel.
PLD 2004 Lah. 554, 2002 P.Cr.L.J. 1317 & PLD 2003 Lah. 267, rel.
Malik Wahid Anjum, Advocate for Petitioners.
Date of hearing: 15.12.2008.
Order
Khizar Hayat son of Muhammad Hayat, and Muhammad Mubashir Hassan son of Muzaffar Khan through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assail the order dated 15.11.2008, passed by the learned Judge Special Court Anti-Terrorism, Rawalpindi, whereby the application under Section 23 of the Anti-Terrorism Act, 1997 of the petitioners seeking transfer of the case FIR No. 103 dated 12.5.2008, registered at Police Station Pind Dadan Khan for offences under Sections 302/324/148/149/ 427/120-B P.P.C. read with Section 7 of the Anti-Terrorism Act, from the said Anti-Terrorism Court to the Court of Session at Jhelum has been rejected by the learned Judge, Anti-Terrorism Court.
The petition was dismissed by the above said Anti-Terrorism Court through the impugned order dated 15.11.2008 by observing that. "The occurrence of this case took place at 3:30 p.m. at Adda Daryala Jalab and the accused party came on truck, obviously armed with kalashnikoves etc. and resorted to firing at the complainant party and caused the death of two persons. In the said process, six persons were also injured who had no enmity with the parties of this case. The apparent cumulative effect of the said indiscriminate firing obviously caused sense of fear and insecurity in the residents of the said locality and, therefore, Sections 6/7 of Anti-Terrorism Act were found attracted even initially at the time of registration of the FIR."
Brief facts of the case are that the accused-petitioners along with others while armed with kalashnikovs etc., forming unlawful assembly committed the murders of Shahid Mehmood and Munawar Hussain and injured some other persons at Adda Daryala Jalab.
Before us, the learned counsel for the petitioners contends that as per facts mentioned in the FIR, the occurrence of this case was result of previous enmity, that the cases had already been registered against the petitioners and in this respect reference has been made to four other FIRs registered in between the parties. Further contends that there was no evidence on the file to the effect that because of the occurrence any terror or panic was created in the area. Further contends that the occurrence was due to the personal vendetta therefore the learned Judge Anti-Terrorism Court has no jurisdiction to adjudicate upon the matter and the case should be transferred to the Court of Session. Contends that the application of the accused-petitioners under Section 23 ATA seeking transfer of the case from the Anti-Terrorism Court to the Sessions Court has illegally been dismissed. Places reliance on the cases reported as Mehram Ali and others vs. Federation of Pakistan and others (PLD 1998 SC 1445), Ch. Bashir Ahmad vs. Naveed Iqbal and 7 others (PLD 2001 SC 521), Muhammad Ali and others vs. The State and others (PLD 2004 Lahore 554), Shaikh Muhammad Amjad vs. The State (2002 P.Cr.L.J. 1317) and Mazhar vs. The State (PLD 2003 Lahore 267).
We have heard the arguments of the learned counsel for the petitioners. In the case of Mirza Shaukat Baig and others vs.
Shahid Jamil and others (PLD 2005 SC 530), the Honourable Supreme Court has interpreted Section 6 of the Anti-Terrorism Act (XXVII of 1997), according to which terrorism' means use or threat ofaction' where the `action' falls within the meaning of Section 6(2) of the Act and creates a serious risk to safety of the public or a Section of public or is designed to frighten the general public and thereby prevents them from coming out and carrying on their lawful trade and daily business, and disrupts civil life. Such act shall amount to terrorism as enumerated in Section 6 of the Act. The Court cannot pick and choose one or two sentences or a few words for academic purpose and their scholarly interpretation by ignoring the Objects and Reasons for the promulgation of the Act and its Preamble.
The learned counsel for the petitioner has relied upon the case of Mehram Ali and others vs. Federation of Pakistan and others (PLD 1998 SC 1445). We must not ignore the dictum laid down in the said case of Mehram Ali and others, which reads as under:--
"We may point out that this Court is not oblivious of the factum that the law and order situation has been considerably deteriorated and new types of terrorism have emerged due to tremendous progress made in the field of technology. This Court in more than one cases has held that the approach of the Court while considering criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining in the country...."
"A person would commit a terrorist act if in order to, or if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people...."
In the light of the above discussion, we are of the firm view that from the contents of the FIR it is manifestly clear that the occurrence of this case took place at 3:30 p.m. at Adda Daryala Jalab and allegedly the accused party came in a truck, all the persons armed with kalashnikovs etc., and resorted to firing, as a result of which two persons of the complainant party lost their lives and six persons, who had no enmity with either party, got injured. The act of the accused was to strike terror or create a sense of fear and insecurity in the people or a section of people, because, as stated above, the venue of the occurrence was the public place, i.e. Adda Daryala Jalib. The weapons which were used in the commission of the offence was automatic.
In view of the above discussion, we conclude that the alleged offence mentioned in the above said FIR falls within the jurisdictional domain of the Special Court constituted under the Anti-Terrorism Act. The jurisdiction has rightly been exercised by the trial Court in rejecting the application of the petitioners under Section 23 of the ATA which order needs no interference by this Court in Constitutional jurisdiction. This being so, this petition falls and the same is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 746
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SHABIR--Appellant
versus
RAJA MUHAMMAD SHARIF--Respondent
S.A.O. No. 83 of 2008, decided on 17.12.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 5-A & 13(2)(1)--Ejectment petition--Agreement between landlord and tenant was executed for three years--Rate of rent was fixed--Demand the statutory increase in rent was not paid--Relationship of landlord and tenant between the parties--Allegation of default as made in application was proved--After the expiry of three years period, the rent will be enhanced in accordance with law--Validity--Default in payment of the statutory increase is by all means willful--The parties were fully award that rent has to be increased in accordance with law after expiry of three years--However, the appellant failed to do so--Not only this prior to filing of the application a notice was served upon the appellant stating that he has committed a default by not paying the rent with statutory increase--He made no attempt to pay the rent that had become due because statutory increase--No case stands made out for interference with impugned order--Order accordingly. [P. 748] A & B
Mr. Ajmal Kamal Mirza, Advocate for Appellant.
Date of hearing: 17.12.2008.
Order
On 1.9.2004 the respondent filed an application for the ejectment of the appellant from a building, described in detail in the application. It was stated that the property was let out under agreement dated 16.6.1996. Thereafter, an agreement was executed on 11.8.1997 for three years. The rate of rent was fixed at Rs. 4,000/- per month and it was undertaken that the statutory increase shall be paid by the appellant to the respondent. The ejectment was sought on the ground of default inasmuch as despite agreement and then demand the statutory increase in the rent was not paid. Impairment to the value and the utility of the building was also alleged. The appellant filed a written reply. He admitted the relationship of landlord and tenant between the parties, the agreement and its terms as stated in the ejectment petition. The other allegations were denied. Issues were framed. Evidence of the parties was recorded. The learned Rent Controller allowed the application and passed an ejectment order on 19.4.2007. I may note here that it was found that only the allegation of default as made in the application has been proved. A first appeal filed by the appellant has been dismissed by a learned Additional District Judge, Jhelum on 15.9.2008.
Learned counsel contends that there is no plea or evidence of an express demand vis-a-vis the statutory increase and as such the Rent Controller has acted against law while passing the ejectment order and so is the case with the learned appellate Authority while affirming the same. He relies on the case of Syed Ilyas Ali Abbasi v. Mst. Allah Rakhi through Attorney (2001 SCMR 31). According to him, the default was not willful.
The learned counsel has appended the certified copies of the entire record with this SAO. I have examined the same with his assistance. The admitted tenancy agreement between the parties is Ex. A. 3. It is dated 11.8.1997. The rate of rent fixed was Rs. 4,000/- per month and it was specifically mentioned that after the expiry of three years period, the rent will be enhanced in accordance with law. Section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959, lays down in an unequivocal term that the rent shall stand automatically enhanced by 25% upon expiry of three years of a tenancy agreement pertaining to non-residential building and the arrears becoming due as a result of the said statutory increase be deemed to be rent due within the meaning of Section 13(2)(1) of the said Ordinance. This being so, the rent due w.e.f. September, 2000 was Rs. 5,000/- per month and w.e.f. September, 2003 was Rs. 6,025/- per month. It is an admitted position that the appellant had been tendering rent at the rate of Rs. 4,400/- and then at the rate of Rs. 5,000/- per month.
Coming to the said contention of the learned counsel, the judgment in the case of Syed Ilyas Ali Abbasi was pronounced on 21.10.1998. However, this was followed by a judgment given by an equal number of Hon'ble Judges in the case of Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCMR 207) (dated 22.9.1999). In this latter case, their lordships have held that service of a notice under Section 5-A of the said Ordinance by a landlord to a tenant for statutory increase of rent is not a condition precedent to invoke the jurisdiction of the Rent. Controller and that under the said provision the 25% increase in rent becomes due on the expiry of three years and is deemed to be a rent due. As commanded by the Hon'ble Supreme Court, this Court is to follow this latter judgment on the same subject. This being so, the plea that a notice had to be served demanding the statutory increase is not available to the appellant.
Coming to the said other contention of the learned counsel, I find that the default in payment of the statutory increase is by all means willful. I have already referred to in some detail the agreement between the parties. Both the parties were fully aware that the rent has to be increased in accordance with the said law after expiry of three years. However, the appellant failed to do so. Not only this but prior to filing of the application a notice Ex. A.4 was served upon the appellant stating that he has committed a default by not paying the rent with the said statutory increase. Apart from the above, the ejectment petition was filed on 1.8.2004. The written reply was filed on 30.9.2003. The appellant was duly confronted and he has stated that he had examined the ejectment petition. However, he made no attempt to pay the rent that had become due because of statutory increase. In view of the above circumstances established on record, no case stands made out for interference with the impugned orders. The SAO accordingly is dismissed in limine. The learned counsel states that the impugned order has not been executed so far. If this is so, the appellant is directed to deliver vacant possession of the building in question to the respondent-landlord on or before 31.1.2009. In case he fails to do so, the respondent will be at liberty to execute the ejectment order in accordance with law and in such an eventuality the learned Rent Controller shall employ all process including Police aid for execution of the order.
(R.A.) S.A.O. dismissed.
PLJ 2009 Lahore 749
Present: Ali Akbar Qureshi, J.
SHUMAILA MUSHTAQ--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, NAROWAL
and another--Respondents
W.P. No. 313 of 2009, decided on 22.5.2009.
Presumption--
----Suit for dowry article--Petitioner was an educated lady and running a school, therefore, it can be presumed that dowry articles were given to the petitioner--Held: Some times the presumption are stranger than realities. [P. 750] A
Witness--
----Litigation between grand-mother of the petitioner and father of the petitioner was pending, therefore, such type of the witness can hardly be believed. [P. 750] B
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Offer on oath on Holy Qur'an--Suit for recovery of dowry article and maintenance allowance was decreed--Entitlement of recovery amount in lieu of dowry articles as maintenance for iddit period--Appeal was decided on the ground on oath--Validity--An offer on oath on the Holy Quran was given by respondent and the same was refused--Held: Such offer cannot be made a ground to dismiss the claim of the petitioner--Petition was allowed. [P. 750] C
Mr. Saeed Anjum Khokhar, Advocate for Petitioner.
Rana Muhammad Khalil, Advocate for Respondents.
Date of hearing: 22.5.2009.
Order
The petitioner brought a suit to recover the dowry articles amounting to Rs. 130,850/- and maintenance allowance on the ground that the dowry articles given to her at the time of marriage are lying with the respondent as the petitioner joined him at his house, thereafter, the respondent after some time because of strained relations, expelled her from his house and has refused to accept the claim of the petitioner.
The suit was opposed by the respondent, who while filing the written statement denied the claims of the petitioner. The learned trial Court out of the pleadings, framed issues, recorded evidence and finally decreed the suit, whereby the petitioner was held entitled to recover an amount of Rs.80,000/- in lieu of dowry articles and Rs.6000/- as maintenance for Iddit period.
Being aggrieved thereof, the respondent filed an appeal, wherein the learned appellate Court disallowed the claim of the petitioner to the extent to recover the dowry articles and findings on the issue of maintenance were maintained. Hence this petition.
Learned counsel for the petitioner contended that the learned trial Court after careful appreciation of the record and particularly the evidence led by the parties reached to a fair and just conclusion and delivered a well reasoned judgment but the learned appellate Court set aside the same without assigning any reasons. Next contended that the learned appellate Court has mainly relied upon the offer on oath by the respondent, which was never acted upon, therefore, the findings of the learned appellate Court in any case are not sustainable in law.
Conversely the learned counsel for the respondent supported the findings recorded by the learned appellate Court.
Heard.
In this case, the petitioner in support of her claim appeared as PW. 1 and categorically stated that the dowry articles valuing
Rs. 130,850/- were given to her and the respondent despite demands have refused to return the same. In support of the petitioner, PW.2 appeared, who fully corroborated the stance of the petitioner. Both the above witnesses were cross-examined by the respondent but as appears from the record has failed to rebut or shake the stance taken by them in their examination-in-chief. It has not been denied by the respondent that the petitioner is an educated lady and running a school, therefore, it can be presumed that the dowry articles were given to the petitioner. In some cases, some times the presumption are stronger than the realities. Strangely in this case the grand mother of the petitioner appeared as witness and stated that no dowry articles were given to the petitioner but very interestingly, the learned counsel for the respondent has admitted that the litigation between the grand-mother of the petitioner and father of the petitioner is pending, therefore, such type of the witness can hardly be believed. The learned trial Court, who recorded the evidence, after careful appreciations of the record, reached to a fair and just decision and awarded Rs.80,000/-, keeping in view the wear and tear of the articles to the petitioner. The learned appellate Court has mainly decided the appeal on the ground that an offer on oath on the Holy Quran was given by the respondent and the same was refused, in any circumstances, this cannot be made a ground to dismiss the claim of
2009 Lahore 751
Present: Syed Asghar Haider, J.
MUHAMMAD MAQBOOL--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary/Chairman Ministry of Railways, Islamabad and 4 others--Respondents
W.P. No. 3787 of 2007, decided on 21.7.2009.
Constitution of Pakistan, 1973--
----Art. 212--Civil servant--Jurisdiction--Bar of--Criteria for promotion is seniority cum-fitness--Ultra vires of law--Question of maintainability--Matter falls within the ambit, domain and realm of terms and conditions of service--Validity--Attempt of the civil servant to distinguish seniority and fitness to plead that the same falls out side the purview of Art. 212 of Constitution, has no basis and therefore, is misconceived--Held: Matter of promotion falls within the ambit, domain and realm of terms and conditions of service, therefore, bar of Art. 212 of Constitution is absolute--Petition was not maintainable.
[P. 752] A
PLJ 2009 SC 10, rel.
Mr. Omar Alvi, Advocate for Petitioner.
Mr. Mumtaz Ahmad, Advocate for Respondents No. 1 to 3.
Mr. Muhammad Aftab, Advocate for Respondents No. 4 and 5.
Date of hearing: 21.7.2009.
Order
Through the instant petition a prayer is made that orders dated 16.1.2007 and 22.3.2007, passed by Respondent No. 3 be declared as illegal, and promotion of Respondents No. 4 and 5 to the post of Senior Commercial Superintendent be declared unlawful and ultra vires of law with a further prayer to consider the petitioner fit for promotion to the post of Senior Commercial Superintendent BS-16 in Pakistan Railways with effect from his juniors were promoted.
The learned counsel for the petitioner contended that the bench mark and criteria for promotion is seniority-com-fitness, this principle was flagrantly violated by Respondent No. 3 and, therefore, the impugned orders are illegal and violative of the law as interpreted in Fazali Rehmani Vs. Chief Minister NWFP, Peshawar and others (P.L.J. 2009 S.C. 10).
Conversely, the learned counsel for the respondents stated that the petitioner was involved in a case of record tempering and an inquiry was conducted against him, it is stated that the same is still pending (which is denied by the other side). He thereafter stated that the matter squarely falls within the ambit, domain and realm of terms and condition of service, therefore, the bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is absolute.
I have heard the learned counsel for the parties and perused the impugned orders, it stands out clearly that the petitioner has challenged the promotion of Respondents No. 4 and 5 and at the same time prayed for his promotion. The matter, therefore, squarely falls within the ambit, domain and realm of terms and conditions of service, the attempt of the petitioner to distinguish seniority and fitness to plead that the same falls out side the purview of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, has no basis and, therefore, is misconceived. As stated above, the matter falls within the ambit, domain and realm of terms and conditions of service, therefore, bar of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, is absolute. Consequently, this petition is not maintainable, hence dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 752
[Multan Bench Multan]
Present: Saif-ur-Rehman, J.
MUHAMMAD IRFAN and another--Petitioners
versus
DISTRICT POLICE OFFICER, VEHARI and 6 others--Respondents
W.P. No. 6641 of 2008, decided on 3.12.2008.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860)--S. 496-A--Constitutional petition--Thumb-impressions were obtained on blank papers which was converted into divorce deed later on--Question of inquiry as to whether the document was genuine or forged--Validity--Accused did not join investigation--Held: Unless they do so and get their version recorded or any final finding is recorded by Family Court with regard to genuineness or otherwise of divorce deed, it cannot be said that contention of the accused could be taken as the last word--They must join the investigation and place their cards before investigating officer--Petition was dismissed. [P. 754] A
Mr. Shahzaib Khan Afshar, Advocate for Petitioner.
Mr. Saghir Ahmad Bhatti, Advocate for Respondent.
Date of hearing: 3.12.2008.
Order
The petitioner seeks quashment of FIR No. 328 dated 6.10.2008 registered under Section 496-A PPC at Police Station Sahuka District Vehari.
Learned counsel for the petitioner submits that case was registered earlier on report of Qadir Bakhsh vide FIR No. 135 dated 12.6.2005 under Section 365-B PPC at Police Station Ahmadyar District Pakpattan on the allegation of abduction of Mst. Nasim Bibi who was legally wedded wife of Petitioner No. 1. The aforesaid case was cancelled however, on the basis of a fabricated story another case has been registered vide the impugned FIR. It was contended that during the proceedings in connection with the previous case, Punchyiat was held at the dera of a Nazim where thumb impressions of Petitioner No. 1 were obtained on blank papers which was converted into divorce deed later on and that Petitioner No. 2 continued to be the legally wedded wife of the petitioner hence the FIR be quashed.
Learned counsel for the respondent submitted that the previous case terminated after a compromise between the parties and Petitioner No. 1 had divorced Petitioner No. 2. However, after pronouncement of Talaq, Petitioner No. 1 again abducted Petitioner No. 2 and therefore, the case was rejected. It was submitted that the controversy required recording of evidence for its resolution, hence the petition was liable to dismissal.
Petitioner No. 1 was got confronted with the divorce deed on record and he reiterated that his thumb impressions were obtained fraudulently on a blank paper and that he had never divorced Petitioner No. 2.
In presence of a divorce deed contained thumb impression of the petitioner, it is a question of inquiry as to whether the aforesaid document was genuine or forged. The Investigating Officer submitted that the petitioners have not yet joined the investigation. Unless they do so and get their version recorded or any final finding is recorded by a Family Court with regard to genuineness or otherwise of the divorce deed, it cannot be said that the contention of the petitioner could be taken as the last word. They must join the investigation and place their cards before the Investigating Officer. This petition is held to be without any force, hence is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 754
Present: Iqbal Hameed-ur-Rehman, J.
Mst. TAYYABA DOLTANA--Petitioner
versus
DISTT. JUDGE etc.--Respondents
W.P. No. 7493 of 2007, decided on 25.6.2009.
Maintenance--
----Enhancement of maintenance allowance--Suit for recovery of maintenance--During pendency of execution petition an application for enhancement of maintenance allowance was moved--Maintenance allowance was enhanced--Appeal was accepted on the ground that it was necessary and proper for decree holder to move an independent application or to institute a separate suit for enhancement of maintenance--Validity--Application for enhancement of maintenance allowance had been separately numbered apart from the execution petition as such First Appellate Court had filed to take into consideration while deciding the appeal--Held: Enhancement of maintenance allowance can be allowed on the ground of change in circumstances and conditions as well as the cost of living as such, the Family Court had rightly taken the same into consideration and enhanced the maintenance allowance--Minor is entitled to maintenance allowance at the rate of Rs. 1200/- per month with 10% annually increase keeping in view the inflation phenomenon--Petition was accepted. [Pp. 757 & 758] A, B & C
Mr. M.M. Iqbal, Advocate for Petitioner.
Mr. Muhammad Aslam Nadeem, Advocate for Respondent No. 3.
Date of hearing: 25.6.2009.
Order
Through the instant petition the petitioner seeks setting aside the impugned judgment and decree dated 25.07.2007 passed by Respondent No. 1.
Brief facts of the case are that Mst. Tayyaba Doltana minor daughter of Respondent No. 3 filed a suit for recovery of maintenance against Respondent No. 3 in the Court of learned Judge Family Court, Mandi Baha-ud-Din on 28.09.1999, who vide judgment and decree dated 25.03.2000 decreed the suit in favour of the petitioner and awarded Rs.500/- per month to the petitioner as maintenance allowance. The decree was maintained in appeal by the learned Addl. District Judge, Mandi Baha-ud-Din vide judgment and decree dated 05.07.2000. The petitioner filed execution petition on 26.07.2000. During the pendency of the execution petition, the petitioner moved an application for enhancement of maintenance allowance on 21.06.2005 before the Senior Civil Judge/Judge Family Court, Mandi Baha-ud-Din. The said application was dismissed vide order dated 19.09.2003 by observing that the judgment and decree dated 05.07.2000 has attained finality and there is no justification for enhancement of the maintenance allowance. The petitioner again moved another application for enhancement of the maintenance allowance on 21.06.2005. Notice was issued to Respondent No. 3, who contested the same by filing written reply to the said application and thereafter abstained from the proceedings. Resultantly, ex-parte proceedings were initiated against Respondent No. 3. Ex-parte statement of the mother of the petitioner (minor) was recorded and the documentary evidence was produced and resultantly maintenance allowance of Rs.500/- was enhanced upto Rs.1200/- per month with 10% annual increase after every three years vide order dated 12.04.2007. Respondent No. 3 being aggrieved from order dated 12.04.2007 preferred an appeal before the learned District Judge, Mandi Baha-ud-Din contending that the executing Court had acted illegally and beyond jurisdiction by entertaining miscellaneous application filed by the petitioner and thereafter had passed an illegal order even against the facts ignoring its own earlier order dated 19.09.2003 for the rejection of a similar application seeking enhancement of the maintenance allowance. The said appeal of Respondent No. 3 was accepted vide impugned judgment and decree dated 25.07.2007 on the ground that it was necessary and proper for the petitioner/decree holder to move an independent application or to institute a separate suit for enhancement of the maintenance allowance before the Court of Senior Civil Judge and such petition or suit thereafter was to be entrusted to a Judge Family Court and decide after adopting proper procedure in accordance with law, as such, it was observed by the learned District Judge, Mandi Baha-ud-Din that the findings of the learned Court were beyond its jurisdiction and the impugned order in the shape of judgment along with a decree is not sustainable in the eye of law. The petitioner being aggrieved filed this petition.
Learned counsel for the petitioner adverting to the application of the petitioner Annexure-D has pointed out that the said application had been filed as an independent application and the same had been so numbered independently apart from the Execution Petition. It is contended that the learned Appellate Court failed to comprehend the same and the said application was no doubt addressed to the Senior Civil Judge/ Judge Family Court, Mandi Baha-ud-Din, who was also dealing with the Execution Petition. In view of the same the impugned order cannot sustain in the eye of law. Reliance is placed on (1999 CLC 1668). It is further argued that the First Appellate Court also failed to taken into consideration that principle of res judicata is not applicable in the family matters. The maintenance subsequently can be enhanced taking into consideration the circumstances and the conditions prevailing presently. Reliance is placed on PLD 2008 Lahore 560. It is also stated that the learned Judge Family Court keeping the above consideration and the law had rightly enhanced the maintenance allowance to the petitioner as such, he had committed no illegality, therefore, the impugned judgment and decree dated 25.07.2007 passed in appeal be set aside and the judgment and decree dated 12.04.2007 be maintained. It is further stated that in the reply to the application of the petitioner the respondent/judgment debtor has not made any specific rebuttal in his reply. Moreover, Respondent No. 3 was also proceeded against ex-parte and he failed to seek setting aside of the ex-parte proceedings passed against him.
On the other hand, learned counsel for Respondent No. 3 at the very outset has averted to Para 3 of the reply filed by Respondent No. 3 wherein he duly refuted the claim of the petitioner in the following terms:--
It is contended by the learned counsel for Respondent No. 3 that since the petitioner had filed an appeal against the initial judgment and decree dated 25.03.2000 and the same has been dismissed, which had attained finality and the said fact has been concealed by the petitioner in the instant writ petition, as such, this writ petition merits to be dismissed. It is further stated that the impugned judgment and decree was rightly passed by the learned District Judge taking into consideration the law and as such no illegality had occurred which needs to be rectified through the instant writ petition. The petitioner could only seek enhancement through filing of a separate suit. The same could not be adjudicated upon by the Executing Court. Averting to para 1 of the application of the petitioner, it is stated that the said application had not been filed independently but had been filed in the pending execution petition, as such, it has been rightly observed by the learned District Judge in the impugned judgment and decree; therefore, no illegality has been committed.
Arguments heard, record perused.
Perusal of the application filed by the petitioner dated 21.06.2005 before the learned Senior Civil Judge/Judge Family Court, Mandi Baha-ud-Din, shows that the said application had been separately numbered apart from the execution petition as such the learned District Judge had failed to take into consideration the same while deciding the appeal of Respondent No. 3 in the circumstances the said application of the petitioner was duly maintainable, as has been held in the case of Arbab Mir Muhammad Vs. Mst. Iram Iltimes and 4 others (1999 CLC 1668) wherein it has been held that "where the maintenance was fixed in the year 1986, the same was bound to be changed due to rate of inflation and the requirements of children. No bar existed in filing of fresh application for enhancement of future maintenance." Further the contention of the learned counsel for Respondent No. 3 that the same could not have been challenged after the petitioner's appeal filed against judgment and decree dated 25.03.2000, had been dismissed therefore, the same had attained finality, is also not sustainable. Subsequent enhancement of maintenance allowance can be allowed on the ground of change in circumstances and conditions as well as the cost of living, as such, the learned Judge Family Court had rightly taken the same into consideration and enhanced the maintenance allowance upto Rs.1200/- per month with 10% annual increase. In this regard, reliance is placed on the case of Muhammad Akram Vs. Additional District Judge and others (PLD 2008 Lahore 560) wherein it has been held that "Under the changed circumstances and needs of minor children, fresh proceedings for maintenance allowance were maintainable before Family Court having jurisdiction in the matter. Mere fact that mother of the children admitted before Family Court that father of minors was carrying on the same profession by which he was earning livelihood at the time of earlier suit did not essentially mean that there had not been any change in his income as well."
The learned Judge Family Court had rightly held that the minor is entitled to maintenance allowance at the rate of Rs.1200/- per month with 10% annually increase keeping in view the inflation phenomenon.
In view of what has been discussed above, this writ petition is accepted and the impugned judgment and decree dated 25.07.2007 passed by the learned District Judge, Mandi Baha-ud-Din, is set aside and the judgment and decree dated 12.04.2007 passed by the learned Judge Family Court, Mandi Baha-ud-Din is upheld.
(R.A.) Petition accepted.
PLJ 2009 Lahore 758
Present: Umar Ata Bandial, J.
SHAHZAD NAZIR and 5 others--Petitioners
versus
EXECUTIVE VICE-PRESIDENT, PTCL, LAHORE
and 3 others--Respondents
W.P. No. 14936 of 2008, decided on 5.6.2009.
Civil Servant--
----VSS Package--Constitutional petition--Question of maintainability--Package was discriminatory for exlcuding pensionary payments--Validity--Where no loss, injury or prejudice is established on record by the petitioner, the relief prayed is entirely academic and speculative upon which no writ can be granted. [P. 759] A
Constitution of Pakistan, 1973--
----Arts. 25 & 199--Civil servant--VSS Package--Question of benefits--Pensionary rights and gratuity--Civil servants had paid amounts under headings of severance pay, separation bonus, housing allowance and medical benefits--No legal rights to receive payment of gratuity and pension--Package was discriminatory for excluding pensionary payments--Determination of VSS benefits--Maintainability of petition--Grievance of petitioner was prima facie--Legal obligation that mandates the specific amolument claimed by civil servant--Held: Without comparative of two VSS Packages the allegation of illegal omission and discrimination in the VSS Package is a non-starter--Civil servant had already accepted the VSS Package and received full benefits--Bar of estoppel requires a compelling explanation of cause to maintain the challenge--Further held: Petition was silent, evasine or vague and lacks a perceptible legal right or obligation for enforcement--Petition was dismissed. [P. 759] B
Mian Bilal Bashir, Advocate for Petitioners.
Ch. Abdul Rub and Mr. Muhammad Aftab Alam, Advocates for Respondents.
Date of hearing: 5.6.2009.
Order
Learned counsel for the petitioner urges that the VSS package offered to the petitioner by the PTCL in the year 2007 failed to take account of the pensionary rights and gratuity to which the petitioner is entitled under the terms and conditions of his service, Instead the petitioner has been paid amounts under the headings of severance pay, separation bonus, housing allowance and medical benefits. None of these heads of payment have any nexus with the legal rights of the petitioner to receive payment of gratuity and pension. He reinforces his argument with reference to the contents of 1997 VSS package offered by the PTCL to its employees at that time. The package contained a payment under a formula base on the pensionary entitlement of the employees in question. Submits that the new formula and nomenclature adopted by the PTCL for the 2007 VSS package is discriminatory for excluding pensionary payments.
When the learned counsel was asked about the injury or prejudice suffered by the petitioner on account of the impugned formula for determining the VSS benefits, he submitted that he had not calculated the same. In a case where no loss injury or prejudice is established on record by the petitioner, the relief prayed is entirely academic and speculative upon which no writ can be granted. Furthermore, the grievance of the petitioner which is prima facie based on Article 25 of the Constitution, fails to identify legal obligation that mandates the specific emoluments claimed by the petitioner, for inclusion in a VSS package, that are alleged to be lacking presently. Without a comparative compilation of financial and legal elements of the two VSS packages the allegation of illegal omission and discrimination in the impugned VSS package is a non-starter. Finally, the petitioner has already accepted the impugned VSS package and received full benefits thereunder; the bar of estoppel requires a compelling explanation of cause to maintain the instant challenge. The petition is silent, evasive or vague in the foregoing respects and lacks a perceptible legal right or obligation for enforcement.
In the light of the above this petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 760
Present: Iqbal Hameed-ur-Rehman, J.
ABDUL HAMEED, EX.HD. TCR/GLCY, LAHORE, DIVISION--Petitioner
versus
GENERAL MANAGER/OPS, PAKISTAN RAILWAYS HEADQUARTERS OFFICE LAHORE and another--Respondents
W.P. No. 12930 of 2009, decided on 26.6.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Remedy of filing the petition--Sought direction to decide departmental appeal--Held: Respondent was directed to expeditiously decide the pending departmental appeal of civil servant within one month. [P. 761] A
2005 PLC (CS) 721 & 2003 PLC (CS) 689.
Mr. Muhammad Aftab Alam, Advocate for Petitioner.
Date of hearing: 26.6.2009.
Order
Through the instant petition, the petitioner seeks a direction to Respondent No. 1 to decide the departmental appeal of the petitioner dated 30.11.2001.
It is vehemently urged that the petitioner had been making hectic efforts since the filing of his departmental appeal and repeated reminders have been made to Respondent No. 1 for the decision of the departmental appeal but the same has not been addressed to in spite of verbal assurances given to the petitioner.
It is inter alia contended that the respondent is bound under the law to decide the departmental appeal of the petitioner and not deciding the departmental appeal of the petitioner is a clear violation of Section 24 a of the General Clauses Act, 1897 and in this regard, reliance is placed upon Maulana Qari Muhammad Arif, Sialvi, Divisional Khateeb Auqaf, Gujranwala Vs. Chief Administrator, Auqaf, Punjab, Aiwan-e-Auqaf, Lahore and 2 others (2005 PLC (C.S.) 721), wherein it has been held that "nobody should be penalized by inaction of public functionaries" as well as Syed Safeer Hussain Shah Vs. Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and 3 others (2003 PLC (C.S.) 689), wherein it has been observed that "when the department concerned is not disposing of the representations for orders, an aggrieved person has got the remedy of filing the writ petition before this Court".
In view of the above submissions of learned counsel for the petitioner, Respondent No. 1 is directed to expeditiously decide the pending departmental appeal of the petitioner dated 30.11.2001 within one month on the receipt of this order.
With this direction, this writ petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 761
Present: Hafiz Tariq Nasim, J.
Mrs. AYESHA RASHEED, SUBJECT SPECIALIST (HOME ECONOMICS) PUNJAB TEXT BOOK BOARD, LAHORE--Petitioner
versus
PUNJAB TEXT BOOK BOARD, LAHORE through its Chairman, Lahore and 2 others--Respondents
W.P. No. 4108 of 2009, heard on 9.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Civil servant was employee of Punjab Textbook Board--Principle of consistency--Removal from service due to appointment on the direction of Minister--His colleagues were reinstatement--Matter of terminated employees of Punjab Text Book Board--Civil servant cannot be deprived of benefit--Validity--A citizen who has no connection with political hierarchy is being deprived of the same right which is extended to placed citizen who could establish some contacts with Chief Minister but Courts of law cannot close their eyes or close their doors for rectification of wrong or to eliminate the element of discrimination or inconsistency--Civil servant could not get the directing from Chief Minister could manage, but the civil servant cannot be deprived of the same benefit, which is extended to colleagues as well as per dictates of the Constitution, as well as law laid down by Apex Court--Petition was allowed. [P. 768] A
1996 SCMR 1185, 2009 SCMR 1, 2009 SCMR 339 & PLD 1990 SC 295.
Mr. Muhammad Aftab Alam Rana, Advocate for Petitioner.
Agha Abul Hassan Arif, Advocate for Respondents.
Date of hearing: 9.4.2009.
Judgment
Facts leading to this writ petition are that the petitioner was appointed in BS-17 in the Punjab Textbook Board on 16.3.1995 by the order of the competent authority, her case was referred to the Board of Directors of the Punjab Textbook Board for her regularization as per requirement of Board's Regulations. The said Board regularized the petitioner's service through order dated 2.7.1995 and that too after interviewing the petitioner by the scrutiny Committee constituted by Respondent No. 1. Petitioner served the Board without any complaint whatsoever for a considerable long time however on 16.6.2000 a Show Cause Notice was issued to the petitioner alleging that her appointment was made on the direction of the Minister so why she should not be terminated from service. The petitioner refuted the allegations but the petitioner was terminated through order dated 16.10.2000 alongwith her certain other colleagues.
The petitioner's colleagues agitated the matter before different forums and finally the employees of the Board holding the post of grade-1 to 15 get relief from the department on the strength of judgment passed by the Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Akhtar Sherani v. Punjab Textbook Board (2004 SCMR. 1077).
It is to be noted that the petitioner's colleagues namely Miss Saman Jameel and Rana Tariq Mahmood approached the then Chief Minister who issued a directive for their reinstatement and that too on the strength of law laid down by the apex Court supra whereas the petitioner continuously persuaded for the redressal of her grievance before the Board Authorities.
Miss Saman Jameel and Rana Tariq Mahmood were reinstated and one of their colleague namely Anjum Mumtaz approached this Court through WP.No. 6579/2007 her writ petition was allowed through order dated 14.4.2008 and the relevant Para of the order dated 14.4.2008 shall be useful to be reproduced:--
"It is really unfortunate that all similarly placed persons have been benefited by the respondents but the only petitioner is running from pillar to post for the redressal of her grievance which is not warranted under law on any ground. In the light of above, Respondent No. 1 is directed to give the benefit of judgment of the Hon'ble Supreme Court of Pakistan dated 1.1.2004 and reinstate the petitioner in the same manner which was adopted in. case of Tariq Mehmood, Saman Jamil and Mrs. Fareeda Sadiq."
Aggrieved by the order of this Court, Punjab Textbook Board filed CPLA before the Hon'ble Supreme Court of Pakistan but the leave was refused and the order of this Court was confirmed and later on, the said Anjum Mumtaz was reinstated by the Punjab Textbook Board.
The petitioner approached this Court with a precise submission that as her colleagues namely Miss Saman Jamil, Rana Tariq Mehmood, Anjum Mumtaz and Saiqa Khanam have been reinstated so being a similarly placed colleague she be also granted the same benefit and an appropriate writ be issued in favour of the petitioner in the light of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 and the judgments passed by the Hon'ble Supreme Court of Pakistan and by this Court be given effect by invoking the principle of consistency.
Learned counsel for the petitioner argued the case at length and submits with vehemence that if a Court decides a point of law relating to the terms of an employee which covers not only the case of that employee who litigated but also all other employees who may have not taken any legal proceedings, in such a case the dictates and rules of good governance demand that the benefit of such judgment be extended to others, who may not be the party to the litigation instead of compelling them to approach the Court. Further submits that the petitioner worked continuously without break for a period of almost five years but she was terminated illegally on a ground that she was an appointee of a Minister ignoring the record of the Board that the petitioner was interviewed by the duly selected scrutiny Committee, the petitioner's eligibility was assessed and then the petitioner's suitability was determined in its true perspective and if at all some irregularity is found in the petitioner's appointment and that too after a lapse of five years continuous service of the petitioner, then the petitioner could not have been a sufferer rather the responsible should have been taken to task. Adds that it is a clear case of discrimination and according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 this Court can redress the petitioner's grievance if it is found that the petitioner is actually discriminated. In support of his contentions the learned counsel has relied on Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan and others (1996 SCMR 1185), Muhammad Abbas v. Government of Punjab and others (2005 PLC (CS) 671), Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others (2009 SCMR 1) and Muhammad Haleem and, another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339).
On the other hand the learned counsel for the respondents opposed the contentions of the learned counsel for the petitioner and submits that the petitioner was not a party before the Hon'ble Supreme Court of Pakistan when the review of Muhammad Akhtar Sherani was allowed so she cannot be given benefit of that judgment. Further submits that so far the case of discrimination is concerned Miss Saman Jamil and Rana Tariq Mehmood were reinstated into service on the directions of the Chief Minister whereas Anjum Mumtaz and Laiqa Khanam are reinstated into service by the order of this Court. So being not a party before the Hon'ble Supreme Court of PAKISTAN or a beneficiary of the order of the Chief Minister, Punjab cannot invoke the constitutional jurisdiction of this Court.
The learned counsel for the respondents could not controvert the facts, however submits with vehemence that there was a great distinction between the case of present petitioner namely Aisha Rasheed and the case of other employees who were placed in grade-1 to 15 as the present petitioner Aisha Rasheed was in grade-17 and the Board was authorized to decide the eligibility of its employees regarding the retention of employees of grade-1 to 15 by the Hon'ble Supreme Court of Pakistan in its judgment reported as 2004 SCMR 1077 and as such this writ petition being misconceived be dismissed.
Arguments heard; record perused.
So far the facts of the case are concerned these are not disputed, the petitioner was appointed in BS-17 on 2.7.1995 by the order of the then competent authority and that too on the recommendations of the scrutiny Committee who assessed the petitioner's eligibility and determined her suitability in the year 1995. Even the eligibility of the petitioner as well as the suitability is not under dispute even today.
The petitioner performed her duties for a considerable long time i.e. for five years without any complaint whatsoever.
After hearing both the parties at length and perusal of record it is noticed that the matter of terminated employees of the Punjab Textbook Board were examined at the level of the Hon'ble Supreme Court of Pakistan in its judgment reported as 2004 SCMR 1077 and it is undisputed fact that the Textbook Board reinstated all the employees of grade-1 to 1 5 giving the benefit of the said judgment. In addition to this it is also not denied that Rana Tariq Mehmood (BS-17) and Miss Saman Jamil (BS-17) arc reinstated into service on the directive of the Chief Minister Punjab after the judgment of the Hon'ble Supreme Court of Pakistan reported as 2004 SCMR 1077.
After the reinstatement of Rana Tariq Mehmood and Miss Aman Jamil, the colleague/similarly placed employee namely Anjum Mumtaz (BS-17) approached this Court, her writ petition was allowed but the Board assailed the order of this Court before the Hon'ble Supreme Court of Pakistan and vide order dated 21.8.2008 the leave as refused and the order of this Court was confirmed/upheld.
To resolve the present controversy it shall be useful to reproduce the concluding Para of the order of the Hon'ble Supreme Court of Pakistan dated 21.8.2003 in case of Anjum Mumtaz.
"5. After perusal of record and hearing the arguments, we have come to the conclusion that this petition does not deserve, leave to be granted, as question of public importance has not been shown to have been involved in the case in hand. Respondent No. 1, could not be treated with discrimination qua the other employees, who were reinstated having case of similar nature, facts and circumstances. The case of Miss. Saman Jamil and Rana Tariq Mehmood, is the example, who were holding post of Grade-17 and were reinstated, whose case was similar to that of Respondent No. 1. Therefore, no distinctions have been found to the case of the respondent as against those aforementioned persons. As regard the question of eligibility, suffice it to say that Respondent No. 1, when appointed, was found eligible and thereafter her appointment was regularized after about 7 months. Therefore, at the stage, when she had served, the department for about 5 years, her ouster/termination could not be made without any reasonable and justifiable cause.
Accordingly, we have found no legal infirmity in the judgment of the learned Judge of the Lahore High Court, Lahore. This civil petition is dismissed and leave refused."
It is to be noted that such like controversy has already been resolved by this Court as well as by the Hon'ble Supreme Court of Pakistan in a number of cases. For the first time, the apex Court resolved the matter once for all in a case reported as Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it was observed that we may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants who may not be parties to the above litigation instead of compelling them to approach the legal forum."
In a case reported as Muhammad Abbas v. Government of the Punjab (2005 PLC (CS) 671) this Court has followed the law supra and also adverted to the point of discrimination minutely observing that "a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will, hold that no justifiable basis can be made to deny the petitioner a similar treatment which is extended to the colleagues of the petitioner."
In another case reported as Government of the Punjab v. Samina Perveen (2009 SCMR 1) the four Hon'ble Judges of the apex Court even repelled the objection of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and extended the benefit to the civil servants upholding the judgment of the High Court in a writ holding that "the matter has already been decided by this Court in the case of Mst. Naseem Akhtar (supra), and it has been held that the appointment orders of the respondents as PTC Teachers were genuine. It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of the Pakistan and others 1996 SCMR 1185 that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to the other civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law."
In another case reported as Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore, and others (2009 SCMR 339) the apex Court reinstated those employees of Pakistan Railways and that too with back benefits who were removed from service, approached the Service Tribunal without availing the remedy of filing departmental appeal i.e. a mandatory provision but the Hon'ble Supreme Court of Pakistan extended the benefit to the employees of those judgments of the apex Court wherein it was held that for resolving the controversial question shorter procedure of Show Cause Notice was not justified rather a full-fledge regular inquiry should have been conducted before removing the said employees, meaning thereby that the Hon'ble Supreme Court of Pakistan in case of 2009 SCMR 339 adverted to the same principle that if Hon'ble Supreme Court of Pakistan has already decided a principle/question of law then the benefit of that principle/question of law be extended to all other similarly placed persons despite they did not avail the mandatory requirement of filing departmental, appeal and even the apex Court observed in the following manner;
"It is also surprising that the Tribunal while hearing the appeals of the petitioners got involved entangled itself in technicalities without taking into consideration the above illegalities. There is no doubt that the petitioners did not assail their orders of dismissal by filing the departmental appeals and instead they submitted legal notices through their advocates which could not be equated or treated as appeal under the Removal from Service (Special Powers) Ordinance, 2000 but completely ignored the illegalities and shortcomings committed by the Railway Authorities and on the basis of the failure of the petitioners to comply with the provisions of law penalized them while completely ignoring and overlooking the respondent/Railway Department's illegal, unlawful actions and contraventions of law which resulted in illegal dismissal of the petitioners."
Now coming to the facts of the present case it is to be observed that the petitioner who is undisputedly a similarly placed colleague of Rana Tariq Mehmood, Miss Saman Jamil, Laiqa Khanam and Anjum Mumtaz cannot be discriminated on any ground whatsoever particularly when there is a settled law laid down by the Hon'ble Supreme Court of Pakistan reported as PLD 1990 SC 295 as well as in unreported judgment in Civil Appeal No. 427/2005 decided on 09.10.2008 titled as Mehr Muhammad Nawaz vs. Managing Director, Small Business Corporation, wherein it is held "needless to emphasis that while dealing with the case where the aggrieved party alleges discrimination, the Court cannot overlook the implication thereof. Equal treatment of all similarly, situated is the basic principle on which rests justice under the law of evenhanded justice is not administered, it can have many adverse and negative effects on a society. It can cause discontentment and frustration in the social setup. There can be no denial that social justice is an objective and enshrined in our Constitution."
There is another important aspect, which cannot be overlooked and that is the emphasis of the learned counsel for the respondents regarding reinstatement of Rana Tariq Mehmood and Miss Saman Jamil who got the benefit of reinstatement on the strength of directives issued by the Chief Minister Punjab, the learned counsel for the respondents submits that as Rana Tariq Mehmood and Miss Saman Jamil got issued directives from the Chief Minister Punjab so it was obligatory on the Punjab Textbook Board Authorities to reinstate Rana Tariq Mehmood and Miss Saman Jamil whereas the present petitioner Miss Aisha Rasheed having no such directive cannot be accommodated/reinstated thus the plea of discrimination having no strength is to be ignored.
It is really a shocking one that a citizen who has no connection with political hierarchy is being deprived of the same right which is extended to the similarly placed citizen who could establish some contacts with the Chief Minister Punjab but the Courts of law cannot close their eyes or close their doors for the rectification of wrong or to eliminate the element of discrimination or inconsistency.
Of course the present petitioner could not get the directive from the Chief Minister Punjab as Rana Tariq Mehmood and Miss Saman Jamil could manage, but the petitioner cannot be deprived of the same benefit, which is extended to Rana Tariq Mehmood and Miss Saman Jamil being a similarly placed colleague as per dictates of the Constitution of Islamic Republic of Pakistan, 1973 as well as the law laid down by the apex Court referred above.
For the foregoing reasons, this writ petition is allowed, the termination order of the petitioner is set aside, she is reinstated into service in the light of judgment of reinstatement of Rana Tariq Mehmood, Miss Saman Jamil, Laiqa Khanam and Anjum Mumtaz.
Respondent No. 1 is directed to issue reinstatement order to the petitioner within one month from today without fail under intimation to the Deputy Registrar (Judicial) of this Court.
(R.A.) Petition allowed.
PLJ 2009 Lahore 769
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
TARIQ HAMEED AKHTAR KHAN, SECRETARY, UNION COUNCIL NO. 4, MULTAN--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER, MULTAN
and others--Respondents
W.P. No. 2803 of 2006, decided on 13.5.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Not granting promotion from the date when junior were promoted--Knocked out on two grounds--Non available of annual confidential reports and a criminal case was pending against him--Matter was referred to D.C.O.--Validity--If submissions made at bar for petitioner were found true in that eventuality, the petitioner shall be considered for proforma promotion provided that he is senior and eligible in accordance with applicable Service Rules--Petition was disposed of.
[P. 770] A
Ch. Altaf Hussain, Advocate for Petitioner.
Date of hearing: 13.5.2009.
Order
Through this constitutional petition, the petitioner is aggrieved of in action on the part of respondent in not granting promotion to him from the date when Respondents No. 4 to 7 who were junior to him were promoted and that inspire of the fact that he was working against a post of higher scale, he was paid wages of lower scale.
Firstly that annual confidential reports are not available and Secondly a criminal case was pending against him.
Secondly the criminal case certainly was registered against him but he has since been exonerated there from. In view of above, I am inclined to refer the matter to the District Coordination Officer with a direction to him to attend to the grievance of the petitioner and if the afore stated submissions made at bar by the learned counsel for the petitioner are found true in that eventuality, the petitioner shall be considered for proforma promotion provided that he is senior and eligible in accordance with the applicable Service Rules. Respondent is also directed to submit compliance report to the Deputy Registrar (Judicial) of this Court within a period of 30 days positively from receipt of this order.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 770
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
DILBAR HAYAT--Petitioner
versus
R.P.O, MULTAN RANGE MULTAN and another--Respondents
W.P. No. 2292 of 2009, decided on 2.4.2009.
Constitutional of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--S. 22-A(6)(iii)--Constitutional petition--Ex-officio Justice of Peace--Direction for registration of criminal case--Despite specific direction of ex-officio justice of peace, case was not registered--Ex-officio justice of peace had been full empowered to issue any direction to police authorities, whenever any complaint about their neglect, failure or excess committed in relation to its functions and duties--Validity--When an order/direction of ex-officio justice of peace is not complied with in its true letter and spirit, the best and legal course for aggrieved person is to move another complaint to the same ex-officio justice of peace complaining non-compliance of its order and upon such complainant, the ex-officio justice of peace is fully competent to issue further directions to Distt. Police Officer by recommending penal action against such delinquent police officials in terms of S. 155 of Police Order--Held: High Court through constitutional jurisdiction would not only mean unnecessarily burdening High Court but also amounts to sheer wastage of time and money of the poor litigants--Petition was dismissed. [P. 772] A & B
Mr. Rashid Rehman Khan, Advocate for Petitioner.
Date of hearing: 2.4.2009.
Order
Briefly the facts are that petitioner (Dilbar Hussain) moved an application under Section 22-A Cr.P.C. before the learned Additional Sessions Judge, Mian Channu/Ex-officio Justice of Peace for registration of criminal case against certain respondents and the learned Ex-officio Justice of Peace after calling for report from the concerned Police, on 25.11.2008 passed the following order:--
"D.I.G/R.P.O, is directed to lodge FIR against Gulzar S.I Police Station City Khanewal and other delinquent police officials who are involved in case under Section 155-C of Police Order. Copy of this order and copy of this petition and other relevant documents medico legal report are sent to the office of DIG/RPO, Multan."
Through the instant petition, grievance of the petitioner is that despite above specific direction of learned Ex-officio Justice of Peace, the case is not being registered.
Heard.
Without going through the allegations on the basis of which complaint under Section 22-A Cr.P.C had been filed by the present petitioner, the moot point here is that once an explicit order is passed or a direction is issued by Ex-officio Justice of Peace under Section 22-A Cr.P.C. and said order/ direction is not challenged anywhere, in case of its non-compliance what should be the line of action for the person in whose favour the Ex-officio Justice of Peace passed such order?
Such an eventuality has not been left unattended by the Legislature and being mindful of such a situation. Sub-Section (6)(i), (ii) and (iii) was inserted in Section 22-A Cr.P.C. by way of Code of Criminal Procedure (Third Amendment) Ordinance, CXXXO of 2002, on 21.11.2002. Now Section 22-A (6) Cr.P.C, reads as under:--
"(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding---
(i) Non-registration of a criminal case;
(ii) Transfer of investigation from one police officer to another and
(iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties."
As shall be seen from the above reproduced sub-section (6)(iii); ex-officio Justice of Peace has been fully empowered to issue any direction to the police authorities concerned, whenever, any complaint about their neglect, failure or excess committed in relation to its functions and duties, is reported to it. In view of subsequent insertion of sub-section (6), (i), (ii) and (iii) in Section 22-A Cr.P.C. its implication and impact is very much clear and this cannot be minimized by adopting any other interpretation except the purpose to vest further powers with the ex-officio Justice of Peace enabling him to get its own orders/directions implemented. Therefore, when an order/direction of ex-officio Justice of Peace is not complied with in its true letter and spirit, the best and legal course for the aggrieved person is to move another complaint to the same ex-officio Justice of Peace complaining non-compliance of its order and upon such complaint, as observed above, the concerned ex-officio Justice of Peace is fully competent to issue further directions to the concerned District Police Officer by recommending penal action against such delinquent police officials/officers in terms of Section 155 of the Police Order, 2002. To be more precise, Section 155(c) and 155(d) of the said Order, in fact deal with such like situations, according to which any police officer who "is guilty of any willful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;" and "is guilty of any violation of duty;" would be exposed to penalty under the Police Order, 2002.
In view of the above discussions, recourse to this Court through its constitutional jurisdiction would not only mean unnecessarily burdening this Court but also amounts to sheer wastage of time and money of the poor litigants.
In view of above, this petition being deviation from above legal propositions, is dismissed. The petitioner, may if so advised, have recourse to the same ex-officio in above terms.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 770
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
DILBAR HAYAT--Petitioner
versus
R.P.O, MULTAN RANGE MULTAN and another--Respondents
W.P. No. 2292 of 2009, decided on 2.4.2009.
Constitutional of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--S. 22-A(6)(iii)--Constitutional petition--Ex-officio Justice of Peace--Direction for registration of criminal case--Despite specific direction of ex-officio justice of peace, case was not registered--Ex-officio justice of peace had been full empowered to issue any direction to police authorities, whenever any complaint about their neglect, failure or excess committed in relation to its functions and duties--Validity--When an order/direction of ex-officio justice of peace is not complied with in its true letter and spirit, the best and legal course for aggrieved person is to move another complaint to the same ex-officio justice of peace complaining non-compliance of its order and upon such complainant, the ex-officio justice of peace is fully competent to issue further directions to Distt. Police Officer by recommending penal action against such delinquent police officials in terms of S. 155 of Police Order--Held: High Court through constitutional jurisdiction would not only mean unnecessarily burdening High Court but also amounts to sheer wastage of time and money of the poor litigants--Petition was dismissed. [P. 772] A & B
Mr. Rashid Rehman Khan, Advocate for Petitioner.
Date of hearing: 2.4.2009.
Order
Briefly the facts are that petitioner (Dilbar Hussain) moved an application under Section 22-A Cr.P.C. before the learned Additional Sessions Judge, Mian Channu/Ex-officio Justice of Peace for registration of criminal case against certain respondents and the learned Ex-officio Justice of Peace after calling for report from the concerned Police, on 25.11.2008 passed the following order:--
"D.I.G/R.P.O, is directed to lodge FIR against Gulzar S.I Police Station City Khanewal and other delinquent police officials who are involved in case under Section 155-C of Police Order. Copy of this order and copy of this petition and other relevant documents medico legal report are sent to the office of DIG/RPO, Multan."
Through the instant petition, grievance of the petitioner is that despite above specific direction of learned Ex-officio Justice of Peace, the case is not being registered.
Heard.
Without going through the allegations on the basis of which complaint under Section 22-A Cr.P.C had been filed by the present petitioner, the moot point here is that once an explicit order is passed or a direction is issued by Ex-officio Justice of Peace under Section 22-A Cr.P.C. and said order/ direction is not challenged anywhere, in case of its non-compliance what should be the line of action for the person in whose favour the Ex-officio Justice of Peace passed such order?
Such an eventuality has not been left unattended by the Legislature and being mindful of such a situation. Sub-Section (6)(i), (ii) and (iii) was inserted in Section 22-A Cr.P.C. by way of Code of Criminal Procedure (Third Amendment) Ordinance, CXXXO of 2002, on 21.11.2002. Now Section 22-A (6) Cr.P.C, reads as under:--
"(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding---
(i) Non-registration of a criminal case;
(ii) Transfer of investigation from one police officer to another and
(iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties."
As shall be seen from the above reproduced sub-section (6)(iii); ex-officio Justice of Peace has been fully empowered to issue any direction to the police authorities concerned, whenever, any complaint about their neglect, failure or excess committed in relation to its functions and duties, is reported to it. In view of subsequent insertion of sub-section (6), (i), (ii) and (iii) in Section 22-A Cr.P.C. its implication and impact is very much clear and this cannot be minimized by adopting any other interpretation except the purpose to vest further powers with the ex-officio Justice of Peace enabling him to get its own orders/directions implemented. Therefore, when an order/direction of ex-officio Justice of Peace is not complied with in its true letter and spirit, the best and legal course for the aggrieved person is to move another complaint to the same ex-officio Justice of Peace complaining non-compliance of its order and upon such complaint, as observed above, the concerned ex-officio Justice of Peace is fully competent to issue further directions to the concerned District Police Officer by recommending penal action against such delinquent police officials/officers in terms of Section 155 of the Police Order, 2002. To be more precise, Section 155(c) and 155(d) of the said Order, in fact deal with such like situations, according to which any police officer who "is guilty of any willful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;" and "is guilty of any violation of duty;" would be exposed to penalty under the Police Order, 2002.
In view of the above discussions, recourse to this Court through its constitutional jurisdiction would not only mean unnecessarily burdening this Court but also amounts to sheer wastage of time and money of the poor litigants.
In view of above, this petition being deviation from above legal propositions, is dismissed. The petitioner, may if so advised, have recourse to the same ex-officio in above terms.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 773
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
Mst. IQBAL MAI and 3 others--Petitioners
versus
AZIZ KHAN--Respondent
C.R. No. 209-D of 2007, decided on 14.4.2009.
Approbate and Reprobate--
----Commitments made before Court resile after words--Validity--No party can be allowed to approbate and reprobate in the same breath and that the parties are bound by their commitments/offers made before the Court and judgments and duress can be passed on the basis thereof--Held: Parties making a statement or commitment before the Court cannot be allowed to resile afterwords. [P. 774] A
Mr. Jamshaid Farooq Wajdani, Advocate for Petitioners.
Mr. Shehzad Fareed Langrial, Advocate for Respondent
Date of hearing: 14.4.2009.
Order
Briefly stated facts as those emerge out of this revision petition are that the respondent filed a suit tor possession which was decreed vide judgments and decrees dated 14.07.2005 passed by learned Civil Judge, Muzaffargarh where-against an appeal was preferred. During the course of hearing of the appeal an application was moved by the petitioners/appellants that if the disputed house is not found to be situated in village Mouza Rakh Khan Pur upon the state land, in that eventuality there appeal may be decided accordingly whereupon the learned appellate Court directed Tehsildar, Muzaffargarh to inspect the spot and submit his demarcation report with respect to the disputed property. In compliance whereof Tehsildar Muzaffargarh after inspection submitted his report on 13.12.2006 that the disputed house did fall in the disputed village. Yet another application was moved by the petitioners for re-demarcation whereupon "Tehsildar" concerned was redirected to inspect the spot in presence of the parties and submit his report which order too was complied with and second report was submitted on 12.01.2003 whereby he endorsed/affirmed his earlier report. The appeal of the petitioners was dismissed.
It is inter alia contended that the report of the Tehsildar was against facts and that the learned appellate Court has not attended to the submissions made at bar before him and that both the learned Courts below have failed to appreciate the arguments advanced on behalf of the petitioners; that the respondent was not at all owner of the property and that as per revenue record he has already sold out his entire property, therefore, even if the petitioners were not entitled to have possession of the said house, the respondent had nothing to do with it and the disputed house being situated in the state land should have been taken over by the state functionaries and resumed in favour of the government. In support of his contentions relies upon 2007 MLD 157 "M/s. Popular Boards (Pvt) limited versus Customs, Excise, and Sales Tax appellate tribunal and another". To canvass that the subordinate Courts must announce the judgment/order after recording reasons and signing the same. 1983 CLC 254 "Mehmood Khan Vs. Muhammad Afsar Khan and another" It was held in this case that trial Court should not decide the list without affording opportunity to the plaintiff to file objection 1991 MLD 2050.
Conversely learned counsel for the respondent vehemently opposes the submissions made by learned counsel for the petitioner and supports the impugned judgments.
Arguments heard. Record perused.
I have heard learned counsels for the parties at quite some length and with their able assistance have also gone through the entire record. The petitioners through application in writing offered that local commission be appointed for carrying on spot inspection and that their appeal may be decided in accordance therewith. The learned appellate Court appointed Tehsildar who inspected the spot in presence of the parties and on the basis of his report the appeal of the petitioner was dismissed. By now it is well settled proposition of law that no party can be allowed to approbate and reprobate in the same breath and that the parties are bound by their commitments/offers made before the Court and judgments and decrees can be passed on the basis thereof. The party making a statement or commitment before the Court cannot be allowed to resile after-words.
In view of above I am not inclined to interfere in the well reasoned judgments and decrees passed by both the lower Courts below, which are not only concurrent in nature but perfectly in accordance with law on the subject. This petition, therefore, being devoid of any merits is hereby dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 775 (DB)
[Multan Bench Multan]
Present: Muhammad Ahsan Bhoon and Muhammad Khalid Alvi, JJ.
ZAWAR HUSSAIN, SUB-INSPECTOR--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 6887 of 2008, heard on 26.1.2009.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 21-E--Constitution of Pakistan, 1973--Art. 199--Request for physical remand--Refusal of--Challenge to--Constitutional jurisdiction--Presiding Officer, while refusing the physical remand had not given any cogent reason and perhaps had lost sight of the fact--Validity--Investigation officer applied for their physical remand while stating in the application that accused were hardened criminals and desperate offenders, so to fetch further evidence, their physical remand was required, while considering that aspect of the case physical remand was refused--Grant or refusal of physical custody of an accused must be with judicious application of independent mind, which exercise had not been done in instant case. [Pp. 777 & 778] A
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 25--Constitution of Pakistan, 1973, Art. 199--Right of appeal--Locus standi--Complainant who was police officer, during performance of official duty, was fired upon by accused--Two constables were seriously injured--Physical remand was refused by Judicial Magistrate--Challenge to--Validity--No alternate remedy was available to petitioner to challenge impugned order and that was reason why complainant has challenged the same in constitutional jurisdiction of High Court. [P. 779] C
Special Law--
----Over-riding effect--Anti-Terrorism Act, 1997 is a special law and whenever there is a conflict between the ordinary and special laws it is settled proposition that provisions of special law would prevail having over-riding effect. [P. 779] B
Makhdoom Zafar Iqbal Shah, Advocate for Petitioner.
Mr. James Joseph, Advocate for Respondents No. 2 & 3.
Date of hearing: 26.1.2009.
Judgment
Muhammad Ahsan Bhoon, J.--Through this Constitutional petition, petitioner has challenged the impugned order dated 5.11.2008 passed by the learned Judge Anti-Terrorism Court-1, Multan, whereby, he refused the custody of Respondents Nos. 2 and 3 for the purpose of physical remand.
With the consent of both the learned counsel, this case is being decided as a Pacca case.
In support of this petition, learned counsel for the petitioner contends that the petitioner, being complainant of the case, is an aggrieved person within the meanings of law amended from time to time whereby complainant as well as aggrieved person has been granted right of appeal against acquittal; that the impugned order dated 5.11.2008 passed by the learned Judge Anti-Terrorism Court-1, Multan refusing physical remand of Respondents No. 2 (Muhammad Usman @ Naeema son of Jaffar) and No. 3 (Rana Usman son of Riasat Ali), is illegal as investigation was still in progress and recoveries were yet to be affected from them.
On the other hand, learned counsel for Respondents Nos. 2 and 3 has opposed the prayer made above by contending that under Section 19(1) of the Anti Terrorism Act, 1997, investigation of the case under the Act (ibid) is to be completed within a period of seven days and no remand beyond seven days can be granted; that the petitioner has no locus standi to challenge the impugned order as the same can only be challenged by a Law Officer or a Public Prosecutor and remand cannot be granted just to fill the lacuna of the prosecution. He has lastly contended that there is an apprehension of killing of Respondents Nos. 2 and 3 in a fake police encounter as earlier five co-accused were done to death by the police in such an encounter.
We have heard learned counsel for the parties and have also gone through the police record.
Brief facts of case FIR No. 132/08 dated 8.5.2008, offence under Sections 302, 324, 353, 186, 427, 148, 149 PPC, read with Section 7 of the Anti Terrorism Act, 1997, was registered with Police Station Sarai Sidhu, Khanewal, on the written statement of the petitioner Zawar Hussain, wherein, it was stated that on the fateful day and time he alongwith other police officials was on patrolling duty at Pull Bagar when they received an information that some unknown persons armed with weapons forcibly snatched wheat from a tractor-trolley on a gun point; that on the receipt of said information, they attracted to the spot and saw, in the head-lights of police van, that eleven accused persons being armed with rifles amongst whom four were identified, were present on the road; that on seeing the police party, the accused persons crossed the police van and after a short while they started firing straight on the police van but the same was saved from their firing; that the petitioner and other members of the police party stopped the vehicle at some distance in front of UBL Qataalpur Branch, when, suddenly, the said accused persons attacked the police party and mads a straight firing which hit Akhtar Abbas and Fakhar Abbas constables amongst whom Akhtar Abbas died.
It has been averred in the petition that during the course of investigation petitioner and other witnesses appeared before the Investigating Officer who made statements wherein Accused/Respondents Nos. 2 and 3 were specifically nominated being the real culprits, they were arrested; that they were joined with the investigation whereafter both of them went through the process of identification parade wherein they were duly identified by the witnesses, whereafter, the said respondents were produced before the concerned learned Court in order to get their physical remand, the said request was allowed and their five days physical remand was granted; that the police again produced them before the Court on 3.11.2008 for further nine days physical remand but two days remand was allowed; that they were again produced before the concerned learned trial Court on 5.11.2008 for further seven days physical remand as recovery of weapons of offence was yet to be affected from them and they were reluctant to get recovered the arms but vide impugned order dated 5.11.2008 passed by the learned Judge Anti-Terrorism Court-I, Multan, the said request was turned down and both of them were sent on judicial remand.
A bare perusal of the impugned order dated 5.11.2008 passed by the learned Judge Anti-Terrorism Court-1, Multan would show that the learned Presiding Officer, while refusing the physical remand, has not given any cogent reason and perhaps has lost sight of the fact that both the Respondents No. 2 (Muhammad Usman @ Naeema son of Jaffar) and No. 3 (Rana Usman son of Riasat Ali), being suspects, were arrested and later on were identified as perpetrators of the heinous crime wherein one police constable lost his life while the other was seriously injured. It is pertinent to mention here that at the time of inspection of spot by the Investigating Officer, 125 spent cases of bullets were taken into possession by him but the recovery of weapons of offence was yet to be affected from the accused/Respondents Nos. 2 and 3. For the said purpose, the Investigating Officer applied for their physical remand while stating in the application that the said respondents/accused were hardened criminals and desperate offenders, so to fetch further evidence their physical remand was required but, we are of the view that without considering that aspect of the case physical remand was refused. We may observe here that grant or refusal of physical custody of an accused must be with judicious application of independent mind, which exercise, has not been done in the instant case.
Perusal of the police record reveals that Respondent No. 2 (Muhammad Usman @ Naeema son of Jaffar) is involved in eighteen criminal cases of heinous nature a list of which is available at page 24 of the police record and majority of these cases pertains to the offence of dacoity including murder and under the Arms Ordinance. Similarly, at page 23 of the police record a list of 22 criminal cases of heinous nature is also available against Respondent No. 3 (Rana Usman son of Riasat Ali) including dacoity etc.. While passing the impugned order, the learned Special Judge has not taken into consideration this aspect of the case because, in our view, grant of further remand of the said respondents had become inevitable keeping in view their criminal antecedents. Even otherwise, a bare look at the impugned order would make clear that it is a non-speaking order as no plausible reason has been given in it to decline physical remand of Respondents Nos. 2 and 3 and it appears that the learned Presiding Officer did not bother even to have a glance at the police record. It reads as under:--
"Despite 7 days physical remand of accused no progress, at all has been shown. Request for further physical remand of accused Muhammad Naeem and Rana Usman is declined. Accused are remanded to judicial. Now they be produced in the Court on 15.11.08".
"21-E. Remand. (1) Where a person is detained for investigation, the investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, or custody of any other Investigating Agency joined in the investigation, for which the maximum period allowed may be fifteen days;
Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody, or custody of any other Investigating Agency joined in the investigation nor exceeding twenty-four hours may be obtained from the nearest Magistrate for the purposes of producing the accused before the Court within that period.
(2) No extension of the time of the remand of the accused in police custody, or custody of any other Investigating Agency joined in the investigation, shall be allowed, unless it can be shown by the Investigating Officer, to the satisfaction of the Court that further evidence may be available and the Court is satisfied that no bodily harm has been or will be caused to the accused;
Provided that the total period of such remand shall not exceed thirty days.
(3) The Court shall be deemed to be a Magistrate for purposes of sub-section (1)". (emphasis supplied)
The above quoted provision of law would show that the Legislature, in its wisdom, has provided fifteen days time for the purpose of physical remand but keeping in view the difficulties of investigation, proviso to sub-section 21-E(2) of the Act(ibid) postulates that even period of physical remand can be extended for thirty days.
Even otherwise, Anti Terrorism Act, 1997 is a special law and whenever there is a conflict between the ordinary and special laws it is settled proposition that provisions of special law would prevail having over-riding effect, whereas, in the present case there is no inconsistency between the provisions.
We may observe here that as the learned counsel for Respondents Nos. 2 and 3 has showed an apprehension that the said respondents/accused may be murdered in a fake police encounter as they want to satisfy their personal venom because one police official had lost his life while the other received injuries in the occurrence in question, therefore, keeping in view the said apprehension we are inclined to direct the Investigating Officer of the case as well as Superintendent of Police (Investigation) concerned to adopt necessary measures to ensure safety of the lives of Respondents Nos. 2 and 3 coupled with the observation that if anything happens to them then both the said police officers shall be responsible for the harm caused to Respondents Nos. 2 and 3. So far as contention of the learned counsel for the respondents regarding locus standi of the petitioner is concerned, right of appeal has been granted under Section 25 of the Act(ibid) to the accused as well as complainant or any other aggrieved person. In our considered view, the complainant who was a police officer, during performance of his official duty alongwith his police party, was fired upon by the Accused/Respondents Nos. 2 and 3 in consequence whereof two police constables were seriously injured amongst whom one breathed his last. Admittedly, no alternate remedy is available to the petitioner to challenge the impugned order and that is the reason why the petitioner/complainant has challenged the same in the Constitutional jurisdiction of this Court.
In the above resume of facts and law, this writ petition is allowed, the impugned order dated 5.11.2008 passed by the learned Judge Anti-Terrorism Court-1, Multan, is set-aside and the Investigating Officer is directed to produce Respondents No. 2 (Muhammad Usman @ Naeema son of Jaffar) and No. 3 (Rana Usman son of Riasat Ali) before the learned trial Court who is directed to grant seven days physical remand to the Investigating Officer and pass a fresh order in accordance with law.
(N.I.) Petition allowed.
PLJ 2009 Lahore 780
[Multan Bench Multan]
Present: Muhammad Ahsan Bhoon, J.
MUHAMMAD SHAFQAT--Petitioner
versus
SHAHNAZ BIBI and another--Respondents
W.P. No. 6040 of 2008, decided on 19.1.2009.
West Pakistan Family Courts Act, 1964--
----Ss. 5 & 19--Constitution of Pakistan 1973, Art. 199--Constitutional jurisdiction--Case of dowry article--Provision of Court-fee--Exemption of levy of Court-fee--Court-Fee Act, does not apply to the cases of dowery--Constitutional jurisdiction--Section 5 of the West Pakistan Family Courts Act, (XXXV of 1964) stipulates that subject to the provisions of Muslim Family Laws Ordinance 1961, and conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in Part 1 of the schedule and accordingly schedule (Part 1) of West Pakistan Family Courts Act (XXXV of 1964) was duly amended according to which the word "dowry" was included while Section 19 of the Act provides exemption of levy of Court fee on such like suits, therefore, the contention raised by the counsel for petitioner was of no avail to the petition--Petition dismissed with cost. [Pp. 782 & 783] A, B & C
Ch. Saleem Akhtar Warriach, Advocate for Petitioner.
Mr. Bashir Ahmad Chaudhry, Advocate for Respondent No. 1.
Date of hearing: 19.1.2009.
Order
Through this Constitutional petition, petitioner has assailed the impugned judgments and decrees dated 18.12.2007 passed by the learned Judge Family Court, Vehari and dated 10.6.2008 passed by the learned Additional District Judge, Vehari, whereby, suit for recovery of dowry articles to the extent of Rs.2,00,000/- was decreed and appeal filed by the petitioner against the said judgment and decree, was dismissed, hence this petition.
Brief facts of the case are that the petitioner contracted marriage with Respondent No. 1 on 24.2.2003 and a month thereafter relations between them became strained which led the Respondent No. 1 to file a suit for dissolution of marriage, recovery of maintenance and recovery of dowry articles. It was maintained in the suit that relations between them remained cordial for few days whereafter petitioner used to abuse and beat her and even false allegation of adultery was levelled against her and she was thrown out of his house in plain clothes only after one month of marriage. She further stated in the suit that no effort was made by the petitioner for rehabilitation. As per contents of the suit it was further maintained that at the time of marriage, she was given dowry articles valuing Rs. 2,32,141/- qua which a list was attached with the suit which was marked as Exh.P1.
The suit filed by Respondent No. 1 was contested by the petitioner and a written statement was filed by him. Out of the divergent pleas of the parties, following issues were framed:--
"1. Whether this Court has no territorial jurisdiction to adjudicate upon this suit? OPD
Whether the matter in dispute has been finally heard, disposed of and had become res-judicata? OPD
Whether the plaintiff was given dowry articles according to the list annexed with the plaint showing 83 articles? OPD
Whether the plaintiff was given dowry articles according to list produced by defendants showing 29 articles? OPD
Whether the plaintiff is entitled to the decree for the recovery of dowry articles from the defendant or its alternative price of Rs. 2,32,141/-? OPP
Whether the plaintiff is entitled to the decree for dissolution of marriage and if so on what ground? OPP
Whether the plaintiff is entitled to the decree for maintenance allowance from the defendant and if so to what extent and for what period? OPP
Relief.
Learned counsel for the petitioner contends that both the Courts below have erred in law while not appreciating the pleadings of the parties as in para 15 of the plaint it was mentioned that the suit was worth Rs. 1,00,000/-; that it was admitted by the Plaintiff/Respondent No. 1, who appeared as PW1, that Exh.P1 and Exh.P15 were forged documents; that the petitioner is still ready to return the dowry articles which are lying with him, therefore, judgments and decrees of both the Courts below are liable to be set-aside by this Court.
On the other hand, learned counsel for Respondent No. 1/plaintiff has opposed the contentions raised above by the learned counsel for the petitioner by contending that the Court Fees Act does not apply to the cases of dowry because as per Section 19 (as amended by Family Courts(Amendment) Ordinance (VII of 2002), Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) and its Schedule (Part 1), dowry is exempted from the Court fee and that the suit filed by Respondent No. 1/plaintiff was qua the dowry articles, therefore, the decretal amount was as an alternate to the dowry articles. In support of the above contentions, learned counsel has relied on Aftab Mohyuddin vs. Additional District Judge and 2 others (2004 MLD 696).
I have heard learned counsel for the parties and have also gone through the evidence certified copies of which have been placed on the file.
Although the evidence produced by both the parties was appreciated by the learned Judge Family Court as well as the Court of appeal and is not requirement in the Constitutional jurisdiction of this Court, yet, in the interest of justice and fair play, I have scanned the evidence and found that there is no mis-reading, non-reading or jurisdictional defect in the impugned judgments and decrees of both the Courts below, rather, the contention of learned counsel for the petitioner qua the forgery of Exh.P1 and Exh.P15 is not born out from the record. I have also gone through the relevant provisions of law. Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) stipulates that "subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in Part 1 of the Schedule" and accordingly Schedule (Part 1) of West Pakistan Family Courts Act (XXXV of 1964) was duly amended according to which the word "dowry" was included while Section 19 of the Act ibid provides exemption of levy of Court fee on such like suits, therefore, the contention raised by the learned counsel for the petitioner is of no avail to the petitioner. Similarly, the precedent case law cited by the learned counsel for Respondent No. 1 reported as Aftab Mohyuddin vs. Additional District Judge and 2 others (2004 MLD 696), lays down that in a case of dowry articles, the provisions of Court Fee Act do not attract as decretal amount was an alternative. In this view of the matter, I do not find any reason to interfere with the impugned judgments and decrees of both the Courts below in the Constitutional jurisdiction of lis Court, therefore, this writ petition is dismissed with a cost of Rs.5,000/- which shall be paid to Respondent No. 1.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 783
[Multan Bench Multan]
Present: Jamshed Rahmat Ullah, J.
Mst. KANEEZ NARGIS--Petitioner
versus
MILLAT TRACTORS LTD., LAHORE through Chief Executive
and 3 others--Respondents
W.P. No. 5325 of 2008, decided on 12.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Writ of mandamus--A writ of mandamus can be issued against a person performing functions in connection with the affairs of the federation, a province or local authority--Thus, it cannot obviously issued to someone, who does not fall within the purview of the "person" defined in Art. 5 of Constitution. [P. 785] A
Constitution of Pakistan, 1973--
----Art. 5--The word "Control appearing in the definition of Art. 5 is also quite significant and it is not restriction only to financial control.
[P. 785] B
Constitution of Pakistan, 1973--
----Art. 199--Administrative and "financial" control--Absolute control over the management of a body/an organization by the Federation--Such control must be absolute, unfetter, unbridled and exclusive besides the state must also have the financial control of the organization--When both the "administrative" and the "financial" control of the Federation was lacking--Millat Tractor was not a "person" within the meaning of Art. 199, which could be held to be performing its duties in connection with the affairs of the Federation of the Province--Petition dismissed. [Pp. 785 & 786] C, D & E
Mr. Abdul Rehman Khan Laskani, Advocate for Petitioner.
Mr. Kanwar Muhammad Younas, Advocate for Respondents.
Date of hearing: 12.3.2009.
Order
The petitioner being owner of landed property, got booked 10 new Messifarosan-240 tractors for her own use through Respondent No. 4 i.e. Multan Autos Dealer of Millat Tractors Limited Company on 13.11.2007, through Booking No. 265663-72. The Respondent No. 4 being a dealer of Millat Tractors Limited promised to supply/deliver the afore-mentioned tractors within four to five months of the booking date. The petitioner further deposited the whole sale amount of
Rs. 33,90,000/- through bank pay Order No. 140030 dated 12.11.2007 of Faysal Bank Limited in the name of Millat Tractors Limited, but Respondents No. 1 to 4 did not supply the tractors to the petitioner, according to their promise. Subsequently, the prices were enhanced by the Millat Tractors and Respondent No. 4 asked the petitioner to deposit the enhanced price of the tractors in the account of Millat Tractors Limited. According to the petitioner, whenever, the respondents demanded the enhanced price, it was deposited, she had been doing so, in compliance. The petitioner has deposited the entire price on 13.11.2007. The Millat Tractors Limited, had been receiving the balance sale-price illegally by way of enhancement.
Learned counsel for the petitioner argued that Millat Tractors Limited is a Company, registered under Companies Ordinance, 1984. Its Chief Executive and Directors hold public offices, therefore, this writ petition is maintainable. He has placed reliance to the cases of Arif Majeed Malik and others Vs. Board of Governors Karachi Grammer School (2004 C.L.C 1029), Salah-ud-Din and 2 others Vs. Frontier Sugar Mills & Distillery Ltd, Tokhi Bhai and 10 others (P.L.D 1975 S.C. 244) and (M.L.D 2005 28).
The precise objection on behalf of learned counsel for the respondent in this petition is that Millat Tractors Limited Company is not a person within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. According to respondent, the Millat Tractors is a private Limited Company having about 31 objects, which are contained in its Memorandum and Article of Association. The respondent's counsel further argued that in this Company, there is only investment of 7 persons, whose names are; mentioned in the Memorandum and Article of Association, of Millat Tractors Limited Company and apart from them, there is no other person. There is no share of Government, nor the Government has any managerial control over it. Upon enquiry, petitioner's counsel confirmed that Government has no share in the Company. The respondents' counsel contends that a writ of mandamus can be issued to a person performing functions in connection with the affairs of Federation or Province or a local authority. He has placed reliance on the case of Anoosha Shaigan Vs. Lahore University of Management Science through Chancellor and others (P.L.D 2007 Lahore 568), in which, the case law referred by learned counsel for the petitioner has also been discussed in the judgment.
The learned counsel for the respondent has also referred to the contents of the application for provisional booking of Agricultural Tractor, according to which, the booking of the tractors were provisional and purchaser has to pay the amount, which prevail at the time of delivery. Learned counsel also referred clause 12 of the terms and conditions executed between the parties, which is an under:--
"In case of any dispute between the applicant and authorized dealers and/or the company, the case shall be referred to the Chief Executive/Managing Director, Millat Tractors Limited Lahore, whose decision shall be final and binding on all parties in all respects."
When this condition was referred to the petitioner's counsel, he admitted that prior to the filing of the writ petition, the petitioner has not approached the Chief Executive/Managing Director, Millat Tractors Ltd., for the redressal of her grievances.
"(5) `person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court, or a Court or Tribunal established under a law relating to the Armed Forces or Pakistan."
The word "control" appearing in the aforementioned definition is also quite significant and it is not restricted only to financial control.
On account of the cases-law referred to by learned counsel for the respondent, this Court is of the considered view, that the absolute control over the management of a body/an organization by the Federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control, must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization. The judgments referred to by learned counsel for the petitioner are distinguishable and do not apply to the facts and circumstances of the present case. When both the "administrative" and the "financial" control of the Federation over Respondent No. 1 is lacking, I am constrained to hold that Millat Tractors is not a "person" within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which could be held to be performing its duties in connection with the affairs of the Federation of the Province.
For the foregoing reasons, this writ petition having no force is dismissed.
(N.I.) Petition dismissed.
----Arts. 155(2), 171 & 172--Criminal Procedure Code, (V of 1898), S. 156(2)--Quashing of FIR--Petitioner being I.O. did not investigate a murder case honestly and impartially--Held: Provisions of Art. 155(2) of the Police Order, 2002 the DSP was not authorized person to recommend for registration of the cases against the petitioners--Under Arts. 171 and 172 of the Police Order, 2002, the acts of the police officers done in good faith have been protected--Investigation conducted by the police officer cannot be called in-question in the subsequent proceedings on the ground that he was not competent to do the same--FIRs have been registered only on the opinion of the DSP (legal), who had no authority in such regard when the matter was already sub-judice before the Court of competent jurisdiction which if fully empowered to recommend to the higher authorities in police hierarchy for any action against the police officers/IOs, if any lapses are found on their part during the trial--FIRs were quashed.
PLJ 2009 Lahore 786
Present: Zafar Iqbal Chaudhry, J.
ASHIQ ALI and others--Petitioners
versus
DIG OF POLICE, PUNJAB, LAHORE and others--Respondents
W.P. Nos. 10587, 10784, 10852 and 10855 of 2008, heard on 12.12.2008.
Police Order, 2002--
----Arts. 155(2), 171 & 172--Criminal Procedure Code, (V of 1898), S. 156(2)--Quashing of FIR--Petitioner being I.O. did not investigate a murder case honestly and impartially--Held: Provisions of Art. 155(2) of the Police Order, 2002 the DSP was not authorized person to recommend for registration of the cases against the petitioners--Under Arts. 171 and 172 of the Police Order, 2002, the acts of the police officers done in good faith have been protected--Investigation conducted by the police officer cannot be called in-question in the subsequent proceedings on the ground that he was not competent to do the same--FIRs have been registered only on the opinion of the DSP (legal), who had no authority in such regard when the matter was already sub-judice before the Court of competent jurisdiction which if fully empowered to recommend to the higher authorities in police hierarchy for any action against the police officers/IOs, if any lapses are found on their part during the trial--FIRs were quashed.
[Pp. 790 & 791] A, B & C
Mr. Shehram Sarwar Ch. & Mr. Nawab Ali Mayo, Advocates for Petitioner (in W.P. No. 10587 of 2008).
Mr. Khalid Mian, Advocate for Petitioners (in W.P. Nos. 10784, 10852 & 10855 of 2008).
Ch. M. Suleman, Additional Advocate General & Mian Ismat Ullah, DPG for State.
Date of hearing: 12.12.2008.
Judgment
This single judgment will dispose of WP No. 10587/2008 filed by Ashiq Ali, DSP seeking quashment of FIR No. 854 dated 21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore; WP No. 10852/2008 filed by Tariq Mahmood, Ex-Inspector for quashment of FIR No. 850 dated 21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore; WP No. 10784/2008 filed by Ijaz Ahmad, Sub-Inspector to quash FIR No. 851 dated 21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore, and WP No. 10855/2008 preferred by Ansar Hussain, Sub-Inspector (Retd) for quashing of FIR No. 853 dated 21.8.2008, registered under Sections 155-C, 156 of Police Order, 2002 at Police Station Hanjarwal, Lahore as all these FIRs were registered against the Police Officers with the allegation that they had conducted investigation of a murder case on different occasions illegally and impartially and common questions of law and facts are involved.
The facts giving rise to these writ petitions are that a case FIR No. 884 was registered at Police Station Hanjarwal, Lahore on 14.12.2006 in respect of offences under Sections 302/324/109/148/ 149 PPC and Section 7 of the Anti-Terrorism Act, 1997 and originally the case was investigated by Qaisar Mushtaq, Inspector, Tariq Mahmood, Inspector petitioner, Ijaz Ahmad, S.I. petitioner and Ansar Hussain, S.I. petitioner while Ashiq Ali petitioner being DPO, Sabzazar Circle verified the investigation conducted by the said police officers.
The learned counsel for the petitioners have argued--
(i) that all the FIRs have been registered illegally and with mala fide intentions on the part of DSP (Legal) as well as DIG (investigation) who without any evidence had passed the order in this regard, which is not warranted by law, (ii) that the competent Court has already taken the jurisdiction of the said case and during that period no objection regarding defective investigation was raised by any of the authorities;
(iii) that in the light of the comments given by the CCPO, Lahore and SSP, Lahore, DSP (Legal) had no authority to override their opinion;
(iv) that all the accused persons except one who is absconder are facing the trial before the learned trial Court;
(v) that the impugned order on which FIRs have been registered is against Articles 171 and 172 of Police Order, 2002 under which protection has been given to the acts done by the Police Officers in good faith;
(vi) that FIR No. 852 of 2008 registered against Qaisar Mushtaq has been cancelled after investigation who was opponent and the investigation and subsequent investigations were conducted in continuation of his investigation;
(vii) that no case can be registered under Article 156 of Police Order, 2002 in anticipation of the verdict of the Court or any subsequent investigation;
(viii) that keeping in view the material with the prosecution there is no probability of the conviction of the petitioners;
and prayed for quashment of the FIRs, which were registered mala fidely without any basis while misusing the authority only to create departmental harassment and the same are liable to be quashed as further proceedings therewith will be abuse of process of law and sheer wastage of time. Relies upon--
1997 P.Cr.L.J. 974, 1997 P.Cr.L.J. 1503, 1994 P.Cr.L.J. 2391, and
2008 SCMR 76.
On the other hand, learned Additional Advocate General submits that the two accused, persons who were declared innocent during the investigation by the petitioners have been summoned vide order dated 11.6.2007 passed by learned Judge Anti-Terrorist Court IV, Lahore and it shows that they were illegally declared so by the petitioners as I/Os, who have been rightly proceeded under the provisions of Police Order, 2002.
I have heard the learned counsel for the parties and perused the record with due and caution with their assistance. Briefly the allegation is that after the investigation in the aforesaid murder case, Muhammad Asim and Muhammad Sarwar accused had been declared POs., who after the grant of interim pre-arrest bail from the Court joined the investigation and they were declared innocent by Qaisar Mushtaq, Incharge Investigation within 15 days vide Zmini No. 45 dated 25.3.2007, which was verified by Ashiq Ali DSP petitioner. Muhammad Aslam accused was also declared PO, who on coming back from France and after the grant of interim pre-arrest bail was joined in the investigation by Ijaz Ahmad SI petitioner and was declared innocent, which opinion of the said I/O was also verified by Ashiq Ali DSP, petitioner. Moreover, on 25.3.2007 Malik Muhammad Ashraf Lumberdar had given a writing about the innocence of Asim and Muntzir Mehdi accused, which was found fictitious, but no notice thereof was taken by Ashiq Ali DSP. Then on 22.4.2007 Tabassum Ali accused was declared innocent by Ijaz Ahmad SI after the investigation, which was verified by the DSP, but the learned Judicial Magistrate while disagreeing with the discharge report ordered for committal of Tabassum accused to jail, who was sent there by Ijaz Ahmad SI petitioner without effecting any recovery from him. However, the pistol was shown to be produced through Malik Zafar so that it could not be connected with the accused.
It is admitted position that the challan in the murder case was primarily submitted to the Anti-Terrorism Court and after submission of challan an application for transfer of investigation was moved by Tassawar Hussain son of Bao Bashir Ahmad and Abdul Rashid son of Hadayat Ali, which was duly considered by the Senior Superintendent of Police, Discipline & Inspection, Lahore (Mr. Sultan Mahmood) and Chief City Police Officer, Lahore (Malik Muhammad Iqbal), who after going through the record and hearing the parties filed their comments that the investigation was properly conducted and case was not likely to be re-investigated as challan has already been submitted before the Anti-Terrorist Court. Then vide judgment dated 22.10.2007 passed by this Court in W.P. No. 49486 of 2007 whereby the jurisdiction of Anti-Terrorism Court had been challenged, offence under Section 7 of ATA was deleted by this Court and the case was sent to the Court of ordinary jurisdiction where the case is pending and during this period evidence of 7 witnesses has been recorded. It has also been brought to my notice that when the matter was pending before the CCPO, Lahore two aggrieved persons also filed writ petition claiming therein that they were satisfied with the investigation conducted by the above-said police officers. Now the case is sub judice before the learned Additional Sessions Judge, Lahore and during the pendency thereof in the Court of competent jurisdiction the DSP (Legal) on some query on the administrative side gave opinion that the investigation in this case had not been conducted honestly by the above-said petitioners whereupon the aforesaid FIRs have been registered. When questioned by this Court, the DSP (Legal) present in Court has failed to produce any letter/document on which this opinion was sought and he is also not sure that who had sought that opinion. It is admitted that keeping in view the provisions of Article 155 (2) of the Police Order, 2002 the DSP was not authorized person to recommend for registration of the cases against the petitioners. Moreover, under Articles 171 and 172 of Police Order, 2002, the acts of the police officers done in good faith have been protected and for ready reference the said provisions of Police Order, 2002 are reproduced as under:--
No Police Officer to be liable to any penalty or payment of damages on account of acts done in good faith in pursuance of duty. No Police Officer shall be liable to any penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Order or any other law for the time being in force or any rule, order or direction made or given therein.
Suits or prosecutions in respect of acts done under colour of duty not to be entertained if not instituted within the prescribed period. In case of an alleged offence by a Police Officer, or a wrong alleged to have been done by him or by any act done under colour of duty or in exercise of any such duty or authority of this Order or when it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, of instituted after more than six months from the date of the action complained of.
Furthermore under, sub-section (2) of Section 156 Cr.P.C., which is the parent law, the investigation conducted by the police officer cannot be called in question in the subsequent proceedings on the ground that he was not competent to do the same. The said sub-section reads as follows:--
"(2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."
It is also not case of the prosecution that the petitioners being the police officers were not competent to investigate the case and it is settled law that the opinion of the police is not binding on the Courts. The aggrieved party had the right to move for reinvestigation. Admittedly the police has not collected any evidence regarding dishonest investigation conducted by the petitioners and it seems that all the FIRs have been registered only on the opinion of the DSP (Legal), who had no authority in this regard when the matter was already sub-judice before the Court of competent jurisdiction, which is fully empowered to recommend to the higher authorities in police hierarchy for any action against the police officers/I.Os if any lapses are found on their part during the trial. It has also been brought to the notice of this Court that FIR No. 852/08 with the such allegation was also registered against Qaisar Mushtaq, but the same has been cancelled after the investigation and the cases registered against the petitioners have no distinct features.
In view of the above discussion, I am satisfied that all the aforesaid FIRs were result of malice and those do not constitute any offence, rather these are cases of no evidence and further proceedings therewith will be sheer abuse of process of law, which cannot be allowed to continue. Hence, all the four writ petitions are accepted and the FIRs called in question therein are quashed.
(M.S.A.) FIRs quashed.
PLJ 2009 Lahore 797
Present: Maulvi Anwar-ul-Haq, J.
SHAZIA MUNAWAR, ADVOCATE--Petitioner
versus
PUNJAB PUBLIC SERVICE COMMISSION through its
Secretary Lahore--Respondent
W.P. No. 1563 of 2008, decided on 22.10.2008.
Punjab Judicial Service Rules, 1994--
----R. 7--Punjab Legal Practitioners & Bar Councils Rules, 1974, R. 7.10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of Civil Judges--Petitioners filed application before public service commission on an advertisement in order to appoint civil judges-cum-judicial magistrates--Applications were rejected due to non-experience of two years--Assailed--Validity--According to Rule 7 of the Punjab Judicial Service Rules, 1994 cut of date for the purposes of calculating two years experience is the date of advertisement--Legal Practitioners and Bar Councils Act, 1973 provides that a person shall be qualified to be admitted as an advocate of High Court who fulfills, inter alia, the condition that he has practised as an advocate before the subordinate Courts in Pakistan for a period of not less than two years--However, Punjab Bar Council in exercise of authority under Section 56 of the said Act 1973 has framed Punjab Legal Practitioners & Bar Councils Rules, 1973--No person shall practice as an advocate unless he is member of a recognized Bar Assocition--Reading the above noted two provisions together it would be necessary for a person to have applied for being admitted as a member of a Bar Association within 6 months of being enrolled as an advocate subject to the decision of the said application--Held: None of the three petitioners possess the requisite experience in accordance with Punjab Judicial Service Rules on the date of advertisement--Petition dismissed. [Pp. 800 & 801] A & B
Mr. Mushtaq Ahmed Mohal, Advocate for Petitioner (in W.P. No. 1563 of 2008).
Mian Abdul Ghaffar, Advocate for Petitioners (in W.P. 1564/2008).
Mr. Muhammad Irfan Khan, Advocate for Petitioner.
Mr. Tahir Munir Malik, Addl. A.G. alongwith Muhammad Farooq Raja, Deputy Director (Legal) PPSC for Respondent.
Dates of hearing: 22.10.2008, 5.11.2008 and 6.11.2008.
Judgment
This judgment shall decide W.P. No. 1563/08, W.P. No. 1564/08 and W.P. No. 1694/08 as common questions are involved.
In order to appoint Civil Judges-Cum-Judicial Magistrates in the Province, the Punjab Public Service Commission (hereinafter to be referred as the respondent) issued an advertisement in the national press on 16.9.2007 (Annex-A). The requisite and relevant information was provided in the said advertisement. The closing date for receipt of applications was fixed on 20.10.2007. The petitioners filed applications. These were rejected on the ground that the petitioners herein do not possess the requisite two years experience. The petitions were admitted to hearing and notices were issued. Written statements have been filed by the respondent and it has been pleaded that the applications have been rejected correctly in accordance the applicable Rules.
Learned counsel for the petitioners contend that all of them have the requisite experience by the closing date stipulated in the advertisement even from the date of enrollment with the local Bar Associations. Mr. Muhammad Irfan Khan, Advocate representing the petitioner in W.P. No. 1694/08 has additionally argued that the Rule 7.10 read with Rule 7.12 are ultra vires of the Legal Practitioners & Bar Councils Act, 1973 and as such cannot be relied upon by the respondent. The further contention is that his client was also enrolled as an advocate of the High Court on 3.11.2006 and this fact alone equips her with requisite experience.
Mr. Tahir Munir Malik, Addl. A.G, on the other hand, refers to Rule 7 of the Punjab Judicial Service Rules, 1994 to urge that active practice of the profession of law for two years must precede the date of advertisement. According to him, Section 27 of the said Act 1973 itself makes the said provision subject to the provisions of Act and Rules to be made thereunder and as such the said Rules are intra vires. With reference to the relevant data the learned Law Officer urges that none of the petitioners had the requisite experience on the date of advertisement i.e 16.9.07. Mr. Mushtaq Ahmed Mohal, Advocate rejoins to urge that the said Rule-7 being relied upon by the learned Law Officer ought to be struck down being mala fide, as according to regulations framed by the respondent the date of determination of qualification is closing date stipulated in the advertisement i.e 20.10.07.
I have gone through these files with the assistance of the learned counsel and learned Law Officer and have considered the respective submissions noted above. I have already noted above that the advertisement was published on 16.9.2007 and closing date for applications was 20.10.07. Before I proceed further, I deem it proper to state here some relevant dates vis-a-vis each of the petitioners as follows:--
(i) W.P. No. 1563/08 (Shazia Munawar). She was enrolled as an Advocate of the subordinate Courts on 3.10.2005 and joined the Lahore Bar Association on 4.10.2005.
(ii) W.P.No. 1564/08 (Asif Iqbal). He was enrolled as an Advocate of the subordinate Courts on 21.10.05 and joined the Bar Association Pattoki on the same date.
(iii) WP. No. 1694/08 (Iram Sehr). She was enrolled as an Advocate of the subordinate Courts on 20.9.04. She joined the Lahore Bar Association on 15.12.05. She was enrolled as an Advocate of the High Court on 3.11.06.
"7. Qualifications:--(1) No person shall be appointed to a post in the service by initial recruitment unless--
(a) in case of appointment to a post of Civil Judge-cum-Judicial Magistrate:
(i) he possesses a degree in Law from a recognized University entitling him to practice the profession of law or is a Member of the Faculty of Advocates of Scotland; and
(ii) he has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate.
Explanation:--For the purposes of this clause--
(i) The expression "practiced the profession of law" shall include any period of Government service by a person as--
(a) District Attorney, a Deputy District Attorney or an Assistant District Attorney; or
(b) Full time prosecutor authorized to conduct prosecution on behalf of the Government; and
(ii) to prove active practice the candidate shall declare by an affidavit that--
(a) he had been actively practicing the profession of law during the two years preceding the date of advertisement; and
(b) during this period he had been engaged himself in any other whole time service, business or, as the case may be, occupation for gain."
There is no manner of doubt in my mind that Rules specifically provided that cut of date for the purposes of calculating two years experience is the date of advertisement. I may note here that advertisement itself provides in clause (e) under the heading "following documents must be attached with application form" that the candidates are to submit an affidavit that they have been actively practicing profession of law during two years preceding the date of advertisement. Section 27 of the Legal Practitioners & Bar Councils Act, 1973 provides that a person shall be qualified to be admitted as an advocate of High Court who fulfills, inter alia, the condition that he has practiced as an advocate before the subordinate Courts in Pakistan for a period of not less than two years. However, this is subject to the Rules to be framed under the said Act. The Punjab Bar Council in exercise of authority under Section 56 of the said Act 1973 has framed Punjab Legal Practitioners & Bar Councils Rules, 1974. Rule 7.10 provides that no person shall practice as an advocate unless he is member of a recognized Bar Association. Rule 7.12 is as follows:
"7.12. It will be sufficient compliance with the requirement of Rule 7.10 if within six months of being enrolled as an Advocate a person applies for being admitted as a Member of such Bar Association and his application has not been dismissed."
Reading the afore noted two provisions together it would be necessary for a person to have applied for being admitted as Member of a Bar Association within 6 months of being enrolled as an advocate subject to the decision of the said application.
It will, thus, be seen that the said statutory provision places a bar upon an advocate to practice the profession of law unless and until he has complied with the provisions of Rule 7.10 read with 7.12.
Nothing turns on the said contention of Mr. Muhammad Irfan Khan, Advocate, as learned Law Officer has correctly pointed out that Section 27 of the said Act, 1973 itself makes the provision thereof subject to the Rules to be framed under the Act. So far as the afore noted contention of Mr. Mushtaq Ahmed Mohal, Advocate as to the striking down of the relevant portion of Rule 7 of the Punjab Judicial Service Rules 1994 inasmuch as the relevant date has been fixed as a date of advertisement is concerned, he has referred to judgment dated 30.11.01 of this Court in W.P. No. 523/2001 whereby clause (b) of Rule 6 of the said Rules 1994 inasmuch as it denies concession of extended upper age limit to a practicing lawyer was declared to be irrational, unreasonable and arbitrary and thus violative of Article 25 of the Constitution. This judgment proceeds on wholly different premises i.e difference of upper age limit for practicing lawyer vis a vis the Government servant without there being any reasonable differentia.
So far as the said provision of Rule 7 is concerned, there is no element of discrimination as the date has been prescribed for all candidates. The said contention accordingly is overruled.
For whatever has been discussed above, I find that none of the three petitioners possess the requisite experience in accordance with the said Rules on the date of advertisement i.e 16.9.07.
After having examined the said legal question involved in these cases I may note here that under the interim orders issued by this Court all the petitioners appeared in the competitive examination conducted by the respondent. All of them have passed the said examination both written and viva voce. I have also examined their answer sheets as also the proceedings of the interview, I am told by all present that 106 seats were to be filled. A total numbers of 1510 applications were filed. Only 84 candidates passed the written test and after interview a total number of 47 candidates including the three petitioners were finally selected. The petitioner in W.P. No. 1563/08 is at No. 11, the petitioner in W.P. No. 1564/08 is at No. 14 while petitioner in W.P. No. 1694/08 is at No. 28 of the merit list of the total number of 47 candidates. Keeping in view the peculiar circumstances of these cases while dismissing all three writ petitions, this Court is constrained to observe that the cases of these three petitioners may be considered by the competent authority accordingly.
(M.S.A.) Petitions dismissed.
PLJ 2009 Lahore 802
Present: Zafar Iqbal Chaudhry, J.
SIKANDAR HAYAT etc.--Petitioners
versus
Mst. NARGUS PARVEEN etc.--Respondents
Civil Revision No. 174 of 2002, heard on 19.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration--Misplaced person about 10 years ago before institution of suit--Suit for declaration filed by predecessor-in-interest of petitioners alleging therein that his younger brother, who was lunatic and misplaced in the year 1980 and his whereabouts were not known for the last 10 years, he was presumed to be dead, therefore, the suit property left by him was to be devolved on the brothers and sisters--Suit decreed by trial Court--First appeal dismissed by ADJ--Assailed--Petitioners had failed to produce any documentary evidence in support of their plea that misplaced person was mentally distorted, who was illiterate, unmarried and misplaced around the year 1980--Even no proclamation or police report about his missing was brought on the file on the other hand respondents had produced copy of nikah nama, which finds mention name of deceased plaintiff as a witness being brother of misplaced person--Copies of receipts respondents were born and name of their father has been recorded as Khizar Hayat--Revision was dismissed.
[P. 804] A
Mr. Nawab Saeedullah Khan, Advocate for Petitioners.
Mr. Taqi Ahmad Khan, Advocate for Respondent Nos. 1 to 4.
Date of hearing: 19.9.2008.
Judgment
The petitioners have challenged the judgment and decree dated 12.11.2001 passed by the learned Additional District Judge, Narowal whereby the appeal filed by Respondents No. 1 to 4 was accepted, the judgment and decree dated 17.4.2001 passed by the learned Civil Judge, Narowal was set aside and the suit for declaration filed by Ghulam Mohy-ud-Din, predecessor-in-interest of the petitioners was dismissed.
Learned counsel for the petitioners submits that the learned appellate Court has illegally misread the evidence led by the petitioners whereas the respectables of the locality and relatives were produced, who had no motive to falsely depose against Respondents No. 1 to 4; that all the PWs were impartial having no interest in the deceased or the petitioners; that Rashid Ahmad (PW-1) was employee of WAPDA, who categorically stated that Khizar Hayat predecessor-in-interest of Respondents No. 1 to 4 was employed as LDC in WAPDA and his parentage was Mehr Din; that similarly Syed Ibrar Hussain Shah, Assistant Legal Advisor, Sheikh Zayd Hospital, Lahore white appearing as PW-2 also gave the parentage of said Khizar Hayat as Mehr Din, who was admitted in the hospital on 7.2.1988 and died on 14.2.1988; that as per her own statement Mst. Nargus Parveen (PW-7) she is Qureshi by caste, whereas Khizar Hayat son of Din Muhammad was Jat and as such their marriage could not take place, but to gain benefit illegally Respondents No. 1 to 4 have claimed them to be heirs of said Khizar Hayat son of Din Muhammad being his widow and children respectively, who in fact was illiterate and unmarried and misplaced about 10 years before the filing of the suit; that from the evidence on record it stood proved that Khizar Hayat son of Mehr Din was another person with whom, Respondents No. 1 to 4 were related and they having no relation with Khizar Hayat son of Din Muhammad, were not entitled to inherit his property; that the suit was rightly decreed by the learned trial Court, but the learned appellant Court through misreading and non-reading of evidence has dismissed the suit vide the impugned judgment, which may be set aside and the judgment and decree passed by the learned trial Court be restored.
Learned counsel for Respondents No. 1 to 4 submits that the evidence produced by the petitioners was deficient and contradictory in nature, which has been rightly disbelieved by the learned appellate Court; that Ghulam Mohy-ud-Din had brought the suit for illegal gain to deprive Respondents No. 1 to 4 of their share in the property of deceased Khizar Hayat; that the learned appellate Court on valid reasons has rightly dismissed the suit and the civil revision is liable to be dismissed.
I have heard the learned counsel for the parties and perused the judgments passed by both the Courts below as well as the evidence, attached with this file. Ghulam Mohy-ud-Din predecessor-in-interest of the petitioners on 28.12.1989 had brought a suit for declaration alleging therein that Khizar Hayat son of Din Muhammad was his younger brother, who was lunatic and misplaced in the year, 1980 and as his whereabouts were not known for the last about 10 years, he was presumed to be dead, therefore, the suit property left by him was to be devolved on the brother and sisters of Khizar Hayat. it was further claimed that Nargus Parveen Respondent No. 1 was widow of one Khizar Hayat son of Mehr Din, who was employed in WAPDA but she illegally claimed to have been married with Khizar Hayat son of Din Muhammad and that Respondents No. 2 to 4 were born out of the said wedlock. During the proceedings Ghulam Mohy-ud-Din plaintiff died and the petitioners being his successors-in-interest were impleaded as party.
The suit was contested by Respondents No. 1 to 4 whereas Respondents No. 5 and 6 were impleaded as pro-forma defendants. As the suit property had further been alienated to Respondents No. 7 and 8, they too were impleaded as defendants, who contested the suit on the ground that they were bona fide purchasers of the land for value without notice.
The controversy in nutshell was that whether Khizar Hayat predecessor-in-interest of Respondents No. 1 to 4 was son of Mehr Din or Din Muhammad. Both the parties led evidence in support of their respective claims. The petitioners have failed to produce any documentary evidence in support of their plea that Khizar Hayat was mentally distorted, who was illiterate, unmarried and misplaced around the year 1980. Even no proclamation or police report, about his missing was brought on the file. On the other hand Respondents No. 1 to 4 have produced copy of nikah-nama Ex:D-1, which finds mention Ghulam Mohy-ud-Din deceased plaintiff as a witness being brother of Khizar Hayat son of Din Muhammad bridegroom and this Nikah nama was proved by the Nikah Khawan, namely, Maulvi Muhammad Ayub (DW-1). Moreover, Ex:D-2 to D-4 are copies of receipts from the Metropolitan Corporation, Lahore, according to which Hina Khizar, Ihtisham Khizar and Sana Khizar respondents were born on 28.12.1983, 26.7.1982 and 4.9.1985 respectively and name of their father has been recorded as Khizar Hayat son of Din Muhammad. Even according to the pedigree table Ex:D-5, parentage of Khizar Hayat was recorded as Din Muhammad. Ghulam Mohy-ud-Din deceased plaintiff while appearing as PW-3 admitted that his father were four brothers, who were named as Din Muhammad, Khair Din, Umar Din and Mehr Din and all of his paternal uncles were issueless. It is being claimed by the respondents that said Khizar Hayat was brought up by his uncle Mehr Din and it was obvious that somewhere he was recorded as Khizar Hayat son of Mehr Din, but on this sole ground respondents cannot be deprived of their legitimate right. Besides the above said evidence, there are photographs Marks-A to D, which show link of Respondents No. 1 to 4 with Khizar Hayat son of Din Muhammad. Learned counsel for the petitioners has raised an objection that this evidence cannot be read because the photographs were not exhibited properly, but I agree with the learned counsel for the respondents that a judicial notice thereof can be taken. There is no evidence on the record to rebut that these photographs did not pertain to Khizar Hayat son of Din Muhammad and the bride shown therein was some other lady and not Nargus Parveen Respondent No. 1.
The respondents also brought on file copy of an application (Ex:D-8) submitted by Ghulam Mohy-ud-Din deceased plaintiff before the WAPDA authorities wherein he admitted Mst. Nargus as widow and Respondents No. 2 to 4 as children of his brother Khizar Hayat, who was employed there as Meter Reader. The said application find mention diary No. 4019 dated 30.4.88. The petitioners have failed to rebut the said application or prove it to be fake from the record of WAPDA.
For the foregoing reasons, I am satisfied that the petitioners failed to prove their claim through any tangible evidence. The learned appellate Court has rightly accepted the appeal and dismissed the suit while setting aside the judgment and decree dated 17.4.2001 passed by the learned Civil Judge 1st Class, Harowal through the impugned judgment and decree dated 12.11.2001, which is well reasoned and there being no misreading or non-reading of important piece of evidence on the part of the learned appellate Court it is maintained. Hence this Civil Revision is dismissed with costs.
(M.S.A.) Revision dismissed.
PLJ 2009 Lahore 805
[Multan Bench Multan]
Present: Zafar Iqbal Chaudhry, J.
Mian ABDUL RAHEEM and 2 others--Petitioners
versus
MEMBER BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSION, PUNJAB, LAHORE and 4 others--Respondents
W.P. No. 2097 of 1997, heard on 13.1.2009.
Constitution of Pakistan, 1973--
----Art. 199--Petitioners who were permanent transferees by virtue of permanent transfer deeds--Challenged the letters as well as initiation of inquiry by being illegal, unlawful, without jurisdiction and of no legal effect through the constitutional petition--Held: Direction issued by M.B.R. was only to see the payment made by the petitioner, there was no question in the reference sent by the D.C. to the Board of Revenue, or in the letter issued by M.B.R. to Addl. Commissioner about the illegal allotment of transfer of the land to the petitioners--Allotment of the land was never challenged by the department or any one else in any Court of law and all the orders referred in instant case are also silent about the same--Transfer orders were issued in their favour, petitioners have already installed a ginning factory on the land after its allotment with the approval of municipal committee and have accrued a right in that behalf, which cannot be withdrawn at that stage on flimsy grounds on the basis of the impugned orders which are found to have been issued without reasoning--Petition accepted. [P. 809] A, B & C
Syed Hamid Ali Shahmeer, Advocate for Petitioners.
Syed Mohtsham-ul-Haq Pirzada, Advocate for Respondents.
Date of hearing: 13.1.2009.
Judgment
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have challenged the letters dated 9.7.1992, 26.11.1996, 26.3.1996 and 28.11.1996 as well as initiation of inquiry by Respondent No. 2 being illegal, unlawful, without jurisdiction and of no legal effect on the rights of the petitioners who are lawful permanent transferees by virtue of permanent Transfer Deeds dated 27.12.1994 and Respondents No. 4 and 6 may be directed to implement the above-said transfer deeds in the revenue record by incorporating entries therein.
The brief facts of the case are that the disputed land situated at Mauza Jampur was allotted to one Haji Ghulam Muhammad through RL-II on 06.05.1968 who transferred this land to one Abdul Qadir vide Mutation No. 752 dated 15.11.1971, who further sold the above-said land to Mst. Sharifan, Mst. Nasim Bibi and Mst. Murad Khatoon vide sale-deeds dated 4.4.1970, 7.2.1972 and 15.2.1972. which was mutated in their favour in 1973 and their names were duly incorporated in the Khasra Girdawari also. The petitioners installed Ginning Factory on the disputed land and got approved the site-plan from the Municipal Committee Jampur on 31.3.1993. An application under Sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 was filed by one Muhammad Sarwar to the Chief Settlement Commissioner with the request that the disputed land having not been allotted to Ghulam Muhammad in accordance with law was liable to be cancelled. This application was accepted and the land from the name of Ghulam Muhammad was cancelled by the Chief Settlement Commissioner vide order dated 18.12.1973. Mst. Sharifan etc. filed W.P. No. 1832/R of 1973, which was admitted for regular hearing and Status quo order was issued vide order, dated 24.4.1975. On 13.10.1977 the petitioners filed Form under Scheme No. 9, Disposal & Management of Urban Available Property Scheme (IX) 1977 for the transfer of the above-said land in their names because at that time the land had fallen within the territorial jurisdiction of Municipal Committee Jampur. During proceedings on the application of the petitioners the Department imposed condition that if Mst. Sharifan etc. withdrew their writ petition then the land would be allotted in their favour. On this understanding the petitioners moved C.M. No. 452/92 in W.P. No. 1832-R/74 which was allowed and the writ petition was dismissed as withdrawn on 23.5.1992. After the withdrawal of the above-said writ petition keeping in view the condition imposed by the Department the disputed land was transferred in the names of the petitioners by the Department on 25.05.1992 and the petitioners also made the entire payment which was required by the department. Mst. Sharifan Bibi etc. also surrendered in favour of the petitioners through agreement and their statements were recorded in this behalf on 26.5.1992, which was approved by the competent authority and TOs were issued in favour of the petitioners by the ADC (G) D.G. Khan. Then again on 31.5.1992 a letter was issued by the ADC (G) D.G. Khan that at the time of the issuance of TOs on 31.5.1992 the ADC (G) D.G.Khan had no power to issue the above-said TOs because the disputed land did not fall within his territorial jurisdiction because Rajanpur District was created and this property fell into the territory of the said District and the matter was referred to Rajanpur District for necessary action. The ADC (G) Rajanpur again after examining the record transferred this land in favour of the petitioners on 27.12.1994 and fresh TOs were issued in their favour on the same day which was duly entered in the daily Roznamcha of the concerned revenue record vide No. 1022, 259 and 260 dated 21.2.1995. After finalization of this issue D.C. Rajanpur again sent a letter dated 26.02.1995 to the revenue authorities not to incorporate the above-said transfer in the revenue record on the sole ground that the price paid by the petitioners to the department was on lower side and also referred the matter to the Board of Revenue seeking permission to cancel the property from the names of the petitioners and to put it in open auction. On the said reference order was passed by the Member, Board of Revenue directing the Additional Commissioner to exercise his revisional jurisdiction in the above-said matter and pass the order under the law. The above-said order dated 28.11.1996 along with the other orders passed by the DC and the learned Member Board of Revenue have been challenged by the petitioners by way of this Constitutional petition.
Learned counsel for the petitioners submits that the impugned orders are illegal and not sustainable under the law because the property had been duly allotted in the names of the petitioners after full inquiry and according to the demand of the department the entire amount was also paid by the petitioners, therefore, this property could not have been cancelled by the department; that the value of the property was rightly assessed from the date when it was transferred in the names of the petitioners and that amount had already been deposited by them; that after the issuance of TOs the department had no authority to cancel the above-said TOs until and unless there were sufficient reasons, but those were lacking in this case; that after the repeal of settlement laws there was no jurisdiction with the Chief Settlement Commissioner and the D.C. to pass the impugned orders because this was not a pending case; that the price assessed by the Tehsildar which was made basis for the review of this order was based upon the market value in the year 1995, which was illegal; that there was no fraud in the process for transfer of the property to the petitioners, which was transferred after obtaining amount as proposed by the department and the impugned orders/letters issued in this behalf are illegal and not sustainable under the law. Relies upon Abdur Rahim and others Vs. Hassan Muhammad and others (1992 S.C.M.R. 827) and Anjum Ara and 11 others Vs. Province of Punjab through Secretary to Government of the Punjab, Revenue Department and 3 others (2004 M.L.D 787) in support of his contentions.
On the other hand, learned counsel for the respondents submits that the allotment made in favour of the petitioners was not in accordance with law and the disputed property could not be allotted under Scheme No. 9, Disposal & Management of Urban Available Property Scheme (IX) 1977 and the order passed by the Member, Board of Revenue for issuance of direction to the Addl. Commissioner to exercise his revisional jurisdictional was in accordance with law. According to the learned counsel for the respondents, as the basic allotment was illegal, the petitioners are not entitled for any relief under the constitutional jurisdiction. Learned counsel for the respondents has referred to the notification dated 16.5.1973 according to which the property within the limits of Municipal Committee was always to be disposed of by way of open auction and not otherwise.
After hearing the learned counsel for the parties and perusal of record it is admitted fact that the petitioners had filed an application for the transfer of the above-said property under Scheme No. 9, Disposal & Management of Urban Available Property Scheme (IX) 1977 on 13.10.1977 whereupon the proceedings were initiated by the department and after fulfilling all the formalities the property was transferred in their names on payment of the price assessed by the department. The first TO was issued in favour of the petitioners on 31.5.1992, but later on that order was withdrawn on the ground that on the said date the ADC (G) D.G. Khan had no authority to pass the same because the property at that time was not falling within his territorial jurisdiction, which fell within the territory of Rajanpur District. Thereupon the matter was referred to ADC(G), Rajanpur who after going through the entire record again transferred the above-said land in the name of the petitioners vide order dated 27.12.1994 and issued fresh TOs in their favour. However, afterwards, the D.C. Rajanpur issued orders dated 26.2.1995 with the direction not to incorporate the above-said land in the names of the petitioners in the revenue record for the reasons not explained in the letter and the matter was referred to the Member, Board of Revenue, Punjab, Lahore for the cancellation of allotment on the ground that the payment made by the petitioners was on lower side. Keeping in view the above-said reference the learned Member, Board of Revenue/Chief Settlement Commissioner, Punjab vide letter dated 28.11.1996 on the subject "Cancellation of orders of Deputy Settlement Commissioner/ Deputy Administrator (R.P), Rajanpur regarding allotment of Evacuee Property situated at Chah Nehaluwala, Mauza Jampur, District Rajanpur", referred the matter to the Additional Commissioner (Revenue)/Settlement Commissioner/Administrator (Residual Properties), D.G. Khan Division, Dera Ghazi Khan with the following direction:--
"I am sending herewith the reference No. 3770/DSC, dated 26.11.1996 (in original) along with enclosures received from the Deputy Commissioner, Rajanpur, on the subject noted above.
After examination of all the record it is found that the direction issued by the Member, Board of Revenue was only to see the payment made by the petitioners regarding the transfer of land to the petitioner. There was no question in the reference sent by the D.C. to the Board of Revenue, Punjab, Lahore or in the letter issued by the Member Board of Revenue to Addl. Commissioner about the illegal allotment of transfer of the land to the petitioners. Keeping in view this situation, I am not in agreement with the learned counsel for the respondents that the impugned letter issued by the Board of Revenue and the Reference sent by the D.C. were regarding illegal allotment to the petitioners. In fact the query was made regarding the price of the land assessed by the department and which was paid by the petitioners with the department.
So far as the allotment of the land made in favour of the petitioners is concerned, that was never challenged by the department or any one else in any Court of law and all the orders referred in this case are also silent about the same. There is nothing on the record or pointed out by the learned counsel for the respondents even to suggest that the petitioners had committed any fraud with the department, but it is admitted position that they had duly applied for the above-said land to the department under the relevant Scheme and after fulfilling all the formalities and payment of the amount as assessed by the department, TOs were issued in their favour. It is also not denied that the petitioners have already installed a Ginning Factory on the land after its allotment in the year 1993 with the approval of the concerned Municipal Committee and have accrued a right in this behalf, which cannot be withdrawn at this stage on flimsy grounds on the basis of the impugned orders/letters, which are found to have been issued without reasoning.
For what has been discussed above, this petition is accepted and the impugned orders passed by the respondents are set aside having beer passed without lawful authority and of no legal effect. There will be no order as to costs.
(M.S.A.) Petition accepted.
PLJ 2009 Lahore 810
Present: Ali Akbar Qureshi, J.
BASHIR AHMAD--Petitioner
versus
Mst. SHAZIA KAUSAR and 3 other--Respondents
W.P. No. 11847 of 2008, decided on 2.12.2008.
Maintenance of Minors--
----Being father/natural guardian of minor is bound by all cannon of law to maintain the minor irrespective of the fact where they are living and appellate Court after careful scanning of record reached to conclusion that father who is a man of means, can easily pay the maintenance allowance to the minors. [P. 814] C
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Entitlement of maintenance--Provisions of CPC--Applicability in proceedings of family cases--Held: Provisions of Code of Civil Procedure are not applicable in the proceedings of family cases. [P. 814] A
Past Maintenance--
----Husband did not make any effort to rehabilitate the (wife) alongwith the minors--Held: Wife did not refuse to perform her matrimonial part with the petitioner so it was rightly held by appellate Court that was entitled to receive the past maintenance. [P. 814] B
Custody of Minors--
----Father who had admittedly contracted the second marriage living in abroad whereas the wife has still not contracted the marriage and the minors are getting education in good institution and are also being looked after carefully, therefore, for the time being, the welfare of the minors lies in the custody of the mother--Petition dismissed.
[P. 815] D
2006 SCMR 895, rel.
Mian Abdul Saeed, Advocate for Petitioner.
Syed Waqar Abbas Kazmi, Advocate for Respondents.
Date of hearing: 2.12.2008.
Order
This order shall dispose of this petition as well as the connected Writ Petitions Bearing No. 11848 and 11849 of 2008, as common question of law and facts are involved in all these three writ petitions.
(a) Mst. Shazia Kausar wife is held entitled for recovery of maintenance allowance from her husband at the rate of Rs.5000/- per month w.e.f. December, 2005 up till completion of iddat period, if divorced.
(b) The minors Sohaib Bashir and Shoaib Bashir are held entitled to recover maintenance allowance from their father at the rate of Rs.5000/- per month per head w.e.f. December, 2005 till the attaining the age of majority Act with 10% increase annually.
(c) The petition for custody (Hazanat) of the minors filed by Bashir Ahmad is dismissed by accepting the appeal of Shazia Kausar mother.
Obviously appeal filed by Bashir Ahmad is dismissed.
The synopsis of the fact of the instant Constitutional petition is, that the respondent was married with the petitioner in the year 1996 and out of their wed lock, two minors were born. The respondent after the marriage joined the petitioner in Kuwait who was serving over there and minors were also born in Kuwait. The petitioner as alleged by the respondent, without her consent, contracted second marriage and because of this, their relations became strained and the respondent was deported and sent Pakistan by the petitioner. While living in Pakistan, as alleged by the respondent, the petitioner did not maintain the respondent rather sent notice of divorce to the respondent. The respondent for the recovery of maintenance allowance filed a suit wherein it was claimed that the petitioner is in a position to pay the maintenance allowance to the respondents @ Rs.5000/- per month. The suit was vehemently contested by the petitioner by taking the plea that the respondent came to Pakistan with her own consent but did not come back; the respondent has misappropriated a huge amount of the petitioner; the respondent also purchased a house with the amount of the petitioner and disposed it out, although her status was that of "Bai' Nami" and the respondent/wife is not entitle for any maintenance and the quantum of maintenance allowance of the minor is not only excessive but exorbitant and the petitioner is unable to pay the same. The petitioner also filed a petition for custody of the minors' sons on the ground that Respondent No. 1 is a woman of ill-repute and the welfare of the minors lies with the petitioner. The said petition was contested by Respondent No. 1 by controverting the stance taken by the petitioner. The learned Judge Family Court framed as many as 12 consolidated issues and put the case for evidence of the parties.
The learned trial Court after recording the evidence and provided an opportunity of hearing, finally disposed of the suit in the following terms:--
(a) The application filed by the husband Basir Ahmad for custody of minors was accepted and the wife was ordered to hand minors Sohaib Bashir and Shoaib Bashir immediately to him.
(b) Wife Shazia Kausar was held entitled to get maintenance allowance from husband w.e.f. May 2006 till expiry of the Iddat period at the rate of Rs.2000/- per month (Talaq became effected on 24.06.2006).
(c) Minors Sohaib Bashir and Shoaib Bashir were held entitled to recover maintenance allowance at the rate of Rs.1500/- per month from May 2006 till the date of pronouncing of judgment.
(d) Remaining all the claims of the plaintiffs were declined.
(d) Mst. Shazia Kausar wife is held entitled for recovery of maintenance allowance from her husband at the rate of Rs.5000/- per month w.e.f. December, 2005 up till completion of Iddat period, if divorced.
(e) The minors Sohaib Bashir and Shoaib Bashir are held entitled to recover maintenance allowance from their father at the rate of Rs.5000/- per month per head w.e.f. December, 2005 till the attaining the age of majority Act with 10% increase annually.
(f) The petition for custody (Hazanat) of the minors filed by Bashir Ahmad is dismissed by accepting the appeal of Shazia Kausar mother.
(g) Obviously appeal filed by Bashir Ahmad is dismissed.
Learned counsel for the petitioner at the very outset contended that the judgment and decree passed by the learned appellate Court is not sustainable on the ground that the learned appellate Court without requisitioning/summoning the record has decided the appeal which is against the provisions of Code of Civil Procedure and also the law laid down for the said purpose. Next contended, that the learned appellate Court being the first Court of appeal was legally obliged to summon the record and decide the appeal because of the reason that while deciding the appeal, the appellate Court should have again examined and perused the whole material available on the file. Also argued, that the maintenance allowance fixed by the appellate Court is not inconformity with the earning being earned by the petitioner and further the Respondent No. 1 was not entitled as held by the learned trial Court for the maintenance claimed by her.
Conversely, the learned counsel for the respondent while replying the objection raised by the learned counsel for the petitioner regarding the summoning of the record by the appellate Court, submitted that as the complete record was annexed with the appeal, therefore, the learned appellate Court did not summon the record. Learned counsel vehemently supported the findings recorded by the learned appellate Court and submitted that the petitioner who is earning a lot while serving in abroad is in a position to pay the maintenance allowance as awarded by the learned appellate Court. It was also contended by the learned counsel that the learned appellate Court has rightly ruled that the Respondent No. 1/wife in the special circumstances of the case is also entitled to provide the maintenance from the day, she came to Pakistan.
I have heard the learned counsel for the parties and perused the record.
It is appropriate firstly to dispose of the objection raised by the learned counsel for the petitioner regarding non-summoning of the record by the learned appellate Court at the time of deciding the appeal and resultantly, the same is violative of the provisions of Code of Civil Procedure. The learned counsel when asked, that as to whether any objection in writing was raised before the learned appellate Court at the time of arguing the appeal, the learned counsel frankly conceded that no such objection in written form was raised. As regard, the record of the learned trial Court with the appeal, the learned counsel could not deny this fact but reiterated his argument; that even if the record was. annexed with the appeal, the learned appellate Court was under legal obligation to summon the record to decide the appeal. The contention raised by the learned counsel for the petitioner is devoid of any force because of the reason that it has consistently been ruled that the provisions of Code of Civil Procedure are not applicable in the proceedings of family cases. The Hon'ble Supreme Court of Pakistan in a recent judgment Hameed Ahmad v. Ghulab Khan (2006 SCMR 895) has observed, that the provisions of Civil Procedure Code are not applicable to the family cases. Even otherwise, the petitioner could not raise this objection first time in the Constitutional petition particularly when no such objection was raised at the relevant time, therefore, the petitioner is precluded and debarred by law and also by his conduct to raise this objection at this stage.
As regard, the merits of the case, the learned appellate Court while deciding the appeal again reappraised, re-appreciated and re-examined whole the material including the evidence adduced by the parties and reached to the conclusion that Respondent No. 1/wife is entitled for the maintenance allowance @ Rs.5000/- per month w.e.f. December, 2005 till the completion of iddat period, if divorced. As regard, the awarding of past maintenance, I am guided and fortified by the principle laid down by this Court in the judgment reported as Muhammad Aslam v. Mst. Zainab Bibi, etc. (NLR 1990 Civil 415) wherein it was held that the Family Court is empowered to grant past maintenance even for the period upto six years to the wife. In this case, as observed by the learned appellate Court, the Respondent No. 1 was forced to leave Kuwait and thereafter the petitioner did not make any effort to rehabilitate the respondent along with the minors, therefore, it can safety be held that the Respondent No. 1/wife did dot refuse to perform her matrimonial part with the petitioner so it was rightly held by the learned appellate Court that the respondent is entitled to receive the past maintenance.
As regard, the maintenance of the minors, the petitioner being father/natural guardian of the minor is bound by all cannon of law to maintain the minors irrespective of the fact where they are living and the appellate Court after careful scanning of the record finally reached to the conclusion that the petitioner who is a man of means, can easily pay the maintenance allowance to the minors @ Rs.5000/- per month, therefore, the findings recorded by the learned appellate Court to this effect are maintained.
As regard, the custody of the minor, the petitioner who has admittedly contracted the second marriage living in abroad whereas the respondent/wife has still not contracted the marriage and the minors, as observed by the learned appellate Court, are getting education in good institution and are also being looked after carefully, therefore, for the time being, it was rightly concluded by the appellate Court, that the welfare of the minors lies in the custody of the respondent.
Even otherwise, the petitioner could not brought anything on the record to rebut the claims and contentions of the respondent, therefore, the judgment, impugned herein does not suffers from any misreading of evidence or non-consideration of any material.
Resultantly, this petition has no force and is dismissed while maintaining the judgment and decree passed by the learned appellate Court. No order as to costs.
(M.S.A.) Petition dismissed
PLJ 2009 Lahore 815
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SALEEM CHAUHDRY--Petitioner
versus
DEFENCE HOUSING AUTHORITY, COMMERCIAL AREA, Y-BLOCK, PHASE-III, LAHORE CANTT. through its
Secretary and 4 others--Respondents
W.P. No. 2732 of 2007, heard on 31.10.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Matter of payment of adequate compensation--Respondents taken over possession of the land of petitioner without consent and without consideration or compensation--Writ of mandamus--Held: Act of the respondents in depriving the petitioner of his property without his consent, proper acquisition or purchase or payment of compensation is declared to be without lawful authority and void--A mandamus is accordingly issued to the respondents to act in the matter in accordance with law and to consider the matter of payment of adequate compensation/ consideration to the petitioner for his land--Petition allowed.
[P. 818] A & B
2006 SCMR 188, 1999 SCMR 2610 & 1997 MLD 1792, ref.
Mr. Muhammad Atif Amin, Advocate for Petitioner.
Ms. Tabinda Islam, Advocate alongwith Nasir Akram, Law Officer DHA for Respondents.
Date of hearing: 31.10.2008.
Judgment
The petitioner alongwith his brother Muhammad Aslam purchased land measuring 17 kanals 9 marlas comprising Khasra No. 427 in village Arazi Sehjpal, Tehsil Cantt, District Lahore, vide Mutation No. 221 attested on 9.5.73 (Annex-F). The respondents are stated to have taken over the possession of the said land without consent of the petitioner and without any consideration or compensation and, of course, without any inter-partes agreement or lawful acquisition proceedings for extension of its development scheme. The petitioner approached them with his grievance and was told that the matter shall be resolved and he will be compensated accordingly. However, vide letter dated 6.9.06 (Annex-E) it was informed that the land has already been purchased by Respondent No. 1. Following prayer has been made in the writ petition:--
"In view of the facts and circumstances hereinabove, the petitioner very humbly pray for appropriate writ and seek a declaration to the effect that the impugned acts of respondents being violative of Articles 23 and 24 of the Constitution, are illegal, unjust, unfair and unjust and untenable in law and that respondents have no lawful authority to deprive the petitioner of his valuable property without proper acquisition and payment of compensation and also that the petitioner is entitled to be treated with like other owners of whom the land was utilized in other Phases by the respondents and also that the respondents are bound to redress the grievance of petitioner in accordance with law.
A direction may kindly be issued to respondents to proceed in accordance with law either by obtaining the property through lawful acquisition, award or by private treaty on payment of compensation through developed plots or in the alternative, to refrain from utilizing the landed property of the petitioner in any development scheme or making allotment thereof to any of their members without the consent and approval of the petitioner and also to restore the same to petitioner."
The respondents in their written statement had pleaded that the title of the petitioner is disputed in a pending suit. It has further been stated that they had directed the petitioner to produce his clear ownership title but he failed to do so. At the same time it has been stated that the land has been purchased by Respondent No. 1 through registered conveyance deed.
Learned counsel, for the petitioner contends that the land was purchased by the petitioner and his brother, namely, Muhammad Aslam in equal share and sale was incorporated in the column of possession against Khasra No. 427. He refers to registered conveyance deed dated 9.8.2004 to assert that the Respondent No. 1 itself has purchased the share of his brother from the said Khasra No. 427. Whereas the sale-deed relied upon by the respondents has been effected in the column of ownership against the share purchased by Respondent No. 1. Learned counsel for the respondents on the other hand, argues that a disputed question of fact is involved and this Court cannot decide the same in exercise of writ jurisdiction. Refers to the said pending suit. According to her, the land has been lawfully purchased by the respondent DHA. However, she has not denied the factum of purchase of share of the brother of the petitioner by Respondent No. 1.
I have gone through the several documents appended by both the parties as also record presented by the said Officer of Respondent No. 1, with the assistance of the learned counsel for the parties. All the primary documents of sale being relied upon are undisputed. According to these documents Ahmed Din recorded co-sharer was in possession of Khasra No. 427 measuring 17 kanals 9 marlas. He sold the said specific Khasra to Muhammad Malik son of Khan Muhammad, who was recorded to be in possession as a vendee. Vide Mutation No. 221 (Annex-F), attested on 9.5.73, Muhammad Saleem, the petitioner and his brother Muhammad Aslam purchased the said specific khasra number in equal share through registered sale-deed dated 22.3.73 which was incorporated in column of possession in favour of both brothers. Vide registered sale-deed dated 14.7.2004 Respondent No. 1, purchased inter alia, Khasra No. 427 (8 kanals 14 marlas) from Muhammad Saleem the brother and co-vendee of the petitioner. This sale-deed was incorporated in the revenue record vide Mutation No. 925 attested on 8.9.05. I may note here that so tar as Khasra No. 427 is concerned, the same was incorporated in the possession column with regard to half share of brother of the petitioner purchased by Respondent No. 1. The sale-deed being relied upon by Respondent No. 1 in its written statement is dated 6.5.2006 and this was incorporated in the revenue record vide Mutation No. 1162 attested on 18.5.06. Admittedly Khasra No. 427 is comprised in Khata No. 16. The document clearly indicates that in respect of Khata No. 16 the said sale-deed dated 6.5.2006 was incorporated in column of ownership, whereas the entries in the column of possession continued as such ( ).
Having examined the said documents I have no manner of doubt in my mind that the two brothers purchased the specific Khasra No. 427 in Khata No. 16 total measuring 17 kanals 9 marlas in equal share. The sale was incorporated in the possession column of the said khasra number. The Respondent No. 1, of course, purchased half share of brother of the petitioner vide registered sale-deed dated 9.8.2004, which of course, was incorporated in the possession column vide Mutation No. 925, Net result is that half share of Khasra No. 427 purchased by the petitioner remained intact.
So far as the objection to the competency of the writ petition is concerned, I find that in view of the admitted documents on record and particularly the purchase of half share of the brother of the petitioner in Khasra No. 427 by Respondent No. 1 itself leave no disputed question of fact. So far as the suit is concerned, a copy of the plaint has been appended with the writ petition. The dispute pertain to the land owned by Miraj Din the father of the plaintiffs in the said suit and the petitioner and other brothers and sisters are parties to the said suit. I find that Khata No. 16 is not mentioned in the plaint and further present dispute relates to Khasra No. 427, which has been purchased by two brothers in the year 1973, whereas Taj died on 8.12.2002. Besides, order dated 1.4.2006 goes to show that regarding the land subject-matter of the suit and a gift has been pleaded by the petitioner and his said brothers to have been made vide Mutation No. 124 attested in the year 1959. The land, as noted by me above, was purchased by two brothers in the year 1973. There is, thus, no dispute anywhere regarding this land.
As to whether relief can be granted in this writ petition, learned counsel for the petitioner has cited the cases of District Officer Revenue, Kasur v. Abdul Rehmat Shaukat (2006 SCMR 188), Province of Punjab through Secretary Irrigation, Govt. of the Punjab, Lahore and 2 others v. Abdur Rehman Shaukat (1999 SCMR 2610) and Mst. Mukhtiar Fatima v. Deputy Commissioner, Multan and 2 others (1997 MLD 1792). In the said judgments the act of the State functionaries in taking over the land of the citizens and utilizing for their purpose without lawful acquisition or payment of compensation/consideration were declared to be void.
For all that has been discussed above, the writ petition is allowed. The act of the respondents in depriving the petitioner of his property without his consent, proper acquisition or purchase or payment of compensation/consideration is declared to be without lawful authority and void. A mandamus is accordingly issued to the respondents to act in the matter in accordance with law and to consider the matter of payment of adequate compensation/consideration to the petitioner for his land and to pay the same within two months from the date of this judgment and in case they fail to do so, to restore the possession of the land to the petitioner. At the moment parties are left to bear their own costs.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 819
Present: Mian Saqib Nisar, J.
KARAMAT ALI SHAHZAD--Petitioner
versus
MUHAMMAD ZULQARNAIN and 3 others--Respondents
W.P. No. 16937 of 2008, heard on 4.3.2009.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Suit for pre-emption--Non mentioning of time, venue and making of talb-e-muthibat in the plaint--Application for amendment in the plaint so as to add the assertion of talb-e-muthibat by trial Court--Revision was allowed--Constitutional petition--Held: In order to propound and sustain a claim of pre-emption, it is imperative, mandatory and essential for the plaintiff to mention the requisition particulars of the talabs in the plaint, because if those are missing, the provisions of Section 13 of the Act, shall automatically come into play and the Court at the first hearing of the suit even without issuing a notice to the other side on account of non-making of the talbs and lack of reference in the plaint, can straightaway dismiss the suit, because in view of Section 13 the pre-emptors right as stated earlier stands extinguished, meaning thereby that such right has come to an end, cancelled, aborted, wiped out, stultified and stand annulled--Such an ommission is not a mere defect, which can be termed to be inadvertant or curable, rather it is a fundamental flaw, which in the pre-emption cases cannot be allowed to be supplied and rectified--And if it is so permitted through an amendment in plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted. [P. 821] A & B
PLD 2007 SC 302, rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. XI, R. 17--Amendment in pleadings--Where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite, such an amendment is impermissible by virtue of Order 6 Rule 17, CPC--Petition allowed. [P. 821] C
Mr. Saleem Khan Cheehi, Advocate for Petitioner.
Mr. Muhammad Nadeem Sheikh, Advocate for Respondents.
Date of hearing: 4.3.2009.
Judgment
On 28.3.2007, Respondent No. 1 brought a suit for the pre-emption against the petitioner and Respondents No. 2 and 3; in the plaint, there is no mention about the time, venue and above all the very making of talb-i-muwathibat; the petitioner contested the matter and took up the objection that the suit should fail as talb-i-muwathibat has not been averred in the plaint, thus the right of the respondent/plaintiff on account of the provisions of Section 13 of the Punjab Pre-emption Act, 1991, stands extinguished. Be that as it may, issues were framed including on Talbs. The case was adjourned for arguments on the point of maintainability of the suit, when the respondent/plaintiff after a year moved an application on 2.2.2008 seeking the amendment in the plaint so as to add the assertion of talb-i-muwathibat, yet no time, venue in this behalf was sought to be specified. The application after contest by the petitioner was disallowed by the learned trial Court vide order dated 28.2.2008; however, on revision of Respondent No. 1, which was accepted, the application has been allowed vide order dated 21.10.2008. Hence this petition.
Learned counsel for the petitioner by making reference to Section 13 of the Punjab Pre-emption Act, 1991 (the Act), argues that where the talbs in accordance with law are not made, right of the pre-emption stands extinguished. It is also submitted that to assert the talbs in the plaint is mandatory and the omissions in this regard, shall be fatal to the case of the pre-emptor. Reliance in this behalf, has been placed upon the judgments reported as PLD 2007 SC 302 (Mian Pir Muhammad and another. Vs. Faqir Muhammad through LRs and others) and PLJ 2005 SC 844 (Akbar Ali Khan and others. Vs. Mukamil Shah and others). It is further argued that the amendment in the pleading cannot be allowed to supply a fatal omission and fill up a lacuna, which if permitted, shall defeat the defence (of the defendant) on a vital issue.
Conversely, learned counsel for Respondent No. 1, has argued that making of talb-i-muwathibat and other particulars in this behalf, have been duly mentioned in the notice of talb-i-ishhad, attached to the plaint and has been referred to in Paragraph No. 4 thereof; it is due to inadvertence that particulars could not be mentioned in the plaint and this lapse is curable by virtue of amendment. In this regard, he has relied upon the judgments reported as Mst. Rasoolan Bibi. Vs. Khizar Hayat (2008 SCMR 37), Munir Ahmad and 7 others. Vs. Additional District Judge, Kasur and 14 others (PLD 2001 Lahore 149) and Abdul Qayyum vs. Muhammad Rafique (2001 SCMR 1651).
Heard. As per the provisions of Section 13 of the Act, as interpreted by the judgment reported as PLD 2007 SC 302 (Mian Pir Muhammad and another. Vs. Faqir Muhammad through LRs and others), regarding the rule of averments of the plaint about the talbs, the making of talb-i-muwathibat is sine qua non for the maintainability and sustainability of a pre-emption action, a right which otherwise under the noted section shall be extinguished. Thus, in order to propound and sustain a claim of pre-emption, it is imperative, mandatory and essential for the plaintiff to mention the requisite particulars of the talbs in the plaint, because if those are missing, the provisions of Section 13 of the Act, shall automatically come into play and the Court at the first hearing of the suit even without issuing notice to the other side on account of non-making of the talbs and lack of reference in the plaint, can straightaway dismiss the suit, because in view of Section ibid the pre-emptor's right as stated earlier stands extinguished, meaning thereby that such right has come to an end, cancelled, aborted, wiped out, stultified and stand annulled.
The assertions of the two talbs and the averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal; thus such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which in the pre-emption cases cannot be allowed to be supplied and rectified. And if it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted; besides, it shall defeat the mandate of Section 13 of the Act; and where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite, such an amendment is impermissible by virtue of Order 6 Rule 17 CPC.
I am not convinced that as talb-i-muwathibat has been mentioned in the notice of talb-i-ishhad, therefore, such statement be deemed to be the part of the averment of the plaint, suffice it to say, that both the talbs have different significance and connotations and must be specifically and separately averred in the plaint and proved. It may be relevant to point out even the effect of the notice has not been mentioned in the plaint as required under Order 6 Rule 9, CPC, so that the contention of the petitioner's counsel could be appreciated in the context of above law.
In the light of above, by allowing this petition, the impugned order of the learned revisional Court is set aside and that of the learned trial Court is upheld.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 822
Present: S. Ali Hassan Rizvi, J.
KHALIL AHMAD--Petitioner
versus
JUDGE FAMILY COURT, FAISALABAD and another--Respondents
W.P. No. 3689 of 2009, decided on 25.2.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Constitution of Pakistan, 1973, Art. 199--Challenged the order of Family Court--Right of cross-examine the witnesses was closed--Held: Last opportunity was granted to cross-examine the witnesses--Respondent had already been divorced by the petitioner and his conduct as reflected from the order sheet appended with the writ petition showed his refractoriness--Reluctant to cross-examine the PWs with a view to teas her and to prolong the matter. [P. 823] A
Interlocustory Order--
----Impugned order was to all intents and purposes an interlocutory in nature--Validity--Law does not provide any appeal or revision in hierarchy of family laws--Petitioner on proper showing would have an opportunity to challenge the same if and when he would bring an appeal against the final decision in terms of S. 14 of the Family Court Act, 1964--There is no dearth of authority that the expression "decision" means final decision and the same will be read ejusdem genris with "Judgment"--Petitioner will have an aeduqate and alternative remedy at the time of appeal. [Pp. 823 & 824] B
Mr. Shahid Shaukat, Advocate for Petitioner.
Date of hearing: 25.2.2009.
Order
Khalil Ahmad writ petitioner has challenged the validity of the order dated 16.1.2009, passed by learned Judge, Family Court, Faisalabad whereby the right of the petitioner to cross-examine the witnesses of the Plaintiff/Respondent No. 2 Mst. Naila Majeed was closed.
It was argued by the learned counsel for the petitioner that the impugned order was too harsh; that on 12.1.2009, the Reader of the Court had told the next date as 26.1.2009 but that actually it was 16.1.2009; that the omission to record correct date was only a lapse condonable; that valuable rights of the petitioner had been closed; that wrong recording of date was supported by an affidavit of the learned counsel and that law favours decision on merits than on technicalities. According to learned counsel, the learned Judge, Family Court had committed material illegality and irregularity while passing the impugned order, which justified interference by this Court in the exercise of Constitutional jurisdiction.
I have heard learned counsel for the petitioner and gone through the record. The perusal of the relevant order dated 16.1.2009 would show and show clearly that a reference was made to the orders of 3.1.2009 and 12.1.2009, which transpired that even earlier, the proceedings were adjourned for cross-examination of the witnesses of the Plaintiff/Respondent No. 2 with a caution that last opportunity was being granted. A copy of order dated 3.1.2009 is also appended with the writ petition. It showed that an application of the petitioner was accepted subject to payment of cost of Rs.1000/- and last opportunity was granted to cross-examine the PWs adjourning the case for 12.1.2009. It was also cautioned that in case of non-compliance of the order on the part of the petitioner (defendant), the order dated 24.11.2008 would stand resurrected. The Respondent No. 2 Mst. Naila Majeed had already been divorced by Khalil Ahmad, writ petitioner and his conduct as reflected from the order sheet appended with the writ petition relating to 24.11.2008, 3.1.2009 and 16.1.2009 showed his refractoriness. He appeared to be reluctant to cross-examine the PWs of the plaintiff/ Respondent No. 2 Mst. Naila Majeed with a view to tease her and to prolong the matter. A copy of the diary appended with the writ petition (vide page 12) showed that on 3.1.2009, the case entitled as Naila Majeed Vs. Khalil Ahmad was duly entered at Sr. No. 4. A close observance of the date recorded against it showed 16.1.2009. The digit "1" to the naked eyes appears to have been overwritten so as to show it as "2" making the date as 26.1.2009 instead of 16.1.2009. With respect to the learned Advocate who had sworn an affidavit as to the misconception of date (Annexure-F), I find that it was of no help for reason more than one. Firstly it does not show as to which was the date, which was recorded by him on account of misconception. The affidavit was also not in accordance with law. Its contents were neither couched nor verified as per High Court Rules & Orders. The impugned order passed by the learned Judge, Family Court, is not only clothed with authority but is also fully justified. The impugned order dated 16.1.2009 was to all intents and purposes an interlocutory in nature. The law does not provide any appeal or revision in the hierarchy of Family Laws. The petitioner on proper showings would have an opportunity to challenge the same if and when he would bring an appeal against the final decision/judgment in terms of Section 14 of the Family Court Act, 1964. There is no dearth of authority that the expression "decision" means final decision and the same will be read ejusdem generis with "judgment". In other words, the petitioner will have an adequate and alternative remedy at the time of appeal as aforementioned. Considering the conduct of the petitioner, the learned Judge Family Court was constrained to pass the impugned order dated 16.1.2009. There was no illegality or irregularity in passing these orders. The present writ petition is without any substance. It is not entertainable and is consequently dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 824
Present: Rana Zahid Mahmood, J.
Mst. AKHTAR BIBI--Petitioner
versus
GOVT. OF PAKISTAN through its Secretary Defence
and 2 others--Respondents
W.P. No. 18144 of 2008, heard on 18.3.2009.
Pakistan Army Act, 1952 (XXXIX of 1952)--
----S. 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Order for production and release of the two brothers of petitioner who were allegedly taken away by respondents as member of federal intelligence unit--Held: Under Section 7 of the Pakistan Army Act, and can be tried validly by the Field General Court Martial on allegations which fall within the mischief of offences under the Pakistan Army Act, 1952--Jurisdiction of the Military Court to hold trial of the civilian employees of the allied departments of the Pakistan Army including Ordinance Depot is exclusive--There is no jurisdiction with High Court to interfere into the working of the respondents and scheme of things proved by the Pakistan Army--Petition dismissed. [P. 826] A & B
PLD 2008 SC 301, PLD 1996 SC 632 & 1999 SCMR 664, rel.
Mr. M. Pervez Iqbal, Advocate for Petitioner.
Malik Karamat Ali Awan, Standing Counsel with Major Bilal for Respondents.
Date of hearing: 18.3.2009.
Judgment
Through the present Constitutional petition Mst. Akhtar Bibi petitioner has requested for an order for production and release of Nawaz Ali and Muhammad Altaf, two brothers of the petitioner, who were allegedly taken away by Respondent No. 3 on 3.9.2007 along with other members of Federal Intelligence Unit (hereinafter referred to as FIU) and afterwards the detenus were detained by Respondents Nos. 2 and 3 for nearly one and a half year and then on learning about the filing of the instant petition, according to the petitioner's stance, Nawaz Ali, alleged detenu No. 1, was convicted and sentenced under the Court Martial by a Field General Court Martial to four years on the allegation of espionage and leakage of military secrets to the enemy being employees as driver and Mali (gardener) in the Ordnance Depot, Lahore Cantt, while trial of Muhammad Altaf, alleged detenu No. 2, is in progress by a Field General Court Martial.
Learned counsel for the petitioner has submitted that in fact the detenus are in illegal custody of the respondents as Respondent No. 3, who is a Subedar in FIU, used to visit the village of the detenus and used to visit the Dera of the opponents of the detenus and indulged in drinking parties which was strongly objected to by the detenus and he, through abuse of his authority as Subedar in the FIU, then managed to involve the detenus on false allegations and got them detained for fifteen months and then secured the conviction and sentence of Nawaz Ali. Learned counsel submitted with reference to Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 SC 632) and Federation of Pakistan and two others Vs. Khurshid Ahmed and another (1999 SCMR 664) that Pakistan Army Act, 1952, was not applicable to the detenus/brothers of the Petitioner Neither there was any absolute bar on the exercise of jurisdiction under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, and submitted that the detenus are petty employees of Ordnance depot and in no case they were in a position to cause any damage to the Ordnance Depot and the Country by sharing any secret information with the enemies of Pakistan. Further submitted that the record of the Field General Court Martial may be requisitioned for examination by this Court and in case after examining the record this Court feels satisfied that the allegations leveled against the petitioner's brothers are true, the petition may be dismissed.
Learned Standing Counsel for Federal Government, Respondent No. 1 assisted by representative of Respondent No. 2, has opposed the contentions and submitted with reference to parawise comments and reply submitted on behalf of respondents that the Court Martial was held to be part of the ordinary law of land through a verdict given by the Honourable Supreme Court in Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 S.C. 632), and also submitted with reference to Rehmat Ali Johar Vs. Additional Chief Engineer and others (PLD 2008 S.C. 301) that civil employees working in any Branch of the Army were subjected to trial by Field General Court Martial and though civilian employees were not subject of definition of active service as contained in Section 8(1) of Pakistan Army Act, 1952, but was covered by notification dated 3.1.1975 issued under Section 7 of Pakistan Army Act, 1952, for the purpose of Field General Court Martial. He submitted that the alleged detenus were never kept in illegal confinement and were treated in accordance with law and submitted with reference to parawise comments that appeal against the conviction and sentence is provided before Army Courts of Appeal as provided by Section 133(b) of Pakistan Army Act, 1952. He, therefore, submitted that since appeal is provided, there is no jurisdiction with this Court to allow the writ petition. Also submitted that trial of Muhammad Altaf is pending adjudication before the Field General Court Martial, therefore, prayed for dismissal of the petition.
I have heard the arguments of learned counsel for the parties and also perused the parawise comments submitted on behalf of respondents.
Since the alleged detenus, the two brothers of the petitioner, are employees in the Ordnance Depot at Lahore Cantt, thus they are subjected to Pakistan Army Act, 1952, in view of the notification dated 3.1.1975 issued under Section 7 of the Pakistan Army Act and can be tried validly by the Field General Court Martial on allegations which fall within the mischief of offences under the Pakistan Army Act, 1952 and the law laid down by the Honourable Supreme Court in the case of Rehmat Ali Johar vs. Additional Chief Engineer and others (PLD 2008 S.C. 301) leaves no doubt on the jurisdiction of the Military Courts to hold trial of the civilian. employees of the allied departments of the Pakistan Army including Ordnance Depot and as Nawaz Ali has been convicted and sentenced by a Field General Court Martial and an appeal is provided in the Statute (Pakistan Army Act, 1952), therefore, there is no jurisdiction with this Court to interfere into the working of the respondents and scheme of things provided by the Pakistan Army Act. As regards Muhammad Altaf, the other brother of the petitioner, trial against him is pending adjudication before Field General Court Martial and it may be mentioned with advantage that the Honourable Supreme Court in Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 S.C. 632), had held that Court Martials are held under the criminal procedure for holding of Court Martials and cannot be equated with Military Courts established under extra-ordinary circumstances through promulgation of Martial Law and by suspension of ordinary laws of the land. It was also held in the case of Federation of Pakistan and two others Vs. Khurshid Ahmad and another (1999 SCMR 664) by the Honourable Supreme Court that by virtue of Section 2(i)(c) of Pakistan Army Act, 1952, read with notification dated 3.1.1975 issued under Section 7 of Pakistan Army Act, 1952, civilians other than army personnel on active service attached with the army departments were subject to exercise of jurisdiction by Field General Court Martial, therefore, said case law is also not helpful to the petitioner cited by learned counsel for the petitioner.
Since, the brothers of the petitioner are being dealt with in accordance with law and appeal against their conviction and sentence is also provided under Section 133(b) of the Pakistan Army Act, 1952, therefore, it cannot be said that petitioner's brothers were detained by Respondents Nos. 2 and 3 without any lawful course and in unlawful manner. Their detention cannot be termed to be illegal. Therefore, there is no jurisdiction with this Court to interfere into the ordinary working of a lawful administration/department of the respondents. Petition is without merit and is, therefore, dismissed, with no order as to costs.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 827
Present: Hasnat Ahmad Khan, J.
MUHAMMAD SAEED AKHTAR--Petitioner
versus
STATE and 2 others--Respondents
W.P. 15009 of 2008, decided on 31.10.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 489-F--Criminal Law Amendment Ordinance, 2002 whereby Section 489-F, PPC was inserted, has been validated by the LFO, 2002 and later on by the Parliament, which passed 17th Amendment, which contains Art. 270-AA of Constitution therefore, the contention raised by for the petitioner that S. 489-F, PPC is no more part of PPC is hereby spurned. [P. 830] A
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Validity--Factual controversy cannot be resolved in writ jurisdiction--Investigation cannot be throttled at the initial stage and FIR can only be quashed if it is found that the contents of the same do not show the commission of any offence--Matter requires a detailed investigation, a function which lies squarely within the domain of the police--High Court cannot perform the role of an investigator nor can it enter into a roving enquiry, into the allegations and counter allegations levelled by the parties--Petition dismissed. [P. 830] B
2006 SCMR 276 & 2006 SCMR 1957, rel.
Mr. Ghulam Haider Al-Ghazali, Advocate for Petitioner.
Date of hearing: 31.10.2008.
Order
Muhammad Saeed Akhtar, who is nominated accused of case F.I.R No. 530/08, dated 23-8-2008, registered at Police Station City Hafizabad, in respect of offences under Section 489-F, P.P.C, has sought quashing of the said F.I.R, through this writ petition.
Precise allegation against the petitioner, as per the F.I.R, is that he purchased a piece of land from the complainant and his partner Dr. Jehangir and issued a cheque dated 26-2-2008 worth Rs.8,40,000/- but on its presentation, the same was dishonoured.
Learned counsel for the petitioner contends that the allegations levelled in the F.I.R are totally false and baseless; that the F.I.R has been lodged malafidely after distorting the real facts; that, as a matter of fact, the petitioner did not purchase any property from the complainant, rather, the same was purchased by one Ch. Muhammad Riaz from Muhammad Razaq vide sale-deed registered on 14-3-2007; that the complainant has got no concern with the said property; that the property intended to be sold had already been sold out against consideration of Rs.7,00,000/- by Abdul Razaq; that the cheque in question was issued by the petitioner as a surety for the payment of consideration of the said property but since the property was neither owned by Dr. Jehangir nor by the complainant, therefore, the payment on the said cheque was withheld by the petitioner and that, Section 489-F, PPC, which was added in the P.P.C vide Ordinance No. LXXXV of 2002, died its natural death after expiry of four months, therefore, Section 489-F, P.P.C is no more a part of P.P.C, hence, the impugned F.I.R could not have been registered under the said provision of law. In support of his last contention, learned counsel has relied upon a case of Mian Husnain Ahmad Hyder v. Station House Officer and others (K.L.R 2005 Criminal Cases 39).
After hearing the learned counsel for the petitioner, I would like to deal with the last contention first. I have gathered that Section 489-F, P.P.C., was inserted in the Penal Code vide Criminal Law (Amendment Ordinance No. LXXXV) of 2002, which was promulgated by the President of Pakistan on 25-10-2002. A perusal of the said Ordinance would reveal that the said Ordinance was not promulgated while deriving power under the Constitution, rather, it was promulgated in pursuance of Proclamation of Emergency of 14th day of October, 1999 and Provisional Constitutional Order No. I of 1999 read with Provisional Constitutional (Amendment Order) 9 of 1999.
Now reverting to the P.C.O. I of 1999, it would be relevant to point out here that it was issued in pursuance of Proclamation of Emergency on 14th of October, 1999 by the Chief Executive. Article 5 of the said Order reads as under:
"Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution shall continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him."
Later, Provisional Constitutional (Amendment Order), 1999 was issued on 14-11-1999 by the Chief Executive of the Islamic Republic of Pakistan. Through this order, the P.C.O I of 1999 was amended by way of insertion of Article 5-A (1), which reads as under:--
5A(1). An Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation Order of Chief Executive of the Fourteenth day of October, 1999."
A perusal of the Article 5A(1) reveals that limitation regarding the duration/life of Ordinances, as prescribed in the Constitution, was done away. Later on, in pursuance of Proclamation of Emergency of 14th day of 1999, read with P.C.O I of 1999 and in pursuance of the powers vested in him, by and under the judgment of the Hon'ble Supreme Court of Pakistan dated 12th May, 2000, the Chief Executive of the Islamic Republic of Pakistan promulgated Legal Framework Order, 2002 vide Chief Executive's Order on 21-8-2002. Through the said order, Article 270-AA was inserted in the Constitution of Pakistan. Through sub-Article (1) of the said Article, all President's Orders/Ordinances, Chief Executive's Orders, including the Provisional Constitutional Order No. I of 1999 and all other laws made between 12th day of October, 1999 and the day of coming into force of Article 270-AA, were affirmed, adopted and validated. After coming into existence, in pursuance of General Elections held in 2002, the Parliament passed 17th Amendment whereby Article 270-AA was inserted in the Constitution. The said Article affirmed, adopted and validated all the President's Orders/ Ordinances, Chief Executive's Orders, Provisional Constitutional Order No. I of 1999, amendments made in the Constitution through Legal Framework Order, the Legal Framework Amendment Order, 2002 and all the other laws made between 12th October, 1999 and the date on which the said Article came into force.
A survey of the said Presidential Orders and Article 270-AA of Constitution of Islamic Republic of Pakistan reveals that through Article 5A(1) of amended P.C.O. I of 1999, all the Ordinances promulgated/issued during the said interregnum were unfettered and extricated from the constitutional limitation of their four month's life. Criminal Law Amendment Ordinance, 2002 whereby Section 489-F, P.P.C. was inserted, has been validated by the LFO, 2002 and later on by the Parliament, which passed 17th Amendment, which contains Article 270-AA, therefore, the contention raised by the learned counsel for the petitioner that Section 489-F, P.P.C is no more a part of the P.P.C, is hereby spurned.
Insofar as the merits of the case are concerned, the petitioner has not denied the issuance of cheque and bouncing thereof. He claims that the cheque was issued as a surety but on non-fulfilment of the relevant condition, payment on the cheque was stopped. He further claims that the complainant was not the owner of the property, intended to be sold, as the same has already been sold by Abdul Razzaq to Muhammad Riaz. However, he has failed to establish any link of the sale-deeds relied upon by him in this regard with the property mentioned in the F.I.R. Be that as it may, all the contentions raised by learned counsel for the petitioner relates to a factual controversy, which cannot be resolved in writ jurisdiction.
The petitioner has failed to show, as to why the complainant of this case has implicated him, falsely. Further, the investigation cannot be throttled at the initial stage and the F.I.R can only be quashed if it is found that the contents of the same do not show the commission of any offence.
In these circumstances, the matter requires a detailed investigation, a function which lies squarely within the domain of the police. High Court obviously cannot perform the role of an investigator nor can it enter into a roving enquiry, into the allegations and counter allegations levelled by the parties. Reliance in this regard is placed on the cases of Col. Shah Sadiq Vs. Muhammad Ashiq and others (2006 SCMR 276) and Muhammad Salim Bhatti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957).
Consequently, the writ petition having been found merit-less, is dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 831
Present: Syed Shabbar Raza Rizvi, J.
NOOR HUSSAIN--Petitioner
versus
CHIEF PROSECUTOR GENERAL PUNJAB
and 5 others--Respondents
W.P. No. 4697 of 2008, decided on 28.10.2008.
Opinion of Investigation Officer--
----Opinion of first investigating officer or second investigating officer does not make any accused person guilty or innocent--Duty of the I.O. is to collect some material and to place it before the concerned Court which decides after giving opportunity to the parties, the fate of a criminal case only a competent can declare whether a person is guilty or innocent but not a investigating officer. [P. 832] A
Punjab Criminal Prosecution Service Act, 2006--
----S. 9--According to Punjab Criminal Prosecution Service Act, 2006, Prosecutor General is incharge of prosecution--Question of--Whether after opinion of the Prosecutor General, submission of challan could be kept pending on pretext of seeking an opinion from DSP legal? whether opinion of DSP legal was required?--Held: Seeking opinion from DSP legal, either malafide or total ignorance of law of the concerned police officer--Petition allowed. [P. 832] B
Syed Farooq Hassan Naqvi, Advocate for Petitioner.
Ch. Irshad Ullah Chatha, Advocate for Petitioner in W.P. No. 12508/08.
Mr. Muhammad Nawaz Bajwa, AAG for Respondents.
Date of hearing: 28.10.2008.
Order
According to the learned counsel for the petitioner, the learned Deputy Prosecutor General vide his note dated 15.3.2008 recommended that accused be challaned and supplementary challan be submitted before the competent Court. The said recommendation was also approved by the Prosecutor General, Punjab. The controversy relates to F.I.R No. 338/05 dated 20.10.2005 at P.S. Civil Lines, Sialkot. In initial investigation, the accused were found innocent. Subsequently, the investigation was entrusted to Ghulam Muhammad Kalyar, SSP/investigation. However, Respondent No. 4 moved an application for legal opinion from DSP Legal.
3: The people forget that opinion of first investigating officer or second investigating officer does not make any accused person guilty or innocent. The job of the I.O. is to collect some material and to place it before the concerned Court which decides after giving opportunity to the parties, the fate of a criminal case. Only a competent Court can declare whether a person is guilty or innocent but not a) Investigating officer or B) yet people waste time and delay proceedings to get favourable opinion of Investigating officer. This point has been explained lucidly by a Full Bench of this Court reported in, PLD 2005 Lahore 470.
After enactment of Punjab Criminal Prosecution Service, 2006, every man in the legal profession, one way or other, knows that Prosecutor General is incharge of prosecution in the Province. The learned Assistant Advocate General, Punjab has rightly pointed out Section 9 of the above enactment which is also supported by the learned Deputy Prosecutor General in the above circumstances, seeking opinion from DSP legal, is either mala fide or total ignorance of law of the concerned police officer.
The Provincial Police Officer/IG Punjab is directed to seek explanation in this regard from Mehmood Ahmad Khan, SI, Police Station Civil Lines, Sialkot, S.H.O. Civil Lines, Sialkot and DSP Legal, Sialkot. This writ petition is allowed. The DPO Sialkot is directed to make sure that challan or supplementary challan is submitted before the competent Court in the light of the final investigation conducted by Ghulam Muhammad Kalyar, SSP/Investigation which was also approved by the Prosecutor General vide order dated 1.3.2008.
(M.S.A.) Petition allowed.
PLJ 2009 Lahore 833
Present: Kh. Farooq Saeed, J.
FARHAN-UD-DIN--Petitioner
versus
PAKISTAN TELECOMMUNICATION COMPANY LTD., LAHORE through its Chairman and 2 others--Respondents
W.P. No. 978 of 2007, heard on 3.11.2008.
Constitution of Pakistan, 1973--
----Art. 199--Levy of central excise duty on telephone bills was challenged--Validity--Central excise duty has been levied and it is to be collected on all the services, the heading number of which have been mentioned in the relevant S.R.O. which is 550(1)/2006 in addition to such other earlier exerciseable items--Thus, now it includes all telecommunication services and it applies to all its users. There is no discrimination in respect of domestic or any other consumer--Petition was dismissed. [P. 834] A
Dr. Hameed Ahmad Rana, Advocate for Petitioner.
Mr. Khawar Ikram Bhatti, Advocate for Respondent No. 2.
Mr. Zubair Khalid, Standing Counsel for Respondents.
Date of hearing: 3.11.2008.
Judgment
The petitioner through this writ petition has challenged the levy of Central Excise Duty on telephone bills for the year 2006. The telephone bill enclosed with the writ petition is for the billing month December, 2006, and its date of issue is 12.1.2007 which was payable for 26.1.2007. The aforementioned bill in addition to P.T.C.L dues amounting to Rs.2582/43 also claims net Central Excise Duty at Rs.371/08 which is now being challenged through the present writ petition.
The arguments in support of the claim that it is unlawful is that the charge has been created under S.R.O. 617(1)/2000. Through the said SRO, the Federal Government in exercise of powers under Section 3 (1) of the Central Excise Act, 1944 (1 of 1944) had specified excisable services on which Central Excise Duty shall be levied and collected as tax payable under Section 3 of the Sales Tax Act, 1990. Through the said Act inter alia services provided or rendered by persons engaged in telecommunication work in respect of telephone and certain other facilities has been brought to charge. It is said that since charge was created on the services provided for telecommunication work with special reference to telephone and certain other items, the domestic consumer was not covered within the same. He, therefore, wants a direction to delete the said amount from the telephone bills and for payment of refund of already paid Central Excise Duty by the petitioner.
It was pointed out to learned counsel that the said S.R.O has already been superseded subsequently by S.R.O 503(l)/2004 and telephone and such other services had been specified separately by assigning them independent headings. The same has again been superseded through S.R.O 648(l)/2005 dated 1st July, 2005, wherein, the charge has again been confirmed against the telephone services separately and independently. The matter has not ended there. On 5.6.2006 the Federal Government through its Notification No. S.R.O 550(l)/2006 in exercise of powers conferred by Section 7 of the Federal Excise Act, 2005, and in supersession of its Notification No. SRO 648(l)/2005 has specified services mentioned in the Table therein, on which excise duty has been levied and is to be collected as it is a tax payable under Section 3 of the Sales Tax Act, 1990. The heading number now assigned is 98.02 and it covers all the telecommunication services, This is the Notification which in fact is relevant to the telephone bill impugned before this Court.
It was pointed out to learned counsel that the contents therein are very clear while he insisted that the same should be read in conjunction with the other heading. The argument is misconceived.
The Central Excise Duty has been levied and is to be collected on all the services, the heading number of which have been mentioned in the relevant S.R.O which is 550(1)/2006 in addition to such other earlier exciseable items. Thus, now it includes all telecommunication services and it applies on all its users. There is no discrimination in respect of domestic or any other consumer, hence, the argument is considered of no help. The writ petition, therefore, is dismissed.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 834
Present: Rana Zahid Mahmood, J.
ASIF IQBAL--Petitioner
versus
GOVT. OF PUNJAB through its Home Secretary, Home Department, Punjab, Lahore and another--Respondents
W.P. No. 1142 of 2009, decided on 30.1.2009.
Punjab Maintenance of Public Order, 1960--
----Art. 3(1)--Constitution of Pakistan, 1973, Art. 199--Detention order passed by DCO--District Government to arrest & detain the petitioner for a period of thirty days under Section 3(1) of Punjab Maintenance of Public Order 1960 on the ground that each of the petitioner is a desperate and dangerous person and his being at large would render security hazard to the community at large--Detention orders assailed through Constitutional jurisdiction--Validity--Court in exercise of Constitutional jurisdiction is bound after examination of the material placed before it by the representatives of respondents to give categorical finding about the grounds which were deemed sufficient to take impugned action against the petitioners--If these type of actions by the public functionaries are approved by the Constitutional Courts, a sizeable number of population of Lahore at least would be exposed to arbitrary, fanciful whimsical exercise of authority by the respondent--Petition allowed. [P. 838] A & B
Sheikh Sakhawat Ali, Advocate for Petitioner.
Ch. Muhammad Suleman, Additional Advocate General alongwith Iqbal Hussain Assistant Home Department, Punjab, Lahore and Abdul Rauf Qureshi, Reader to DCO, Lahore.
Date of hearing: 30.1.2009.
Order
By this single judgment two constitutional petitions titled above are being disposed of together involving common question of law and facts, whereby the petitioners who are two real brothers, residents of Al-Faisal Town, Lahore have impugned detention order dated 23.12.2008 passed by DCO-District Government, Lahore, whereby the petitioners through separate orders of even date have been ordered to be arrested and detained for a period of thirty days under Section 3(1) of Punjab Maintenance of Public Order 1960 on the ground that each of the petitioner is a desperate and dangerous person and his being at large would render security hazard to the community, danger to human life, health and safety and that each of the petitioner will resort to harassment and commission of illegal acts and heinous offences, thus pose grave threat to public safety.
Learned counsel for the petitioners has submitted that Ghulam Murtaza has already been taken into custody since 11.01.2009, while police was after Asif Iqbal when he along with his brother Ghulam Murtaza petitioner then approached this Court for indulgence on the ground that the impugned orders passed by the DCO, Lahore are illegal, mala-fide and there were no grounds available with the Respondent No. 2 to take action against the petitioners under Section 3(1) of Punjab Maintenance of Public Order 1960. Learned counsel submitted that the Respondent No. 2 vide para No. 3 of the impugned orders in each case has mentioned that upon the basis of evidence/material placed before him, he was convinced that presence of the petitioners would pose grave threat to the public safety and was likely to cause breaches of public peace and order. Learned counsel submitted that there is no material or any evidence available with the Respondent No. 2 on the basis of which impugned orders could be passed against the petitioners. Learned counsel submitted that in fact civil litigation is going on between the petitioners and one senior police officer and the instant action against the petitioners has been taken at the instance of said senior police officer by the Respondent No. 2 with mala-fide intention. Learned counsel submitted that the material brought before the Court today by the officials of the Home Department and from the office of DCO may be examined for the purposes of satisfaction of judicial conscious of this Court that action taken against the petitioners is unwarranted in law, as such being illegal is liable to be set aside in the exercise of constitutional jurisdiction of this Court.
Learned Additional Advocate General, Punjab has submitted that Iqbal Husain, an Assistant of the Home Department, Government of the Punjab, Lahore is present apart from Abdul Rauf Qureshi, Reader to the DCO, Lahore and they have brought the relevant record which was made basis by Respondent No. 2 for passing the impugned orders against the petitioners. The learned Law Officer submitted that there are six criminal cases registered against Ghulam Murtaza petitioner, out of which one case is under Section 302 PPC, while two cases are under Section 13 of Arms Ordinance and there is another case vide FIR No. 617 dated 20.05.2008 under Section 337 H(ii)/429 PPC apart from case FIR No. 1172/06 under Sections 506, 448, 452,148 PPC dated 30.10.2006 and all said cases stand registered with Police Station North Cantt. Lahore. He submitted that apart from said criminal cases, there is report of District Security Branch that the petitioners are gangsters and desperate persons who belong to "Kabza Group" and take illegal possession of the properties of poor persons and blackmail them. He submitted that case under Section 302 PPC stands registered against Ghulam Murtaza vide FIR No. 601/02 with Police Station North Cantt. Lahore.
As regards Asif Iqbal petitioner, he submitted that two criminal cases stand registered against him with same police station and one case is under Sections 420, 468, 471, 452, 448, 511, 337 H(ii) PPC vide FIR No. 997/08, while the other case is vide FIR No. 1068/08 under Sections 448, 511, 148, 149 PPC. The learned Additional Advocate General submitted on Court query that there is no other record or material available with the respondents against the present petitioners. He further submitted that since several cases stand registered against Ghulam Murtaza, therefore, at least it appears that he is a desperate person and public peace was at stake, therefore, the Respondent No. 2 took impugned action against him in public interest and tranquility. He, therefore, submitted that at least to the extent of Ghulam Murtaza petitioner, no exception can be taken to the impugned order. Further submitted that the representations of the petitioners are pending before the Respondent No. 1 and would be disposed of within few days.
After hearing the arguments of learned counsel for the petitioners, learned Additional Advocate General, Punjab for the respondents and perusing the material placed before the Court for examination to check the vires of impugned orders, I am of the view that since all the six cases cited by the learned Law Officer for impugned action against Ghulam Murtaza petitioner go to show that out of six criminal cases, two cases are under Arms Ordinance while one case vide FIR No. 617/08 is with regard to bailable offences under Section 429, 337 H(ii) PPC, while case FIR No. 1172/06 dated 30.10.2006 also relates to common and minor offence under Sections 506, 452, 448, 148 PPC, while there is only one case under Section 302 PPC vide FIR No. 601/02 in which case as well Ghulam Murtaza petitioner has already been acquitted by this Court vide order dated 15.10.2004 passed in Crl. Appeal No. 2063 of 2003 titled as "Ghulam Murtaza Versus. The State" as he was convicted and sentenced under Section 302(b) PPC by the learned Additional Sessions Judge, Lahore to imprisonment for life with a sum of Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C., the copy of which has been placed before the Court during the arguments for examination, as such commission of offence under Section 302 PPC is no more on the file against him. Coming to the report of the DSB (District Security Board), if the Board or security branch has mentioned about the petitioners to be desperate persons and gangsters who take illegal possessions of the properties of the people since there is no material with them to support said report by the Security Branch or anybody else cannot be made basis for any action against any citizen including the said petitioner. As regards case of Asif Iqbal petitioner, there are only two criminal cases registered with the same Police Station under Sections 420, 468, 471, 452, 448, 511, 337 H(ii) PPC vide FIR No. 997/08 and case FIR No. 1068/08 under Section 448, 511, 148, 149 PPC and as such said two cases as well also do not furnish any good and valid ground in law to take impugned action against him by the Respondent No. 2.
The learned Additional Advocate General, Punjab had submitted that since there were several criminal cases registered against Ghulam Murtaza petitioner, as such impugned action to his extent at least could be termed to be not without any sufficient basis, I am of the view that the argument advanced by the learned Additional Advocate General again is devoid of any force and is not tenable in law for justifying action taken against said respondent through impugned order. As regards the disposal of the representations of the petitioners by Respondent No. 1, suffice it to say that Ghulam Murtaza petitioner is already under arrest since 11.01.2009 and till date he is behind the bars for the last 19-days and the detention order is for a period of thirty days while the representations of the petitioners and particularly Ghulam Murtaza if is disposed of within next few days, there is every possibility that the detention period would be served out by the said petitioner with the result that his representation would ipso facto would become redundant or infructuous. Even otherwise this Court in the exercise of constitutional jurisdiction is bound after examination of the material placed before it by the representatives of respondents to give categorical finding about the grounds which were deemed sufficient by the Respondent No. 2 to take impugned action against the petitioners. The material so placed before the Court as observed earlier in no way can be termed to be sufficient for passing of impugned orders against them. There is, therefore, substance in the arguments of learned counsel for the petitioners that the action has been taken by the Respondent No. 2, not on valid and lawful consideration, but on considerations which were outside the pale of his lawful authority and as such the impugned orders cannot be allowed to sustain on record. If these type of actions by the public functionaries like the Respondent No. 2 are approved by the constitutional Courts, a sizeable number of population of Lahore at least would be exposed to arbitrary, fanciful, whimsical exercise of authority by the Respondent No. 2.
In view of the above discussions, both the constitutional petitions are, therefore, accepted, impugned orders passed by Respondent No. 2 under Section 3(1) of Punjab Maintenance of Public Order, 1960 are, therefore, declared to be without lawful authority and based upon considerations other than lawful and consequently are set aside. Since Ghulam Murtaza petitioner is under arrest, therefore, he is ordered to be released forthwith if not required to be detained in any other case in accordance with law. Since Asif Iqbal petitioner is already enjoying liberty, therefore, no further order qua him is required to be passed.
(M.S.A.) Petitions accepted.
PLJ 2009 Lahore 839 (DB)
Present: Maulvi Anwar-ul-Haq & Ali Akbar Qureshi, JJ.
FRIENDS ASSOCIATE (REGD.) through Managing Partner, Lahore and 3 others--Appellants
versus
BINN BAK INDUSTRIES (Pvt.) Limited through Chief Executive
Faisalabad and others--Respondents
RFA No. 398 of 2004, decided on 28.10.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance of contract--Complete possession was not delivered--Consideration--Plea ultimately taken in the course of evidence that possession was delivered of entire land could not have been allowed to be taken being violation of the rule of "Secundum allegata jet probata"--Entire possession was not delivered stand admitted--There is also no denial that all the Banks have been paid off--High Court therefore, do find that the appellants were ready and willing to perform their part of the contract--Findings are accordingly reversed--The date stipulated for performance has yet not expired and no question of the suit being barred by time--RFA allowed. [Pp. 847 & 848] A, B & C
1998 SCMR 593 & 1996 SCMR 336, referred.
Mr. Ahmad Waheed Khan, Advocate for Appellants.
Syed Najam-ul-Hassan Kazmi, Advocate for Respondents.
Dates of hearing: 28.10.2008, 29.10.2008, 4.11.2008 and 12.11.2008.
Judgment
Maulvi Anwar-ul-Haq, J.--On 9.2.2002 the appellants filed a suit against the respondents. After explaining the constitution of the appellants as a Firm and its partners and that of the respondents as a Company and its Directors, it was stated that acting under a resolution passed by the Board of Directors of the Company, the Respondent No. 3 having been duly authorized, entered into an agreement with the appellants to sell the suit property, described in the plaint, in favour of the appellants for a consideration of Rupees Seventy Four Crore. An earnest of Rs.3,20,00,000/- was paid and the agreement was executed on 1.10.1995. Thereafter, it was stated that although it was stated in the agreement that the possession of the entire land alongwith the structures and fixtures, etc., total measuring 59 Acres 5 Marlas had been handed over, in fact, the appellants were put in possession of only 35 Acres of land. Out of the remaining land 14 Acres were under Labour Quarters which were to be got vacated by the respondents while a 3rd plot measuring 10 kanals 9 marlas was subject matter of an on going litigation which was to be delivered after The decision of Board of Revenue. The remaining land was not delivered being under the Chairman Rest House, Officers Colony and Mill Offices. They were authorized to demolish the structures and to remove the machinery and to sell the same at their will. Regarding the said 14 Acres of land under the Labour Colony, a provision was made in the agreement that the time for performance will be correspondingly enlarged in case of delay in the delivery of possession. After taking over the said partial possession, the structures thereon were removed alongwith the machinery. These were sold and alter adding some personal funds, a total sum of Rs.32,00,00,000/- was paid to the respondents. It was then stated that possession of 14 Acres of land under the Labour Colony was delivered towards the end of May, 1998 while the said 10 kanals 9 marlas under litigation still has not been delivered as the litigation is pending. According to the schedule agreed to by the parties in the said agreement dated 1.10.1995, the appellants were required to pay an additional amount of Rs. 1,80,00,000/- within four months from 1.10.1995. After clearing the liabilities of the respondents vis-a-vis some Bank loans, the balance worked out was Rs.55,34,81,000/-. The amount above Rs.50,00,00,000/- was to be paid within one year of 1.10.1995 while the said remaining Rupees Fifty Crore were to be paid in two equal installments on 30.6.1997 and 31.1.1998 i.e. the period of first installment was eight months w.e.f. 1.10.1996 and the second installment seven months from, 30.6.1997. However, this was dependent upon the performance of their part of the contract by the respondents. The appellants were always ready and willing to perform their part of the contract and towards this end they cleared all the Bank loans mentioned in the agreement as detailed in para-14 and over and above they made some cash payments to the respondents. However, after the liquidation of the said liabilities and the removal of encumbrances upon the property, the respondents started a campaign of avoiding the performance of their part of the contract. They issued letters dated 19.10.1999, 23.10.2000 and 5.1.2001 alleging breach of contract. Particular reference was made to the letter dated 19.10.1999 whereby the respondents refused to deliver possession of the remaining land to the appellants and claimed damages and further to claim the balance outstanding of amount of Rs.44,27,77,860/-. Then there is reference to a notice dated 5.1.2001 with the averment that the complete possession has not been given whereas the appellants have obtained Railway land on lease facing Shabnam Cinema on Samundari Road and have also constructed a road and have got a Scheme for carving out plots approved from Municipal Corporation but all this has gone waste because of non-delivery of possession of the Officers Colony. They have also got restored all the utilities. It was then stated that apart from retaining possession of part of the suit land, the respondents are also carrying on their business as a sole agent of Lever Brothers Pakistan Limited and are liable to pay mesne profits as they are holding on to the possession in violation of the agreement. Then there is reference to loss suffered because of the non-performance of the agreement by the respondents. The suit being for all purposes one for specific performance, the prayer made therein is couched in terms of a declaration that the agreement is binding upon the parties and the respondents are liable to perform their part of the contract and that the notices issued are without lawful authority and that the appellant are being unlawfully restrained from performing the agreement in accordance with its terms and that the period for payment of the balance amount as agreed shall commence from the date of delivery of the complete possession. The respondents were also called upon to render accounts for using the premises including the machinery and the goods and to adjust the same in the consideration. A decree for specific performance was prayed for accordingly.
"b. The defendants would also like to record that the permission granted to the plaintiffs to sell the machinery and building material and to take other steps to float the housing scheme was as a gesture of goodwill which is evident from the fact that the different steps were taken by the defendants to facilitate the plaintiffs to implement the agreement on their part although the defendants were not legally obliged to do the same. In the letter dated 10-10-99 the plaintiffs have taken a stand to wriggle out of the agreement by asserting that the defendants have failed to deliver the possession of the property of the Mills under the agreement. The said assertions are misconceived and have no legal sanction as the possession of the property under sale cannot be delivered unless agreed sale price is paid and sale-deed is executed under different clauses of the agreement to sell. From the letter of the plaintiffs dated 10-10-1999 it is reflected that the plaintiffs wanted to get the possession of the entire property without making payment of the sale price and without getting the sale-deed registered which was not the intention of the parties as stated in the agreement to sell dated 01-10-1995."
In reply to Para-15 of the plaint on merits, a vehement denial was recorded that the plaintiffs have possession of any part of the Mills premises. It was further added that the appellants were granted permission only to dismantle the machinery and demolish building of the Mills which activity was abandoned by them since long. It was then clarified that even the said 10 kanals 9 marlas of area under litigation is also in the possession of the respondents. It was also complained that the appellants have sold the machinery, etc. at price higher than one disclosed and that no accounts have been rendered and after a plunder they themselves abandoned the contract. At the same time, they have claimed mark-up on the balance amount due under the contract. In doing so, they have claimed mark-up on the full amount of Rs. Twenty Five Crore representing the second installment but so far as the first installment is concerned, the mark up has been claimed on what is described as the remaining amount of the first installment.
The learned trial Court framed issues on 29.3.2002. These were later amended and ultimately the parties went on trial on the following issues:--
Whether the plaintiffs have not approached the Court with clean hands? OPD
Whether the plaintiffs have violated the terms and conditions of the impugned agreement to sell and if so, whether the agreement to sell rescinded? OPD.
Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
Whether the defendants are entitled to get the claim balance amount with mark up at the bank rate? OPD
Whether the plaintiffs have got no cause of action and locus standi and the suit is liable to be dismissed U/O 7 Rule 11 CPC? OPD
Whether the defendants violated the terms of contract? OPD
Whether the suit of the plaintiff is within time according to the terms and conditions of the contract? OPP
Whether the plaintiffs are ready to make the payment of balance consideration amount? OPP
Whether the plaintiffs are entitled to get specific performance of agreement to sell? OPP
Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 12.6.2004 the learned trial Court dismissed the suit, Issues No. 2, 6 and 9 were discussed in detail and were decided against the appellants. Issues No. 1, 3, 4 and 5 were answered against the respondents. Issue No. 7 was answered against the plaintiffs but without any reasons except that none of the counsel pressed the issue. Issue No. 8 was declared redundant.
3A. Mr. Ahmad Waheed Khan, Advocate/learned counsel for the appellants contends that the learned trial Court has failed to read the pleadings of the parties and consequently has recorded conclusions under Issues No. 3, 6 and 9, which cannot be sustained in this first appeal. According to him, the judgment also suffers from mis-reading and non-reading of the evidence on record particularly in juxta position to the pleadings of the respondents. Mr. Najam-ul-Hassan Kazmi, Advocate/learned counsel for the respondents, on the other hand, contends that notwithstanding the state of pleadings on record, the case has to be decided with reference to the terms recorded in the agreement and then the evidence of the parties. He has pointed out to the statements of several witnesses including those produced by the appellants to urge that possession had been delivered but was later abandoned by the appellants and as such they had no reason to withhold the payment of the balance amount of consideration. The learned counsel also is critical of the prayer made in the plaint as according to him the appellants want the Court to re-write the agreement between the parties in the matter of the time schedule for payment of the balance amount of consideration. Learned counsel argues that the plaint and the evidence led by the appellants is tantamount to varying or contradicting the terms of the agreement in writing and this is not permissible under Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984. Relies on the cases of Hazratullah v. District Council, Haripur (1997 SCMR 1570), Bolan Beverages (pvt.) Limited v. PEPSICO Inc. and 4 others (PLD 2004 SC 860) and Muhammad Akbar Khan v. Sultan Ghani and others (1970 SCMR 696). He vehemently insists that relief of specific performance is dependent upon an absolute readiness and willingness on the part of the plaintiffs, which is absent in the present case. In the matter of the pleadings of his clients, he refers to the case of Haji Abdul Ghafoor Khan through Legal Heirs v. Ghulam Sadiq through Legal Heirs (PLD 2007 SC 433). Gerry's International (Pvt.) Ltd. Through Managing Director v. Messrs Qatar Airways through Area Manager (PLD 2003 Karachi 253) and Syed Sadiq Hussain Shah v. Mst. Saban (1988 CLC 678).
Clause-7 confers all the authority upon the appellants to get the requisite demarcation, survey and plans approved. Clause-8 confers power upon the appellants to enter into agreements for sale of plots and to receive earnest money and further an undertaking by the respondents to execute the sale-deeds on the asking of the appellants. Clause-9 narrates that the respondents agreed to execute powers of attorney for facilitating the alienation. Clause-10 authorizes the appellants to issue advertisements through media for the sale of the machinery etc. and land. Clauses-11 entitles the appellants to file suits for specific performance on denial of the respondents to execute the sale-deeds, etc. Clause-12 narrates that all expenses pertaining to the said 14 Acres of land till the delivery of possession will be borne by the respondents. Clause-13 obliges the respondents to get all utilities restored. Clause-14 provides for resolution of all matters between the parties regarding the said factory and land till the performance of the contract by Mr. Abdul Rehman for the respondents and Sh. Javed Rafi for the appellants. Clause-15 provides for arbitration in case of dispute.
A reading of the said agreement clearly indicates that the matter of possession of the entire land except the plot No. 3 under litigation was of significance in the matter of performance of the terms of the agreement by the parties. This is evident from the provisions with reference to the said 14 Acres of land under the Labour Quarters whereby provision was made for enhancement of the period of performance proportionate to the time spent in getting the land vacated. We have reproduced Clause-6 of the agreement above. To our mind the parties did contemplate some other reason as well causing obstruction in the matter of performance of the contract in accordance with its terms and provision was made for extension of time.
Mr. Najam-ul-Hassan, Advocate/learned counsel for the respondents wants us to read the agreement and the plaint then to proceed directly to the evidence without considering the written statement filed by his clients. We have already noted in detail above that there is no denial whatsoever rather it has been insisted by the respondents in the written statement that they were not agreeable to hand over possession without first being paid by the appellants. The judgments cited by learned counsel for the respondents as noted above have been examined. All these judgments pertain to an implied admission within the meaning of Order VIII Rule 5 CPC. In the present case, nothing has been left to any implication. The pleadings of the parties cannot be stated to be random neither the pleas can be stated to be result of inadvertence. On the other hand, the record clearly shows that the respective stance taken by both the parties was well considered and, in fact, has been taken long before the commencement of the present litigation in their respective communications to each other. We have already noted above that letter dated 19.10.1999 (Ex.PW-16/8) is to be treated as a part of the Written statement itself as stated by the respondents in their written statement. The relevant para of the written statement reproduced by us above is, in fact, verbatim reproduction of para-5(b) of the said letter addressed by the respondents to the appellants and repeatedly referred in their written statement. Till date no attempt has been made to amend the written statement. The impugned judgment is completely silent as to the said contents of the written statement although some portions of the pleadings have been reproduced therein. We, therefore, do hold that the respondents not only admitted but insisted in their written statement that the complete possession was not delivered and that it could be delivered only after payment of the amount of consideration as stipulated in the agreement. So far as the oral evidence is concerned, suffice it to say that the plea ultimately taken in the course of evidence that possession was delivered of the entire land could not have been taken or even allowed to be taken being violative of the rule of "Secundum allegata Jet probata." Reference be made to the cases of Amir Shah v. Ziarat Gul (1998 SCMR 593) Binyameen and 3 others v. Chaudhry Hakim and another and (1996 SCMR 336). We have examined evidence as well and the over all impression we get is that part of the land including the Mills or Factory was handed over but some part was not so handed over. Now coming to the contention of Mr. Najam-ul-Hassan Kazmi, Advocate, with reference to Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984, we find that it is not at all a case of oral evidence pertaining to any change in the terms of the agreement. So far as the appellants are concerned, they are complaining about the breach of the agreement where under they were required to pay the balance amount of consideration after the delivery of entire possession. In fact, it is the case of the respondents in the written statement that the balance amount was to be paid before the delivery of the possession. The precise contention is that possession cannot be delivered without payment of consideration. In the said case of Hazratullah, a condition was pleaded and sought to be proved regarding the closure of a Bus Stand. The entire agreement was reproduced and it was held that no such condition is there in the agreement and could not be added to it on the basis of oral evidence. The judgment in the case of Bolan Beverages (Pvt.) Limited was recorded in a case arising out of an order deciding an application for temporary injunction. The said case of Hazratullah was referred to Accordingly in connection with what was being pleaded as an agency agreement. In the said case of Muhammad Akbar Khan, some land was sold by Muhammad Akbar Khan to the respondents in the said case by means of a registered sale-deed which narrated that the entire amount of consideration has been paid. The respondents filed a suit for possession of the land sold. Initially, the appellant before their lordships admitted the receipt of balance amount consideration. However, later he got his written statement amended to urge that no amount of consideration has been received. With reference to all the attending circumstances and the peculiar facts of the said case, it was held that the said Muhammad Akbar Khan is bound by the recital in the sale-deed notwithstanding the alteration in the amount of consideration.
To our mind, the rule laid down in the said cases with reference to the facts thereof is not attracted to the present case. The said provision of law bars any variation in the terms of the contract on the basis of oral evidence. In the present case, the fact that the entire possession was not delivered stands admitted in the written statement itself. The receipt of a sum of Rs.31,04,37,529/- is admitted. There is also no denial that all the banks have been paid off. The admitted receipts leaves the balance less than Rs. Fifty Crores. We, therefore, do find that the appellants were ready and willing to perform their part of the contract and were prevented from performing the remaining part in view of non-delivery of possession of the entire land as agreed to by the parties. The findings on issues 2, 6 and 9 are accordingly reversed. So far as Issue No. 7 is concerned, even going by the pleadings of the parties, the date stipulated for performance has yet not expired and there is no question of the suit being barred by time. We have already noted above that the learned trial Court has proceeded to decide the issue against the appellants only for the reason that none of the counsel has pressed the same. Other issues have already been answered by the learned trial Court against the respondents and the findings have not been agitated before us. the RFA is accordingly allowed. The impugned judgment and decree dated 12.6.2004 of the learned trial Court is set aside and the suit filed by the plaintiffs-appellants against the defendants-respondents is decreed. Coming to the question of relief. We have already referred to all the contents of agreement (Ex. P.1) above. It is certainly an extraordinary document. We have already held above that the payment of the remaining amount of consideration is dependent upon the delivery of the entire land. We, therefore, direct that the respondents shall immediately deliver possession of the entire land subject matter of the agreement (Ex.P.1). This will be simultaneously followed by the payment of the remaining amount of the first installment i.e. Rs. 17,95,62,471/- while the second and the last installment of Rupees Twenty Five Crores shall be paid seven months after the said date when the possession is delivered and the said first installment is paid. While so ordering we are taking into account the time taken by this litigation. Upon delivery of possession and the payment of the entire amount, the agreement shall be performed on its terms by the parties.
The records be remitted back immediately.
(M.S.A.) RFA allowed.
PLJ 2009 Lahore 849 (DB)
Present: Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ.
Sh. MUHAMMAD SALEEM and others--Appellants
versus
SAADAT ENTERPRISES (PVT.) LIMITED through its General Manager and General Attorney, Lahore
and 2 others--Respondents
RFA No. 284 of 2004, decided on 11.11.2008.
Arbitration Act, 1940 (X of 1940)--
----Ss. 14 & 17--Arbitration--Award was made on basis of arbitration grant unsigned document--Application for making the award rule of Court--Arbitration agreement was executed regarding rendition of accounts--Application was dismissed--Question needs determination is that arbitration agreements can bind the company and named arbitrators can enter upon the reference on the basis of the agreements--Dispute on basis of unsigned arbitration agreement--Validity--Dispute on the basis of unsigned arbitration agreement, cannot be resolved through arbitration, unless it is proved that the parties intended for resolution of their dispute through arbitration--Held: Award cannot be made rule of the Court, as arbitration agreements, which resulted into arbitration proceedings and an award, have not been signed on behalf of company, are devoid of any illegality or legal infirmity--Further held: Arbitration agreement, having been executed by an unauthorized and incompetent person renders other issues are redundant--Appeal was dismissed.
[Pp. 854 & 855] A, E & F
Contract Act, 1872 (IX of 1872)--
----S. 10--Agreement is contract only when it is made by parties competent to contract--Held: An agreement on behalf of a company, has to be signed by a competent on behalf of a company, has to be signed by a competent authorized person--Company is an artificial person and it can enter into a contract through its agent, is appointed according to requirements of Memorandum of Association. [P. 854] B
Contract Act, 1872 (IX of 1872)--
----S. 283--Contract has to sign the deed on behalf of company--Contract by agent is void, if it is made in excess of and beyond the scope of his authority, within the contemplation of S. 228 of Contract Act.
[P. 854] C
Company Ordinance, 1984 (XLVII of 1984)--
----S. 283--Power of arbitrator--Company can refer an existing or future dispute between itself and other person through a written agreement--Validity--Arbitration award has been announced without examining that no written agreement was in existence on behalf of company for referring the matter to arbitration--Arbitrator had no authority to refer the matter to arbitration--Award on such score alone, is not sustainable in the eyes of law and rightly held so by trial Court. [P. 854 & 855] D
Mirza Hafeez-ur-Rehman, Advocate for Appellants.
M/s Sh. Naseer Ahmad and Mr. Aleem Baig, Advocates for Respondents.
Date of hearing: 18.9.2008.
Judgment
Syed Hamid Ali Shah, J.--Property Bearing No. 6-R-64-S, commonly known as Srinagar Market and Hotel, is a three storey building, in the name and ownerships of a private company (limited by shares) i.e. Saadat Enterprises (Pvt.) Ltd./Respondent No. 1. The assets and liabilities of Saadat Construction Company (a partnership concern), stood transferred to Respondent No. 1, at the time of it's incorporation. Case of the appellants, as set out in the memorandum of appeal, is that appellants and Khawaja Safdar Ali, agreed to raise new construction, after demolition of the existing construction at the aforementioned property, in a manner that both the parties will invest and share profits equally. Respondent resiled from it's contractual obligation, which led to referring the dispute to arbitration through named arbitrators (Respondents No. 2 & 3). Khawaja Safdar Ali, General Manager of Respondent No. 1, signed the arbitration agreement dated 05.08.1991, whereby the parties agreed for arbitration and Respondents No. 2 & 3, were appointed as arbitrator. Another arbitration agreement dated 12.08.1991 (Exh.A/1) was executed and signed by appellant No. 1, whereby the consent for resolution of the dispute through the named arbitrators, was reduced into writing, regarding rendition of accounts. Named arbitrators, gave their award by concurrence, on 22.08.1991. The arbitrators divided the property equally between the two parties. Respondent. No. 1 moved an application on 18.09.1991 by invoking provisions of Section 14 of the Arbitration Act, for filing the award in the Court and for permission to file objections to the award. Appellants also moved an application under Sections 14 and 17 of the Arbitration Act of 1940, for making the award rule of the Court. Learned trial Court directed the arbitrators to file the award in the Court, which was accordingly filed on 02.07.1992. Respondent No. 1 filed objection to the award on 18.07.1992. Learned trial Court framed issues and recorded the evidence of the parties and thereafter, vide order dated 26.03.1996, remitted the award back to the arbitrators, for it's re-filing in the Court after incorporating the reasons. Parties again appeared before the appointed arbitrators and were heard. The arbitrators announced the award with proper reasoning on 31.03.1996. Learned Court, vide impugned judgment and order dated 04.03.2004. dismissed the application for making the award rule of the Court. Hence this appeal.
Learned counsel for the appellants has submitted that the objections, on award, were not filed within the prescribed period. Objections beyond the time, have no value and it is the duty of the Court, in such circumstances, to reject objection and to make the award rule of the Court. Learned counsel supported this contention by referring to the cases of "Province of West Pakistan (Punjab) through Secretary Irrigation and Power Dept. and another Vs. Mian Abdul Hamid and Co." (1985 CLC 1170). "Mst. Ghafooran Bi Vs. Abdul Hafeez etc." (NLR 1994 CLJ 56), "Muhammad Suleman Khawar Vs. Board of Directors, Singh Provincial Cooperative Bank Ltd. Karachi and two others" (PLD 1989 K 261) and "Province of Balochistan Vs. Tribal Friends Company, Loralai" (PLD 1938 Quetta 321). It is contended further by learned counsel for the appellant that period of 30 days, for filing the award, cannot be extended by the Court. Reliance in this regard was placed on the cases of "Province of Punjab through it's Secretary Communication and Works Dept. Lahore vs. M/s M.A. Rashid Saeed Alam Khan" (NLR 1990 AC 679). "Muhammad Iqbal Vs. Riaz Sabir" (1984 CLC 2375). "A. Qutab ud Din Khan vs. Chec Mill Wala Dredging Co. (Pvt.) Ltd. Karachi" (2001 MLD 115) and "Project Director Peoples Programme Vs. Kh. Muhammad Sarwar" (1989 CLC 1030). Learned counsel added further that by failing to file objections within the stipulated period, valuable rights accrue to a party in whose favour, award has been given by the arbitrators. Learned counsel, in this regard, found support from the cases of "M/s International Development Association Limited V. Shaheen Foundation P.A.F." (1986 MLD 1753). "Mst. Waqar Bano Vs. Syed Sher Ali and others" (1987 MLD 146). Learned counsel has referred to the concise statement of the petition for leave to appeal filed by the respondents, wherein it was admitted that the arbitrators were appointed. He then referred to it's clause `K', which transpires that Khawaja Safdar was general attorney of respondent and represented the principal. Reference was then made to the written agreements of Khawaja Safdar Ali. Having referred to these documents, it was contended that Respondent No. 1 participated in arbitration proceedings and the party participating in the arbitration proceedings, is debarred from challenging the validity of arbitration agreements While referring to the case of Chief Engineer Building Department Vs. Pakistan National Constructions" (1988 SCMR 723), it was submitted that acquiescence of counsel or of agent, binds the principal. Learned counsel went on to argue that rejection of application vide order dated 13.12.1999 for correction of order sheet; dismissal of revision petition (C.R.No. 1892-1999), vide order dated 12.12.2001 and dismissal of transfer application (No. 186-2000) vide order dated 06.04.2000, prove that Khawaja Safdar Ali is general attorney of Respondent No. 1 Learned counsel has referred to the cases of "Haji Ilyas, Haji Esa and 9 others Vs. Haji Ahmad and 7 others (1987 CLC 2509). "Abaid Ullah Khan Vs. Inayat Ullah Khan" (NLR 1998 civil 581) and "M/s James Construction Co. (Pvt.) Limited through Executive Director vs. Province of Punjab through Secretary to the Govt. of Punjab (Communication and works) Dept. Lahore and others" (PLD 2002 SC 310) and contended that unstamped award or arbitration agreement is a curable defect.
Learned counsel for the respondent has contended that Khawaja Safdar Ali was appointed as attorney by Saadat Construction, a partnership concern. He added that Saadat Enterprises (Pvt.) Ltd. is distinct entity from Saadat Construction and the former had never appointed Mr. Safdar as it's attorney. The company never participated in the arbitration proceedings and the respondent came to know about the award, when it's announcement was conveyed through mail on 25.08.1991. Learned counsel has contended that property vests in the name and ownership of the company and Appellant No. 1, while appearing as A.W-1, has admitted that Khawaja Safdar owed them money and the amount was never given to Saadat Enterprises. The witness further stated that they (petitioners) have their dispute with Mr. Safdar. Learned counsel has vehemently argued from the perusal of arbitration proceedings that respondent never participated in the arbitration proceedings or marked himself present or had recorded any statement. The award is the result of collusion. Arbitration agreement is on a stamp paper, which "Anjuman-e-Tajran" has purchased. Anjuman is not a party to the arbitration proceedings. Learned counsel has submitted that one of the arbitrators (Abdul Waheed) has stated that due to his hospitalization in Mayo Hospital, he has not written the award himself and got it written through a writer ( ), while the fact is that so called the arbitrator, was not admitted in the hospital during those days. Learned counsel has submitted that instant appeal is not competent and supported this contention by referring to the cases of "Dr. Khalid Malik and 2 others Vs. Dr. Farida Malik and 7 others" (1994 MLD 2348) and "Puppalla Raurupu Vs Nagidi Apalaswami" (AIR 1957 Andra Pardesh 11).
Heard learned counsel for the parties and record perused.
Learned trial Court, while dismissing the application of appellant for making the award rule of the Court, has found Khawaja Safdar Ali, who statedly signed and executed arbitration agreement on behalf of company, had no valid authority to enter into a valid agreement, on behalf of the company. It has been observed that the respondent has not conferred him an authority through resolution of board of director in this regard. To ascertain that findings of the Court are correct conclusions, it will be advantageous to examine the arbitration agreements before analyzing the above conclusion of learned trial Court. There are three arbitration agreements. First agreement dated 05.08.1991, is on a stamp paper of the value of Rs. 10 (ten), wherein Saadat Enterprises (Pvt.) Ltd., through their General Manager Khawaja Safdar Ali, acknowledged that two sums i.e. Rs.3,00,000/- (three lacs) and Rs. 1,45,000/- (one hundred and forty five thousands) are outstanding against the appellants as loan/advance for sales, in the accounts of company. It is mentioned in this document that, Shop No. 11, in the ground floor; has been allocated to Fazal Din (predecessor of petitioners), against these amounts. Two arbitrators namely Malik Abdul Waheed and S. M. Sadiq Shah were appointed for the purpose of determination of accounts. Second agreement, dated 12.08.1991 (Exh A/1), having the same title i.e. " ", is on a stamp paper of the value of Rs.40 (forty). It pertains to the same property (S-64-R-6), but amount of investment mentioned therein is Rs. 14,42,176/-. It is stated in this document that property in dispute, was purchased from the investment of appellants and they have equal share in the investment and also in the profits. There is also mention of two agreement dated 14.05.1990 and 24.12.1990 in this document, whereby the parties agreed for the resolution of dispute through arbitration, but the arbitrators could not announce the award. The dispute was referred to the same arbitrators once again. This agreement is signed by Appellant No. 1 and his late father (Sheikh Fazal Din). Third arbitration agreement (Exh. A/2) is undated and executed on a rough (plain) paper. Here in this agreement, there is no mention of the company or it's assets. The agreement is between the appellant and his late father on one hand and Khawaja Safdar Ali, on the other hand. Same arbitrators have been appointed, but the dispute as mentioned in this document is:--
All the three agreements have different subject matters or the dispute. First agreement pertains to an amount of Rs. 4,45,000/- Second pertains to Rs. 14,42,176/-, while third speaks about some verbal arrangements. First agreement has been signed by Mr. Khawaja as G.M. of the company, second has not been signed by him, while third agreement transpires that it was signed by him in his personal capacity. Third agreement, as is evident from it's title is in the form of an application, but it's contents transpire that it is an arbitration agreement. These agreements run counter to each other.
Perusal of the record reflects that the award was made/announced on the basis of arbitration agreements dated 05.08.1991 and 12.08.1991. Arbitration agreement dated 05.08.1991 is with regard to a dispute of an amount of Rs.4,45,000/- and pertained to Shop No. 11 at ground floor. The other agreement dated 12.08.1991 provides for a dispute in respect of Rs. 14,42,176/-, which the appellants have given to Khawaja Safdar Ali, statedly for construction and purchase of Property No. S-64-R-6. This agreement has not been signed by any one, on behalf of company or by Khawaja Safdar Ali in his personal capacity. The dispute, on the basis of unsigned arbitration agreement, cannot be resolved through arbitration, unless it is proved that the parties intended for resolution of their dispute through arbitration. The question, which needs determination is that these arbitration agreements can bind the company and named arbitrators can enter upon the reference on the basis of these agreements.
According to Section 10 of the Contract Act, 1872, an agreement is contract only when it is made by the parties competent to contract. An agreement, on behalf of a company, has to be signed by a competent/authorized person. Company is an artificial person and it can enter into a contract, through it's agent, who is appointed according to requirements of Memorandum of Association and Articles of Association of the company. Normal mode is through a resolution of board of directors of the company. A third party dealing with the agent of company, cannot rely upon the apparent authority, but is bound to acquaint himself with Memorandum and Articles of Association of the company. As authority for this proposition, the reference can be made to the cases reported as (1937) 1 All LR 231 and (1982) 52 Company Cases 293. A director is an individual and has no power to act on behalf of company. He is one among the body of directors called board and alone has no power except the one delegated to him by the board. General Manager figures, nowhere in the affairs of the company. His status is that of an employee and cannot act on behalf of the company. His act binds the company only when his appointment, as an agent, is made in writing and conferred by the board of directors through a resolution and under seal. Section 196 of the Companies Ordinance, 1984, provides that business of the company is managed by the board of directors by means of a resolution passed in the meeting, while Section 212 provides that person empowered on behalf of the company to enter into contract, has to sign, the deed on behalf of the company under his seal. A contract by agent is void, if it is made in excess of and beyond the scope of his authority, within the contemplation of Section 228 of the Contract Act, 1872. Section 283 of the Ordinance, 1984 envisages that company can refer an existing or future dispute between itself and other person through a written agreement. The arbitration award has been announced without examining that no written agreement was in existence on behalf of company for referring the matter to arbitration. Khawaja Safdar Ali had no authority to refer the matter to arbitration. The award, on this score alone, is not sustainable in the eyes of law and rightly held so by learned trial Court. Participation in arbitration proceedings, if any, by Khawaja Safdar Ali, does not validate the proceedings, if his participation is without a valid authority. The findings of learned trial Court that award cannot be made rule of the Court, as the arbitration agreements, which resulted into arbitration proceedings and an award, have not been signed on behalf of company, are devoid of any illegality or legal infirmity. The reasons, which the arbitrators have submitted, are also erroneous conclusions. The arbitrators have found that payment made by the appellants to the tune of Rs. 7,25,000/- was for the purchase of property. The arbitrators, while reaching this conclusion, have relied upon Para-5 of letter dated 18.03.1988 of Zafar Shah and Company (Chartered Accountants), which was addressed to ITO Circle III, Zone A. Perusal of letter shows that the said amount is shown as loan/advance and not money paid towards purchase of property, as concluded by the arbitrators. Arbitrators cannot interpret a document in a manner to replace their own view, as against the express stipulation in that document. The amount of Rs.7,25,000/-, according to letter dated 18.03.1988, is loan or advance and it cannot be given any other meaning so that it be interpreted as investment for the purchase of property.
Discussion on other issues, is unnecessary, as the decision that arbitration agreements, having been executed by an unauthorized and incompetent person, renders other issues as redundant. Therefore, we will not dilate upon them.
For the foregoing, the judgment impugned, in this appeal, is upheld. This appeal has no merit and is accordingly dismissed with no orders as to the costs.
(R.A.) Appeal dismissed.
PLJ 2009 Lahore 855
Present: Maulvi Anwar-ul-Haq, J.
ALLAH DITTA SHAHEEN--Appellant
versus
KHALID SHAFIQ and others--Respondents
RSA No. 62 of 1985, heard on 18.11.2008.
Contract Act, 1872 (IX of 1872)--
----S. 208--Power of attorney admittedly executed--Later on it was revocked through Abtalnama--Effect--Held: Cancellation of the same must be notified to the attorney as is mandated by the S. 208.
[P. 858] A
Principle of lis pendence--
----Effects of principle of lis pendence--Held: Only effect of doctrine of principle of lis pendence is that it would not effect the rights of the other parties. [P. 859] B
Power of Attorney--
----Power of attorney has no nexus with pre-emption suit filed by attorney on behalf of principal. [P. 859] D
Bona fide Purchaser--
----Matter of bona fide purchaser--Alienation made during pendency of the suit will not be void--Plea of bona fide purchaser would be available to transferee pendente lite notwithstanding the result of the suit. [P. 859] C & E
Rana Muhammad Anwar, Advocate for Appellants.
Malik Noor Muhammad Awan and Mr. Ishfaq Qayyum Cheema, Advocates for Respondent No. 1.
Nemo for Respondents No. 2 & 3.
Dates of hearing: 12.11.2008 & 18.11.2008.
Judgment
This RSA was allowed by this Court vide judgment dated 22.03.2001 for reasons stated therein and the suit filed by the appellant for specific performance of an agreement to sell was decreed. Respondent No. 1 (Khalid Shafiq) filed C.P. No. 1899-L-01 which was allowed and the judgment was set aside by the Hon'ble Supreme Court of Pakistan vide judgment dated 04.08.2004. The said judgment is based on the agreement of the learned counsel who were present. The agreement was that the judgment be set aside and the RSA be directed to be decided afresh after providing opportunity of hearing to all concerned with liberty to Respondent No. 1 to put forward pleas in respect of issues which were abandoned by him before the appellate Court as well as the High Court. After remand only the appellant and Respondent No. 1 put in appearance. No one turned up for Respondents No. 2 & 3. The case has been reheard accordingly. The facts and reasons for setting aside of the judgment of learned Courts below are contained in the said judgment and I need not to reproduce the same here, rather, this judgment shall be read into a part of the said earlier judgment for what is to follow. Learned counsel for Respondent No. 1 has very candidly conceded that the judgments as recorded by the learned Courts below have been correctly set aside for the reasons stated in my judgment dated 22.03.2001. They, however, addressed on the issues which were never agitated before the learned Courts below and which this Court is obliged to answer in the light of above noted judgment of Hon'ble Supreme Court of Pakistan. Malik Noor Muhammad Awan, Advocate led arguments for Respondent No. 1. He contends that the earlier judgment fails to refer to the written statement actually filed by Respondent No. 1 and available at pages 191 and 192 of the trial Court file wherein he has pleaded to be a bonafide purchaser for consideration and has alleged collusion inter se the Respondent No. 2 (attorney) and the appellant. Further contends that the land described in the power of attorney Ex.P. 1 is different from the land mentioned in the agreement Ex.P.2; that the power of attorney being in respect of land which is yet to be allotted is ineffective; that the power of attorney was cancelled vide "Abtaal Nama" Ex.D.8, executed on 17.02.1976 whereas the agreement Ex.P.2 was also executed on the same date. Contention is that it can be assumed that the agreement was executed after cancellation of the power of attorney; Respondents No. 2 & 3 ultimately colluded with the appellant and conceded his case to the detriment of Respondent No. 1; that notwithstanding the fact that the sale in favour of Respondent No. 1 is pendente lite, the rule of lis pendence would not apply. Lastly contends that power of attorney is to be construed strictly and since there is no express power of entering into an agreement to sell, the agreement is without lawful authority. He relies on the cases, "Muhammad Nawaz Khan vs. Muhammad Khan and two others" (2002 SCMR 2003), "Qadir Bukhsh and 10 others vs. Kh. Nizam ud Din Khan and 4 others" (1997 SCMR 1267) and "Bashir Ahmad and others vs. Mst. Nasim Fatima and others" (2001 CLC 1447). Rana Muhammad Anwar, Advocate, learned counsel for the appellant on the other hand, contends that the power of attorney was granted for acquiring alternate land to the land mentioned in the same. According to him correctly the written statement was referred in the earlier judgment as material facts were not denied; that the power of sale included the power to agree to sell the land. He has sought distinguish to the judgments cited by Malik Noor Muhammad Awan, Advocate as to the power of attorney being ineffective qua the land yet not acquired. Denies any collusion inter se the appellant and Respondents No. 2 & 3. According to him, the plea of bonafide purchaser was not available to the Respondent No. 1.
Apart from the fact that there was no denial of the said document even in the written statement originally filed by Ghulam Muhammad, Respondent No. 2, rather, his case was that he had cancelled the power of attorney. The document was proved by producing Abdul Rehman, PW-1, Scribe. Needless to state that Ghulam Muhammad never entered the witness box to prove the allegation that the power of attorney was got incorporated through fraud, on the other hand, he did enter the witness box in the course of compromise and proceeded to state that he had received the money and further that the attorney was duly appointed who had paid all the price of the land to the Government. PW-5 is the appellant and not a single question was put to him regarding the execution of the said document. It is true that the "Abtaal Nama" Ex.D.8 was executed on 17.02.1976. (Incidentally it does not at all refer to any fraud or any absence of power of sale in the power of attorney). It was presented for registration on 18.02.1976 but nothing turns on the same, the reason being that there being no plea and of course no evidence that the admitted attorney or the appellant was notified of the said cancellation as is mandated by Section 208 of Contract Act, 1872. The power of attorney Ex.P.1 narrates that the land mentioned therein was allotted to the doner but has been cancelled and he is not able to procure alternate land and he is appointing Respondent No. 3 as an attorney accordingly with the powers narrated therein. It is admitted position on record that it was Abdul Jabbar, attorney who got the alternate land allotted and finally confirmed and proprietary rights were also conferred. It is further admitted fact that the land subject matter of the agreement Ex.P.2 and consequently of the suit is the land that was transferred in the alternative. The contention as to the land being different hardly merits any consideration.
The contention that the power of alienation could not have been conferred regarding the land which was not owned by the Respondent No. 2 at the time of execution of the document, is sought to be supported on the basis of said case of Qadir Bukhsh and 10 others, decided by the Hon'ble Supreme Court and followed by this Court in the case of Bashir Ahmad and three others. I have examined the said judgments. Both the cases arose out of a pre emption suit. I may note here that in the said case of Qadir Bukhsh, the contents of power of attorney stand reproduced at pages 1272 and 1273 of the report. It narrates that the principal owns land in District Multan and since he is unable to manage the same, he is appointing an attorney. The attorney proceeded to file a suit for possession by pre emption in respect of land which was located in Qadir pur Distt. Vehari. It was in the said context that his Lordships held that the said power of attorney has no nexus with the pre emption suit filed by the attorney on behalf of the Principal. The facts of said case of Bashir Ahmad, decided by this Court are some what similar. In the present case the power of attorney is couched in a manner which leaves no manner of doubt as to the purpose for which the attorney was appointed i.e. obtaining the alternate land and then inter alia to alienate the same.
The contention of Malik Noor Muhammad Awan, Advocate as to the absence of express power as to entering into an agreement to sell also does not hold much water. It has been found as a fact that the earnest amount of Rs. 18000/- was received by Ghulam Muhammad himself through receipt Ex.P.3 and otherwise also the power to receive consideration being expressly given, needless to state that it includes part of consideration as well.
Coming to the matter of bonafide purchaser regarding which the learned counsel has otherwise conceded, in the said case of Nawaz Khan, Hon'ble Supreme Court held that alienation made during the pendency of the suit will not be void. The only effect of doctrine of principal of lis pendence is that it would not affect the rights of other parties. The judgment does not at all give an impression that the plea of bonafide purchaser would be available to the transferee pendente lite notwithstanding the result of the suit. So far as the allegation of collusion is concerned, the same goes both ways. The appellant has admitted that Ghulam Muhammad was personally known to him and that his son is his class fellow. Both of them live in the same village and the sale having taken place after institution of the suit, the plea of absence of knowledge would be of no avail.
For the reasons recorded in the judgment dated 22.03.2001 as also herein above, this RSA is allowed. The impugned judgments and decrees are set aside and the suit filed by the plaintiff/appellant is decreed against the defendant/respondents. No orders as to costs. Records of learned Court below be remitted back immediately.
(R.A.) RSA allowed.
PLJ 2009 Lahore 860
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
Syed NAWAB SHAH--Appellant
versus
Mst. FARHEEMA ALTAF--Respondent
SAO No. 6 of 2007, decided on 11.11.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment petition--Denial of relationship of landlord and tenant--Question of--Whether mere denial of relationship of landlord and tenant is a ground for ejectment when tenant commits no default for payment of rent--Determination--Held: Mere denial of relationship of landlord and tenant is no ground for an ejectment and whenever ejectment order is passed on the ground of denial of such relationship, the Court firstly declare the tenant as defaulter.
[P. 864] D
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment petition--During subsistence of the lease agreement respondent had purchased the property from her sister through agreement to sell on the basis of which new tenancy through an oral agreement was allegedly created between respondent and appellant--Validity--Lease agreement regarding same premises could not have been executed for a period of five years--Held: Appellant rightly denied tenancy as alleged by respondent in her ejectment petition as no tenancy could have been created between respondent and appellant as respondent had failed to prove the same. [P. 862] A
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment petition--Oral tenancy--During subsistence of lease agreement, respondent purchased the property in-question through an oral agreement--New oral tenancy when had no title cannot be accepted to establish--Validity--No other evidence to prove the tenancy or recovery of any rent--Held: Respondent had miserably failed to establish her contention as regards oral tenancy--Appeal was accepted. [P. 863] B
Landlord and Tenant--
----Oral tenancy--Relationship of landlord and tenant under alleged tenancy--Validity--Party can only succeed according to what was alleged and proved. [P. 863] C
PLJ 1980 Kar. 230 ref.
Ejectment petition--
----Relationship between landlord and tenant--Default in payment of rent--Held: Mere denial of relationship between landlord and tenant is not at all the ground for an ejectment unless and until the tenant commits default in payment of rent. [P. 864] E
Mr. Muhammad Amir Bhatti, Advocate for Appellant.
Mian Amjad Ali, Advocate for Respondent.
Date of hearing: 6.11.2008.
Judgment
Through this second appeal, Syed Nawab Shah/appellant has challenged order dated 29.11.2006 passed by the learned Rent Controller, D.G.Khan, whereby ejectment petition filed by Mst. Farheema Altaf/respondent for vacation of shop was accepted and judgment dated 23.1.2007 passed by the learned Additional District Judge, D.G. Khan, whereby the appeal filed by Syed Nawab Shah/appellant against the order of learned Rent Controller was dismissed.
Brief facts of the case, according to ejectment petition filed by petitioner/respondent Mst. Farheema Altaf, are that she purchased the disputed shop from her sister Mst. Kaneezan Rehman on 29-1-2004 and informed that fact to the defendant Syed Nawab Shah through notice. Further alleged that through oral agreement the monthly rent was fixed as Rs. 3000/-. Prior to this sale a rent agreement had been executed between sister of the petitioner and the Respondent. It is also alleged that from the month of October, 2004 onward the respondent had committed default in payment of rent; that shop in question was in a dilapidated condition and the respondent wanted to reconstruct the same, therefore, she needed the property for the purpose of its reconstruction as well as for personal need. Hence the respondent filed ejectment petition, which was accepted and the appeal preferred by the appellant was also dismissed, hence this SAO.
Arguments from both the sides have been heard at langth and record perused.
The property in question was owned by Mst. Kaneezan Rehman, who sold the same to her real sister when tenancy was in existence under rent deed, which was executed for a period of five years. Admittedly, no notice under Section 13 of the West Pakistan Rent Restriction Ordinance, 1959 was given by the purchaser/present landlady to the appellant against whom both the Courts below have passed ejectment order. At the first round, the Rent Controller decided three issues against him, which are reproduced hereunder:
ISSUES:
Whether the relationship of landlord and tenant exists between the parties? OPA
Whether the respondent is willful defaulter from the previous six months? OPA
Whether the petitioner bona fide in personal need of suit property? OPA
All the issues were decided against the appellant, who went in appeal before the learned District Judge, who set aside the order of the learned Rent Controller to the extent of latter two issues i.e. relating to default in payment of rent and personal need but order passed by the Rent Controller was sustained to the extent of Issue No. 1. The appellate Court while passing the impugned order observed that since the appellant has denied the relationship of landlady; as such she is entitled for ejectment.
The crucial point which need to be considered is relating to Issue No. 1 which required the landlady/respondent to prove the existence of tenancy between the parties qua the demised premises. As per averments in the ejectment petition, Mst. Kaneezan Rehman, the sister of the respondent was owner/landlady of the suit property and the tenancy between her and the appellant was created through lease agreement dated 19-7-2004 (Ex.R-1/A) for a period of five years and during subsistence of this lease agreement, the respondent alleged that she had purchased the said property from her sister through agreement to sell on 29-1-2004 and on the basis of which new tenancy through an oral agreement was allegedly created between the respondent and the appellant and monthly rent was settled from Rs.2700/- to Rs. 3000/-which tenancy was to commence w.e.f. 29-1-2004.
At this juncture, it is significant to note that had any agreement to sell been executed on 29-1-2004 as alleged by the respondent, the lease agreement (Ex.R-1/A) dated 19-7-2004 regarding the same premises could not have been executed between Mst. Kaneeza Rehman (ex-landlady) and the appellant for a period of five years. The appellant rightly denied the tenancy as alleged by the respondent in her ejectment petition as no tenancy could have been created between the respondent and the appellant as the respondent had failed to prove the same. She did not either produce/tender any agreement to sell dated 29.1.2004 for establishing her contention that she had purchased the demised premises from her sister namely Mst. Kaneeza Rehman and she created new tenancy through an oral agreement. On the other hand rent agreement Ex.R-1/A clearly shows that till 19-7-2004 Mst. Kaneeza Rehman (ex-landlady) was showing herself to be the owner of the demised premises when she executed the said document in favour of the appellant. Similarly, it is not undeniable that respondent purchased the demised premises under the registered sale-deed (Ex.R-9) dated 29.11.2004 and no notice for the change of ownership was given to the appellant by the respondent even after the execution of sale-deed. Thus, the respondent was neither empowered to claim herself as owner of the demised premises w.e.f. 29-1-2004 nor had right to claim the appellant as her tenant on the basis of alleged agreement to sell dated 29-1-2004. Admittedly, she did not rely upon the tenancy existing between Mst. Kaneeza Rehman (ex-landlady) and the appellant and all the rights ensuing there-from and instead dubiously designed a new tenancy to make her claim plausible. There is no cavil with the proposition that the question of tenancy caries certain advantages and must be proved by evidence on a very high order and it cannot be proved by mere oral evidence. Mere assertion of respondent as regards alleged new oral tenancy when she had no title cannot be accepted to establish the same. The respondent has neither produced nor proved the execution of agreement to sell in her favour nor proved the fact that the alleged agreement clothed her with right to recover the rent and seek eviction of the tenant. There is absolutely, no other evidence to prove the said tenancy or recovery of any rent there-under and, as such, I am constrained to hold that the respondent has miserably failed to establish her contention as regards oral tenancy allegedly incepted on 29-1-2004 and the appellant had rightly denied the relationship of landlord and tenant under the alleged tenancy.
It is settled law that the party can only succeed according to what was alleged and proved. Reference in this respect is made in 2005 SCJ-474 and PLJ 1980 Karachi-230. As such the appellant has rightly denied his relationship as tenant with the respondent on the basis of oral tenancy as alleged in the ejectment petition. Subsequently, when the appellant was aware of the execution of the sale-deed, he admitted the respondent as landlady under the tenancy agreement executed between the previous owner i.e. Ex.R-1/A and the rent deposited by the appellant under the term of existing rent agreement was also withdrawn by the respondent after completing the round of litigation up to this Court in Writ Petition No. 7032/05 titled Mst. Farheema Altaf vs. Rent Controller and the Appellant.
It is also an admitted fact that finding of Rent Controller against issues No. 2 and 3 were reversed by the First Appellate Court who while passing an order dated 23-1-2007 observed that appellant was neither willful defaulter nor the demised premises was required by the respondent for her personal need and after knowing this fact, respondent did not file any appeal against such findings. As such, she had accepted the same. Now question which also needs to be decided is that whether mere denial of relationship of landlord and tenant is a ground for ejectment when the tenant commits no default for the payment of rent. From the bare reading of Section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 I am of the considered view that mere denial of relationship of landlord and tenant is no ground for an ejectment and whenever ejectment order is passed on the ground of denial of such relationship, the Courts firstly declare the tenant as defaulter and the tenant normally claims to be the owner of the demised premises and does not pay the rent against such plea. But, in the instant case, the appellant has not been declared defaulter and the ground for personal need of the respondent was not accepted by the First Appellate Court and respondent did not file the appeal against the findings of both the issues i.e. issues No. 2 and 3. As such, passing an order for ejectment of the appellant merely on the basis of issue No. 1 is illegal and not warranted by law. In my view, mere denial of relationship between the landlord and tenant is not at all the ground for an ejectment unless and until the tenant commits default in payment of rent.
In the instant case, it is also observed that the appellant denied the relationship as tenant with the respondent on the basis of which she claimed a rent at the rate of Rs. 3000/- per month on the basis of oral tenancy as alleged by her in the ejectment petition which tenancy agreement could not be proved by the respondent and at the later stage the respondent agreed to receive the rent from the appellant on the basis of existing written rent agreement which was executed in between ex-landlady and the appellant. Similarly, the appellant also admitted the respondent as landlady at later stage when she drew the rent already deposited by the appellant in the Court.
In view of the above discussion, fact and circumstances, I am not inclined to accept the finding recorded on issue No. 1 by both the learned Courts below and accordingly the same are reversed and set aside and the said issue is decided in negative.
Consequent upon the above discussion, this second appeal is accepted and the ejectment petition is dismissed leaving the parties to bear their own costs.
(R.A.) Appeal accepted.
PLJ 2009 Lahore 865
Present: Ali Akbar Qureshi, J.
SHEIKH MUHAMMAD FEROZE--Appellant
versus
SHEIKH ALLAH LOK--Respondent
S.A.O. No. 140 of 2007, heard on 23.7.2008
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13 & 15--Ejectment petition--Question and scope of maintainability of consolidated ejectment petition with regard to residential as well as non-residential building in presence of two distinct and separate rent deed and judgment of High Court--Validity--For resolution of controversy, a glance over the pleadings and evidence of tenant tendered during the proceedings before trial Court would be inevitable. [P. 869] A
Mala fide--
----Element of mala fides--Plea of--Merely alleging of mala fides can hardly be taken into consideration and element of mala fides has to be proved through tangible evidence or such acts of the person, whereas no such effort was made by appellant and simple reiteration of plea of mala fide in written reply has to be repelled unless & untill the same is proved through unimpeachable evidence. [P. 869] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 11--Commercial use of basement--Ejectment petition--Objection was raised--Validity--Fallacious objects are always taken by tenant so as to prolong the litigation which must be discouraged by Courts of law to ensure safe dispensation of justice to minimize the agencies and miseries of litigants. [P. 869] C
PLD 1994 SC 291, 2001 SCMR 798, PLJ 2006 SC 230 Rel.
Mr. Muhammad Amin Sheikh, Advocate for Appellant.
Mr. Basharat Ullah, Advocate for Respondent.
Date of hearing: 23.7.2008.
Judgment
This second appeal assails the validity of order dated 26.10.2007 through which the learned Additional District Judge Lahore dismissed appellant's appeal impugning the legality of order dated 4.1.2006 of the learned Rent Controller allowing the ejectment petition filed by the respondent/landlord.
The respondent/landlord filed an ejectment petition under Section 13 of the Punjab Urban Rent Restriction Ordinance 1959 soliciting appellant's eviction from demised property on the ground that appellant/tenant sublet the entire shop including its basement without the prior consent of the respondent/landlord. The appellant/tenant has damaged the property and such acts are likely to impair the value or utility of the property. That demise property is required by respondent/landlord for his personal use and also prayed for the award of compensation with reference to damage caused by the appellant/tenant.
In addition thereto, it was also maintained in the ejectment petition that in fact two rent agreements were executed between the parties, one for the shop and other for basement. The ejectment petition was serious contested by the appellant on legal as well as on factual side The appellant/tenant while filing the written reply to the ejectment petition, inter alia the other grounds mainly challenged the maintainability of the ejectment petition on the ground that since two separate rent deeds were executed, one for the shop and other for the basement, hence, simultaneous eviction through one ejectment petition against the residential and non-residential building was not maintainable. Controverting all the averments reiterated in the ejectment petition maintained that the property in question is not required by the respondent in good faith for his personal use and occupation and added that appellant did not sublet the rented property and did not cause any damage as alleged by the respondent/landlord.
The Rent Controller, out of the pleadings of the parties, proceeded to frame as many as four issues and recorded evidence of both the parties thereon and hearing the arguments on behalf of both the parties allowed the ejectment petition. Being aggrieved thereof, appellant preferred the first appeal and an Addl. District Judge dismissed the same upholding the ejectment order passed by the learned Rent Controller, hence this second appeal.
Learned counsel for the appellant contended that the orders impugned are unsustainable being contrary to the record and the evidence available on the file; that the findings of both the learned Courts below on Issue No. 3-A are erroneous and totally contrary to the law as also the principle of law laid down by the Hon'ble Supreme Court of Pakistan as well as this Court. It was strenuously argued that admittedly two rent deeds were executed, one for shop (non-residential purpose) and the other for basement (residential purposes) and simultaneously ejectment petition for the eviction of the appellant from both the properties was unwarranted by law, which crucial aspect of the matter was not adverted to and was ignored by the learned Courts below while recording the findings on this crucial and vital issue. It was next asserted that both the learned Courts below and especially the 1st appellate Court did not record issue wise findings by not appreciating & evaluating the material available, and thus findings of both the Courts below are result of mis-reading and non-reading of evidence. Next contends that the respondent/landlord did not substantiate the factum of his bona fide personal need qua the demise property through tangible & independent evidence, yet both the learned Courts below abdicated their lawful authority and have failed to take the cognizance of this particular aspect of the case. The learned counsel for the appellant also referred the evidence and especially the rent note executed between the parties. From the oral as well as the documentary evidence, the learned counsel tried to prove that in any case, it is established on record that two separate rent deeds executed inter se the parties clearly demonstrates the mode & manner in which the rented property was to be used. In this context, the learned counsel referred Ex.A/1 and Ex.A/2 (rent notes dated 22.1.1976). To supplement his contentions, the learned counsel relies on Manochar V. Mst. Sarwar Sultana and another (1989 CLC 2417), Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 SC 242), Dr. Shaukat Bokhari v. Shabih Fatima (1986 SC 1803) Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Latif Ahmad v. Mst. Farrukh Sultana (1996 SCMR 1233), Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (1987 SCMR 2051), Habib-ur-Rehman v. Faqir Muhammad (PLD 1983 Lahore 425), Abdul Majid v Anwar Ali (NLR 1980 Civil Lahore 158), Fida Hussain v. Noor Muhammad Bana (NLR 1985 Civil 253).
Conversely, the learned counsel for the respondent/landlord supported the orders of both the Courts below. As regards maintainability of the one consolidated ejectment petition with reference to both residential and non-residential building, it was canvassed that ejectment petition in such like cases is quite competent & legally maintainable, and the learned Courts below rightly and justifiably accepted the version of the respondent/landlord by directing appellant's eviction from the rented properties. In support of his contentions, learned counsel has placed reliance on Muhammad Hussain and others v. Muhammad Shafi (1991 CLC 303) and Muhammad Ayyub v. Sh. Zafrullah (1999 UC 553). Further contends that the respondent landlord has successfully proved his bonafide personal need through credible and confidence inspiring evidence whereas the appellant/tenant failed to rebut or shake the contentions raised on behalf of respondent/landlord. It was strenuously argued that respondent/landlord successfully proved the issues regarding subletting, damage to the property and compensation so the concurrent and consistent findings recorded by the learned Courts below on both legal & factual plane hardly calls for any interference by this Court dealing with the instant SAO.
I have heard the learned counsel for the parties and perused the record.
The entire focus of the learned counsel for the appellant was on the question and scope of the maintainability of consolidated ejectement petition with regard to residential as well as non-residential building in presence of two distinct and separate rent deeds and the judgments of this Court. For resolution of the prevalent controversy, a glance over the pleadings and evidence of the appellant/tenant tendered during the proceedings before the learned trial Court would be inevitable. A careful examination of written reply by the appellant by replying to Para-2 of the ejectment petition, the appellant has stated in Para-2 "(b) is incorrect, hence denied. The petitioner has concealed the material facts from the learned Court and has not approached the learned Court with clean hands. The basement of the property is residential in character and the same was rented out for residential as well as business purpose".
The witnesses of appellant/tenant and he himself while submitting his affidavits in the shape of examination-in-chief candidly admitted the commercial use of the basement. For ready reference, the same is reproduced as under:--
Other witnesses appearing on behalf of the appellant/tenant, namely Muhammad Yasin son of Ghulam Hussain and RW-4 namely Mursaleen Dar son of Haji Inayat, both in their examination-in-chief categorically deposed in line with the appellant tenant. Admission of the contents of Ex.A/1 and Ex.A/2 (rent deeds) by both the parties sufficiently falsify the argument raised by the appellant. Ex.P2 (rent deed), it is regarding the basement, wherein it has clearly been mentioned by the appellant that the appellant will use the basement for residential as well as commercial purposes. The relevant part is reproduced as under:--
On careful examination of the above referred record and particularly perusal of evidence adduced by the appellant, there is no room for any doubt or dispute and cavil with the proposition that the appellant from the day one has been using the basement for commercial purposes, and evidently the contention of the learned counsel for the appellant as to the maintainability of the ejectment petition is totally preposterous having no nexus and access to the judgments being referred to by the learned counsel on his behalf.
As regards personal bona fide need, from the record & facts of the case, respondent/landlord has successfully proved by adducing sufficient evidence, whereas, instead of rebutting the stance of the respondent/landlord, the learned counsel for the appellant/tenant kept on harping on the same string that the respondent/landlord had other vacant shops as well in the same vicinity. This particular proposition already stands settled by the Hon'ble Supreme Court of Pakistan in plethora of judgments that the landlord is only required to prove his requirement of personal use and secondly it is the sweet will and choice of the landlord to select or choose any of his properties for this purpose. The appellant in his evidence has failed to prove the malafide of the respondent/landlord to file the ejectment petition on the ground of personal need by citing any material incident or evidence. Mere alleging of mala fides can hardly be taken into consideration and element of mala fides has to be proved through tangible evidence or such acts of the person, whereas in the instant case, no such effort was made by the appellant and simple reiteration of the plea of mala fide in written reply has to be repelled unless & until the same is proved through unimpeachable evidence.
The learned counsel for the appellant in the course of his arguments also submitted that the respondent is asking for the eviction of the demise property particularly the basement which has been rented out for the non-residential purpose, but without taking the prior permission from the Rent Controller under Section 11 of the Urban Rent Restriction Ordinance, 1959. In this regard, it is sufficient to refer to the above quoted extract from the written reply as well as the evidence produced by the appellant, wherein the appellant himself admitted the commercial use of the basement from the day it was rented out to him. Such like fallacious objections are always taken by the tenant so as to prolong the litigation which must be discouraged by the Courts of law to ensure safe dispensation of justice to minimize the agonies and miseries of the litigants.
The nutshell of the above discussion is that the respondent/landlord has successfully proved his case and even otherwise, the learned counsel for the appellant has failed to point out any jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence by the learned Courts below while concurrently, unambiguously and conclusively determining the crucial issues objectively with judicial application of law and mind. As regards interference with the concurrent findings of fact recorded by the Courts below, this Court stands enlightened and guided by the law laid down by the Apex Court in the case reported as Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), Abdul Qayyum through legal heirs v. Mushk-e-Alam and another (2001 SCMR 798) and Abdul Mateen and others v. Mst. Mustakhia (PLJ 2006 SC 230) has observed that even the findings concurrently, recorded by the learned Courts below on fact are erroneous, should not be interfered with unless those are result of jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence.
Resultantly, this second appeal fails and being devoid of any merit is dismissed with no order as to costs.
Admittedly, the appellant/tenant is running his business in the demise property since last many years, thus to ensure safe administration of justice, the appellant/tenant is directed to hand over the vacant possession of the demise property to the respondent/landlord within sixty days from today, of course, without having resort to the execution proceedings. It is made clear that during this period, the agreed rent between the parties shall be paid regularly by the appellant/tenant to respondent/landlord.
Requisitioned record be transmitted to the trial Court immediately.
(R.A.) Appeal dismissed.
PLJ 2009 Lahore 870
[Multan Bench Multan]
Present: Malik Saeed Ejaz, J.
MUNAZZA NOOR and 2 others--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, KHANEWAL
and 2 others--Respondents
W.P. No. 1209 of 2008, decided on 6.11.2008.
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 6(5)(a)--As proved by Section 6(5)(a) of the Muslim Family Laws Ordinance 1961, any man who contracts another marriage without the permission of the Arbitration Council is immediately liable to pay the entire amount of dower, either prompt or deferred, due to the existing wife or wives--Order accordingly. [P. 872] A
Mr. Javed Iqbal Hashmi, Advocate, for Petitioner.
Mehar Zauq Muhammad Sipra, Advocate, for Respondent No. 3.
Date of hearing: 6.11.2008.
Order
Facts necessary for the decision of this writ petition are that Petitioner No. 1 herself and on behalf of minor Petitioners No. 2 and 3 filed a suit against Respondent No. 3 for recovery of past maintenance of Petitioners No. 2 and 3 for the last one year at the rate of Rs.4000/- per month per minor and for herself for the same period at the rate of
Rs. 6000/- per month; for recovery of dower amounting to Rs. 50,000/- as well as ten Bighas of agricultural land; and for recovery of dowry articles valuing Rs. 7,98,000/-. Respondent No. 3 contested the suit by filing his written statement. The learned trial Court after framing of appropriate issues and recording evidence of both the parties, vide its judgment and decree dated 4.4.2007, decreed the suit for recovery of maintenance allowance at the rate of Rs.1500/- per month per petitioner from 13.5.2003 till the subsistence of marriage of Petitioner No. 1 with Respondent No. 3 and till the marriage of Petitioner No. 2 and upto attaining the age of majority of Petitioner No. 3, whereas the suit of Petitioner No. 1 to the extent of recovery of dowry articles was decreed to the extent of Rs.2,00,000/-, while her suit to the extent of recovery of dower was dismissed. As regards the recovery of dower, the learned trial Court held that the same could not be recovered from the respondent prior to termination of marriage between the parties, as it was `Ghair Muajjal' (deferred). Aggrieved by the aforesaid judgment and decree, both the parties filed separate appeals, which came up for hearing before Mr. Shahid Rafiq Sheikh, learned Addl Distt Judge, Khanewal, who, vide judgment and decree dated 23.2.2008, while dismissing the appeal filed by Respondent No. 3 and partly allowing the appeal filed by the petitioners, held Petitioner No. 1 entitled to recover an amount of Rs.50,000/- from Respondent No. 3 as dower and Rs. 3000/- per month as maintenance from 13.6.2003, while the decree for grant of maintenance allowance to the minors/Petitioners No. 2 and 3 at the rate of Rs.1500/- per month per minor was upheld, of course, with ten per cent annual enhancement and the decree to the extent of recovery of dowry articles was also maintained. Now, the petitioners have challenged the judgments and decrees of both the learned Courts below through the instant petition.
After considering arguments and having gone through the record, I find that the maintenance allowance and the amount of dowry articles as awarded by the learned First Appellate Court to the petitioner is based on sound reasons and proper appreciation of evidence; hence, the impugned judgments and decrees of the learned Courts below to this extent are quite legal and just. As such, this writ petition for enhancement of maintenance allowance and amount of dowry articles is dismissed and the impugned judgment and decree of the learned Additional District Judge to this extent is maintained.
As far as the payment of dower is concerned, the learned Additional District Judge has awarded Rs.50,000/- to the petitioner, without saying anything about the other part of dower, i.e. ten Bighas of land. It is an admitted fact that both the learned Courts below have given finding that the dower amount along with ten Bighas of land has not been paid by the respondent and the respondent has admitted in his statement for its fixation. It is noted that Issue No. 3-A as framed by the learned Judge, Family Court, was decided against the petitioner by observing that the dower as fixed by the respondent is `Ghair Muajjal' (deferred dower), which, as per Article 290 of Muhammadan Law, is payable at the time of termination of marriage either through death or divorce. Learned counsel for the petitioner attacks upon this observation of the learned Judge, Family Court, contending that under section 6 of the Muslim Family Laws Ordinance, 1961, when a husband contracts second marriage without the consent of first wife, he shall be liable to pay the entire amount of dower to his first wife(s). I am in agreement with the learned counsel for the petitioner that as provided by Section 6(5)(a) of the Muslim Family Laws Ordinance, 1961, any man who contracts another marriage without the permission of the Arbitration Council is immediately liable to pay the entire amount of dower, either prompt or deferred, due to the existing wife or wives. In the instant case, admittedly, the respondent has contracted second marriage and has not obtained any permission therefor as enjoined by the provisions of the Ordinance. Hence, he is liable to pay the entire dower, either prompt or deferred, to the petitioner. As such, learned Additional District Judge has rightly awarded Rs.50,000/- as dower amount to the petitioner but the impugned order is silent about the other part of dower, i.e. ten Bighas of land, which seems to be left undecided. It is admitted by the learned counsel for the respondent that the order of the learned appellate Court is silent to that extent, which has not been challenged by the respondent/husband. Hence, the dower of Rs. 50,000/- awarded in appeal by the learned appellate Court has attained finality. As the learned appellate Court has not given any finding on second part of the dower, i.e. ten Bighas of land; therefore, issue No. 3-A to this extent has been left undecided. Hence, the remand of the case to this extent to the learned appellate Court appears to be sine qua non. Accordingly, the matter is remitted to the learned appellate Court to decide it to the extent of second part of the dower, i.e. ten Bighas of land, which, admittedly has been sold by the respondent/husband to other persons. The parties are directed to appear before the learned appellate Court on 27.11.2008. The learned appellate Court shall decide the matter to the above extent afresh after hearing both the parties and recording evidence, if necessary, within two months of the receipt of this order.
(R.A.) Case remanded.
PLJ 2009 Lahore 873 (DB)
Present: Maulvi Anwarul Haq & Ali Akbar Qureshi, JJ.
M/s. QAZI INDUSTRIES AND SCIENTIFIC SUPPLY CORPORATION through its Sole Proprietor--Appellant
versus
GOVT. OF PUNJAB through Secretary Higher Education Department, Civil Secretariat, Lahore and 2 others--Respondents
I.C.A. No. 307 of 2008 in W.P. No. 7473 of 2008, decided on 30.10.2008.
Purchase Manual Para 19 (IX), 17--
----Para 19(IX), 17--Violative of--Appellants tender has been rejected by the tenderer/company on the ground that it is not on the letterhead of the tenderer/company--Held: Para 17 of the Purchase Manual make it mandatory that the quotations have to be submitted on the prescribed tender form--Proforma tenders (PR 8-A and PR 8-B) clause 2 of the special instructions in all these forms insists that the tenders must quote on the prescribed invitations to the tender form--Insistance of the respondents that the forms should be on the letter head and rejecting of a tender/quotation on the sole ground that it is not on the letterhead of the tenders, is violative of the Purchase Manual as also the general/special instructions contained in the said proformas--Order accordingly. [P. 874] A, B & C
Mr. Arshad Iqbal Tarrar, Advocate for Appellant.
Ch. Rizwan Mushtaq Chaudhry, Asst: Advocate General for Respondents.
Date of hearing: 30.10.2008.
Order
The reasons for issuing notice in this ICA have been stated in our order dated 13.10.2008. The learned Assistant Advocate General has addressed us accordingly.
The grievance of the appellant is that whereas there is no provision for submission of the tender forms on the letterhead of the tenderer/company, his tender has been rejected on the ground that it is not on the letterhead. Learned Assistant Advocate General states that it is a term of the tender inquiry that the tenders have to be submitted on the letterhead and seeks support from, para-19 (ix) of the Purchase Manual.
We have examined the said Manual with the assistance of the learned counsel and the learned Law Officer. We find that para-17 of the Purchase Manual makes it mandatory that the quotations have to be submitted on the prescribed tender form. However, some exception has been made where the quotations are made on the letterhead. We have also examined the proforma tenders (PR8-A and PR8-B) Clause 2 of the Special Instructions in all these forms insists that the tenderers must quote on the prescribed invitation to the tender form. Similarly, the general conditions for various contacts (PR-20, PR-21 and PR-23) also do not make any provision at all for submission of quotations etc on a letterhead. Having thus examined the said Manual, we do find that the insistance of the respondents that the forms should be on the letterhead and rejecting of a tender/quotation on the sole ground that it is not on the letterhead of the tenderer, is violative of the Purchase Manual as also the general/special instructions contained in the said proformas.
We, therefore, dispose of this ICA with a direction to the respondents that they should act in accordance with the provisions of the said Purchase Manual and the said proformas noted above and in case, a tender/quotation is submitted on the prescribed form, then it should be considered in accordance with law and the instructions contained in the Purchase Manual, and not to be rejected on the sole ground that the quotation/tender has not been submitted on the letterhead, of the tenderer. No order as to costs.
(M.S.A.) Order accordingly.
PLJ 2009 Lahore 874
Present: Kh. Farooq Saeed, J.
M/s. TANVEER WEAVINGS (PVT) LIMITED through its
Director Finance Faisalabad--Petitioner
versus
DEPUTY COLLECTOR OF SALES TAX AND FEDERAL EXCISE
and 4 others--Respondents
W.P. No. 16171 of 2008, decided on 29.1.2009.
Sales Tax Act, 1990 (VII of 1990)--
----S. 36(3)--Show-cause notice issued to the petitioner by the Sales Tax department--Order was passed much after expiry of 90 days period provided in Section 36(3) of the Sales Tax Act, 1990--Extention of time--Challenge--Validity--First proviso to S. 36(3) of the Sales Tax Act, 1990--It has limited the scope of exercising of the jurisdiction after issuance of notice to basically 90 days or such extended period as the collector after duly recording proper reasons in writing has fixed--Extention also cannot be for more than 90 days--Period for deciding the order-in-original after issuance of a notice under Section 36(1) and (3) thus is maximum 180 days including earlier 90 and extended 90 days--Obviously if the extention has been given by the collector before the expiry of the earlier 90 days--Facts of the case being very clear and the order-in-original having been finalized after the expiry of one year of the issuance of the show cause notice was totally without jurisdiction--Order accordingly. [Pp. 876 & 877] A & B
Mr. M. M. Akram, Advocate for Petitioner.
Ms. Kausar Parveen, Advocate for Respondents.
Date of hearing: 29.1.2009.
Order
Brief facts of the present case are that the petitioner private limited company is engaged in business of weaving of cloth and is duly registered under Sales Tax Act, 1990. The respondents staff conducted an audit for the period 07/1999 to 06/2003. Number of discrepancies were pointed out and a show cause notice dated 23.4.2005 was issued asking the petitioner to explain as to why a sum of Rs. 10,76,204/- may not be recovered from him. However, the order-in-original No. 33/2006 is passed on 28.3.2006 which is much after expiry of 90 days period provided in Section 36 (3) of the Sales Tax Act, 1990. The Central Board of Revenue did extended the time limit for finalization of the order-in-original on 12.12.2005. However, the limitation provided in the said Section had already expired. Further, the power to grant an extension was not with Central Board of Revenue. It was, therefore inter alia argued that the law has allowed the Collector to extend the time for 90 days and that also before the expiry of the earlier time of 90 days. Besides, the total time even after the said extension is only 180 days.
"Provided that order under this section shall be made within [ninety] days of issuance of show cause notice or within such extended period as [the Collector {\ \ }] may, for reasons to be recorded in writing, fix, provided that such extended period shall in no case exceed ninety days."
As is clear from the language of the above proviso, it has limited the scope of exercising of the jurisdiction after issuance of notice to basically 90 days or such extended period as the Collector after duly recording proper reasons in writing has fixed. However, it is again subject to the limitation in the manner that the said extension also cannot be for more than 90 days. The period for deciding the order-in-original after issuance of a notice under Section 36 (1) and (3) thus is maximum 180 days including earlier 90 and extended 90 days. Obviously if the extension has been given by the Collector before the expiry of the earlier 90 days.
The respondents Legal Advisor did not challenge the dates but vehemently objected to the invocation of the writ jurisdiction directly before this Court. It was said that alternate remedy being available, coming to the Court directly is not appropriate. Reliance is on (1999 S.C.M.R 2189) re: "Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad Vs. Muhammad Tariq Pirzada and others" as well as (2005 P.T.D 2455) re: "Messrs Ahmed Hassan Textile Mills Ltd through Chairman Vs. Federation of Pakistan through Secretary of Law, Justice & Human Right Division, Islamabad and 4 others". It was, therefore, urged that the case should be left for consideration of the departmental hierarchy as the matter can well be taken care of in the regular appellate jurisdiction of the concerned authorities.
It is true that this Court generally does not entertain writ petitions in the case where alternate remedy is available. However, the alternate remedy has to be adequate and efficacious. In the present case, the issue involved is invocation of a proper jurisdiction after expiry of the period provided through proviso to Section 36 (3) of the Customs Act, 1990.
In fact this Court has already in a number of writ jurisdictions have exercised its jurisdiction under such circumstances. The reliance can be placed to the decision in the case of "Super Asia Vs The Additional Collector etc." Writ Petition No. 16270/2000. This judgment has now been followed in number of other writ petitions, hence, no exception would be required.
The facts of the case being very clear and the order-in-original having been finalized after the expiry of one year of the issuance of the show cause notice was totally without jurisdiction. The same, therefore, is set aside and the writ petition is accordingly disposed of.
(M.S.A.) Petition disposed of.
PLJ 2009 Lahore 877
Present: Syed Shabbar Raza Rizvi, J.
Rao KHALID JAVED--Petitioner
versus
FAIZ AHMAD and 6 others--Respondents
W.P. No. 5916 of 2006, decided on 19.12.2008.
Illegal Dispossession Act, 2005--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Question of maintainability of complaint--Dispute between the parties was of civil nature--Complaint was dismissed--All cases of illegal occupants without any discrimination would be covered by Illegal Dispossession Act, except the cases which were already pending before nay other forum--Held: Filing of civil suit after illegally dispossessing the petitioner from his property does not affect maintainability which the order was dismissed by Addl. Session Judge--Petition was allowed. [P. 879] A & B
PLJ 2008 Lah. 872 ref.
Mian Abdul Quddous, Advocate for Petitioner.
Mian Sheraz Mehmood, Advocate for Respondents.
Mr. Muhammad Nawaz Bajwa, AAG for Respondents Nos. 6
and 7.
Date of hearing: 19.12.2008.
Judgment
The learned counsel for the petitioner submits that he had bought a property, subject matter of the instant petition from Respondent No. 5. Mutation No. 1720 was entered on 2.7.2005. The possession was also handed over to the petitioner on the same date. The mutation was duly passed in accordance with law on 16.7.2005. However, on 28.11.2005, petitioner was dispossessed by the respondents. The petitioner got registered F.I.R No. 335/05 on 30.11.2005. The petitioner also filed complaint under the Illegal Dispossession Act, 2005 on 22.2.2006. The complaint was dismissed on 20.5.2006 on the ground that the dispute between the parties was of civil nature. The learned Addl. Sessions Judge formed the above opinion on the basis of civil suit filed by Respondent No. 4 on 5.12.2005.
The grievance of the learned counsel for the petitioner is that impugned order was passed without considering the relevant documentary proof and report of the SHO. The learned counsel further submits that he was dispossessed prior to filing the civil suit and even prior to registration of the criminal case. The learned counsel relies upon 2006 P.Cr.LJ 636, PLD 2007 SC 423 and PLD 2008 Lahore 392.
The learned counsel appearing for the respondents refers to PLJ 2008 Lahore 872, Wali Muhammad Vs. ASJ contending that a complaint under the Illegal Dispossession Act is not maintainable where the matter is being regulated by a civil, revenue Court, etc. According to him, admittedly civil suit regarding the same property was filed prior to filing of the complaint under the Act.
I have considered the contentions. The impugned order itself point out that the complainant (present petitioner) had purchased land (subject matter) from Respondent No. 5 Taj Muhammad son of Muhammad Hameed for a consideration of Rs. 30,00,000/- in July 2005 vide Mutation No. 1720. The above fact is also not disputed by the learned counsel for the respondent. The SHO in his report dated 9.5.2006, also endorsed the above facts. The SHO in his report also reported that respondents took over possession of the property after forcibly ploughing the crop of wheat sowed by the present petitioner. The SHO also stated that possession was taken forcibly and through illegal means. Despite above, the learned ASJ dismissed the complaint on the ground that Respondent No. 5 had filed suit, hence the dispute was of civil nature. From the above facts, it appears that Respondent No. 5 in collusion with other respondents filed civil suit on 5.12.2005 after dispossessing the petitioner on 28.18.2005 through illegal means to shield offences committed by respondents as well as illegal dispossession of the petitioner.
The lawful basis of filing complaint is illegal dispossession as laid down in a number of cases by the superior Courts of this Country. For example, the Hon'ble Supreme Court has held that the illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of the owner and lawful occupant of the property as against the unauthorized and illegal occupant (PLD 2007 SC 423). The impugned order and the report of the SHO clearly mention that petitioner was a rightful owner and lawful occupant of his property before he was illegally dispossessed. The same judgment further lays down that careful examination of the relevant provision of the Act would reveal that all cases of illegal occupants without any discrimination would be covered by the Act, except the cases which were already pending before any other forum. As noted above, the learned ASJ himself did not find any defect with lawful ownership of the petitioner. The same also reflects from the report of the SHO which was also not disputed by the respondent before the learned ASJ or any other forum. In the above circumstances, filing of civil suit on 5.12.2005 after illegally dispossessing the petitioner from his property does not affect the maintainability of the complaint which vide impugned order was dismissed by the learned ASJ. Pakpattan Sharif. The precedent cited by the learned counsel for respondent PLJ 2008 Lah. 872 is not applicable in the facts and circumstances of the instant case. I have already pointed out above that it seems that civil suit was filed on 5.12.2005 after illegally dispossessing the petitioner and to cover the same, with malafide intention.
In view of the above reasons and discussion, this writ petition is allowed; the complaint of the petitioner shall be deemed pending before the learned ASJ who shall decide the same afresh on merits, disregarding the fact of pendency of civil suit dated 5.12.2005.
(M.S.A.) Petition allowed
PLJ 2009 Lahore 879 (DB)
Present: Mian Saqib Nisar & Kh. Farooq Saeed, JJ.
ZARAI TARIQIATI BANK LTD. through its
Branch Manager--Appellant
versus
HASSAN AFTAB FATIANA--Respondent
F.A.O. No. 213 of 2008, heard on 15.10.2008.
Financial Institutions Recovery of Finances Ordinance, 2001 (XLVI of 2001)--
----S. 7(2)--Civil Procedure Code, (V of 1908), S. 152--Scope of--Applicability--Suit for recovery of an amount--Special law for litigation--Where Ordinance provides the specific procedure for resolving a proposition, under the settled principles of construction of statutes, the provisions of general law not only to that extent, but even the inherent jurisdiction of the Court available under CPC shall not be attracted--General and inherent power u/S. 152, C.P.C. which shall not be applicable in presence of specific provisions.
[P. 882] A & B
Civil Procedure Code, 1908 (V of 1908)--
----S. 47--Power of Court--Question about execution, satisfaction and discharge of decree--Law applicable--Non-mentioning of date from which cost recoverable under the decree--How and by which forum it should be determined if the appellant is entitled to the cost from the date prior to the institution of the suit or the date of the decree--Held: Solution can be achieved by resorting to the provisions of Section 47, C.P.C. under which, the Court has the power to decide the question about the execution, satisfaction and discharge of the decree and such jurisdiction undoubtedly includes the power of Court to interpret the judgment/decree on the basis of the law applicable--Appeal allowed. [P. 883] C
Mr. Muhammad Shuja Baba, Advocate for Appellant.
Mr. Tariq Mahmood Randhawa, Advocate for Respondent.
Date of hearing: 15.10.2008.
Judgment
Mian Saqib Nisar, J.--The learned Banking Court Faisalabad (hereinafter referred to as the "Court") has passed the impugned order dated 29.05.2008 on an application filed by the respondent under Section 152 C.P.C, wherein it has been held as follows:--
"On the perusal of the judgment and decree it appears that date of expiry was considered as default which is not correct approach but on the contrary date of default is the date of judgment and decree when it is held that the defendant has committed any default. Accordingly the application is accepted and the decree holder bank is directed to file statement of cost of funds in accordance with the above observation on the next date of hearing. To come up on 16.6.2008."
Briefly the facts of the case are that the appellant brought a suit for the recovery of an amount of Rs. 11,40,516/- alongwith cost of funds against the respondent. The suit was earlier ex parte decreed on 06.03.2006, but subsequently upon an application of the respondent, the decree was set aside and thereafter, vide judgment and decree dated 10.09.2007 while dismissing the defendant's application for leave to appear and defend, the suit was decreed to the tune of Rs. 5,71,158/-. In the judgment, the Court held "Accordingly with the rejection of the PLA the suit of the plaintiff bank is hereby decreed to the extent of Rs. 5,71,158/- in favour of the plaintiff and against the defendant with cost of funds and cost of suit at the stipulated rate from the date of default till the full and final realization of the decretal amount with costs." The said judgment and decree has not been further challenged by the respondent and has attained finality. However, the respondent moved an application under Section 152 C.P.C stating in paragraph No. 4 thereof".........Admittedly, under Sub-section 3 of Section 3, the decree shall provide for payment of the cost of funds as determined under Sub-section 2 but in this particular case, there was no date of default mentioned in the plaint by the plaintiff/decree holder and even otherwise, the date of default is a date, when this learned Court has passed the decree against the petitioner/judgment debtor while declaring the defaulter." It is further mentioned in paragraph No. 6 "That there is no specific date of default mentioned in the judgment and decree, which is yet to be determined and as such the petitioner/judgment debtor is under legal obligation to pay such cost of funds from the date of passing of judgment and decree." From the prayer clause, it is spelt out that the respondent was seeking an order from the Court for the determination of the date of default and the calculation of cost of funds on account thereof. This application has been contested by the appellant, but was allowed through the impugned order.
The learned counsel for the appellant states that under the provisions of Section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance"), the Court has no jurisdiction to review its own judgments, decrees, orders etc, however, it is only on account of the proviso to the Section that the Court is empowered to correct any clerical or typographical mistake in the judgments etc; but as due to the impugned order, the judgment and decree dated 10.09.1997 stands reviewed and modified, therefore, the same is without jurisdiction.
The learned counsel for the respondent, when questioned, at the very outset has submitted that through the said application, no review was being sought, rather according to him the case is squarely covered by Section 152 CPC, which is analogous to the proviso to Section 27 ibid.; he further by making reference to the judgments reported as KASB Bank Limited vs. Abdul Qadir Jangda (2007 CLD 1639), Sh. Abdul Sattar Lasi vs. Federation of Pakistan and 6 others (2006 CLD 18), Industrial Development Bank of Pakistan vs. Pakistan Belting (Pvt.) Limited and 5 others (2006 CLD 808), and Messrs Eclipse Dry Cleaners and another vs. Messrs Imperial Chemical Industries Pakistan Ltd. and 2 others (1989 S.C.M.R 1708), contends that in the cases pertaining to the cost of funds covered by Section 3 of the Ordinance, the date of default is the date of the decree and not a date prior thereto, but as the Court had omitted to specify the date with the consequences that the appellant by taking advantage of this lapse, wants the recovery of that amounts (cost of funds) which were not awarded to him; it therefore, has become expedient for the respondent to seek the appropriate remedy under the law for the supply of accidental slip and the omission in the judgment and decree.
We have heard the learned counsel for the parties. The Ordinance is a special law covering a particular field of litigation and the Courts constituted there-under are vested with both the civil as well as criminal jurisdiction. Section 7 (2) prescribes that the Court shall in all matters with respect to which the procedure has not been provided for in the Ordinance, apply the law laid down in the Code of Civil Procedure, 1908 (Act V of 1908) and the Code of Criminal Procedure, 1898 (Act V of 1898), meaning thereby that where the Ordinance itself provides the specific procedure for resolving a proposition, under the settled principles of construction of the statutes, the provisions of general law not only to that extent, but even regarding the inherent jurisdiction of the Court available under the Civil Procedure Code shall not be attracted.
In the light of the above legal position, it is germane to examine if the proviso to Section 27 of the Ordinance caters for the issue involved in the matter and Section 152 C.P.C was inapplicable; both the provisions are reproduced:
Proviso:
"Provided that the Banking Court may, on its own accord or on application of any party, and with notice to the other party or, as the case may be, to both the parties, correct any clerical or typographical mistake in any judgment, decree, sentence or order passed by it. "
Section 152 CPC:
"Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. "
From the plain reading of the noted provisions, it is conspicuously clear that the cases pertaining to any error in the judgment and decree etc of the Court shall only be regulated by the proviso, rather the general and inherent power under Section 152 C.P.C, which shall not be applicable in the presence of the specific provisions. However, the proviso is restricted in empowering the Court to correct the typographical error etc and unlike the Section ibid, it does not provoke for supplying any accidental slip or omission. The question, therefore, for the consideration and determination shall be, if the omission of the Court to mention the date of default is the one falling within the purview of the proviso.
Admittedly in the judgment and decree, the date of default has not been specified; however, by no stretch of interpretation, this lapse can be construed as a typographical error etc, rather it is a simple case of slip/omission of the Court and had it been the judgment/decree of the Civil Court, the provisions of Section 152 C.P.C could be validly invoked. But for the supply of such an omission/slip, the Court had no jurisdiction under the said proviso, therefore, the impugned order being beyond the scope of the noted law cannot sustain.
Despite the above, the proposition still remains as to how, and by which forum it should be determined if the appellant is entitled to the cost from the date prior to the institution of the suit or the date of the decree. To our mind, the solution can be achieved by resorting to the provisions of Section 47 C.P.C under which, the Court has the power to decide the question about the execution, satisfaction and discharge of the decree and such jurisdiction undoubtedly includes the power of the Court to interpret the judgment/decree on the basis of the law applicable, which in this case shall be Section 3 of the Ordinance and as claimed by the learned counsel for the respondent, it already has been interpreted in the respondent's favour by virtue of the case law cited by him. Therefore, we hold that if approached, the Executing Court shall be well within its jurisdiction to adjudicate as to from which date the costs of funds should be allowed to the appellant.
In the light of above, we are of the view that the impugned order has not been passed by the Court in exercise of its proper jurisdiction, therefore, the same is hereby set aside. The appeal is accordingly allowed.
(M.S.A.) Appeal allowed.
PLJ 2009 Lahore 883
Present: Sh. Azmat Saeed, J.
PROVINCE OF PUNJAB through Collector Sargodha
and 4 others--Appellants
versus
MUHAMMAD TARIQ--Respondent
F.A.O. No. 236 of 2008, decided on 4.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. 3--Notice before filing appeal--Appeal without notice, held not maintainable where respondents showed that they suffered material prejudice. [P. 886] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XLIII, R. 3--Appeal was filed without notice but the respondent appeared at the in limine stage before appellate Court where the instant appeal was initially erroneously filed would make it clear and obvious that the respondent had the full knowledge of the intention of the appellants to file an appeal against the order impugned and also the grounds of appeal, hence the provision of O. 43 R. 3, CPC stood substantially complied with. [P. 886] B
Appeal--
----Non-service of notice--Filing of captioned appeal--Question of maintainability--Appeal filed without notice--Validity--High Court is not persuaded to dismiss the appeal as not maintainable and the must necessarily be decided on merit. [P. 887] C
Mr. Rizwan Mushtaq, AAG for Appellants.
Mr. Jehanzeb Akhtar Bharwana, Advocate for Respondent.
Date of hearing: 24.10.2008.
Order
This appeal is directed against the order dated 31.7.2008 granting temporary injunction to the respondent.
Relevant facts necessary for the adjudication of the lis at hand are that respondent was granted a mining lease by the appellant through a public auction held on 18.1.2003 for a period of five years. The consideration payable by the respondent was Rs.1800,000/- and the lease granted to the respondent was expire on 17.3.2008 in terms of agreement inter se the parties. It appears that some dispute arose between the parties with reference to the availability of the site in respect whereof the mining lease had been granted. Respondent in this behalf moved an application seeking extension of the lease as allegedly the site was not made available to him earlier. Said application was dismissed by the Appellant No. 3 vide order dated 3.11.2007 and the respondent being aggrieved whereof, filed a revision before Respondent No. 2 which was disposed of vide the order dated 8.3.2008, the respondent was not found entitled to any further period by way of extension, however, he was in terms of the said order held entitled to the refund 45% of the consideration paid by him. The respondent filed a civil suit challenging the order dated 30.11.2007 and 8.3.2007 claiming to be entitled to the possession of the site of the lease till 30.9.2012. In the alternate prayer for the recovery of Rs.1,15,53,000/- as damages was also made. Along with the plaint, an application for the grant of temporary injunction was also filed and it was prayed that the appellants be restrained from interfering in the business of the respondent over the site in question. Suit and the application was contested. Written statement was filed and the reply to the application filed and the learned Judge seized of the matter after hearing the parties accepted the application for the grant of temporary injunction as prayed for vide order the order impugned dated 31.7.2008.
It is contended on behalf of the appellants as the respondent himself sought damages, hence, the claim of the respondent was measurable in pecuniary terms, therefore, there was no occasion for the grant of temporary injunction. In support of his contentions he relies on PLD 2004 SC 860 Bolan Beverages Pvt Ltd Vs Pepsico Inc and 4 others and 2004 SCMR 1092 Puri Terminal Ltd Vs Government of Pakistan through Secretary Ministry of Communication and Railways Islamabad and 2 others. Adds that the grant of temporary injunction offends against Rule 222 and 232 of the Punjab Mining Concession Rules 2002 which are applicable to the lis at hand and the civil Court had no jurisdiction to adjudicate upon the matter.
The learned counsel for the respondent controverts the contentions raised on behalf of the appellants and has raised a preliminary objection as to the maintainability of this appeal. It is contended by the learned counsel for the respondent that no notice as contemplated by Order 43 Rule 3 CPC was served by the appellants, hence, this appeal is not maintainable and liable to be dismissed on this ground. In support of this learned counsel relies on PLD 1983 SC 693 Mrs. Dino Manekji Chinoy and 8 others Vs Muhammad Matin, 1991 MLD 941 Attaullah Khan and others Vs Sami Ullah Khan and others, 1993 CLC 361 Elite D.Silva Vs Dilawar Husain, 1997 MLD 2003, 1999 CLC 790 M/S Heavy Electrical Complex Vs Sarhad Development Authority. He further contends that lease was granted for a period of five years and the respondent was unable to take full advantage of the mining concession for the said period, a fact it is contended, is apparent from the orders of Appellants No. 2 and 3, therefore, the respondent should be allowed to exercise his right of the full period of five years. In this regard, learned counsel has referred to an order dated 13.4.2004 passed by this Court in WP 5228-2004.
In rebuttal, the learned AAG contends that in the facts & circumstances of this case, the appeal was maintainable, as no prejudice has been caused to the opposite side. To substantiate his contention, he relies on 1997 SCMR 414 Salah ud Din Vs. Syed Mansoor Ali Shah and others and 2004 CLD 1609 United Bank Ltd Vs Messrs Khawaja Radio House. He further contends that for the site in question, the appellants have received an offer for Rs. 1,25,00,000/- out of which CDR for
Rs. 25,00,000/- has already been deposited and it is proposed to auction the said mining lease with a base/reserve price of Rs.1,25,00,000/- In these circumstances, the interim relief would cause huge loss to the public exchequer.
"The utility of giving of previous notice of filing the appeal is meant to be restricted to the stage of preliminary hearing of the appeal and is not to have any further effect once the appeal has crossed that stage and has been admitted for regular hearing; thereafter the appeal is to be heard and decided on merits"
And in the case reported as 1990 Lahore 82 Fateh Muhammad Vs. Muhammad Hanif and another dilating upon the aforesaid provisions of law and in the light of the judgment of the Apex Court supra held that an appeal without notice under Order 43 Rule 3 CPC could only be held to be not maintainable where respondents showed that they suffered material prejudice.
Similar view was taken by a Division Bench of this Court in the case reported as 2004 CLC 1609 United Bank Ltd Vs Messrs Khawaja Radio House through proprietor and 2 others. In the instant case, in view of the fact that the respondent appeared at the limine stage before the District Judge where the instant appeal was initially erroneously filed would make it clear & obvious that respondent had the full knowledge of the intention of the appellants to file an appeal against the order impugned and also the grounds of appeal, hence, the provision of Order 43 Rule 3 CPC stood substantially complied with. Furthermore, this appeal was admitted for regular hearing on 17.10.2008, hence, in view of the consistent law laid down by the Apex Court as well as by this Court, the objection is no longer relevant. The learned counsel for the respondent has been unable to show any prejudice caused to the respondent by non-service of notice of the filing of the captioned appeal. In view of above, this Court is not persuaded to dismiss this appeal as not maintainable and the same must necessarily be decided on merit.
The relationship inter se the parties is not based on a contract simplicitor to be governed only by the general law i.e., the Contract Act and the Specific Relief Act. It is a peculiar type of agreement, a mining concession lease terms & conditions whereof are determined not only by the agreement between the parties but also by a special law applicable thereto viz the Punjab Mining Concession Rules 2002. Grievance of the respondent is that after grant of the lease, the site in issue was not made available to him in its entirety for the duration of the lease period. Such an eventuality is specifically governed by Rule 222 of the Rules ibid which reads as under:
"222. Refund of proportionate bid money. In case lessee fails to assume possession of the area or work therein due to circumstances beyond his control and informs within a period of fifteen days from the date he first faced the hindrance in this respect and proves it to the satisfaction of the Licensing Authority, it may refund the proportionate bid money to that extent:
Provided that no relief under this rule shall be admissible due to rains or floods in the rivers, streams or of dangerous quarry operations."
A bare reading of the said provision of law would make it clear and obvious that in such an eventuality the respondent is entitled to refund of the proportion of the consideration paid to the appellants. The alleged failure of the appellants in the instant case has been measured in pecuniary terms by the aforesaid provision of law itself. Besides, the respondent himself has translated his grievance and loss in pecuniary terms through the alternative relief of damages in the suit. Thus, in the instant case monetary compensation is the obvious remedy available to the respondent and he was not entitled for any injunction permanent or temporary.
Upshot of the above resume of facts and discussion would be that it is a fit case for interference and invalidation of the orders impugned. Therefore, by accepting this appeal the order impugned is set aside holding the same as illegal and in violation of the law.
Appeal accepted in the terms indicated ibid leaving the parties to bear their own costs.
(R.A.) Appeal accepted.
PLJ 2009 Lahore 888
Present: Maulvi Anwar-ul-Haq, J.
Sh. RIAZ AHMED and 2 others--Appellants
versus
ATTA MUHAMMAD QURESHI and others--Respondents
SAO No. 97 of 2006, heard on 30.10.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment petition--Bona fide personal need--Landlord is required to explain his possession over a building, which is owned--Held: Landlord was not in possession over a building which is owned as well as possessed by him--Only the matter of personal requirement vis-a-vis the remand order of High Court have been agitated to present appeal. [P. 890] A
Ch. Khurshid Ahmad, Advocate for Appellants.
Mr. Ahmad Waheed Khan, Advocate for Respondents.
Dates of hearing: 17.10.2008, 22.10.2008, 23.10.2008, 27.10.2008, 29.10.2008 and 30.10.2008.
Judgment
On 19.9.1987 Ata Muhammad Qureshi, the predecessor-in-interest of the respondents, filed an application for the ejectment of the appellants from a shop, described in para-1 of the application and located in Gujranwala urban area. It was stated that the Appellant No. 1 is a tenant under rent agreement dated 8.11.1971 subject to payment of Rs.400/- per month as a rent. The tenancy commenced on 1.11.1971. The rent was enhanced from time to time and ultimately it was fixed at Rs. 1100/- per month in the year 1984. The ejectment was sought on the grounds of default in the payment of rent at the said rate w.e.f. February, 1987 and unauthorized sub-letting of the shop to Appellants No. 2 and 3. He served a notice on 9.4.1987 upon the said appellants. In response, a plea was taken that Sardar Muhammad the father of the Appellants No. 2 and 3 was the tenant and on his death the Appellants No. 2 and 3 are tenant. The bona fide personal requirement of Alamgir Akhtar, a son of the said landlord, was also pleaded. The appellants filed a written statement. It was stated that the Appellant No. 1 has nothing to do with the shop rather he is in possession of another shop of the deceased landlord as a tenant and an application for his ejectment has also been filed. According to them, their father Haji Sardar Muhammad was inducted as a tenant under an oral arrangement subject to payment of rent at the rate of Rs.400/- per month and that all the appellants are in possession as sons of the said deceased Haji Sardar Muhammad. The enhancement in the rate of rent was also admitted but it was stated that the same was procured under threat of ejectment. Regarding default it was stated that the rent stands paid at the rate of Rs.1100/- per month till 30.9.19897 and thereafter the rent is being deposited in Court. The plea of personal requirement for the son was denied with the allegation that the real purpose is to enhance the rent and to receive Pagri. Issues were framed. Evidence of the parties was recorded. The ejectment application was dismissed by the learned rent Controller on 12.5.1990. An appeal filed by the late landlord was heard by a learned ADJ, Gujranwala, who proceeded to strike off the defence of the appellant and to pass an ejectment order against them on 11.2.1991. The writ petition filed in this Court was dismissed. However, the Hon'ble Supreme Court remanded back the case for decision of the appeal afresh. A learned ADJ, Gujranwala, dismissed the first appeal on 19.3.1996. The appellants filed an SAO in this Court, which was heard alongwith SAO No. 183/96. Vide Judgment dated 15.4.2004 all the SAOs were allowed and the matter was remanded to the learned Rent Controller for a fresh decision. I deem it appropriate to reproduce hereunder the relevant para-3 of the said judgment:--
"3. I have examined the available record of these SAOs with the assistance of learned counsel for the parties. I too find that the matter has been dealt with in rather a slip shod manner by the learned Addl. District Judge and further that the effect of the events being reported by the learned counsel for the respondents has to be determined. All these SAOs are accordingly allowed. The impugned orders of the learned Court of appeal as also of the learned Rent Controller in all these cases are set aside. The result would be that the ejectment petitions shall be deemed to be pending before the learned Senior Civil Judge/learned Rent Controller, Gujranwala whereby parties shall appear on 17.5.2004. The learned Rent Controller shall in the first instance take on record the evidence being sought to be produced by the respondents in the form of certified copies of the sale-deeds regarding the shops owned by the deceased/landlord and thereafter shall give a further chance to both the parties to lead such further evidence as they wish to produce and after doing the needful to decided all these petitions afresh in the light of the entire evidence on record. This exercise be undertaken and completed preferably on or before 30-9-2004."
After this remand the learned Rent Controller recorded some evidence. He found that the default in payment of rent has not been proved. The allegation of sub-letting also found unproved. However, Issue No. 4 pertaining to the personal requirement of Alamgir Akhtar, the son of the deceased landlord, was answered in affirmative and an ejectment order was passed on 18.4.2006. First appeal filed by the appellants has been dismissed by a learned ADJ, Gujranwala, on 24.6.2006 up-holding the said findings of the learned Rent Controller.
Ch. Khurshid Ahmad, Advocate/learned counsel for the appellants contends that although the requirement of Alamgir Akhtar, the son of the deceased landlord, was pleaded but after the remand, he did not put in appearance rather Jehangir Akhtar appeared as AW-1 and did not state anything about the personal requirement of Alamgir Akhtar. He refers to the documents Exs. R.10 and R. 11 to contend that no explanation has been given in respect of the shops sold out by the late landlord during the pendency of the ejectment petition and in the absence of any such explanation the issue of personal requirement was bound to be answered against the respondents. Relies on the cases of Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Muhammad Inayat v. Saleh Muhammad (PLJ 2001 SC 217) and Muhammad Shafi v. Shahid Nadeem and 5 others (1999 CLC 1273) and Ghulam Haider v. Abdul Ghaffar and another (1992 SCMR 1303). Mr. Ahmad Waheed Khan, Advocate/learned counsel for the respondents, on the other hand, contends that the said witness was produced only for purposes of the matters to be considered in the light of the remand order passed by this Court on 15.4.2004 in SAO No. 183/96. He draws my attention to the examination-in-chief of the said witness in the form of affidavit (Ex.AW-6/1) where he had relied upon the evidence already recorded. Consequently, he refers to the earlier evidence to demonstrate that Ata Muhammad the deceased landlord appeared as AW-5 while Alamgir Akhtar (the relevant son) appeared as AW-4. Regarding the said second contention of Ch. Khurshid Ahmad, Advocate, he argued that in the absence of any evidence that late landlord or Alamgir Akhtar was ever in possession of any shop belonging to them, the contention merits no consideration.
I have gone through the records, with the assistance of the learned counsel for the parties. The respective pleadings on record and somewhat chequered history of the case have already been stated above. Only the matter of personal requirement vis-a-vis the said remand order of this Court have been agitated in this SAO. The shop was stated to be required by the son of the deceased landlord, namely, Alamgir Akhtar. He appeared as AW-3 on 10.7.1989. He is stated to be aged 24 years at that point. He stated that he gave up his studies in the year 1984 and started looking for a job but could not get one. He wants to sell cloth but has no shop in his possession. Neither he has vacated any shop. His father has six shops and all of them stand rented out and that he needs the shop in question for the said business. Not a single suggestion was given to this witness that he is doing some business or that he is in possession of a shop in the same urban area. The deceased landlord Ata Muhammad Qureshi appeared as AW-5 and stated that he needs it for the personal use of Alamgir Akhtar his son because he is doing nothing. To this witness as well no suggestion was given that the landlord or his said son is in possession of a shop in the said urban area. Muhammad Fayyaz appellant appeared as RW-5 and simply stated in examination-in-chief that the shop is not required for the son of the landlord and that the purpose is to enhance the rent. It will be seen that there is not even an allegation in the entire record that the landlord or the said son of the landlord were in possession of any shop in the same urban area.
The evidence of the appellants was recorded on 8.5.1990. After the remand, Jehangir Akhtar appeared as AW-1. His examination-in-chief is Ex.AW-1 (affidavit). He stated that the evidence regarding personal requirement has already been led. His statement was recorded on 20.3.2006 and to him also no suggestion was given that Alamgir Akhtar was in possession of any shop in the same urban area.
So far as the said other contention of Ch. Khurshid Ahmad, Advocate, is concerned, Ex. R.10 is a sale deed dated 2.12.1999 whereby Ata Muhammad Qureshi sold a shop to Shakeel Pasha, Liaqat Ali and Muhammad Iqbal. Ex.R.11 is a sale deed dated 2.12.1999 by Mst. Sanoober Gul daughter of Ata Muhammad Qureshi whereby she sold 42 Square Feet area in property No. BIII-2S-27 to Shamas Shahzad. There is no material whatsoever on record that the deceased landlord or the said son of the landlord was in possession of any of the properties sold through the said documents. The law on the subject was laid down by the Hon'ble Supreme Court of Pakistan in the case of Abdul Aziz and another v. Muhammad Ibrahim (PLD 1977 SC 442). It was held by their lordships that the landlord is required to explain his possession over a building, which is owned as well as possessed by him. This being so, the landlord was not at all required to explain the said sale made by him or his daughter in the absence of even an allegation that he or his said son was in possession of the building sold.
Having, thus, examined the records, I do not find any question of law arising in this SAO and further no grounds stand made out for interference with the impugned ejectment order. The SAO is accordingly dismissed. However, the appellants are directed to hand over vacant possession of the shop in question on or before 30.11.2008. No orders as to costs.
The records of the learned lower Courts be remitted back immediately.
(R.A.) SAO dismissed.
PLJ 2009 Lahore 892
Present: Ali Akbar Qureshi, J.
MUHAMMAD UMAR ISLAM--Petitioner
versus
Mst. IRAM SHEZADI and 3 others--Respondents
W.P. No. 11239 of 2008, heard on 31.10.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 7--Constitution of Pakistan, 1973, Art. 199--Entitlement for recovery of maintenance--Held: High Court while exercising the Constitutional jurisdiction should remain slow in interfering in the factual controversy unless the findings recorded by Courts below are the result of mis-reading and non-reading of evidence. [P. 895] A
2006 SCMR 12 ref.
Mr. Muhammad Afzal Ansari, Advocate for Petitioner.
Mr. Muhammad Rashid Bhatti, Advocate for Respondents.
Date of hearing: 31.10.2008.
Judgment
This Constitutional petition is directed against the judgment and decree dated 6.5.2008 and 10.3.2008 passed by the learned Courts below whereby the suits filed by the respondents were decided in the following manners;
(i) suit for dissolution of marriage was decreed;
(ii) suit for recovery of maintenance allowance was granted (a) Rs.2000/- per month to Respondent No. 1 from the date of institution till her idat while Respondent No. 2-minor was granted Rs.2000/- from the date of institution till the age of puberty;
(iii) suit for recovery of delivery expenses of the minor was granted Rs. 15,000/-;
(iv) and dowry articles Rs.3,60,620/-.
Both the parties being dissatisfied with the judgment and decree, preferred two independent appeals, the learned appellate Court heard the arguments and dispose of both the appeals by a consolidated judgment dated 6.5.2008, hence this Constitutional petition.
Learned counsel for the petitioner made issue wise submission. As regard Issue No. 1, the learned counsel submitted that the petitioner, as admitted by the respondent, is getting salary Rs.7000/- per month from the WAPDA, therefore, the maintenance allowance fixed by the learned Courts below is excessive to the income of the petitioner. The learned counsel prayed that the petitioner is ready to maintain the minor but according to his income whereas the Respondent No. 1 is not entitled for any maintenance as she herself left the house of the petitioner. At the time of the leaving the house of the petitioner, she took valuable articles and also brought Rs.27,000/- so to this extent the findings of the learned Courts below be set aside.
While making submissions on Issue No. 2, the learned counsel contended that Respondent No. 1 failed to prove the fact of delivery of the dowry articles to her by her parents at the time of marriage and also the possession of the same with the petitioner, thus the findings recorded by the learned Courts below are not only erroneous but also against the record available on the file. Next contended that the respondent herself has admitted while appearing in the witness box that two lists were prepared and the later list as pointed out in the record was prepared on the asking of the father of the petitioner and even otherwise the respondent could not succeed to prove the dowry articles as per the list, therefore, she is not entitled for the claim made by her. Also contended that the petitioner has specifically asserted that few articles of dowry were given to the petitioner but those were returned to her and presently nothing is lying with the petitioner, out of the dowry articles claimed by the respondent, On this issue, the learned lastly contended that the Respondent No. 1 has also failed to substantiate her claim regarding the dowry articles by placing in evidence the receipt thereof and if some receipts were produced, those are incorrect and product of fraud. The learned counsel submits that the findings on this issue drawn by the learned Courts below are totally incorrect and based on surmises and conjectures. As regard, the Issue No. 3, learned counsel submits that the petitioner who is employee of the WAPDA time and again asked to Respondent No. 1, at the time of delivery of Respondent No. 1 to get herself admit in the WAPDA hospital to avoid the heavy expenses of the delivery but the Respondent No. 1 knowingly refused to acceded the genuine request of the petitioner. The learned counsel submits that the petitioner was entitled to get medical facility free of costs from the WAPDA health services and the claim of the petitioner of the delivery charges is unfounded, therefore, the findings of the learned Courts below are also perversed. Reliance is placed on Mst. Allah Rakhi v. Tanvir Iqbal and others (2004 SCMR 1739), Muhammad Tayyab v. Mst. Bashiran, etc. (NLR 1992 CLJ 285) and Abdul Fahim v. Mst. Shahnaz Begum (2) Additional District Judge-II, Kohat (2004 SD 72).
Conversely, the learned counsel for respondents submits that the Respondent No. 1 is entitled for the maintenance allowance as she was turned out from the house of the petitioner, who from the said date is living in the house of her parents along with the minor and further she is also taking care and looking after the minor who was admittedly born from the wed lock of the parties. As regards, the maintenance of the minor is concerned, the learned counsel submits that due to the price hike and in fasion the minor is entitled for monthly maintenance of rupees not less than 5000/-. On Issue No. 2. the learned counsel rebutted the contention of the learned counsel for the petitioner, and submitted that Respondent No. 1 had successfully proved the delivery of the dowry articles at the time of marriage and also their possession with the petitioner, therefore, she is entitled for the recovery of the same. Learned counsel also contended that the Respondent No. 1 while appearing in the witness box has explained and mentioned all the names of the articles so the findings recorded by the learned Courts below are correct and in accordance with the record. Regarding Issue No. 3, the learned counsel submits that the petitioner has himself admitted that the minor was born in the house of the parents of Respondent No. 1 so this is sufficient to prove the entitlement of Respondent No. 1 to claim the delivery expenses of the minor. Reliance is placed on Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12), Pervez Alam v. Pakistan Dairy Products (Pvt), Limited, Karachi and 2 others (2005 SCMR 1840) and Abdu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others (PLD 2005 Lahore 370).
I have heard the learned counsel for the parties and perused the record.
Both the learned counsel below after appreciating the evidence and perusal the record available on the file reached to the concurrent conclusion that the minor-Respondent No. 2 is entitled to get the maintenance allowance @ Rs.2000/- per month. The learned appellate Court has rightly granted 10% annual increase in the allowance granted to the minor. As regard, Respondent No. 1, the respondent is also entitled to recover the maintenance on the ground that there is no rebuttal of the claim of the Respondent No. 1 on the record that she was turned out from the house of the petitioner without any cause and reason and specially she is also looking after and brining up the minor so she is in any case is entitled for the maintenance decreed by the learned Courts below. Even otherwise, there is no rebuttal to the statement of the learned counsel for the respondents that the petitioner has failed to rebut this claim of Respondent No. 1. As regards the claim of Respondent No. 1 about recovery of dowry articles, the petitioner herself appeared in the witness box and given detail of the articles given to her at the time of marriage. It is pertinent to mention here that the detail of the articles were given by Respondent No. 1 on the question put by the petitioner during the course of cross-examination so this is sufficient to establish that the Respondent No. 1 has succeeded to prove her claim of the dowry articles. There is also no rebuttal of the stance taken by Respondent No. 1 on the record that the dowry articles were given to Respondent No. 1 at the time of marriage, those were also brought in the house of the petitioner and are still lying with him. The witnesses appeared in support of the claim of Respondent No. 1 have also successfully proved so there is no reason available on the record not to grant the decree claimed by Respondent No. 1 as regard the recovery of dowry articles. The contention of the learned counsel for the petitioner that the respondent failed to produce on record the receipts of the articles and the proper list is repelled on the simple ground that in our society normally it is very difficult for the bride or her family to keep the receipts of the dowry articles for indefinite period. In fact it is to be seen while recording the findings whether the claimant has succeeded to prove the dowry articles. In this case, the respondent while giving the detail of the dowry articles has fully succeeded, therefore, the findings of the learned appellate Court are correct. The learned appellate Court while deciding Issue No. 2 again re-examined and re-appraised the evidence and other material available on the file and finally concluded that the petitioner is entitled to recover the dowry articles and in lieu thereof Rs.3,60,620/-. The enhancement/modification made by the learned appellate Court is upheld.
As regards, the findings on Issue No. 3, the learned counsel for the petitioner has himself admitted that the respondent refused to accept the offer of the petitioner to be admitted in the WAPDA hospital and the minor was born in the house of Respondent No. 1's parents so the Respondent No. 1 is entitled to recovery the maternity expenses of the minor from the petitioner. The claim decreed by the learned Courts below is correct and is upheld, The judgment relied upon by the learned counsel for the petitioner having no nexus with the facts of the case and are distinguished with the facts of the case in hand. The High Court while exercising the Constitutional jurisdiction should remain slow in interfering in the factual controversy unless the findings recorded by the learned Courts below are result of mis-reading and non-reading of evidence. The Hon'ble Supreme Court of Pakistan has also observed in Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12) that High Court in exercise of Constitutional jurisdiction is not supposed to dilate upon the controversial question of fact and to interfere in the concurrent findings on such question unless those are based on mis-reading and non-reading of evidence. In the instant case, the learned counsel for the petitioner has failed to point out any jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence with the concurrent finding recorded by the learned Courts below, therefore, there is hardly any reason to interfere with the concurrent conclusion.
Resultantly, I see no force in the petition and the same is hereby dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 896
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
MUHAMMAD HASSAN and others--Petitioners
versus
BASHIR AHMAD and others--Respondents
Civil Revision No. 444-D of 2008, heard on 5.11.2008.
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 52--Presumption of truth--No exception--Held: Once a tenant always a tenant. [P. 898] A
Agreement to sell--
----Effects--Held: Agreement to sell does not create even a slightest right or interest in the property and it creates a right to sue only. [P. 899] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 115--Dishonest entry being in conflict with entries of cultivation column of register Haqdaran Zamin--Revenue Patwari altered his status from tenant--Revenue patwari tampered with register Khasra gardawari and made ante-dated entries in favour of plaintiff--Held: No presumption of truth is attached to entries of khasra girdawari--Entry of khasra girdawari is not in line with that of register haqdaran zamin, to which presumption of truth is attached. [P. 900] C
Hafiz Muhammad Naveed Akhtar, Advocate for Petitioners.
Date of hearing: 5.11.2008.
Judgment
Brief facts giving rise to this Civil Revision may be given first. Agricultural land bearing Khewat Nos. 308 and 279, Khasras No. 228 and 220 measuring 50 kanals located in revenue estate of Waando Gharbi, Tehsil Kot Uddu, District Muzaffargarh was owned by Bashir Ahmad, Predecessor-in-interest of Respondents No. 2 to 9, herein. On 05.07.1997 Muhammad Hassan, Petitioner No. 1 herein, and Muhammad Ali Shah, predecessor-in-interest of Petitioners No. 2-A to 2-J herein, filed a suit against Bashir Ahmad, original owner, for specific performance of a contract with the plea that he had entered into an oral agreement to sell the suit land with him in the year 1973; and paid him total sale price of Rs. 10,000/-; that Bashir Ahmad had been avoiding execution of sale-deed on one pretext or the other since 1973 and that ultimately he refused to honour his commitment one month before 05.07.1997.
On contest being put, the original owner Bashir Ahmad, dismissed the claim of the petitioners/plaintiffs by filing a written statement to the effect that he never entered into an agreement to sell the suit property in favour of the plaintiffs; that they got entered their names in register Khasra Girdawari in connivance with the Revenue Field staff against the position existing on the ground and that as a matter of fact the land was in his constructive possession as owner through Amir Bakhsh, tenant at will.
The learned Civil Court put the parties at trial on the following issues:--
(i) Whether the description of suit land is incorrect, if so, its effect? OPD
(ii) Whether the plaintiffs are estopped by their words and conduct? OPD
(iii) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
(iv) Whether the defendant is entitled to recover special costs? OPD
(v) Whether the plaintiffs are entitled for a decree in his favour for the reason mentioned in the plaint? OPD
(vi) Relief.
The parties adduced oral as well as documentary evidence in support of their respective claim. On conclusion of trial, the suit of the petitioners/plaintiffs was dismissed vide judgment and decree dated 04.11.2005. On an appeal by the petitioners/plaintiffs, Ch. Abdul Razzaq, learned Additional District Judge set aside the judgment and decree of Trial Court on Issues No. 3, 4 and 6 and remanded the case to the trial Court with a direction to rewrite the judgment. Under the remand order, the learned Trial Civil Judge re-examined the entire evidence and held Issues No. 4 and 6 against the plaintiffs. Issues No. 2 and 3 were found in favour of the defendants. However, Issues No. 1 and 5 were answered against the defendants. Resultantly, the suit of the petitioners/ plaintiffs was again dismissed vide judgment and decree dated 20.05.2008. The petitioners herein filed an appeal against dismissal of their suit, which also met the same fate on 24.10.2008.
The petitioners have called in question legality, validity and correctness of concurrent findings of the learned Trial Court and the learned First Appellate Court on the ground that they misread the evidence and failed to appreciate the law governing the subject of agreement to sell immovable property.
Admittedly, the land was owned by Bashir Ahmad, predecessor-in-interest of the respondents herein. He was sued by the plaintiffs during his life time. He himself dismissed and denied the claim of the plaintiffs by filing written statement to the effect A that he never entered into an agreement to sell the suit property with the plaintiffs. Learned counsel for the petitioners/plaintiffs vehemently argued that the entries of revenue record favourable to the claim of petitioners/plaintiffs either escaped notice of the learned Courts below or the same had not been examined. In order to arrive at the truth I have carefully examined the copy of register Haqdaran Zamin for the year, 1993-94 touching the disputed property, which was adduced in evidence as Ex.P. 1. It is manifest from a bare perusal of Ex. P.1 that a part of the suit property was in occupation of Bashir Ahmad, the original owner, while a few Khasra numbers of the disputed property were in possession of Muhammad Hassan, plaintiff, as tenant at will. The name of Muhammad Ali Shah, predecessor-in-interest of Petitioners No. 2-A to 2-J does not figure any where in any of the columns of Jamabandi. Under Section 52 of West Pakistan Land Revenue Act, 1967 entries in record of rights has got presumption of truth. The only entry in favour of one of the plaintiffs in the P.1 is as tenant at will. This is an established principle of law subject to no exception that once a tenant always a tenant. Article 115 of the Qanun-e-Shahadat Order 1984 narrates this principle in the following words:
115. Estoppel of tenant and licensee of person in possession--No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given."
When confronted with the entries of Jamabandi and the provisions of Article 115 of the Qanun-e-Shahadat Order, learned counsel for petitioners attempted to argue that in the first instance, the plaintiffs occupied the suit land as tenants at will, but later on their status was changed when they made an agreement to sell with the original owner Bashir Ahmad. The contention is misconceived for two reasons. Firstly, a tenant cannot set up hostile title against his landlord without first surrendering and then regaining possession of the subject matter in his own rights hostile to the landlord. According to the revenue papers relied upon by the petitioner they gained possession of the suit property as tenant at will under the original owner Bashir Ahmad, therefore, they are estopped once for all to set up hostile title against him without first surrendering possession of the subject matter and then regaining possession thereof under the agreement to sell, if any. The claim of the petitioners being violative of Article 115 of Qanun-e-Shahadat Order is not acceptable.
I have minutely gone through the Land Revenue Act, Land Records Manual, Settlement Manual and all other Land Laws and could not find any provisions of law, which may empower the Patwari to change status of the tenant at will to the above effect, It is painful to note that the Patwari exercised jurisdiction which even does not vest in the District Collector or Board of Revenue. The above said meaningless and dishonest entry being in conflict with entries of cultivation Column No. 4 of register Haqdaran Zamin, Ex.P.1 and being violative of Article 115 of Qanun-e-Shahadat Order and all Land Laws governing the subject, must be ignored being nullity in the eyes of law. Secondly, it is an absolute rule of law that an agreement to sell does not create even a slightest right or interest in the property and it creates a right to sue only. In the case in hand, the Revenue Field staff joined hands with the plaintiffs and incorporated their names in revenue record illegally and dishonestly with a motive to equip them with some interest in the suit property. Thirdly, in Jamabandi for the year 1993-94, Ex.P.1 Muhammad Hassan, plaintiff, was recorded as tenant at will over a part of the suit property. The Revenue Patwari altered his status from tenant at will to that of an occupant under an agreement to sell with effect from 1990 onward. Had Muhammad Hassan Shah, plaintiff, been recorded as occupant under an agreement to sell for the above said period, he would not have been recorded as tenant at will in cultivation Column No. 4 of Jamabandi for the year 1993-94. The entry of register Haqdaran Zamin, P.1 has conclusively established that the Revenue Patwari tampered with register Khasra Girdawari and made antedated entries therein in favour of Muhammad Hassan, plaintiff. Needless to add that no presumption of truth is attached to the entries of Khasra Girdawari. As the entry of Khasra Girdawari is not in line with that of register Haqdaran Zamin, to which presumption of truth is attached, I straightaway discard the Khasra Girdawari. The Patwari not only tampered with the record and made dishonest entry therein but also dared to appear before the Trial Court and made a statement on oath that the original owner Bashir Ahmad had made a statement before him in favour of the plaintiffs. Had the owner appeared before him to certify the factum of sale of the suit property, the Patwari would have immediately incorporated the information in the Daily Diary followed by an entry in the Mutation Register. There is no answer to this question as to why the Patwari committed the said information about landed property to his memory instead of incorporating the same in the Revenue Record.
The learned Trial Court appointed Local Commission for determination of the position at the spot. The Local Commission inspected the spot, examined both the sides and submitted his report in favour of the respondents/defendants.
For what has been stated above, I feel no difficulty in concluding that the learned Courts below rightly non-suited the petitioners/ plaintiffs. The concurrent findings of the learned Trial Court and the First Appellate Court being based on legal evidence and completely in line with the law governing the subject, are not open to any exception. I, therefore, dismiss this revision petition in limine.
I have no doubt in my mind that the petitioners/plaintiffs dragged the owners of land in frivolous litigation for years. This Court can very well imagine the agony faced by the owners during trial of the controversy spreading over years. It stands established on record that the plaintiffs/tenants are/were not possessed with any cause of action or locus standi respecting the suit land and they started frivolous and vexatious litigation obviously with ulterior motive. I, therefore, impose compensatory/penal cost of Rs. 25,000/- (Twenty five thousand) on the petitioners/plaintiffs, which on its realization shall be paid to the respondents/defendants.
The Revenue Officials played havoc with the Revenue Administration. They made illegal entries in the revenue record and provided a basis for frivolous and baseless litigation. The entries of Khasra Girdawari were tampered with in such a way that the same did not remain in conformity with the entries of Jamabandi. The District Officer (Revenue)/District Collector, Muzaffargarh is, therefore, directed to get a case registered against all the Revenue Officials/Officers at fault with the Anti Corruption Establishment, Muzaffargarh besides taking an appropriate and effective action on administrative side.
A copy of this judgment may also be sent to District Judge, Muzaffargarh with a direction to recover the compensatory/ penal cost from the petitioners/plaintiffs by adopting all legal means including the coercive measures, if required, and to ensure its payment to the respondents/defendants within a period of three months from receipt of order.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 901 (DB)
Present: Syed Asghar Haider and Sh. Azmat Saeed, JJ.
MEHMOOD AHMAD--Appellant
versus
GOVT. OF PUNJAB, LOCAL GOVERNMENT & COMMUNITY DEVELOPMENT DEPARTMENT through Secretary LG&CDD Punjab, Lahore and another--Respondents
ICA No. 238 of 2008 in W.P. No. 8330/2008, decided on 4.12.2008.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Punjab Local Government Ordinance, 2001, S. 156(6)--Intra Court appeal--Removal of the officiating Tehsil Nazim--On officiating nazim was not nominated to his office but is elected to the said seat and entered the office through the will of the majority of the electoral college--No provision in Punjab Local Government Ordinance, 2001, for removal of an officiating Tehsil Nazim--Held: Even an elected Tehsil Nazim can not be recalled or removed from his office by Tehsil Council for a period of six months from his assuming the office as has been provided by S. 63(8) of Ordinance, Order of High Court was totally unexceptionable and not open to any interference--Appeal dismissed. [P. 903] A
Mr. Muhammad Ramzan Chaudhry, Advocate for Appellant.
Malik Zafar Iqbal Awan, Addl. AG, Mr. Naseem Kashmiri, DAG.
Mr. Zahid Sultan Khan, Advocate for Respondent No. 2
Ch. Ibrar Ahmed, Advocate for Respondent No. 1.
Date of hearing: 24.10.2008.
Order
This ICA is directed against the order dated 15.7.2008 whereby the writ petition filed by the appellant was dismissed.
Facts necessary for the adjudication of the lis at hand are that both the appellant and Respondent No. 2 by virtue of their respective offices were the members of Tehsil Council Shakargarh. Respondent No. 2 was also elected as Naib Nazim of the said Council. On 26.11.2007, the then Tehsil Nazim resigned and consequently the office of Tehsil Nazim fell vacant. A meeting of the house was apparently convened on 5.12.2007 which was presided over by Respondent No. 2 being the Naib Nazim with the object of electing an officiating Nazim and consequently Respondent No. 2 was elected as officiating Nazim. Subsequently, motion for recall was moved against Respondent No. 2 which was carried by the majority of the house and pursuant thereto, notification was issued by the Election Commission of Pakistan on 11.3.2008 holding that Respondent No. 2 had ceased to hold the office as Naib Tehsil Nazim. Whereafter, Respondent No. 1 issued an order directing the convening of the Tehsil Council to elect an officiating Tehsil Nazim vide its notification dated 8.3.2008. Pursuant whereof apparently meeting of the house was convened and the appellant was elected as the officiating Tehsil Nazim and order in this behalf was issued by Respondent No. 1 on 3.4.2008. Said order was recalled by Respondent No. 1 subsequently through order dated 3.7.2008 declaring that Respondent No. 2 was and should continue to function as the officiating Tehsil Nazim. The present appellant challenged the said notification dated 3.7.2008 through a writ petition which was contested by respondents and eventually dismissed by the learned single Judge of this Court by means of order dated 15.7.2008 sought to be impugned herein.
It is contended by the learned counsel for the appellant that the Respondent No. 2 had lost the confidence of the majority of the house, hence, had ceased to hold the office as the officiating Tehsil Nazim and in his stead the appellant had been elected as the officiating Tehsil Nazim, therefore, the order of Respondent No. 1 dated 3.7.2008 was without lawful authority. It is further contended that even otherwise an officiating Tehsil Nazim could only be elected for a maximum period of 120 days which having lapsed, the Respondent No. 2 could no longer hold the office or perform the functions of officiating Tehsil Nazim.
The learned counsel for Respondent No. 2 controverts the contentions being raised on behalf of the appellant and has further contended that respondent was duly elected as officiating Tehsil Nazim and there is no provision in law for his recall. The learned Additional Advocate General also controverts the assertions being made on behalf of the appellant.
Heard. Record perused. It is an admitted fact between the parties that the original Tehsil Nazim resigned and the office fell vacant and in such an eventuality Section 156(5) of the Punjab Local Government Ordinance 2001 enjoins that such vacancy shall be filed in through bye-election within 120 days of the occurrence of such vacancy. Sub-section 6 of Section 156 of the Ordinance ibid further provides that during the intervening period, the Council concerned by a majority votes shall elect an officiating Nazim from amongst its members in accordance with Section 68 of the Ordinance which also provides that such meeting shall be presided over by a Naib Nazim. It is an admitted fact between the parties and a matter of record that Respondent No. 2 was elected as the officiating Tehsil Nazim on 5.12.2007 in accordance with the provisions of the Ordinance.
A Tehsil Council can remove a Tehsil Nazim through a recall motion in terms of Section 63 of the Ordinance. Similarly, a Naib Nazim can be removed through expression of no confidence by majority of the members of Tehsil Council in accordance with Section 72 of the Ordinance. There is no provision in the Ordinance for the removal of an officiating Tehsil Nazim. Such provision is conspicuous by its absence. Thus, the proceedings of the Tehsil Council purporting to express no confidence in Respondent No. 2 both in fact and in law were and could only be with reference to the office of Naib Nazim, and as a consequence thereof the Respondent No. 2 obviously ceased to hold the office of the Naib Nazim of the Tehsil Council as is also stated in the notification dated 11.3.2008. And in fact & in law Respondent No. 2 continued to hold the office of the officiating Tehsil Nazim. Consequently, the order dated 25.3.2008 directing the election of an officiating Tehsil Nazim was not only factually incorrect but of no legal consequence and the result of an error and the said error was rectified by an order/notification dated 3.7.2008 which was impugned by the appellant. In this view of the matter no exception can be taken to the order/notification dated 3.7.2008. There can be escape from the fact that an officiating Tehsil Nazim is not nominated to his office but is elected to the said seat and enters the office through the will of the majority of the electoral college i.e., Tehsil Council. In the normal course of events he is to hold the office for a period of 120 days, only and it is perhaps in view of the aforesaid very short period of time no provision for his recall has been provided. Even an elected Tehsil Nazim cannot be recalled or removed from his office by a Tehsil Council for a period of six months from his assuming the office as has been provided by Section 63 sub-section 8 of the Ordinance. Consistency in the intention of the legislature can be discerned.
In view of above, there is no merit in this appeal as the order of the learned Judge of this Court is totally unexceptionable and not open to any interference. Hence, this appeal must fail. The learned Judge of this Court had directed in his order dated 15.7.2008 for holding of the election to the office of Tehsil Nazim within one month. We are informed by the learned Addl.AG that elections were scheduled but subsequently cancelled. Be that as it may, we are confident that vacancy of Tehsil Nazim shall be filled through a fresh election to be conducted by the Election Commission of Pakistan as expeditiously as is practical and possible. Dismissed accordingly.
(R.A.) ICA dismissed.
PLJ 2009 Lahore 904
Present: Ali Akbar Qureshi, J.
MUHAMMAD NAZIR--Appellant
versus
FAQIR MUHAMMAD--Respondent
S.A.O. No. 65 of 2006, heard on 28.11.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Ejectment petition--Contention raised--Rent Controller cannot act as a Civil Court--Question of--Determination--Held: Rent Controller has the jurisdiction to conduct the demarcation to decide the issue of relationship of landlord and tenant. [P. 906] A
Mr. Naveed Shehryar, Advocate for Appellant.
Mr. Mahboob Rasool Awan, Advocate for Respondent.
Date of hearing: 28.11.2008.
Judgment
This second appeal is directed against the order dated 18.4.2006 passed by the learned Addl. District Judge, Mandi Baha-ud-Din whereby the appeal of the respondent was accepted and the case was remanded to the learned trial Court for afresh decision.
Briefly, the facts stated are that the respondent filed an ejectment petition against the appellant for the vacation of a shop along with Chaubara No. 298/3 situated at Malkwal, the property fully described in the head note of the ejectment petition. The respondent stated in the ejectment petition that he rented out the demise property to the appellant @ Rs.1000/- and because of relationship inter-se between the parties, no tenancy agreement was written. The appellant who was inducted in the property as tenant, after some time refused to pay the rent and even on demand, did not pay the same, therefore, the appellant has become defaulter and he be directed to hand over the vacant possession of the shop in question to the respondent. The ejectment petition was contested by the appellant who straightway denied the relationship of landlord and tenant on the plea that the appellant is in possession of the property, which is owned by sons of Rulia and Muhammad Sharif. The shop in dispute in fact was rented out to the appellant by sons of Rulia and Muhammad Sharif and the shop No. 99/3, which is not owned by the respondent, is under the possession of the petitioner as tenant.
The learned Rent Controller, out of the divergent contention of the parties framed the following issues:--
(1) Whether there exists relationship of landlord and tenant between the parties? OPA
(2) Relief.
Learned counsel for the appellant contended that the learned 1st appellate Court, in view of the peculiar facts of the case had no legal justification to remand the case to the learned Rent Controller for afresh decision because of the reason that there was sufficient material available on the record to decide by the 1st appellate Court. Next contended that the learned 1st appellate Court while remanding the case to the learned trial Court has passed a direction to the learned Rent Controller to appoint a local commission to demarcate shops No. 298-A/3 and 299/3 whereas the learned Rent Controller cannot act as a civil Court. Also added that the learned appellate Court acted against the law in framing additional Issues No. 1-A whereby in fact the respondent had allowed to lead his evidence to fill in the lacuna. The learned counsel also argued that the issue already framed by the learned Rent Controller covers the vires of the Issue No. 1-A, therefore, there was no reason at all to frame the additional issue and remand the matter to the learned Rent Controller. Lastly, the learned counsel for the appellant supported the findings recorded by the learned Rent Controller while dismissing the ejectment petition.
Conversely, the learned counsel for the respondent fully supported the findings recorded by the learned 1st appellate Court and submitted that the learned appellate Court rightly framed an additional issue and remanded the matter to the learned Rent Controller to decide the same afresh after recording the evidence. Also added by the learned counsel that the learned 1st appellate Court has rightly passed a direction to the learned trial Court to appoint a local commission for the demarcation of the shop in question because there is only solution to decide the matter in accordance with law.
I have heard the learned counsel for the parties and perused the record.
The record indicates that the appellant while filing the written reply of the ejectment petition straightway denied the relationship of landlord and tenant mainly on the ground that the appellant is not tenant in the shop No. 298/3 which is allegedly owned by the respondent and in fact the appellant is tenant but in the shop No. 299/3 which is owned by the sons of Rulia and Muhammad Sharif. The learned Rent Controller mainly relied upon the documentary evidence, which is produced by the appellant but to my mind the same was not sufficient to resolve the controversy between the parties. The learned Ist appellate Court, it appears from the findings, surveyed and scanned all the evidence available on the file and finally reached to the conclusion, to resolve the controversy, that the matter should be remanded to the learned Rent Controller for its decision afresh. For this purpose, the learned 1st appellate Court framed an additional issue and also passed a direction to the learned Rent Controller to appoint a local commission to demarcate the shops No. 298/3 and 299/3. The contention raised by the learned counsel for the appellant that the leaned Rent Controller cannot act as a civil Court, therefore, the direction passed by the learned appellate Court to conduct the demarcation of the aforesaid shops is totally against the law, has no force because of the reason, that the learned Rent Controller has to decide the issue of relationship of landlord and tenant between the parties obviously keeping in view the facts of each case. In this case, the instant appellant has denied the relationship of landlord and tenant on the ground that he is not tenant in Shop No. 298/3 but in shop No. 299/3 which is not owned by the respondent. Further, it is also admitted on record that both the shops are contiguous/adjacent and the dispute can only be decided after conducting the demarcation of the said shop. Even otherwise, the learned Rent Controller can adopt any method to resolve the controversy keeping in view the facts of the each case, therefore, the learned 1st appellate Court has rightly reached to the conclusion that the learned Rent Controller shall appoint a local commission to demarcate the land.
The learned counsel for the appellate has failed to point out any jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence with the findings recorded by the learned 1st appellate Court while remanding the matter to the learned trial Court, therefore, there is hardly any reason to interfere with the findings rendered by the learned 1st appellate Court.
For the foregoing reasons, this second appeal has no force and is dismissed while maintaining the order dated 18.4.2006 passed by the learned 1st appellate Court. No order as to costs.
(R.A.) Appeal dismissed.
PLJ 2008 Lahore 907 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Syed Hamid Ali Shah and Kh. Farooq Saeed, JJ.
TARIQ RAFIQUE SHAIKH--Appellant
versus
CITI BANK N.A. BANKING COMPANY INCORPORATED UNDER THE LAWS OF UNITED STATES OF AMERICA HAVING ONE OF ITS BRAND ISLAMABAD--Respondent
R.F.A. No. 167 of 2004, heard on 27.6.2008.
Financial Institutions (Recovery of Finance) Ordinance, 2001 (XLVI of 2001)
----Ss. 22(1) & 10(8)--Leave to defend--Grant of--Essentials--Whenever question of law and fact raised which needs evidence--Grant of leave is must. [P. 909] A
Transfer of Property Act, 1882 (IV of 1882)--
----S.105--Lease--Essential of a valid lease--Delivery of lease assets--No lease when there is no lease property--Lease commences when lease assets are delivered and date on which the parties signed the lease agreement is not material in this regard--Held: Legal and valid lease is one where hire grantor has delivered possession leased assets to hirer--Further held: In absence of possession rights and obligation of hire grantor and hirer are not created in the eyes of law. [P. 911] C
[(1956) All ER 866], [(1988) 3 ALL ER 902], [(1943) LJ CCR 31].
Words and Phrases--
----Lease--Definition--Lease can be termed as a contract allowing somebody exclusive possession of another's property for particular time in return for rent. [Pp. 909 & 911] B
Concise Oxford Dictionary, Black Law Dictionary 6th Edition referred.
Raja Zaheer ud Din Babar, Advocate for Appellant.
Mr. Muhammad Rasheed Qamar, Advocate for Respondent.
Date of hearing: 27.6.2008.
Judgment
Syed Hamid Ali Shah, J.--Respondent filed a recovery suit, against the appellant in respect of financial facility extended for the purchase/lease of Honda VTI Car. The appellant in response to the notices, moved an application for leave to defend the suit. Appellant after denying the delivery of vehicle to him asserted in the application that one Muhammad Akram Sheikh (his employer) fraudulently got sanctioned various facilities for the purchase of vehicles, in different names. It was also asserted that officials of the bank had connived with Muhammad Akram Sheikh and the delinquent officials of the bank were subsequently sacked. Learned trial Court, refused to grant leave to defend the suit and vide judgment and decree dated 29.5.2004 decreed the suit in favour of the respondent against the appellant. Hence this appeal.
It is contended that financial assistance was never availed by the appellant. The employor (Muhammad Akram Sheikh) availed various lease finance facilities, two in his own name, one for the purchase of car in the name of his wife, one in the name of his father and the fifth in the name of the appellant. It is contended that initial installment and other charges were paid by said Muhammad Akram Sheikh. He went on to argue that the officials of the bank responsible for extending finance facility to Muhammad Akram Sheikh, in the name of various persons, were sacked by the bank, for their fraudulent act. It was further submitted that the appellant, being a petty employee of Akram Sheikh, had no financial worth. He summed up his arguments with the contention that the vehicle in question, is registered in the name of Akram Sheikh, which fact clearly proves that financial assistant was not availed by the appellant.
Learned counsel for the respondent, on the other hand, has fully supported the impugned judgment. He has submitted that the grounds taken in this appeal, were not urged in the application for leave to defend. Appellant has taken fresh grounds at the appellate stage to fill the lacunas in his case. Learned counsel has submitted that delivery letter as well as all other loan agreements, were signed by the appellant himself, therefore, he cannot wriggle out of his responsibility, by mere denying the financial facility.
Heard learned counsel for the parties and record perused.
Learned Banking Court has refused the grant of leave to defend the suit to the appellant, on the ground that the appellant has signed the finance agreement, delivery/acceptance letter and has provided his National Identity Card to the respondent bank. The possession receipt also contains his signatures. Learned Court further observed that the appellant who has singed the relevant documents, is neither a Parda Nashin lady nor illiterate person, therefore, cannot be absolved of his responsibility of paying of all the debts of the respondent bank. The appellant cannot be held responsible for the payment of debt, if the financial assistance is not extended to him and the amount of lease finance had not been disbursed to him. There is no dispute that the appellant was an employee (Marketing Manager) of Akram Sheikh. Latter, had availed various lease finance facilities, in identical manner and the officers of the bank were sacked and removed from the job of the bank for extending illegally lease finance facilities to Akram Sheikh.
Section 10 (8) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 deals with grant of leave to defend the suit. It has been provided in this provision of law that for the purpose of grant of leave, a Banking Court has to consider contents of the plaint, application for leave to defend the suit and reply thereto. The Court, after considering the plaint, application and reply, is of the view that questions of law or facts have been raised, which need evidence to be recorded, shall grant leave. Mere perusal of sub-section (8) ibid reveals that whenever a question of law and fact is raised which needs evidence to be recorded, grant of leave to defend the suit is the only course. The essentials for grant of leave are the questions of law and fact which require determination through recording of evidence. Registration Book speaks about the fact that leased vehicle was delivered to Muhammad Akram Sheikh and remained in his constructive as well as legal possession and use. The questions as to whether the leased vehicle was delivered to the appellant; it remained in his possession; lease finance was utilized by appellant and that he was a customer or the loan in his name existed as Benamidar, require evidence to be recorded for it's proof. These questions cannot be ascertained summarily, these questions require determination through recording of evidence. Mere signing of the finance documents, does not establish the case against the appellant. Learned Court has erroneously declined the appellant leave to defend the suit.
The nature of financial assistance allegedly extended to the appellant is lease finance. The liability of a hirer, arises only when leased assets are delivered by the hire grantor.
The lease' can be termed as a contract allowing somebody exclusive possession of another's property for a particular time, in return for rent.Lease' according to "The Concise Oxford
Dictionary" is an agreement by which the owner of a building or land etc.
allows another to use it for specific time in return for payment. Lease according to it's definition in "Black's Law
Dictionary" 6th Edition means a contract by which one owning such property grants to another the right to possess, use and enjoy it for specified period of time in exchange for periodic payment of a stipulated price, referred to as rent.
The passage from "Lease Finance and Hire Purchase" by Vinod Kothari, requires mention and relevant part at page 7, is reproduced hereunder:
"The subject of a lease is the asset, article or property to be leased. The asset may be anything an automobile, or aircraft, or machine, or vehicle, or land, or building, or a factory. Only tangible assets can be leased-one of the essential elements of a lease is handing over of possession, along with the right to use. Hence intangible assets are assigned, whereas tangible assets may be leased."
The author discussed following essentials of a valid lease:--
What cannot be owned cannot be leased. Thus, human resources cannot be "leased", though there may be a personal or organizational contract for availing personal or personal services.
While lease of movable properties can be effected by mere delivery, a lease of immovable property in order to be effective has to be by way of written instrument. Such instrument requires compulsory registration, and has to be stamped under the Stamp Act.
Unless it were a lease of immovable property, a lease of movable property is initiated by delivering the property, and terminated by redelivering the property to the lessor.
It is the duty of the lessor to deliver the goods to the lessee.
It will be advantageous to discuss and refer to the cases from English jurisdiction where:--
It was held in the case of "Karsales (Harrow) Ltd. v. Wallias" [(1956) All ER 866] that the lease does not commence until the goods have been delivered. The obligation to delivery may carry with it the duty to supply documents which are necessary to enable the goods to be lawfully used. The rules regarding place, time and mode of delivery appear to be same as stipulated in the Sale of Goods Act, 1930." "Therefore, there is an implied warranty in a lease agreement that the lessor, in addition to putting the lessee into possession of goods, will also leave him in peaceful possession of them during the currency of the agreement. This warranty is broken if the lessee's enjoyment of possession is interfered with either by the owner himself or by the lawful acts of third parties. It may be noted that as the lessor does not intend to transfer the title to the lessee, there is no implied condition as to the title."
Associated Japanese Bank (International) Vs. Credit Du Nord SA and another {(1988) 3 ALL BR 902}. The lease equipment in this case was found to be non-existence. It was held that there was no lease in the eyes of law and when goods are not delivered by the hire grantor to the hirer, a lease cannot be created according to law. In the case of "Domestic Electric Rentals Ltd Vs. Dowson" [(1943) LJ CCR 31)], it was held that the rights and liabilities are created only when the goods are delivered. Property in goods without material possession is an abstract thing and cannot create any rights. In the case of "Karsales (Herrow) Vs. Wallias" [(1956) ALL ER 866], it was held that it is the duty of the lessor to deliver the goods to the lessee. Possession granted must be actual as it will entitle the hirer to actually make use of the goods. Lease commences at the time when the goods are delivered.
The essential of a valid lease, is the delivery of leased assets. There is no lease when there is no "lease property". The lease commences when lease assets are delivered and the date on which the parties signed the lease agreement is not material in this regard. A legal and valid lease is one where the hire grantor has delivered the possession of the leased assets to the hirer. In the absence of possession, the rights and obligations of the hire grantor and hirer are not created in the eyes of law.
In the case in hand, the plaintiff has not proved or established that the leased car was delivered to the appellant and remained in his use. Registration book of the leased car speaks of it's possession, with another person viz Muhammad Akram Sheikh. Banking Court without determining the factum of delivery of possession has proceeded to pass the decree. Such decree is not legally sustainable.
For the foregoing, this appeal is allowed, the impugned judgment and decree passed by learned Banking Court being not sustainable and is set-aside. Resultantly the suit of the respondent is deemed to be pending. The appellant is granted leave to defend the suit subject to his furnishing adequate security for the suit amount, to the satisfaction of learned Banking Court. Parties to bear their own costs.
(R.A.) Appeal allowed.
PLJ 2009 Lahore 912
Present: Ali Akbar Qureshi, J.
Mst. YASMIN--Petitioner
versus
ADDITIONAL DISTRICT & SESSION JUDGE, OKARA and another--Respondents
W.P. No. 11661 of 2008, decided on 30.4.2009.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 5--Constitution of Pakistan, 1973--Art. 199--Dowry articles--Claim for depreciation--Concurrent findings--Constitutional jurisdiction--Modification of--Whereas the appellate Court had modified the decree without any cogent reasoning, therefore, apparently the appellate Court had not exercised the jurisdiction vested with it--It was not the case of depreciation of the dowry articles as the marriage between the parties to the suit remained intact for 5/6 days only--Keeping in view the natural depreciation the petitioner was held entitled to recover the dowry articles--Petition allowed. [P. 913] A
Mr. M. Kabeer Khan, Advocate for Petitioner.
Respondent No. 2 exparte.
Date of hearing: 30.4.2009.
Order
Petitioner is aggrieved of the judgment and decree dated 16.6.2008, passed by the learned appellate Court, whereby the decree passed by the learned trial Court of Rs. 190,000/- in lieu of the dowry articles, was modified and the petitioner was held entitled to recover an amount of Rs. 125,000/-.
Rs. 125,000/-instead of the prayer made by her, which is against law. Next contended that the learned appellate Court without giving any cogent reasons has reduced the decretal amount, which is not only contrary to the record but also against the unshaken, un-rebutted evidence led by the petitioner.
Despite service of notice no one has entered appearance on behalf of the respondent, therefore, proceeded against ex-parte on 19.2.2009.
Heard.
PLJ 2009 Lahore 913
Present: Maulvi Anwar-ul-haq, J.
MUHAMMAD NAWAZ and others--Petitioners
versus
MUHAMMAD KHAN and others--Respondents
C.R. No. 245 of 2002, heard on 3.2.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--MLR 115--Para 24(3)--Civil revision--Suit for declaration--Sale deed in favour of petitioners and sale being of partial holding is liable to be cancelled being violative of MLR 115 so plaintiffs are owners of land on basis of decree--Original owner of land executed of sale-deed of a small portion of his land in favour of his son--Since after such sale he was still left with more than a subsistence sale was valid--Admittedly, he sold entire remaining land to petitioners and executed sale-deed--Such sale, therefore, is perfectly valid and permissible by virtue of proviso to Para 24 (3) of MLR 115--Subsequent setting aside of sale in favour of son of owner on basis of consenting statement in a case between father and son would have no effect whatsoever on sale in favour of petitioners which was past and closed transaction--Revision allowed. [P. 916] A
MLR-115--
----Jurisdiction--Suit for declaration--Seeking cancellation of sale-deed--Sale deed and sale being of partial holding is liable to be cancelled being violative of MLR 115--Jurisdiction of Civil Court--Jurisdiction to declare any transaction to be void under MLR 115 exclusively vests in Land Commission or its subordinate officers--Jurisdiction of Civil Court as also all other Tribunals/Authorities is absolutely excluded.
[P. 916] B
MLR 115--
----Validity--MLR 115 stand declared to be repugnant to injunctions of Islam by Shariat Appellate Bench of Supreme Court and as such void--Suit filed seeking declaration after judgment took effect on 1.1.1990 on touch stone of provisions of MLR 115 could not even be entertained. [P. 917] C
PLD 1990 SC 99, rel.
M/s. Ch. Haroon Akbar Cheema, Sardar Mohabbat Ali Dogar & Malik Allah Yar, Advocates for Petitioners.
Syed Shamim Abbas Bokhari, Advocate for Respondents.
Dates of hearing: 2.2.2009 & 3.2.2009.
Judgment
This case has a chequered history. The facts need be placed in chronological order. Karam Ali, predecessor-in-interest of Respondents No. 5 to 12 owned land measuring 146 kanals in village Jalap, Tehsil Bhalwal, District Sargodha. In the first instance he sold the land measuring 2 kanals 15 marlas to his son Amjad Ali vide registered sale-deed No. 457 (Ex.D3) dated 25.7.73. On the same day he sold the remaining land measuring 143 kanals 5 marlas to the petitioners vide registered sale-deed No. 458 (Ex.D4). I may note here that the land was sold for a consideration of Rs. 80.000/- which amount was paid in front of the Sub-Registrar. Karam Ali filed a suit against the petitioners vide plaint Ex.D15 stating that he sold the land to the petitioners vide the said registered sale-deed but the mutation was rejected on 30.5.74 as sale was found against the MLR 115 and paid back the consideration amount of Rs. 80,000/- to the petitioners. He accordingly sought a declaration that he is owner of the land. While this suit was pending he filed another suit on 10.5.75 against his son Amjad Ali. The declaration was sought that the sale of the said 2 kanals 15 marlas of land is a result of fraud and is void and be set aside. This suit was decreed within 6 days on 16.5.75 on the consenting statement of the said son of Karam Ali. Respondents No. 1 to 3 became parties to the suit on the ground that on the basis of an award dated 30.9.76 (Ex. P1) and order dated 13.10.76 making it a rule of Court (Ex.P2) Karam Ali transferred the same land to them. They were accordingly impleaded as defendants. In the said suit issues were framed. Evidence of the parties was recorded. It was dismissed vide judgment dated 2.3.80. Karam Ali as well as Respondents No. 1 to 3 filed separate appeals. These appeals were heard together by the learned District Judge, Sargodha, who dismissed both the appeals on 14.6.83. Meanwhile, Karam Ali died and his L.Rs were brought on record (i.e present Respondents No. 5 to 12). An appeal was filed in this Court which was allowed and the suit was remanded back with direction that the said plaintiffs be allowed to add the relief of possession. The said suit was ultimately dismissed as withdrawn on 6.5.93.
Meanwhile, on 28.4.93 the suit out of which this civil revision has arisen was filed by Respondents No. 1 to 3 i.e subsequent vendees from Karam Ali (hereinafter to be referred as the plaintiffs). It was stated in the plaint that they acquired land measuring 145 kanals 15 marlas from Karam Ali vide Civil Court decree dated 13.10.76 and they are in possession as owners the decree was incorporated in the revenue record vide Mutation No. 56 attested on 25.4.77. Reference was then made to the said suit filed by Karam Ali and their being impleaded as party therein. Thereafter they filed an application to be transposed as plaintiffs, which was rejected. They are apprehending collusion between the petitioners and L.Rs of Karam Ali and are filing the suit. The plea taken was that registered sale-deed dated 25.7.73 in favour of the petitioners is void and liable to be cancelled under MLR 115 and cannot be incorporated in the revenue record. It was explained that whereas Karam Ali was owner of 145 kanals 15 marlas of land in the revenue estate, he sold 143 kanals 5 marlas vide said sale-deed and sale being of partial holding is liable to be cancelled being violative of MLR 115 and for this reason the plaintiffs are owners of the land on the basis of decree dated 13.10.76. A declaration was sought accordingly. The suit was contested by the petitioners, who stated that the sale is valid and the Civil Court had no jurisdiction to declare the same to be void under MLR 115; that the sale stands incorporated in the revenue record. The Respondents No. 5 to 12 denied having transferred the land to the plaintiffs while they did not deny the transaction in favour of the plaintiffs. Inter alia, following Issues No. 3 and 10 were framed by the learned trial Court:--
Whether the Court has no jurisdiction to try this case? OPD
Whether the sale-deed dated 25.7.73 is illegal, against facts, void and as such is in-operative against the rights of the plaintiffs? OPP
Evidence of the parties was recorded. Vide judgment and decree dated 25.2.99 the learned trial Court dismissed the suit with costs. A first appeal filed by Respondents No. 1 to 3 was allowed by a learned Additional District Judge. Sargodha, on 26.1.02 who decreed the suit of the plaintiffs as prayed for.
Learned counsel for the petitioners contend that the impugned judgment and decree of the learned Additional District Judge is wholly without jurisdiction. According to them, Civil Court had no jurisdiction to adjudge the validity of a sale under MLR 115. Reliance is placed on the case of Mst. Aisha Bibi v. Nazir Ahmed and 10 others (1994 SCMR 1935). Further contention is that by the time the suit was filed MLR 115 itself had been declared to be repugnant to the injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others (PLD 1990 S.C 99). Learned counsel vehemently urge that in any case the transaction was not at all hit by provisions of MLR-115. Learned counsel for the plaintiffs/respondents, on the other hand, contends that notwithstanding the fact that sale was valid in its inception, because of the setting aside of the sale of 2 kanals 15 marlas in favour of the son of Karam Ali vide the Court decree the sale in favour of the petitions became liable to be cancelled being violative of the provisions of MLR-115. He insists that the Civil Court has jurisdiction to grant the requisite declaration.
I have gone through the copies of the records. I have narrated the facts in some details above in chronological order. There is no dispute regarding material facts that total holdings of Karam Ali was 146 kanals. First of all he executed a sale-deed of 2 kanals and 15 malas of land in favour of his son Amjad Ali vide Sale-Deed No. 457 dated 25.7.73. Since after this sale he was still left with more than a subsistence holdings this sale was valid. Admittedly vide Sale-Deed No. 458 dated 25.7.73 (Ex.D4) he sold the entire remaining land i.e 143 kanals 5 marlas to the petitioners. This sale, therefore, is perfectly valid and permissible by virtue of proviso to para 24 (3) of MLR 115. Subsequent setting aside of the sale in favour of Amjad Ali son of Karam Ali on the basis of consenting statement in a case between father and son on 16.5.75 would have no effect whatsoever on the said sale in favour of the petitioners which was past and closed transaction.
Apart from the said facts apparent on the face of record the settled rule of law is that jurisdiction to declare any transaction to be void under MLR 115 exclusively vests in the Land Commission or its subordinate officers and jurisdiction of the Civil Court as also all other Tribunals/Authorities is absolutely excluded as laid down in the case of Mst. Aisha Bibi being relied upon by the learned counsel and which has since been followed by all Courts in the country. The impugned judgment and decree of the learned Additional District Judge, therefore, is wholly without lawful authority.
Needless to state that the relevant provisions of MLR 115 stand declared to be repugnant to injunctions of Islam and as such void vide the said judgment of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and the judgment took effect on 1.1.1990. The present suit filed on 28.4.93 seeking cancellation of the sale-deed on the touch stone of the said provisions of MLR 115 could not even be entertained.
For all that has been discussed above, the civil revision is allowed.
The impugned judgment and decree dated 26.1.2002 of the learned Additional District Judge, Sargodha is set aside while one passed by the learned trial Court on 25.2.99 dismissing the suit of the plaintiffs/respondents is restored with costs throughout. Counsel fee is fixed at Rs.20,000/-.
(A.S.Sh.) Revision allowed.
PLJ 2009 Lahore 917
Present: Kh. Farooq Saeed, J.
AHMAD KHAN--Petitioner
versus
KAUSAR PERVEEN and another--Respondents
W.P. No. 12269 of 2008, heard on 12.2.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Schedule--Constitution of Pakistan, 1973--Art. 199--Suit for recovery of dowry articles--Factual controversy--Constitutional jurisdiction--Maintainability of--Whether the articles were taken away or not was concerned--Being factual matter could not be discussed in a writ jurisdiction such factual controversies were never brought to discussion unless there were some material irregularities or jurisdictional error--Petition was dismissed. [P. 919] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Schedule--Constitution of Pakistan, 1973--Art. 199--Suit for recovery of dowry articles--Concurrent findings--Delay of 15 years in filing of suit--Non-challenging the point of limitation at early stage but challenged under constitutional jurisdiction--Applicability of CPC--Duty of Court--No objection with regard to delay in filing the petition had been raised either at the first stage or before the first appellate forum--It is the duty of Court to determine as to whether the petition or appeal is within time or not--It is the duty of Court to check the issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the Court themselves--Such finding had been given while referring Rule 11 Order VII of CPC--Rest of the para deak with the exceptional cases, wherein, he was debarred from raising the plea of limitation--Such would be a general principle of estoppel arising from defendant conduct and the same becomes applicable where the issue involves an enquiry of fact--The issue as to whether the right to sue accrue years after the desertion and there were certain negotiations going on between the two parties or not, obviously was a factual controversy--After getting two judgments and decrees from the two subordinate forums and exhausting almost two years in litigation, raining a point of limitation at this stage in a mix question of law and facts could not be allowed while exercising a writ jurisdiction--Petition dismissed. [Pp. 919, 920 & 921] C, D, E, F, G & H
Limitation Act, 1908 (IX of 1908)--
----S. 3--Limitation--Suit filed or an appeal preferred after limitation provided in law is without jurisdiction--Validity--It should be dismissed even if no body has pointed out such lacuna in filing the petition or appeal whatsoever. [P. 919] B
Mr. Muhammad Rashid Chaudhary, Advocate for Petitioner.
Mr. Zulfiqar Ali Noon, Advocate for Respondents.
Date of hearing: 12.2.2009.
Judgment
The petitioner has challenged the order of the Judge Family Court as well as Addl. District Judge dated 23.4.2008 and 25.8.2008 respectively.
The main argument is that the proceedings before the Judge Family Court were time barred. Besides, it is a case of non-reading and misreading of the evidence produced before the Judge Family Court. The claim of the petitioner is that the husband of the respondent died 15 years ago. The respondent was statedly asked to leave the house of her father-in-law six months after the said demise. The case having been filed in 2007 was late by almost 11 years which is hopelessly time barred. Furthermore, no receipts of dowry articles issued by the shopkeeper wherefrom the same were purchased were produced. Also that at the time of her second marriage she took away the said dowry articles with her.
So far as the issued with regard to the controversy as to whether the articles were taken away or not is concerned, the same being factual matter cannot be discussed in a writ jurisdiction. Such factual controversies are never brought to discussion unless there are some material irregularities or jurisdictional error. The law with regard thereto is very clear, hence, no interference with regard thereto is required.
Learned counsel for the petitioner main emphasis that the case is time barred, is based upon Article 120 of the schedule to the Limitation Act, 1908. The said Article has provided six years time to the suits for which no time has been provided within the law itself. The Article inter alia provides that the time shall start from the date when the right to sue accrues. The petitioner claim is that right to sue, if any, accrued on the date of her desertion which is statedly six months after the death of her old husband.
He, however, was not in a position to point out the exact date. Relying upon (2008 C.L.C. 1570) re: "Mst. Khalida Vs. Raja Muhammad Khurshid Khan and 9 others" read with Section 3 of the Limitation Act, 1908, he urged that the judgment should now be set aside by this Court by holding then without jurisdiction.
This Court is conscious of the fact and it would not require detailed discussion to say that a suit filed or an appeal preferred after the limitation provided in law is without jurisdiction. It should be dismissed even if no body has pointed out such lacuna in filing the petition or the appeal whatsoever. However, the facts of each case being separate this issue shall be decided after due appreciation of the facts of this case.
The respondent case on the other hand is that during the entire intervening period she remained in contact with her earlier father-in-law. There were lot of meetings in between her and Punchayat was also made a party. She was continuously given the impression that the dowry articles shall be returned to her in due course of time after settling the exact number and description of the same. There was, therefore, no intentional delay in this case.
Be that as it may, no objection with regard to the delay in filing the petition has been raised either at the first stage or before the first appellate forum. One may agree with the petitioner that it is the duty of the Court also to determine as to whether the petition or appeal is within time or not. However, where the same has neither been challenged nor the Court itself has considered it necessary to embark upon the same, the presumption would be that the same was not considered as an issue before it. The law with regard thereto is very clear. In fact even the judgment referred by learned counsel is not all in his favour. In the said judgment further reliance has been placed on
"Hakim Muhammad Buta and another Vs. Habib Ahmad and others" reported in (P.L.D 1985 Supreme Court 153), which reads as follows:--
"(a) Limitation Act-------
-----Sections 3, 4 to 25----Matter of limitation is not left to pleadings of parties. It imposes a duty in this regard upon Court itself As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under
R. 11, Order VII, C.P.C. Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves. In exceptional cases, a defendant would, however, be debarred from raising plea of limitation. This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts."
Above para confirms that it is the duty of the Court also to check the issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the Court themselves. However, this finding has been given while referring Rule 11, Order VII of C.P.C.
Needless to mention that Civil Procedure Code has been made expressly inapplicable in the Family Court proceedings. The rest of the above para deals with the exceptional cases, wherein, he is debarred from raising the plea of limitation. This would be a general principle of estoppel arising from defendant conduct and the same becomes applicable where the issue involves an inquiry of fact. In the present case, above para is applicable with full strength. The issue as to whether the right to sue accrue years after the desertion and there were certain negotiations going on between the two parties or not, obviously is a factual controversy.
In such circumstances, the action of the present petitioner of not challenging the same in any forum whatsoever also is of disadvantage to him. The principle that an issue should arise out of the impugned order shall also come into operation in the circumstances of this case. After getting two judgments and decrees from the two subordinate forums and exhausting almost two years in litigation, raising a point of limitation at this stage in a mix question of law and facts under the circumstances of this case, cannot be allowed while exercising a writ jurisdiction.
The Hon'ble Supreme Court has very clearly held that when the question of limitation is of fact or mixed question of law and facts, it should be raised before the trial Court. Appellate Courts are not obliged to examine the question which is not raised below. Reliance is on (1985 S.C.M.R 799) re. "Muhammad Ishaq and others Vs. Shah Muhammad and others", (1986 S.C.M.R 1957) re: "Allah Yar Khan Vs. Mst. Sardar Bibi and others" and (1988 S.C.M.R 1526) re: "Muhammad Rafiq and others Vs. Barkat Ali and others". Further not pressing before lower Court would amount option not to have finding thereof. Reliance is on (1989 C.L.C 482) re: "Ghulam Rasool and 5 others Vs. Zaheer Ahmad" and (1989 M.L.D 4820) re: "Meraj Begum Vs. Abdul Sattar".
Keeping in view the discussion above case law referred and particularly the ambient circumstances of the case under discussion, this Court is not willing to entertain the objection of limitation at this stage of the proceedings. The writ petition, therefore, is considered without any merit, hence is dismissed.
(N.I.) Petition dismissed.
PLJ 2009 Lahore 921
[Rawalpindi Bench Rawalpindi]
Present: Fazal-e-Miran Chauhan, J.
DAEWOO PAKISTAN MOTORWAY SERVICES LTD. through its Chief Executive, Lahore--Appellant
versus
SUN-SHINE SERVICES (Regd.) through Chief Executive Officer Faisalabad and another--Respondents
F.A.O. No. 59 of 2008, decided on 12.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Suit for declaration alongwith an application for injunction--Stayed was granted--Challenge to--Validity--Temporary injunction should be judged by principles like prima-facie case, balance of convenience, irreparable loss, conduct of parties, nature of suit, time limit likely to be absolved in it, stakes of parties and reasonableness of order proposed to be passed--Respondent/plaintiff has not been able to make out a case for grant of temporary injunction in his favour--Respondent was only a license holder on the basis of which, no suit for declaration, injunction or specific performance could be filed and was maintainable as held in numerous authorities--At the most, if the respondent/plaintiff succeeded in the suit, he can recover the damages suffered in consequence of cancellation of the agreement or dispossession of the property--No irreparable injury is likely to be suffered, which cannot be compensated in terms of money--Recovery of damages is the declaratory remedy in eventuality--Appeal allowed. [P. 927] A
1973 SCMR 184, 1974 SCMR 519 & 1986 CLC 303 (DB), ref.
M/s. Fawzi Zaffar and Faisal Zaffar, Advocates for Appellant.
M/s. Tanvir Iqbal and Malik Saadat Hussain, Advocates for Respondent.
Mr. S.M. Baqir Bukhari, Advocate for National Highway Authority.
Date of hearing: 12.11.2008.
Judgment
This appeal is directed against the order dated 05.09.2008, whereby learned trial Court confirmed the interim order in suit titled "Sun Shine Services etc. vs. Daewoo Pakistan Motorway Services Ltd."
Briefly the facts of the case are that, Respondent No. 1-Sun Shine Services was granted license to run restaurant in the left hall of the premises vide license dated 04.05.2004. The license expired on 30.06.2008; accordingly, expriy notice followed by a legal notice was issued to Respondent No. 1 by the appellant for vacation of the premises within fifteen days, as per terms of the license agreement dated 04.05.2004. In order to avoid handing over of the site in question on 28.06.2008, Respondent No. 1 managed to file a suit wherein prayer was made for declaration, injunction and specific performance of contract before the learned Civil Judge, Chakwal alongwith application under Order 39, Rules 1 and 2 C.P.C for grant of temporary injunction against the appellant, claiming to be a lease-holder for three years and his rights were protected under the law to retain the possession written-statement and written reply to the suit, as well as application was filed by the appellant. The learned trial Court after hearing the arguments of the parties, proceeded to accept the stay application vide impugned order dated 05.09.2008, hence this appeal.
Learned counsel for the appellant submits that, the case of the respondent-plaintiff was that, respondent-plaintiff, being licensee has right to retain the possession of the premises. The suit filed by the respondent-plaintiff was not maintainable in its present form and was not entitled to grant relief of injunction in the suit. The impugned order was passed on the basis of conjectures and surmises. The learned trial Court arrived at erroneous and unwarranted conclusions for which, there existed no legal or factual justification and had decided the main issue, while deciding application for grant of temporary injunction and also failed to apply its judicious mind. Further argued that, the learned trial Court erred at law, while deciding the main issue i.e. (of license agreement) and had decided the suit. The learned trial Court had failed to appreciate that, a deed of license was not specifically enforceable under Section 56 of the Specific Relief Act, 1977. The licensee does not have a vested right to retain the possession of the premises. Reliance is made to Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool and four others (2008 SCJ 588) and Muhammad Hashim vs. Zulfiqar Ali Khan, General Manager West Pakistan, Road Transport Board and other (PLD 1963 Lahore 419).
"A license is merely competence to do something which except for such premises would be unlawful".
The respondents, under license were allowed to use the premises for the purpose of running restaurant. It was made clear that, the licensee would not allowed his employees, servants or other person to stay in the said premises other than performing their duties, thus, the licensee was strictly forbidden to case any area/premises. For selling food items or expansion in the furniture inside or outside, other then the premises defined in license agreement/as per design measurement approved for the allocated places. It was made clear in clause (8.1) that, the licensor had the right to terminate the licensor agreement in case the licensee violated any of the covenants of this deed particularly clause (2, 3 & 5). As per clause (8.4), this license agreement may be cancelled/terminated upon occurrence of any of the following events in clause (8-4.2. to 8-4.13). As per Clause (9-1), on the expiry, cancellation or termination of this license, the licensee shall vacate the said premises within 30 days from the expiry date of the termination notice and the licensee and its servants, employees, agents etc. shall remove belongings to them within 30 days. As per Clause (14-1), this license shall not create any kind of leaseholds rights with regard to the said premises in favour of the licensee. The possession of the premises and proprietary rights shall remain with the licensor and in case of any eventuality contained in Clause (10) of this license, the licensor shall have a right to lock/close the premises. It was also made clear in Clause (14-2) that, the license was not transferable and heritable and would be revocable at the will of licensor in case of violation of conditions by the licensee. The learned Court had not gone through the agreement, executed between the parties, but simply relying upon the contention of the respondent-plaintiff treated it as a lease agreement Respondent No. 1 does not have a prima-facie case for grant of injunction. Reliance is placed on Civil Aviation Authority vs. Ms. Providence Aviation (Pvt.) Ltd. (2000 CLC 1722). The learned trial Court also failed to appreciate that, the suit filed by Respondent No. 1 was barred by law and hit by Sections 21 and 56 (1) of the Specific Relief Act, 1877, which envisages that, "if a license is wrongly terminated, a suit for damages would lie and no suit for specific performance of the contract or for injunction or declaration.
The suit filed by Respondent No. 1 was, itself, barred by law. Finally argued that, no prima-facie, arguable case was made out by the respondent-plaintiff. When the suit, itself was not maintainable, case for grant of temporary injunction was not made out. Agreement was a license, which had expired; thus the respondent-plaintiff had no right to retain possession of the premises and the appellant would be justified in taking legal action against the respondent-plaintiff. In case of refusal of injunction, the respondent-plaintiff would not suffer any loss, which could not be compensated in terms of money and the remedy under the law for licensee is to claim damages, if any, therefore, impugned order be set-aside.
Motsons vs. Trustees of the Port of Karachi [1988 CLC 1261] and Government of West Pakistan vs. Meezan Corporation and another [PLD 1971 Karachi 35] Further submits that, `License' is defined in Section 52 of the Easement Act, 1882, "as a right to do or to continue, to do in our upon immovable property of the grantor something which would in absence of such right be unlawful and such right does not amount to an easement or an interest in the property"
Likewise, Section 105 of the Transfer of Property Act, 1882, says that, "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or premised, or of money, a share of crop service or any other occasions to the transfer by the transferee, who accepts the transfer on such terms." Finally argued that, a short prima-facie arguable case was made out in favour of the respondent-plaintiff.
Learned counsel appearing on behalf of National Highway Authority states that, the National Highway Authority is the owner of the premises and the same has been leased out to the appellant-company with the permission to further rent out the same for running the business. Certain arbitrations took place in the office of National Highway Authority and after agreeing to certain proposal, both the parties resiled from the same.
I have heard learned counsel for the parties, gone through the record, as well as, case law on the subject. While taking the first contention that as the status of the respondent-plaintiff is that of a licensee or lease-holder; the minute perusal of the pre-amble of agreement dated 04.05.2004, the licensor has decided to grant license to the licensee to use the premises to run a restaurant covering an area of 2984 sq.ft., situated in the Motorway Service Area, Kallar Kahar North at 223 km, Lahore-Islamabad Motorway. Consequently, the respondent-plaintiff entered upon the premises as per the agreement as a licensee. During this period, the respondent-plaintiff raised construction of 1600 sq.ft. in addition to the premises, rented out to him. The respondent-plaintiff also paid rupees 2.5 million as advance rent as per condition V(2) and rupees 2.5 million as refundable security. The minute scrutiny of various construction reflects that, the appellant kept its overall control and supervision not only on the building but also on the other premises, whereas the respondent-plaintiff was only allowed to run the Restaurant in the rented area. It was made clear in Clause (14-a) that, this license would not create any kind of leasehold rights with regard to the said premises in favour of the licensee. The licensee was also agreed as per clause (4-1(a)) that, the licensee would not use the premises except for the purpose of running restaurant, the licensee would not allow his employees servants or other persons to stay in the said premises other than performing their duties.
In the circumstances, status of the respondent-plaintiff as per terms and conditions of the agreement, as detailed above, does not appear to be of lessee. The term "lease" is defined in Section 105 of the Transfer of Property Act to the following effect:--
"105. Lease defined.--A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transfer by the transferee who accepts the transfer on such terms."
Bare perusal of the above provision reveals that the agreement executed between the parties on 04.05.2004, is not covered by definition as given in Section 105 of the Transfer of Property Act. The appellant never parted away with the possession of the premises. It was made clear to the respondent-plaintiff that, he could use the premises for running the Cafeteria. It was also made clear that, the employees, servants were not allowed to stay in the premises other than for the purpose of performing their duties. In Condition-XIV (a) of the agreement, it was made clear that, this license should not create any kind of leasehold rights with regard to the said premises in favour of the respondent plaintiff claiming that, he was in possession could not be taken to be correct. As discussed above, it was also made clear in sub-clause (b) of Condition-XIV of the agreement that, the license was not transferable and heritable and would be revocable at the will of licensor in case of violation of condition by the licensee. It appears that, it was in the mind of the licensor that, the agreement may be used as lease by the respondent-plaintiff. The same was clarified in sub-clause (b) of Condition-XIV of the agreement.
(1) Rs 2.5 million as rent advance.
(2) Rs.2.5 million as security.
Keeping in view the pleadings of the parties, agreement dated 04.05.2004 (license), particularly, terms and conditions referred to hereinabove, it appears that, license was issued to the respondent-plaintiff to run a canteen in the left hall of the premises of the appellant for a period of three years on certain terms and conditions for which rupees 2.5 million was paid as advance fee and rupees 2.5 million was paid as refundable security. Learned counsel for the respondent plaintiff has prima-facie failed to establish from the document, as well as, agreement that, it was a lease executed in his favour for a period of three years creating certain rights. The license period had already expired and notice of eviction was served upon the respondent-plaintiff. Instead of vacating the premises, the respondent-plaintiff filed a suit for injunction, declaration and specific performance of the agreement. Since, the respondent-plaintiff is a license holder in the premises for a certain period. The license is a transfer of an interest in the immovable property. Learned counsel for the respondent-plaintiff has also failed to show that, a prima-facie arguable case exists in his favour. The licensee has no vested right to continue in possession under the cover of interim injunction.
Grant of temporary injunction. Reasonableness of temporary injunction should be judged by principles like prima-facie case, balance of convenience, irreparable loss, conduct of parties, nature of suit, time limit likely to be absolved in it, stakes of parties and workability and reasonableness of order proposed to be passed. In the present case, the respondent-plaintiff has not been able to make out a case for grant of temporary injunction in his favour. Since, the respondent-plaintiff is only a license holder on the basis of which, no suit for declaration, injunction or specific performance could be filed and is maintainable as held in numerous authorities. At the most, if the respondent-plaintiff succeeded in the suit, he can recover the damages suffered in consequence of cancellation of the agreement or dispossession from the property. No irreparable injury is likely to be suffered, which cannot be compensated in terms of money. Recovery of damages is the declaratory remedy in eventuality. Reference is made to Muhammad Yaqoob vs. Health Officer, Municipal Committee, Hyderabad and another [1973 SCMR 184], Marghoob Siddiqui vs. Hamid Ahmad Khan and 2 other [1974 SCMR 519] and M/s. Iftikhar & Co. Ltd. Vs. Uzin Export Ent. [1986 CLC 303(DB)].
In the circumstances, I am of the view that, prima-facie the contract was in the nature of revocable license. The period for which the license was granted has already expired and that the remedy if any, available to the respondent-plaintiff was by way of damages. The respondent-plaintiff in the garb of injunction cannot seek grant of license, which otherwise would be illegal.
For the foregoing reasons, this appeal is allowed and the impugned order dated 05.09.2008, passed by the learned trial Court is set-aside; consequently application for interim injunction under Order 39 Rules 1 and 2 C.P.C is dismissed. There is no order as to costs.
(M.S.A.) Appeal allowed.
PLJ 2009 Lahore 928
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD HANEEF SHAH--Petitioner
versus
MUHAMMAD KHALIL AHMAD SHAH and 2 others--Respondents
W.P. No. 2770 of 2009, heard on 12.3.2009.
Constitution of Pakistan 1973--
----Art. 199--Application for re-examination of injured was allowed by Magistrate--Revision--ASJ set-aside the order of Magistrate--Constitutional petition--Validity--Notification of Government of Punjab, Health Department which ordained that the orders for constitution of the Medical Board to re-examine injuries, must be passed within three weeks--The magistrate passed the orders for re-examination of the injuries suffered by him i.e. after a period of six months--At such a belated stage, directing re-examination of the injuries was not much in quest of justice--Petition dismissed.
[Pp. 929 & 930] A & B
Ch. Farooq Mehmood Kehloon, Advocate for Petitioner.
Shabbir Ahmed Khan, Advocate for Respondents.
Date of hearing: 12.3.2009.
Judgment
Muhammad Hanif Shah petitioner has filed this writ petition to challenge the validity of the order dated 4.2.2009 whereby he had set aside the order dated 26.1.2009 passed by the learned Magistrate/ Section-30, Tandlianwala, District Faisalabad.
At the instance of Dilawar Ahmad case FIR No. 479/08 was registered under Section 337-A(i)/337-A(ii)/337-L(ii)/337-F(i)/148/149 at Police Station Saddar Tandlianwala, District Faisalabad.
The accused party moved an application before the learned Illaqa Magistrate/Section-30, Tandlianwala praying that the injured be got re-examined. The application was allowed by order dated 26.1.2009 by Mr. Nadeem Tahir Syed, learned Magistrate-Section 30, Tandlianwala. However, in revision filed by Muhammad Khalil Ahmad Shah, the order dated 26.1.2009 was set aside by Mr. Muhammad Rafat Sultan Sheikh, learned Additional Sessions Judge, Tandlianwala on the ground that the Medical Board could not be constituted after 21 days of the first medical examination of the injuries. He relied upon 1999 PCr. L.J 2055 and 2001 MLD 1242. He was of the view that the injuries would have healed up in 5 to 7 days as per medical jurisprudence by Modi. He, therefore, accepted the revision petition on 4.2.2009 as aforesaid.
The main ground urged by learned counsel for the petitioner/complainant was that constitution of Medical Board was in quest of justice and that the judicial order passed by the learned Magistrate Section-30 on 26.1.2009 being quite lawful, could not have been disturbed in revision.
On the other, learned counsel for private respondent and learned DPG for Respondent Nos. 2 and 3 supported the impugned order passed by the learned Additional Sessions Judge. I have also gone through the record carefully.
It appears that the learned Magistrate while passing the impugned order on 26.1.2009 was unaware of the notification of the Government of the Punjab, Health Department No. SO (H&D) 6-I/90 dated 12.2.1990 which ordained that the orders for Constitution of the Medical Board to re-examine injuries, must be passed within three weeks.
There is also another Notification No. SO (H&D)6-122/88 dated 21.11.1988 which related to medico legal examination and Constitution of Standing Medical Boards where police was involved as a party. This notification has no relevance in the present context.
There was yet, another Notification No. SO (H&D) 6-I/90 dated 8.2.1992 whereby a clarification was made that if re-examination orders were passed by the District Magistrate in judicial capacity even after three weeks of the first examination, the same would supersede the instructions issued by the Health Department by the notification dated 12.2.1990.
In this case, the occurrence had taken place on 21.7.2008 on which date the medical examination of the injured Muhammad Hanif Shah was conducted. The learned Magistrate passed the orders for re-examination of the injuries suffered by him on 26.1.2009 i.e after a period of six months. At such a belated stage, directing re-examination of the injuries suffered by Muhammad Hanif Shah was not much in quest of justice. The learned Magistrate as already noted above, while passing the orders on 26.1.2009 appeared to be oblivious of the notification dated 12.2.1990 issued by the Government of the Punjab Health Department. He was also not aware of the law laid down in 1999 PCr. L.J. 2055 and 2001 MLD 1242. His order dated 26.1.2009 is held to be per incuriam.
On the other hand, the learned Additional Sessions Judge was also not perhaps aware of the notification dated 8.2.1992 referred to above which clarified that if re-examination orders were passed by a Judicial Officer after three weeks of the first examination, those would supersede the instruction issued by the Health Department by notification dated 12.2.1990.
Be that as it may, directing re-examination of the injuries after about six months of the first examination was not much in quest of justice. The reason is that by that time, the injuries must have healed up and any opinion coming from the Medical Board would be more on a topsy-turvy view. That situation is bound to create misgivings. There is no dearth of cases where the medical opinion recorded by renowned doctors, was ignored by the Courts and direct evidence was believed in preference thereto on proper showings. The petitioner/complainant would be at liberty to prove his case on the basis of direct evidence in preference to the medical opinion if irksome in his calculation. As a result, I would uphold the conclusion drawn by the learned Additional Sessions Judge, Tandlianwala but for my own reasons as given above. The writ petition is dismissed. As the question involved was not free from difficulty, I leave the parties to bear their own costs.
A copy of this order shall be went to Mr. Nadeem Tahir Syed, learned Magistrate-Section 30, Tandlianwala as also to Mr. Muhammad Rafat Sultan Sheikh, learned Additional Sessions Judge, Tandlianwala for future guidance, through the learned Sessions Judge, Faisalabad.
(M.S.A.) Petition dismissed.
PLJ 2009 Lahore 931
Present: Pervaiz Inayat Malik, J.
AAMIR ABBAS & others--Petitioners
versus
GOVT. OF PUNJAB--Respondent
W.P. No. 995 of 2008, heard on 6.4.2009.
Audi Altrem Partem--
----Petitioners were appointed as computer operator after fulfilling codal formalities--Then by taking U turn the respondents have introduced a fresh point and have disputed for the first time the qualification of the petitioner--Since the names of the universities, institutions from where the petitioners got degrees/diplomas/certificates of qualifications were not found on the website as recognized universities/institutions, therefore, all the petitioners were disqualified--Validity--Petitioners were deprived from their livelihood by the respondents through an arbitrary manner without issuance of any show-cause notice and without giving even a chance of personal hearing--Principle of. [Pp. 934 & 935] A & B
2005 SCMR 85 & 2004 PLC (SC) 680, rel.
M/s. Shahbaz Rizvi and Asif Raza Gillani, Advocates for Petitioner.
Mian Abbas Ahmad, A.A.G. for State.
Date of hearing: 6.4.2009.
Judgment
It is inter alia contended that the petitioner being qualified were appointed as computer operators after fulfilling all codal formalities vide separate letters dated 01.12.2007. The petitioner joined duties vide their separate joining reports which are available on the record of this writ petition as Annex-D-1 to D-36. Further submits that vide the first impugned order dated 06.12.2007. "Annex D" of the writ petition, the appointment order dated 01.12.2007 was withdrawn by mentioning there in two grounds:-
(i) In pursuance of Notification No. F/2(12)2007 from Election Commission of Pakistan. In the event of conduct of Election 2007-8 and
(ii) Upon verbal directions of DCO Layyah.
and that subsequently vide order dated 22.2.2008 the respondent EDO Health Layyah withdrew the first impugned order, referred to above and the petitioners were allowed to rejoin their duties which order too was withdrawn vide second impugned order dated 01.02.2008, resultantly the original impugned order stood restored and the appointment orders issued in favour of the petitioners stood cancelled/withdrawn.
The learned counsel for the petitioner with vehemence contends that prior to withdrawal/cancellation of appointment order neither any show-cause notice was given nor any opportunity of personal hearing was afforded to the petitioners nor even the respondent/defendant has paid salary to the petitioners for the period they actually performed the duties. Thus prayed the impugned order having been passed without applying judicious mind and being patently illegal may be set aside and the respondents may be directed to allow the petitioners to join duties with all back benefits.
Conversely the learned Additional Advocate-General upon instructions submits that the basic qualification for these posts was B.C.S in view of provisions of the Punjab Health Department Ministerial Establishment Recruitment Rules 2003 wherein it was provided that Computer Operator, who are to be employed in Basic Scale No. 15 should possess basic qualification as B.C.S or equivalent qualification, from recognized University, with at least three years experience in the field of computer work. Further submits that these appointments were made at the time when the election process was on and the Election Commission of Pakistan had directed that no such recruitment be made during the Election process; that in compliance with the notification issued by the Election Commission of Pakistan those orders were recalled vide letter dated 06.12.2007 however subsequent thereto their appointment orders were restored but upon scrutiny of Educational certificates and after getting verification from Higher Education Commission to the effect that their educational certificates were not equivalent to B.C.S. nor the degree was issued by the recognized University and even they did not have experience of three years in the relevant field as such since the writ petitioners were not qualified even on merits, therefore, the process of appointments made during the ban on such like recruitment was struck down after receiving instructions from the Government.
In response to the query as to whether any action against delinquent officer, has been taken who allegedly made appointments in violation of law, rules and instructions of the high-ups or the policy, the learned law officer very candidly conceded that no action was taken.
The learned Additional Advocate General further submits that the petitioner only worked for six days. In response to a query that the respondents have come out altogether with a new stance, as the reasons assigned in the impugned order are different whereas now the respondents are trying to set up a different case, the learned Addl. A.G submits that the petitioners were not at all qualified for such appointments and since the entire process of recruitment was tainted with mala fide of the Recruitment Committee as they did not adopt the procedure prescribed and further they issued the orders during the imposition of ban and also in violation of the notification of Election Commission of Pakistan, therefore, the pleas being legal can be raised at any time refers to Condition No. 9 of the appointment order.
Conversely the learned counsel for the petitioner in rebuttal submits as follows:--
(i) The candidates were to be selected through walk and interview by the Selection Committee (Annex. A Page 10 of the writ petition).
(ii) No criteria whatsoever was given in that advertisement or notice and the process of interview and test was completed on 06.11.2007.
(iii) During this process the criteria which was set up and required as qualification from the candidates was B.C.S or qualification of equivalent status.
(iv) In the similar case recruitment was made by the Executive District Officer Health D.G Khan and the criteria of determination of the equivalence of B.C.S for the purpose of computer operators B.S 15 and B.S 12 was declared by the office of Executive District Officer Information Technology vide letter dated 08.03.2007 as BSC/B.C.S with Computer Sciences from a recognized University having the compulsory subjects of Computer-A Computer-B, B.A with six months diploma in computer or DCS/ICS, DBA (six months computer diploma).
Further contends that the department cannot be allowed to approbate and reprobate nor the poor petitioners can be penalized for the acts performed by the public functionaries. Reliance is placed upon 2007 SCMR 569 Overseas Pakistan Foundation and others vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another, (PLJ 2008 Lahore 718) Rana Asif Nadeem vs. EDO etc. To canvass that without giving appropriate opportunities of hearing the petitioners appointments letter could not be recalled. Lastly on the strength of judgment of Honourable Supreme Court of Pakistan (NLR 2005 Service 172) the learned counsel for the petitioner contends that even if the appointments were made during period of ban the same could not be recalled.
Arguments heard. Record perused.
The petitioners admittedly were appointed as computer operators against vacant posts after observing codel formalities. The powers of the authority who appointed them is also not in dispute. The respondents have not uttered even a single word in their report and parawise comments denying assertions made by the petitioner in this Constitutional petition, which under the law in absence of categorical denial are deemed to have been admitted. In this particular case as rightly pointed out by the learned counsel for the petitioner throught stance of the appointing authority has been that the petitioners were duly appointed after observing all codel formalities and now the respondents by taking U tern have introduced a fresh point and have disputed for the first time the qualification of the petitioners. Even in the report the Executive District Officer he has submitted that upon the question being raised qua qualification of the petitioners he wrote a
letter to the Chairman Higher Education Commission of Pakistan and the Board of Intermediate and Secondary Education D.G Khan to which the replies were still awaited. However, since the names of Universities, institutions from where the petitioners got degrees/diplomas/certificates of qualifications were not found on the Web site as recognized University/Institutions, therefore, all the petitioners were disqualified. The stance taken by the learned Additional Advocate-General as well as the respondents during the course of arguments as well as in prayer clause of their report suffers from following flaws;
Firstly this ground does not find mention in the impugned order nor was it a consideration for recalling the appointment orders.
Secondly the petitioners were never confronted with this position nor they were ever issued any show-cause notice.
I also Find that the petitioners were deprived from their livelihood by the respondents through an arbitrary manner without issuance of any show-cause notice and without giving even a chance of personal hearing. The law laid down in the above referred judgment cited at bar by Syed Shahbaz Ali Rizvi, is fully attracted in view of facts and circumstances of the case. In my views, I am also fortified by law laid down by the Honourable Supreme Court of Pakistan in judgments reported as (2005 SCMR 85) Muhammad Shoaib and 2 others vs. Government of N.W.F.P through The Collector, D.I. Khan and others, (2004 PLC (S.C) 680) Muhammad Sharif and others vs. Director of Education Elementary School and others.
For the aforesaid reasons this petition is allowed, consequently orders impugned herein are hereby set aside. The petitioners shall be deemed to be in service from the date they initially joined their service with the respondents. They shall be allowed duty forth with.
However, since the respondents have raised plea regarding qualification of the petitioners, therefore, in view of peculiar circumstances of the case they shall be at liberty to initiate fresh proceedings in accordance with law by giving a fair opportunity to the petitioners.
With these observations this petition stands disposed of.
(M.S.A.) Petition disposed of.
PLJ 2009 Lahore 936
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
ZAFAR IQBAL--Petitioner
versus
GHULAM MUSTAFA and others--Respondents
W.P. No. 1243 of 2009, decided on 15.4.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417-2(A)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--S. 417(2)(A)--Insertion of--Effect of--With the insertion of S. 417-2(A) in the Cr.P.C. right of appeal had been allowed to any aggrieved person, whereas prior of such amendment, only the state had the right of filing of appeal against acquittal--Right of appeal to an aggrieved person in respect of particular case, has to be given extended meaning as narrow interpretation would be against the wisdom of legislature--Held: Right of appeal also includes right of assailing the other orders concerning that particular case right from it's inception and till it's logical conclusion, in accordance with including discharge order. [P. 939] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 173--Pakistan Penal Code, (XLV of 1860)--Ss. 420, 468 & 471--Constitution of Pakistan, 1973--Art. 199--Submission of report requesting discharge of accused--Agreed by Magistrate--Challenge to--Constitutional jurisdiction--Judicial Magistrate proceeded to discharge the accused in an indecent haste without any legal justification and sufficient material was available on record, at least prima facie connection the accused with the commission of offence alleged against--As a result of discharged order the investigation of the case had come to stand still and the investigation agency had been deprived of its valuable right to investigate the case--Complainant who had suffered substantial loss as a result of alleged omissions and commissions of the accused in all fairness had every right to get the case investigated--Passing of discharge order in such a fashion amount to encouragement of the culprits which is not permissible under the law--Petition allowed. [P. 939] C
Mr. Abdul Qaddus Khan Tareen, Advocate for Petitioner.
Mr. Muhammad Akbar Sajid Chaudhary, Advocate for Respondents.
Mian Abbas Ahmad, Addl. A.G. for State.
Date of hearing: 8.4.2009.
Judgment
The petitioner through this Constitutional petition challenges the order dated 07.02.2009 passed by the learned Judicial Magistrate Shujabad, vide which the Respondent No. 1 Ghulam Mustafa was discharged from the criminal case registered against him.
The brief facts as those emerge out of this petition are that the petitioner Zafar Iqbal store in charge NFML at Shujabad got registered case FIR No. 88/2009 dated 06.02.2009, under Section 420, 468, 471 PPC registered at Police Station City Shujabad District Multan alleging therein that Respondent No. 3 has committed fraud and forgery to the effect that by submission of forged receipts documents, he obtained fertilizers without making payments and produced forged receipts falsely showing the deposit of price of fertilizers in the bank.
The Respondents No. 1/accused was arrested by the police on 06.02.2009, and produced before the learned Judicial Magistrate Shujabad on 07.02.2009 with a request to allow physical remand for a period of fourteen days for the purpose of investigation as according to the police recoveries had yet to be effected. Prima facie opinion of the police was that in the investigation conducted till that date the accused was found guilty/connected with the offence alleged against. The learned Judicial Magistrate on the contrary not only refused physical remand but also proceeded to discharge the accused as according to him no sufficient evidence qua guilt of the accused was available. The accused was directed to be released forthwith which order is being assailed through this Constitutional petition.
The learned counsel for the petitioner inter alia contends that Respondent No. 2/accused was named in the FIR and sufficient evidence was available when he was produced before the learned Judicial Magistrate seeking physical remand and that the learned Judicial Magistrate proceeded to discharge the accused in an arbitrary manner without examining the record produced before him and without any legal justification. In support of his contentions he relies upon (PLD 1997 S.C 2339) Mansha and 7 others vs. Illaqa Magistrate, Police Station Bahlak, District Faisalabad and 4 others, (1999 MLD 1847) Shahid Raza Bhatti vs. Magistrate Section 30, District Court, Rawalpindi and two others, (1998 P.Cr.L.J 1530) Niamat Ali vs. The State and others, (1998 P.Cr.L.J 244) Muhammad Waseem vs. Additional Sessions Judge, Dera Ghazi Khan and 3 others, (NLR 1999 Criminal 209) Masood-ul-Hassan vs. Habib-ur-Rehman, etc, (1994 P.Cr.L.J 497) Mushtaq Raj vs. Magistrate Ist Class and others. To canvass that the Court is vested with ample powers to examine, legality of discharge order in constitutional jurisdiction and can quash the same if finds order of discharge as perverse.
Conversely Mr. Muhammad Akbar Sajid Chaudhary, the learned counsel representing Respondent No. 1/accused submits that this petition is not maintainable as the same has not been filed by the State rather it has been filed by an employee of the company. In support of his contentions he has relied upon (2001 P.Cr.L.J 160) Rana Latif Ahmad vs. Judicial Magistrate, Shujabad, District Multan.
The learned Additional Advocate General supports the impugned order.
Arguments heard. Record. Perused.
Admittedly the Respondent No. 3 is an accused specifically named in the FIR with specific allegations. The police had produced him on 07.02.2009 before the learned Illaqa Magistrate seeking physical remand for a period of fourteen days to complete investigation with a specific reason of effecting recovery which was turned down by the learned Judicial Magistrate on account of insufficient evidence. The learned Judicial Magistrate in his comments has tried to give the justification of discharge. According to him most of the points which have now been raised before this Court were not agitated before him and that the police had not placed before him sufficient material at the relevant time, therefore, in absence of sufficient evidence before him he was of judicious mind that there being no evidence substantial in nature connecting the accused with the offence alleged against, neither remand was justified nor he could be sent on judicial remand.
The case-law cited at bar by the learned counsel for Respondent No. 3/accused in my view is not of much help to him and is distinguishable for the following reasons:
Firstly facts of the cited case and the one in hand are materially different. Inasmuch as in the case referred to supra the accused was found innocent by the police during the course of investigation, the complainant in that case was a member of the police force, who was the investigating agency as well. Whereas in the case in hand the complainant is different official.
Secondly in the cited case no recoveries were affected during the course of investigation, whereas, in this case even no opportunity was given to the Investigating Agency to endeavour to get the recoveries effected.
Now adverting to the specific objection regarding maintainability of this petition taken on the strength of 2001 PCr.L.J 160 referred to supra I may observe that on the subject law has developed with the passage of time and with the insertion of Section 417-2(A) in the Cr.P.C., right of appeal has been allowed to any aggrieved person, whereas prior to this amendment, only the State had the right of filing of appeals against acquittal. In my view the right of appeal to an aggrieved person in respect of a particular case, has to be given extended meaning, as narrow interpretation would be against the wisdom of legislature. In my view, right of appeal also includes right of assailing the other orders concerning the particular case right from it's inception and till it's logical conclusion, in accordance with law including discharge order .
Admittedly the petitioner is in-charge of the store where allegedly fraud has been committed by the Accused/Respondent No. 3 and admittedly he was the custodian thereof and responsible to take care of smooth running of store and its property. In addition thereto in case of any shortage in the funds he was definitely accountable for that and perhaps the authorities above, could justifiably require him to make good the loss suffered by the corporation or the department. Secondly he could be proceeded against under the relevant Service Rules as well, for negligence and misconduct etc. Viewed from which ever angle petitioner/plaintiff does fall within the purview of definition of aggrieved person. This matter can be viewed from yet another angle. The State has to act through some officers/officials and if an official can justifiably get register a criminal case it would not be in the fitness of things to deprive him from right of appeal or revision etc. I, therefore, hold that this petition having been filed by the present petitioner against discharge order, being complainant/aggrieved person of the case was competent.
On merits, I find that the learned Judicial Magistrate proceeded to discharge the Accused/Respondent No. 3 from the case in hand in an indecent haste without any legal justification and sufficient material was available on record, at least prima facie connecting the accused with the commission of offence alleged against. I may observe that as a result of afore-stated discharge order the investigation of the case has come to stand still and the investigating agency has been deprived of its valuable right to investigate the case. The complainant who has suffered substantial loss as a result of alleged omissions and commissions of the Accused/Respondent No. 1 in all fairness has every right to get the case investigated. In my opinion passing of discharge order in such a fashion amounts to encouragement of the culprits which is not permissible under the law.
The impugned order is, therefore, set aside and I direct that the case in hand shall be investigated in accordance with law and thereafter, report under Section 173 Cr.P.C., shall be submitted before the Competent Court of law without further loss of time.
With these observations this writ petition is allowed. No order as to costs.
(N.I.) Petition allowed.
PLJ 2009 Lahore 940 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Syed Hamid Ali Shah and M.A. Zafar, JJ.
MUHAMMAD AKBAR KHAN (deceased) & others--Appellants
versus
ATTA ULLAH KHAN & 11 others--Respondents
R.F.A. No. 35 of 2000, decided on 28.10.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Hibba by the General Attorney--Validity--Although the execution of three powers of attorney has been admitted by the plaintiff but these were executed for different purposes--A valid gift, held could only be made, if there had been an approval and consent of the principal with regard to property sought to be gifted with a specific mention of the name of the donee--In the absence of approval or consent of Principal--Such transfer has no legal validity and is set aside. [P. 947] D
Gift--
----Cancellation of mutation--Executed three deeds of General Power of Attorneys--Question of validity of gift through an attorney--A valid gift could only be made, if there had been on approval and consent of principal with regard to property sought to be gifted with a specific mention of name of donee--Transaction lacks the element of clear and specific approval of the principal regarding gift, particulars of donee and intention of donor qua specific property--Thus it has not been established that the donor had intended to transfer the property in question to donee as a voluntary or gratuitous act. [P. 946] A
Transaction of Gift--
----Transaction was gift made on the basis of general power of attorney--Validity of transaction--Validity of the transaction can be ascertained, only on basis of deed of gift and general attorney--Held: Needs no scholarly discussion that oral evidence can neither be led nor considered to prove that parties intended something different from clear stipulation of document--When document is clear and speaks for itself, then there is no question to consider oral evidence to show real nature of transaction. [P. 946] B
Power of Attorney--
----General power of attorney and gift-deeds--Determination--No evidence can be admitted or considered that parties by executing general powers of attorney and gift-deed meant to effect a sale in favour of respondent--Rights and obligations of parties can only be determined on the basis of the documents and no other meanings can be assigned to such documents. [P. 947] C
Malik Muhammad Kabir, Advocate for Appellant.
Syed Hamid Ali Bukhari, Advocate for Respondent.
Date of hearing: 22.10.2008.
Judgment
Syed Hamid Ali Shah, J.--Muhammad Akbar Khan deceased plaintiff instituted a suit for declaration, cancellation of mutations, injunction and restoration of possession, on 22.06.1994. The case of the plaintiff, as set out in the plaint was that he owned 116 kanal and 4 marlas agricultural land in village Akwal. He shifted to Okara and appointed Atta-ur-Rehman Khan (Defendant No. 1) as general attorney and executed three deeds of General Power of Attorneys on 19.12.1993, 4.1.1994 and 8.1.1994. The object of appointing the attorney was to sell the land and remit the sale proceeds to the plaintiff. The attorney, instead of selling the property as per covenant, gifted the same through impugned Mutations No. 1413, 1414, 1418 and 1420 to close relatives including his son (Defendant No. 2). Respondent No. 12 (Defendant No. 12) the nephew of the plaintiff in this illegal exercise, actively connived with Defendant No. 1. It is also asserted in the plaint that impugned gifts were made without the consent and authority of the plaintiff. The plaintiff breathed his last, during the pendency of the suit and is survived by appellants (Defendants No. 1-A to 1-C).
Respondents appeared before learned trial Court, submitted written statements, controverted the assertions of the plaint and raised various preliminary objections. Respondent No. 1 took the plea that plaintiff sold the property in dispute and had received entire sale consideration from him and in lieu thereof executed three General Powers of Attorney.
Learned trial Court, out of the divergent pleadings of the parties, framed ten (10) issues and recorded the evidence of parties. Learned trial Court, on conclusion of the trial, vide impugned judgment and decree dated 10.02.2000, dismissed the suit. Issues No. 6 to 8 were decided against the defendants, while Issues No. 1 to 3, were decided against the plaintiff. Issues No. 3-A, 3-B and 5 were decided in favour of the defendants. Hence this appeal.
Learned counsel for the appellants contended that, by a general attorney mutations of gift were sanctioned, on behalf of the appellants' predecessor. The gift is invalid as love and affection, which is the main consideration of gift, cannot be expressed through attorney. Learned counsel supported this contention by placing reliance on the cases of "Mst. Shumal Begum vs. Mst. Gulzar Begum and 3 others" (1994 SCMR 818). Learned counsel contended further that before the transfer of the property, the consent of the principal was essential, which was not obtained. Respondent No. 1 has violated the provisions of Sections 214 and 215 of the Contract Act, 1872. Learned counsel referred to the case of "Muhammad Ashraf and 2 others Vs. Muhammad Malik and 2 others" (PLD 2008 S.C. 389) and contended that without permission and consent of the principal, any gift by the authority on behalf of the principal, is void transfer. Learned counsel added that when the attorney has his own interest in a transaction, then mention of consideration is essential and mandatory requirement. Learned counsel, in his contention, found support from the dictum laid down in the case of "Rasool Bukhsh and another Vs. Muhammad Ramzan" (2007 SCMR 85). Learned counsel went on to argue that evidence of DW-5, DW-7, DW-8 and DW-9, on the point of sale agreement between the plaintiff and Defendant No. 1 was out of pleadings and had to be ignored. It was submitted that Exh. D-1 to Exh.D-3 were not mentioned in written statement, nor the plaintiff was confronted with these documents. The execution of these documents was denied and as such, by virtue of Article 140 of Qanoon-e-Shahadat Order, 1984, these documents have no evidentiary value. Learned counsel pointed out contradictions in the evidence of the respondents regarding payment of earnest money etc. He referred to Article 102 of the Qanoon-e-Shahadat Order, 1984 and contended that oral evidence cannot be adduced to prove and dislodge the express stipulation in a document. Learned counsel summed up his arguments with the contention that sale agreement of subsequent date is silent with regard to earlier document i.e power of attorney, this fact alone is sufficient to conclude that subsequently false sale transaction was created through fake document.
Learned counsel for the Respondents No. 1, 2 and 7, stood behind the impugned judgment. He supported it with full vehemence and contended that suit is incompetent, as it is admitted by PW-1 that plaintiff was out of possession. In the absence of specific prayer for possession, the suit under Section 42 of the Specific Relief Act, is not competent. He added that Exh.D-1 to Exh.D-3 are unchallenged and without seeking cancellation of these documents, no other suit can proceed. Learned counsel referred to the statement of PW-2, who admitted that he was a witness of sale agreemen, which was signed by him at his residence. Ex-D-1 to Ex.D-4 are of one date. The witness admitted that sale agreement was executed in favour of Defendant No. 1. The witness further showed his inability to tell that power of attorney was executed by the vendor and also Iqrar Nama, Stamp vendor entered the witness box to prove Exh. D-1. He admitted that deceased plaintiff at the time of purchase of stamp paper was not present and signatures of Muhammad Akbar were taken, at the time of purchase of stamp paper. DW-2, (Sadiq Arain) another Stamp Vendor stated that he was scribe of Exh.D-2 whereupon the parties signed the document and plaintiff received consideration of Rs. 1 lacs. The witness was also scribe of Exh.D-3, Exh. D-3 was attested by DW-3, Talat Najeeb, Advocate a notary public, DW-4 stated in the witness box that the principal received the sale consideration first and thereafter the deed of General Power of Attorney was delivered. He further stated that payment of Rs. 1 lacs was paid in his presence. DW-5 (Atta Ullah) in his statement gave full details of the transaction. His statement remained unrebutted and no question was put to witness that Iqrar Namas are fake documents. DW-6 was marginal witness of Exh.D-2, while DW-5 and DW-7, specifically stated that the payment was made by Defendant No. 1 to the plaintiff in their presence, DW-8, in response to suggestion, responded that Hibba was made to avoid the pre-emption. Learned counsel, after discusing in detail the resume of the evidence, submitted that the real transaction was sale. Defendant No. 1 made the payment of sale consideration. He then submitted that scribe acquires the status of marginal witness and supported this contention by referring to the cases of "Muhammad Nawaz Vs. The State" (2000 YLR 1933) and "Nazir Ahmad Vs. Muhammad Rafiq" (1993 CLC 257). Learned counsel referred to the case of "Muhammad Younis Vs. Atta Muhammad and 2 others" (1999 SCMR 2574) and contended that no limitation can be placed on attorney, on his power to execute sale-deed and the attorney enjoys unfettered powers on behalf of his principal. Attorney can sell and transfer the property of the principal.
Heard learned counsel for the parties and record perused.
We will first take up the matter of proof of vital documents i.e Exh. D-1 to Exh.D-3. Whether the respondents have succeeded in proving these documents, the respective evidence of the parties needs examination. The plaintiff appeared as PW-1 and denied that he had authorized his Attorney/Respondents No. 1 to transfer the property through Hiba to Respondents No. 2 to 5. In his cross-examination, he had expressed ignorance regarding agreement of sale (Ex.D-1). He was not confronted with the documents as well as his signatures. Although he made another statement suggestive of admission of the agreement Ex.D-1, but in the absence of any document specifically put to him such statement does not carry much weight. Ex.D-2 and Ex.D-3 were not put to the plaintiff when he appeared as a witness. Clearly the provisions of Article 140 of the Qanoon-e-Shahadat Order, 1984, have not been complied with and the alleged agreement of sale does not carry any evidentary value.
The marginal witnesses produced by the respondents did not confirm the signatures on the agreement of sale Ex.D-1 as well. The document was not placed before them. Ex.D-2 as well as Ex.D-3 had not been proved, in accordance with Article 17 read with Article 79 of the Qanoon-e-Shahadat Order, 1984.
The plaintiff admitted execution of three powers of attorney in favour of Respondent No. 1. However, it is evident from relevant record that Respondent No. 1 transferred the property in dispute in favour of Respondent No. 2 (his real son) and Respondents No. 3 to 5 his close relatives. It was imperative for him to have obtained consent of the principal before transferring the land to his near relatives. Transfer of property on the basis of power of attorney to closely related person by the attorney and impact of failure to seek consent and approval, remained under consideration in various cases. It was held in the case of "Muhammad Ashraf and 2 others vs. Muhammad Malik and 2 others" (PLD 2008 S.C 389) as under :--
"It is a settled law by now that if an attorney intends to exercise right of sale/gifts in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general" purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances."
The Honorable Apex Court in the case of "Rasool Bukhsh and another Vs. Muhammad Ramzan" (2007 SCMR 85), held further that :--
"It is also a well established legal preposition that a person, who has been validly authorized to alienate the property of another, he has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is no such evidence then the transaction does not hold good unless it is established on record that the transaction has been made with knowledge and with consent of the principal while entering into general power of attorney."
It has been held in the case of "Dur Muhammad and 12 others vs. Abdul Sattar" (1996 CLC 1596) that in the event of a Hiba by the attorney, prior permission of the principal is necessary.
The Honorable Apex Court, in the case of "Fida Muhammad Vs. Pir Muhammad Khan (Deceased) through legal heirs and others" (PLD 1985 S.C 341) held that:--
"It is wrong to assume that every "general " Power-of-attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a power of attorney is that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others, firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about it's interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g, if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
The above survey of law, brings us to conclude that the attorney is under legal obligation to seek approval or consent of the principal, when the property of the principal is acquired by the attorney himself or for his own benefit or when such property is alienated to the persons closely related to the attorney.
Now we will advert to the question of validity of the gift through an attorney. The identical question came-up for consideration before the Honourable Apex Court in the case of "Mst. Shumal Begum Vs. Mst. Gulzar Begum and 3 others" (1994 SCMR 818), wherein it was held that:--
"Love and affection cannot be expressed by an attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntary and gratuitous in the present suit transfer from the donor to the donees. The essentials of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee, where gift is made through a person authorized by the donor, the intention of donor to make the gift must be established in clear terms. In such a case, the authority given by the donor in his favour by said Nawab cannot be upheld for two reasons. Firstly, the poer of attorney executed in his favour by said Nawab cannot be upheld for two reasons. Firstly, the power of attorney executed in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and also the name of the donee. In the case before us, the gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour said Nawaz cannot be upheld for two reasons. Firstly the power of attorney executed in favour of Respondent No. 2 by the deceased Said Nawab did not contain any specific provision authorizing him to make a gift of his properties and; secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of attorney".
The above dictum of the Honourable Apex Court, has settled the controversy in clear and unambiguous terms. Respondent has entered into a transaction, with regard to property of the principal, without his consent and approval. A valid gift, in the case in hands, could only be made, if there had been an approval and consent of principal with regard to property sought to be gifted with a specific mention of the name of the donee. Instant transaction lacks the element of clear and specific approval of the principal regarding gift, particulars of donee and intention of donor qua the specific property. Thus it has not been established that the donor had intended to transfer the property in question to donee as a voluntary or gratuitous act.
There is another angle to view this controversy. The impugned transaction was gift made on the basis of General Power of Attorney. The validity of instant transactions can be ascertained, only on the basis of deed of gift and the general attorney. The stance of respondents that the suit property was sold by the deceased plaintiff to the Defendant No. 1 and the latter as the owner of the property, alienated it to Respondents No. 2 to 5, has no legal sanctity. It is settled law and needs no scholarly discussion that oral evidence can neither be led nor considered to prove that parties intended something different from the clear stipulation of the document. When the document is clear and speaks for itself, then is no question to consider oral evidence to show real nature of the transaction. Language employed in the general powers of attorney and the gift deeds, accurately define real nature of transaction between the parties. No evidence can be admitted or considered that the parties by executing general powers of attorney and the gift deed, meant to effect a sale in favour of Respondent No. 1. The rights and obligations of parties can only be determined on the basis of these documents and no other meanings can be assigned to these documents.
In view of the above discussion, it is clear that the plaintiff had challenged the transfer of property in dispute to Respondents No. 2 to 5 and subsequently to Respondents No. 6 to 11 on the basis of fraud and collusion and had also denied making of a gift of the property in dispute in favour of Respondents No. 2 to 5. Although the execution of three powers of attorney has been admitted by the plaintiff but these were executed for different purposes i.e sale of the land in dispute and transferring of sale proceeds to the plaintiff. Respondent No. 1 had transferred the property in dispute by way of Hibba to his son and other near relatives without obtaining prior consent of the plaintiff. Such transfer has no legal validity and is set-aside.
For the foregoing, the transaction of gift is illegal and unlawful and subsequent transfers on the basis of gift, are also void. The appeal is accepted and the judgment of learned trial Court is set aside and the suit of the plaintiffs is decreed as prayed for in the plaint, with no orders as to the costs.
(R.A.) Appeal accepted.
PLJ 2009 Lahore 947
[Multan Bench Multan]
Present: Hasnat Ahmad Khan, J.
MUHAMMAD AFZAL--Petitioner
versus
E.D.O. (R), MULTAN and 2 others--Respondents
W.P. No. 1259 of 2009, decided on 5.3.2009.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Civil service--Transfer--Terms and conditions of service--Invoking constitutional jurisdiction--Bar u/Art. 212 Constitution of Pakistan--Admittedly, the petitioner was a civil servant and the matter related the terms and conditions of service--Allegation levelled that the petitioner had been transferred under the influence of local M.P.A., the said allegation had been found to be a bald and vague assertion--Neither the name of the said M.P.A. nor the number of his constituency had been mentioned in the writ petition--It was not a case of the petitioner that he had been transferred frequently in a short span of time rather it had not been mentioned in instant petition that since when the petitioner had been performing his duties at the present place of his posting--It was not the case of the petitioner that he had been transferred before the completion of three years tenure at the present place of his posting--It was also not the case of the petitioner that he had been made victim of frequent transfers within a short span of time--Petition dismissed.
[Pp. 949 & 952] A, B, C & D
Mr. Muhammad Akbar Sajid Chaudhry, Advocate for Petitioner.
Date of hearing: 5.3.2009.
Order
Through this petition the legality and validity of the order dated 27.10.2008, passed by Respondent No. 1, whereby Muhammad Afzal, the petitioner, who had been serving as Halqa Patwari Tarif Mubarik Awal, has been ordered to replace Muhammad Ali, Halqa Patwari Sarwani Bela, has been called into question.
In support of this petition learned counsel for the petitioner has contended that the impugned order has been passed in violation of the ban imposed by the Board of Revenue Punjab against the transfers/postings of Naib Tehsildars etc., vide order dated 24.1.2009. He adds that the Government of Punjab has also imposed ban on transfers/postings of Government servants vide orders dated 25.6.2008 and 04.11.2008, respectively, and that the petitioner has been transferred to accommodate Respondent No. 1, who is blue eyed boy of a local M.P.A.
When confronted with the jurisdictional bar against entertaining writ petitions in the matters which exclusively fall within the jurisdiction of Service Tribunal, learned counsel has contended that the said bar is not absolute and in appropriates cases, this Court has jurisdiction to entertain the writ petition challenging the orders of transfer of government employees. In support of his contention learned counsel has placed reliance on the cases of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530), Roshan Khan, SET Government High Schools Kuz Pao, District Shangla v. Director Schools and Literacy, N.W.F.P., Peshawar and 4 others (2007 SCMR 599), Muhammad Yar Patwari v. District Coordination Officer, Sahiwal and 3 others (2006 PLC (C.S) 989), Hafeez ur Rehman v. Executive District Officer, (Health), Khanewal (2007 MLD 1481) and Rao Khurshid Alam v. Government of Punjab through Principal Secretary to Chief Minister and others (2008 PLC (C.S) 892).
After giving a patient hearing to the learned counsel for the petitioner I do not see eye-to-eye with him because it is not denied by him that the petitioner is a civil servant. It is also not denied that the matter relates to the terms and conditions of service. Insofar as the allegation leveled that the petitioner has been transferred under the influence of a local M.P.A., the said allegation has been found to be a bald and vague assertion. Neither the name of the said M.P.A. nor the number of his constituency has been mentioned in the writ petition. It is not the case of the petitioner that he has been transferred frequently in a short span of time rather it has not been mentioned in this petition that since when the petitioner has been performing his duties at the present place of his posting, therefore, the law laid down by the Hon'ble Supreme Court in Zahid Akhtar's (supra) case is inapplicable in the instant case. In the said case it was held that the normal period of tenure of a government employee at a particular station, under the policy decision of the government, is three years, which according to the Hon'ble Supreme Court has to be followed in the ordinary circumstances, unless of the reasons of exigency of service mentioned in the policy of government, a transfer before the expiry of three year's time becomes necessary in the opinion of Competent Authority. In the said case, the Hon'ble Supreme Court had disapproved the policy of the government to transfer the government servants frequently. Nevertheless the order of the dismissal of the writ petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan was not interfered with by the Hon'ble Supreme Court. In the said case, while giving certain instructions to the bureaucracy, the petition instituted before the Hon'ble Supreme Court against the order of dismissal of the writ petition, was dismissed. Besides, as mentioned above, it is not the case of the petitioner that he has been transferred before the completion of three years tenure at the present place of his posting. It is also not the case of the petitioner that he has been made victim of frequent transfers within a short span of time, therefore, the observations made by the Hon'ble Supreme Court in that case are not applicable to the case of the petitioner.
Insofar as the case of Roshan Khan (supra) is concerned, the same is not applicable in this case because in the said case the order of the N.W.F.P. Service Tribunal was set aside. Service Tribunal, of course, has jurisdiction to entertain such like matters. Therefore, the said case is obviously not helpful to the petitioner.
As far as the other case law cited by the learned counsel for the petitioner is concerned, the same being contrary to the unambiguous judgments of the Hon'ble Supreme Court, is not binding on me. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, any decision of the Supreme Court, to the extent that it decides a question of law or is based upon or enunciates a principal of law, is binding on all Courts functioning in the country. Therefore, this Court cannot pass any order which is contrary to the view/decision of the Hon'ble Supreme Court on any particular point. In the case of Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), the view given by the Hon'ble Supreme Court in earlier cases was reiterated by holding as under:--
"It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters." (underlining is mine).
In the said case the judgment of a Division Bench of Balochistan High Court dismissing the writ petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, was upheld by the Hon'ble Supreme Court. In the cases of Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others (1998 SCMR 1948), Asadullah Rashid Vs. Haji Muhammad Muneer and others (1998 SCMR 2129), the Hon'ble Supreme Court laid down that the orders, even if passed mala fidely or corum non-judice, fall within the ambit of Service Tribunal and jurisdiction of Civil Court or High Court is ousted. If any other case law is required, reliance is placed on the cases of Musharaf Ali v. The Province of Punjab and others (1988 SCMR 991), Imam Baksh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365), Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum v. Government of Punjab Housing and Physical Planning Department Though Secretary and others (1997 SCMR 169), Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Munshi Muhammad Azam v. SA.C. etc. (PLJ 1996 Lahore 16 (DB).
"The order of the Departmental Authority of the transfer of a Civil Servant is such against which under the said rules no departmental appeal lies before the higher authority therefore, the said order once passed by the Departmental Authorities is the original final order against which the aggrieved Civil Servant if he wants to get relief in the form of interim order for suspension of the same may immediately approach the Administrative Court or Tribunal without exercising the privilege of filing a representation as under the law the filing of the same or the decision made thereon does not have the effect of destroying the finality of the order passed by the Departmental Authority to make it appealable before the Administrative Court or Tribunal."
"Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case."
"Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal and the jurisdiction of High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution."
(N.I.) Petition dismissed.
PLJ 2009 Lahore 952 (DB)
[Multan Bench Multan]
Present: Nasim Sikandar and Syed Zulfiqar Ali Bokhari, JJ.
GUL MUHAMMAD etc.--Appellants
versus
SHO etc.--Respondents
ICA No. 87 of 2009, decided on 8.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Law Reforms Ordinance, (XII of 1972)--S. 3--Intra Court Appeal against constitutional petition--Question of maintainability of writ petition--Petitioner was not aggrieved person--Validity--Constitutional jurisdiction of High Court has to establish the existence of a legal right and such right must be so clear so as not to admit reasonable doubt or a controversy--Such legal right must be personal, individual, statutory as well as recognized by law--Held: In absence of such right no order can be issued under Art. 199 of Constitution--Writ petition was not competent--Intra Court Appeal was allowed. [P. 953] A & C
Constitutional Petition--
----Locus standi--Can be invoked by an aggrieved person--Constitutional petition can be invoked by an aggrieved person and person can be said to be aggrieved only when he is denied a legal right by some one who has legal duty to perform relating to that right. [P. 953] B
Miss Humera Naheed Khand, Advocate for Appellants.
Mr. Muhammad Saleem Baig, Addl. A.G. for Respondent.
Mr. Muhammad Aslam Ghumman, Inspector/SHO.
Date of hearing: 8.7.2009.
Order
This Intra Court Appeal has been directed against the order dated 4.5.2009 passed by a learned Judge in Chamber in Writ Petition No. 3219 of 2009.
It is contended that Respondent No. 2/writ petitioner was not aggrieved person as the Constitutional petition was filed to assail order dated 25.4.2009 passed by Justice of Peace on the application of Zia-ur-Rehman Respondent No. 3 under Section 22-A Cr.P.C. for registration of a criminal case. It is submitted that Respondent No. 2 was neither petition nor respondent in above said application. The Justice of Peace after calling report from SHO dismissed that application finding the same false and frivolous. The SHO also submitted report under Section 157(2) Cr.P.C. about the occurrence. Further contends that writ petition under Article 199 of the Constitutional of Pakistan can only be filed by an aggrieved person against some order through which a legal right of a person is infringed. Respondent No. 2 filed Constitutional petition without exhausting remedies before SHO and then before Justice of Peace through application under Section 22-A Cr.P.C and she directly approached this Court and assailed order dated 25.4.2009 passed by Justice of Peace on the application of Zia-ur-Rehman Respondent No. 3.
On the other hand learned counsel appearing on behalf of Respondent No. 2 submits that this ICA has become infructuous as the order dated 4.5.2009 passed by learned Judge in Chamber of this Court has been implemented by registration of criminal case vide F.I.R No. 145 of 2009 dated 4.6.2009 under Sections 365/149/148 PPC Police Station Saddar Mailsi District Vehari.
Learned counsel for the appellant submits in reply to the submission of the counsel for Respondent No. 2 that since the writ petition filed by Respondent No. 2 was incompetent so registration of case on the basis of order passed on an incompetent writ petition is void ab-initio. She submits that the order impugned in this appeal may be set aside in the interest of justice.
We have heard learned counsel for the parties and perused the record. Respondent No. 2 was not an aggrieved person by order dated 25.4.2009 passed by Justice of Peace. The person invoking the Constitutional jurisdiction of High Court has to establish the existence of a legal right and such legal right must be so clear so as not to admit reasonable doubt or a controversy. Such legal right must be personal, individual, statutory as well as recognized by law. The same can be invoked by an aggrieved person and person can be said to be aggrieved only when he is denied a legal right by some one who has legal duty to perform relating to that right. In the absence of such right no order can be issued under Article 199 of the Constitutional of Pakistan. In this case Respondent No. 2 neither approached SHO nor filed application before Justice of Peace to get direction to SHO for registration of case and no authority denied her legal or statutory right. The writ petition filed by Respondent No. 2 before this Court was not competent. Even otherwise SHO is present with record submits that above said FIR has been found false and frivolous and the same is being cancelled.
For the reasons stated above this ICA is allowed, order dated 4.5.2009 passed in Writ Petition No. 3219-2009 is set aside.
(R.A.) ICA allowed.
PLJ 2009 Lahore 954
[Multan Bench Multan]
Present: Arshad Mahmood, J.
MUHAMMAD ZUBAIR KHAN BANGASH, INSPECTOR OF POLICE and 3 others--Petitioners
versus
INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE
and 4 others--Respondents
W.P. No. 5261 of 2009, decided on 26.6.2009.
Constitution of Pakistan, 1973--
----Art. 189--Judgment of Supreme Court--Effect of--Judgment of the Supreme Court is binding upon each and every organ of the State and they are bound to honour and respect the same. [P. 955] A
Mian Tanvir Iqbal Arain, Advocate for Petitioners.
Date of hearing: 26.6.2009.
Order
Muhammad Zubair Khan Bangash and 3 other through this constitutional petition seek a direction to Respondent No. 1 for decision of their case in accordance with the judgment of the learned Punjab Service Tribunal and the Hon'ble Supreme Court of Pakistan in Civil Appeals No. 2013 to 2031 of 2006 and 4 to 18 of 2008.
Learned counsel for the petitioners contends that case of petitioners is at par with the case of persons whose appeals were decided by the learned Punjab Service Tribunal and the Hon'ble Supreme Court and they also deserve the same treatment. In support relies upon "Hameed Akhtar Naizi versus. The Secretary, Establishment Division, Government of Pakistan and others" (1996 SCMR 1185). It is further submitted that no distinction can be drawn between case of the petitioners and the appellants before the PST.
Heard learned counsel for the petitioners and record perused.
Article 189 of the Constitutional of Islamic Republic of Pakistan, 1973 commands that judgment of the Hon'ble Supreme Court is binding upon each and every organ of the State and they are bound to honour and respect the same.
Therefore, respectfully bowing before the dictum of law of the Hon'ble Supreme Court, Respondent No. 1 is directed to consider case of the petitioners and also extend benefit to them, if their case is found at par to the persons whose appeals were accepted by the Punjab Service Tribunal.
Disposed of with the above directions.
(R.A.) Petition disposed of.
PLJ 2009 Lahore 955
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
MUHAMMAD ASLAM--Petitioner
versus
M.B.R. etc.--Respondents
W.P. No. 2083 of 2008, decided on 14.5.2009.
West Pakistan Land Revenue Rules, 1968--
----R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of permanent lumberdar--Exclusive discretion of revenue authority--Petitioner was appointed as Sarbarah Lumberdar by revenue authorities after cancelling appointment of respondent as Sarbarah Lumberdar--Validity--Recommendation of functionaries of revenue hierarchy carries weight and same should not be ignored--Petitioner cannot claim his appointment as a right mere on the ground that he worked for some year as temporary lumberdar--In the instant case petitioner was neither recommended by revenue field staff nor was appointed by any of authority upto the M.B.R.--Higher educational qualification of the petitioner can be a good ground for appointment of lumberdar but in absence of recommendation of lower functionaries from Patwari to Tehsildar and no confidence of the revenue field staff on the candidate who worked with them for a considerable period can safely be ignored--Choice of District Officer (Revenue) selecting permanent lumberdar ought not to be interfered with unless there is a gross irregularity in such appointment--Petition was dismissed. [P. 958] A
Mr. Muhammad Suleman Bhatti, Advocate for Petitioner.
Rana Luqman Ali Khan, Advocate for Respondent No. 3.
Date of hearing: 14.5.2009.
Order
Through this writ petition, the petitioner has assailed the order dated 24.07.2007 passed by Member (Judicial-I) Board of Revenue, Punjab Lahore through which he dismissed ROR No. 1944/2006 filed by the petitioner.
Brief facts of the case stated by learned counsel for the petitioner are that the petitioner was appointed as Sarbarah Lumberdar by the revenue authorities on 04.05.1998 after cancelling appointment of Respondent No. 2 as Sarbarah Lumberdar. The petitioner worked as such till 24.05.2006. In the meanwhile on 22.04.2003, Charagh Din permanent Lumberdar died. The District Officer (Revenue) directed for appointment of permanent Lumberdar of Chak No. 146, 10/R District Jahanian, District Khanewal. The applications were invited by Tehsildar, Jahanian and twenty nine persons applied for the post of permanent Lumberdar out of which four candidates appeared before the District Officer (Revenue) to compete the process of appointment of Lumberdar. One of the four candidate namely M. Inayat Gill absented himself from the proceedings while the petitioner and Respondents No. 2 & 3 left to contest the job. After getting report from the field staff Assistant Collector/Tehsildar, Jahanian recommended name of Respondent No. 3 Muhammad Hussain for permanent lumberdar. District Officer (Revenue), Respondent No. 5 after hearing the parties appointed Respondent No. 3 as permanent Lumberdar of above-aside village vide his order dated 24.05.2006. The petitioner and Respondent No. 2 filed separate appeals before EDO(R) who after hearing the parties allowed the appeal filed by Respondent No. 2 and dismissed the appeal of the petitioner. The petitioner and Respondent No. 3 filed ROR No. 1944/2006 & 1370/2006 before Member, Board of Revenue which was disposed of by Respondent No. 1 vide order dated 24.07.2007 through which revision filed by Respondent No. 3 Muhammad Hussain was allowed and ROR filed by the petitioner was dismissed. Hence this writ petition.
Learned counsel for the petitioner contends that revenue authorities failed to consider the service rendered by the petitioner as Sarbarah Lumberdar during the life time of deceased Lumberdar Charagh Din from the year 1998 to 2003 and after his death till the appointment of permanent Lumberdar he worked as temporary Lumberdar. The petitioner is owner of more land than Respondent No. 3 Tehsildar has mentioned wrong facts in his report that petitioner was not interested in the appointment of Lumberdar. He belongs to Rajpoot family which is in majority in the chak. The petitioner is graduate when the Respondent No. 3 is primary pass. The impugned order passed by Member Board of Revenue is not based on reasons. The appointment of Respondent No. 3 was made in violation of Rule 17 of land Revenue Act 1968. He has relied on Noor Muhammad, Lambardar Vs. Member (Revenue), Board of Revenue Punjab, Lahore and others (2003 SCMR 708) and Naik Muhammad Vs. Mazhar Ali and others (2007 SCMR 112).
On the other hand learned counsel appearing on behalf of Respondent No. 3 opposed the arguments advanced by learned counsel for the petitioner and submits that name of the petitioner was never recommended by any of the revenue authority from Tehsildar to Member Board of Revenue. Respondent No. 3 was appointed by District Officer (Revenue) on the basis of recommendation of revenue field staff but the appointment order was set-aside on the appeal filed by Respondent No. 2, Khurshid Ahmad and he was appointed as Lumberdar when appeal of the petitioner was dismissed and he once again lost his cause vide order dated 15.08.2006 passed by Executive District Officer (revenue). The said order was challenged before Member Board of Revenue through separate revision petitions by the petitioner and Respondent No. 3. The revision petition filed by Muhammad Aslam, petitioner was dismissed when revision petition of Respondent No. 3 Muhammad Hussain was succeeded and order dated 24.05.2006 originally passed in his favour was restored. Learned counsel for Respondents No. 3 states that petitioners is not resident of concerned chak rather he is resident of Block No. 3 Circle No. 2 Union Council No. 27 Urban Jahanian. Learned counsel for Respondent No. 3 has placed on record list of voters for the year 2007 in which at serial No. 222 name of Muhammad Aslam son of Ahmad Din is mentioned. He states that appointment of the petitioner as permanent Lumberdar was made in compliance with the requirements of Rule 17 by District Officer (Revenue) which was rightly upheld by Member Board of Revenue. It is prerogative of the revenue authorities to appoint permanent Lumberdar of their on choice for collection of revenue from land owners of the village. The order of revenue authorities based on reasons should not be interfered ordinarily in the constitutional petition. He had relied on Abdur Rehman Vs. Allah Rakha (PLD 1966 W.P (Revenue) 190), Muhammad Amir Vs. Naeem Arshad (NLR 2001 Revenue 97), Muhammad Maalik vs. Member, Board of Revenue, Punjab, Lahore and three others (2006 CLC 755 Lahore), Mst. Sarwari Bibi Vs. Arshad Ali Khan etc. (NLR 2006 Revenue 135), Mazhar Ali Vs. Naik Muhammad etc (NLR 2004 Revenue 173) and Muhammad Jameel Vs. Member (Judicial-1), Board of Revenue, Punjab, Lahore etc (NLR 2004 Revenue 118).
I have heard learned counsel for the parties and perused the record.
The appointment of permanent Lumberdar under Rule 17 of West Pakistan Land Revenue Rule 1968 is exclusive discretion of the revenue authorities. The Recommendation of functionaries of revenue hierarchy carries weight and the same should not be ignored. The petitioner cannot claim his appointment as a right mere on the ground that he worked for some year as temporary Lumberdar. In this case petitioner was neither recommended by revenue field staff nor was appointed by any of the authority upto the Member Board of Revenue. Higher educational qualification of the petitioner can be a good ground for appointment of Lumberdar but in the absence of recommendation of lower functionaries from patwari to Tehsildar and no confidence of the revenue field staff on the candidate who worked with them for a considerable period, can safely be ignored. The choice of District Officer (Revenue) selecting permanent Lumberdar ought not to be interfered with unless there is a gross irregularity in such appointment. I have gone through the reports of revenue field staff as well as the order of District Officer (Revenue) and Member Board of Revenue. There is no specific disqualification or ineligibility in appointee/Respondent No. 3. This Court cannot interfere in the exclusive choice of revenue authority to appoint any one as permanent Lumberdar. There is no merit in this writ petition. It is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 958
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
Mst. SARWAR NOOR--Petitioner
versus
ALI HAIDER and another--Respondents
C.R. No. 517 of 2004, heard on 15.12.2004.
Presumption as to Sect--
----Suit of the petitioner claiming to be the only surviving heir of her deceased mother because she was a "Shia"--Held: Every muslim is sunni unless it is proved to be contrary--It was for the petitioner to rebut the said presumption--Witnesses produced by her have simply stated that the funeral prayer of the deceased lady was offered by a "Shia Mauvli"--Needless to state that this hardly rebbuts the said presumption, particularly, when the evidence has been rebbutted by the respondent with an equal number of witnesses--Revision dismissed. [P. 960] A
1989 CLC 1591 & 1985 Kar. 365 rel.
Ch. Khudad Khan Chauhan, Advocate for Petitioner.
Malik Shehzad Ahmad Khan, Advocate for Respondent No. 1.
Date of hearing: 15.12.2008.
Judgment
On 4.9.2000, the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit land mentioned in the plaint was owned by Mst. Imam Khatoon, mother of the plaintiff. She died on 1.1.1988. She was the only surviving heir as her mother was a "Shia" However, mutation of inheritance was entered and attested in favour of contesting parties in equal shares. Her appeal was allowed. But the appeal of the respondents was allowed by an Addl. Commissioner on 8.1.1996. Revision petition filed by her was dismissed by the Board of Revenue. She accordingly sought a declaration. Respondent No. 1 in his written statement pleaded that Mst. Imam Khatoon was a "Sunni" and the during the course of litigation in the revenue hierarchy the petitioner never pleaded that she was a "Shia". Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 21.1.2004. First appeal filed by the petitioner was dismissed by learned District Judge, Chakwal on 20.7.2004.
Learned counsel for the petitioner contends that notwithstanding the fact that the said plea was not taken by the petitioner before revenue authorities she could not be estopped to take the plea in the Civil Court. According to him, the evidence on record has been misread while holding the deceased lady to be a "Sunni". Malik Shehzad Ahmad Khan, Advocate, Learned counsel for the respondent, on the other hand, vehemently urges that in our country there is a presumption that every Muslim citizen is "Sunni" unless it is proved contrary. He relies on the cases "Sabir Hussain and others Vs. Afrasayyab and others (1989 CLC 1591) and Amir Ali vs. Gul Shaker and 10 to other's (PLD 1985 Karachi 365). Further contends that the said plea was never taken in the proceedings before the revenue authorities and otherwise the said presumption has not been rebutted by the petitioner.
I have gone through the copies of the records appended with this C.R with the assistance of the learned counsel for the parties. I find that Mst. Imam Khatoon, admittedly the mother of the petitioner and a collateral of Respondent No. 1, died on 1.1.1988. Inheritance Mutations No. 948 and 949 were taken up by the revenue officer and decided by means of an elaborate order on 11.4.1995 (Ex. D.4). It stands recorded that both the contesting parties are present with their learned counsel who were heard. The plea taken by the petitioner was that although Respondent No. 1 is a collateral but he is beyond four degrees and as such would be excluded and the petitioner shall get remaining half of the estate under doctrine of them. The plea was rejected by the revenue officer with reference to the table of residuary as given in the book of Mohammadan Law by F.D. Mulla. The petitioner then filed an appeal. It was allowed by Collector, Sub-division, Chakwal on 23.10.1995. He remanded the case to be decided after rehearing the parties. Against this order Respondent No. 1 filed an appeal which was heard by Addl. Commissioner (Revenue), Rawalpindi Division who allowed the same vide order dated 8.1.1996 and held that the respondent being a residuary would inherit the residue alongwith the petitioner. She filed a revision petition pressing the same plea which was dismissed on 8.5.2000. Present suit was filed on 4.9.2000 with the said plea. There being no denial that the petitioner participated in the said proceedings and then filed an appeal against the order of revenue officer and then a revision against the order of the Addl. Commissioner, there is force in the contention of the learned counsel for the respondent that the plea taken as to the sect of the deceased lady was an after thought. Be that as it may, I have examined the evidence, I may not here that I am in complete agreement with the learned counsel for the respondent that in this subcontinent there is a presumption that every Muslim is "Sunni" unless it is proved to be contrary. It was for the petitioner to rebut the said presumption. The witnesses produced by her have simply stated that the funeral prayer of the deceased lady was offered by a "Shia Maulvi" Needless to state that this hardly rebuts the aid presumption, particularly, when the evidence has been rebutted by the respondent with an equal number of witnesses.
Having thus gone through the records, I do not find any force in this C.R. which is accordingly dismissed but with no orders all to costs.
(M.S.A.) Revision dismissed.
PLJ 2009 Lahore 962
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
M. ASIF ALI KHAN--Appellant
versus
GHULAM SHABBIR--Respondent
R.F.A. No. 352 of 2001, decided on 19.5.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 12(4) (amendment)--Civil Procedure Code, (V of 1908)--O. XLII, R. 2--Application for condonation of delay--Appeal was one day barred by limitation--Delay due to spent time in obtaining copy of order--Intimation about completion of certified copies of judgment--Validity--Time spent by petitioner in obtaining copy of trial Court's judgment as required under O. XLII, R. 2 of CPC will constitute sufficient cause within meaning of S. 5 of Limitation and will cover even period lapsing between actual receipt copy and filing of the same in High Court--First Appeal should not be dismissed only one the ground of limitation--Application was allowed. [P. 964] A
2003 SCMR 1560 & PLD 2008 SC 577, rel.
Mr. Mazhar Kaleem Khan, Advocate for Appellant.
Mr. Shoaib Khan Buzdar, Advocate for Respondent.
Date of hearing: 19.5.2009.
Order
C.M. NO. 1-C/2001
This is an application for condonation of delay in filing of appeal. Learned counsel for the petitioners submits that suit was decreed on 26.06.2001 and the application for certified copies was made on 27.06.2001. On 10.07.2001 copies were prepared however, the same were received on 14.07.2001 and appeal was filed on 10.10.2001. Office raised objection that appeal is one day barred by limitation so this application for condonation of delay was filed.
Learned counsel for the petitioners contends that in the absence of material on record to show that petitioners were intimated about the completion of the certified copies, the limitation will start from the receipt of certified copies and not from preparation of the same. He further contends that from the date of delivery of certified copies, appeal is within limitation when from preparation of the same, the appeal is one day barred by time. He has relied on Mst. Shamim Akhtar Vs. Munawar Din and 2 others (PLD 1993 Lahore 559), Abdul Karim Vs. Muhammad Ibrahim (1976 SCMR 79), Muhammad Afzal Khan Lodhi Vs. Islamic Republic of Pakistan (PLD 1968 Lahore 1205) and Bashir Ahmad Vs. Inayat Ullah and another (1998 CLC 590). He further submits the petitioner has filed this application alongwith affidavit but no counter affidavit has been filed from the other side. He submits that the regular first appeal was admitted for regular hearing on 07.01.2002. The same should be decided on merits and not on the ground of limitation which is mere technicality.
Learned counsel appearing on behalf of the respondent has opposed the arguments of learned counsel for the petitioners and submits that affidavit filed by the petitioner alongwith application was not duly prepared and attested which is defective and the same cannot be considered as validly executed and on the basis of that affidavit this petition could not be allowed. He has referred PLD 1995 Lahore 98. He further submits that when the application for certified copies is made the Copying Agency delivers a token of receipt on which the date of delivery is always mentioned. It was the duty of the petitioner to approach Copying Agency at given time and if the same was not prepared the date of delivery was to be extended by the Copying Agency. In this case nothing is on record to show that the petitioners approached Copying Agency and copies were not prepared. Even otherwise they received the certified copies on 14.07.2001 but filed appeal on 10.10.2001 even after a considerable period from receiving the certified copies. He prayed for dismissal of application for condonation of delay. He has relied on Iftikhar Ali Vs. S. Abdul Rashid and others (2003 SCMR 1560) and Mian Muhammad Sabir Vs. Malik Muhammad Sadiq through Legal Heirs and others (PLD 2008 Supreme Court 577).
I have heard learned counsel for the parties and perused the record.
After amendment of Section 12, Act IX of 1908.--In the Limitation Act, 1908 (IX of 1908) in Section 12 after sub-section (4), the following new sub-section was added namely:--
"(5) for the purpose of sub-sections (2), (3) and (4) the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
Nothing is available on record to show that the petitioner was intimated by Copying Agency about the completion of certified copies of the judgment and decree. The time spent by the petitioner in obtaining copy of trial Court's judgment as required under Order 42, Rule 2 will constitute sufficient cause within meaning of Section 5 of Limitation Act 1908 and will cover even period lapsing between actual receipt copy and filing of the same in the High Court. The petitioner filed affidavit and explained reason preventing him from filing appeal within time and the same has not been refuted by a counter affidavit. Even otherwise first appeal should not be dismissed only on the ground of limitation. The appellate Court should have decide the same on merits. Even otherwise the appeal filed by the petitioners against the judgment and decree dated 26.06.2001 has already been admitted for regular hearing by this Court vide order dated 07.01.2002 without deciding application for condonation of delay. In the circumstances this application is allowed.
Main case
(R.A.) Application allowed.
PLJ 2009 Lahore 962
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
M. ASIF ALI KHAN--Appellant
versus
GHULAM SHABBIR--Respondent
R.F.A. No. 352 of 2001, decided on 19.5.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 12(4) (amendment)--Civil Procedure Code, (V of 1908)--O. XLII, R. 2--Application for condonation of delay--Appeal was one day barred by limitation--Delay due to spent time in obtaining copy of order--Intimation about completion of certified copies of judgment--Validity--Time spent by petitioner in obtaining copy of trial Court's judgment as required under O. XLII, R. 2 of CPC will constitute sufficient cause within meaning of S. 5 of Limitation and will cover even period lapsing between actual receipt copy and filing of the same in High Court--First Appeal should not be dismissed only one the ground of limitation--Application was allowed. [P. 964] A
2003 SCMR 1560 & PLD 2008 SC 577, rel.
Mr. Mazhar Kaleem Khan, Advocate for Appellant.
Mr. Shoaib Khan Buzdar, Advocate for Respondent.
Date of hearing: 19.5.2009.
Order
C.M. NO. 1-C/2001
This is an application for condonation of delay in filing of appeal. Learned counsel for the petitioners submits that suit was decreed on 26.06.2001 and the application for certified copies was made on 27.06.2001. On 10.07.2001 copies were prepared however, the same were received on 14.07.2001 and appeal was filed on 10.10.2001. Office raised objection that appeal is one day barred by limitation so this application for condonation of delay was filed.
Learned counsel for the petitioners contends that in the absence of material on record to show that petitioners were intimated about the completion of the certified copies, the limitation will start from the receipt of certified copies and not from preparation of the same. He further contends that from the date of delivery of certified copies, appeal is within limitation when from preparation of the same, the appeal is one day barred by time. He has relied on Mst. Shamim Akhtar Vs. Munawar Din and 2 others (PLD 1993 Lahore 559), Abdul Karim Vs. Muhammad Ibrahim (1976 SCMR 79), Muhammad Afzal Khan Lodhi Vs. Islamic Republic of Pakistan (PLD 1968 Lahore 1205) and Bashir Ahmad Vs. Inayat Ullah and another (1998 CLC 590). He further submits the petitioner has filed this application alongwith affidavit but no counter affidavit has been filed from the other side. He submits that the regular first appeal was admitted for regular hearing on 07.01.2002. The same should be decided on merits and not on the ground of limitation which is mere technicality.
Learned counsel appearing on behalf of the respondent has opposed the arguments of learned counsel for the petitioners and submits that affidavit filed by the petitioner alongwith application was not duly prepared and attested which is defective and the same cannot be considered as validly executed and on the basis of that affidavit this petition could not be allowed. He has referred PLD 1995 Lahore 98. He further submits that when the application for certified copies is made the Copying Agency delivers a token of receipt on which the date of delivery is always mentioned. It was the duty of the petitioner to approach Copying Agency at given time and if the same was not prepared the date of delivery was to be extended by the Copying Agency. In this case nothing is on record to show that the petitioners approached Copying Agency and copies were not prepared. Even otherwise they received the certified copies on 14.07.2001 but filed appeal on 10.10.2001 even after a considerable period from receiving the certified copies. He prayed for dismissal of application for condonation of delay. He has relied on Iftikhar Ali Vs. S. Abdul Rashid and others (2003 SCMR 1560) and Mian Muhammad Sabir Vs. Malik Muhammad Sadiq through Legal Heirs and others (PLD 2008 Supreme Court 577).
I have heard learned counsel for the parties and perused the record.
After amendment of Section 12, Act IX of 1908.--In the Limitation Act, 1908 (IX of 1908) in Section 12 after sub-section (4), the following new sub-section was added namely:--
"(5) for the purpose of sub-sections (2), (3) and (4) the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
Nothing is available on record to show that the petitioner was intimated by Copying Agency about the completion of certified copies of the judgment and decree. The time spent by the petitioner in obtaining copy of trial Court's judgment as required under Order 42, Rule 2 will constitute sufficient cause within meaning of Section 5 of Limitation Act 1908 and will cover even period lapsing between actual receipt copy and filing of the same in the High Court. The petitioner filed affidavit and explained reason preventing him from filing appeal within time and the same has not been refuted by a counter affidavit. Even otherwise first appeal should not be dismissed only on the ground of limitation. The appellate Court should have decide the same on merits. Even otherwise the appeal filed by the petitioners against the judgment and decree dated 26.06.2001 has already been admitted for regular hearing by this Court vide order dated 07.01.2002 without deciding application for condonation of delay. In the circumstances this application is allowed.
Main case
(R.A.) Application allowed.
PLJ 2009 Lahore 965
Present: Abdul Sattar Goraya, J.
JAMAL DIN and another--Petitioners
versus
MUHAMMAD ISHAQ--Respondent
C.R. No. 635 of 2009, heard on 11.6.2009.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Right of pre-emption--Suit was instituted on the ground of co-sharer in property and had common source of irrigation--After 10/15 minutes talb-e-muwathibat was made--Parties belong to rural area and after lapse of time such type of discrepancy was natural--Validity--Right of pre-emption is a feeble right and until it is proved through unshaken evidence that talb-e-muwathibat was performed in accordance with S. 13 of Pre-emption Act--Suit cannot be decreed--If necessary talbs were not performed in accordance with law and in a mode provided by S. 13, the right of preemption would be extinguished--Petition was accepted. [P. 967] A
2005 SCMR 1231 & 2008 YLR 43, ref.
Incorrect Interpretation--
----Revisional jurisdiction of High Court--Courts below have misread the evidence and made incorrect interpretation of deposition of two material witnesses--If Courts below have misread the evidence or material available on record interference in revisional jurisdiction of High Court is justified. [P. 967] B
2008 SCMR 1454, ref.
Mr. Abdul Sattar Chaudhry, Advocate for Petitioners.
Mr. Wali Muhammad Chaudhry, Advocate for Respondent.
Date of hearing: 11.6.2009.
Judgment
By means of this revision petition the judgment and decree dated 12.09.2008 passed by the Learned Additional District Judge and that of the learned trial Judge dated 12.01.2007 have been brought under impeachment.
Facts in brief as disclosed in this petition are that Muhammad Hussain son of Hakim Din was owner of the property measuring 1 kanal 9 marla fully described in the head note of the plaint. He sold it through a registered sale-deed dated 12.10.2004 for consideration of Rs. 19,500/- to the petitioners but with a view to defeat the superior right of pre-emption, an amount of Rs. 60.000/ was ostensibly shown. The petitioner-plaintiff came to know about the sale on 14.10.2004 at about 7.00 p.m by Mushtaq Ahmed son of Ibrahim in his house in the presence of Muhammad Yousaf son of Muhammad Din and Munir Ahmed son Alim. It is alleged that without wasting further time on getting knowledge, Talb-e-Muwathibat was made disclosing his intention to pre-empt the sale transaction. Talb-e-Muwathibat was followed by Talb-e-Ishad whereafter the suit was instituted. The suit was instituted on the ground that he is co-sharer in the property and had the common source of irrigation. The averments contained in the plaint were emphatically denied apart from the certain preliminary objections. On facts and merits it was pleaded that the suitor has no case to succeed and ultimately claimed dismissal. Divergent pleading of the parties gave rise as many as 10 issues including one of relief.
Issue No. 1 was framed with regard to the superior right of pre-emption. The onus of which was proposed upon the plaintiff. Issue No. 2 was also proposed to prove the factum of Talbs, the onus of which was also proposed upon the suitor. Learned trial Judge ultimately, after recording evidence and on conclusion of trial decreed the suit in the terms prayed for. On Issue No. 3 it was stated that an amount of Rs.60,000/- has rightly been shown. An appeal taken against the said judgment and decree failed before the Learned Additional District Judge on 12.09.2008.
Learned counsel for the petitioner mainly challenged the finding of the learned Courts below on Issue No. 2 which relates to the performance of the Talab. It is argued that the Talabs were performed in accordance with law. Bitterly argued that both the Courts below misread and mis-interpreted the evidence available on the record to the advantage of the suitor.
Learned counsel for the respondent defended the impugned judgment and decree of the Courts below almost for the same reasons, which weighed before the learned Courts below. It was also argued that there are concurrent finding of fact rich in detailed, which cannot be interfered within the revisional jurisdiction of this Court.
I have heard the learned counsel for the parties at considerable length and perused the record. Muhammad Ishaq PW-3 appeared as a witness of his own who in the cross-examination stated that he would do every work after consulting and with full concentration and he decided to pre-empt the sale transaction and he declared the intention to pre-empt the sale transaction after thinking over the matter and deliberation. Muhammad Yousaf appeared as PW-5. He in the cross-examination stated that when the respondent/suitor gained knowledge of the sale transaction after 10/15 minutes he made a performance of Talb-e-Muwathibat. He stated that they remained available in the house of Mushtaq for 25/30 minutes. Mushtaq Ahmad son of Ibrahim, entered in the witness box as PW-4. He stated that after about five minutes, jumping demand was made. The learned Addl: District Judge while returning his finding on Issue No. 2, noted this fact and the relevant statements of the two witnesses namely Mushtaq Ahmed and Muhammad Yousaf PW-4 & PW-5, have been reproduced in vernacular but gone by the consideration that the parties belong to the rural area and after lapse of time this type of discrepancy is natural. The learned trial Judge while answering Issue No. 2 observed that in the pre-emption law no time is specified for the jumping-demand. This question came up for consideration in Ghulam Abbas and 2 others V. Muhammad Ilyas (2007 MLD 1978), wherein the controversy, has been set at rest. In the case mentioned supra the Talb-e-Muwathibat was with the delay of 10/15 minutes. Informer in that case has also deposed that the jumping demand was made after 10/15 minutes. The relevant portion of the judgment reproduced hereunder:--
"In the circumstances, the story set up by the respondent that he was informed of the sale much later on 25.11.99 by Tanvir Ahmad (PW.2) who was a Moeen, does not ring true. Furthermore, when Tanvir Ahmad appeared as a witness, he stated that when he informed the respondent of the sale, the respondent remained silent for about 10/15 minutes and thereafter expressed his desire to pre-empt the sale. This fact is also sufficient to show that no immediate jumping demand was made by the respondent-plaintiff. Moreover, there are serious discrepancies in the testimony of the PWs from which it can be easily seen that they were not being truthful."
The right of pre-emption is a feeble right and until it is proved through unshaken evidence that the Talb-e-Muwathibat was performed in accordance with Section 13 of the Punjab Pre-emption Act 1991, the suit cannot be decreed. If the necessary Talb were not performed in accordance with law and in a mode provided by Section 13, the right of pre-emption would be extinguished. I am fortified in my view by Muhammad Siddique Vs Muhammad Sharif and others (2005 SCMR 1231) and Muhammad Saba Vs. Akbar Ali (2008 YLR 43). Both the Courts below, have misread the evidence and made incorrect interpretation of the deposition of the two material witnesses. If the Courts below have misread the evidence or the material available on the record interference in provisional jurisdiction of this Court is justified. Reference may be made to Nabi Bakhsh Vs. Fazal Hussain (2008 SCMR 1454).
I have come to the inescapable conclusion that the impugned judgment and decree passed by both the Courts below cannot sustain and the Courts below acted illegally and with material irregularity. The revision petition is accepted and the impugned judgment and decree of the Courts below are set-aside. Resultantly the suit brought by the respondent-pre-emptor shall be dismissed with costs throughout.
(R.A.) Petition accepted.
PLJ 2009 Lahore 968
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
MUHAMMAD IMRAN KHAN etc.--Petitioners
versus
GOVT. OF PUNJAB etc.--Respondents
W.P. No. 6289 of 2008, decided on 9.6.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil service--Disciplinary proceedings were initiated against civil servant on the allegations of joining service on basis of bogus appointment letters--Services of civil servants were terminated by invoking provisions of contract policy--Validity--Once the competent authority initiates disciplinary proceedings against its employees by leveling allegations, it cannot have recourse to some other procedure unless the allegations are withdrawn specifically, besides service of an employee cannot be terminated without assigning reason which were lacking in impugned order--No regular inquiry was held--Matter was remanded. [P. 970] A
M/s Muhammad Ghias-ul-Haq Sheikh and Syed Jawad Jaferi, Advocates for Petitioner.
Ch. Zulfiqar Ali Sindhu, Additional Prosecutor General, Punjab.
Mr. Muhammad Zafar Ullah Khan Khakwani, Learned AAG.
Mian Bashir Ahmed Bhatti, Deputy Prosecutor General.
Date of hearing: 9.6.2009.
Order
Through this single order, I intend to dispose of following writ petitions, which involve common questions of law and facts:
(i) W.P. No. 6289-08 "Muhammad Imran Khan etc Vs. Govt of Punjab"
(ii) W.P. No. 1761/08 "Shah Faisal etc Vs. Govt. of Punjab"
(iii) W.P. No. 6305/2008 "Ghulam Akbar etc. Vs. Govt. of Punjab"
(iv) W.P. No. 4197/2008 "Shabbir Hussain Vs. Govt. of Punjab"
Briefly stated facts as those emerge out of these petitions are that petitioners were appointed as junior clerks, Naib Qasids etc in the Prosecution Branch of the Government of the Punjab, which order stood implemented Disciplinary proceedings were initiated against them on the allegations of joining service on the basis of bogus appointment letters. Suddenly, the services of the petitioners were terminated vide the impugned orders, by invoking provisions of contract policy, by giving them one months notice.
It is inter alia contended that the services of the petitioners were terminated, without observing codal formalities; that initially disciplinary proceedings were initiated against them for securing appointment on the basis of bogus appointment letters, however, their services were terminated by invoking the provisions of contract policy; that the termination letter itself is a proof that the allegations against the petitioners are false. It is added that had the appointments of the petitioners been bogus, the departmental authority could dispense with their service on the basis of show cause notice initially issued to them; that no inquiry was held. It is with vehemence argued that the appointment orders of the petitioners are genuine, having been issued by competent authority, after observing all codal formalities and that termination of their services is tainted with malice and mala fide.
Conversely, learned Additional Prosecutor General Punjab as well as learned Assistant Advocate General, with vehemence opposed the submissions made at bar by the learned counsel for the petitioners and submits that termination orders were passed perfectly in accordance with law, by competent authority.
Arguments heard. Record perused.
There is no denying to the fact that initially disciplinary proceedings were initiated against the petitioners on the allegations of joining service, on the basis of bogus appointment letters and formal show cause notices were also issued to all of them, to which they submitted replies denying the charges contained therein, however, without concluding the disciplinary proceedings in accordance with law, by taking U turn, the Additional Prosecutor General proceeded to terminate services of the petitioners by invoking relevant clause of the contract policy. By now it is well settled proposition of law that once the competent authority initiates disciplinary proceedings against its employees by leveling certain allegations, it cannot have recourse to some other procedure unless the allegations are withdraw specifically, besides service of an employee cannot be terminated without assigning reasons which are lacking in the orders impugned therein. Admittedly, no regular inquiry has been held. The petitioners have also disputed competence of Additional Prosecutor General. The matter is, therefore, remanded to the learned Prosecutor General with a direction to him to personally attend to the grievance of the petitioners and pass appropriate orders, in accordance with law, of course after providing a fair opportunity to the petitioners of defending themselves. These petitions are allowed. Impugned orders are set aside. The petitioners shall be reinstated in service, however, the question of payment of back benefits would depend upon outcome of inquiry or proceedings undertaken by the learned Prosecutor General in accordance with.
With these observations, these petitions are disposed of.
(R.A.) Petitions disposed of.
PLJ 2009 Lahore 970 (DB)
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bukhari and Nasim Sikandar, JJ.
ADMINISTRATOR, MARKET COMMITTEE, JAMPUR
DISTT. RAJANPUR--Appellant
versus
M. WALEED KHAN and 4 others--Respondents
I.C.A. No. 99 of 2009 in W.P. No. 1563 of 2009, decided on 9.6.2009.
Punjab Employees, Efficiency Discipline & Accountability Act, 2006--
----S. 6--Law Reforms Ordinance, (XII of 1972) S. 3--Intra Court Appeal--Maintainability of constitutional petition--Finalization of inquiry--Impugned order was motivated and mala fide could not be taken into consideration in constitutional of High Court--Validity--Reasons and causes for issuance of impugned order alleging in efficiency, corruption, financial irregularities and embezzlement as stated in impugned letter being purely of factual nature, no constitutional petition could possible be made--Held: In absence of any prayer for suspension of order of transfer its grant was not available--Appeal was allowed. [P. 972] A
Mr. Muhammad Ramzan Khalid Joiya, Advocate for Appellant.
Mian Jahangir Kamran, Advocate for Respondent No. 1.
Date of hearing: 9.6.2009.
Order
This Intra Court Appeal seeks to challenge an order of the Hon'ble Judge in Chamber dated 5.5.2009 in W.P. No. 1563/2009 re: Muhammad Waleed Khan V. Administrator, Market Committee, Jampur District Rajanpur etc.
"After arguing the petition at some length, learned counsel for the petitioner submits that the petitioner will be satisfied if a direction is issued to Respondents No. 1 and 5 Administrator, Market Committee and Secretary, Market Committee, respectively, to dispose of the application/representation dated 9.2.2009 filed by the petitioner without any further loss of time. However, prays that till the disposal of said representation, the operation of the transfer order dated 7.2.2009 and suspension order dated 9.2.2009 may be suspended in the interest of justice.
In this view of the matter, this writ petition is disposed of with the direction to Respondents No. 1 & 5 Administrator, Market Committee and Secretary, Market Committee, respectively to dispose of the application/representation of the petitioner, strictly in accordance with law, within a period of fortnight, under intimation to the D.R.(Judl) of this Court. Till then the operation of the transfer order dated 7.2.2009 & suspension order dated 9.2.2009 shall remain suspended."
Heard the learned counsel for the parties. Learned counsel for the appellant contends that the representation/application dated 9.2.2009 was neither filed nor pending decision before the concerned authorities as alleged in the petition and referred to in the order of the Hon'ble Single Judge. It is further stated that the petitioner having an alternate remedy available to him in service matter, the Constitutional petition was otherwise not maintainable.
Be that it may no Constitutional petition against the impugned order dated 5.5.2009 was maintainable under which the Administrative Market Committee, Jampur suspended the present Respondent No. 1 till the finalization of inquiry under Section 6 of the Punjab Employees, Efficiency Discipline & Accountability Act, 2006. The allegation of the present Respondent No. 1 that the impugned order was motivated and mala fide could not be taken into consideration in Constitutional jurisdiction of this Court. The reasons and causes for issuance of the impugned order alleging inefficiency, corruption, financial irregularities and embezzlement, as stated in the impugned letter being purely of factual nature, no Constitutional petition on the subject could possibly be made. We are also in agreement with the learned counsel for the appellant that in absence of any prayer for suspension of order of transfer its grant was otherwise not available for the Respondent No. 1.
Accordingly this appeal is allowed and the order of the learned Judge in Chamber is set aside with the direction to the appellant to complete the inquiry proceedings against Respondent No. 1 within the period stipulated by law.
(R.A.) Appeal allowed.
PLJ 2009 Lahore 972
[Multan Bench Multan]
Present: Pervaiz Inayat Malik, J.
RAB NAWAZ etc.--Petitioners
versus
STATE--Respondent
W.P. No. 1876 of 2009, heard on 11.6.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--Pakistan Penal Code, (XLV of 1860)--Ss. 310-A & 506-B--Constitutional petition--Abductee appeared before High Court during the course of hearing and categorically stated that she was neither abducted by any body nor kept in illegal confinement--Statement of abductee recorded u/S. 161, Cr.P.C. as well as before High Court supported the defence version and contradicted the story as narrated in FIR--Matter qua abductee girl was pending before Family Court--Validity--Deeper appreciation at bail stage is not permissible--Petitioner's case calls for further inquiry--Bail was allowed. [P. 973] A
PLD 2007 SC 48 & PLD 2007 Lah. 276, rel.
Mr. Muhammad Abdul Aziz Khan Punian, Advocate for Petitioners.
Mian Bashir Ahmad Bhatti, Deputy Prosecutor General for State.
Mehr Irshad Ahmed, Learned Counsel for the Respondent/ Complaints.
Date of hearing: 11.6.2090.
Judgment
The petitioners/accused Rabnawaz son of Altaf Hussain, Imran son of Hasnain, Qaiser son of Hasnain, Ashfaq son of Wazir Ahmad and Bashir Ahmad son of Ziadat seek their post arrest bail in case FIR No. 335/08 dated 29.12.2008, under Sections 310-A, 506-B PPC, P.S. Nawan Shaher, District Khanewal.
It is inter alia contended that the provisions of Section 310 PPC are not attracted even from the bare perusal of the FIR. Petitioners are innocent and falsely involved in this case with malafide intentions and for ulterior motives. They are no more required for investigation purposes. They are behind the bars for the last more than six months. In support of his contention places reliance upon (PLD 2007 Supreme Court of Pakistan 48) "State Vs. Sultan Ahmad and others" (PLD 2007 Lah. 276) "Pir Bux alias Piran and 7 others Vs. The State". Mst. Kalsoom alleged abductee by Rab Nawaz who has not supported the contents of this complaint, appeared before this Court on 03.03.2009 during the course of hearing of Writ Petition No. 563/09 and categorically stated that she was neither abducted by any body nor kept in illegal confinement and that she wants to reside with his husband. Mst. Sumaira was married to Imran. Further submits that Imran accused though married with Mst. Sumaira. But since no Rukhsati has taken place, therefore, the version as put forth by the complainant in the FIR is against the facts which stands belied from the DNA report, whereas, rest of the accused have only been involved being related to the petitioners Rab Nawaz. They are behind the bars since 19.01.2009.
Conversely, learned counsel for the complainant with vehemence opposed the submissions made at bar by learned counsel for the petitioners and submits that the challan has already been submitted in the Court. Petitioners are named in the FIR. Both the victims were recovered from the possession of Rab Nawaz and Imran petitioners. There is sufficient evidence for connecting the petitioners with the alleged offence, in particular statement of Nikah Khawan.
Arguments heard. Record perused.
Admittedly one of the two sisters/alleged abducee is residing in the same house and has in her statement recorded under Section 161 Cr.P.C, as well as before this Court supported the defence version and has contradicted the story as narrated in the FIR. The matter qua one girl is pending before the learned Family Court. The petitioner is also not required for investigation purposes. The judgments referred to supra by learned counsel for the petitioner are fully attracted to the facts and circumstances of the case. Deeper appreciation at bail stage is not permissible. I am of the considered view that the petitioner's case calls for further inquiry, while respectfully following the law laid down by the Hon'ble Supreme Court in (PLD 2007 Supreme Court of Pakistan 48) "State Vs. Sultan Ahmed and others", (PLD 2007 Lah. 276) "Pir Bux alias Piran and 7 others Vs. The State", this petitions is allowed and the petitioners are admitted to post arrest bail subject to their furnishing of bail bonds in the sum of Rs.1,00,000/- (rupees one lace) each with one surety each in the like amount to the satisfaction of learned trial Court.
(R.A.) Bail allowed.
PLJ 2009 Lahore 974
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
POST MASTER GENERAL LAHORE and others--Petitioner
versus
PRINCIPAL DIVISIONAL PUBLIC SCHOOL AND COLLEGE SAHIWAL--Respondent
C.R. No. 233 of 2009, decided on 7.5.2009.
Limitation Act, 1908 (IX of 1908)--
----S. 159--Civil Procedure Code, (V of 1908)--S. 115--O. XXXVII, R. 3 & O.V, R. 30--Limitation--Delay of two months 11 days--Application for leave to appear was filed beyond statutory period--Provisions of CPC--Applicability--Suit for recovery on basis of defence saving certificates--Application for condonation of delay was to be filed through which delay of each and every day was to be explained by defendants--Affidavit submitted alongwith that application was also not of the defendants--Validity--Without proper affidavit, application filed by the defendants for leave to appear and defend the suit cannot be considered as validly filed under Order, XXXVII, Rule 3, CPC--Service of defendants as provisions of Order V, Rule 30 of CPC shall be applicable to the facts of the instant case--Application for leave to appear and defend the suit were badly time barred and the same could not be entertained without application for condonation of delay--Civil revision was dismissed. [P. 976] A & B
Khawaja Noor Mustafa, Advocate for Petitioner.
Ch. Muhammad Hafeez Ahmad, Advocate for Respondent.
Date of hearing: 7.5.2009.
Order
PLJ 2009 Lahore 977
[Multan Bench Multan]
Present: Syed Zulfiqar Ali Bokhari, J.
AKHTAR SALEEM--Petitioner
versus
D.C.O. etc.--Respondents
W.P. No. 3495 of 2009, decided on 9.6.2009.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Constitutional petition--Barred under Art. 212 of Constitution--Question of maintainability--Civil servant--Transfers and posting of civil servants--Transfers and postings of civil servants are relatable to the terms and conditions of services--High Court has no jurisdiction to entertain the constitutional petition against the transfer order of a civil servant--Civil servant can approach the appropriate forum for redressal of the grievance--Constitutional petition was not maintainable. [P. 978] A
Sardar Balakh Sher Khosa, Advocate for Petitioner.
Mr. Qamar-uz-Zaman Butt, Advocate for Respondent No. 4.
Humayun Akhtar Sahi, Deputy Secretary C & W.
Date of hearing: 9.6.2009.
Order
Through this constitutional petition the petitioner has challenged order dated 07.05.2009 passed by Respondent No. 3 through which transfer order dated 08.04.2009 regarding posting and transfer of the petitioner was cancelled on the administrative ground and in the public interest.
He submits that petitioner was transferred from Chobara District Layyah to Bhakkar and was again transferred on 08.04.2009 from Bhakkar to D.G. Khan on 07.05.2009. His previous order of transfer dated 08.04.2009 was cancelled. He submits that all three orders were made in violation of posting and transfer policy of the Government of the Punjab as the all orders were made before exhausting period of tenure. He prayed that the impugned order dated 07.05.2009 may be set-aside.
Report and parawise comments were called from the respondents which have been submitted. In the report and parawise comments, it was submitted that the petitioner is permanent resident of District D.G. Khan and he being civil servant of BS-17 cannot be posted in his home District. Through impugned order he was transferred from his home District on the administrative ground and public interest. In the parawise comments submitted by Respondent No. 3 various legal preliminary objections were raised including the objection of bar under Article 212 of the Constitutional of Islamic Republic of Pakistan, 1973.
Learned counsel appearing on behalf of Respondent No. 4 submits that petitioner is civil servant. The transfer and posting of civil servant is purely relatable to the terms and conditions of service. The jurisdiction of this Court or any other Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He has relied on 2005 SCMR 17, 2008 PLC (CS) 75 and 1997 SCMR 167.
I have heard learned counsel for the parties and perused the record.
Admittedly, the petitioner is civil servant. The transfers and postings of civil servants are relatable to the terms and conditions of service. This Court has no jurisdiction to entertain the constitutional petition against the transfer order of a civil servant. The petitioner may approach the appropriate forum for redressal of his grievance. This constitutional petition is dismissed being not maintainable.
(R.A.) Petition dismissed.
PLJ 2009 Lahore 978
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD SHARIF--Petitioner
versus
TEHSIL COUNCIL KAHROOR PAKA, DISTRICT LODHRAN
through Nazim & another--Respondents
W.P. No. 6049 of 2004, decided on 3.3.2005.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Ordinance, 2001--Sections 57, 67--Constitutional petition calling in-question a resolution passed by Tehsil Council declaring the petitioner, a police tout and banned his entry in P.S. City--Validity--Section 67 of the Punjab Local Government Ordinance, 2001 provides the functions and powers of the Tehsil Council while Section 57 of the Ordinance, 2000 provides for the functions of a Tehsil Nazim--High Court did not find any power vesting in the tehsil council or the Tehsil Nazim to declare a citizen to be a police tout--Petition allowed. [P. 979] A
Miss Moons Safdar, Advocate for Petitioner.
Malik Qasim Khan Joya, Advocate for Respondent No. 1.
M. Fayyaz, S.I. for Respondent No. 2.
Date of hearing: 3.3.2005.
Judgment
This writ petition questions a resolution passed by the Respondent No. 1 (Annex `G') whereby the petitioner has been declared as a Police tout and it has been recommended that his entry in P.S. City be banned.
Learned counsel for the petitioner contends that the Respondent No. 1 has no lawful authority to pass such a resolution and that too without any notice or hearing of the petitioner. Learned counsel for the Respondent No. 1 has stated that the matter was taken as an item of public interest in the house and the resolution was passed.
I have examined the said resolution. The proposal is that the petitioner be declared to be a Police tout and he be debarred from internees P.S.City. The resolution was carried.
Now Section 67 of the Punjab Local Government Ordinance, 2001 provides the functions and powers of the Tehsil Counsel while Section 57 of the said Ordinance provides for the functions of a Tehsil Nazim. I do not find any power vesting in the Tehsil Council or the Tehsil Nazim to declare a citizen to be a police tout. The writ petition is accordingly allowed and the impugned resolution is set aside being without lawful authority and void. No orders as to costs.
The petitioner may approach a civil court by filing a properly constituted suit for damages, if so advised.
(R.A.) Petition allowed.
PLJ 2009 Lahore 980
Present: Iqbal Hameed-ur-Rehman, J.
UZMA SALEEM, POSTAL CLERK, ACCOUNT BRANCH, GENERAL POST OFFICE, LAHORE--Petitioner
versus
POST MASTER GENERAL PUNJAB CIRCLE, LAHORE
and 5 others--Respondents
W.P. No. 10517 of 2009, decided on 8.10.2009.
Constitution of Pakistan, 1973--
----Art. 212--Service matter--Terms and conditions of service--Barred of High Court under Art. 199 of Constitution--Civil servant was serving as teacher on attachment basis against vacant seat--Civil servant was appointed as clerk--Adjustment order was not implemented--Claiming for the payment of salary and allowance--Validity--Any discriminatory attitude was being adopted her as she had only urged through the instant petition that civil servant was entitled to grant of BPS-14 on ground that she had been working on the post as a step-gap arrangement and the civil servant could not claim promotion as of right on the basis of the claim--Held: Civil servant's claim for the payment of salary and allowances for a period w.e.f. designator till to date on account of the performing duties seems to be genuine--Respondents were directed to make the payment of pay and allowance. [P. 982] A, B & C
2002 SCMR 1056, 1992 SCMR 1869 & 1986 SCMR 991, rel.
Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.
Mr. Amar Rahman, DAG for Respondents.
Date of hearing: 8.10.2009.
Order
Through the instant petition, the petitioner prays that she be designated as an Assistant Mistress in BPS-14 in line with order dated 17.12.2003 passed by Respondent No. 1 and further she be given her salary by treating her as Assistant Mistress BPS-14 from October, 2003 as she is serving as teacher on attachment basis against the vacant seat of Miss Asima Huma Lady Teacher.
Brief facts as narrated in this petition are that the petitioner was appointed as a Clerk. Thereafter, she was transferred against the vacant seat of Miss Asima Huma who was teaching in the Post Model Girls High School Multan Road, Lahore, on the attachment basis. Thereafter, Respondent No. 1 passed an order on 17.12.2003 whereby she was adjusted as Assistant Mistress in BPS-9 in the said school. She reported her joining as Assistant Mistress to Respondent No. 3. The adjustment order was not implemented by Respondent No. 1, as such, she moved an application to Respondent No. 1 for implementation of the same but Respondents Nos. 1 & 2 adjusted Miss Naveeda Kausar Respondent No. 6 as Assistant Mistress BPS-14 and Respondents No. 4 & 5 were re-designated as Assistant Mistress in BPS-14 from her basic previous designations as a Librarian. Hence this writ petition.
It is contended by learned counsel for the petitioner that the petitioner is M.A. Arabic & B.Ed, and since 17.12.2003 the petitioner being a clerk is teaching the subject of Arabic in Pakistan Post Model Girls High School Multan Road, Lahore, but she has not been promoted instead Respondents No. 4 to 6, who have low qualification as compared to her have been promoted. It is further contended that in promoting the said respondents, discrimination has been exercised by Respondent No. 2 and that not only Articles 3, 4, 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 have been ignored but also rules governing the services matters of the employees of Post Master General Offices have been violated by Respondents No. 1 & 2. It is further contended that the petitioner now a days is very disappointing and is suffering from inferiority complex due to the fact that she is introduced in the school as a clerk while other teachers serving in the same school, who hold low qualification as compared to the petitioner, are enjoying the status of the officers in the said school. It is further contended that the petitioner is teaching the subject of Arabic being M.A. in Arabic with effect from 17.12.2003 but she is receiving her salary as a clerk and in this respect, a certificate verifying the said fact has been issued by the Head Mistress Post Model High School Multan Road, Lahore.
On the other hand, the learned DAG at the very outset has questioned the maintainability of this petition by asserting that grievance of the petitioner relates to the terms and conditions of service which this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. It is further asserted that the petitioner has not been able to show that any discriminatory attitude is being adopted towards her as she has only urged through this petition that she is entitled to the grant of BPS-14 on the ground that she has been working on the said post as a stop-gap arrangement and she cannot claim promotion as of right on the basis of the said claim and in this respect, he has relied upon 1998 SCMR 882. It is further contended that the petitioner has a back door entry and the Court is very watchful of the process through which selection is to be made i.e. through proper Selection Board by adopting a proper procedure. It is further contended that at the most, the petitioner could claim for the salary for the work already done and for this purpose, the petitioner should moved before the Service Tribunal and in view of the same, this petition merits to be dismissed.
Arguments heard. Record perused.
Grievance of the petitioner relates to the terms and conditions of service which this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Even the petitioner has not been able to show that any discriminatory attitude is being adopted towards her as she has only urged through this petition that she is entitled to the grant of BPS-14 on the ground that she has been working on the said post as a stop-gap arrangement and she cannot claim promotion as of right on the basis of the said claim. In this respect, reliance is placed upon Zafarullah Baloch Vs. Government of Balochistan and others (2002 SCMR 1056), wherein it has been held that promotion is not a vested right of a civil servant because it depends upon eligibility-cum-fitness". The claim of the petitioner for the payment of her salary and allowances for a period with effect from October, 2003 till to date on account of his performing duties as Assistant Mistress in BPS-14 seems to be genuine. Reliance is placed on the case of Sh. Amar Maftoon Vs. Government of the Punjab through Secretary Education and another (1992 SCMR 1869) wherein it has been held that:
"Civil Servant worked against post of higher grade and discharged functions of such post, which entitled him to the pay attached to that post. Incorporation of condition in Civil Servant's posting order that he was adjusted against own pay and grade, would be inconsequential and not a bar for him to claim higher grade of pay. Civil servant was thus, entitled to the pay of higher post during the period he worked against the same."
In the case of Federation of Pakistan Vs. Shahzada Shahpur Jan and 2 others (1986 SCMR 991) it has been held that "Civil Servant, who while working in higher grade but without any formal order of promotion to higher grade, was entitled to pay of higher grade from the date he was promoted to higher post with said higher grade, onwards along with increments falling due every year." In the case of Islamic Republic of Pakistan through Secretary. Finance Division, Government of Pakistan, Islamabad Vs. Qazi Abdul Karim, Deputy Accountant General, N.W.F.P. Peshawar and another (1978 SCMR 289) wherein it has been held that "Employee promoted to officiate in a higher post involving higher responsibility is entitled to minimum pay of grade of higher post.
(R.A.) Petition accepted.
PLJ 2009 Lahore 983
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD YASEEN--Petitioner
versus
SECRETARY SCHOOLS etc.--Respondents
W.P. No. 11638 of 2009, decided on 1.10.2009.
Constitution of Pakistan, 1973--
----Art. 212--Service Tribunals Act, 1973, S. 4--Service matter--Constitutional jurisdiction--Transfer order was passed on political considerations and not on administrative exigencies or in the public interest--Civil servant was transferred from his post and placed at the disposal D.D.E.O.--Transfer order was passed during imposition of ban--Validity--Transfer orders had been passed on political pressures exerted by respondent--Orders were not passed in consideration of administrative exigencies or in public interest--Transfer of civil servant was being made on directives by C.M. Secretariat at the behest of MPA in order to accommodate, therefore, the transfer order being made on political considerations, had been made in violation of law as well as transfer policies of Government--Held: Under Art. 212 of Constitution r/w. S. 4 of Service Tribunals Act, 1973, such matter comes within the purview of terms and conditions of service, as such Service Tribunal had exclusive jurisdiction in such like matters--Further held: Where mala fide on part of respondents were quite apparent and transfer orders had been passed on political considerations and not on administrative exigencies or in the public interest--High Court had exercised extra ordinary constitutional jurisdiction to rectify the same--Petition was accepted. [P. 986] A & B
1998 SCMR 2129, 1997 SCMR 169, 2009 PLC (CS) 94, 2007 PLC (CS) 428 & 2006 PLC C(S) 101, rel.
Mr. Muhammad Aftab Alam Rana, Advocate for Petitioner.
Mr. Muhammad Iqbal Mohal, Advocate for Respondent No. 4.
Mr. Muhammad Azeem Malik, Additional Advocate-General for Respondents.
Date of hearing: 1.10.2009.
Order
Through this writ petition, the petitioner has prayed that instant writ petition may kindly be accepted and the impugned order dated 2.6.2009 may kindly be set aside, declared illegal being passed on purely political considerations rather than administrative exigencies or in public interest.
Brief facts giving rise to this writ petition are that while working as Deputy District Education Officer at Tehsil Daska, District Sialkot, the petitioner was transferred and posted as Headmaster at Govt. High School Bhaghat Pur vide order dated 23.4.2009 passed by the District Coordination Officer, Sialkot (Respondent No. 2). Once again the petitioner was transferred from his post by Secretary (Schools), Government of the Punjab, Education Department, Lahore, (Respondent No. 1) vide order dated 5.5.2009 and his services were placed at the disposal of Respondent No. 2 for further posting and Respondent No. 4 was posted at the place of posting of the petitioner. After a period of only six days, Respondent No. 1 cancelled his own order dated 5.5.2009 vide order dated 11.5.2009. Respondent No. 1 again reviewed its own order dated 11.5.2009 vide order dated 2.6.2009 and cancelled the same while restoring the earlier order dated 5.5.2009. Being aggrieved of the said order, the petitioner has filed this writ petition.
It is contended by learned counsel for the petitioner that the petitioner had been transferred four times within a span of two months by Respondent No. 1, which is against the Guidelines for Transfer/Posting in School Education Department, provided in the letter dated 10.8.2009 issued by the Additional Secretary (Schools), Government of the Punjab, School Education Department, in which it was mentioned that no transfer shall be made before completion of tenure of three years; that the petitioner has been transferred due to political pressure exerted by Respondent No. 5; that the said transfer has been made against Rule 21 sub-rule (2) of the Rules of Business (Provincial Government) 1974 and that the instant transfer of the petitioner has not been made in consideration of the exigencies of service or in the public interest rather it has been made on the directions of MPA, as is apparent from letter dated 5.5.2009 (Annexure-E). In support of these contentions, learned counsel for the petitioner has placed reliance upon Munshi Tahir Zahoor Vs. Additional, Secretary to Chief Minister Punjab, Lahore and 4 others (2006 PLC (C.S.) 101), Mst. Zahida Perveen Vs. Secretary Health, Government of Punjab, Lahore and 8 others (2009 PLC (C.S.) 94), Federation of Pakistan through Secretary, Establishment Division, Islamabad and another Vs. Sheikh Abdul Aziz (1998 SCMR 91), Secretary, Revenue Division and others Vs. Muhammad Saleem (2008 SCMR 948), Muhammad Saleh Asim Vs. Secretary Schools Education, Government of Punjab, Lahore and 4 others (2009 PLC (C.S.) 44), Ibrar Hussain Vs. Collector, Customs and others (1997 PLC (C.S.) 885), Muhammad Arif Vs. Government of Punjab and others (2007 PLC (C.S.) 428).
The learned Additional Advocate-General assisted by learned counsel for Respondent No. 4, while supporting the comments submitted by Respondents Nos. 1 & 3, at the very outset has taken a preliminary objection that the instant writ petition is not maintainable and it is a purely service matter and the same comes within the purview of Punjab Service Tribunal under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and in this respect, reliance is placed upon Asadullah Rashid Vs. Haji Muhammad Muneer and others (1998 SCMR 2129) and Ayyaz Anjum Vs. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169). Second preliminary objection raised by them is that a civil servant can be transferred and posted anywhere in the Punjab at any time where his services are required and as such, frequent transfer does not give rise to any grievance to him. Learned counsel for Respondent No. 4 says that in February, 2007, the petitioner was posted in Daska and he has enjoyed a stay of more than two years. He has further alleged that there are serious allegations of Corruption against the petitioner, in view of which he had been transferred and the same has come on Print Media in the shape of Press Clippings of Daily Khabrain dated 9.9.2008 and 13.9.2009. Moreover, the assertion of the petitioner that his transfer has been made on political influence is also not true as in fact real brother of the petitioner, namely, Rana Afzal, is an MPA, as such, the political influence is being used by him.
I have heard learned counsel for the petitioner, the learned Additional Advocate-General as well as learned counsel for Respondent No. 4 and have also perused the comments as well as other material available on record.
The petitioner has appended with this petition letter dated 5.5.2009 (Annexure-E), which was written by Dr. Ahmad Afhan Deputy Secretary, Chief Minister's Secretariat Punjab to Secretary (Schools), Govt. of the Punjab, Education Department and in which it was intimated that "Mr. Muhammad Rizwan, MPA, PP-128, Sialkot met Khawaja Ahmad Hassan, Chairman Chief Minister's Task Force on LRRP/SWM and request the posting of Mr. Muhammad Awais (Respondent No. 4) as Deputy D.O. Education Daska" and order dated 5.5.2009 (Annexure-B), which had been issued in pursuance of directive dated 5.5.2009 from the Chief Minister's Secretariat, whereby the petitioner was transferred from his post and placed at the disposal of Respondent No. 2 for further posting and Respondent No. 4 was posted as Deputy District Education Officer (M-EE) Daska, District Sialkot. It appears that Respondent No. 4 was accommodated. The said transfer order dated 5.5.2009 had been passed within a period of only one month. After a period of only six days, Respondent No. 1 cancelled his own order dated 5.5.2009 vide order dated 11.5.2009. Again vide order dated 2.6.2009, Respondent No. 1 cancelled the same while restoring the earlier order dated 5.5.2009, thereby again transferring the petitioner and placing his services at the disposal of Respondent No. 2. It is further observed that the said orders have been passed during the imposition of ban. It is quite obvious from the above that the instant orders with regard to the transfer of the petitioner had been passed on political pressures exerted by Respondent No. 5 through Respondent No. 3, as such, the impugned transfer order had not been passed in consideration of any administrative exigencies or in public interest.
In view of the above perspective, it is quite apparent that the transfer of the petitioner is being made on the directives issued by the Chief Minister's Secretariat at the behest of the local MPA in order to accommodate Respondent No. 4, therefore, the impugned transfer order being made on political considerations, had been made in violation of the law as well as the transfer policies of the Government. Preliminary objections raised by the learned Additional Advocate-General as well as learned counsel for Respondent No. 4 are that under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 4 of the Service Tribunals Act, 1973, this matter comes within the purview of terms and conditions of service, as such, the Service Tribunal has the exclusive jurisdiction in such like matters. I am afraid in such like matters where mala fides on the part of the respondents are quite apparent and the impugned orders have been passed on the political considerations and not on the administrative exigencies or in the public interest, this Court has exercised extra ordinary constitutional jurisdiction to rectify the same and accordingly I feel no hesitation in exercising; extra ordinary constitutional jurisdiction in the instant case by accepting this writ petition relying upon Mst. Zahida Perveen Vs. Secretary Health, Government of Punjab, Lahore and 8 others (2009 PLC (C.S.) 94), Muhammad Arif Vs. Government of Punjab and others (2007 PLC (C.S.) 428) and Munshi Tahir Zahoor Vs. Additional, Secretary to Chief Minister Punjab, Lahore and 4 others (2006 PLC (C.S.) 101). Resultantly, the impugned order dated 2.6.2009 is set aside.
(R.A.) Petition accepted.
PLJ 2009 Lahore 987
Present: Ali Akbar Qureshi, J.
SAEED-UR-REHMAN and 3 others--Petitioners
versus
DISTRICT CO-ORDINATION OFFICER, LAHORE
and another--Respondents
W.P. 13719 of 2009, decided on 15.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Graveyard (Preservation and Maintenance) Act, (XXV of 1958), Scope--Constitutional petition--Petitioners were aggrieved of an action to remove the encroachments of Miani Sahib Graveyard--High Court conducted survey on basis of schedule of Khasra Numbers through Senior Member Board of Revenue--Land in-question was included in schedule and encroachment as reported by Revenue Board--Validity--Member personally remained present at the time of conducting the survey and had pointed out the encroachment made upon the land owned by Miani Sahib Graveyard--Held: Petitioners who had not come to the Court with clean hands were not entitled to any discretionary relief--Said graveyard committee which was headed by Deputy Commissioner of town or any other government functionary did not bother to take any notice rather closed their eyes and encourage the encroachers/law mafia to encroach upon the land, which was in any case was highly deplorable--The petitioner, if purchased the land owned by Miani Sahib Graveyard, cannot blame to others because it was the responsibility of the petitioners to firstly enquire from relevant quarters regarding the status of land as required by provisions of Transfer of Properties Act--Further held: No body should be condemned unheard, but in instant case the status of the petitioners was encroacher, therefore, the cited law was not helpful to the petitioners--Petitioners had approached to High Court for equitable relief but with un-cleaned hands, therefore, were not entitled for any discretionary relief--Petition was dismissed. [P. 992] A, B & C
1998 SCMR 2268, 2003 CLC 1718, PLD 1990 Lah. 58, PLD 1994 Lah. 353, 1995 MLD 45, 2002 SCMR 1034 & 2003 YLR 2206 & PLD 1973 SC 17, ref.
Mr. Tasawar Hussain Qureshi, Advocate for Petitioners.
Malik Maqbool Sadiq, Advocate for Respondent No. 2. (Miani Sahib Graveyard Committee).
Date of hearing: 15.7.2009.
Order
The petitioners of the instant petition are aggrieved of an action initiated by the respondents to remove the encroachments of Miani Sahib Graveyard, Lahore.
Learned counsel for the petitioners has contended, that the petitioners have purchased the suit land through registered sale-deed, therefore, they are bona fide purchaser and the respondents have no lawful authority to demolish or to take possession of the land owned by the petitioners. In support of their contention, learned counsel has referred, the sale-deeds Annexure-A and B and further submitted that no opportunity of hearing has been provided before starting the campaign to remove the encroachments. Also contended, that no final notification as required by Section 12 of the Punjab Graveyard Preservation & Maintenance Act, 1958, has been issued, therefore, the respondents are, otherwise, not permitted by law to disturb the possession of the petitioners. Reliance is placed on Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Professor Yameen-ud-Din, Advocate v. Lahore Graveyard Committee through Deputy Commissioner/Chairman and another (2003 CLC 1718), Muhammad Din and 9 others v. Province of the Punjab through Collector, District Rahimyar Khan and 3 others (PLD 1990 Lahore 58), Dr. Nusrat Ullah Chaudhry and 2 others v. Government of the Punjab through Secretary, Cooperative Department, Lahore and 2 others (PLD 1994 Lahore 353), Shahab-ud-Din and others v. Mst. Mariam Bibi and others (1995 MLD 45), Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034) and Abdul Khaliq Doosani v. Mst. Farida Saba (2003 YLR 2206).
Conversely, the learned legal Advisor of the Miani Sahib Graveyard Committee Malik Maqbool Sadiq, submitted that the land bearing Khasra No. 6643 which was allegedly purchased by the petitioner is part and included in the schedule attached to the Miani Sahib Graveyard Ordinance XLIV of 1962, therefore, the transaction of sale and purchase even through a registered sale-deed is without lawful authority and invalid. Reliance is placed on Noor Din v. The Chairman, Miani Sahib Graveyard Committee, Lahore (PLD 1973 SC 17). Further contended that firstly the survey was conducted under the Martial Law Regulation by the Martial Law Authority in the late 50's and secondly under the orders of this Court by a Senior Member, Board of Revenue Mr. Najam Saeed and the Khasra number allegedly claimed by the petitioners is also included in both the survey, therefore, the instant Constitutional petition in the observation made in the esteemed judgment is not maintainable. Lastly contended, that a right of hearing was provided to the petitioners but the petitioners could not satisfy to the Committee.
Heard.
The petitioners have filed the instant petition on the strength of the sale-deeds executed in the year 2005, that the property in question was purchased by them through registered instrument, therefore, they are bonafide purchaser.
The matter pertains to the status of the land vested in the Graveyard Committee in result of an Ordinance namely Miani Sahib Graveyard Ordinance XLIV of 1962, was thrashed out by the Hon'ble Supreme Court of Pakistan in a judgment supra (PLD 1973 SC 17). In the aforesaid judgment, it has already been ruled, that all the transactions completed before 18th of June 1962 are past and closed for all practical purpose, as all the actions taken by the Martial Law Authorities were saved by the President Order No. 29 of 1962 and Article 250 of the Constitution of Islamic Republic of Pakistan, 1962.
While giving the history of the Miani Sahib Graveyard, the Hon'ble Supreme Court of Pakistan has observed as under:--
PLD 1973 SC 17
Miani Sahib Graveyard is one of the oldest graveyards in Lahore and is in a most neglected state. It had been trespassed by a large number of unauthorized persons and innumerable structure had been constructed on the graveyard land. It was being used by antisocial elements. On receipt of large number of complaints, the West Pakistan Graveyard (Preservation and Maintenance) Act XXV of 1958 was introduced on the 24th April 1958, to provide for the preservation and maintenance of the graveyards in West Pakistan. By, a notification dated the 25th March 1959, a Graveyard Committee was constituted headed by the Deputy Commission, Lahore as Chairman. The graveyard land of Miani Sahib was surveyed by the Committee but in view of the practical difficulties in removing the encroachments, most of which had become§ permanent, the assistance of the Martial Law authorities was sought. The Martial Law authorities on the 22nd November 1961, reconstituted a Committee under their own supervision headed by Additional Deputy Commissioner (G), Lahore, as the Chairman with five official members including a nominee of the Martial Law Administrator. This Committee was constituted to remove the encroachments. This Committee issued notices to unauthorized encroachers under Martial Law Order No. 48 and Martial Law Regulation No. 20A.
The Miani Sahib Graveyard Committee, by a Press-note dated the 29th April 1962, published in Pakistan Times dated the 29th April 1962, announced the limits of the graveyards."
On the 31st May 1962, the Martial Law Administrator, Zone 'B' issued martial Law Order No. 131 authorizing the Committee to remove encroachments and impose penalties. This order was made retrospective from 22nd November 1961. The encroachments of the appellants were removed under the Martial Law Order No. 131 and it is alleged were completed long before the commencing day of the Constitution i.e., 8th June 1962. On the 7th June 1962, the Governor of the West Pakistan, promulgated Ordinance No. XLIV of 1962, called the Miani Sahib Graveyard Ordinance. This Ordinance kept alive the provisions of Martial Law Order No: 131 and had a schedule of Khasra numbers attached to it, which defined the limits of Miani Sahib Graveyard.
"The contentions have not impressed us. The West Pakistan (Preservation and Maintenance) Act, 1958 was promulgated on 24.4.1958 in order to provide for preservation and maintenance of Graveyard in West Pakistan in general and Miani Sahib Graveyard in particular. Pursuant to the said Act a Graveyard Committee headed by the Deputy Commissioner Lahore was constituted, vide a notification dated 25.3.1959, which surveyed the area falling within the ambit of Miani Sahbi Graveyard and found many encroachments. In order to remove the encroachments assistance of the Martial law authorities was sought. The Martial Law Administrator reconstituted the committee headed by ADC(G) Lahore with five official members including a nominee of the Martial Law Administrator. On 31.5.1962 the Martial Law Administrator Zone-B issued Martial Law Order No. 131 authorizing the Graveyard Committee to remove encroachments and impose penalties. The order was applied retrospectively from 27.11.1961 and the encroachments were removed. On 7.6.1962 the Miani Sahib Graveyard Ordinance, 1962 was promulgated which kept alive Martial Law Order No. 131 and the schedule attached to it defined the limits of Miani Sahib Graveyard. The entire Khasra No. 9945/6596 was included in the schedule. The petitioners have claimed that they had purchased land measuring 1 Kanal 7 Marlas 184 Sq.ft. falling in Khasra No. 9945/6596 from Muhammad Hanif and Mst. Kalsoom through a registered sale-deed dated 7.6.1968 which was followed by Mutations No. 4077 and 4076 dated 13.9.1968. It was provided in Section 5 of the Wet Pakistan Graveyard (Preservation and Maintenance) Act, 1958 that the Government shall issue a preliminary notification defining the limits of the area proposed to be declared as the area of the graveyard. Section 6 further provided that any person who claimed to have acquired any title to any land or property included within the limits defined in the notification issued under Section 5, may within three months of the date of such notification, apply to the Government for the exclusion of such land or property from the area of the graveyard and according to Section 7 such applications were to be disposed of by a Tribunal appointed by the Government. There is nothing on the record to show that the persons from whom the petitioners had allegedly purchased certain landed property comprised in Khasra No. 9945/6596 had moved any application for exclusion of the same from the area of Miani Sahib Graveyard. They had thus ceased to be the owners of the said land by operation of law and inaction and as such the petitioners can neither step into their shoes nor re-open a closed chapter. It is true that under Section 2(d) of the Miani Sahib Graveyard Ordinance, 1962 "Miani Sahib Graveyard" means the area specified in the schedule subject to any subsequent modification made by the Miani Sahib Graveyard Committee under the orders of the Assistant Sub-Administrator, Martial Law Lahore and Section 4(2) envisages a final notification defining the limits of the Miani Sahib Graveyard which shall be deemed to be a notification issued under Section 12 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958 but the petitioners cannot make any mileage from these provisions for reasons that are not far to seek. The recommendation of the Miani Sahib Graveyard Committee allegedly culminating in the final notification with regard to the land in dispute is not available on record and an undated typed notification has been pressed into service inspite of the observations made in the impugned judgment that "the allegeds notification has neither been issued by the Government nor it has been published in the official Gazette nor it bears the signatures of any authority". The omission leads to an irresistible conclusion that the so-called modification in the area of Khasra No. 9945/6596 was made by a hidden hand and not by the authorities mentioned in the West Pakistan Graveyards (Preservation and Maintenance) Act, 1958 and Miani Sahib Graveyard Ordinance, 1962. Needless to mention that the matter being a past and closed transaction in view of the observations made in Noor Din Vs. Chairman, Miani Sahib Graveyard Committee Lahore (PLD 1973 SC 17) the revenue authorities were bereft of jurisdiction to entertain any appeal or revision in respect of Mutation No. 4686 dated 28.5.1976 which is in line with the schedule appended to the Miani Sahib Graveyard Ordinance, 1962.
Under the direction of this Court, a Senior Member, Board of Revenue namely Mr. Najam Saeed, conducted survey on the basis of the schedule of Khasra Numbers attached to the Ordinance, 1962, although the task was very difficult, but the said officer completed the job successfully with the help of the other revenue officials. It is also reported, that the said Member personally remained present at the time of conducting the survey and has pointed out the encroachments made upon the land owned by the Miani Sahib Graveyard in his report. The sincere service rendered by Mr. Najam Saeed, learned Member Board of Revenue is commendable. The land in question is included in the schedule and is encroachment as reported by the learned Member, therefore, the petitioners who have not come to the Court with clean hands, are not entitled to any discretionary relief. The learned counsel, time and again argued, that the petitioners are bona fide purchaser and no final notification, as required by law, has been issued but has totally ignored the law laid down by the Hon'ble Supreme Court of Pakistan in the recent judgment CPLA No. 305/2002.
It is also observed with great concern that the Hon'ble Supreme Court of Pakistan in the judgment supra (PLD 1973 SC 17), has observed that the Ordinance, 1962 was promulgated on different complaints of encroachments and anti-social activities upon the land of the Miani Sahib Graveyard and today the encroachments upon the land which vested in the name of ALLAH have been increased instead of decreasing. The Miani Sahib Graveyard Committee which is headed by the Deputy Commissioner of the Town or any other Government functionary did not bother to take any notice rather closed their eyes and encourage the encroachers/law mafia to encroach upon the land, which is in any case is highly deplorable. The petitioners, if purchased the land owned by the Miani Sahib Graveyard, cannot blame to others because it was the responsibility of the petitioners to firstly enquire from relevant quarters regarding the status of land, as required by the provisions of Transfer of Properties Act.
Although, the learned counsel for the petitioners argued the case at length but have failed to make out a case of interference under the provisions of Article 199 of the Islamic Republic of Pakistan, 1973. The ratio of the law cited by the learned counsel for the petitioners is that no body should be condemned unheard, but in this case the status of the petitioners is encroacher, therefore, the cited law is not helpful to the petitioners. Even otherwise, the petitioners have approached to this Court for equitable relief but with un-cleaned hands, therefore, are not entitled for any discretionary relief.
Resultantly, this petition has no force and is dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 1 (DB)
Present: Said Maroof Khan and Muhammad Alam Khan, JJ.
SAYED HAMID SHAH--Petitioner
versus
ADNAN KHAN and 12 others--Respondents
W.P. No. 237 of 2008, decided on 6.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--Representation of the People Act, 1976, S. 52--Election dispute--Pre-poll rigging--Recounting of the votes--Jurisdiction of Election Tribunal--Alternate remedy--Constitutional petition--Competency of--Questions which pertains to factual controversy requiring the recording of evidence which cannot be done by High Court in its extra-ordinary Constitutional jurisdiction--Election Tribunal have also been constituted for adjudication of Election disputes and under Section 52 of the Representation of the People Act, read with Art. 225 of the Constitution, the exclusive jurisdiction lies with the Election Tribunal--Factual controversy is involved and alternate, adequate and efficacious remedy is available to the petitioner for redressal of his grievances before the Election Tribunal, he could not question the vires of the election or the dispute with respect of the election in the extra-ordinary constitutional jurisdiction of High Court--Writ petition dismissed being not maintainable.
[Pp. 3 & 4] A
PLD 1989 SC 396
M/s. Zafarullah Khan and Muhammad Arif Khan, Advocates for Petitioner.
Qazi Muhammad Anwar, Advocate for Respondent No. 1.
Syed Zafar Abbas Zaidi, Advocate for Respondent No. 2.
Date of hearing: 6.3.2008.
Order
Muhammad Alam Khan, J.--Sayed Hamid Shah son Sayad Kamal Shah has filed the instant Writ Petition under Article 199 of the Constitution, of Islamic Republic of Pakistan, 1973 vide which he has prayed for issuance of a direction to the official respondents that they should recount the votes of polling station in Union Council Hindi Khel and Jani Khel. And consequently excludes the bogus votes from count by rejecting the same being procured by Respondent No. 1 through corrupt and illegal practices.
It was averred in the petition that the petitioner alongwith Respondents No. 1 to 6 contested the general election of Provincial Assembly Constituency PF-72 which was held on 18.2.2008. It was alleged that Respondent No. 1 had started using of force and coercion on the morning of the election day and even prior to that on 17.2.2008, he used to pressurize the Presiding Officer and Assistant Presiding Officer to show favour to him and consequently, as a result of that the voters were not allowed to use their right of votes in various polling stations. It was also submitted that lady voters were not allowed to cast their votes and astonishingly that the result of the lady polling station was also compiled in the aforesaid two polling stations. It was also alleged that the polling staff including the Returning Officer was favouring the Respondent No. 1 and mass rigging has been committed in the process of election. On 28.2.2008 pre-admission notice was given to the respondent and interim relief was granted to the petitioner that final notification regarding the success of Respondent No. 1 shall not be issued. Pursuant to that Respondent No. 1 submitted written statement in which inter alia preliminary objection was raised to the competency of the writ petition and jurisdiction of this Court in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 52 of the Representation of People Act, 1976.
Learned counsel for the petitioner submitted that the election result has been procured by using force and stopping the lady voter to poll their votes. It was also submitted that Respondent No. 1 use force and by using coercive and illegal practice has secured the result in his favour.
On the other hand Qazi Muhammad Anwar, learned counsel for Respondent No. 1 submitted that election tribunal have been constituted and the election dispute is the exclusive domain of the election tribunal. It was also argued that the allegation in the petition contain, factual objections and the same would require recording of evidence which cannot be done in the extra-ordinary constitutional jurisdiction of this Court. It was also submitted that the ouster of jurisdiction should not be taken lightly and under Section 103(aa) of the Representation of People Act, the commission has also the power to declare the poll in any constituency as illegal after summery inquiry on the ground of illegality and irregularity. Once the tribunals are constituted then the exclusive jurisdiction lies with the tribunal which would decide the matter after recording of evidence and resolving the disputed controversies between the parties.
We have gone through the available record of the case and have considered the arguments of the learned counsels for the parties.
The allegations of the petitioner that on the day of polling or even prior to that on 17.2.2008 Respondent No. 1 has resorted to pre-poll rigging and used coercive means to extract the votes from the voters and also the question that lady voters were not allowed to cast their votes and inspite of that the result of the lady polling station was compiled are questions which pertains to factual controversy and the same would require the recording of evidence which cannot be done by this Court in its extra-ordinary constitutional jurisdiction. Election Tribunals have also been constituted for adjudication of election disputes and under Section 52 of the Representation of the People's Act read with Article-225 of the Constitution the exclusive jurisdiction lies with the election tribunal.
As factual controversy is involved in this case and alternate adequate and efficacious remedy is available to the petitioner for the redressal of his grievances before the election tribunal, he could not question the vires of the election or the dispute with respect to the election of Respondent No. 1 in the extra-ordinary constitutional jurisdiction of this Court as held in the case of Election Commission of Pakistan through its Secretary Vs. Javed Hashmi reported in (PLD 1989 S.C. 396).
In view of the facts and circumstances of the case narrated above, this writ petition being not maintainable is dismissed in limine and the order with respect to the interim relief issued by this Court on 28.2.2008 prohibiting the issuance of notification regarding success of Respondent No. 1 is also vacated.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Peshawar 4 (DB)
Present: Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ.
MIAN AWDAL--Petitioner
versus
MUHAMMAD JAN KHAN and 4 others--Respondents
W.P. No. 1106 of 2008, decided on 12.8.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Constitution of Pakistan, 1973, Art. 199--Amendment in plaint--Refusal of--Constitutional petition--During the long span of 8 years, the petitioner did not bother to sue for the correct number khasra--Interim order of amendment against which no writ petition is competent and lastly amendment at the belated stage cannot be granted--Petition dismissed. [P. 5] A
PLD 1995 Quetta 5 rel.
Mr. Yousaf Khan Yousafzai, Advocate for Petitioner.
Date of hearing: 12.8.2008.
Order
Muhammad Alam Khan, J.--Mian Awdal son of Kabal Malik resident of Kabal District Swat has brought this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 wherein he has challenged the order dated 9.12.2006 passed by the Civil Judge Swat and order dated 16.6.2008 passed by the learned District Judge Swat refusing to grant permission to the petitioner to amend the plaint in a pending suit titled Mian Awdal Vs. Muhammad Jan and others in the Civil Court Swat.
Briefly narrated the facts of the case are that the plaintiff has brought a suit regarding land measuring 01 Kanal 13 Marlas Khasras No.279 and 291 situated in village Dardyal Tehsil Kabai District Swat to be his ownership and prayed for decree for permanent injunction asking to restrain the defendants not to stop the irrigation flow to a water Mill owned and possessed by the petitioner. The defendant submitted written statement wherein the allegations were hotly contested and the parties produced their pro and contra evidence.
The learned Civil Judge in order to determine the location of the suit property appointed a Local Commissioner to ascertain whether the suit property is situated in the said number Khasras or not?.
Mr. Amanullah Khan, Advocate learned counsel/Local Commissioner inspected the spot in presence of the parties and the learned Local Commissioner submitted a detailed report firstly that number Khasra 279 is situated towards the eastern side and is a water course while there is no abadi in number khasra 291. However, there is a demolished House situated in number khasra 279, which is in dilapidated condition for the last 16 years. The learned Local Commissioner came to the conclusion that the correct number khasra in which the right of flow of water can be claimed by the petitioner is number khasra 265 which is not in dispute. In this respect the learned. Local Commissioner recorded the statement of the plaintiff/petitioner as well as his witness namely Akbar Khan. In this situation the plaintiff submitted an application for amendment of the plaint, which was rejected, and the same order was maintained by the learned District Judge, Swat in Revision No. 5 of 2007 decided on 16.6.2008.
Learned counsel for the petitioner submitted that the amendment can be granted by the Court at any time under the provisions of order 6, Rule 17 CPC and the learned two Courts below have not exercised the discretion properly.
We have gone through the record of the case and have considered the submission of the learned counsel for the petitioner.
The suit was instituted on 7.2.2001 and during the long span of 8 years the petitioner did not bother to sue for the correct number khasra. Furthermore impugned before us is an interim order of amendment, against which no writ petition is competent and lastly amendment at the belated stage cannot be granted as held in the case of Ministry Muhammad Ramzan Vs. Noor Muhammad and two others. (PLD 1995 Quetta 5).
The orders impugned herein are strictly in accordance with law, based on equity and justice, which cannot be interfered with by this Court in its extra ordinary Constitutional jurisdiction.
In view of the facts and circumstances of the case narrated above, we find no merits in the instant petition, which is dismissed in limine.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Peshawar 6
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE and 4 others--Petitioners
versus
MUHAMMAD MUSHTAQ KHAN and 2 others--Respondents
R.F.A. No. 7 of 2006, decided on 17.4.2008.
Land Acquisition Act, 1894--
----Ss. 18 & 54--Compensation--Duty of court--Principle of law land owners should be paid compensation and not the price--Court has to consider the location of the land, the high potential value and its fitness for Abadi--One year average is not the true criterion for fixation of the compensation--Land may be recorded in the revenue record as nehri, banjar qadeem or even barren, but its future use to be put to building sites cannot be ruled--Eventuality the price of a willing purchaser willing seller has to be awarded to the expropriated land owners--Appeal dismissed. [P. 8] A
S. Abid Hussain Shah, Advocate for Petitioners.
Mr. Muhammad Jamal, Special Attorney for Respondents.
Date of hearing: 17.4.2008.
Judgment
Chairman WAPDA, WAPDA House Lahore and others appellants are aggrieved from the judgment and decree of the learned Senior Civil Judge/Judge Land Acquisition, D.I. Khan dated 14.11.2005 vide which the Reference Petition filed by the respondents under Section 18 of the Land Acquisition Act, regarding the suit land vide Award No. 159 dated 05.10.1995 by the learned Land Acquisition Collector, CRBC Project WAPDA, was accepted and the awarded compensation was enhanced from Rs.4000/- to Rs.8000/- per kanal and the parties were left to bear their own costs.
Briefly narrated the facts of the case are that the Land Acquisition Collector CRBC Project WAPDA acquired some land vide impugned Award and fixed the compensation as Rs.4000/- per kanal alongwith 15% compulsory acquisition charges and 6% simple interest from the date of taking over possession till the payment of the compensation. Muhammad Mushtaq etc, being not satisfied from the assessment of the learned Land Acquisition Collector, filed a Reference Petition which was sent to the Referee Court. The Referee Court, after calling for the replication and recording of evidence, came to the conclusion that the land acquired vide impugned Award was of potential value and the learned Land Acquisition Collector has granted very meager compensation, and has under valued the land of the expropriated land owners. Resultantly, the Reference Petition was accepted vide judgment and decree dated 14.11.2005 and hence, the present appeal by Chairman WAPDA, WAPDA House Lahore and others.
It was submitted on behalf of the appellants that the learned Referee has fallen into an error while enhancing the compensation from Rs. 4000/- to Rs. 8000/- per kanal. The land was barren and was not having any potential value and thus, the compensation assessed by the learned Land Acquisition Collector was reasonable. It was submitted that the learned Land Acquisition Judge has not considered the data available on the record.
On the other hand, the attorney for the respondents submitted that the learned Land Acquisition Collector had under assessed the land of the respondents and had awarded very meager compensation which the learned Referee Court has rightly enhanced.
I have gone through the record of the case and also minutely studied the data available on the record.
At the outset it is sufficient-to note that vide the same Award, the land of Syed Abid Hussain etc was acquired from the same Khata and from the same chunk of land against which a reference was filed and the learned Referee Court enhanced the compensation from Rs.4000/- to Rs. 8000/- per kanal. The acquiring Department and Land acquisition Collector etc filed an appeal before this Court (RFA No. 20/2005) which was heard on 26.2.2007 and on the same date the appeal was dismissed.
The land subject matter of the present appeal as well as that of RFA No. 20/2005 is the same and is compact block having the same potential value. So, when, the land is acquired by the same Award which has earlier been maintained by this Court, thus, in view of the dictum laid down in M.C. Gujrat and others. Vs. Province of Punjab and others (CLC 1994 Lahore-126), this Court will not interfere in the judgment and decree of the learned trial Court and it was a perfectly sound order by the learned Referee Court who awarded the compensation after taking into consideration the data available on the record.
This is the cardinal principle of law that the land owners should be paid the compensation and not the price. The Court has to consider the location of the land, the high potential value and its fitness for Abadi. One year average is riot the true criterion for fixation of the compensation. The land may be recorded in the revenue record as Nehri, banjar qadeem or even barren, but its future use to be put to building sites cannot be ruled out. So, in that eventuality the price of a willing purchaser and willing, seller has to be awarded to the expropriated land owners.
The Honourable Supreme Court of Pakistan has laid down certain principles while considering and fixing the compensation to be paid to the expropriated land owners which are enumerated as under:--
(i) That an entry in the revenue record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawri as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under Section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back, may be considered including other factors like potential value etc.
as held in the case of Province of Punjab through Collector, Attock. Vs. Ensr: Jamil Ahmad Malik and others (2000 SCMR 870).
The judgment, and decree of the learned trial Court is perfectly sound, according to law and in accordance with the established; principles relating to the appreciation, of evidence on the record which calls for no interference.
In view of the facts and circumstances of the case narrated above, this appeal fails which is dismissed.
(M.A.K.Z.) Appeal dismissed
PLJ 2009 Peshawar 9 (DB)
Present: Muhammad Alam Khan and Shahji Rahman Khan, JJ.
QAYYUM NAWAZ--Petitioner
versus
Mst. ZUBAIDA BIBI & others--Respondents
W.P. No. 119 of 2005, decided on 23.5.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Respondent filed application for his impleadment as party having claim over the property in-dispute--However defence struk off for non-producing of evidence--Ejectment petition allowed--Respondent was declared as tenant--Constitutional petition by respondent against adverse order as to ownership--Validity of--No adverse order was passed against the petitioner despite of his failure to produce his evidence--Evidence by the respondent gone unchallenged--Order was passed against respondent and not against petitioner--Petitioner's civil suit against the respondents is pending adjudication--No adverse order passed against the petitioner by both the Courts below--Petitioner has already filed a civil suit to protect his legal rights--No locus standi to file writ petition--Petition dismissed. [P. 12] A
Mr. Muhammad Kamran Niazi, Advocate for Petitioner.
Mr. Akbar Ali Khan, Advocate for Respondent No. 1.
Mr. Nasrullah Khan, Advocate for Respondent No. 2.
Date of hearing: 23.5.2008.
Judgment
Shahji Rehman Khan, J.--Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner, Qayyum Nawaz son of Malik Haji Rabnawaz, has sought the indulgence of this Court to set at naught the judgments and decrees dated 7.10.2004 passed by the learned Civil Judge-II/Rent Controller D.I. Khan in favour of Respondent No. 1 against the petitioner which was affirmed in appeal by the learned Additional District Judge-I, D.I. Khan vide order dated 12.2.2005.
Facts of the case giving rise to this petition in brief are that Mst. Zubaida Bibi, Respondent No. 1, had sought for eviction of Qayyum Nawaz, son of Shah Nawaz, Respondent No. 2, through an application filed under Section 13 of the Rent Restriction Ordinance, 1959, in the Court of Civil Judge-II/Rent Controller, from the suit house situated in Chah Peepal Wala, Darban Road, D.I. Khan. According to the averments made in the petition, one Niaz Ali Khan was the original owner of the suit house from whom it was purchased by Mst. Zubaida Bibi through a registered Deed No. 1923 dated 12.8.2000, where Qayyum Nawaz, son of Shah Nawaz was residing as a tenant on monthly rent of Rs. 1200/- which he continued to pay to Mst. Zubaida Begum, but subsequently, he stopped the payment of rent to her and thus she filed the eviction application against him, who contested the same by filing replication thereto and the divergent pleadings of the parties gave rise to the framing of as many as six issues including the relief. After the examination of Patwari halqa and Registry Moharrir, the petitioner, Malik Qayyum Nawaz son of Malik Haji Rabnawaz, applied to the said Court for his impleadment as party/Respondent No. 2 on the ground that he had purchased the suit house through registered deeds No. 2140 and 2141, both dated 28.9.2003 from Qayum Khan and Riaz Ali which was allowed vide order dated 8/1/2004. After closing statement of the petitioner Mst. Zubaida Bibi on 17.2.004, Respondent No. 2, was directed by the Court to adduce his evidence who produced two witnesses and requested for summoning of two other witnesses, named Qayyum Khan and Riaz Ali but their attendance could not be procured on their given addresses and thus on 5.5.2004, Respondent No. 2 was directed to adduce his remaining evidence but despite repeated directions he failed to do so and, therefore, on 29.5.2005, by invoking the provisions of Order 17 Rule 3 CPC, his defence was struck off. Thus Respondent No. 1 was proceeded against exparte while the defence of Respondent No. 2 was struck off under Order 17 Rule 3 CPC and the learned trial Court passed decree in favour of Mst. Zubaida Bibi and respondent Qayyum Khan son of Shahnawaz Khan, (i) was declared as tenant under Mst. Zubaida Bibi with the direction to hand over vacant possession of the suit house to her within thirty days and (ii) that he, i.e. the said respondent Qayyum Khan shall pay rent of the suit house from March 2001 till 30th September 2004 (43 months) @ Rs. 1200/- per month, which was upheld in appeal as mentioned above and hence this writ petition.
Mr. Muhammad Kamran Khan Niazi, learned counsel for the petitioner, vehemently argued that the suit house was purchased by the petitioner vide registered Sale-Deed No. 2141 dated 26/9/2003 and that their evidence was closed by the Rent Controller in violation of Rule 3 of Order XVII of the CPC and thus his judgment based thereon is illegal, against the facts, not sustainable and liable to be reversed.
Mr. Nasrullah Khan Gandapur, learned counsel for Respondent No. 2, Qayyum Nawaz Khan, has supported the petitioner's case and denied the ownership of Respondent No. 1, Mst. Zubaida Bibi.
Mr. Akbar Ali Khan, learned counsel for Mst. Zubaida Bibi, Respondent No. 1, has opposed the writ petition on the grounds that no adverse order has been passed against the petitioner and he having already availed off an alternate and adequate remedy by filing Suit No. 1/1 of the year 2004, titled Malik Qayyum Nawaz Vs. Niaz Ali Khan, Mst. Zubaida Bibi and Sub Registrar, which is pending adjudication, has no locus standi to file the present writ petition.
We have given our dispassionate consideration to the materials available on record in the lights of arguments of the learned counsel for the parties.
The admitted facts are that Mst. Zubaida Bibi, Respondent No. 1 herein, had purchased the suit house vide registered Sale-Deed No. 1923 attested on 12/8/2000 who filed ejectment application against Qayyum Nawaz Khan, Respondent No. 2 herein, on 29/1/2002 before the Rent Controller D.I. Khan. During its pendency, the petitioner Malik Qayyum Nawaz, purchased a house vide Deed No. 2141 dated 26/9/2003. Needless to mention here that the boundaries and areas of the houses purchased by Mst. Zubaida Bibi and Malik Qayyum Nawaz petitioner are quite different. On the basis of above referred deed, the petitioner Malik Qayyum Nawaz on 12/12/2003 applied for impleadment as party in the ejectment application of Mst. Zubaida which was allowed by order dated 8/1/2004. After closing evidence of Mst. Zubaida Bibi, the petitioner Malik Qayyum Nawaz was directed to produce his evidence who on 9/3/2004 produced two witnesses but subsequently despite warnings on several dates, he failed to produce his remaining evidence and thus on 29/5/2004 his evidence was closed under Rule 3 Order XVII CPC, whereafter the learned Rent Controller passed the following order:--
(a) Respondent No. 1 is declared as tenant under petitioner and both the respondents are liable to hand over vacant possession of the suit house to petitioner within thirty days
(b) Respondent # 1 Qayyum Khan shall pay rent of the suit house from March 2001 till 30th September 2004 (43 months) @ Rs. 1200/-per month which comes to
Rs. 51,600/- to petitioner.
The tenant/Respondent No. 2 herein Qayyum Khan did not file any appeal against the impugned order of the learned Rent Controller, whereas the petitioner Malik Qayyum Nawaz preferred appeal thereagainst which was dismissed by the learned Additional District Judge-I D.I. Khan on 12/2/2005. Still feeling aggrieved, the petitioner has filed the instant writ petition.
It is evident from resume of the case that vide impugned order of the learned Rent Controller, no adverse order has been passed against the petitioner despite of his failure to produce remaining evidence coupled with the fact that his defence was struck off. The evidence of Mst. Zubaida Bibi, Respondent No. 1, having gone unchallenged, the impugned order dated 7/10/2004 was passed by the Rent Controller against Respondent No. 2 Qayyum Nawaz Khan and not against the petitioner. Besides that, it was admitted by Muhammad Umar Khan, Moharrir of the Court of Civil Judge-II D.I. Khan while appearing as RW.2 that the petitioner has filed Civil Suit No. 1/1 of 2004 against the respondents herein. This being the state of materials available on record that no adverse order was passed against the petitioner vide impugned judgments of both the Courts below and that he has also filed a civil suit to protect his legal rights, if any, therefore, we are of the considered opinion that he has got no locus standi to file the present writ petition.
For what has been discussed above, we find no substance in this writ petition which is hereby dismissed with no order as to costs.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Peshawar 12 (DB)
Present: Syed Yahya Zahid Gilani and Muhammad Alam Khan, JJ.
CHAIRMAN WAPDA, WAPDA HOUSE, LAHORE
and 3 others--Petitioner
versus
Mst. JAN SULTAN and 6 others--Respondent
W.P. No. 962 of 2007, decided on 13.8.2008.
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code, (V of 1908), Ss. 115, O. IX, R. 13--Suit for recovery as damages--Exparte decree--Constitutional petition--Valuation of the suit was fixed by the plaintiff/respondents to be Rs. 25, lacs and admittedly the value for the purpose of jurisdiction was one million--Appeal or revision was not competent before ADJ--Only High Court was competent to hear the appeal under the provisions of Civil Court Ordinance, 1962--Order passed in revision petition was without jurisdiction and coram-non-judice--Fact conceded by counsel for the respondent however submitted that the setting aside of the exparte decree by trial Court was not in accordance with law and the plaintiffs/respondents were at least, entitled to the cost--Petition accepted. [P. 14] A
Mr. Gul Nazir Azam, Advocate for Petitioners.
Mr. Yousaf Khan Yousafzai, Advocate for Respondents.
Date of hearing: 13.8.2008.
Judgment
Muhammad Alam Khan, J.--Khidmat Hussain son of Baz Gul now dead and represented by his legal representatives and Mst. Jan Sultan his widow had brought a suit for the recovery of Rs.25 Lacs against the defendants under the Fatal Accident Act. The matter was tried by the learned Civil Judge, Kohat and the Chairman WAPDA and others, defendants/petitioners herein were placed ex-parte and consequently an ex-parte decree was passed by the learned trial Court against them.
The defendants/petitioners later on filed an application for setting aside the ex-parte decree which was consequently accepted and ex-parte decree was set aside under the provisions of Order 9 Rule 13 CPC.
The plaintiffs/respondents filed a revision petition under Section 115 CPC which came up for hearing before the learned Additional District Judge-V, Kohat who accepted the same on 20.1.2007 and set aside the order of the trial Court and restored the ex-parte decree passed by the trial Court against the petitioners.
The Chairman PESCO WADPDA defendants/petitioners then filed a review petition which came up for hearing before the Additional District Judg-V Kohat was dismissed by the learned Additional District Judge-V, Kohat vide his judgment/order dated 12.3.2007.
Now the defendants/petitioners have filed the instant writ petition putting a challenge to the revisional order of the learned Additional District Judge-V Kohat dated 20.1.2007.
Learned counsel for the Chairman WAPDA petitioners. submitted that the impugned judgment passed by the learned revisional Court was not in accordance with law and is without jurisdiction. It was also argued that the petitioners have not been served in accordance with law and thus, the learned trial Court had rightly set aside the ex-parte decree, in order to, decide the lis on merits. It was submitted that the interference by the Revisional Court was unwarranted in law and was without lawful authority.
On the other hand the learned, counsel for the plaintiffs/respondents argued that the petitioners had been duly served by the trial Court and inspite of that they did not opt to appear before the Court to contest the suit and so they were rightly proceeded against ex-parte and the ex-parte decree was strictly in accordance with law, because once the knowledge of the ex-parte decree is proved, the due service or otherwise, loses its importance. Reliance was placed on a judgment handed down in the case of "Zafar-ul-Haq Vs. Waris Iqbal and another" reported in (PLD 1979 Lahore 793(B).
We have heard the learned counsel for the parties in detail and with their assistance scanned the record of the case.
Perusal of the record reveals that the valuation of the suit was fixed by the plaintiffs/respondents to be Rs.25 Lacs and admittedly the value for the purpose of jurisdiction was above One Million. Thus, the appeal or revision was not competent before the learned Additional District Judge-V, Kohat and only this Court was competent to hear the appeal or revision under the provisions of Civil Courts Ordinance, 1962 as amended upto date read with Section 115 of the Civil Procedure Code and thus, the Revision Petition before the learned Additional District Judge-V, Kohat was not competent and the order passed in revision was without jurisdiction and coram-non-judice.
When on this aspect of the case the learned counsel for the respondents was questioned, he frankly conceded and rightly so, that the revisional Court had no jurisdiction to entertain the revision. He however, submitted that the setting aside of the ex-parte decree by the learned trial Court was not in accordance with law and the plaintiffs/respondents were at least, entitled to the costs of proceedings for setting the ex-parte decree and if cost is imposed on the defendants/petitioners, he will be satisfied.
In view of the facts and circumstances of the case narrated above, we accept this writ petition, set aside the impugned order of the learned Additional District Judge-V, Kohat in Civil Revision No. 6 of 2006 decided on 20.1.2007 as without jurisdiction, without lawful authority and with no legal effect. The petitioners are however, burdened with costs of Rs. 2000/- (rupees two thousand) which they will pay to the plaintiffs/respondents before the trial Court. Parties are directed to appear before the trial Court on 12.10.2008.
(M.A.K.Z.) Petition accepted
PLJ 2009 Peshawar 15
[Abbottabad Bench]
Present: Ghulam Mohy-ud-Din Malik, J.
WAQAR HUSSAIN--Petitioner
versus
MUHAMMAD TARIQ--Respondent
C.R. No. 421 of 2006, decided on 10.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27 & S. 115--Revision--Application for permission to adduce additional evidence/documents stage--Rejection of--Criteria for--Inadvertance of the party, mistaken, illegal advice by the counsel, negligence or ignorance of a party in producing documents at proper stage are not a legal or valid ground to permit such party to fill up lacunae, set up a new case contradictory to the earlier stance--Requirement of additional evidence should be entrance requirements of the appellate Court and not of a party--The Court of appeal does not need production of additional evidence or document particularly of the type which the petitioner intends to produce--Petition dismissed. [P. 17] B
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Document can be permitted for placing on record where Court itself consider it necessary for just decision of appeal--Document was neither tendered nor referred to at trial--Held: When the available material on record is not enough to pronounce judgment then of course additional evidence can be allowed suo motu or on request of a party. [P. 17] A
Mr. Mushtaq Ali Tahir Kheli, Advocate for Petitioner.
Qazi Muhammad Ghazanfar, Advocate for Respondent.
Date of hearing: 10.9.2008.
Judgment
This revision petition calls in question the order dated 03.11.2006 passed by learned Additional District Judge-IV, Abbottabad. dismissing application dated 12.10.2006 filed by Waqar Hussain petitioner in Appeal No. 19/13 for permission to adduce additional evidence/document to prove his title. This application was submitted at the stage of hearing of appeal, the same was contested and ultimately it was dismissed. Hence this revision petition.
I have heard the learned counsel for the parties at length and perused the record.
Briefly stated facts of the case are that respondent/plaintiff filed a civil suit for possession of house, fully described in the plaint as well as for recovery of outstanding rent against the petitioner. Latter contested the suit by submitting his written statement. He denied the relationship of landlord and tenant between the parties and claimed that he was owner in possession of the disputed house since time immemorial.
Later on he took somersault at appellate stage and claimed that as a matter of fact he has purchased the suit house from its owner Mst. Muzaffar Jan vide unregistered sale agreement deed dated 13.12.1997 on payment of sale consideration of Rs. 1,50,000/-; that the stamp paper was misplaced and, therefore, at the time of submission of written statement he could not hand over the same to his counsel. However, he added that he had informed his counsel about the said sale transaction but the counsel put up entirely different case before the Court against his instructions and interest. Learned counsel for the petitioner explained that the petitioner being illiterate person particularly in the field of law was helpless in understanding the legal view point of his counsel. He went on to say that during pendency of the appeal he could discover the sale-deed and handed over to him (Mr. Mushtaq Ali Tahirkheli advocate). Thereafter, he presented the application alongwith the deed for permission to adduce additional evidence in appeal before learned Additional District Judge, Abbottabad, who after hearing the parties wrongly and illegally rejected his application.
Further, learned counsel for the petitioner referred to Order 41 Rule 27 CPC which enables the appellate Court to allow additional evidence having a material bearing on the merits of the case and submitted that if the document is proved genuine it would conclusively resolve the controversy between the parties once for all.
On the other hand learned counsel for the respondent submitted that the alleged sale-deed if permitted to be placed on file as additional evidence it will in no manner advance the cause of justice rather quite a new case contradictory to the earlier stance would be introduced; that evidence sought to be produced is not required for the just decision of the case because evidence on record is enough to decide the case in one way or other in the light of parties pleadings.
It is an undisputed fact on record that this document is unregistered, it was not produced before the trial Court, nor was relied upon by the petitioner. Rule 27 of Order 41 CPC, in the light of law laid down in SCMR 1988 page 1653 would not apply at appeal stage where the document was neither tendered nor referred to at the trial. Moreso, under the said rule a document can be permitted for placing on record where the Court itself considers it necessary for just decision of the appeal. To say that when the available material on record is not enough to pronounce judgment, then of course additional evidence can be allowed suo motu or on the request of a party.
In this particular case the petitioner is moving the Court for taking additional evidence so that he may amend his written statement, correct errors, mistakes, omissions and introduced quite a new and contradictory case to the one previously, set-up at the trial. Undoubtedly, a party to the appeal can ask the Court for examination or appreciation of evidence already on record but Rule 27 does not permit a party to apply for additional evidence, the discovery of which was made at a later stage, it was not relied upon or referred to at the initial stage in the pleadings or evidence before the trial Court. It has been rightly noted down by the learned appellate Court that it does not feel difficulty in arriving at correct conclusion of the matter on the basis of evidence already available on record. Moreso the petitioner has not pointed out any short comings in the evidence led by him at the trial in support of his plea taken in the written statement. According to Privy Council decision reported in AIR 1931 page 143, inadvertence of the party, mistaken illegal advice by the counsel, negligence or ignorance etc of a party in producing document at proper stage are not a legal and valid grounds to permit such party to fill up the lacunae, set-up a new case contradictory to the earlier stance. To say that the requirement of additional evidence should be entrance requirements of the appellate Court and not of a party. In the instant case, the Court of appeal does not need production of additional evidence or document particularly of the type which the petitioner intends to produce, therefore, revisional Court is not supposed to help the petitioner for patching up his case.
The upshot of the above discussion is that the impugned order of the learned Additional District Judge is well founded, based on proper reasoning and correct exposition of law which cannot be taken to any exception.
Accordingly, this revision petition being meritless stands dismissed. No order as to costs.
(M.A.K.Z.) Petition dismissed
PLJ 2009 Peshawar 18
Present: Syed Yahya Zahid Gillani, J.
Maulana MUHAMMAD IDREES--Petitioner
versus
FAZAL SAID KHATTAK etc.--Respondents
C.R. No. 40 of 2006, accepted on 21.8.2008.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 163--Decision on oath--Suit for declaration and permanent injunction--Decreed in favour of plaintiff on taking oath by him as offered by defendant moving an application--Defendant challenged decision--Appeals were accepted and suits were remanded for trial and decision on merits--Revision petition--Oath offered and taken falls under which category--Application of respondent/defendant clearly indicates that it does not fall under Art. 163 of Qanun-e-Shahadat, 1984 because under Art. 163 of Qanun-e-Shahadat, plaintiff himself takes oath and then opposite party is asked by Court to rebut claim with a counter oath--Whether requisite conditions pertaining to oath were fulfilled or not and oaths taken by petitioner/plaintiff and his son are in consonance with offer--Question of--Comparison of statements can easily show that oath was taken exactly in accordance with offer made and explained in statement of defendant--Trial Court has properly performed duty of recording their statements necessity of which has been over emphasized in case law--Parties also, during period intervening between application for oath and actual oath taken, had sufficient opportunity to cool mindedly contemplate over offer and acceptance--Now none of them can resile from their considered decision to get case decided on oath. [Pp. 23 & 24] A, B & C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 163--Offer of oath--Since offer of oath extended by defendant was accepted by petitioner/plaintiff and his son and oath was taken in open Court exactly according to demand--Held: Judgment of appellate Court, in this regard is violative of law settled by Apex Court and defendant shall have to face result of his offer and consequent oath taken by opposite party, as law now does not allow him to resile--Appellate Court could not appreciate and apply settled law in disposal of appeal, therefore, impugned judgment cannot sustain--Revision accepted. [Pp. 25 & 26] D & E
PLD 1997 Supreme Court 823(b) at page 831 & 1997 SCMR 1085, ref.
Mr. Hamid Hussain Khan, Advocate for Petitioner.
Mr. Nazir Khan, Advocate for Respondents.
Date of hearing: 19.5.2008.
Judgment
This civil revision (C.R. No. 40 of 2006) and the connected Civil Revision No. 7/2006 titled Maulana Muhammad Idrees vs. Gul Hassan are proposed to be decided by this single judgment because both arise from judgment and decree dated 16.11.2005 of learned Additional District Judge, Nowshera whereby he decided two connected appeals.
The plaintiff/petitioner Maulana Muhammad Idrees claims to be owner of the shop specified in the plaint. He allegedly entered into agreement dated 29.6.2002 to sell the shop to defendant/respondent Fazal Said Khattak. Possession of the shop was delivered to Fazal Said Khattak but the sale agreement ceased to exist due to alleged non-payment of sale consideration. Fazal Said Khattak has rented out the shop to one Gul Hassan, who is now in possession thereof, and he is defendant/respondent in C.R. No. 7/2006.
Maulana Muhammad Idrees instituted suit for declaration that since the sale agreement ceased to exist due to non-payment of sale consideration, he is entitled to take over possession of the shop from Fazal Said Khattak and his tenant Gul Hassan, along with recovery of rental income calculated @ Rs.2000/- per month.
Fazal Said Khattak contested the suit with the allegations that originally he purchased the suit shop from Maulana Muhammad Idrees for Rs. 12,000/- in the year 1974 and took over possession but later on since he resiled from the contract and refused to execute sale-deed, a Jirga was convened which enhanced the sale consideration to Rs.200,000/- which was offered but again he resiled. Therefore, the suit is liable to dismissal.
Gul Hassan took the plea that he is tenant on behalf of Fazal Said Khattak defendant to whom he has paid security amounting to Rs.20,000/- and paying him monthly rent @ Rs.2000/-, regularly.
In the meanwhile Fazal Said Khattak instituted a counter suit against Maulana Muhammad Idrees for specific performance of the agreement which was also contested. The trial Court consolidated both the Suits No. 88/1 Nim titled Maulana Muhammad Idrees vs. Fazal Said Khattak and No. 123/1 titled Fazal Said Khattak vs. Muhammad Idrees and framed consolidated issues for trial.
Evidence of the plaintiff was partially recorded when Fazal Said Khattak moved an application on 21.2.2005 wherein he offered that if the plaintiff Muhammad Idress and his son Misbah-ul-Islam take oath in front of Court, putting hands on holy Qur'an, that the disputed shop was not sold in the year 1974 and no sale consideration was received from defendant (Fazal Said Khattak), the defendant shall have no objection on passing decree in favour of plaintiff (Maulana Muhammad Idrees).
The aforesaid offer was accepted. The trial Court recorded statements of Fazal Said Khattak, Maulana Muhammad Idrees and his son Misbah-ul-Islam. The oath was administered, and in consequence thereof, Kulsoom Azam Civil Judge-II, Nowshera vide order dated 5.3.2005 decreed the suit of Maulana Muhammad Idrees Bearing No. 88/1. On the other hand, Suit No. 123/1 instituted by Fazal Said Khattak was dismissed.
This decision was challenged by Fazal Said Khattak and his tenant in two Appeals No. 13/3 of 2005 and 14/13 of 2005 which were accepted by Mr. Fazal Subhan, Additional District Judge-III, Nowshera on 16.11.2005 and the suits were remanded for trial and decision on merits. Consequently the judgments and decrees of the trial Court were set aside and the cases were remanded for trial and decision on merits.
Learned Court of appeal was of the opinion that the oath was not administered strictly according to the offer and the right of tenant Gul Hassan was also involved which needed determination. In this background Maulana Muhammad Idrees has filed these two separate revision petitions against Fazal Said Khattak and Gul Hassan which are being disposed of by this single judgment.
Learned counsel for the petitioner argued that it was a special oath offered by Fazal Said Khattak which was accepted by the petitioner and his son. The statement recorded by the trial Court would reveal that the oath was administered exactly according to offer. Now the provisions of Oath Act 1873 shall apply and Fazal Said Khattak cannot resile from the oath and he shall have to face the consequences. As far as the case of Gul Hassan is concerned, he has admittedly entered into possession of the shop as tenant on behalf of Fazal Said Khattak. When Fazal Said Khattak has lost his alleged claim and right over the shop, Gul Hassan would also have to leave possession which he is enjoying on behalf of Fazal Said Khattak. If there is any contractual obligations, in-between Gul Hassan and Fazal Said Khattak, that can be settled between them, but Gul Hassan cannot remain in possession of the shop when Fazal Said Khattak lost his claim. Concluding his arguments, learned counsel for the petitioners agitated that the decree passed by the trial Court was in fact a consent decree and not appealable. Learned appellate Court has thus exercised powers not vested in it. He placed reliance on 1985 CLC 72 and 1972 CLC 623.
Learned counsel for the respondent supported the views of learned Appellate Court and placing reliance on case reported in PLD 1996 Lahore 354 (b) contended that the decree under Article 163 of Qanun-e-Shahadat cannot be termed as consent decree. The appellate Court could competently examine whether requisite conditions were fulfilled or not. The main stress was placed on the point that the oath taken by the respondent Maulana Muhammad Idrees and his son was not in accordance with the offer.
First of all it is required to be mentioned that the case cited by the learned counsel for the petitioners and respondent (mentioned above) pertain to Honourable Lahore High Court and according to latest view reported in PLD 1996 Lahore 354, the appeal and revision have been held competent at least to examine whether the requisite conditions pertaining to the oath were fulfilled or not.
Our Peshawar High Court has delivered a very exhaustive judgment in this regard in the case Bhore Khan vs. Noor Din (PLD 1993 Peshawar 72). In this judgment authored by Mr. Justice Qazi Muhammad Farooq, a clear line has been drawn between decision on oath taken place under Article 163 of Qanun-e-Shahadat and a decision on oath under the provisions of Oaths Act, 1873. It has been explained that in technical terms the oath referred to in Article 163 of Qanun-e-Shahat 1984 is a "general oath" and the oath provided by the Oath Act 1873 is a "special oath" Both are diametrically opposed to each other. For ready reference I would like to quote the relevant paras Nos. 5 to 7 of this judgment, for convenience.
"5. The first contention raised by the learned counsel for the petitioner is misconceived as the oath taken by the respondent having emanated from the offer made by the petitioner on his own free will and accord is governed by Sections 8 to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e-Shahadat, 1984. The oath within the contemplation of Sections 8 to 11 of the Oaths Act, 1973 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the parties making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Mohammad Ramzan v. Mohammad Ismail 1982 SCMR 908, Firm Charagh Hussain vs. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86, Khan Sher vs. Mst. Kabla and another PLD 1988 Peshawar 86 and Muzaffar Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110 while the oath envisaged by Article 163 of the Qanun-e-Shahadat, 1984 is entailed by the initiative taken by the plaintiff who takes an oath in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others 1991 MLD (Pesh.) 101, Nazir Ahmad vs. District Judge, Laiah PLD 1986 Lahore 137 and Mohammad Shahbaz v. Ghulam Rasool 1987 CLC 1512. In technical terms the oath referred to in Article 163 of the Qanun-e-Shahadat, 1984 is a general oath and the oath provided by the Oats Act, 1873 is a special oath and both are diametrically opposed to each other.
The second contention is no better than the first one because the oath taken by the respondent was not exacted from him but it was the result of a mutual agreement of the parties which is permissible under the Oaths Act, 1873. Needless to mention that the expression "exaction " contains an element of demand as of right and the provisions of the Oaths Act, 1873 providing for decision of the case on oath taken by the plaintiff in the wake of an offer made by the defendant have not so far been struck down as repugnant to the injunctions of Islam.
The last contention is also without substance. The authorities PLD 1990 SC 841 cited by the learned counsel for the petitioner is an instructive authority which has not imposed an embargo on the decision of a case on oath in accordance with the provisions of Sections 8 to 11 of the Oaths Act, 1873 but has only laid down guidelines for implementing the agreement between the parties in respect thereof which are worded thus:
"The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasized, for such a procedure would give parties some short time to think over the matter and extricate themselves from hastily decisions, before appending their signatures to their statements ".
The record of the case in hand clearly points out that the learned trial Court had not acted with lightning rapidity but had first recorded separate statements of the parties on oath in respect of the offer and acceptance and then taken the matter to its logical end. The petitioner had thus plenty of time to think over the matter and resile from the offer before appending signature to his statement but he stuck to his offer and as such he must thank himself alone for the consequences. The procedure adopted by the learned trial Court indubitably conforms to the guidelines highlighted above, therefore, a case for interference is not made out".
Now it is to be seen that the oath offered and taken in this case falls under which category. If we put a glance over the application of Fazal Said Khattak, it would clearly indicate that it does not fall under Article 163 of Qanun-e-Shahadat because under this Article the plaintiff himself takes the oath and then the opposite party is asked by the Court to rebut the claim with a counter oath. In the application, Fazal Said Khattak has not offered himself to take oath. Actually he has offered the opposite party to take oath with the consent that it shall be binding on him and that he shall not press his claims and defence. So Article 163 of Qanun-e-Shahadat is not attracted in this case and it is a special oath under the Oaths Act, 1873.
Now it is to be seen that whether the oaths taken by Maulana Muhammad Idrees and his son are in consonance with the offer. In this regard we must keep in mind that the application was moved on 21.2.2005 and the oath was administered after about two weeks, on 5.3.2005. The trial Court very aptly decided to record the statement of Fazal Said Khattak to exactly bring on record his offer. This was essential in the sense that the application dated 21.2.2005 was written by someone else and Fazal Said Khattak could raise objection that it was not properly drafted. The statement of Fazal Said Khattak is reproduced below for convenience.
The same day Maulana Muhammad Idress and his son Maulana Misbah-ul-Islam accepted the offer and took oath in the words recorded in their statements which are also reproduced below for ready reference.
There is no need of further discussion because comparison of aforementioned statements can easily show that the oath was taken exactly in accordance with the offer made and explained in the statement of Fazal Said Khattak. Misbahul Islam has further specifically referred the alleged transaction of year 1974 which has been mentioned in application of Fazal Said Khattak for administering oath. The trial Court has properly performed the duty of recording their statements the necessity of which has been over emphasized in the case law. The parties also, during the period intervening between the application for oath and the actual oath taken, had sufficient opportunity to cool mindedly contemplate over the offer and acceptance. Now none of them can resile from their considered decision to get the case decided on oath.
The next, it is to be seen that what would be the result of this process. A similar oath was construed to be a special oath under the Oaths Act 1873 by the Honourable Supreme Court of Pakistan in the case Mahmood Ali Butt vs. Inspector General of Police, Punjab and 10 others reported in PLD 1997 Supreme Court 823 (b) at page 831. The relevant paragraph 10 is reproduced below for ready reference.
"So, the special oath is administered to a party or nominated person or a witness when a party offers to bind itself to the statement to be made on oath by the other party. In Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331 it was observed that the offer to abide by the oath of opposite party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case. Again, in the cases of Muhammad Akbar and another vs. Mohammad Aslam and another PLD 1970 SC 241; Attiqullah vs. Kafayatullah 1981 SCMR 162; Muhammad Mansha and 7 others v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908 and Saleem Ahmad v. Khushi Mohammad 1974 SCMR 224, the principle laid down is that a party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stains frustrated. So validity of decision given on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen that "special oath " made basis of the decision in the instant case is not governed by Article 163 of the Qanun-e-Shahadat and reference, to Article 163 and alleged violation of any supposed prescribed procedure urged by the learned counsel is misconceived."
It is thus concluded that since the offer of oath extended by Fazal Said Khattak was accepted by Maulana Muhammad Idrees and his son and the oath was taken in the open Court exactly according to the demand, therefore, it is now binding in the light of the decision of Honorable Supreme Court (ibid).
Similar view has been expressed in another case decided by the Honourable Apex Court titled Najibullah vs. Fazal Karim 1997 SCMR 1085. I, therefore, hold that the judgment of learned appellate Court, in this regard is violative of law settled by Honourable Apex Court and Fazal Said Khattak shall have to face the result of his offer and the consequent oath taken by the opposite party, as the law now does not allow him to resile.
As far as the case of Gul Hassan, as reflecting in his written statement is concerned, he simply has a claim of security deposited with his landlord Fazal Said Khattak, as he then was, on the basis of rent agreement. Gul Hassan cannot perpetuate or prolong his possession on this score for having no vested right to possess the shop. Since his agreement of rent was with Fazal Said Khattak, he can demand his security from Fazal Said Khattak, and if refused, can approach proper forum for recovery of the security. He also has some claim of improvement in the shop which again does not provide him a vested right to continue his possession. He can privately settle the removal of fixtures and compensation for the permanent improvement, if any, or such matters can be settled in the executing Court at the time of execution of decree in favour of Maulana Muhammad Idrees.. There is no contractual obligations on Maulana Muhammad Idrees against the tenant of Fazal Said Khattak, namely Gul Hassan. The appeal of Gul Hassan could also not be legally accepted by the learned appellate Court to remand his case for further proceedings.
With these observations and the discussed legal position it is held that the learned Appellate Court could not appreciate and apply the settled law in disposal of the appeals and setting aside the judgment and decree of trial Court. The impugned judgment of the appellate Court thus cannot sustain.
Consequently both the revision petitions are accepted, the impugned consolidated judgment of learned Court of appeal is set aside and that of the trial Court is restored. Parties are left to bear their own costs, in view of legal controversies involved herein.
(Sh.A.S.) Petition accepted.
PLJ 2009 Peshawar 26 (DB)
Present: Shahji Rehman Khan and Zia-ud-Din Khattak, JJ.
Dr. IBADULLAH, DISTRICT NAZIM DISTRICT SHANGLA
AT ALPURI--Petitioner
versus
GOVT. OF NWFP through Chief Secretary, Peshawar
and 7 others--Respondents
W.P. No. 954 of 2008, decided on 30.7.2008.
NWFP District Government Rules of Business, 2001--
----R. 25 & Schedule-VI--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Notification of transfer and posting--Challenge to--Locus standi--Validity--Requirement of consultation with Zilla Nazim--Non-compliance had effected the rights of--Right that could be enforced under Art. 199 of Constitution must ordinarily be right of the petitioner which is personal as well as individual, with impugned order issued by Provincial Government could not be challenged by petitioner on the ground that it militated against the rules of business--Petitioner has no locus standi to challenge the legality of impugned order on behalf of other respondents as to same could only be challenged by respondents--Petitioner being not an aggrieved person has no locus standi to challenge the impugned posting orders in the petition--Petition was dismissed. [P. 28] A
NWFP District Government Rules of Business, 2001--
----R. 18--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Civil proceeding in Court of law--Consultancy--Validity--District Government shall consult the law department before instituting civil proceedings in a Court of law in which Provincial Govt. is involved. [P. 29] B
NWFP Local Government Ordinance, 2001--
----S. 13--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Performance of local government--Provisions of--Challenging the executive authority of provincial government--District Govt. u/S. 13 of NWFP Local Government Ordinance, 2001 is composed of zilla nazim who shall sue through Distt. coordination officer that local government shall function within provincial framework and adhere to federal and provincial law and in performance of its functions, shall not improper prejudice the exercise of neither consulted the law department before institution of the proceeding nor sued the Provincial Government through DCO nor followed the provisions of Ordinance/Rules of Business while challenging the executive authority of Provincial Government through the instant petition. [P. 29] C
Constitution of Pakistan, 1973--
----Art. 199--NWFP District Government Rules of Business, 2001, R. 25--Constitutional petition--Notification for transfer of respondents--Challenge to--Maintainability--Petitioner's conduct, would not exercise its discretionary power u/Art. 199 of Constitution for grant of relief prayed for in a petition not competently filed--Petition has become infructuous inasmuch as impugned notification regarding posting/transfer of respondents has been withdrawn by competent authority--Petition was dismissed. [P. 29] D
Mr. Muhammad Saeed Shangla, Advocate for Petitioner.
Mr. Muhammad Asghar Khan Khundi, Advocate for Respondent No. 6.
Date of hearing: 30.7.2008.
Judgment
Zia-ud-Din Khattak, J.--Dr. Ibadullah, Zilla Nazim, Shangla seeks declaration that the posting/transfer of Respondents No. 5 to 8 vide Notification No. SO (S) 4-16/2008/ Muhammad Ayub dated 20.6.2008 and Notification No. SO-(S) 4-16/2008/ Muhammad Roshan Khan dated 19.6.2008 are without lawful authority and of no legal effect and liable to be set aside.
Briefly, facts relevant for disposal of this writ petition are that the Respondent No. 3 (Provincial Government) issued the impugned notifications whereby Respondents No. 5 to 8 were transferred to various positions in District Shangla. It is alleged that under Schedule-VI of the N.W.F.P. District Government Rules of Business, 2001 the Provincial Government while proceeding to make posting and transfer of officers in BS-17 and above are under an obligation to consult the District Nazim but the petitioner has not been consulted while issuing the impugned notifications. Dissatisfied, the petitioner has come up to this Court and challenged the posting/transfer order of Respondents No. 5 to 8 in the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
We have heard learned counsel for the petitioner, Mr. Ikramullah Khan, learned Additional Advocate General and have gone through the available record.
Learned counsel for the petitioner argued the case at length but has not been able to satisfy this Court, how the petitioner is aggrieved of the impugned posting/transfer orders and whether the same have affected any of his rights. No doubt Rule 25 of the NWFP District Government Rules of Business, 2001 read with Schedule-VI thereof required consultation with Zilla Nazim before issuing of the impugned orders but its non-compliance had effected the rights of Respondents No. 5 to 8, if any, and they could be aggrieved persons but they did not challenge their transfer orders before any authority.
It is well settled that, the right that could be enforced under Article 199 of the Constitution of Islamic Republic of Pakistan must ordinarily be right of the petitioner himself, which is personal as well as individual, with the impugned orders issued by the Provincial Government could not be challenged by the petitioner on the ground that it militated against the rules of business, for it could not be said that any personal right of the petitioner had been infringed or his interest had been prejudiced even indirectly by the posting/transfer of Respondents No. 5 to 8. The petitioner has no locus-standi to challenge the legality of the impugned orders on behalf of Respondents No. 5 to 8 as the same could only be challenged by the respondents themselves, the affected/transferred civil servants and no other person. Therefore, the petitioner being not an aggrieved person has no locus standi to challenge the impugned posting orders in the instant petition.
Further, Rule 18 of the Rules of Business has provided that the District Government shall consult the Law Department before instituting civil proceedings in a Court of law in which the Provincial Government is involved. The District Government under Section 13 of the NWFP Local Government Ordinance 2001 is composed of Zilla Nazim etc, who shall sue through District Co-ordination Officer and further Section 4 (ibid) provides that the Local Government shall function within the Provincial framework and adhere to the Federal and Provincial laws and, in performance of its functions, shall not impede or prejudice the exercise of the neither consulted the Law Department before the institution of the instant proceedings nor sued the Provincial Government through the DCO nor followed the provisions of the Ordinance/Rules of Business while challenging the executive authority of the Provincial Government through the instant petition. Therefore, this Court, in view of the petitioner's conduct, would not exercise its discretionary power under Article 199 of the Constitution for the grant of relief prayed for in a petition not competently filed. Moreover, the writ petition has otherwise become infructuous inasmuch as the impugned Notification regarding posting/transfer of Respondents No. 5, 7 and 8 has been withdrawn by the competent authority and Respondent No. 6 has been adjusted in the same office against a vacant post where he was already working.
(R.A.) Petition dismissed
PLJ 2009 Peshawar 29
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
SONA KHAN--Petitioner
versus
Haji RAEES KHAN and another--Respondents
C.R. No. 251 of 2007, decided on 11.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Notice of Talb-e-Isshad was issued--Second transaction--Neither arrayed as party not second transaction was pre-empted--Knowledge of second transaction was admittedly--Validity--Pre-emptor and rival pre-emptor inspite of knowledge of second transaction of exchange had neither tried to array him as party to lis nor opted to pre-empt the second transaction--Findings of trial Court maintained by Appellate Court needs no interference--Petition was dismissed. [P. 32] A
Mr. Muhammad Waheed Anjum, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 10.9.2008.
Judgment
Through the instant civil revision petition, the petitioner Sona Khan has challenged the concurrent judgments and decrees dated 22/12/2006 and 20/6/2007 passed by the learned Civil Judge-III and learned Additional District Judge-VI D.I. Khan respectively, whereby his suit was dismissed.
According to the averments made in the plaint, one Mubarak Khan was owner of the suit property measuring 29 kanals 19 marlas who had sold it to defendant Raees Khan in lieu of sale consideration of Rs. 20,000/- through registered Deed No. 2300 dated 31/12/1997. However, an inflated amount of Rs. 60,000/-was written therein. The petitioner claiming to be co-sharer and contiguous owner therein pre-empted the transaction through a pre-emption suit against the defendants who when summoned contested the same by filing written statement. Amanaullah Khan, Respondent No. 2, now dead and represented by his legal representatives, also filed a suit for pre-emption of the same transaction as rival pre-emptor. Both the suits were consolidated and the following issues were framed:--
Whether the plaintiff and rival pre-emptor have got a cause of action?
Whether the suit of plaintiff and rival pre-emptor is within time.
Whether the plaintiff and rival pre-emptor have fulfilled the requirements of Talabs according to law.
Whether the plaintiff and rival pre-emptor are estopped to sue due to their own conduct?
Whether the suit of the plaintiff and rival pre-emptor is bad on account of mis-joiner of necessary parties?
Whether suit of the plaintiff and rival pre-emptor is maintainable in its present form?
Whether an amount of Rs. 3,60,000/- has actually been fixed and paid as sale consideration of the suit land?
Whether the plaintiff or rival pre-emptor have superior right of pre-emption, if so, they are entitled to what extent of the share in the suit property?
What is the effect of sale-deed Wasiqa No. 127 registered on 8/2/1998 and sale-deed Wasiqa No. 128 dated 21/1/1998 on the suit of the plaintiff and the rival pre-emptor?
What is the market value of the suit property?
Whether the plaintiff and rival pre-emptor are entitled to decree for possession through right of pre-emption as prayed for, if so, to what extent?
Relief?
The learned trial Court after affording opportunity to the parties to lead pro and contra evidence and hearing the learned counsel for the parties and considering the data available on record dismissed both the suits by a consolidated judgment in Suit No. 476/1 of 2003 decided on 22.12.2006. Sona Khan petitioner filed an appeal before the lower appellate Court and the same was dismissed vide Appeal No. 6 of 2007, decided on 20.6.2007 and hence the present revision petition by Sona Khan petitioner challenging the concurrent finding of the two Courts.
Learned counsel for the petitioner submitted that the learned trial Court was over-swayed by the fact that the vendee, Raees Khan, had transferred by way of exchange the suit land to one Waris Khan, son of Haji Mosam Khan, vide registered deed Bearing No. 100 dated 21.1.1998 on the basis of which Mutation No. 165 was attested on 30.7.1998. It was further argued that the vendee-defendant could not transfer the suit land within 120 days, which is the period of limitation for filing of pre-emption suit and the vendee having transferring the suit land to Waris Khan, the same will not adversely affect the right of the petitioner as pre-emptor. Elaborating his arguments, the learned counsel submitted that the plaintiff/petitioner issued Talb-e-Ishhad notice on 24/1/1998, whereafter the transfer by vendee-defendant in favour of Waris Khan, second vendee, will be hit by the doctrine of lis-pendense. It was also submitted that inspite of the fact that the second transaction was disclosed by Sher Jan, Patwari Halq, in his statement dated 22/12/2005 appearing as PW.1, there was no need to impugn the second sale and plaintiff/pre-emptor was not obliged to have arrayed Waris Khan transferee in the suit and thus prayed for reversal of the concurrent findings of the Courts below. Reliance in this respect was placed on the judgment handed down by the apex Court in the case of Abdul Qayyum through legal heirs vs. Mushki Alam and another, reported in 2001 SCMR page 798.
I have gone through the available record and considered the arguments advanced at the bar.
Perusal of the record reveals that notice of Talb-e-Ishhad was issued by the petitioner/pre-emptor in this case on 24/1/1998 and inspite of second transaction in favour of Waris Khan, he was neither arrayed as party nor the second transaction was pre-empted. The knowledge of the second transaction was admitted by the petitioner as well as the rival pre-emptor Amanullah in the Court statements while appearing as PW.3-A and DW.6 Sanaullah who appeared as special attorney of the legal heirs of Amanullah deceased, rival pre-emptor. The suit land had been transferred to Waris Khan by way of exchange by the vendee-defendant through registered Deed No. 100 dated 21/1/1998 prior to the issuance of notice Talb-e-Isshad which was issued on 24/1/1998. Thus the second transaction will not be hit by the doctrine of lis-pendense as the transfer was neither effected during the pendency of the suit nor after the issuance of Talb-e-Isshad and the same will not be covered by the said Doctrine as held in the case of Abdul Yameen Khan Vs. Ashrat Ali Khan and others, reported in 2004 SCMR Page 1270. The case law cited by the learned counsel for the petitioner on facts, is distinguishable.
The plaintiff/pre-emptor and the rival pre-emptor Amanullah inspite of the knowledge of the second transaction of exchange vide registered deed No. 100 dated 21/1/1998 in favour of Waris Khan has neither tried to array him as party to the lis nor opted to pre-empt the said second transaction. In this respect, the findings of the learned trial Court on Issue No. 9 duly maintained by the learned appellate Court needs no interference.
The findings of the two Courts below are perfectly sound, well reasoned and are in accordance with the established principles of appreciation of evidence and, therefore, maintained.
In view of the facts and circumstances of the facts narrated above, there is no force in the instant revision petition which is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 33
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
KARAM ELLAHI--Petitioner
versus
ABDUL GHANI and 7 others--Respondents
C.R. No. 288 of 2005, decided on 11.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3--Defence was struck off--Notice was given to defendant is unwarranted as on adjourned date on note reader--Defendant was not present--Validity--When the date is adjourned on note Reader, no penal provisions of CPC or ex-parte action can be taken against a party. [P. 35] A
PLJ 2003 Pesh. 308 rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Jurisdiction--Condonation--Appellate Court has also not exercised the jurisdiction properly by not allowing the condonation application filed by the petitioner while filing the appeal, as when an order passed at the back of the party and without notice to him. [P. 35] B
Mr. Rustam Khan Kundi, Advocate for Petitioner.
Mr. Abdul Qayyum Qureshi, Advocate for Respondents.
Date of hearing: 10.9.2008.
Judgment
Karam Elahi, petitioner herein, has through the instant revision petition, called in question the judgment and decree dated 12/5/2005 passed by the learned Additional District Judge-IV D.I. Khan, whereby his appeal against the judgment and decree dated 25/4/2003 passed by the learned Civil Judge-IX D.I. Khan decreeing pre-emption suit of the plaintiff Abdul Ghani against him and others was dismissed on the ground of limitation alone.
According to the averments made in the plaint filed by the plaintiff, Abdul Ghani, the Defendant No. 1 Karam Elahi had purchased the suit property measuring 12 kanals through Mutation No. 1739 attested on 30/5/1996 for sale consideration of Rs. 24,000/- from Muhammad Akbar, Defendant No. 2, but in order to defeat the pre-emptive rights of the plaintiff, it was given the colour of exchange and that the subsequent exchange Mutation Nos. 1738 and 1740 dated 15/2/1995 showing that Defendant No. 1 had exchanged the property in Khata No. 143 with Defendant No. 2 for better management were illegal and ineffective upon his rights. This transaction was challenged by the plaintiff by instituting a pre-emption suit in the Court of Civil Judge-IX D.I. Khan, on the ground that he being a co-sharer in the suit property, had superior rights of pre-emption over the same qua Defendant No. 1.
The suit was hotly contested by Defendants No. 1 and 3 to 8 by filing joint written statement where pleadings of the parties gave rise to the framing of ten issues including the relief. After appreciating evidence of the parties, suit of the plaintiff was decreed vide judgment and decree referred above. Not contented therefrom, the, plaintiff went in appeal to the appellate Court alongwith an application for condonation of delay as the appeal was filed after the prescribed period of limitation, i.e. after one year and six months. Nonetheless, the appeal was dismissed on the ground of limitation alone vide judgment and decree impugned herein. Hence this revision.
Mr. Rustam Khan Kundi, learned counsel for the petitioner argued that the impugned judgments and decrees of both the Courts below are legally not sustainable as they are based on mis-reading/non-reading of material evidence brought on record and mis-application of law on the subject. He argued that the petitioner had remained unheard as exparte decree was passed against him on 25/4/2003 by the trial Court about which he had no knowledge till October 2004 whereagainst his regular first appeal alongwith an application for condonation of delay filed on 30.10.2004 were also dismissed on 12/5/2005. He urged that the matter was required to have been decided on merits after hearing the parties and the dismissal of appeal of the petitioner on account of limitation was not lawful.
Mr. Abdul Qayum Qureshi, learned counsel for the respondents, defended the impugned verdicts of the Courts below on the grounds that the petitioner was duly served in the case but willfully he remained absent on the date fixed and thus the exparte judgment and decree against him was correctly passed. He urged that thereafter the petitioner remained mum for sufficiently long period of one year and six months with no plausible explanation and thus the dismissal of his appeal on the ground of limitation was also justified. It was further submitted that non-service of a party or improper service will not be a ground for filing application under the provisions of Section 12(2) CPC which is only restricted to the situation when the judgment and decree is challenged on the ground of fraud, mis-representation and want of jurisdiction as held in the case of Naser Khan and others reported in 2007 CLC Page 326.
I have heard learned counsel for the parties and with their valuable assistance perused record of the case minutely.
Perusal of record of the trial Court reveals that this suit was repeatedly transferred from one Court to another and finally when the lis came for hearing before the Court vide Order sheet No. 59 dated 12/6/2002, the Presiding Officer had been transferred and the case was adjourned as `Note Reader' for 8/7/2002 on which date when none appeared on behalf of the defendant/petitioner, thus his defence was struck off on 8/7/2002, though the defendant had never requested for adjournment and the order of the learned trial Court that notice under the provisions of Order 17, Rule 3 CPC was given to the defendant is unwarranted, as on the adjourned date on note Reader, the defendant was not present. When the date is adjourned on note Reader, no penal provisions of CPC or Ex-parte action can be taken against a party as held in the case of Mst. Gohar Taj Vs. Sajjad and others reported in PLJ 2003 Peshawar page 308. So the order of the learned trial Court was abinitio void and without jurisdiction and no limitation can come as a hurdle to set aside a void order.
Further more, the learned appellate Court has also not exercised the jurisdiction properly by not allowing the condonation application filed by the petitioner while filing the appeal, as when an order is passed at the back of the party and without notice to him, the mischief of limitation will not come in his way, as held in the case of Corporation of Calcutta Vs. AC Paul reported in AIR 1931 Calcutta page 806 and Mst. Bibi Fatima Vs. Noor Muhammad reported in PLD 1951 Lahore page 147.
The judgments and decrees of the two Courts below are patently illegal and materially irregular not based on sound appreciation of evidence, besides being perverse are liable to be struck down.
In view of the facts and circumstances of the case narrated above, this revision petition is accepted, the impugned judgments and decrees of the two Courts below are set aside and the case is remanded to the trial Court with the direction to decide it afresh after affording the parties an opportunity of hearing and leading evidence. Parties are directed to appear before the trial Court on 18/10/2008.
Above are the reasons for my short order of even date.
(R.A.) Petition accepted
PLJ 2009 Peshawar 36 (DB)
Present: Tariq Parvez Khan and Ghulam Mohy-ud-Din Malik, JJ.
ZAINAB IDREES--Petitioner
versus
PRINCIPAL, AYUB MEDICAL COLLEGE, ABBOTTABAD
and 4 others--Respondents
W.P. No. 197 of 2008, decided 23 16.12.2008.
Constitution of Pakistan, 1973--
----Art. 199--Educational institution--Student of medical college--Refusing to take examination Part-II M.B.B.S. First Professional--If the petitioner had failed in first professional class then of course she could not be promoted to Class II Profession nor be allowed to take examination of higher class--Petition was allowed. [P. 38] A
Punjab Medical and Dental Council Rules--
----R. 4--Constitution of Pakistan, 1973--Art. 199--Educational institution--Constitutional petition--Promotion to next higher class--Bar on--If a student has not cleared all the subjects of First Professional year--Held: Student cannot be promoted to second class.
[P. 38] B
Mr. Basharat Khan, Advocate for Petitioner.
Mr. Fawad, Advocate for Respondents.
Date of hearing: 16.12.2008.
Judgment
Ghulam Mohy-ud-Din Malik, J.--By means of this Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Zainab Idrees, petitioner seeks declaration to the effect that action of Principal Ayub Medical College (Respondent No. 1) refusing her to take examination in Part-II MBBS 1st Professional is based on mala fide, unlawful exercise of powers and of no legal effect against her rights. Further, that the Respondents No. 1 and 2 may be directed to receive her admission Form and permit her to sit in the above said examination.
As an interim relief, prayer is made for directing Respondent No. 1 and Vice Chancellor, Khyber Medical University, Peshawar (Respondent No. 2) to receive her admission Form with the permission to appear in Part-II MBBS First Professional Examination scheduled for 16th October, 2008.
After hearing the petitioner's counsel, this Court vide order dated 29.09.2008 granted her interim relief, as prayed for, by placing reliance on Full Bench Judgment of this Court reported in PLD 2004 page 307 & PLD 2006 S.C. page 300, at her own risk and costs.
Feeling aggrieved by this interim order, Vice Chancellor, Khyber Medical University, Peshawar (Respondent No. 2) filed appeal before the Apex Court and the said Court vide its order dated 14.10.2008 while disposing of the appeal, directing this Court to dispose of the main petition within four weeks. On receipt of record, we tried our level best to hear and decide the matter at the earliest but sometimes due to non-availability of Division Bench at Circuit Bench Abbottabad and at some other times due to lawyers strike or on account of their indifferent attitude, arguments could not be heard well within time. Lastly, we directed the parties/counsel to file their written arguments which the office could receive for the previous date.
We have perused the written arguments and have gone through the available record.
The petitioner Zainab Idrees, who is a student of Ayub Medical College, Abbottabad, studying in First Year MBBS Part-I could not clear her all subjects in Annual as well as Supplementary Examinations held in the year 2007 and February, 2008, therefore, through notice dated 25.3.2008 she was directed by the Respondent No. 1 to re-take the class of First Year MBBS, as on her failure in the Part-I MBBS Examination she could not be promoted to second part as per rules and regulations of the college as well the PM & DC rules.
It is contended on behalf of the petitioner that though she could not clear all the subjects of the First Part yet she could appear in the examination of Second Part Profession on the basis of provisions contained in the College Prospectus and in view of decision of Full Bench of this Court reported in PLD 2004 Peshawar page 307, cited above, and it is further contended that the judgment of this Court was upheld by the Apex Court in CPLA No. 1992/2004 decided on 13.09.2004. Further it is contended that the said judgment was referred to in another case reported in PLD 2006 SC 300 as well. It is argued in the written arguments filed by the petitioner's counsel that view points of the respondents that a student cannot be promoted to higher class unless he had passed all the subjects of previous classes is correct but in the instant case, the proposition has been settled down once for all in the manner that the First Year MBBS has two parts i.e Part-I & Part-II which constitute First Year MBBS Class, and the higher class would be the next class 2nd Professional, therefore, Rule 4 of the PMDC Rules referred to by the respondents would not come in the way of the petitioner.
We agree with the submissions of the learned counsel for the petitioner and observe that if the petitioner had failed in the First Professional Class, then of course she could not be promoted to Class-II Professional nor be allowed to take examination of the higher class. Actually, both Part-I & Part-II are part and parcel of First MBBS Class and don't constitute two different classes. The second part cannot be termed as higher class nor Part-I as lower class. The bar contained in the above said College's Prospectus, rules and regulations of the University of Health Sciences and Rule 4 of the PMDC Rules in unequivocal terms imposes bar on the promotion to next higher Class i.e if a student has not cleared all the subjects of First Professional Year (Part-I & Part-II), he/she cannot be promoted to second class.
On the subject, reliance is placed on above cited case law, as well as on another unreported case of this Court titled Daud Ahmed Khan VS. Principal Saidu Sharif Medical College, Swat and others, pronounced in W.P. No. 147/2008 dated 14.10.2008.
At the end, it may be mentioned that the case law relied upon by the learned counsel for the respondents, and referred to in his written arguments, is distinguishable on facts which hardly covers subject-matter of dispute between the parties in the instant case, because all those are in respect of promotion of failed student to next higher class and does not relate to Part-I & Part-II of 1st MBBS class.
For the foregoing reasons, this writ petition is allowed, with the direction to the respondents to allow the petitioner, to take examination in Part-II of the 1st MBBS Professional Examination. Consequently, the ad-interim order dated 23.09.2008 passed by this Court stands confirmed.
(R.A.) Petition allowed
PLJ 2009 Peshawar 39
Present: Muhammad Alam Khan, J.
REDI GUL and 16 others--Petitioners
versus
Haji SAWAB GUL and others--Respondents
C.R. No. 189 of 2004, decided on 11.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for declaration for possession and correctness of revenue record--Dismissal of--Appeal was accepted--Assailed--Mutation was attested in favour of predecessor of respondents and was duly incorporated in Jamabandi--Without any justification their names were omitted from revenue record--Statement of (Patwari) was recorded by Appellate Court and mutation was placed on record without objection which cannot be questioned--Held: Once it is established on record that pursuant to mutation inheritance devolved on predecessor-in-interest of respondent's there was no need to prove pedigree table independently, as respondents had become co-sharers--Suit was not with respect to ownership of entire shamilat deh, but for correctness of revenue record--Appellate Court was appreciated evidence in accordance with established principals of law, which calls for no interference--Petition dismissed. [Pp. 42 & 43] A, B & D
Limitation--
----Correctness of revenue record--Mutation was duly incorporated in jamabandi--Cause of action--Time-barred--Validity--Every fresh jamabandi carrying on incorrect entry gives a fresh cause of action so the suit was not time-barred. [P. 42] C
PLJ 2002 Lah. 412, 1997 CLC 822 & 2007 CLC 31 rel.
S. Mir Muhammad, Advocate for Petitioners.
Mr. Muhammad Arif, Advocate for Respondents.
Date of hearing: 14.1.2008.
Judgment
Redi Gul and others, petitioners have filed the instant revision petition against Haji Sawab Gul and others, respondents, wherein he has challenged the judgment and decree passed by Mr. Fazle Subhan, Additional District Judge, Nowshera, vide which the learned Judge accepted the appeal of the respondents Haji Sawab Gul and others through Appeal No. 26/13 of 2001 decided on 17.12.2003.
Briefly narrated the facts of the case are that Haji Sawab Gul and others plaintiffs-respondents filed a suit for declaration that they are owners in possession of 25 kanals of land out of 75 kanals 1 marla comprising Khasra No. 146, situated in the area of village Shahkot Payan, Tehsil and, District Nowshera and the entries in the revenue record from which their names have been deleted by the revenue authorities as owners, are illegal and not binding on the plaintiffs-respondents. They had also prayed for possession and correction of the revenue record.
The defendants were summoned, who submitted detailed written statement and out of the pleadings of the parties the following issues were framed:--
Whether the plaintiff has got cause of action?
Whether plaintiff is estopped to sue?
Whether plaintiffs suit is bad for non-joinder of necessary parties?
Whether plaintiff suit is maintainable?
Whether plaintiff malafidely instituted for special costs?
Whether suit is time barred?
Whether plaintiffs were the owners of the suit property?
Whether defendants are the sole owners of suit land?
Whether plaintiff name wrongfully not mentioned in the revenue record?
Whether the pedigree table mentioned in Para-1 of plaint is correct and true?
Whether plaintiff is entitled for grant of decree as prayed for?
Relief.
The parties produced their respective evidence which they wished to produce and the learned Civil Judge, 1st Class, Nowshera, namely Miss Rozina Rehman, after hearing the learned counsels for the parties and scanning the evidence on the record, dismissed the suit of the plaintiffs-respondents, vide judgment and decree in Suit No. 14/1 decided on 18.9.2001.
Against this judgment and decree, the plaintiffs/respondents filed an appeal before the learned Additional District Judge, Nowshera and who after hearing the learned counsels for the parties and perusing of the record accepted the same through Civil Appeal No. 26/13 of 2001 decided on 17.12.2003 and granted the decree to the plaintiffs/respondents as prayed for.
Learned counsels for the parties' submitted detailed written arguments, which were placed on record and perused.
Learned counsel for the petitioner Syed Mir Muhammad, Advocate submitted that the defendant/petitioners are in physical possession upon which they have built a house over a portion of the suit land and are residing in it, while the rest of the land is under their cultivation. It was also argued that as the respondents are out of possession, thus, their suit was not within time and was liable to be dismissed. It was also argued that the suit land being `Shamilat', neither the. suit was brought in representative capacity under Order I, Rule-8 C.P.C. nor all the owners of Shamilat were made party to the instant litigation and thus, the suit was not maintainable. Reliance was placed on Brederi Issaian Basti Charhdi through Inayat Masih and 6 others Vs. Aziz Baig and 8 others (PLJ 2002 Lahore 412) and Mst. Allah Jawai and others Vs. Muhammad Ali and others (1994 MLD Page 1269). It was also submitted that the plaintiffs tried to show that they are the owners of the suit land being successors of Mir Ahmad but they could not prove any link with the said Mir Ahmad as their predecessor-in-interest and there was no evidence on the record that they have proved the pedigree table. Reliance was placed on Muhammad Naeem and others Vs. Ghulam Muhammad and others (1994 SCMR Page-559) and it was submitted that in view of the fact that no link was proved with the said, Mir Ahmad, the suit was liable to be dismissed.
On the other hand learned counsel for the respondents Mr. Muhammad Arif Khan, Advocate submitted in the written arguments that the plaintiffs/respondents had become owners of the suit land vide inheritance Mutation No. 8 attested on 16.9.1930 and their names were deleted from the revenue record without any justification. This mutation was brought on file as Exh. CW 1/1 in the statement of Jehan Gul patwari and it was placed on record without any objection. It was also argued that the omission of the names of the plaintiffs/respondents without any justification will not debar them to bring a suit for declaration as the petitioner/defendant were in possession of the suit land as co-owners and the possession of the one co-owner is the possession of all co-owners and the mischief of limitation will not come in the way of the plaintiffs/respondents. Reliance was placed on Ghulam Mahmood Vs. Hukam Khan and others (1997 CLC Page 822) and Muhammad Jan etc. vs. Mst. Sahib Jan (2005 SCJ Page-422) and Abdul Latif Vs. Muhammad Zaman and 3 others reported in (PLD 1983 Peshawar-225).
I have gone through the record of the case and have considered the submissions made by the learned counsels for the parties.
Perusal of the record reveals that on 16.9.1930 Mutation
No. 8 was attested in favour of Mir Ahmad predecessor of the respondents and without any justification. Their names were omitted from the revenue record, statement of CW-1 was recorded by the learned appellate Court and this mutation was placed on record without objection which cannot be questioned in view of the dictum laid in National Bank, of Pakistan Bannu Branch through its Manager Vs. Sayed Mir reported in (1987 CLC Page 1103).
Mutation No. 8 attested on 16.9.1930 was duly incorporated in the Jamabandi for the year 1928/1929 copy Ex. PW 1/17 and subsequently the name of Mir Ahmad predecessor of the respondents was omitted from the revenue record. Once it is established on the record that pursuant to the above mutation the inheritance devolved on the predecessor-in-interest of the respondents namely Mir Ahmad, there was no need to prove the pedigree table independently, as the respondents had become co-sharers. Regarding the limitation, it is important to note that every fresh jamabandi, carrying on incorrect entry gives a fresh cause of action so the suit was not time barred as held in the case of Ghulam Mahmood Vs. Hukam Khan and others (1997 CLC Page-822) and Chiragh Din Vs. Nawab Din (2007 CLC Page-31).
The suit was not in representative capacity, as it was not with respect to the ownership of the entire shamilat deh, rather the suit was for correction of revenue record, as an incorrect entry had cropped up in revenue record, for which all the necessary parties, in whose presence, an effective adjudication could be passed were before the trial Court.
The judgment and decree of the appellate Court is based on sound, reasoning and is in accordance with the established principles of appreciation of evidence, which calls for no interference.
In view of the facts and circumstances of the case narrated above, this revision petition fails which is dismissed with no order as to costs. I had disposed of this revision petition by a short order dated 11.2.2008 and the above are the reasons for the same.
(Sh.A.S.) Petition dismissed
PLJ 2009 Peshawar 43
Present: Muhammad Alam Khan, J.
SAID REHMAN and 5 others--Petitioners
versus
AZIZ MUHAMMAD and 9 others--Respondents
C.R. No. 455 of 2006, decided on 20.3.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for possession--Decreed in favour of plaintiffs-respondents--Appeal dismissed--Challenge to--Petitioners were entered as tenant in revenue record--Column of Legan was entered as Bila Legan when there is a conflict between Lagan column and column of cultivation, column of cultivation will prevail--In column of cultivation petitioners wereentered as tenants and once a person enters suit land as tenant, he cannot repudiate title of true owner unless and until express ouster is proved on record--Conflict between entry in column of cultivation and that of column of Lagan has to be independently proved--As petitioners were holding land as tenants of respondents and petitioners repudiated title of respondents and asserted their own title, thus, respondents were well within their right to sue for possession--Claim of improvement of petitioners is without any substance as no evidence was brought regarding improvements on record--Judgments and decrees of Courts below are based on sound reasoning and in accordance with well established principles of appreciation of evidence--Petition dismissed.
[Pp. 46 & 47] A, C & D
Adverse Possession--
----Plea of adverse possession has also been declared to un-Islamic.
[P. 46] B
1991 SCMR 2063.
PLD 1996 SC 91, PLD 1986 SC 113, PLD 2002 SC 200, PLD 2004 SC 59 & 1991 SCMR 2063, ref.
Mr. Maazullah Khan Barkandi, Advocate for Petitioners.
Mr. Gul Muhammad, Attorney for Respondents.
Date of hearing: 20.3.2008.
Judgment
Said Rehman and others have filed this civil revision against Aziz Muhammad and others as the petitioners are aggrieved from the judgment and decree of the learned Additional District Judge-IV, Mardan dated 15.11.2005 whereby Civil Appeal No. 43/13 filed by the petitioners against the judgment and decree of Malik Amjad Rahim Civil Judge, Mardan in Suit No. 908/1 decided on 31.1.2004, was dismissed and the judgment and decree of the learned Civil Judge was maintained.
Briefly narrated the facts of the case are that the plaintiffs-respondents brought a suit for possession regarding land measuring 56 kanals 01 marla comprising numbers Khasra 1654, 627, Khata No. 38/98-99 as per Jamabandi for the years 1979-80 situated in the revenue estate of village Barat-Khel Babuzai, Tehsil and District Mardan. It was averred in the plaint that the plaintiffs-respondents have become owners through a declaratory decree vide Suit No. 156/1 decided on 14.3.1993. It was further averred that Fazal-ur-Rehman and Abdur Rehman, predecessors of the defendants-petitioners were cultivating the land as tenants on payment of half share of produce who died and consequently the defendants-petitioners were cultivating the suit land being the successors of Fazal-ur-Rehman and Abdur Rehman deceased, thus, statutory tenancy came into existence between the parties. That latter on the defendants-petitioners repudiated the title of the plaintiffs-respondents and thus, their possession over the suit land is without any justification and so they are bound to hand over the possession to the plaintiffs-respondents.
On summoning of the defendants-petitioners, they submitted detailed written statement wherein they, inter-alia, contended that the suit land has become their ownership as they are in possession of the same without payment of any share to the plaintiffs-respondents and the entry is Bila Lagan ba-tasawar-e-milkiat. The pleadings of the parties were reduced to the following issues:--
Whether the plaintiffs have got a cause of action?
Whether the suit is within time?
Whether the suit is incompetent in its present form?
Whether the plaintiffs are estopped by their own conduct to bring the present suit?
Whether the suit is bad for non-joinder of necessary parties?
Whether the suit is not in accordance with law reforms?
Whether this Court has got jurisdiction?
Whether the suit is bad for the purpose of Court fee?
Whether the defendants have made improvements over the suit property. If so to what extent and its effect?
Whether the defendants are owners in possession of the suit property through adverse possession for more than 12 years?
Whether the plaintiffs are entitled to the decree for possession as prayed for?
Relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing counsel for the parties and perusing the data available on record, vide judgment and decree in Suit No. 908/1 decided on 31.3.2004, granted a decree for possession in favour of the plaintiffs-respondents against the defendants-petitioners. The defendants-petitioners filed an appeal before the learned District Judge, Mardan which was entrusted for disposal to learned Additional District Judge-IV, Mardan who, after perusing the record and hearing the learned counsel for the parties, vide Civil Appeal No. 13/13 of 2005 decided on 15.11.2005, dismissed the appeal and maintained the judgment and decree of the trial Court. Hence, the instant revision petition by Said Rehman and others defendants-petitioners.
Mr. Maazullah Khan Barkandi, learned counsel for the petitioners argued that the respondents had previously brought a suit Bearing No. 156/1 decided on 14.3.1993 titled Zabita Khan and others Vs. Aziz Muhammad and others for declaration of land measuring 63 kanals 06 marlas comprising so many numbers Khasra which was decreed in their favour by Muhammad Bashir Khan, Civil Judge, Mardan, but, the present petitioners were not party to that litigation and hence, this cannot, be a basis for claiming the possession of the disputed numbers Khasra. It was also argued that the petitioners had matured their title by prescription as they are recorded as such in the revenue record from 1925-26 till date as Bila Lagan batasawar-e-milkiat. It was next submitted that the petitioners have conducted improvements in the suit land in case of dispossession, they are entitled to the cost of improvements.
Mr. Gul Muhammad, attorney for the respondents submitted that the petitioners and their predecessor-in-interest was the tenant of the suit land and they used to pay the share, of produce, but, a few years prior to institution of the suit, they stopped the payment of share of produce and on inspection of the record, it transpired that they had entered their names in the column of Lagan to be Bila Lagan on account of ownership. It was also submitted that while recording the statement of Aziz-ur-Rehman petitioner, he had not uttered a single word regarding the alleged improvements conducted by him on the suit land and thus, it was prayed that the revision is liable to be dismissed.
I have given my anxious consideration to the facts as well as legal position involved in this case.
Perusal of the record reveals that the petitioners are entered as tenants in the revenue record. However, in the column of Lagan they have been entered as Bila Lagan on account of ownership. This is a settled principle of law that when there is a conflict between Lagan column and column of cultivation, the column of cultivation will prevail. In the column of cultivation the petitioners are entered as tenants and once a person enters the suit land as tenant, he cannot repudiate the title of the true owner unless and until express ouster is proved on the record. The conflict between entry in the column of cultivation and that of column of Lagan has to be independently proved as held in Shad Muhammad. Vs. Khan Poor (PLD 1996 SC 91), Said Amir and others. Vs. Ashraf Khan and others (PLD 1986 SC 113), Hakim Shah and 16 others. Vs. Sawab Khan and 17 others (PLD 2002 SC 200) and Dilawar Shah and others Vs. Janat Gut and others (PLD 2004 SC 59). Furthermore, the plea of adverse possession has also been declared to be un-Islamic in view of the judgment rendered in the case of Maqbool Ahmad. Vs. Govt: of Pakistan by the appellate Bench of Apex Court reported in 1991 SCMR 2063.
The plea that the decree in the earlier round of litigation was not binding on the petitioners as they were not party to that litigation is also without substance because that suit was only for declaration and with respect to the entire ownership comprising so many numbers Khasra between the co-sharers interse and in this case, as the petitioners were holding the land as tenants of the respondents and the petitioners repudiated the title of the respondents and asserted their own title, thus, the respondents were well within their right to sue for possession.
The claim of improvement of the petitioners is without any substance as perusal of the statement of Aziz-ur-Rehman petitioner while appearing as DW-4 would reveal that he has not uttered a single word regarding the improvements. Furthermore, no evidence was brought regarding improvements on the record of the case.
The judgments and decrees of the two Courts below are based on sound reasoning and are in accordance with the well established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the petitioners.
Resultantly, there is no force in the instant revision petition which is dismissed with no order as to costs.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Peshawar 47
Present: Muhammad Alam Khan, J.
Haji MUHAMMAD SALEEM KHAN--Petitioner
versus
S.D.O./A.M.O. PESCO, SUB-DIVISION TIMERGARA, DISTT. DIR LOWER and 10 others--Respondents
C.R. No. 60 of 2008, decided on 4.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for declaration and prohibitory/mandatory injunction was decreed in favour of petitioner--Appeal was accepted--Challenge to--Litigation between petitioner and PESCO--At time of securing connection by plaintiff from WAPDA what was total sanction load to premises of petitioner, there was no evidence to arrive at a correct conclusion--No effective adjudication between parties could be passed--No alternative left with appellate Court, except to remand case for denovo trial in order to effectively adjudicate and determine respective rights of parties--Petition dismissed in limine. [P. 50] A & B
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 151--Revisional jurisdiction--Whether an order in appeal can be impugned in revisional jurisdiction of High Court--Question of--Validity--Provision of S. 151 of CPC, appellate Court has got inherent power to remand case in order to do complete justice to parties and any order passed u/S. 151, CPC is purely discretionary in nature not liable to be impugned in revisional jurisdiction of High Court. [P. 50] C
Mr. Hidayat Ullah Muhammadzai, Advocate for Petitioner.
Nemo for Respondents.
Date of hearing: 29.1.2008.
Judgment
Haji Muhammad Saleem Khan, petitioner has questioned the judgment and decree of District Judge/Zilla Qazi, Dir Lower at Timergara dated 7.11.2007 in Civil Appeal No. 24/13 of 2005 through which while accepting the appeal of the respondents the learned District Appeal Court set aside the judgment and decree of Mr. Zafarullah Mohmand, Civil Judge/Illaqa Qazi-II, Timergara through which decree for declaration as well as decree for prohibitory and mandatory injunction was granted in favour of the petitioner-plaintiff against the respondents-defendants in Suit No. 218/1 decided on 28.9.2005.
The parties produced pro and contra evidence as they wished to produce, the learned trial Court vide judgment and decree in Suit No. 218/1 decided on 28.9.2005 granted a decree only to the effect that the plaintiff is liable to be assessed on 15 KW and on this rate he should be charged and he will be liable to pay the arrears. However, the learned trial Court dismissed the suit was respect to the damages of Rs. 1,50,000/-.
Feeling aggrieved the respondents PESCO filed an appeal before the learned District Judge/Zilla Qazi, Dir at Timergara who after hearing the parties and perusing the record came to the conclusion that the evidence on the record is not sufficient to decide the controversy between the parties and hence by its order dated 7.11.2007 in Appeal No. 24/13 of 2005, accepted the appeal of the defendants/respondents and remanded the case to the trial Court for decision afresh on merits after affording the parties opportunity to lead evidence. The last mentioned order/decree of the District Judge has been impugned in the present revision petition.
Mr. Hidayatullah Khan Mohammadzai, Advocate submitted; written arguments and also cited some authorities of the superior Courts on the proposition that the District Judge could only frame additional issues and ought to have remitted the case with respect to that particular issue to the trial Court and the trial Court after returning the findings should have placed the case file for final disposal of the appellate Court as envisaged by the provision of Order-41, Rule-25 of Civil Procedure Code. It was submitted that in view of the judgments rendered by the Peshawar High Court, Peshawar the case of Gul Baz Versus Abdur Raziq (PLD 1985 Peshawar-38), Haji Muhammad Ashiq Bhutta Versus Dr. Ajazul Haq Qureshi (1989 CLC Lahore-19) and Nasir Ahmad and another Versus Khuda Bakhsh and another (1976 SCMR-388). The judgment and decree rendered by the learned appellate Court is liable to be set aside.
I have given my anxious consideration to the submissions of the learned counsel, for the petitioner and have perused the record of the case minutely. The question that the petitioner would be liable to pay at the rate of 15 KW or 19 KW is the sole point involved in the present litigation between the petitioner and PESCO upon which as the matter related to the record, but unfortunately, no record has been produced to substantiate and clarify this question. The employee of WAPDA namely Muhammad Sher, Junior Clerk Revenue Office, Timergara appeared as DW-1 and he has produced certain record which is not confidence inspiring insofar there are some cutting in the record and some of the papers according to this witness has not been signed by the proper functionary of WAPDA. Further-more, as clarified that, at the time of securing the connection by the plaintiff from WAPDA what was the total sanction load to the premises of the petitioner, so there was no evidence to arrive at a correct conclusion and, thus, no effective adjudication between the parties could be passed. There was no other alternative left with the appellate Court, except to remand the case for de-novo trial in order to effectively adjudicate and determine the respective rights of the parties.
The contention of the learned counsel for the petitioner that in view of the judgments cited above, the learned appellate Court was not well within its powers to remand the case is also without force because under the provision of Section 151 of the CPC the appellate Court has got inherent power to remand the case in order to do complete justice to the parties and any order passed under Section 151 CPC is purely discretionary in nature not liable to be impugned in the revisional jurisdiction of this Court.
The order of the appellate Court is perfectly sound, legal, judicious and is in consonance with the established principles of appreciation of evidence which calls for no interference.
In view of the facts and circumstances of the case narrated above, there is no force in the present revision petition which is hereby dismissed in limine. Copy of this judgment be sent to the learned District Judge/Zilla Qazi Dir Lower for placing the same on the record of the Civil Suit No. 218/1 decided on 28.9.2005 titled Muhammad Saleem Khan Vs. Government of Pakistan.
(Sh.A.S.) Petition dismissed
PLJ 2009 Peshawar 51 (DB)
[Abbottabad Bench Abbottabad]
Present: Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ.
NOOR-UL-HAQ--Petitioner
versus
PUBLIC SERVICE COMMISSION NWFP, PESHAWAR through its CHAIRMAN and 4 others--Respondents
W.P. No. 296 of 2007, decided on 13.8.2008.
NWFP Public Service Commission Ordinance, 1978--
----Ss. 10 & 10-A--Constitution of Pakistan, 1973, Art. 199--Civil servant--Writ petition--Petitioner applied for post of Head Master--Qualified written screening test but failed to qualify interview--Respondents have deviated from their established policy, by not counting percentage of numbers of screening test alongwith numbers of interview which resulted in failure of petitioner--Contention of--Validity--Government by notification in official gazette make rules for carrying out purpose of Ordinance and Commission may make regulations for carrying out purpose of Ordinance--Rules were framed and thereafter NWFP Public Service Commission Regulations, were promulgated--Past policy of adding percentage of marks obtained in screening test with interview marks has now been abandoned and superceded--Numbers obtained in screening test shall be only for purpose of short listing--They shall not be added under any formula, to numbers obtained in interview, for final decision relating to recommendation for appointment against post--Failure of petitioner in interview has deprived him from recommendation of appointment--No violation of prevailing law, rules and regulations--Petition dismissed. [P. 53] A & B
Mr. Tariq Tanoli, Advocate for Petitioner.
Mr. Qaisar Rashid, AAG for Respondents.
Date of hearing: 12.8.2008.
Judgment
Syed Yahya Zahid Gillani, J.--The Petitioner Noor-ul-Haq is a teacher in Ranolia, District Kohistan in the year 1996. He applied for appointment on the post of Head Master, which was advertised by NWFP Public Service Commission. He failed to get appointment inspite of litigation up to apex Court because there was a screening test and under the prevailing Formula the aggregate of his marks in the interview coupled with percentage mark obtained in the screening test, were not sufficient to qualify.
With this history, he again applied for the post of Head Master advertised by Public Service Commission in daily `Mashriq' on 1.2.2004, qualified the written screening test, appeared in interview, but failed to qualify the interview. Therefore, he was not recommended for appointment and hence this petition under Article-199 of the Constitution.
We have heard Mr. Muhammad Tariq Khan Tanoli, advocate for the petitioner and Mr. Qaiser Rashid, AAG for respondents. Record has also been gone through with their assistance in the light of prevailing rules and regulations.
Learned counsel for the petitioner argued that the respondents have deviated from their established policy, made under the Rules, and did not count percentage of numbers of screening test alongwith numbers of interview which resulted in his failure. In this context he referred the judgments pertaining to his appearance in the competition in 1996 and argued that this deviation from policy is not a fair play. Rather it is violation of law and misuse of lawful authority.
Learned Additional Advocate General, while assisting the Court, argued that the petitioner is agitating to get shelter under a policy which is a past and closed chapter. He added that presently the fresh policy is prevailing on the strength of Rules and Regulation under which the petitioner after qualifying screening test was summoned for interview which he could not qualify. Numbers obtained with screening test cannot be counted with numbers of interview for his success as it is not permissible. He referred the Rules and Regulation which are discussed below.
Section-10 and Section-10-A of the NWFP Public Service Commission Ordinance 1978, Provides that Government may by notification in official gazette make Rules for carrying out the purpose of this ordinance and subject to the provisions of Ordinance and the rules, the Commission may make Regulations for carrying out the purposes of this Ordinance. Consequently the NWFP Public Service Commission (Functions) Rules were framed in 1983 and thereafter NWFP Public Service Commission Regulations were promulgated in the year 2003.
Regulation No. 23 provides for holding screening test to bring the candidate to a manageable level of interview if the applications are disproportionate in number, in a direct recruitment cases.
Regulation No. 24, empowers the Commission to decide the nature of the screening test and Regulation No. 29 provides the marking system.
Clause (o) of Regulation No. 29 is most relevant to the case of the petitioner which lays down that marks obtained in screening test/ability test shall be counted only for short listing purpose.
In case there was a policy in the past that the percentage of the marks obtained in the screening test was added in the interview marks, that policy has now been abandoned and superceded by Regulation No. 29(o) which clearly indicates that the numbers obtained in the screening test shall be only for the purpose of short listing. Meaning thereby that they shall not be added under any formula, to the numbers obtained in interview, for final decision relating to recommendation for appointment against the post.
This being the legal position, the failure of petitioner in interview has deprived him from recommendation of appointment and there appears to be no violation of prevailing law, rules and regulation in his case. This writ petition is therefore dismissed.
(Sh.A.S.) Petition dismissed
PLJ 2009 Peshawar 54
Present: Muhammad Alam Khan, J.
MUHAMMAD KARIM and 6 others--Petitioners
versus
IZZAT JAMAL and 9 others--Respondents
Revision Petition No. 206 of 2007, decided on 19.3.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VII, R. 11--Civil revision--Resjudicata--Suit was dismissed on ground of resjudicata--Objection was over-ruled by Civil Court--Appeal was accepted--Assailed--Applicability of--Provisions of Order VII, Rule 11 of CPC--Neither a preliminary issue with respect to resjudicata had been framed nor the parties had been afforded opportunity to lead pro and contra evidence--First Appellate Court wanted to decide the case on preliminary issue, he ought to have frame a preliminary issue qua to resjudicata and applicability of the provisions of Order VII Rule 11 of CPC and should have remanded the case back to trial Court with direction to afford the parties and opportunity of leading evidence in support of their respective contentions--Revision was accepted. [P. 55] A
2001 MLD 1785, 1993 MLD 1005 & 1993 MLD 2464 ref.
Petitioners in person.
Mr. Ikram-ud-Din, Advocate for Respondents.
Date of hearing: 19.3.2008.
Judgment
Impugned in this revision petition are the judgments and decrees of the learned District Judge/Zilla Qazi, Chitral, vide which the suit of the plaintiffs-petitioners was dismissed on the ground of resjudicata.
Briefly narrated the facts of the case are that the plaintiffs-petitioners brought a suit for declaration with prayer for a prohibitory injunction regarding the legacy of their predecessor-in-interest. The learned trial Court called for the written statement, which was submitted and out of the pleadings of the parties proper issues were framed.
In the meantime the defendants-respondents raised a preliminary objection that the suit is barred being resjudicata and it was submitted that the suit be dismissed. The learned trial Court, after hearing both the parties and perusing the record of the case, came to the conclusion that the question of resjudicata as well as applicability of Order 7, Rule 11 CPC could not be resorted to unless and until evidence is recorded in the case and this objection was over-ruled by the learned Civil Judge, vide order dated 4.2.2006.
Feeling aggrieved, Izzat Jamal etc: defendants-respondents filed an Appeal No. 13/14 of 2005 before District Judge, Chitral Mr. Khalil Khan Khalil, who accepted the appeal, set aside the impugned order of the learned Civil Judge and dismissed the suit filed by the plaintiffs-petitioners vide judgment dated 21.2.2006. Hence the present revision petition.
I have heard both the parties at length and there is no need to recapitulate the facts of the case. Suffice it to say that neither a preliminary issue with respect to resjudicata had been framed nor the parties had been afforded opportunity to lead pro and contra evidence. If the learned District Judge wanted to decide the case on preliminary issue, he ought to have framed a preliminary issue with respect to resjudicata and applicability of the provisions of Order 7, Rule 11 CPC and should have remanded the case back to the trial Court with direction to afford the parties an opportunity of leading evidence in support of their respective contentions. The short cut adopted by the learned District Judge, Chitral was not in-consonance with the established principles of law as held in Zahir Shah and others vs. Bahadar Khan and others (2001 MLD 1785), Ghulam Dastagir and others vs. Mst. Mariam and others (1993 MLD 1005) and M/s. Hoechst Pakistan Ltd. vs. M/s. Cooperative Insurance Societies and others (1993 MLD 2464).
In view of the facts and circumstances narrated above, this revision petition is accepted and the impugned judgment and decree of the learned District Judge/Zilla Qazi, Chitral in Civil Appeal No. 13/14 of 2005 decided on 2.12.2006 is set aside and that of the trial Court is restored with the direction to the learned Civil Judge to record evidence and decide this lis on merits in accordance with law. The learned trial Court is further directed to expeditiously dispose of the lis. Parties are directed to appear before the learned Civil Judge, Boni, District Chitral on 16.4.2008. The office is directed to immediately send the record of the case to the quarter concerned.
(R.A.) Petition accepted
PLJ 2009 Peshawar 56 (DB)
Present: Syed Yahya Zahid Gillani, J and (sick).
ZULFIQAR ALI--Petitioner
versus
ASSTT. DIRECTOR/CHIEF SECURITY OFFICER, A.S.F., AIRPORT, PESHAWAR and 2 others--Respondents
W.P. No. 1859 of 2005, decided on 19.1.2009.
Airport Security Force Act, 1975--
----Ss. 7-A--7-A(4) & 7-F--Constitution of Pakistan, 1973--Art. 199--Right of cross-examination was denied--Wrong assumption of law and facts--Petitioner inducted as security guard--Dismissal from service--New grounds, tried by summary military Court--Federal Service Tribunal dismissed appeal for lack of jurisdiction--Leave to appeal was withdrawn--Constitutional petition was dismissed on account of non-maintainability--Unauthorized, mandatory provisions of law were violated--Fundamental rights guaranteed--Ultra vires of constitution--Validity--Dismissal of petitioner can be declared without jurisdiction, coram non judice, malafide and petitioner can be directed to be reinstated--Order was neither without jurisdiction nor coram non judice--Petition was dismissed. [Pp. 58 & 63] A & H
Constitution of Pakistan, 1973--
----Art. 8(3) & 199(3)--Airport Security Force Act, 1975--S. 7-A(4)--Jurisdiction of High Court--Relief of reinstatement was granted--Remedial process of laws--Jurisdiction of High Court is barred u/S. 7-A(4) of ASF Act, to adjudicate on the issues raised by petitioner pertaining to his dismissal--Vires of provision of ASF Act, can also not be in question before High Court due to bar created in Arts. 8(3) & 199(3) of Constitution. [P. 59] B
Airport Security Forces Act, 1975--
----Ss. 7-A, 7-A(4) & 7-F--Second time was tried on fresh charges--Conflict with constitutional fundamental rights--Petitioner was inducted as security guard, dismissal from service--Appeal was dismissed for lack of jurisdiction--Second time tried on fresh charges of jurisdiction--Right of appeal--First time dismissed from service--Ultra Vires of constitution--Validity--When tried for the second time on fresh charges, his appeal was not accepted and in present petition he has not only challenged his dismissal order but also provisions of S. 7-A, 7-A (4) & 7-F of ASF Act as ultra vires of Constitution being in conflict with his constitutionally guaranteed fundamental rights.
[P. 59] C
Constitution of Pakistan, 1973--
----Art. 8(3)--Fundamental rights--Abridges--Members of Armed Forces, or police--Charged with maintenance of public order for purpose of ensuring the proper discharge of duties--Validity--State shall not make any law, which takes away or abridges fundamental rights conferred on citizens by its chapter and any law made in contravention of the Art. 8(3) of Constitution to extent of such contravention, be void--Prohibition shall not be attracted in case of any law relating to members of Armed Forces, or of police or of such other forces as are charged with maintenance of Public Order for the purpose of ensuring the proper discharge of duties or maintenance of discipline. [P. 59] D
Constitution of Pakistan, 1973--
----Art. 199 (1) & (3)--Law relating to Armed Forces--Terms and conditions of services--Petitioner was inducted as security guard, dismissal from service--Constitutional petition--An order shall not be passed by High Court under Art. 199(1) of Constitution, on application made by a person who is subject to any law relating to Armed Forces in respect of terms and conditions of service--Held: Petitioner was a person holding the post of security guard in a force by operation of law, as well as by accepting precondition of his appointment the petitioner was a person subject to law relating to Armed Forces in respect of terms and conditions of service.
[Pp. 61 & 62] E & F
Pakistan Army Act, 1952 (XXXIX of 1952)--
----Ss. 47(b), 55 & 99--Airport Security Act, 1957, Ss. 7-A(1) & 7-A (3)--Conviction in criminal case under Pakistan Army Act--Summary Court Martial--Security guard was dismissed from service--Validity--Action was taken against him by Chief Security Officer who was bestowed upon the power of commanding officer and thus was competent to hold summary Court Martial--Held: Petitioner was charged with criminal offences u/Ss. 47(b) & 55 of Pakistan Army Act, which were triable by Summary Military Court, u/S. 99, convicted and in consequence thereof, dismissed. [Pp. 62 & 63] G
Mr. Abdul Qayym Sarwar, Advocate for Petitioner.
Mr. Salahuddin Khan, Advocate for Respondents.
Date of hearing: 12.11.2008.
Judgment
The petitioner inducted as Security Guard (BPS-3) in Airport Security Force (hereinafter referred to as `ASF'), was dismissed from service, but reinstated on 22.05.2001, by the order of appellate authority.
He was again charge sheeted on 12.10.2001, on new grounds, tried by the Summary Military Court and dismissed on 13.10.2001. This time, the petitioner's appeal could not succeed and he was communicated rejection of appeal on 23.11.2001.
Thereafter, the petitioner approached the Federal Service Tribunal but his appeal was dismissed on 06.01.2003 for lack of jurisdiction. Then he filed a petition for leave to appeal against this order before the Hon'ble Apex Court, which was withdrawn.
Next, the petitioner instituted this writ petition which, at its inception, was dismissed on account of non-maintainability, because as per Para No. 5 of the writ petition, the departmental appeal was pending. When it was pointed out in the Hon'ble Apex Court that the departmental appeal of the petitioner was dismissed on 12.11.2001, before institution of the writ petition, and the result was also communicated to petitioner on 23.11.2001, the matter was remanded on 20-6-2006 to this Court for deciding the petitioner's writ petition on merits.
We have listened arguments of M/s. Abdul Qayyum Sarwar, advocate, for the petitioner and Faridullah Kundi, advocate, for the respondents. The available record has been gone through.
It was argued for the petitioner that the petitioner's trial held by the Respondent No. 1 was unauthorized, mandatory provisions of law were violated, right of cross-examination was denied to petitioner, the Presiding Officer of Summary
Military Court unlawfully exercised functions of both the Prosecutor and Judge and simultaneously acted as authority and authorized officer, who took wrong assumption of law and facts. The powers were exercised under Sections 7-A, 7-A(4) and 7-F of the Airport Security Force Act, 1975 (herein after referred as ASF Act') which being inconsistent with petitioner's fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973
(hereinafter referred to as theConstitution') may be declared ultra vires of the Constitution, the impugned dismissal of petitioner may be declared without jurisdiction, coram non judice, mala fide, and the petitioner may be directed to be reinstated.
Conversely, it was argued that the petitioner was explicitly communicated through his appointment letter dated 01.11.1990 that he would be governed by ASF Act and Pakistan Army Act. Me accepted his appointment accordingly and worked for ten years under these laws. When dismissed under the aforesaid laws on 13.10.2001, he availed the remedial process of the same laws, where under he was granted the relief of reinstatement. The jurisdiction of this Court is barred under Section 7-A(4) of ASF Act to adjudicate on the issues raised by the petitioner pertaining to his dismissal. The vires of provisions of ASF Act can also not be called in question before this Court due to bar created in Article 8(3) and Article 199(3) of the `Constitution'.
We have considered the arguments delivered before us, in the light of relevant law and record. The petitioner was admittedly appointed as a Security Guard in BPS-3 vide order dated 01.11.1990, in ASF, which was constituted under ASF Act, 1975 to function under the direct Control of Ministry of Defence. Thereafter, through a statutory enactment, i.e., ASF (Amendment) Ordinance, 1984, officers and members of ASF were subjected to the provisions of Pakistan Army Act, 1952 (hereinafter referred to as PAA). The petitioner worked under these laws and when he was for the first time dismissed from service, he availed the right of appeal successfully and got himself reinstated on 22.05.2001.
Now, when tried for the second time on fresh charges his appeal was not accepted and in the present writ petition he has not only challenged his dismissal order dated 13.10.2001, but also the provisions of Section 7-A, Section 7-A(4) and Section 7-F of ASF Act, 1975, as ultra vires of the `Constitution', being in conflict with his constitutionally guaranteed fundamental rights.
The Constitution has fixed the parameters of powers of this Court under sub-article (2) of Article 175, explicitly envisaging exercise of only that jurisdiction which is conferred by the Constitution or by or under any law.
Indeed, Article 8 of the Constitution postulates that the State shall not make any law, which takes away or abridges the fundamental rights conferred on citizens by its Chapter 1 and any law made in contravention of this article shall, to the extent of such contravention, be void. However, sub-article (3) of Article 8 of the Constitution denotes that this prohibition shall not be attracted in case of any law relating to members of Armed Forces, or of the police or of such other forces as are charged with the maintenance of Public Order for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them.
Functions of `ASF' and liabilities of the officers and members of the "Force" have been exhaustively considered by the Hon'ble Supreme Court of Pakistan in Para No. 23 of the judgment, in the case "Force Commander ASF Vs. Mohammad Rashid" reported in 1996-SCMR at page 1614, vis-a-vis applicability of PAA and ouster of jurisdictions. In Para 20 of this judgment, the ratio decidendi of the case of Fasihuddin, reported in 1993-SCMR-at page-1, has been highlighted with the clarification that some relevant aspects of application of Army laws were not considered in Fasihuddin's case. The relevant portion of Para 20 is reproduced below :--
"20 ..............................
(i) ..............................
(ii) ..............................
However, we may point out that in the above cases inter alia the following aspects were not considered:--
(i) That the Act and the Army Act provide civil and criminal liabilities of the persons subject to the same, namely through departmental proceedings a person subject to the Act or the Army Act may be dismissed or removed from service or a lesser punishment may be imposed or he may be proceeded with through criminal proceedings and be imprisoned and in consequence thereof may be dismissed from service.
(ii) That the Army Act is not only applicable to persons belonging to Armed Forces but by operation of law, it is also applicable to other persons specified in clauses (d) and (dd) of sub-section (1) of Section 2 of the Army Act, quoted hereinabove in Para. 11; and secondly, under sub-section (1) of Section 5 of the Army Act, the Federal Government has been empowered by a notification to apply all or any provisions of the Army Act to force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government as already pointed out hereinabove. In the present case, admittedly, A.S.F. is a force raised and maintained in Pakistan under the authority of the Federal Government. The Federal Government could have issued a notification under above sub-section (1) of Section 5 of the Army Act but instead of that it made Army Act applicable by law by enacting sub-section (1) of Section 7-A (which was added by the aforesaid amending Ordinance, 1984) by providing that every officer and member of the force shall unless he is already so subject, be subject to the Army Act."
"22. We may state that as regards criminal liability of the employees of A.S.F., the provisions of the Army Act and the Army Rules Act are applicable to them by virtue of the aforesaid sub-section (1) of Section 7-A of the Act. The same are very comprehensive which we have already referred to hereinabove in detail. It may again be pointed out that award of sentence of imprisonment may also result into dismissal from service as a consequence thereof. This dismissal cannot be equated with a dismissal from service imposed as a major penalty as a result of a departmental disciplinary proceedings."
"24. We may observe that the above provisions cannot be ignored merely on the ground that the status of the personnel of A.S.F. remains that civil servants. The provisions of the Act and the Army Act, and the rules framed thereunder, if contrary to the previsions of the Civil Servants Act and the rules framed thereunder, being special, shall prevail over the latter being general.
The petitioner was since convicted under a criminal charge and consequently dismissed, The Army Act was applicable to his case in the light of above noted quotations from `Force Commander ASF's case (supra).
Apart from the above mentioned relevant dictums of Hon'ble Supreme Court, attracted to the focal points involved herein, the petitioner is seeking relief of getting declared S.7-A, S.7-A(4) and S.7-F of ASF Act, 1975, as ultra vires of Article 8 of the Constitution, but granting such relief has been excluded from the ambit of Article 8 (1), by its sub-article (3). Hence, this relief cannot be granted to petitioner.
The present petition has been filed by the petitioner in the this Court under Article 199 of the Constitution which also contains a bar in its sub-article (3), providing that an order shall not passed by a High Court under sub-article (1) of Article 199 of the Constitution, on application made by a person who is subject to any law relating to Armed Forces of Pakistan, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action in relation to him, as a person subject to such law.
Hon'ble Apex Court has explained in the case of "Ex-Lt.Col. Anwar Aziz vs. Federation of Pakistan", reported in PLD-2001-SC-at page-549, the scope of jurisdictional bar under sub-article (3) Article 199 of the Constitution. Its relevant Paragraphs 8 & 9, at page-553, are reproduced below for ready reference:--
"8. This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide. The matters relating to the Members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as member of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution. Article 8(3) of the Constitution also envisages that the provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them. According to Section 133(3)(B) of the Act the decision of the Court of appeal is final and cannot be called in question before any Court or Authority whatsoever."
"9. By now it is well-settled principle of law that the High Court under Article 199(3) of the Constitution can examine the cases falling within three categories, namely, where impugned order/judgment, is mala fide, or without jurisdiction or coram non judice."
As a sequel to the aforementioned dictums, if we glance over the case of petitioner, we find that the petitioner was a person holding the post of Security Guard, in a `Force' called ASF and, by operation of law, as well as by accepting precondition of his appointment, the petitioner was a person subject to the law relating to Armed Forces of Pakistan, in respect of his terms and conditions of service, matters arising out of his service, or in respect of actions in relation to him, as a person subject to that law.
The petitioner was tried and convicted in a criminal case under the Pakistan Army Act because as a Security Guard in ASF he was subject to Pakistan Army Act under Section 7-A(l) of ASF Act, 1975. The action was taken against him by Respondent No. 1, who being Chief Security Officer of Peshawar Airport was bestowed upon the power of `Commanding Officer' by SRO No. 1021(1)/84 issued under Section 7-A(3) of ASF Act, 1975 and thus was competent to hold Summary Court Martial. Record of his trial (copies at pages 35 to 44) reveals that he was charged with criminal offences under Sections 47(b) and 55 of PAA which were triable by Summary Military Court, under Section 99 of the PAA, convicted, and in consequence thereof, dismissed.
So, the impugned order is neither without jurisdiction, nor coram non judice. There is nothing on record to convince us that Respondent No. 1 had acted with any mala fide and this element is also lacking. Moreover, as it was observed in Para-6 of the judgment of Hon'ble Supreme Court in Anwar Aziz vs. Federation of Pakistan (ibid), the petitioner herein had also admitted to the jurisdiction of Summary Military Court and the Court of Appeal by contesting their proceedings and fully exhausting the remedy available under PAA.
It is, therefore, concluded that none of the prayer can be granted to petitioner due to bars contained in Article 8(3) and Article 199(3) of the Constitution. Reliance is placed on the case of Brig.(Rtd) F.B. Ali vs. The State, reported in PLD-1975-SC-page 506. The relevant portion at page 542 is quoted below.
"The learned Attorney-General has contended that the words `relating to' in clause (3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceivable action taken in relation to even a person for the time being subject to the Army Act as the appellants were. However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram-non-judice or has been taken mala fide as held by this Court in State v. Ziaur Rahman (2). On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Force. The action must, however, be one which is taken while he is so subject and not before he becomes so subject or after he ceases to be so subject."
As a corollary to above discussion, the writ petition fails. Hence, it is dismissed with no order as to costs.
(R.A.) Petition dismissed
PLJ 2009 Peshawar 64
[Abbottabad Bench]
Present: Ghulam Mohyuddin Malik, J.
TAJ MUHAMMAD KHAN (deceased) through Legal Heirs--Petitioners
versus
Mst. MUNAWAR JAN and 2 others--Respondents
C.R. No. 415 of 2006, decided on 18.12.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), O.VI, R. 4--Suit for declaration on the basis of inheritence--Challenging validity of mutations--Dismissal by appellate Court--Challenge to--Appreciation of evidence--Held: Both mutations were attested during life time of the predecessor in Jalsa-e-Aam--No one challenged the mutations including the transferor in his life time--Title deeds were acted upon in the subsequent jamabandis--Mutations were properly entered and attested at the instance of late transferor--Suit was filed after many years even of the date of death of the executant--No particulars of fraud, as required u/O. 6, R. 4 of CPC were mentioned in the plaint, nor in the evidence--Petition dismissed. [Pp. 65 & 66] A, B, C & D
Mr. Khalid Rehman Qureshi, Advocate for Petitioners.
Shah Sultan Tahir Kheli, Advocate for Respondents.
Date of hearing: 4.12.2008.
Judgment
This Civil Revision Petition No. 415/2008 titled "Mst. Zaiwar Jan etc. Versus Mst. Munawar Jan etc." and Civil Revision Petition No. 416/2008 titled Mst. Zaiwar Jan etc Versus Mst. Ashraf Jan etc." are being disposed of through this single judgment because the only question for determination in both the revision petitions is whether Amir Bostan erstwhile owner of suit Haveli and agricultural land had in his life time transferred the said property in favour of his daughters Mst. Ashraf Jan and Mst. Munawar Jan by way of Hiba and sale vide Mutation No. 1666 dated 9.7.1986 and Mutation No. 1746 dated 14.2.1987.
The relevant facts are that Amir Bostan owner of immovable property fully described in the plaint transferred the Haveli through a gift Mutation No. 1666 dated 9.7.1986 and further transferred a portion out of agricultural land vide sale Mutation No. 1749 dated 14.2.1987, referred to above, in favour of his daughters Mst. Ashraf Jan and Mst. Munawar Jan. On his death Mst. Zaiwar Jan his third daughter and nephew Taj Muhammad through separate civil suits challenged the correctness of both the transactions and claimed that they being legal Shari heirs of late Amir Bostan were entitled to get their share out of their ancestral property and that gift and sale mutations purportedly executed by their predecessor Amir Bostan in favour of his daughters were false, fake, fraudulent, fictitious and thus ineffective on their rights.
Learned trial Court after holding the trial, recording parties evidence and hearing their arguments, decreed the suits. The petitioners aggrieved by the judgments and decrees of the trial Court filed appeals before the Appellate Court which were accepted and consequently both the above said suits were dismissed. The petitioners aggrieved by the judgment of Appellate Court have filed the above said two revision petitions.
I have heard the learned counsel for the parties and have gone through the record.
Admittedly, both the gift and sale mutations were attested during the life time of Amir Bostan by the Revenue Officer in `Jalsa-Aam' in the presence of the notables of the area who included Chairman Zakat Committee, Lambardar and land owners. Neither the transferor in his life time himself nor the plaintiffs-petitioners during his life time filed suits for declaration and cancellation of said mutations. The title deeds were acted upon in the subsequent jamabandi and admittedly the petitioners filed the instant suits after the death of Amir Bostan on the ground of fraud and misrepresentation etc. The revenue record produced at the trial and duly exhibited would show that the disputed mutations were properly entered and attested at the instance of owner late Amir Bostan. If these have been challenged by him in his life time then the onus would have been on the beneficiaries to prove the correctness of the deeds but as the declaratory suits have been filed after his death and by third party for declaration and cancellation of the mutations on the ground of fraud and misrepresentation etc, the heavy burden of proof lied on them to prove the elements of fraud, coercion or exercise of undue influence by the daughters on their old and sick father. The suits were filed after many years of attestation of deeds and even much later than the date of death of executant but still neither in their plaint nor in the evidence disclosure of particulars of frauds as required by Order 6 Rule 4 C.P.C. were given nor these could be proved at the trial.
Apart from the above, as the Gift Mutation No. 1666 was attested on 9.7.1986 while Sale Mutation No. 1749 is dated 14.2.1987, late, Amir Bostan, the executant died in 1990 the suit for declaration and cancellation of deeds were filed after about 7/8 years of their attestation and 4 years of the death of Amir Bostan. The period of limitation also started running against them from the date of attestation of mutations entitling them to file the suits but they kept mum for a long time and could not dare to challenge the same in the life time of transferor or at least immediately after his death.
At the trial, the petitioners have produced no evidence worth the name to believe that the sale or gift agreement/mutation were not executed by the original owner Amir Bostan or that these were the result of fraud, under duress or misrepresentation. The making of entries and attestation of mutations have been proved through the revenue officials by producing relevant revenue record. The marginal witnesses who were alive at the time of trial also appeared and proved the transactions. Actually, as observed above, in the instant cases the executant himself did not question the execution or validity of the transactions nor ever denied execution of these deeds. It is an admitted position that late Amir Bostan in last days of his life was living with the respondents. He was looked after by them and they were bearing all his daily and medical expenses etc. So the possibility that to satisfy the liability/obligations he might have in his wisdom/experience and having regard to exigencies of future and the expenses which were being incurred on him by the respondents and some more on him at some later date, had delivered his property by way of gift and sale in favour of his daughters. It means that the petitioners have no cause of action to challenge the transactions made by the owner of the property in his life time with his free consent. The expression "cause of action" has all along been held to mean every fact which it is material to be proved by the plaintiff to get the case decided in his favour. The contents of petitioners' plaint and evidence led at the trial by them show that they have not proved the facts necessary to succeed and support their claim or title to the suit property.
On that view of the matter, the petitioners can get no more than what Amir Bostan had left behind for his other L.Rs. at the time of opening of his succession, of course, by excluding the property transferred by him in favour of respondents.
For these reasons both the revision petitions being merit-less stand dismissed. No order as to costs.
(J.R.) Petition dismissed
PLJ 2009 Peshawar 67
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
Mst. BIBI AISHA (Widow)--Petitioner
versus
ABDUL LATIF and 2 others--Respondents
C.R. No. 209 of 2004, decided on 27.10.2008.
N.W.F.P. Pre-emption Act, 1987--
----S. 13--Talabs--Non-mentioning of date, time & place in the plaint--Effect--Dismissal of suit--Validity--Held: Neither the date, time place & name of informer was mentioned in the plaint nor the same was mentioned in notice of Talab-e-Ishhad--Impugned judgment was in accordance with law settled by the apex Court--Revision dismissed.
[P. 69] A & B
1999 SCMR 958, PLD 2007 SC 302, ref.
Khawaja Muhammad Khan, Advocate for Petitioner.
Mr. Muhammad Iqbal Khan Kundi, Advocate for Respondents.
Date of hearing: 20.10.2008.
Judgment
Mst. Bibi Aisha has brought the instant revision petition against Abdul Latif and others through which the judgment and decree dated 27.5.2004 of learned Additional District Judge-I, Lakki Marwat in Civil Appeal/Cross Objections No. 20/13 of 2002 and Civil Appeal No. 19/13 of 2002 filed by Respondent No. 1 against the judgment and decree of learned Civil Judge-I, Lakki Marwat in Suit No. 4/1 decided on 20.5.2002 in favour of the petitioner was set-aside by the learned Appellate Court, has been challenged.
Briefly narrated the facts of the case are that the plaintiff-petitioner brought a suit for declaration in Madd "Alif" of the plaint to the effect that a house measuring two kanals, or whatever correct area is proved duly described in the site-plan through A, B, C & D, entered in registered deed & No. 146 dated 18.8.1994 situated in Shehbaz Khel, Lakki Marwat, is owned and possessed by the plaintiff-petitioner and the sale of a partial area out of this property vide Registered Deed No. 146 dated 18.8.1994 with respect to 08 marlas is based on fraud, collusion, misrepresentation and is not binding on the plaintiff-petitioner. In Madd "Bay", it was prayed that the plaintiff-petitioner, in the alternative, is entitled to the right of pre-emption on the ground of co-sharership, continuity and participator in immunities and appendages with all rights appurtenance sold through registered deed dated 18.8.1994.
Defendants were summoned who submitted written statement contesting the allegations contained in the plaint which was reduced to the following issues by the learned trial Court :--
Whether the plaintiff has got a cause of action?
Whether the suit is within time?
Whether the plaintiff has waived off his right of pre-emption?
Whether the plaintiff has not fulfilled the legal formalities of Section 13 of NWFP Pre-emption Act, 1987?
Whether the plaintiff has got a superior right of pre-emption?
Whether the suit is incompetent in its present form?
Whether the sale consideration was fixed in good faith and was actually paid by the defendant/vendee in lieu of suit land?
What is the market value of the suit-land?
Whether the plaintiff is entitled to the decree for declaration as prayed for in Relief "A"?
Whether the plaintiff is entitled to the decree for possession through pre-emption as prayed for?
Relief.
The parties then produced their respective evidence as they wished to adduce and Mr. Ashfaq Taj, Civil Judge-I, Lakki Marwat vide Suit No. 4/1 of 1994 decided on 20.5.2002, granted a partial decree with respect to claim of pre-emption while the prayer of the plaintiff-petitioner for declaration was refused.
Abdul Latif Khan, Defendant-Respondent No. 1 herein, filed Civil Appeal No. 19/13 of 2002 while Mst. Bibi Aisha petitioner, being partly aggrieved from the judgment and decree of the learned trial Court, filed Civil Appeal No. 20/13 of 2002 and the learned appellate Court, by consolidated judgment in Civil Appeal No. 19/13 of 2002 decided on 27.5.2004, after hearing the learned counsel for the parties and considering the data available on the record, accepted the appeal of the Defendant-Respondent No. 1 bearing No. 19/13 of 2002 and the appeal of Mst. Bibi Aisha was also accepted with respect to superior right of pre-emption and on acceptance of the appeal of Abdul Latif, the judgment and decree of the learned trial Court was set-aside on the only ground that the plaintiff Mst. Bibi Aisha has not mentioned the date, time and place as well as the name of informer in her plaint and thus, her suit was dismissed on the ground of non-fulfillment of Islamic demands in accordance with Section 13 of the NWFP Pre-emption Act, 1987 and as interpreted by the superior Courts in various judgments.
It was argued by the learned counsel for the petitioner Mr. Khawaja Muhammad Khan that the judgment and decree of the learned appellate Court is not warranted under the law as the date, time and place was duly mentioned in the notice Talb-e-Ishhad issued to the defendant-defendant which was duly exhibited and brought on record as Ex.P.W.6/1 on the file and this was exhibited without any objection from the opposite side. It was also argued that once the ingredients are mentioned in the notice Talb-e-Ishhad with respect to the date, time and place and the name of informer, then there is no need to mention the same in the plaint. Reliance in this respect was placed on Nadir Khan Vs. Itebar Khan (2001 SCMR 539) and Muhammad Ilyas Vs. Ghulam Muhammad and another (1999 SCMR 958).
As against this, Muhammad Iqbal Khan Kundi, learned counsel appearing for the respondent submitted that neither the date, time and place and the name of the informer is mentioned in the plaint nor in the notice Talb-e-Ishhad. It was further submitted that the scribe of the notice had not been produced. The notice was written on 08.12.1991 but instead of sending the same from Lakki Marwat, it was registered in Pezu on 10.12.1991. Elaborating his arguments, the learned counsel submitted that the evidence produced by the plaintiff was contradictory and neither Talb-e-Muwathibat nor Talb-e-Ishhad has been proved in accordance with the provisions of Qanun-e-Shahadat Order, 1984.
I have gone through the record of the case and heard the valuable arguments of learned counsel for the parties.
Perusal of the record shows that neither the date, time, place and the name of the informer is mentioned in the plaint nor the same has been mentioned in notice Talb-e-Ishhad. In the notice Talb-e-Ishhad which was issued on 08.2.1994 only this fact has been mentioned that the plaintiff came to know regarding the impugned sale six days prior to the issuance of the notice Ex.P.W.6/1.
It is now settled principle of law laid by the apex Court that date, time, place and the name of the informer must be mentioned in the plaint and the non-mentioning of the same will render the right of pre-emption of the plaintiff-pre-emptor extinguished under Section 13 of the NWFP Pre-emption Act, 1987 as laid down in the dictum reported in Mian Pir Muhammad and another. Vs. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302).
The judgment and decree of the learned appellate Court is strictly in accordance with law, justice and is based on the correct appreciation of evidence. No misreading or non-reading has been pointed out by the learned counsel for the petitioner.
In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed.
(J.R.) Petition dismissed.
PLJ 2009 Peshawar 70
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
WAPDA through Chief Executive PESCO Peshawar
and 4 others--Petitioners
versus
MUHAMMAD RAZA KHAN--Respondent
C.R. No. 41 of 2007, decided on 21.11.2008.
Electricity Act, 1910 (IX of 1910)--
----S. 20--Checking of meter in absence of consumer--Effect--Under the law the consumer was entitled to have been associated with checking of meter as nobody should be a judge of his own cause--As respondent was neither given any such notice nor he was associated with the alleged checking, so it had no legal value. [P. 72] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Concurrent finding--Held: Concurrent finding were based on sound appreciation of evidence and data available on file--The same cannot be set at naught unless proved to be perversed or erroneous--Petition dismissed. [P. 72] B
1983 CLC 211, PLJ 2003 Lah. 1213, 2000 SCMR 346, PLD 1994 SC 291 & PLD 2002 SC 293, ref.
Mr. Arif Rahim Ustrana, Advocate for Petitioners.
Mr. Gohar Zaman Khan Kundi, Advocate for Respondent.
Date of hearing: 21.11.2008.
Judgment
WAPDA through Chief Executive PESCO Peshawar and others have filed this revision petition against Muhammad Raza Khan under Section 115 C.P.C impugning the judgment and decree of the learned Civil Judge-II, Bannu dated 23.2.2005 and that of the learned District Judge, Bannu dated 20.11.2006 vide which the respondent was granted a decree for declaration and permanent injunction regarding recovery of an amount of Rs.57,400/-.
It was alleged in the plaint that plaintiff is the owner of a hotel known as `Three Star Hotel' and the meter to the premises of the petitioner has been installed outside the premises on an electric poll. It was also averred that the Meter Reader of the petitioners used to come regularly and after reading of the meter and on receipt of the bill, the respondent has paid the same regularly. That in December, 2001 a bill amounting to Rs.48,582/- was received by the respondent in which some penalty had been shown on account of tampering with the seal of the meter. Then subsequently another bill dated 27.4.2002 was sent in which the amount had been shown to be Rs.57,400/- and thus, this last bill was termed to be illegal, collusive and against the rules and regulations and it was prayed that the same be declared as such.
The defendants were summoned who submitted their detailed written statement in which the allegations contained in the plaint were hotly contested. The learned trial Court framed as many as five issues including the relief. The parties then produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, vide judgment and decree in Suit No. 112/1 decided on 23.2.2005, granted a decree in favour of the plaintiff-respondent. The petitioners, being aggrieved from the judgment and decree, filed an appeal which was registered as Civil Appeal No. 14/2006 and the learned appellate Court, after hearing the learned counsel for the parties and scanning the evidence on record, dismissed the same on 20.11.2006 and hence, instant civil revision.
It was submitted by the learned counsel for the petitioners that the meter of the respondent was found defective and according to Laboratory test report dated 10.11.2001 the same was found to be tampered with and thus, the penalty has rightly been imposed on the respondent and the learned two Courts below have fallen into an error in granting decree in favour of the respondent.
On the other hand, learned counsel for the respondent submitted that the only witness DW-1 Jehangir Abbasi who was produced before the Court clearly admitted that neither the meter was checked in his presence nor he knows about the tampering, thus, the learned trial Court has rightly passed a decree in favour of the respondent which was duly maintained by the learned appellate Court.
I have heard the learned counsel for the parties and gone through the record of the case.
Admittedly the alleged checking of the meter was carried out at the back of the respondent. He was neither given a notice nor he was associated with the alleged checking of the meter. Under the law, the petitioner was entitled to have been associated with the checking of the meter as nobody should be a Judge of his own cause under Section 20 of the Electricity Act. The owner of the premises is entitled to a notice before checking the same which is lacking in the instant case and any action taken by the WAPDA functionaries, in the absence of consumer and in violation of Section 20 of the Electricity Act, will be illegal and without jurisdiction according to the dictum handed down in the case of Mian Muhammad Munir. Vs. WAPDA and others (1983 CLC 211 Lahore) and WAPDA through its Chairman WAPDA House Lahore and others. Vs. Mian Shaukat Hayat (2003 PLJ 1213 Lahore).
The learned two Courts below have recorded concurrent findings of facts in favour of the respondent which are based on sound appreciation of evidence and data available on the file. The same cannot be set at naught unless it is proved that the same are either perverse or erroneous in view of dicta handed down in the cases of Abdur Rahim and another. Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din. Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293)
The judgments and decrees of the two Courts below
are strictly in accordance with law and in accordance with the established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioners.
(J.R.) Petition dismissed
PLJ 2009 Peshawar 73
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
CHAIRMAN NABI QASIM INDUSTRIES PRIVATE LIMITED through His Appointed Attorney--Applicant
versus
ROIDAR KHAN--Respondent
C.R. Appli. No. 314 of 2006, decided on 15.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 10 & S. 20--Contract Act (IX of 1872), S. 28--Contract of services--Territorial jurisdiction--Cause of action--Objection of--Return of plaint--Held: Initial agreement was executed at
K'--It was specifically agreed that any suit arising between parties against the company must be proceeded atK'--Admittedly the residence of defendant, execution of agreement and services of plaintiff were terminated at K' resulting in accrual of cause of action there--Specific clause of agreement would not be either against public policy nor violative of S. 28 of Contract
Act & so it was not void--Court atK' had the exclusive jurisdiction--Civil Court at B' was directed to return the plaint for presenting before Court atK'.
[Pp. 75, 76 & 77] A, B, C & D
2004 MLD 662, PLD 1991 SC 780, 2004 YLR 2503, 1992 SCMR 1174 & 1987 SCMR 393, ref.
Syed Asif Shah, Advocate for Applicant.
Mr. Gohar Zaman Khan Kundi, Advocate for Respondent.
Date of hearing: 15.9.2008.
Judgment
Chairman Nabbi Qasim Industries Private Limited is aggrieved and dissatisfied from the order of the learned Additional District Judge, Bannu dated 05.10.2006 in Appeal No. 1/13 of 2006, through which the Civil Appeal filed by the respondent against the order of learned Civil Judge-III, Bannu dated 17.7.2006, was allowed and the impugned order passed by learned Civil Judge-III, Bannu was set-aside.
Briefly narrated, the facts of the case are that the respondent had filed a civil suit bearing No. 47/1 for specific performance of agreement dated 01.6.2005 and consequent recovery of outstanding amount of Rs.3,51,037/- against Chairman Nabbi Qasim Industries Private Limited. This suit was registered by the learned Civil Judge as Suit No. 47/1. The defendant was summoned who appeared before the Court and submitted a detailed written statement dated 08.4.2006. In Para No. 1 of the written statement, a specific legal objection was raised with respect to the fact that the Court at Bannu had no jurisdiction and the plaint was liable to be returned to the plaintiff for presentation to the proper Court. On 24.4.2006 the attorney for the defendant-petitioner filed an application under the provisions of Order VII Rule 11 C.P.C on the ground that the plaint is liable to be rejected as the cause of action had allegedly accrued to the plaintiff at Karachi and the defendant is also residing in Karachi, thus the Civil Court at Bannu had no jurisdiction to entertain the instant suit. The learned trial Court, alter calling for replication and hearing the learned counsel for the parties, accepted the application of the defendant-petitioner vide Order Sheet No. 9 dated 17.7.2006 and rejected the plaint and simultaneously ordered that the plaint alongwith documents and Court fee be returned to the plaintiff for presentation before the Court of competent jurisdiction. The main reason which prevailed with the learned trial Court was that the defendant is residing at Karachi whose Head Office is also situated there, thus, the Civil Court at Bannu lacks the jurisdiction. Consequently the impugned order was passed.
Roidad Khan plaintiff-respondent being aggrieved from the said order, filed an appeal before the appellate Court which came up for consideration before the learned Additional District Judge-II, Bannu through Civil Appeal No. 1/13 of 2006 who accepted the appeal and while setting aside the impugned order of the learned trial Court, sent the case to the Court of Senior Civil Judge, Bannu for disposal of the same on merits. Chairman Nabbi Qasim Industries Private Limited, petitioner-defendant, has come up in revision to this Court.
It was argued by learned counsel for the petitioner that the agreement between the parties had been executed at Karachi where the Head Office of the Company is also situated and furthermore, the cause of action also arose at Karachi, thus, the Civil Court at Bannu had no jurisdiction to entertain the suit filed by the plaintiff-respondent. It was also submitted that the initial contract for service was executed at Karachi wherein it was specifically mentioned that any dispute between the parties shall be exclusively triable by the Civil Court at Karachi. Reliance was placed on the case of Chaudri Mehtab Ahmad & others Vs. MIR Shakeel-ur-Rehman and 4 others (2004 MLD 662).
On the other hand, learned counsel for the plaintiff-respondent submitted that the application submitted by the defendant-petitioner was under the provisions of Order VII Rule I I C.P.C which provision of law is meant for rejection of the plaint and not for the return of the plaint for presentation to the proper Court. It was also submitted that the learned trial Court had not applied its mind to the facts and circumstances of the case and on one hand, ordered that the plaint is rejected but at the same time, ordered the return of the plaint for presentation to the proper Court which order was contradictory and that is why, the learned appellate Court has rightly set-aside the said order. It was also submitted that Clause 13 of the agreement of service, where the exclusive jurisdiction has been conferred on the Courts at Karachi, will not invest the Court at Karachi with jurisdiction, as the party cannot confer jurisdiction on a Court, where the Court does not possess the inherent jurisdiction according to law and any agreement between the parties, conferring jurisdiction on a particular Court will be violative of the provisions of Section 28 of the Contract Act and will be void to that extent. It was also submitted that the defendant-petitioner had principal office at Karachi, but a subordinate office at District Bannu and thus, the Civil Court at Bannu had also the jurisdiction. Reliance in this respect was placed on the judgment handed down in the case of WAPDA and 2 others. Vs. Mian Ghulam Bari (PLD 1991 SC 780) and Ravi Glass Mills Limited. Vs. ICI Pakistan Power Gen Limited (2004 YLR 2503).
I have heard the arguments of learned counsel for the parties and have given my anxious consideration to the facts and circumstances of the case.
Perusal of the record reveals that the initial contract of service between the parties was executed on 8th March, 1994 at Karachi in which the terms and conditions of service of the plaintiff-respondent were determined and he has based his suit on this agreement. According to Clause 13 of the agreement pertaining to law suits, no legal proceedings will be entertained outside Karachi, law suits against the Company must be processed at Karachi. This agreement of service was accepted by the plaintiff-respondent unreservedly by affixing his signature on the same. The jurisdiction of the Court is determined under the provisions of Section 20 C.P.C which is reproduced in verbatim as under:--
"Sec. 20--Other suits to be instituted where defendants reside or cause of action rises--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation I.--Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
Explanation II.--A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
The above reproduction of Section 20 C.P.C would show that the place of suing will be the place where the defendant resides or carry on business or work for gain or the cause of action arises. In case a person has permanent dwelling at one place and temporary at the other place, will be deemed to reside at both the places in respect of any cause of action arising at a place where he has such temporary residence. However, in view of explanation II ibid, the Corporation shall be deemed to carry on business at the principal office in Pakistan or with respect of any cause of action arising at any place, where it has also a subordinate office at such place.
Admittedly the defendant is residing at Karachi, the agreement of service was executed at Karachi and services of the plaintiff-respondent were also terminated at Karachi which resulted in the accrual of the cause of action. If the cause of action arises at the principal office as well as at the subordinate office and parties enter into an agreement and by consent confer jurisdiction on the particular Court in order to avoid the unnecessary raising of objection to jurisdiction, the same will not be either against the public policy or violative of Section 28 of the Contract Act. In this case the cause of action had exclusively arisen at Karachi and Clause 13 of the agreement of service, where the parties agreed to the jurisdiction of the Civil Court at Karachi, was not void, as laid down in the case of M/s. Father Motors Rawalpindi vs. National Motors Karachi and 3 others (1992 SCMR 1174), State Life Insurance Corporation of Pakistan. Vs. Rana Muhammad Salim (1987 SCMR 393) and Chaudry Mehtab Ahmad's case (2004 MLD 662). Thus the Court at Karachi according, to the service agreement dated 08.3.1994 executed between the parties had the exclusive jurisdiction to try the suit between the parties.
In view of the facts and circumstances of the case narrated above, the revision petition is accepted and the impugned judgment and order of the Additional District Judge, Bannu dated 15.10.2006 is set-aside and that of the learned Civil Judge-II, Bannu dated 17.6.2006 is restored. The case is sent to the Civil Judge-II, Bannu with direction to return the plaint to the plaintiff-respondent for presentation to the proper Court under Order VII Rule 10 CPC. Roidad Khan, plaintiff-respondent, is directed to appear before Civil Judge-II, Bannu on 13.10.2008. Record of the case be sent to the concerned Court forthwith. No order as to costs.
Above are the reasons for my short order dated 15.9.2008.
(J.R.) Order accordingly
PLJ 2009 Peshawar 77
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
Dr. TAJ MALOOK--Petitioner
versus
MALIK NIAZ KHAN and another--Respondents
C.R. No. 137 of 2007, decided on 15.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX Rr. 2(3) & 2-B--Issuance of injunction--Contempt and disobedience of order--Violation of prohibitory order after 6 months--Expiry of stay order--Held: Order XXXIX, R. 2-B of CPC the statutory period of the injunctive order is 6 months or disposal of the suit whether first occurs or if the same is extended with reasons to be communicated to H.C.--In the instant case contempt petition was filed after 6 months when no substantive order was in field nor the same had been extended by trial Court--Order of the two Courts dismissing contempt application were just & based on equity--Petition dismissed in limine. [Pp. 79 & 80] A, B & C
1996 CLC 1572, ref.
Petitioner in person.
Date of hearing: 15.2.2008.
Judgment
Dr. Taj Malook petitioner has called in Question the judgment/order dated 15.01.2007 of Additional District Judge-III and order dated 23.11.2006 of Civil Judge-IV, Bannu vide which the petitioner's application submitted under Order 39 Rule (2) (3) CPC for contempt and disobedience of the order dated 29.06.2005, allegedly committed by the respondents in Civil Suit No. 127/1 of 2004 was dismissed.
Briefly narrated the facts of the case are that Taj Malook filed a civil suit, against Mst. Rambeel Khubana etc in the Court of Senior Civil Judge, Bannu which was marked to Civil Judge-IV, Bannu. This suit was registered as Suit No. 127/1 dated 01.0.2004. Annexed with the plaint was an application for issuance of a temporary injunction under the provision of Order 39 Rule (1) CPC. The learned Civil Judge vide order dated 29.06.2005 accepted the application of the plaintiff/petitioner and granted the ad-interim injunction restraining the defendants from alienating the suit land.
It was on 18.02.2006 that Dr. Taj Malook petitioner submitted an application under Order 39 Rule 2 sub-rule (3) CPC for initiating Contempt of Court proceedings against Malik Riaz Khan and Malik Niaz Khan respondents herein to the effect that in spite of the prohibitory orders the respondents have violated the order of the Court and has raised construction over the suit land. The petitioner also submitted an application for the spot inspection through bailiff of the Court which was accepted and bailiff was deputed to inspect the spot. The respondents Malik Riaz Khan and other submitted replication wherein it was averred that they have never raised any construction on the suit land. However, the Irrigation Department Bannu is constructing a safety wall on Kachkot Canal with which the petitioner has got no concern.
The learned trial Court framed two issues:--
Whether order of this Court has been violated, if so, its effect?
Relief.
The parties after producing their respective evidence as they wished to adduce and the learned trial Court Malik Muhammad Husnain, Civil Judge-VI, Bannu vide his order dated 23.11.2006 came to the conclusion that the petitioner has failed to prove any violation of the injunctive orders dismissed the petition.
The petitioner being aggrieved filed an appeal before the District Judge. Bannu which came for hearing before Nasrullah Khan Gandapur, Additional District Judge, Bannu and who vide his order in Civil Appeal No. 10/14 of 2006 decided on 15.01.2007 dismissed the appeal and maintained the order of the learned Civil Judge-VI, Bannu. Dr. Taj Malook petitioner has assailed the two concurrent orders of the Courts below and have come up in revision before this Court.
Dr. Taj Malook petitioner is present in person and he submitted detailed written arguments which were perused and placed on file.
In the written arguments it was averred that the respondents have committed a gross contempt of Court by violating the order of the Civil Judge dated 29.06.2005. It was also argued that there was overwhelming evidence on the record to prove the alleged contempt and thus, the respondents were liable to be punished under the provisions of Order 37, Rules 2 and 3 CPC.
I have given my anxious consideration to the facts and legal position involved in the present case. Firstly perusal of the record reveal that no violation of the said order has been proved on the data available on the record and secondly, the injunctive order in this case was passed on 29.06.2005 and under the law, in view, of Order 39, Rule 2-B CPC the statutory period of the injunctive order is six months or disposal of the suit whatever first occurs or if the same is extended by the trial Court with reasons to be communicated to the High Court. The provisions of Order 39 Rule (2-B) CPC is reproduced, below for the sake of convenience:--
"(2B) The order of injunction made under Rules 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension.
Provided that report of such extension shall be submitted to the High Court.
So neither the injunctive order was existing at the time of moving the Contempt of Court application by the petitioner nor the alleged violation has been proved on the record of the case.
In view of the facts and circumstances narrated above the orders of the two Courts below are just, based on equity and is in consonance with the established principles of appreciation of evidence which calls for no interference.
Hence this revision petition fails which is dismissed in limine. Copy of this judgment be sent to the learned District Judge, Bannu for onward entrustment to Civil Judge-VI, Bannu to place it on the record of Suit No. 21/6 instituted on 18.02.2006 and decided on 23.11.2006.
(J.R.) Petition dismissed
PLJ 2009 Peshawar 81 (DB)
Present: Hamid Farooq Durrani & Muhammad Alam Khan, JJ.
Mst. GOHAR BEGUM (Widow)--Petitioner
versus
ALTAF AHMAD and 2 others--Respondents
W.P. No. 59 of 2008, decided on 30.4.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11, N.W.F.P. Pre-emption Act, 1987, S. 32--Suit for possession through exercise of right of pre-emption--Rejection of plaint--Challenge to--Admittedly petitioner did not mention time of performance of talb-i-muwathibat in her plaint--Validity--Time, date and place of performance of Talb-i-Muwathibat is not indicated, shall be fatal for a suit seeking enforcement of right of pre-emption--Petition dismissed in limine. [P. 82] A & B
PLD 2007 SC 302, rel.
Mr. Muhammad Siyar, Advocate for Petitioner.
Date of hearing: 30.4.2008.
Order
Hamid Farooq Durrani, J.--The petitioner is aggrieved of judgment passed by learned Additional District Judge-VIII Peshawar in Civil Revision No. 17/07, whereby the findings of learned trial Court regarding application for rejection of plaint filed by the respondents, were reversed. The learned revisional Court on acceptance of the revision petition, allowed the said application filed under Order 7 Rule 11 CPC and was pleased to reject the plaint of petitioner.
Factually, a sale transaction regarding shop/cabin situated in Bazar Ramdas Peshawar City was finalized between the respondents and the vendor through Deed No. 3698 registered on 21.10.2006. Admittedly, the suit for possession through exercise of right of preemption was brought thereupon by the petitioner on 28.3.2007. During the proceedings of the suit an application was submitted by the respondents for rejection of plaint on the ground that the suit was filed much after the time prescribed for the purpose. After dismissal of said application by learned trial Court a revision was filed which was allowed by learned revisional Court on 24.10.2007 placing reliance on judgments reported as 2000 SCMR 1305, 2004 SCMR 1941 and 2004 CLC 284 wherein it was, inter alia, held that the provisions of Section 32 of NWFP Preemption Act 1987 were directory in nature as those were not followed by any penal consequences in case of non-compliance. In such view of the matter, even in case of non-issuance of a notice by the concerned authority, the period of limitation for filing a suit for preemption, as provided in Section 31 of the Act ibid, was to commence from the date of registration of sale deed and not from the knowledge of the plaintiff.
Learned counsel for the petitioner, while arguing instant petition, referred to the judgment reported as 2001 SCMR 1591, 2004 SCMR 535 and attempted to argue that the transaction in dispute was deliberately and with malafide intent kept secret from the plaintiff-petitioner. No notice of registration of impugned sale was given as per requirement of law, therefore, the period of limitation was to run from the date of knowledge of the petitioner, in the circumstances of the case. Keeping in view the said fact the suit was filed well within time i.e. on 28.3.2007 and the plaint was not to be rejected under Order 7 Rule 11 CPC on account of delay.
We have gone through the judgments referred hereinabove, but without discussing the applicability of the said judgments upon the facts and circumstances of the matter in hand, observe that admittedly the petitioner did not mention the time of performance of Talb-i-Muathibat in her plaint. The relevant para 3, though speaks of date and place for the said purpose. In the circumstances, we consider it appropriate not to extend interference in the impugned judgment while seeking guidance from PLD 2007 SC 302. Through the referred judgment it has been laid down by a learned larger Bench of the Apex Court that a plaint, wherein time, date and place of performance of Talb-i-Muathibat is not indicated, shall be fatal for a suit seeking enforcement of right of preemption. The said lacuna in the plaint was frankly conceded by learned counsel when confronted with.
The writ petition in hand, therefore, does not merit admission as a sequel to above. Resultantly, it is dismissed in limine.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Peshawar 82
Present: Muhammad Alam Khan, J.
GOVT. OF NWFP through Collector Distt. Mardan
and 2 others--Appellants
versus
MUHAMMAD AYAZ and 4 others--Respondents
R.F.A. No. 80 of 2003, decided on 2.5.2008.
Land Acquisition Act, 1894 (I of 1894)--
----S. 4--Acquisition of land by Government--Amount of compensation--Determination of--Notification was issued--Price/compensation prevailing at target date i.e. one year prior to notification will be paid to expropriated land owners--Validity--Expropriated land owners should be paid the compensation and not price of acquired land and location, proximity to road and its future use should always be taken into consideration--Land owners should be paid compensation and not price and one of factors for determining market value would be date of notification u/S. 4 of Land Acquisition Act--Market value of property has always to be determined with respect to location, potentiality and transactions of similar land at time of notification are other factors which must be kept in mind while fixing market value and price--Referee Court has rightly fixed compensation of acquired land alongwith compulsory acquisition charges and simple interest from taking over possession till payment of entire awarded compensation--Judgment and decree of Referee Court is based on sound judicial principles of law and evidence is appreciated in accordance with established principles which calls for no interference--Appeal dismissed. [Pp. 85, 86 & 87] A, B, C, D & E
2000 SCMR 870, 2000 SCMR 1322, 1993 SCMR 1700, PLD 1996 Peshawar 22 & 2000 CLC 99 Karachi, rel.
Mr. Abdul Qadir Khan Khattak, Advocate for Appellants.
Mr. Fazl-ur-Rehman Khan, Advocate for Respondents.
Date of hearing: 2.5.2008.
Judgment
Govt. of NWFP through Collector District Mardan and others have filed this regular first appeal against the judgment and decree of the learned Senior Civil Judge/Judge Land Acquisition Mardan dated 14.2.2002 in Reference Petition No. 6/4 of 1997 through which the learned Referee Court enhanced the compensation of the acquired land of the respondents and fixed the same at the rate of Rs.3500/- per marla with 15% compulsory acquisition charges and 6% simple interest.
No. 342/DK/HVC. The land owners being aggrieved from the Award of the learned Land Acquisition Collector filed a Reference Petition under Section 18 of the Land Acquisition Act, inter-alia, on the grounds that the land acquired from the respondents was a valuable tract of land, was situated on the main Takht Bhai-Takkar road, was amidst the Abadi and the price per marla under no circumstances was less than Rs. 15,000/-. It was also averred that the learned Land Acquisition Collector has awarded a meager compensation i.e. Rs. 846/26 per marla which Award has not been accepted by the respondents-land owners.
On receipt of the Reference Petition, the learned Land Acquisition Judge summoned the appellants who submitted a detailed written statement and out of the pleadings of the parties, the following issues were framed:--
Whether the petitioner has got a cause of action?
Whether the petitioners are estopped from suing?
Whether the petition of the petitioners is not within time?
Whether the petition of the petitioners is bad for non-joinder of necessary parties?
Whether the petition of the petitioners is bad for mis-joinder of necessary parties?
Whether the Award was prepared with the help of revenue record?
Whether the price was fixed according to the price of the surrounding land and mutations?
Whether the acquired land has been acquired for the interest of nation?
Whether the reference petition is not according to law?
Whether this Court has go no jurisdiction?
Whether the Collector has fixed the price of the suit land according to the market value?
Whether the petitioners are entitled for the enhancement?
Relief.
The parties produced their respective evidence as they wished to adduce and the learned Referee Court, after hearing the counsel for the parties and perusing the data available on the record, enhanced the compensation to Rs. 3500/- per marla. Now the Govt. of NWFP and others appellants being aggrieved and dissatisfied from the judgment of the learned Referee Court have filed the instant regular first appeal.
Mr. Abdul Qadir Khattak, learned counsel for the appellants submitted that the preliminary Notification in this case was issued on 01.4.1996 and the learned Referee Court was duty bound to have considered the one year average commencing from 01.4.1995 to 01.4.1996 regarding the Shah Nehri type of land as the acquired land was entered in the revenue record, as Shah Nehri. It was also argued that the learned Land Acquisition Collector has rightly taken into consideration the one year average of Shah Nehri type of land in fixing the compensation at the rate of Rs.864.26 per marla. The learned Referee Court was not justified in enhancing the compensation to Rs.3500/- per marla.
It was also argued that there was no basis or evidence available on the record warrant the enhancement of compensation and the land owners-respondents were not entitled to the enhanced compensation.
On the other hand, Mr. Fazal-ur-Rehman Khan, learned counsel appearing on behalf of the expropriated land owners-respondents submitted that the acquired piece of land was situated on the main Takht Bhai-Takkar road, was amidst the Abadi and the same was commercial in nature besides being highly potential in value and the learned Referee Court has rightly enhanced the compensation to
Rs. 3500/- per marla alongwith 15% compulsory acquisition charges and 6% simple interest from the date of taking over possession till the final payment of the compensation.
I have gone through the record of the case and have considered the respective contentions of the learned counsel for the parties.
Perusal of the record reveals that the preliminary notification under Section 4 of the Land Acquisition Act was issued in this case on 01.4.1996, so, naturally the price/compensation prevailing at the target date i.e. one year prior to the notification ibid will be paid to the expropriated land owners. In this respect, the respondents-land owners have produced Fazal-ur-Rehman, Patwari Halqa Takkar, District Mardan as PW-1 who has placed on record one year average statement of the entire village Takkar (Ex.P.W.1/3). This one year average is from 13.7.1997 to 14.7.1998 and the price per marla determined through this average comes to be Rs. 16942/67. Similarly, one year average from 2.4.1995 to 30.4.1996 (Ex.C.W.1/1) was also placed on record and according to this average the price per marla comes to be Rs.3199/78. CW-1 has also prepared the one year average commencing from 2.4.1995 to 1.4.1996 regarding the sale of various tracts of land which is Ex.C.W.1/2 and according to which the price per marla comes to be Rs.8020/76. The two averages Ex.C.W.1/1 and Ex.C.W.1/2 are in close proximity to an year prior to the publication of notification under Section 4 of the Land Acquisition Act. PW-1 has also placed on record the site-plan of the acquired tract of land Ex.P.W.1/6 and the Aks Shajra Kistwar Ex.P.W.1/5. The site-plan of the acquired piece of land would show that the suit land is a levelled tract situated on Takht Bhai-Takkar road, District Mardan and is not only commercial in nature but also building sites. Statement of Lal Sharif Khan, Advocate was recorded as PW-2 and he has also given the location and high potentiality of the acquired land. Statement of Muhammad Ayaz petitioner was recorded as PW-4 who has described the location of land and its commercial nature. These witnesses were subjected to a very lengthy cross-examination but nothing has been squeezed out in the cross-examination to shatter their testimony. The respondents produced Dil Said Patwari Halqa Swabi Scarp and Tawas Khan SDO Swabi Scarp as RWs-1 & 2 respectively. In the cross-examination both of these witnesses admitted that the acquired tract of land is situated on the main mettaled road known as Takht Bhai-Takkar road. It was also admitted by these witnesses that the major portion of frontage of the disputed Khasra numbers, which touches the said road, has been acquired from the respondents-land owners. So, in this situation the high potential nature of the suit land is proved from the record of the case. The contention of the learned counsel for the appellants, that the acquired land is Shah Nehri as recorded in the revenue record and it should have been assessed by the learned Land Acquisition Judge as Shah Nehri, is without any substance for the reason that the land may be recorded as Shah Nehri but the Court has to take into consideration the location of the land, the high potentiality of the same and its proximity to road to find out as to whether it can be utilized for building purposes. One year average is not always a true criterion for determination of the market value of the acquired land.
It is repeatedly held by the superior Courts that the expropriated land owners should be paid the compensation and not the price of the acquired land and the location, proximity to road and its future use should always be taken into consideration as held in the cases of Province of Punjab through Collector Attock Vs. Engineer Jamil Ahmad Malik and others (2000 SCMR 870) and Collector, Land Acquisition, Mardan and others. Vs. Nawabzada M. Ayub Khan and others (2000 SCMR 1322).
Another principle of law is that the land owners should be paid the compensation and not the price and one of the factors for determining market value would be the date of notification under Section 4 of the Land Acquisition Act. Market value of the property has always to be determined with respect to the location, potentiality and the transactions of similar land at the time of notification under Section 4 of the Land Acquisition Act are other factors which must be kept in mind while fixing the market value and the price what a willing purchaser would pay to a willing seller should always be kept in mind as held in the cases of Pakistan Burmah Shel Ltd. Vs. Province of NWFP and three others (1993 SCMR 1700), Muhammad Saeed and 78 others Vs. Collector Acquisition Land, Mansehra and 3 others (PLD 1996 Peshawar 22) and Govt. of Sindh through Deputy Commissioner, District Dadu and another. Vs. Ramzan and others (2000 CLC 99 Karachi).
So, in these circumstances and in view of the dictum of the apex Court the learned Referee Court has rightly fixed the compensation of the acquired land to be Rs.3500/- per marla alongwith 15% compulsory acquisition charges and 6% simple interest from the date of takings over the possession till the payment of the entire awarded compensation.
The judgment and decree of the Referee Court is based on sound judicial principles of law and the evidence has been scanned strictly in accordance with the established principles of appreciation of evidence which calls for no interference.
In view of the facts and circumstances of the case narrated above, there is no merit in this appeal which is hereby dismissed with no order as to costs.
(Sh.A.S.) Appeal dismissed.
PLJ 2009 Peshawar 87
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J
Malik MUHAMMAD AFZAL KHAN--Petitioner
versus
MIR HAWAS KHAN and 8 others--Respondents
Civil Revision No. 307 of 2005, decided on 15.9.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision petition--Suit for pre-emption, dismissal by Courts below--Assailed--Petitioner as well as informer and witnesses of Talb-e-Isshad who were allegedly present on spot has negated factum of time with respect to alleged performance of Talb-e-Ishhad--Therefore, plaintiff has failed to perform Talb-e-Muwathibat in accordance with law--No contiguity with remaining Khasra numbers in dispute--Thus petition has got contiguity only with one Khasra--Courts below have rightly concluded that plaintiff had failed to prove his superior right of pre-emption against defendants/respondents and correctly dismissed his suit--Petition dismissed. [P. 89] A & B
Khawaja Nawaz Khan, Advocate for Petitioner.
Mr. Saleemullah Khan Ranazai, Advocate for Respondents.
Date of hearing: 4.7.2008.
Judgment
Malik Muhammad Afzal Khan, petitioner herein, through the instant revision petition filed under Section 115 CPC, has challenged the concurrent judgments/decrees dated 19/1/2005 and 26/4/2005 passed by the learned Civil Judge-VI and learned Additional District Judge-III Bannu respectively, vide which his suit for pre-emption was dismissed.
Briefly stated, facts of the case giving rise to this revision petition are that the petitioner/plaintiff had filed a pre-emption suit against the defendants/respondents in respect of the suit property detailed in the plaint. According to the averments made in the plaint, the plaintiff has alleged that one Sajjad Ali Khan son of Bahader Nawaz Khan was originally the owner of the suit property who sold it to Defendants/Respondents No. 1 to 4 (Predecessors of Respondents No. 5 to 8) through mutation No. 90 dated 22/5/2001 and in order to defeat the pre-emptive rights of the plaintiff, an exaggerated amount of Rs. twelve lacs and fifty thousands was entered in the said mutation, though factually its value was not more than Rs. fifty thousands. The suit was based on the basis of superior right of pre-emption, co-sharership, contiguity, participator in immunities and appendages, while the defendants were alleged to have got no such qualifications. The plaintiff alleged that after getting knowledge of the suit transaction on 15/9/2001 at 8.00 a.m. in his Hujra in presence of Muhammad Rahim and Faridullah Khan through Informer Sher Afzal Khan, he there and then in presence of the said witnesses declared his intention to pre-empt the suit property and, thereafter, on 17/9/2001 issued separate notices to all the defendants through registered post AD for admitting his claim but in vain and hence the suit.
When summoned, the respondents contested the suit by filing written statement and the divergent pleadings of the parties gave rise to the framing of eight issues including relief. The learned trial Judge after recording pro and contra evidence and hearing the parties dismissed the suit of the plaintiff, where against his appeal also met the same fate, vide judgments and decrees mentioned above, hence this revision petition.
Learned counsel for the plaintiff/petitioner argued that the impugned judgments and decrees of the Courts below are the result of mis-reading and non-reading of evidence brought on record. He contended that the dismissal of the suit of the plaintiff on the ground of non-performance of requisite Talbs was illegal, as the plaintiff has brought on record sufficient evidence wherein his witnesses have categorically affirmed his assertion. He argued that the plaintiff has brought sufficient documentary evidence on record to prove his superior right of pre-emption qua the defendants, but the learned lower Courts have failed to properly appreciate the same in its true prospective and wrongly non-suited him. Lastly, he urged that the minor discrepancies in statements of the PWs could not have been made basis for dismissal of suit of the plaintiff/petitioner.
On the other hand, learned counsel for the respondents/defendants supported the impugned judgments and decrees of the Courts below on almost the same grounds enumerated therein.
I have gone through the entire record of the case and considered the valuable arguments of learned counsel for the parties.
Perusal of the record indicates that the plaintiff in order to prove the factum of Talbs was examined as PW-9 where he has failed to mention the time when he was informed about the suit transaction and when he declared his intention to pre-empt the suit transaction. Likewise, the witnesses of Talb-e-Muwathibat and Talb-e-Isshad had not disclosed the time of making Talb-e-Muwathibat by the plaintiff. Though the plaintiff in the plaint as well as in the notices Ex.PW.9/1 to Ex.PW.9/8 has mentioned the time of making Talb-e-Muwathibat as 8.00 a.m., but he is negated in this behalf by the Informer (PW.6) in his cross-examination. Further more, during the Court statement, the petitioner as well as informer and the witness of Talb-e-Isshad who were allegedly present on the spot has negated the factum of time with respect to alleged performance of Talb-e-Isshad. Therefore, the plaintiff has failed to perform Talb-e-Muwathibat in accordance with law.
With regard to the claim of superior right of pre-emption of the plaintiff to the suit property, the record reveals that the transaction had taken place in Mouza Nar Sher Mast, while according to the statement of Patwari Halqa examined as PW.4, the plaintiff is owner of property situated vide Khasra Nos. 221 and 219 which is contiguous to Khasra No. 138 of the suit property, while he has got no contiguity with the remaining khasra numbers indispute. Thus the petitioner has got contiguity only with Khasra No. 138. In these facts and circumstances of the case, both the Courts below have rightly come to the conclusion that the plaintiff had failed to prove his superior right of preemption against the defendants/respondents and correctly dismissed his suit.
Learned counsel for the petitioner failed to point out any illegality, irregularity, mis-reading, non-reading of evidence or mis-application of law so as to warrant interference in the concurrent judgments and decrees of the Courts below which are accordingly maintained as the same are based on established principles of appreciation of evidence and the revision petition is consequently dismissed, leaving the parties to bear their own costs.
Above are the reasons for my short order of even date.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Peshawar 90 (DB)
Present: Shahji Rahman Khan & Jehanzaib Rahim, JJ.
AKRAM SAID--Petitioner
versus
Mst. SAFIA and 2 others--Respondents
W.P. No. 899 of 2008, decided on 2.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for conjugal rights was dismissed, while the suit of maintenance was decreed--Challenged through writ petition--Excessive or exorbitant by any stretch of imagination--Exercise of extraordinary equitable discretionary constitutional jurisdiction--Validity--Family Court after taking into consideration all essential aspects of the case decreed the suit of the wife for maintenance allowance @ of Rs. 2000/- per month for wife from date of institution of the suit and onward which was affirmed in appeal, cannot be said to be excessive or exorbitant by any stretch of imagination--Orders of Courts below being thus free from any jurisdictional error are not open to any interference in exercise of extraordinary equitable discretionary constitutional jurisdiction of High Court--Petition was dismissed. [P. 91] A
Mr. Saifullah Khan Khalid, Advocate for Petitioner.
Date of hearing: 2.2.2009.
Judgment
Shahji Rehman Khan, J.--Akram Said, petitioner herein, through the instant writ petition has assailed the judgment and decree dated 27.6.2006 in Suit Nos. 31/FC and 33/FC of 2006 of the learned Family Judge at Totally, District Buner, whereby he while dismissing the suit of the petitioner for conjugal rights, decreed the suit of Respondent No. 1 to the extent of recovery of maintenance at the rate of Rs. 2000/- per month from the date of institution of the suit and rest of the suit of respondent/wife was dismissed. The appeal of the petitioner there against was too dismissed by the learned Additional District Judge at Daggar District Buner, vide judgment dated 14.3.2008. Hence this constitutional petition.
Mr. Saifullah Khan Khalid, Advocate, learned counsel for the petitioner, vehemently argued that Respondent No. 1 being a disobedient wife had left her house with her own sweet will and residing with her son namely Ajmal Said. He next submitted the impugned judgment and decree in respect of the maintenance amount and refusal of petitioner's claim is against law and facts available on the record. He further argued that keeping in view the eighty years age of the petitioner and his financial status, it is not possible for him to shoulder the burden of Rs.2000/- per month as maintenance of Respondent No. 1 and that the learned Family Judge by ignoring this essential aspect of the case, has failed to exercise the jurisdiction so vested in him.
As against that, the learned counsel appearing on behalf of the respondent/wife, on pre-admission notice, contended that the learned Courts below after careful consideration of evidence brought on record, maintained the claim of the respondent/wife vis-a-vis the maintenance and as such the impugned judgment and decree being free from any infirmity muchless jurisdictional, is not open to any interference the exercise of constitutional jurisdiction of this Court.
We have gone through the material brought on record carefully and considered the submissions of the learned counsel for the parties.
A perusal of the material available on the record and the impugned judgment and decree would reveal that the learned Family Judge after taking into consideration all essential aspects of the case decreed the suit of the respondent/wife for maintenance allowance at the rate of Rs.2000/- per month for the respondent/wife from the date of institution of the suit and onward which in the circumstances of the case was affirmed in appeal by the appellate Court, vide judgment dated 14.3.2008, cannot be said to be excessive or exorbitant by any stretch of imagination. The impugned judgments and decrees of both the Courts below being thus free from any jurisdictional error are not open to any interference in the exercise of extraordinary equitable discretionary constitutional jurisdiction of this Court.
For the reasons discussed above, this petition being without force and substance is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 92
Present: Shahji Rahman Khan, J.
MOTABAR KHAN--Appellant
versus
MUBARAK JAN--Respondent
R.F.A. No. 38 of 2000, decided on 21.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Regular First Appeal--Suit for recovery from respondent, decreed--Assailed--Redressal of grievance--Qarz-e-Hasana--Failed to produce any documentary amount--Not made any witness of transaction from the locality where the parties were residing nor he has obtained any receipt of payment--Witnesses have contradicted--Validity--Despite of claim of the appellant that in three installments payment was made to respondent but neither he has given the amount nor date and time of each installment--High Court had gone through the evidence of the parties and found no misreading or non-reading of evidence or any patent illegally or legal infirmity in impugned decree of the Court below--Civil Court had acted in accordance with law and proper appreciation of evidence--Held: In absence of any misreading, non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect--Findings of the Courts below could not be interfered with by High Court--Appeal was dismissed. [P. 94] A & B
Mr. Atlas Khan Dagai, Advocate for Appellant.
Mian Fazal Amin, Advocate for Respondent.
Date of hearing: 21.11.2008.
Judgment
This Regular First Appeal is directed against the judgment/decree dated 13.04.2000 passed by the learned Civil Judge/Illaqa Qazi, Dir Bala, whereby the suit of appellant-plaintiff namely, Motabar Khan son of Wazir Muhammad, resident of Shagga Srai, Tehsil & District Dir was dismissed.
Rs. 12,75000/- from respondent-defendant namely, Mubarak Jan, who is also maternal uncle of the appellant-plaintiff, which he had given to the respondent-defendant as "Qarz-e-Hasana" in Saudi Arabia in the shape of 75000 "Saudi Rayal" with the promise/undertaking that respondent-defendant will pay/return the said amount in Pakistan in his village Shagga Srai, District Dir. The petitioners-defendant contested the suit by filing written statement and because of divergent pleadings, both the parties were put to trial on various issues. Evidence pro and contra recorded. The conclusion of the trial resulted in impugned judgment and decree against the appellant-plaintiff. Not contented therewith, the appellant-plaintiff has approached this Court through the instant appeal for the redressal of his grievances.
The learned counsel appearing for the appellant vehemently contended that the learned trial Court has not appreciated the evidence produced by the appellant-plaintiff, which has been discussed while giving findings under Issue No. 2 of the judgment has committed an illegality in the impugned judgment and decree of the learned trial Court by not taking into consideration the entire evidence of the appellant-plaintiff; that the learned trial Court has also not given any ground/reason for discarding the evidence of the appellant and that the judgment and decree of the learned trial Court is against the law and fact, therefore, is liable to be reversed.
As against that, learned counsel for the respondent submitted that neither the appellant and respondent were residing in the same house/Dehra nor the respondent had received any amount from the appellant in Saudi Arabia as "Qarz-e-Hasana"; that the appellant has badly failed to produce any documentary evidence regarding the payment of such like huge amount to the respondent; that the witnesses i.e. Muhammad Qamar and Haji Badshah Gul were highly interested being close friends of the appellant, their evidence cannot be relied upon and that the learned trial Court has rightly dismissed the suit of the appellant, therefore, by maintaining the orders/findings of the learned trial Court, this appeal be out rightly rejected with costs.
I have considered the arguments of learned counsel for both the parties and have gone through the record with their valuable assistance. It is apparent from the record that according to the version of appellant, he had given the huge amount of Rs. 12,75000/- to the respondent and also claimed that he had given the said amount to the respondent in three installments but has failed to produce/give the dates thereof, on which, he paid the amount to the respondent. He also admitted that he has not made any witness of the transaction from the Hujra, where both the parties were allegedly residing nor he has obtained any receipt of the payment of the said amount. Haji Qamar Din (PW-2) and Badshah Gul (PW-3) also claimed that the appellant paid the amount to the respondent on three different occasions. But both these witnesses have contradicted each other on material points. In his examination-in-chief, Haji Qamar Din (PW-2) has not stated that payment was made in presence of Badshah Gul (PW-3) and in turn Badshah Gul (PW-3) in the End of his cross-examination has stated that he is only witness to admission of respondent regarding payment to him by the appellant-plaintiff. Despite of claim of the appellant that in three installments payment was made to respondent but neither he has given the amount nor date and time of each installment.
In the impugned judgment and decree of the lower Court, evidence of either party has been discussed in detail and the findings reached by the lower Court are justified in the facts and circumstances obtaining in the case and it cannot be maintained that the conclusion arrived at by the Court below is perverse, arbitrary or illegal. I have gone through the evidence of both the parties and find no misreading or non-reading of evidence or any patent illegally or legal infirmity in the impugned judgment and decree of the Court below. The Court has acted in accordance with law and proper appreciation of evidence brought on record. In absence of any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect, the findings of the Court below could not be interfered with by this Court.
For what has been discussed above, the appeal having no merits and substance is hereby dismissed with no order as to costs.
(R.A.) Appeal dismissed.
PLJ 2009 Peshawar 94
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan and syed Yahya Zahid Khan Gillani, JJ.
GHULAM BASHEER and 2 others--Petitioners
versus
GENERAL MANAGER (LM&IS) N.H.A., ISLAMABAD
and 8 others--Respondents
W.P. No. 296 of 2008, decided on 17.7.2008.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 9 & 18--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Award of land acquisition collector--No notice was envisaged--Limitation for filing of a reference against award--Principle of law--Whenever an order is passed at the back of party and without notice to him, then mischief of limitation will not come in the way of litigant. [P. 95 & 96] A
Award--
----Limitation--Award was announced by Land Acquisition Collector on 14.6.2008 and expropriated land owners filed reference on 1.11.2008--Period of limitation--Reference was well within the period of limitation of six months from the date of announcement of the award.
[P. 95] B
Judicial Officer Order--
----Applicability of mind--Validity--Not applicability of the mind of a prudent judicial officer who is Judge between acquiring department of government and the expropriated land owners and order is patently illegal and thus liable to be struck down. [P. 95] C
Land Acquisition Act, 1894 (I of 1894)--
----S. 9--No notice was issued--Order was passed in ignorance of a party and without notice--Void ab-initio and mischief of limitation--Validity--Land Acquisition Collector is a judge between ex-proprietary land owners and government as well as acquiring authority--Scope of--Land Acquisition Collector must act within the four corners of his jurisdiction as conferred upon him by provisions of Land Acquisition Act, and moment he skips over his power and travels beyond his jurisdiction--Held: Order becomes corum non judice and liable to be struck down--Petition was allowed.
[P. 95] D & E
Mr. Muhammad Waheed Anjum, Advocate for Petitioner.
Date of hearing: 17.12.2008.
Judgment
Muhammad Alam Khan, J.--Learned counsel for the petitioner submits that under Section 18 of the Land Acquisition Act 1894, the law has provided two period of limitations for filing of a reference petition against the award of Land Acquisition Collector if the ex-proprieted land owners had not accepted the award; Firstly that if the land owners had participated in the acquisition proceedings, Reference has to be filed within six weeks of the passing of the Award. If the land owners had not participated in the land acquisition proceedings, then the expropriated land owners had to file application within six months from the date when the notice of the award is served upon them.
We have gone through the award of the Land Acquisition Collector and it transpires that no notice as envisaged under Section 9 of the Land Acquisition Act, 1894 has been served on the petitioners. The persons who were served have been enumerated from Serial Nos. 1 to 22 in the Award, and names of the petitioners do not figure in the Award. Thus as the cardinal principle of law is that whenever an order is passed at the back of the party and without notice to him, then the mischief of limitation will not come in the way of the litigant.
In the instant case, as there is a legal question involved, we do not consider necessary to put the respondents on notice.
We have gone through the available record annexed with the petition. The Award was announced by the Land Acquisition Collector on 14/6/2008 and expropriated land owners filed reference petition on 1.11.2008. Calculating the period of limitation, the said reference petition was well within the period of limitation of six months from the date of the announcement of the Award. It is also noted that by a very cursory and terse order, the learned Acquisition Collector/Respondent No. 9 has non-suited the petitioners and thus, deprived them of a very valuable right. For the sake of brevity, the order of the learned Land Acquisition Collector is reproduced below:
"Received after lapse of time of limitation of six weeks, hence dismissed as time barred".
This is not an order of a Judicial Officer. It does not show the applicability of the mind of a prudent Judicial Officer who is Judge between the acquiring Department of the Government and the expropriated land owners and the order is patently illegal and thus, liable to be struck down.
When an order is passed in ignorance of a party and without notice to him, the same is void ab initio and the mis-chief of limitation will not come in his way as held in the cases reported as Corporation of Calcutta Vs. A.C Pal (AIR 1931 Calcutta page 506) and Mst. Fatima Bibi Vs. Nur Muhammad Shah & others (PLD 1951 Lahore 147).
The scheme of the Land Acquisition Act, 1894 shows that the Land Acquisition Collector is a Judge between the Ex-proprietary land owners and the Government as well as the Acquiring Authority and he will have to act in a judicial manner strictly following the provisions contained in the Act ibid. He must act within the four corners of his jurisdiction as conferred upon him by the provisions of the said Act and the moment he skips over his power and travels beyond his jurisdiction, his order becomes corum-non-judice and is liable to be struck down.
Resultantly, this writ petition is allowed, the impugned order is set aside and the lis i.e. the Reference petition of the petitioner is sent back to the learned Acquisition Collector with the direction to refer the matter to the Court of competent jurisdiction for determination of the market value and ancillary matters as enunciated in the reference petition of the petitioner dated 1/11/2008.
(R.A.) Petition allowed.
PLJ 2009 Peshawar 97 (DB)
[Circuit Bench Dera Ismail Khan]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ.
Dr. QAMAR ZAMAN KHAN, INCHARGE CIVIL HOSPITAL SERAI NAURANG LUKKI--Appellant
versus
MUJEEB-UR-REHMAN SHAMI, CHIEF EDITOR DAILY PAKISTAN, ISLAMABAD and others--Respondents
R.F.A. No. 7 of 2004, decided on 14.2.2008.
Damages--
----Onus to prove--Requirement--Nothing was brought on record that the alleged action was either libelous or was based on ill will an action for damages the plaintiff had to prove the good reputation and the alleged action damaging such reputation, which onus could not be discharged by the plaintiff. [P. 101] A
Damages--
----Tried to snatch the official record and harassed the hospital staff, took photographs and tried to criminally intimidate the plaintiff--Fair comments--Action was resulted damages of reputation of plaintiff as story was published in newspaper--Statements were not based on any ill will or malafide intention but rather were fair comments on the prevailing situation in the hospital so the statement injured with respect to treatment meeted out to the victim would have priority over the entire evidence because he was the person who suffered injury and because of the alleged mal-treatment and not providing the medical care in time to him, resulted in publication of the alleged news items, which in no way were scandalous, but was the voice of a student showing his grievance, so the fair comments and raising the voice against the mal-treatment will not authorize a person to bring an action for damages--Appeal dismissed. [P. 101] B
Principle of Appreciation--
----Trial Court is just, legal and in consonance with established principle of appreciation of evidence, which calls for interference and same, is maintained. [P. 102] C
Mr. Illauddin, Advocate for Appellant.
Date of hearing: 14.2.2008.
Judgment
Muhammad Alam Khan, J.--Dr. Qamar Zaman Khan the then Incharge Civil Hospital Serai Naurang Lukki presently Medical Officer, District Headquarters Hospital Bannu has filed this regular first appeal against Mujibur Rehman Shami and others under the provisions of Order 41 CPC challenging the judgment and decree of Senior Civil Judge, Lakki Marwat in Civil Suit No. 179 instituted on 28.6.2001 decided on 27.3.2004 vide which the suit filed by the appellant for the recovery of Rs. ten crore as damages was dismissed with costs.
Briefly narrated the facts, of the case are that the appellant filed a suit for the recovery of damages against the respondents on the ground that he alongwith proforma respondents were posted in Civil Police Hospital Serai Naurang and were performing their duties to the utmost satisfaction. It is alleged that on 17.5.2001 the Principal of Higher Secondary School Serai Naurang alongwith the staff and Umar Khan President of All Teachers Association brought a student namely Irfanullah son of Gula Mir resident of Shahtora Tekhti Khel in injured condition for treatment to the hospital who was treated by the plaintiff and proforma respondents. Full treatment was given to the patient but inspite of that Defendants/Respondent Nos. 1 and 2 and
Defendants No. 3 and 4 published two items on 18.5.2001 and 19.5.2001 respectively in their daily newspaper Kainat' in which certain baseless and uncalled for accusations were leveled against the plaintiff and the proforma defendants. It was reported in the news items that the staff of the hospital was not on duty. The hospital rooms were locked and the patient was not properly treated. According to the plaintiff this news item has lowered him down in the estimation of the general public and more so, that instead of denying the news items, Defendant/ Respondents No. 1 to 4 on 4.6.2001 alongwith some unknown persons entered the hospital, tried to snatch the official record and harassed the hospital staff, took photographs and tried to criminally intimidate the plaintiff and other staff of the Hospital. It was averred that as this action has resulted damage of the reputation of the plaintiff, as the news story was also published in the dailyKhabrain' dated 5.6.2001 and daily
`AAJ' of the same date. These news items were published and wide circulation was given to it, thus, the plaintiff claimed the aforesaid damages from the defendants.
Defendants were summoned who submitted their written statements. Out of the pleadings of the parties the following issues were framed:--
ISSUES
Whether plaintiffs have got a cause of action?
Whether suit of plaintiffs is bad in its present form?
Whether suit of plaintiffs is bad for mis-joinder and nonjoinder of necessary parties?
Whether suit of plaintiffs is time barred?
Whether suit of plaintiff is incomplete as no cogent reason for damages has been shown, therefore, is liable to be rejected under Order VII, Rule-11 CPC?
Whether Defendants No. 1 & 2 in newspaper "The Pakistan" and Defendants No. 3 & 4 of daily "The Kainat" on 19.5.2001 published a false, self made news based on malafide against the plaintiffs and proforma defendants that employees and the officials of Civil Hospital Seria Naurang were not present at the duty and the Hospital was locked when injured Irfanullah son of Gulamir was brought to the hospital for medical treatment on 17.5.2001?
Whether the Defendants No. 1 to 4 & 5 to 10 after receiving a legal notice from the defendants entered in the Civil Hospital Seria Naurang on 4.6.2001 and there they harassed plaintiffs and also threatened them of dire consequences for issuing legal notice?
Whether defendants again on 5th, 7th, 8th & 10th of June 2001 published self made, false and malafide statements against the plaintiffs?
Whether all the news published against the plaintiffs and proforma defendants and the harassment made by the defendants caused damages to the good reputation of the plaintiffs and also caused mental agony and anguish and if so what would be the proper amount of compensation/ damages to be paid?
Whether plaintiff is entitled for the decree as prayed for?
Relief.
The parties produced their respective evidence as they wished to adduce and the learned Court of Senior Civil Judge Lakki Marwat after hearing the arguments of the counsels for the parties and scanning the evidence on record, dismissed the suit of the plaintiff vide judgment and decree in Suit No. 174/1 decided on 27.3.2004 and hence the present appeal.
As the counsels for the parties were on strike and they opted not to appear before this Court. So Allauddin attorney for the appellant and Fazle Rehman clerk of the counsel for the respondents submitted detailed written arguments which are placed on the record.
It was submitted in the written arguments that the alleged action was tortuous and also libelous, in which baseless and uncalled for allegation have been leveled against the appellant. It was submitted that Irfanullah student who got injured at the hands of his class fallow was shifted to the Hospital Serai Naurang. He was given full treatment in the hospital and he was also attended by the doctors on duty namely Abdul Ghaffar, Medical Officer PW-3. The injured was also then taken to the operation theater. He was then referred to DHQ. Hospital Bannu and the medico legal report Ex. PW 3/2 was prepared which show the timely treatment and care provided to the appellant.
It was submitted that after providing full treatment to the injured, the publication of the scandalous item was without justification the same was uncalled for and was based on malice and personal grudge, and thus, the plaintiff/appellant was entitled to the damages as prayed for. Reliance was placed on the case of Abdul Ghafoor Vs. Syed Jawed Hussain Jaffrey and another reported in (PLD 2006 Karachi 691) and Altaf Gauhar vs. Wajid Shamsul Hasan and another reported in (PLD 1981 Karachi 515) and also on the case of Muhammad Ismail Vs. Dr. Muhammad Afzal Mirza reported in (1999 CLC page 958).
On the other hand Syed Zafar Abbas Zaidi, representing Respondents No. 2, 4, 6, 8 and 9 submitted in the written arguments that the plaintiff have not proved on the record by producing cogent and convincing evidence to the effect that any mal treatment have been meted out to the plaintiff. It was also submitted that nothing scandalous or malicious has been printed or published against the appellant. So the alleged defamation has not been proved on the record of the case. It was submitted that the plaintiff in order to prove his case had to prove firstly the publication of the libelous and defamatory statements in the newspaper and also it has to be established on the record that the same was for ulterior motive in order to damage the reputation of the plaintiff. It was submitted that on this important aspect of the case, no evidence has been led by the plaintiff/appellant in order to establish on the record the alleged defamation or malicious action. Reliance in this respect was placed on the case of Sheikh Muhammad Rashid Vs. Majid Nizami, Editor-in-Chief, The Nation and Nawa-e-Waqat, Lahore and another (PLD 2002 SC page 514) and Messrs Chapal Builders Vs. Editor Daily Dawn and others reported in (2004 CLC page-344).
We have gone through the record of the case and have scanned the evidence on the file produced by the plaintiff in order to establish the allegations contained in the news items plaintiff has to establish the ill will and malice on the part of the defendants/ respondents the entire evidence is silent in this respect. The plaintiff produced Medical Officer Civil Police Hospital Serai Naurang Dr. Abdul Ghaffar and Saaduddin Medical Technician of the same hospital. Umar Khan S.V. Teacher GHSS Serai Naruang also appeared a PW1.
While scanning the evidence of these PWs nothing was brought on record that the alleged action was either libelous or was based on ill will an action for damages the plaintiff has to prove the good reputation and the alleged action damaging this reputation, which onus could not be discharged by the plaintiff. The case law relied upon by the counsel for the appellant are not relevant to the facts and circumstances of the present case.
The statement of injured Irfanullah son of Gulamir recorded as DW2 is of immense importance and according to his statement when he was brought to the Hospital neither the doctor nor the other staff was on duty and on repeated calls by the relatives of the patient, the duty doctor came very late the statement of Qadratullah Journalist Ex.DW 1/1 was made by Irfanullah injured himself. Ex.DW « is another statement which was given to the media and the same was published in the newspaper. These statements of the injured Irfanullah DW2 was the basis for publication of the news item. These statements were not based on any ill will or malafide intention but rather were fair comments on the prevailing situation in the hospital so the statement injured with respect to treatment meeted out to Irfanullah the victim/patient would have priority over the entire evidence because he was the person who suffered injury and because of the alleged mal-treatment and not providing the medical care in time to him, resulted in publication of the alleged news items, which in no way were scandalous, but was the voice of a student showing his grievances, so the fair comments and raising the voice against the mal-treatment will not authorize a person to bring an action for damages.
The judgment of the learned trial Court is just, legal and in consonance with the established principles of appreciation of evidence, which calls for no interference and the same, is maintained.
In view of the facts and circumstances of the case narrated above, there is no force in this appeal which is dismissed with no order as to costs.
(N.I.) Appeal dismissed.
PLJ 2009 Peshawar 102
Present: Shah Jehan Khan Yousafzai, J.
GHAZI MARJAN etc.--Petitioners
versus
ALAM GUL etc.--Respondents
C.R. No. 865 of 2008, decided on 20.2.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 148--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Limitation--Redemption of suit--Concurrent finding of Courts below whereby the petitioners were non-suited for grant of decree for redemption--Suit for possession through redemption of land mortgaged was dismissed--Appeal was also dismissed--Assailed--Since creation of mortgage no rent or part of usufruct of the suit land was received by mortgagor--Validity--Suit for recovery of possession of immovable property by mortgagor against mortgagee for redemption would be sixty years commencing mortgagee from the date of right to redeem or to recover possession--Held: Mortgagor failed to redeem the disputed land and lapse of sixty years from the date of accrual of right of redemption--Suit by mortgagor beyond sixty years when there is no acknowledgement in the said period--Mortgagor shall be debarred to seek decree for possession through redemption--Courts below have rightly non-suited the petitioners for grant of redemption decree--Petition was dismissed.
[Pp. 105 & 108] A & G
Administration of Justice--
----Civil litigation--Barred by time--Burden always lies upon the plaintiff to establish among other thing that the suit is well within time--If plaintiffs fail to establish that the suit is within time, he cannot be granted decree being barred by time. [P. 105] B
Limitation Act, 1908 (IX of 1908)--
----S. 28 & Art. 144--Limitation--Vires of--Right of property would be extinguished--Adverse possession for more than 12 years--Whereunder on the basis of adverse possession for more than 12 years, no suit for possession could be entertained was declared repugnant to injunction of Islam. [P. 105] C
Limitation Act, 1908 (IX of 1908)--
----S. 28 read with Art. 144--Repugnant to injunction of Islam--Declared after 31.8.1991--Held: No decree for declaration on the basis of adverse possession or acquiring prescription could be entertained.
[P. 105] D
1991 SCMR 2063.
Adverse Possession--
----Property of time barred mortgage--Redemption after lapse of sixty years--Validity--Mortgagor would be barred to approach the Court for possession through redemption after lapse of sixty years but despite the inability the mortgagor shall still be owner and if he succeeded in getting possession of property of time barred mortgage his possession could not be disturbed on the ground that opposite side had matured his title through adverse possession or prescription. [P. 106] E
Limitation Act, 1908 (IX of 1908)--
----Art. 148--Limitation--Right to redeem--Limitation of sixty years shall run from that date or period--Period fixed for redemption--Declared repugnant to injunction of Islam--No suit for redemption or to recover possession could be brought against mortgagee after sixty years from date of accrual of right to redeem or recover possession--Validity--When a mortgage is created upon an immovable property and there is no time fixed for its redemption, the mortgagor get the right to redeem from the very first day and if some other date or period is fixed for redemption then the limitation of sixty years shall run from that date or period. [P. 107] F
PLD 2003 SC 425, 2007 SCMR 480 & PLD 2002 Pesh. 92, rel.
Haji Muhammad Zahir Shah, Advocate for Petitioners.
Date of hearing: 20.2.2009.
Order
This Revision Petition is directed against concurrent findings of two Courts below whereby the petitioners were non-suited for grant of decree for redemption.
Facts in brief are that petitioners/plaintiffs filed a suit for possession through redemption of the land mortgaged to the predecessor of respondents in the year, 1886-87 for a sum of Rs. 278/50. It is averred in the plaint that the disputed property was originally owned by one Mst. Mansoba who mortgaged it to the predecessor-in-interest of plaintiffs-petitioners and defendants-respondents. The petitioners-plaintiffs purchased the title of the suit land through Mutation No. 146 attested on 29.8.1997 from the successors of original owner/mortgagor Mst. Mansoba. After purchase, some of the petitioners-plaintiffs alienated some portion of the said purchased land already mortgaged to Nawab Khan, petitioner-plaintiff No. 8 through Mutation No. 155 attested on 20.3.1999. Claim of the plaintiffs is that since they have replaced actual mortgagor and the defendants-respondents are in possession of the land as mortgagee, therefore, they prayed for decree for possession through redemption. The suit was contested by the respondents-defendants through written statement and the trial Court framed five issues including the relief. After recording pro and contra evidence of the parties, the trial Court vide judgment and decree dated 27.9.2006 dismissed the suit of petitioner-plaintiffs which was also concurred by the Appellate Court through judgment and decree dated 10.7.2008.
I have heard the learned counsel for the petitioners who contended with vehemence that since the petitioners have purchased the mortgage title through Mutation No. 146 attested on 29.8.1997 which amounts to acknowledgment and the period of limitation would be counted from the date of attestation of mutation, noted above. The learned counsel relied upon PLD 2003 SC 425 (Nawaz Ali Khan and others vs. Nawabzada and others), 2007 SCMR 480 (Durrani and others vs. Hamidullah Khan and others) and PLD 2002 Peshawar 92 (Baidullah Jan and others vs. Hawas Khan and others).
This is undisputed fact that original full owner of the suit land Mst. Mansoba mortgaged the suit land to the defendants-respondents in the year, 1886-87 with possession. This is also not disputed that since creation of mortgage no rent or part of usufruct of the suit land was received by the mortgagor till institution of the suit. Suit for redemption is governed by Article 148 of the Limitation Act whereby suit for recovery of possession of immovable property by the mortgagor against the mortgagee for redemption would be sixty years commencing from the date of right of redeem or to recover possession. This is undisputed fact that the mortgagor failed to redeem the disputed land till 1946 and lapse of sixty years from the date of accrual of right of redemption. Suit by mortgagor beyond sixty years when there is no acknowledgement in the said period, the mortgagor shall be debarred to seek decree for possession through redemption. It is also an established principle of administration of justice in civil disputes that burden always lies upon the plaintiff to establish among other thing that the suit is well within time. If the plaintiffs fail to establish that the suit is within time, he cannot be granted decree being barred by time.
The petitioners-plaintiffs have purchased the title of mortgagor and in this way the land which was already mortgaged with them, become full owner instead of mortgagee. In the year, 1997 purchasing the title of original owner from her successors was already barred by time because after 1946 the original owner or her successors were barred to file a suit for redemption. The petitioners are vendee of the title have step into shoes of original owner and they have purchased the title of the mortgagor which could not be enforced through Court.
Section 28 of the Limitation Act whereby right of property would be extinguished in certain circumstances which reads as follows:
"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished".
The vires of Section 28 and Article 144 of the Limitation Act whereunder on the basis of adverse possession for more than 12 years, no suit for possession could be entertained was declared repugnant to injunction of Islam.
In the case of "Maqbool Ahmad vs. Government of Pakistan" (1991 SCMR 2063), Section 28 read with Article 144 of the Limitation Act, 1908 were declared repugnant to the Injunctions of Islam and it was declared that after 31.8.1991 no decree for declaration on the basis of adverse possession or acquiring prescription could be entertained.
The judgments cited by the counsel for the petitioners were delivered in suits filed by mortgagee for a declaration of title acquired on prescription were non-suited because they had not obtained any decree before 31.8.1999. While striking down of Section 28 of Limitation Act, 1908, it was observed as follows:--
The aforesaid passage is evident to show that the mortgagor would be barred to approach the Court for possession through redemption after lapse of sixty years but despite the said inability the mortgagor shall still be owner and if he succeeded in getting possession of the property of time barred mortgage, his possession could not be disturbed on the ground that the opposite side had matured his title through adverse possession or prescription.
In the aforesaid judgment of 1991, Section 28 read with Article 144 of the Limitation Act has been declared repugnant to the Injunctions of Islam but Article 148 whereunder no suit for redemption or to recover possession could be brought against mortgagee after sixty years from the date of accrual of right to redeem or recover possession. When a mortgage is created upon an immovable property and there is no time fixed for its redemption, the mortgagor get the right to redeem from the very first day and if some other date or period is fixed for redemption then the limitation of sixty years shall run from that date or period.
In the cited judgment (PLD 2002 Peshawar 92), a Single Bench of this Court has discussed in detail the effect of repeal of laws under Section 6 of the General Clauses Act and a law which ceased to have effect, it was observed that the expression ceased to have effect cannot be held synonymous with repeal as is envisaged by Article 264 of the Constitution and Section 6 of the General Clauses Act, 1897. The conclusion drawn is as under:
"Section 28 of the Limitation Act was declared repugnant to the Injunctions of Islam by the Hon'ble Supreme Court in the case of Maqbool Ahmad vs. Government of Pakistan (1991 SCMR 2063) and according thereto it ceased to have effect after 31.8.1991. If a suit instituted thereunder was decreed before the target date it was considered a transaction past and closed, but if not then it could not have been decreed thereafter. In the instant case though the suit was instituted on 22.7.1985 but it never culminated in a decree of the Court and by the time when it matured for being decreed Section 28 no more adorned the Statute of Limitation, thus it could not have been and cannot be decreed".
In 2007 SCMR 480, the mortgagee was non-suited for declaration on the basis of prescription because no decree was obtained before 31.8.1991, the crucial date given by the Shariat Appellate Bench of the Supreme Court in case reported in 1991 SCMR 2063.
The petitioners claimed to have purchased the title of the original mortgagee from their successors step into the shoes of mortgagor and since her right to redeem through Court was extinguished, therefore, they had also no right to approach the Court for a decree of redemption or possession.
In view of the aforesaid discussion, I found that the two Courts below have rightly non-suited the petitioners for grant of redemption decree. This revision petition is, therefore, dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 108 (DB)
Present: Said Maroof Khan and Muhammad Alam Khan, JJ.
SADEED-UR-REHMAN--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD
and 12 others--Respondents
W.P. No. 218 of 2008, decided on 14.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Jurisdiction of High Court--Questions of fact requiring elaborate inquiry--Election for seat of National Assembly--Applications for recounting and in alternative for re-election were rejected by Election Commission--Allegations levelled against respondent in writ petitions could be appreciated and commented upon by High Court in exercise of powers under Art. 199 of Constitution, because the facts agitated in writ petitions being controversial questions of fact require detailed inquiry and recording of evidence and High Court in its Constitutional jurisdiction cannot resolve such like complicated disputed questions of fact requiring elaborate inquiry--Petition dismissed. [Pp. 111 & 112] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 52 & Chapter VII--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Statutory remedy--Maintainability--Election for the seat of National Assembly--Unofficially declared as returned candidates--Validity of election--Corrupt practice and illegal means for wining election--Constitution election tribunals for adjudication of election disputes--When there is a dispute about the conduct or validity of election and there are allegations of corrupt or illegal practice or other illegal act is stated to have been committed during election it could only be challenged through an election petition which is the only statutory remedy as provided u/S. 52 of Representation of the People Act--Election Commission has already constituted election tribunals for adjudication of election disputes.
[P. 112] B & D
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Representation of the People Act, 1976--S. 52--Constitutional petition--Right was created by statute--Procedure for enforcement--Jurisdiction--Election for seat of National Assembly--Violation of relevant law and rules applications for recounting were rejected--Assailed--Validity--Where right was created by a statute which itself provides the procedure for enforcement of that right resort must be had to that procedure before invoking the jurisdiction of High Court--No election shall be called in-question except by an election petition made by a candidate for that election. [P. 112] C
Dr. Babar Awan, Advocate for Petitioner.
Mr. Waseem Sajjad & Qazi M. Anwar, Advocates for Respondents.
Date of hearing: 13.3.2008.
Judgment
Said Maroof Khan, J.--Sadeed-ur-Rehman petitioner in W.P. No. 218/2008 and Dr. Afsarul Mulk petitioner in W.P. No. 223/2008 alongwith Amir Muqam etc impleaded as Respondents 7 to 13 in the aforesaid two writ petitions contested the election for the seat of National Assembly held on 18-2-2008 from constituency NA-31 Shangla whereas Muhammad Yar Khan petitioner in W.P. No. 219/2008 and Engineer Hamid Iqbal petitioner in W.P. No. 224/2008 alongwith Muhammad Zahir Shah etc. Respondents 7 to 10 were the contesting candidates in the election for the seat of Provincial Assembly from PF-87 Shangla-I and one Sher Alam Khan petitioner in W.P. No. 225/2008 alongwith Fazalullah etc Respondents 6 to 14 contested the election for the seat of Provincial Assembly from PF-88 Shangla-II. The results of election were consolidated and transmitted by the Returning Officer to the Election Commission of Pakistan on Form XVI whereby the respondents Amir Muqam, Muhammad Zahir Shah and Fazalullah were unofficially declared as returned candidates from NA-31, PF-87 and PF-88 respectively.
The petitioners being aggrieved of election of the above named three respondents filed the above mentioned independent constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying therein that the election in the above constituencies having been held in violation of the relevant law and rules may be declared void and that the official-respondents may be directed to conduct re-election in the above constituencies of District Shangla.
In W.P. No. 225/2008 filed by Sher Alam Khan petitioner, a candidate from PF-88 Shangla-II, the main allegation is that respondents 6 and 8, in connivance with Respondent No. 5, had cast bogus ballot papers and they had also prevented the supporters of the petitioner from casting their votes in his favour and that at some of the polling stations they had taken the election material into their possession and that they themselves stamped the ballot papers in their favour. That at various polling stations the female polling staff was not deputed and as a result the female voters could not cast their votes.
In other four writ petitions the petitioners alleged that the respondents Amir Muqam and Haji Muhammad Zahir Shah had used the Government machinery in order to achieve the desired results. That the Naib Nazim Union Council Maira Besham had brought Transformers on behalf of Amir Muqam Respondent No. 7 to village "Kooz Batkot" where these were intercepted by the people and to this effect a complaint was made to the Returning Officer but he did not take any action. That in some of the polling stations the required number of polling staff was not deputed. That on the polling day at 02.30 p.m. about 100 to 150 persons had attacked polling station Barbatkot and they took the entire election material including ballot papers and ballot boxes in to their custody and then started polling bogus votes. That on the close of the polls the entire election material of Polling Stations No. 48 to 53 and 79 to 102 of NA-31 and PF-87 was collected jointly in the Court premises of Returning Officer PF-87 at Bisham and on its way from Bisham to Alpuri on 20-2-2008 some unknown persons had burnt the entire election material relating to the said Polling Stations. That they had applied for recounting and in the alternative for re-election but their applications were rejected by the Election Commission of Pakistan. Since both the provincial constituencies i.e. PF-87 and PF-88 form part of NA-31 and the allegations relating to alleged irregularities and illegalities in all the above writ petitions are almost the same, all the five petitions are being disposed of by this single judgment.
The learned counsel for the petitioners contended that in order to achieve success in the election the respondents Amir Muqam, Zahir Shah and Fazalullah had used corrupt practice and illegal means and that they had also managed to cast bogus votes in their favour. That they had also snatched the election material from the Presiding Officers of some of the polling stations and that after taking the same in their custody they destroyed the original election results prepared by the Presiding Officers and subsequently managed to furnish bogus statement of counts on plain papers to the Returning Officer and that the same being not on the prescribed form the consolidated statements of results being based on such bogus statements of counts could not be relied upon. It was next submitted that the election material including the original statements of counts of various polling stations of PF-87 and NA-31 were burnt on its way from Bisham to Alpuri and that the above facts clearly indicate that the election was not conducted honestly, fairly and in accordance with law. It was further contended that the petitioners submitted applications for recounting but their applications were illegally dismissed.
On the contrary, the learned counsel representing Amir Muqam, Zahir Shah and Fazalullah respondents on pre-admission notice contended that till the end of the election on 18-2-2008 neither the petitioners nor any other person had made any complaint regarding the alleged corrupt practices and illegal means allegedly used by the above named respondents and that such allegation being an afterthought could not be taken into consideration. That in the applications for recounting submitted before the Returning Officers after two days of election there was no allegation that the above named respondents or any other person on their behalf had either cast bogus votes or prevented any one of the voters from casting votes and as such the applications for recounting were rightly rejected. It was further submitted that the results prepared by the Presiding Officers, in the presence of the parties or their polling agents, were intact and on the basis of the same the Returning Officers correctly prepared the consolidated statements of counts and accordingly the three respondents having secured the highest number of votes were unofficially declared as returned candidates and that their election could not be questioned under Article 199 of the Constitution. It was lastly contended that the facts alleged in the writ petitions require elaborate inquiry and recording of evidence and the High Court in exercise of its constitutional jurisdiction could not venture upon such like disputes. That being an election dispute, it could be conveniently adjudicated by an Election Tribunal and not by this Court in exercise of its constitutional jurisdiction.
We have considered the submissions of the learned counsel for the parties and perused the available record. None of the points raised by the learned counsel for the petitioners and the allegations levelled against the respondents in the writ petitions could be appreciated and commented upon by this Court in exercise of the powers under Article 199 of the Constitution because the facts agitated in the writ petitions being controversial questions of fact require detailed inquiry and recording of evidence and the High Court in its constitutional jurisdiction cannot resolved such like complicated disputed questions of fact requiring elaborate inquiry.
As per available record the respondents Amir Muqam, Zahir Shah and Fazalullah secured the highest number of votes and they have been unofficially declared as returned candidates from constituencies No. NA-31, PF-87 and PF-88 Shangla respectively. The petitioners had contested the election under the provisions of Representation of the People Act and they have questioned the validity of election mainly on the ground that the respondents had used corrupt practice and illegal means for wining the election. Chapter VII of the Representation of the People Act reveals that when there is a dispute about the conduct or validity of election and there are allegations of corrupt or illegal practice or other illegal act is stated to have been committed during election it could only be challenged through an election petition which is the only statutory remedy as provided under Section 52 of the Representation of the People Act. The Election Commission has already constituted Election Tribunals for adjudication of election disputes.
It is well settled law that where a right is created by a statute which itself provides the procedure for enforcement of that right resort must be had to that procedure before invoking the jurisdiction of the High Court under Article 199 of the Constitution. Section 52 of the Representation of the People Act specifically mentions that no election shall be called in question except by an election petition made by a candidate for that election. Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 also provides that the election disputes have to be dealt with by the Election Tribunal.
Since disputed questions of fact are involved in all the five cases and alternate adequate remedy of election petition as provided in Section 52 of the Representation of the People Act and Article 225 of the Constitution is available to the petitioners for redressal of their grievance, they cannot question the validity of the election of the three contesting respondents under Article 199 of the Constitution. All the five writ petitions being not maintainable are, therefore, dismissed and consequently the interim orders dated 27-2-2008 and 28-2-2008 issued in Writ Petition No. 218 of 2008 and connected Writ Petitions No. 219 and 225 of 2008 stand recalled. The above are the reasons for our short orders of even date in the writ petitions mentioned above.
(R.A.) Petitions dismissed.
PLJ 2009 Peshawar 113 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MATIULLAH--Petitioner
versus
CHAIRMAN EVACUEE TRUST PROPERTIES, LAHORE
& 4 others--Respondents
W.P. No. 108 of 2006, decided on 15.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Evacuee Trust Property Act, 1975, S. 14--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of original amount--Application for rejection of plaint on the ground that the suit was barred by law--Civil Court lacks jurisdcition to entertain the suit against Board--Existence or non-existence of jurisdiction is a question of fact which can be determined after recording of evidence--Application was dismissed--Challenged to--Ouster jurisdiction--Validity--When an application is moved for the rejection of plaint or return u/Oder VII, Rule 11 of CPC invovling controversial questions of law and facts, then evidence must be recorded and the plaint cannot be summarily rejected or returned to plaintiff for its presentatioon to proper forum--Held: Revisional Court has non-suited the petitioner summarily without considering the record or allowing the parties to lead pro and contra evidence--Petition was accepted. [P. ] C & D
Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Barring the jurisdiction of Civil Court--Principle of interpretation--Ouster clause in statute--If there is barring provisioon in a statute and special jurisdiction is conferred upon functionaries created under that statute, then tnhey must act within the four corners of statute--Held: Civil Court will act as the Court of corrective process curing the wrongs done by functionary. [P. ] BN
PLD 1969 PEsh. 324 & PLD 1970 SC 180 rel.
Evacuee Trust Property Act, 1975--
----Ss. 8 & 14--Chairman Evacuee Trust Board--Jurisdiction--Question of--Whether petitioner is entitled to relief claimed in plaint to compensatioon for alleged lease and non-delivery of possession--Validity--If a property is declared to be evacuee trust, Chairman Evacuee Trust Property Board had jurisdiction to annul/cancel the allotment or alienation. [P. ] A
Petitioner in person.
Mr. Sajad Haider, Rent Collector for Respondent.
Date of hearing: 15.1.2009.
Judgment
Muhammad Alam Khan, J.--After hearing the parties at some length and scanning the record, it reveals that the petitioner Matiullah had brought the suit for recovery of original amount of Rs. 3600/- as well as the produce on the basis of average produce statement amounting to Rs. 18,000/-, fee of the counsel and expenses on documentation amounting to Rs. 3,300/-before the learned Senior Civil Judge D.I.Khan. On issuance of notice to the defendants/respondents, instead of filing written statement, they opted to move an application under Order VII, Rule XI CPC read with Section 14 of the Evacuee Trust Property Act 1975 for rejection of the plaint on the ground that the suit was barred by law as in view of the provisions contained under Section 14 of the Act ibid, the Civil Court lacks the jurisdiction to entertain the suit against the Board as well as its functionaries. The learned trial Court after hearing the parties in the light of record came to the conclusion that the existence or non-existence of jurisdiction is a question of fact which can be determined after recording pro and contra evidence of the parties and thus, by order dated 5/6/2005 dismissed the application of the defendants/respondents. Feeling aggrieved, the defendants challenged the said order in a revision petition which was accepted by the learned Additional District Judge-II D.I.Khan vide order dated 1/2/2006 and consequently the plaint was returned to the plaintiff for its presentation to the proper forum and hence this writ petition.
We have fully scanned the available record of the case and have anxiously considered the provisions of relevant law with respect to the ouster of jurisdiction contained in Section 14 of the Evacuee Trust Property Act 1975.
Perusal of the record reveals that although the claim of the petitioner is ancillary to the Evacuee Trust Property, but there is no question with respect to the determination of the nature of the property whether it is Evacuee Trust Property or otherwise regarding which under Section 8 of the Act ibid, the Chairman Evacuee Trust Property Board had got the exclusive jurisdiction. The law on the subject further reveals that if a property is declared to be Evacuee Trust, the Chairman Evacuee Trust Property Board had the jurisdiction to annul/cancel the allotment or alienation. Here before us no question of existence or non-existence of the evacuee nature of the property is involved. The question involved is that whether the petitioner is entitled to the relief claimed in the plaint with respect to the compensation for the alleged lease and non-delivery of possession of the landed property.
Further more, if there is an ouster clause in the Statute, barring the jurisdiction of Civil Court, that must be construed in favour of the existence of jurisdiction of the Civil Court, as the Civil Court has got plenary and over all jurisdiction under Section 9 CPC. The other cardinal principle of interpretation is that if there is a barring provision in a Statute and special jurisdiction is conferred upon functionaries created under that particular statute, then they must act within the four corners of the Statute and the moment it is found that the functionaries acting under the Statute have themselves violated these provisions and traveled beyond their jurisdiction, then the Civil Court will act as the Court of corrective process curing the wrongs done by the functionary under that particular statute in view of the proposition explained in Abdul Hamid Khan Vs. Government of West Pakistan and others (PLD 1969 Peshawar 324) and Mian Muhammad Latif Vs. Province of West Pakistan through the Deputy Commissioner Khairpur and another (PLD 1970 Supreme Court 180).
There is yet another aspect of the case also, the vires of Sections 9, 10, 14 and 21 were challenged before the Federal Shariat Court which were declared as un-Islamic in the dictum handed down in the case reported as Mufti Iftikharuddin Vs. Federal Government (1992 Federal Shariat Court 188).
This is the cardinal principle of law that when an application is moved for the rejection of plaint or return thereof under Order VII, Rule XI CPC involving controversial questions of law and facts, then evidence must be recorded and the plaint cannot be summarily rejected or returned to the plaintiff for its presentation to the proper forum as held in the case law reported as Ghulam Dastagir and others Vs. Mst. Mariam and others (1993 MLD 1005) and M/s. Hoechst Pakistan Ltd. Vs. M/S Cooperative Insurance Societies and others (1993 MLD 2464).
As the learned revisional Court has non-suited the petitioner summarily without considering the record or allowing the parties to lead pro and contra evidence, thus we are constrained to accept this writ petition, set aside the impugned judgment of the learned revisional Court dated 1/2/2006 as ultra vires, without jurisdiction and without lawful authority and with no legal effect, and remand the case to the learned Civil Judge-IV D.I.Khan with the direction to redecide the same afresh on merits after recording pro and contra evidence of the parties who shall be at liberty to submit written statement and list of witnesses. The parties are directed to appear before the said Court on 26/1/2008.
(R.A.) Petition accepted.
PLJ 2009 Peshawar 116 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
DIN MUHAMMAD--Petitioner
versus
ABDUR RASHID and others--Respondents
W.P. No. 131 of 2008, decided on 24.10.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of Pakistan, 1973, Art. 199--Proforma defendant--Necessary party--Discretion of Court--Right can be determined in a suit--Requirement--Provisions of O. I, R. 10, CPC are discretionary in nature and the Court can, at any time, add a party if his presence is necessary to decide the matter effectively and conclusively between the parties and to avoid multiplicity of litigation--Revisional Court had arrayed respondent as proforma defendant to the lis--Revisional Court should have refused to implead him as a party and after all, if he had to be impleaded, he should have been impleaded as necessary party to the litigation--Petition dismissed in limine. [P. ] A & B
Khawaja Nawaz Khan, Advocate for Petitioner.
Mr. Muhammad Daud Khan, Advocate for Respondent No. 1.
Date of hearing: 24.10.2008.
Order
Muhammad Alam Khan, J.--Din Muhammad petitioner has filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against Abdur Rashid and others challenging an interim order of Additional District Judge-III, D.I.Khan in C.R. No. 22/2007 decided on 16.4.2008 vide which the revision petition of Respondent No. 1 against the order of learned Civil Judge-I, D.I.Khan dated 08.11.2007 was accepted and Respondent No. 1 was ordered to be arrayed as proforma defendant in a pending Suit No. 439/1 of 2003 titled Din Muhammad. Vs. Municipal Committee/TMA etc. in the Court of Civil Judge-I, D.I.Khan.
It was argued by the learned counsel for the petitioner that Respondent No. 1 had no concern with the suit filed by the petitioner and the learned revisional Court has fallen into an error in allowing Respondent No. 1 to be arrayed as proforma-defendant on the panel of defendants. It was also argued that on the basis of alleged agreement dated 18.9.2000 in his favour, the Respondent No. 1 has filed an independent Suit Bearing No. 67/1 of 2007 which is pending disposal in the Civil Court and thus, his right can be determined in a suit which he has independently filed. When questioned on factual and legal side that their provisions of Order I, Rule 10 C.P.C are discretionary in nature and the Court can, at any time, add a party if his presence is necessary to decide the matter effectively and conclusively between the parties and to avoid multiplicity of litigation, the learned counsel frankly conceded this legal aspect of the case and submitted that the learned revisional Court has arrayed Respondent No. 1 as proforma-defendant to the lis. The learned Revisional Court should have refused to implead him as a party and after all, if he had to be impleaded, he should have been impleaded as necessary party to the litigation. The learned counsel further submitted that if this Court amends the order by impleading Respondent No. 1 as necessary and contesting defendant, he will be satisfied, to which the learned counsel for Respondent No. 1 appearing on pre-admission notice, has got no objection.
Resultantly, the order of the learned Additional District Judge-III, D.I.Khan dated 16.4.2008 is modified to the extent that Abdur Rashid Respondent No. 1 be arrayed as a necessary party on the panel of defendants to the Civil Suit Bearing No. 439/1 pending in the Court of Civil Judge-I, D.I.Khan. With this modification, this writ petition is dismissed in limine.
(N.I.) Petition dismissed
PLJ 2009 Peshawar 117 (DB)
Present: Dost Muhammad Khan and Jehanzaib Rahim, JJ.
SALEH SHAH--Petitioner
versus
SUPERINTENDENT JAIL C.J., HARIPUR & 2 others--Respondents
W.P. No. 1456 of 2008, decided on 27.10.2008.
Locus Paenitentiae--
----Legal proposition--Principle--Interpretation--Authority competent to grant a concession or to confer a benefit on a party or an individual cannot rescind or make retrace by withdrawing it at a stage when it has reached to a logical conclusion and the order has been acted upon whereby irreversible vested right is accrued to the beneficiary of the order. [P. ] A
Interpretation of Statute--
----Principle--Remissions of sentences--Once the legislature has deliberately omitted something from a statute, the Court or any other authority has no powers to add it into the statute nor it is supposed to supply the deliberate omission. [P. ] C
Competency of Jail authorities--
----Remissions in sentence--Jail authorities without sanction of law and legal authority inadvertently and under entitle misconception added remissions in sentences in remissions sheets of prisoners--Validity--Jail authorities were not legally competent nor they were authorized by the provision of law or by the very order granting remissions in sentences, then granting the said concession to the petitioner by the jailer was absolutely without lawful authority and ab initio void and it was not competent to grant the concession/confer benefit on the petitioner and when the order was coram non judice. [P. ] D
Control of Narcotic Substances Act, 1997--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Coviction--Challenge to--Remissions of sentence--Principle of locus poeniteniae--Competency of jail authorities--Jail authorities deducted remissions allowed/granted to him as the President of Pakistan at different occasions allowed/granted remissions of different periods to prisoners--Validity--Remission shall be allowed to the prisoners undergoing sentences of different kinds--Held: Petitioner was still undergoing the remaining part of the sentence, thus the principle of recalling the concession would be attracted--Jailer was not competent to grant the concession of remission to the petitioner both under the statutory law, the rule of the Jail Manual and in view of order/notifications/proclamations issued by the President--Concession granted to the petitioner was without lawful authority and being ab initio void, the jailor was competent to withdraw it to which no exception could be taken--Petition dismissed. [P. ] B, E & F
Mr. Muhammad Jehangir Khan Mohmand, Advocate for Petitioner.
Date of hearing: 27.10.2008.
Order
Dost Muhammad Khan, J.--The petitioner, a convict prisoner, under Section 9(c) CNS Act, 1997 was sentenced to life imprisonment by the Judge Special Court Kohat on 4.9.2001 and is now undergoing his sentence in Central Jail, Haripur.
The present controversy arose when the jail authorities deducted remissions of 104 months and 25 days earlier allowed/granted to him as the President of Pakistan/Government at different occasions allowed/granted remissions of different periods to prisoners. In his written comments, the respondent/Superintendent Jail has stated that the deductions of remissions from the sentence of the petitioner were made on the strength of the judgment of this Court dated 17.5.2002 given in the case of Akbar Marwat vs. The Superintendent Jail, Peshawar. The petitioner has questioned the said action through this constitutional petition.
Learned counsel for the petitioner vehemently contended that while following the proclamation/order of the President/Government the jail authorities granted remissions in sentence of the petitioner which were duly incorporated into the petitioner's remissions sheet, therefore, due effect was given to the remissions orders and vested right had accrued to the petitioner which could not be withdrawn on the strength of judgment of this Court or that of the Honourable Supreme Court because the respondent could not retrace/withdraw the step taken under the principle of locus poenitentiae. In this regard, reliance was placed on the view held by the learned High Court of Lahore in the case of Mohammad Arif vs. Superintendent Central Jail Lahore and 2 others (PLD 2006 Lahore 561).
We have considered the submissions made at the Bar and have gone through the case law relevant to the subject as well as the effect of principle of locus poenitentiae involved herein.
The principle of locus poenitentiae has been subject of discussion and interpretation of the superior Courts since long. However, by now it is well settled principle that the authority competent to grant a concession or to confer a benefit on a party or an individual can not rescind or make retrace by withdrawing it at a stage when it has reached to a logical conclusion and the order has been acted upon whereby irreversible vested right is accrued to the beneficiary of the order. We have also no cavil with this legal proposition.
What is important to be determined is the legal sanction of law investing the authority with powers to grant concession or confer benefit/benefits on a party or an individual.
This Court in the case of Akbar Marwat HCP No. 10/2002 and later in the case of Nazeem Khan vs. Inspector General of Prisons, Government of NWFP and 2 others (PLD 2004 Peshawar 47) has only interpreted the provision of Section 382-B, Cr.P.C. which is coached in plain words easily understandable.
All the orders/notifications issued by the President/ Government granting remissions in sentences to prisoners have clearly stated that the remissions shall be allowed to the prisoners undergoing sentences of different kinds. Some exceptions were taken thereto with regard to certain categories of prisoners who were sentenced for different crimes under the Anti-terrorism law or under the NAB law.
It is of utmost importance to be clarified here that under-trial prisoner under the Jail Manual is a privileged class, apart the legal analogy that they under no circumstances can be treated convict prisoners. This aspect has been very elaborately dealt with by this Court in the case of Nazeem Khan ibid and needs no further elaboration.
As the remissions were granted and remained confined only to the cases of those prisoners who were already undergoing sentences of imprisonment awarded to them by the competent Court of law, therefore, stretching its scope beyond the clearly laid down parameters by extending this benefit to under-trial prisoners would be in violation of the very orders/proclamations and notifications issued by the President or the Governments in this regard at different occasions.
The legislature extended the benefit of counting the detention period towards the sentences of the prisoners when awarded by the Court has granted relief on the principle of equity and justice so that the period of detention undergone by an under-trial prisoners shall not go waste but he must be compensated for that. However, as earlier mentioned this relief/concession is only confined to add the period of detention towards the length of sentence awarded to a prisoner but it does not include the remissions in sentences granted to prisoners lacing trial because detention and sentences are altogether two different terms which cannot be intermingled nor the clear intent of the legislature in this regard can be defeated by giving it extended scope and meaning. If the legislature wanted to extend the benefit in remissions of sentences, then it would have done it through express words and necessary intendments which is not the case. The principle on the construction of Statute in this regard is well settled that once the legislature has deliberately omitted something from a Statute, the Court or any other authority has no powers to add it into the Statute nor it is supposed to supply the deliberate omission.
Keeping in view the above legal position, the jail authorities not only had disregarded the orders/proclamations of remissions in sentences issued by the President/Governments but have also acted in clear violation of the provisions of Section 382-B, Cr.P.C. and also against the relevant rules contained in Jail Manual where prisoners sentenced to imprisonment and those facing trial are placed pole apart from each other and in this way the jail authorities without the sanction of law and legal authority inadvertently and under entire misconception added the remissions in sentences in the remissions sheets of the prisoner. The petitioner is not the only one but there are hundreds and hundreds prisoners from whom the concession thus granted illegally was withdrawn, the element of discrimination thus is also not available in the case. Once it is held that the jail authorities were not legally competent nor they were authorized by the provision of law or by the very orders granting remissions in sentences, then granting the said concession to the petitioner by the jailer was absolutely without lawful authority and ab initio void and it was not competent to grant the concession/confer benefit on the petitioner and when the order was coram non judice, then its withdrawal was within the jurisdiction and competency of the jailer.
Reliance placed by the learned counsel on the view held in Mohammad Arif's case is not attracted because that operates on different principle of law. However, with utmost respect we are unable to follow the said principle laid down in the said case because the learned High Court of Lahore was not assisted properly on the legal proposition involved and discussed herein above. In the said case, the competency of the jail authority incorporating the concession in remissions of sentences in the remissions sheets of the prisoners was neither pointed out nor it was discussed and determined, therefore, the said principle would not apply.
A Full Bench of this Court in the case of Farid Khan vs. The State (PLD 1965 (W.P.) Peshawar 31) while dealing with the principle of locus poenitentiae referred to the case Venkatesh Yeshwat Deshpande v. Emperor (A.I.R. 1938 Nag. 513) where a Full Bench on the facts and circumstances of that case held that after remission granted the prisoner was released and on the very date the order was recalled, therefore, their lordships took the view that after the date of release it was no longer open to the Government to amend or recall the earlier order. The case of Lt. Col. G.L.I Bhattacharya vs. The State (PLD 1963 Dacca 422) was referred where the same view was taken because the order passed by the Government in that case was given practical effect.
Their lordships of the Full Bench of this Court while determining the effect of locus poenitentiae held in unequivocal terms as follows:--
"Now, can it be said that the mere entry of the grant of a remission in the prison documents of a convict is a decisive step in the implementation of the order of remission?
While differing with the view of their lordships of the then East Pakistan High Court it was further held:--
"With great respect to the learned Judges, who decided Bhattacharya's case, we are unable to adopt this view. It seems to us that the phrase "taking a decisive step" or the alternative phrase "carrying an order into effect", as used in respect of an order capable of physical implementation, cannot mean mere documentation, but must connote the taking of an active physical step by which alone the order could be effectively implemented. This meaning becomes clear with reference to the observation contained in the last paragraph in the judgment of their lordships of the Federal Court in the case of Shahbaz. While discussing the theoretical case of a condemned prisoner whose sentence is commuted into one of transportation for life, their lordships have clearly stated that a decisive step would be taken when the prisoner would be removed from the condemned cell to that part of the prison where the ordinary sentences of imprisonment are to be undergone. It is clear to us that if in the view of their lordships the mere entry of an order of commutation in the prison documents was enough, then they would not have stated that the removal of the prisoner from the condemned cell to the other part of the jail was a decisive step in such a case. Thus an order of remission of sentence can be said to have been carried into effect only when as a result of that remission the convict has been released from custody. It is only then that a decisive step is taken in pursuance of the order of remission. Until that stage is reached, the order remains, to use the words employed by their lordships of the East Pakistan High Court, "an inchoate-order". For these reasons, with the utmost respect, we venture to differ from the view taken in Bhattacharya's case, and find ourselves in agreement with the view expressed by the Division Bench of this Court at Lahore in Writ Petition No. 780 of 1962 that an order of remission cannot be said to have been carried into effect until such time as the prisoner is released from custody in pursuance of that order, with the result that until that decisive step is taken, locus poenitentiae exists for the Government to recall or rescind that order".
15A. The view held above by a Full Bench of this Court seems to us very sound and is based on correct interpretation/construction of the principle of locus poenitentiae. In this case, the petitioner is still undergoing the remaining part of the sentence, thus the principle of recalling the concession would be attracted and we see no legal impediment in the way of it. In addition to that, as discussed in the earlier part of this judgment, the jailer was not competent to grant the concession of remission to the petitioner both under the Statutory law, the rule of the Jail Manual and in view of the clearly understandable orders/notifications/proclamations issued by the President/ Governments.
(A.S.) Petition dismissed
PLJ 2009 Peshawar 123 (DB)
Present: Shahji Rehman Khan & Jehan Zaib Rahim, JJ.
WAZIR ZADA--Petitioner
versus
Mst. TAJ BIBI etc.--Respondents
W.P. No. 1992 of 2008, decided on 12.1.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 12--Constitution of Pakistan 1973 Art. 199--Suit for jactitation of marriage & cross suit for conjugal rights--Judgments in favour of lady by the two Courts--Held: Family Judge after considering material points involved in the case dismissed suit of petitioner and decreed suit for jactitation of marriage which was also affirmed by the appellate Court--Impugned judgments were free from any jurisdictional defect so were not open to interfere--Petition dismissed. [P. ] A
Mr. Salam Khan, Advocate for Petitioner.
Date of hearing: 12.1.2009.
Judgment
Shahji Rehman Khan, J.--Wazir Zada, petitioner herein, through the instant Writ Petition has assailed the judgment and decree dated 25.10.2008 of the learned Additional District Judge/Azafi Zila Qazi-IV, Swat, whereby he dismissed the appeals preferred by him and upheld the judgment and decree dated 9.5.2008 of the learned Family Judge Swat.
Brief facts of the case are that Wazir Zada, petitioner herein, instituted a suit for conjugal rights against respondent/wife in the Court of Illaqa Qazi/Civil Judge Behrain Swat and the respondent/wife denied the allegations made in the plaint against her by filing written statement. Similarly respondent/wife instituted a suit for jactitation of marriage against the petitioner/husband. Both the suits were ordered to be consolidated and consequently after hearing the arguments of the learned counsel for the parties, the learned Judge Family Court, decreed the suit of the respondent/wife and dismissed the suit of the petitioner, vide consolidated judgment and decree dated 9.5.2008. Thereafter the appeals preferred by the petitioner against the said judgments also having the same fate were dismissed by the learned Azafi Zila Qazi/Additional District Judge Swat, vide judgment dated; 25.10.2008, hence this constitutional petition.
Mr. Shah Salam Khan, Advocate, learned counsel for the petitioner, vehemently argued that the Courts below have not applied their mind while deciding the matter and even have not perused the documentary evidence produced by him. He further contended that the orders and judgments of the lower Courts are arbitrary, perverse; and have been passed in vacuum, are not sustainable in the eyes of law. The learned counsel, by concluding his arguments, submitted that the Courts below overlooked the contentions of the petitioner and ignored them illegally, the action taken by them are, therefore, without lawful authority and of no legal effect.
We have gone through the available material brought on file carefully and considered the submissions of the learned counsel for the petitioner.
A perusal of the material available on the file and the impugned order dated 25.10.2008 of the learned Additional District Judge in Appeals Nos. 4/3 and 5/3 of 2008 and the judgment and decree dated 9.5.2008 in Case No. 16/FC & 17/FC of 2005, would reveal that the learned Family Judge after considering the material points involved in the case dismissed the suit of the petitioner filed by him for conjugal rights and decreed the suit of respondent/wife filed for jactitation of marriage and the said decree was affirmed in appeal by the appellate Court in its judgment mentioned above. The impugned judgments and decrees of both the Courts below being thus free from any jurisdictional error are not open to any interference in the exercise of extraordinary equitable discretionary constitutional jurisdiction of this Court.
For the reasons discussed above, this writ petition being without force and substance is dismissed in limine.
(J.R.) Petition dismissed
PLJ 2009 Peshawar 125 (DB)
Present: Ejaz Afzal Khan & Jehanzaib Rahim, JJ.
Mst. GUL PARI--Petitioner
versus
Haji MAQSOOD ELAHI and 3 others--Respondents
W.P. No. 282 of 2004, decided on 2.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11 r/w S. 11--Rejection of plaint on the basis of principle of resjudicata--In previous round of litigation, before Rent Controller the objection of (husband of petitioner) regarding non-existence of tenancy relationship was rejected upto the Supreme Court--Now when execution of the ejectment order was in progress, petitioner filed a suit for declaration on the basis of a sale mutation by the respondent allegedly sanctioned in the year 1980--Held: As matter of title of (landlord) had been established/finalized upto S.C. in the previous round of litigation, after considering their respective pleas, it would therefore certainly operate as res judicata--Impugned order of rejection of plaint was not open to any exception--Petition was dismissed. [P. ] A & B
2000 SCMR 1525, PLD 1992 K 270, 1983 SCMR 1064 & PLD 1985 SC 1, ref.
Mr. Afridi Khan, Advocate for Petitioner.
M/s. Abdur Rauf, Rohaila and Mohd. Shafi, Advocates for Respondents.
Dates of hearing: 27.2.2007 and 1.3.2007.
Judgment
Haji Maqsood Elahi, Respondent No. 1 instituted a petition before the learned Rent Controller Peshawar for the ejectment of Toor Muhammad, Respondent No. 2 in respect of the suit shop. The latter resisted the application by denying the existence of relationship of landlord and tenant between him and the former. The learned Rent Controller after framing a preliminary issue and recording evidence of the parties rejected the application, vide order dated 26.2.1991. An appeal was preferred by Respondent No. 1 in the Court of the learned District Judge Peshawar, which was allowed, vide order dated 9.3.1993. Respondent No. 2 preferred a writ petition in the High Court which was dismissed, vide judgment dated 5.12.1994. Petition for leave to appeal was preferred in the Apex Court by Respondent No. 2, which too met the same fate, vide judgment dated 20.5.1996. In the meantime Mst. Gul Pari, petitioner herein who is also wife of Respondent No. 2, instituted a suit for declaration on the basis of Mutation No. 3638 attested on 9.10.1980. But when Respondent No. 1 filed an application for execution of the order ejecting Respondent No. 2, she also resisted the execution by filing objections on the ground that she has become owner of the property in dispute on the basis of the mutation mentioned above. The learned Court executing the decree dismissed the application, vide order dated 18.9.1999. She preferred an appeal there against which was also dismissed, vide order dated 14.10.1999. Her revision in this Court was also dismissed, vide judgment dated 28.2.2000. Respondent No. 1 then filed an application for rejection of plaint in the suit instituted by the petitioner in the Court of the learned Senior Civil Judge, but it was dismissed by the learned Judge, vide order dated 19.5.1999. A revision against the aforesaid order was filed in the Court of the learned Additional District Judge which was allowed by the learned Judge, vide his judgment dated 22.6.2002 and consequently the suit of the petitioner was dismissed. The petitioner filed a writ petition in this Court, which was dismissed as withdrawn with the permission to file a fresh. Hence this writ petition.
Learned counsel appearing on behalf of the petitioner contended that the suit of the petitioner on the basis of title was competent notwithstanding the verdict of the learned District Judge in the earlier round of litigation, holding that the relationship of landlord and tenant existed between respondents Nos. 1 and 2 was upheld upto the apex Court, as the learned Rent Controller and all the forums functioning in the hierarchy could not have decided the question of title as it exclusively lay within the competence of Civil Court. The learned counsel to support his contention place reliance on the cases of Junaid Rashid and others Vs. Sultan Muhammad and others (2000 SCMR 1525). The learned counsel next submitted that even a finding on the objections filed by the petitioner before the executing Court cannot operate as res judicata, even if, it is upheld up to the High Court, when they were not disposed of in accordance with the provisions of Rule 103 of Order XXI of the C.P.C. Learned counsel to support his contention placed reliance on the case of Amiabai Vs. Ibrahim and 4 others (PLD 1992 Karachi 270).
As against that, the learned counsel appearing on behalf of the respondent contended that when the High Court and the Supreme Court while dealing with the controversy as to the existence of relationship of landlord and tenant between respondents Nos. 1 and 2 made in-depth examination of the entire record relating to the title of the parties, the petitioner who is claiming title through the latter and is his wife as well cannot be allowed to start afresh on the pretext that the Rent Controller being a Court of limited jurisdiction could not have decided the title of the parties. He next submitted that the finding given by the Court executing the decree would also operate as bar to a fresh suit when the Courts in that hierarchy including this Court discussed the merits of the case with reference to the conduct of the petitioner. Learned counsel next contended that it is also unbelievable that a wife would remain unaware of a litigation carried on by her husband for a decade and a half, therefore, the suit of the petitioner being collusive was rightly dismissed by the learned revisional Court.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
The record reveals that Respondent No. 2, who happened to be the husband of the petitioner, from the very inception denied the relationship of landlord and tenant between him and Respondent No. 1. The learned trial Court after framing a preliminary issue handed down a finding in his favour but that was reversed by the Court of the District Judge. The finding of the District Judge, however, remained undisturbed up to the Supreme Court. The petitioner then instituted a suit on the basis of title, which also stood dismissed when a revision petition filed by Respondent No. 1 was allowed by the learned District Judge. And rightly so when it is not a case where the Court of the District Judge or this Court including the Supreme Court in earlier round of litigation between respondents No. 1 and 2 entertained any doubt about the title of the landlord. This Court while dealing with this aspect in its judgment rendered in earlier round held as under:--
"The case of the petitioner, on the other hand, is that meters of suit gas and electricity have been installed in the name of the petitioner. The evidence of Amanullah Khan (RW 6) is that, as a general attorney of Muhammad Ali transferee of the land measuring 5 kanals, he had alienated the disputed premises in favour of the petitioner by virtue of Mutation No. 3391 sanctioned on 26.1.1978 after the notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served upon him and he had satisfied himself after seeing the RL-II. The claim of the petitioner in nutshell is that he had raised the superstructure on the land underneath the disputed premises. Ultimately when the petitioner came to know that the land underneath the disputed premises being evacuee property had been transferred to Muhammad Ali and further that he was selling it, the petitioner purchased the land through a Court decree photo-copy Ex. RW.8/1 and then got it mutated in his name. In the cross-examination, he had admitted the execution of the rent deed photocopy Ex.AW.2/1 in favour of the respondent. The land underneath the disputed premises is, however, not definitely shown to have been transferred to Muhammad Ali transferor. The identification of the land underneath to be forming part of Rhasra numbers entered in the Court decree has not been proved. The superstructure of the disputed shops has been purchased by the respondent from Pir Bakhsh on the basis of a registered deed while the land underneath it has been purchased by him from Sher Muhammad also by virtue of a registered deed photo copy Ex.PW.4/3."
"In these circumstances and admission of execution of the rent deed by the petitioner in favour of the respondent and thereafter having admittedly attorned to him, the learned District Judge had rightly adjudged the respondent's claim to be the landlord on the basis of the ownership of the property. The petitioner/tenant had thus not been able to create `reasonable' doubt qua the claim of the respondent to be adjudged as landlord/owner when the Rent Controller had failed to do so. The learned appellate Court had done the same, which is permissible under two authorities of the Supreme Court, namely, RehmatuIlah Vs. Ali Muhammad and another (1983 SCMR 1064) and Province of Punjab Vs. Mufti Abdul Ghani (PLD 1985 SC 1)"
"We have heard the learned counsel for the petitioner and the learned counsel appearing for the caveator and perused the record. The ejectment of the petitioner was sought for by the respondent from the suit "Saqawa" on the ground of default. It was alleged in the petition for ejectment that he firstly purchased the super structure from the person in possession of the suit premises and subsequently obtained the site underneath it from its transferee through another sale-deed and thereby he became the full owner of the suit premises. Petitioner as such accepted the respondent as his landlord and executed a rent deed on 26.6.1970 in his favour and was regularly making payment of rent and subsequently since 1.11.1978 defaulted in payment of rent, presumably after he managed to get a decree in his favour in Suit No. 905/1 instituted on 4.12.1977 decided on 10.12.1977. As far as Mutation No. 3391 is concerned, which was entered on the basis of aforementioned decree allegedly passed in favour of the petitioner, it pertains to a joint `Khata' measuring 6 kanals 3 marla through which 2/266 share is shown to have been transferred in his favour. This mutation was, therefore, held by the learned District Judge to have no connection with the "Saqawa" in question which was in possession of the petitioner long before the acquisition of such right and title in the joint "Khata". We, therefore, find no infirmity in the judgment of the learned High Court refusing to interfere with the finding of the learned District Judge that the tenant was debarred from challenging the title of his landlord. Petition is, accordingly, dismissed."
"In the rent proceedings it has been established that Tor Muhammad was tenant of the property and Maqsud Ilahi, the landlord. The question of ownership was also raised by Tor Muhammad in the rent proceedings but eventually it was not accepted as the Court found him to be a tenant in the property. The petitioner Mst. Gul Pari claims that the property in question was transferred through gift mutation by Tor Muhammad in her favour in the year 1980. Her title to the property cannot be in any case better than the transferor Tor Muhammad. Additionally, the petitioner being the wife of Tor Muhammad must have known about the ejectment proceedings but failed to become a party to those proceedings. Thus, there is no reason to interfere with the findings of the two Courts in revisional jurisdiction. The revision petition is, therefore, dismissed in limine."
Where this Court and the Hon'ble Supreme Court in view of the dicta rendered in the cases of Rehmatullah Vs. Ali Muhammad and another (1983 SCMR 1064) and Province of Punhab Vs. Abdul Ghani PLD 1985 Supreme Court 1) neither entertained any doubt as to the title of Respondent No. 1 nor permitted Respondent No. 2 to file a fresh suit on the basis of title and proceeded to decide the question of title on merits after considering their respective pleas raised before them, it would certainly operate as res judicata. The suit of the petitioner in view of the finding given on merits in the revision petition filed by her against the orders dismissing her objection petition, would also operate as bar to the suit when it for not being questioned in the Supreme Court has attained finality. The cases of Junaid Rashid and others Vs. Sultan Muhammad and others and Amiabai Vs. Ibrahim and 4 others (Supra) cited by the learned counsel for the petitioner because of their distinguishable facts and features have no perceptible relevance to the case in hand.
Having thus seen in this background, we have no hesitation to hold that the order of the learned Additional District Judge dismissing the suit of the petitioner being free from any jurisdictional error is not open to any exception.
For the reasons discussed above, this writ petition being without substance is dismissed.
(J.R.) Petition dismissed.
PLJ 2009 Peshawar 130
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD NAWAZ and 3 others--Petitioners
versus
SAIFUR REHMAN and 4 others--Respondents
C.R. No. 269 of 2007, decided on 26.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for specific performance of agreement deed--Misreading and non-reading of material evidence--Defendants had struck the agreement to sell in favour of plaintiffs/petitioner with respect to suit land and an earnest money was received and fact was reported by Patwari Halqa in Roznamcha Waqiati--Validity--First Appellate Court should have permitted the plaintiffs to have amended the plaint in order to bring real controversy between the parties on the file, as same will not change the complexion of the suit because proposed amendment emanates from the same cause of action--Petition was accepted. [P. 131] A & B
PLJ 2003 Pesh. 288 & PLD 1985 SC 345, ref.
Mr. Muhammad Ayaz Khan, Advocate for Appellant.
Date of hearing: 26.1.2009.
Judgment
This civil revision petition filed under Section 115 CPC is directed against the judgment and decree dated 28/4/2007 passed by the learned Additional District Judge-V Bannu, whereby appeal of the plaintiffs/appellants against the judgment and decree dated 27/2/2007 passed by the learned Civil Judge-VI Bannu was partially allowed.
Muhammad Nawaz Khan and others, plaintiffs/petitioners, had filed a suit for specific performance of agreement deed dated 1/1/2005 against Saif-ur-Rahman etc; defendants/respondents, to the effect that they being owners-in-possession of land measuring 9 kanals 4 marlas in Khata No. 889 situated in Mouza Ghoriwala Bannu, in view of the said agreement to sell dated 1/1/2005 were bound to transfer land measuring 1 kanal 13 marlas 3 sarsai in their favour as the transaction had been entered in the revenue record on their statement vide Roznamcha Waqiati dated 2/1/2005 alongwith Mutation No. 2238 in the register of mutations.
The defendants were summoned to the Court who hotly contested the suit by filing replication and the divergent pleadings of the parties gave rise to the framing of thirteen issues including the relief. The learned trial Court after recording pro and contra evidence and hearing learned counsel for the parties dismissed the suit of the plaintiffs, but their appeal was partially allowed by the learned Additional District Judge-V Bannu to the extent of refund of earnest money of Rs. 15000/- given in advance to the defendants out of the total sale consideration of Rs. 20,000/- vide judgments and decrees referred to above. Hence this revision petition by the plaintiffs.
I have carefully examined the entire record of the case with the valuable assistance of the learned counsel for the parties and anxiously considered the arguments advanced at the bar.
The record reveals that the impugned judgments and decrees of the learned lower fora are based on mis-reading and non-reading of material evidence brought on record and are thus, not sustainable. On the one hand, the Courts had admitted the oral sale of the suit land through the agreement deed dated 1/1/2005, while on the other it had dismissed the suit on the ground that the defendants/vendor had transferred the suit land measuring 1 kanal 13 marlas and 2 sarsai to Muhammad Zareen etc; through registered sale deed No. 265 dated 19/5/2005. Perusal of the record makes it crystal clear that the defendants/respondents had struck the agreement to sell in favour of the plaintiffs/petitioners with respect to the suit land and an earnest money of Rs. 15000/- was received by them on 1/1/2005 and this fact was also reported by the Patwari halqa on the same date in the Roznamcha Waqiati at Serial No. 151 the same date duly signed by the Defendant/Respondent No. 1. This fact is further supported by the entry of Mutation No. 2238 dated 2/1/2005 in favour of the petitioner duly admitted by the vendor on oath. Thus in view of the dicta handed down in the cases of Nizamullah and others Vs. Mst. Gohar Taia and others (PLJ 2003 Peshawar page 288) and Mst. Ghulam Bibi and others Vs. Sarsa Khan and others (PLD 1985 Supreme Court 345), the learned lower appellate Court should have permitted the plaintiffs/petitioners to have amended the plaint in order to bring the real controversy between the parties on the file, as the same will not change the complexion of the suit because the proposed amendment emanates from the same cause of action.
Consequently this revision petition is accepted, the impugned judgments and decrees of the learned lower fora are set aside and the lis is sent back to the learned trial Court for decision de novo. The plaintiffs are allowed to file an amended plaint whereafter the trial Court shall record pro and contra evidence and proceed with the trial strictly in accordance with law. The parties are directed to appear before the learned trial Judge on 21/2/2009. Record of the case be sent back to the trial Court forthwith.
(R.A.) Revision accepted.
PLJ 2009 Peshawar 132 (DB)
[Abbottabad Bench Abbottabad]
Present: Zia-ud-Din Khattak and Ghulam Mohy-ud-Din Malik, JJ.
Mst. SALIM-UN-NISA WIDOW and 5 others--Petitioners
versus
AZIZ and another--Respondents
W.P. No. 302 of 2006 with C.M. No. 194 of 2006, decided on 3.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Suit for produce of crops of Rabi and Kharif--Board of Revenue remanded the case--Challenge to--Maintainability of--Writ lies against the final adjudication--Remand order does not finally decide the dispute, as authority that decided the case earlier has to redecide it--Writ petition against the remand order is not maintainable as order passed in revision, being not a final order cannot be interfered with in writ jurisdiction--Petition was dismissed.
[P. 134] B
West Pakistan Board of Revenue Act, 1957 (IX of 1957)--
----S. 4--N.W.F.P. Tenancy Act, 1950--Scope--Constitution of Pakistan, 1973--Art. 199--Power of Board of Revenue--Functioning of all revenue officials--Matter of land revenue and tenancy--Power of Board of Revenue of superintendence, control and overseeing the functioning of all revenue officials and revenue Courts in the matter of land revenue and tenancy is well entrenched--Held: Board of Revenue possessed the power of revision. [P. 134] A
1991 SCMR 689, rel.
Mr. Bashir Mughal, Advocate for Petitioners.
Mr. Farid Khan Swati, Advocate for Respondents.
Date of hearing: 3.2.2009.
Judgment
Zia-ud-Khattak, J.--Mst. Saleem-un-Nisah and five others, petitioners have assailed the remand order dated 05.09.2006 passed by learned Member Board of Revenue NWFP Camp Court Abbottabad in Revision Petition No. 207/05 and prayed that the same be declared to have been passed without lawful authority and of no legal effect.
The petitioners happened to be landlords while the respondents are their tenants. The former filed a suit in September, 2001 for produce of crops of Rabi 2001 and Kharif 2001 and prayed for rent of Rs.500/- till decision of the case or any appropriate compensation of produce in respect of khasra Nos.193 and 194 situated in village Sheikh Abad, Tehsil and District Mansehra.
The tenants/respondents contested the suit and the DDOR/trial Court after hearing the parties vide judgment dated 23.09.2003 passed a decree of produce of Rs.13577/- alongwith ejectment against the tenants/respondents. However, the latter were held entitled to Rs.71,920/- as costs of improvements. Feeling aggrieved by the said order, both the parties filed appeals before the DOR/Collector, Mansehra, who vide his order dated 21.05.2004 dismissed the appeals and maintained the order of DDOR, Mansehra. Against the said order two appeals/revisions were filed before the Revenue Appellate Court No. IV, Abbottabad, who vide his order dated 28.07.2005 accepted the appeal/revision of the landlords to the extent of cost of crops during pendency of suit and the tenants were held entitled to Rs.71,920/- as costs of improvements. Dissatisfied with the said order, the tenants preferred a revision before Member Board of NWFP Camp Court at Abbottabad, who after hearing the parties vide judgment and order dated 05.09.2006 accepted the revision and remanded the case to the Revenue Appellate Court No. IV, Abbottabad with the direction to decide the case on merits in accordance with law.
Learned counsel for the petitioners contended that the Board of Revenue did not possess the powers of revision under Section 56 of the NWFP Tenancy Act, 1950 and, therefore, the impugned order passed in revisional capacity was illegal and without jurisdiction.
We have heard the learned counsel for the parties and perused the record.
Section 4 of the West Pakistan Board of Revenue Act, 1957 as well as the provisions of the NWFP Tenancy Act, 1950 clearly establish that power of the Board of Revenue of superintendence, control and overseeing the functioning of all revenue officials and revenue Courts in the matter of land revenue and tenancy is well entrenched. A similar question had come up for consideration before the Apex Court in the case reported in 1991 SCMR 689; in that it was held that the Board of Revenue possessed the powers of revision. Therefore, the contention of learned counsel for the petitioners has got no force.
Moreover, it has been settled time and again that the writ lies against the final adjudication. The remand order does not finally decide the dispute, as the authority that decided the case earlier has to re-decide it, therefore, this petition against the remand order is not maintainable as the order passed in revision, being not a final order cannot be interfered with in writ jurisdiction.
Consequently, this petition being devoid of merits is dismissed alongwith CM No. 194/06.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 134 (DB)
[Abbottabad Bench Abbottabad]
Present: Zia-ud-Din Khattak and Ghulam Mohy-ud-Din Malik, JJ.
M/s. PAK CHINA FERTILIZERs (PVT) LTD. through
its Directors--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER, HARIPUR--Respondent
W.P. No. 55 of 2009, decided on 5.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--S. 144 (4 & 5)--Constitutional petition--Imposed ban on removal of machinery out of factory premises--Assailed the validity of order promulgated by DCO--Due to default in payment on account of electricity/gas bills and dues of ex-labourers, management intended remove the machinery out of factory premises--Validity--Under Section 144, Cr.P.C. Distt. Coordination Officer has powered and jurisdiction in an emergency to issue an order to prevent apprehended danger likely to disturb the public peace--If DCO had erroneously exercised jurisdiction, it would be case of merely an illegal order erroneously passed in exercise of jurisdiction and not a case of an order passed without jurisdiction and being voidable order, it is liable to be set aside at the instance of an aggrieved person in legal proceeding--Factual controversy is involved and alternate, adequate and efficacious remedy is available to the petitioner under Criminal Procedure Code, for redressal of their grievance, they could not question the validity of order u/S. 144, Cr.P.C. and Art. 199 of the Constitution--Petition was not maintainable. [P. 136] A, B & C
Mr. Muhammad Umar Malik, Advocate for Petitioner.
Mr. Abbas Sargeen, Advocate for Respondent.
Date of hearing: 4.3.2009.
Judgment
Zia-ud-Din Khattak, J.--M/s. Pak China Fertilizers (Pvt.) Ltd., Karachi, petitioners have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan and assailed the validity of order promulgated by the District Coordination Officer, Haripur/respondent on 21.01.2009 under Section 144 Cr.P.C. imposing ban on shifting of machinery from the premises of Pak China Fertilizers Factory, Haripur for a period of two months.
The necessity for this action (according to the order), arose when it was made to appear to the District Coordination Officer, Haripur that due to the default in payment of Rs.21.663 (millions) on account of electricity/gas bills and dues of the ex-labourers, the management intended to remove the machinery out of the factory premises which was likely to disturb the public peace and tranquility.
The learned counsel for the petitioners contended that the District Coordination Officer is appointed under NWFP Local Government Ordinance, 2001 and no such powers have been given to him to impose Section 144 Cr.P.C; that the provisions of Section 144 Cr.P.C. have been invoked maliciously by Respondent No. 1 (to coerce the petitioners to clear WAPDA/SNGPL dues and pay outstanding wages to the ex-labourers) and without any imminent danger to public peace and, therefore, the impugned order was illegal.
The learned Deputy Advocate General appearing for the State/respondent raised a legal objection to the maintainability of this writ petition. According to him, the petitioners should have in the first instance approached the Court of Sessions at Haripur for the relief sought in this petition. In this connection, he referred to Section 439-A Cr.P.C. whereby an order under Section 144 Cr.P.C. could be revised.
We have heard the learned counsel for the parties and perused the record.
It is not denied that under Section 144 Cr.P.C. the District Coordination Officer has now the powers and jurisdiction in an emergency to issue an order to prevent apprehended danger likely to disturb the public peace. The District Coordination Officer, Haripur having immediate knowledge of local conditions was satisfied that there was an emergency and that it was necessary to impose ban on removal of machinery out of the factory premises? If the DCO (as alleged) had erroneously exercised jurisdiction over the subject-matter, it would be a case of merely an illegal order erroneously passed in the exercise of jurisdiction and not a case of an order passed without jurisdiction and being voidable order, it is liable to be set-aside at the instance of an aggrieved person in appropriate legal proceedings, either by having it rescinded or altered under sub-sections (4) & (5) of Section 144 Cr.P.C. or by filing a revision petition to the Sessions Court under Section 439-A Cr.P.C.
Petitioners have alleged malice, which is essentially a question of fact requiring recording of evidence which exercise cannot be undertaken in writ proceedings. Since, factual controversy is involved in this case and alternate, adequate and efficacious remedy is available to the petitioners under the Criminal Procedure Code, 1908 for redressal of their grievance, they could not question the validity of order under Section 144 Cr.P.C. under Article 199 of the Constitution.
The writ petition being not maintainable is dismissed alongwith CM No. 49/09 with the observation that if need be and advisable, the petitioners may assail the impugned order either by filing an application under sub-sections (4) & (5) of Section 144 Cr.P.C. or revision petition to the Sessions Court under Section 439-A Cr.P.C.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 137 (DB)
[Abbottabad Bench Abbottabad]
Present: Ghulam Moh-ud-Din & Zia-ud-Din Khattak, JJ.
Mst. ROZINA REHMAN and another--Petitioners
versus
BABAR KHAN S.I., INVESTIGATION, STAFF P.S.
HARIPUR & others--Respondents
W.P. No. 53 of 2007, decided on 25.2.2009.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 173 & 249-A--Constitutional petition--Re-investigation--Legality of investigation by Police--Complainant exonerated of the charge on ground of compromise--After acquittal of accused there was nothing left to be re-investigated or tried in Court of law--Validity--Police if felt expedient to re-investigate the case, right course was that before acquittal order of accused they should have dropped the prosecution and sough permission of the Court to re-open the case--No bar to reinvestigate the case and submit a second report, but matter becomes totally different when a police report being a final report u/S. 173, Cr.P.C. is submitted and Court after trial acquit the accused--Held: After acquittal despite identification parade there was nothing left in case to be reinvestigated by police which amounted to misuse of process of law and is not sustainable--Petition was allowed.
[Pp. 138 & 139] A & B
Mr. Saeed Akhtar, Advocate for Petitioners.
Malik Amjad & Mr. Abdul Hakeem, DAG for State.
Date of hearing: 11.2.2009.
Judgment
Zia-ud-Din Khattak, J.--Muzammal, a baby-boy was kidnapped on 01.10.2005. On the report of his mother Mst. Shamim Bibi/Respondent No. 4 a case vide FIR No. 728 under Section 363 PPC was registered on 04.10.2005 in Police Station City Haripur in that she charged one unknown lady for the kidnapping of her child and stated that she could identify the culprit. Subsequently, she in her supplementary statement and her husband Noor Elahi/Respondent No. 5 in his statement under Section 161 Cr.P.C. charged Mst. Shahnaz Bibi alias Shaheen Gul/Rani Bibi for the crime. During investigation of the case, the complainant/Respondent No. 4 identified Mst. Shahnaz Bibi before a Judicial Magistrate in regular identification parade held on 06.02.2006 and on completion of investigation challaned to the Court of Judicial Magistrate, 1st Class No. III, Haripur, where she was formally indicted for the offence, but on 19.06.2006 the complainant/Respondent No. 4 exonerated her of the charge on the ground of compromise whereupon the trial Magistrate vide order dated 17.07.2006 acquitted the said accused under Section 249-A Cr.P.C.
Five months thereafter i.e. on 11.12.2006, the complainant/Respondent No. 4 gave statement under Section 164 Cr.P.C. This time, she charged Mst. Rozina Rehman/Petitioner No. 1 for kidnapping her child while her husband Lajbar/Petitioner No. 2 for abetment, which prompted the local police to embark upon to re-re-investigate the case. They submitted an application for DNA test of Petitioner No. 2 but due to his death on 14.03.2008, the request could not be materialized. The legality of the afore-referred re-investigation of the case by the local police is impugned through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
The learned counsel for the petitioner on the strength of authority of the Apex Court reported in 2006 SCMR 373 contended that the local police is not competent to re-investigate the case, or to arrest the petitioner in a case which has already been decided by the Court of competent jurisdiction resulting in acquittal of the accused; that no permission from any Court is obtained regarding re-investigation and, thus, the same is bad in law and liable to be quashed. Conversely, learned counsel for the respondents No. 4 and 5 supported the impugned action and submitted that the police is all competent under the law to re-investigate the case and submit a second report under Section 173 Cr.P.C. for trial of the petitioner.
We have heard learned counsel for the parties and perused the record.
In the instant case, the local police after investigation challaned Mst. Shahnaz Bibi, who was tried and acquitted by JMIC-III, Haripur vide order dated 17.07.2006 under Section 249-A Cr.P.C, despite the identification parade where the said accused was properly picked up by the complainant/Respondent No. 4. After the acquittal of the accused there was nothing left in the said case/FIR to be re-investigated or tried in the Court of law. The police if felt expedient to re-investigate the case, the right course was that before acquittal order of the accused dated 17.06.2006 they should have dropped the prosecution and sought permission of the Court to re-open the case. Regrettably, the police did not meet any of the aforesaid requirements. No doubt, while the police report/challan under Section 173 Cr.P.C. is subjudice before a competent Court, there is no bar to re-investigate the case and submit a second report under Section 173 Cr.P.C. but the matter becomes totally different when a police report being a final report under Section 173 Cr.P.C. is submitted and the Court after trial acquit the accused.
In this view of the matter, we hold that after acquittal of Mst. Shahnaz Bibi despite identification parade there was nothing left in the case to be reinvestigated by the police which otherwise amounted to misuse of process of law and the same is not sustainable. Consequently, this writ petition is allowed and proceedings relating to re-investigation of case FIR No. 728/2005 Police Station City Haripur being illegal are hereby quashed.
(R.A.) Petition allowed.
PLJ 2009 Peshawar 139
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD JEHANGIR and another--Petitioners
versus
GOVT. OF NWFP through Collector Distt. D.I. Khan
and 4 others--Respondents
C.R. No. 221 of 2006, decided on 11.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for recovery claimed as loss to their business as commission agents was granted to plaintiffs--Deed was executed between municipal committee and plaintiffs--Respondents constructed a wall in front of the petition's shop without any justification which resulted in loss and damage to the business as well as to reputation of the petitioners--Validity--Suit premises were meant for running a canteen in vegetable market in order to provide food facilities to the public and change of purpose, without permission of the owner, was not warranted under the law, because any change of business in the premises was subject to consent of the owner for which the petitioners have never moved TMA for regularization--Petitioners have neither proved erection of wall by T.M.A. nor have proved the alleged damages to their business or mental loss and agonies for which the burden of proof heavily lay on them--Revision dismissed. [Pp. 142 & 143] A & B
Malik Muhammad Jehangir Awan, Advocate for Petitioners.
Mr. Gauhar Zaman Kundi, Advocate for Respondents No. 4 and 5 on pre-admission notice.
Date of hearing: 11.11.2008.
Order
Muhammad Jehangir and Qayyum Nawaz have brought the instant Civil Revision under Section 115 C.P.C against Govt: of NWFP and 4 others through which they are aggrieved from the judgment and decree dated 31.3.2006 passed by learned Additional District Judge-IV, D.I.Khan whereby the appeal filed by the defendants-respondents against the judgment and decree passed by learned Civil Judge-III, D.I.Khan dated 02.3.2000 was accepted and the suit of the petitioners was dismissed.
Briefly narrated the facts of the case are that the petitioners filed a suit for the recovery of Rupees One Million out of which they claimed Rs.8,00,000/- as loss to their business as Commission Agents and Rs.2,00,000/- as damages for mental and spiritual agony and torture.
It was averred in the plaint that a license for Fruit Commission Agents was granted to the plaintiffs-petitioners by defendants-respondents from 01.7.1985 to 30.6.1986 which was subsequently extended from 01.7.1986 to 30.6.1987. In this respect a deed dated 04.7.1986 was executed between the Municipal Committee (Respondent No. 4) and the plaintiffs. It was further averred that the site where the petitioners were running their business was previously allotted to Muhammad Saeed son of Abdur Rehman from which the plaintiffs-petitioners obtained the same on cash payment of Rs.9000/- and subsequently, all the arrears outstanding against Muhammad Saeed, the previous allottee amounting to Rs.5,541/92, were also paid to the Municipal Committee. Subsequently, the respondents served two notices on the petitioners on 23.9.1986 and 11.01.1987 which were duly replied but respondents constructed a wall in front of the petitioners' shop without any justification which resulted in loss and damage to the business as well as to the reputation of the petitioners and thus, they claimed the aforementioned damages.
The defendants were summoned who submitted their separate written statements in which the allegations contained in the plaint were hotly contested. Out of the pleadings of the parties, the learned trial Court framed the following issues:--
Whether plaintiffs have got cause of action and locus standi?
Whether plaintiffs are estopped to sue?
Whether shop, possession whereof was transferred to Plaintiff No. 1 vide deed executed dated 04.7.1986, was reconstructed by plaintiffs without any prior permission of defendants as such plea of new construction of shop could be of no help to plaintiffs?
Whether plaintiffs being license holder of Commission Agents can carry on their business in Fruit Market and can not justifiably be restrained by defendants and notices dated 23.9.1996 and 11.1.1987 are without legal justification?
Whether Defendant No. 1 got erected a wall in front of suit shop (of plaintiffs) just in order to stop business of plaintiffs?
Whether allegations/assertions made in plaint with regard to mala fide of defendants are correct which subjected plaintiffs to mental torture, agony, distress as such plaintiffs are entitled to compensation to the tune of Rs.200000/-?
Whether plaintiffs are entitled to decree as prayed for?
Relief
Additional Issues
Whether the suit is within time?
Whether plaintiff has not come with clean hands?
Whether defendants are entitled to special costs in case of dismissal of suit?
Parties produced their respective evidence as they wished to produce and the learned Civil Judge-III, D.I.Khan, after hearing the learned counsel for the parties and taking into consideration the data available on the record, vide judgment and decree in Suit No. 446/1 of 1996 decided on 02.3.2000, came to the conclusion that the plaintiffs-petitioners had proved their case, thus, granted a decree of Rupees One Million as prayed for in favour of the plaintiffs-petitioners against the defendants-respondents.
The defendants-respondents, being aggrieved, filed an appeal before the District Judge which came for hearing before learned Additional District Judge-IV, D.I.Khan who, after hearing the learned counsel for the parties and considering the evidence available on record, vide Civil Appeal No. 40/2005 decided on 23.5.2006, accepted the appeal of the respondents and dismissed the suit of the plaintiffs-petitioners. Hence, the instant Revision Petition.
Learned counsel for the petitioners submitted that the petitioners had purchased the suit shop from Muhammad Said and all the arrears outstanding against the original allotee were paid to the defendants-respondents. Elaborating his arguments, the learned counsel submitted that the erection of wall by the respondents was not warranted under the law which has not only damaged the business of the petitioners but also mentally and physically disturbed them and thus, it was prayed that the petitioners were entitled to Rupees one million as damages for loss to their business, mental torture and agony and the learned Appellate Court was not justified in disturbing the well, reasoned judgment of the trial Court.
Learned counsel for Respondents No. 4 and 5 appearing on pre-admission notice argued that there was no agreement of the lease of the shop between the T.M.A and the petitioners. The suit shop was situated in Vegetable and Fruit Market, specially meant for Canteen in order to provide refreshment and food facilities to the general public and customers. The earlier allottee Muhammad Said was also running a tea shop in the premises and when the said shop was transferred to the petitioners, they were also supposed to run Canteen in it and they, without any permission, started the business of Fruit and Vegetable Commission Agents and thus, they were rightly issued a notice to use the premises for the purpose for which it had been allotted. The petitioners were issued two consecutive notices dated 23.9.1986 and 11.01.1987 but instead of replying to the notices, they launched the instant proceedings. It was also argued that the respondents have never erected a wall in front of the shop and thus, the petitioners were not entitled to the damages as claimed.
I have heard the arguments of learned counsel for the parties and have gone through the record of the case.
Perusal of the record reveals that admittedly the suit premises were meant for running a Canteen in Vegetable Market in order to provide food facilities to the public and the change of purpose, without permission of the owner/TMA, was not warranted under the law because any change of business in the premises was subject to the consent of the owner for which the petitioners have never moved the TMA for regularization. The previous allottee, in whose favour the shop was allotted, has not been made a party who was admittedly running a tea shop in the premises and by transfer of the suit shop to the petitioners, they stepped into the shoes of the previous allottee and were bound to use the premises for the purpose for which it was meant and for any change of business the petitioners were required to move the T.M.A. for its regularization. There is no evidence on record that the respondents have erected a wall in front of the shop of the petitioners nor they have been evicted from the same shop.
Perusal of Ex.P.W.2/D-11 at page-88 of the revision file, would reveal that there was a dispute between Muhammad Farooq and Muhammad Jehangir regarding he construction of veranda in front of their respective shops and the petitioners submitted this application to the T.M.A. for resolution of dispute. The Commission Agents Association resolved this dispute vide Ex.P.W.2/D-3 and signatures of Muhammad Jehangir petitioner and Muhammad Yaqoob were obtained as token of its correctness. So, in the earlier application, the petitioners admitted the erection of a wall by Muhammad Farooq and not the T.M.A. The petitioners have neither proved the erection of wall by the T.M.A nor have proved the alleged damages to their business or mental loss and agonies for which the burden of proof heavily lay on them. Regarding the change of business of Canteen to that of Commission Agent shop, the petitioners can, at any time, move the concerned Officer under the prevailing law and the T.M.A has never created any hurdles in their way.
The judgment and decree of the learned appellate Court is perfectly sound and in consonance with the established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioners, therefore, the same is not liable to be interfered with.
In view of the facts and circumstances of the case narrated above, there is no force in this revision petition which is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 143 (DB)
[Abbottabad Bench]
Present: Zia-ud-Din Khattak and Ghulam Mehy-ud-Din Malik, JJ.
MUNIR HUSSAIN, ASSISTANT CONTROLLER (SECRECY) BOARD OF INTERMEDIATE AND SECODNARY EDUCATION ABBOTTABAD--Petitioner
versus
GOVT. OF NWFP through Secretary Elementary & Secretary Education Department and 3 others--Respondents
W.P. No. 122 of 2009, decided on 26.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Civil servant--Repatriating to his parent department--Transferred on deputation basis--Deputationist has to follow the rules and regulations of borrowing authority--Phenomenon of deputation--Validity--Deputation is a contract between borrowing and lending authorities which is liable to be terminated at any stage during prescribed period of deputation--Tenure of three years is not guaranteed period of service with borrowing authorities--Permissible maximum period as prescribed by initial order of deputation and it cannot be interpreted to be a vested right of a deputationist to insist for completion of tenure of deputation--Held: There is no law that a deputationist should complete the tenure for which he has been deputed. [Pp. 144 & 145] A & B
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Civil servant--Prematurely repatriated--Maintainability--Transferred on deputation basis--Whereby civil servant was prematurely repatriated may be an irregularity without affecting his terms and conditions of service or causing injustice to him which could not be assailed or interfered with in exercise of Constitutional jurisdiction--Petition was not maintainable. [P. 145] C
Mr. Khan Afzal Khan, Advocate for Petitioner.
Date of hearing: 26.3.2009.
Judgment
Zia-ud-Din Khattak, J.--Munir Hussain, petitioner has called in question the Notification No. SO (B&T)S&L/6-7/2008 BISE dated 11.03.2009 repatriating him to his parent department and prays that the same be declared to have been issued without lawful authority and of no legal effect.
Learned counsel for the petitioner contended that the petitioner was appointed as Assistant Controller Examination (Secrecy), BISE Abbottabad on deputation basis for a period of three years vide Notification dated 19.07.2008. However, in violation of rules of the Board and by violating the norms of service, the petitioner has been unilaterally repatriated without any fault on his part and without providing him opportunity of being heard.
We have considered the contentions of learned counsel for the petitioner and perused the record annexed with the petition.
Admittedly, the petitioner is a civil servant of Education Department of Government of NWFP and he was transferred on deputation basis to BISE Abbottabad. Although the deputationist has to follow the rules and regulations of the borrowing authority but despite the phenomenon of deputation he is considered to be a member of the cadre of his parent department. The deputation is a contract between the borrowing and the lending authorities which is liable to be terminated, at any stage during the prescribed period of deputation. The tenure of three years is not the guaranteed period of service with borrowing authority, rather it indicates the permissible maximum period as prescribed by the initial order of deputation and it cannot be interpreted to be a vested right of a deputationist to insist for the completion of the tenure of deputation.
It may be observed that there is no law that a deputationist should complete the tenure for which he has been deputed, It lies within the discretion of the competent authority to repatriate a deputationist as and when his services were not required by it/him (borrowing department) or the same were required by his parent department before the maturity of his tenure, as he is not supposed to work at the place of his own choice. Fida vs. Government of NWFP 2005 PLC (CS) 1207. The impugned order whereby the petitioner has been prematurely repatriated may be an irregularity without affecting his terms and conditions of service or causing injustice to him which could not be assailed or interfered with in exercise of constitutional jurisdiction.
Consequently, this petition being not maintainable is dismissed in limine alongwith CM No. 61/09.
(R.A.) Petition dismissed.
PLJ 2009 Peshawar 145
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
BAHADAR SHER and another--Petitioners
versus
FARHAD RASOOL and 3 others--Respondents
C.R. No. 42 of 2004, decided on 13.10.2008.
Muslims Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Civil Procedure Code, (V of 1908), S. 115--Suit for partition of respondents/plaintiffs--Decreed of--Assailed--Inheritance--Predecessor-in-interest of plaintiffs died prior to his father and they being offspring of a pre-deceased son, where not entitled to inheritance under Muslims Law--Contention of--By time when predecessor-in-interest was died Muslim Family Laws Ordinance, 1961 was intact and plaintiffs were entitled to inheritance of their grand-father--So they cannot be excluded by any stretch of imagination from inheritance of their grand-father--Subsequent declaration by Federal Shariat Court declaring S. 4 of Ordinance 1961 has got no relevancy to facts of case as it is death of pre-positus which will determine succession--Petition dismissed. [P. 148] A
Muslims Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Constitution of Pakistan, 1973, Art. 203-D--Inheritance--Status--S. 4 of Ordinance, 1961 had been declared by Federal Shariat Court to be un-Islamic, same is subjudice in appeal before Shariat Appellate Bench of Supreme Court--Operation of which stands suspended under Art. 203-D of Constitution. [P. 148] B
2002 SCMR 164, 2006 SCMR 1995, 2002 CLC 285 and
2005 CLC 1240, rel.
S. Abid Hussain Shah, Advocate for Petitioners.
Mr. Gohar Zaman Khan Kundi, Advocate for Respondents.
Date of hearing: 13.10.2008.
Judgment
This single judgment in C.R. No. 42/2004 will also dispose of the connected C.R. No. 43/2004 titled Bahadur Sher. Vs. Farhad Rasool and others as both the revision petitions involve a common question of law and facts.
Briefly narrated the facts are that vide Suit No. 138/1 instituted on 22.7.1996 Farhad Rasool and others, heirs of Malik Sherzad Khan, had prayed for partition against Bahadur Sher and others, heirs of Sherzad Khan, residents of Ghoriwala, Tehsil and District Bannu. The suit for partition was with respect to the shari share of the plaintiffs, the details of which have been given in the head notes of the plaint. It was averred in the plaint that according to the numberation of 1993-94 the suit property comprising of shops, Hujra and houses was the ownership of predecessor-in-interest of the parties whose inheritance devolved on Bahadur Sher son, Mst. Asma Pari daughter of Sherzad Khan defendants vide Mutation No. 2512 attested on 22.11.1987 Ex.P.W.5/1 and thus, they became the joint owners of the suit property with the exclusion of Farhad Rasool etc plaintiffs in suit No. 138/1 being grandson and daughter of Sherzad which pertained to agricultural land. They prayed for the separation of 2/5 share by way of partition. The defendants were summoned who contested the suit and out of the pleadings of the parties, eight issues were framed. The main contention of the defendants was that the predecessor-in-interest of the plaintiffs died prior to his father and they being the offspring of a pre-deceased son, were not entitled to the inheritance under the Muslims Law. On this particular aspect, additional issue has been framed by the learned trial Court.
As against this, Bahadur Sher and others filed a cross suit Bearing No. 238/1 in which they sought for declaration regarding the same property to the effect that the father of Farhad Rasool etc defendants namely Falaksher Khan died prior to the death of Sherzad Khan and thus, under the Mohammedan Law of inheritance, Farhad Rasool etc are not entitled to their share in the inheritance of Sherzad Khan. It was prayed that the plaintiffs Bahadur Sher etc be declared as the sole owners of the suit property and the adverse entries in the names of the offspring of Falaksher namely Farhad Rasool be deleted and the same be corrected. It was also submitted that the father of the plaintiff Bahadur Sher and grand father of Farhad Rasool etc namely Sherzad Khan had transferred the agricultural land to Bahadur Sher etc plaintiffs vide Mutation No. 20486 dated 29.12.1982, and thus the grand sons had no right in the inheritance of Sherzad Khan deceased. Defendants were summoned who submitted their detailed written statement and it was averred that although their father died prior to the death of Sherzad Khan but by then Section 4 of the Muslims Family Laws Ordinance, 1961 was in force which remains still intact and thus, they were entitled to the inheritance of their grandfather. The learned trial Court framed eight issues including the relief and with respect to the entitlement of the plaintiffs, Issue No. 6 was framed. The parties produced their respective evidence as they wished to adduce and the learned trial Court, vide judgment and decree in Suit No. 138/1 of the year 1996 decided on 12.11.2002, granted a preliminary decree in favour of Farhad Rasool and others and the cross suit filed by Bahadur Sher and others challenging the entitlement of Farhad Rasool and others as sons of pre-deceased son of Sherzad Khan, was dismissed on 10.4.2002.
Bahadur Sher and others filed two separate appeals, one against the dismissal of their declaratory suit which was registered as Civil Appeal N.27/13 of 2002 and the other Civil Appeal No. 10/15 of the year 2002 which came for hearing before the learned District Judge, Bannu who, vide judgment and decree dated 30.10.2003, dismissed the appeals and maintained the judgments and decrees of the learned trial Court.
The only question agitated by the learned counsel for the petitioners Bahadur Sher etc was that the suit property originally belonged to Sherzad Khan deceased who had got two sons Falaksher and Bahadur Sher and a daughter Mst. Pari Zinda. It was averred that Falsksher, the predecessor-in-interest of Farhad Rasool etc plaintiffs in Suit No. 138/1, died prior to the death of Sherzad Khan and thus, being the offspring of a pre-deceased son were not entitled to inheritance under the Muslims Law. It is pertinent to note that Sherzad Khan, by way of abundant caution, transferred some agricultural land in favour of Farhad Rasool etc grandsons vide sale Mutation No. 2517 attested on 22.11.1987 which is Ex.P.W.5/2 in Suit No. 238/1 of 1996 titled Bahadur Sher Vs. Farhad Rasool. The only contention raised by the learned counsel for the petitioners is that Section 4 of the Muslims Family Laws Ordinance, 1961 has been declared as unislamic and thus, Farhad Rasool etc were not entitled to the inheritance of Sherzad Khan deceased being the offspring of a pre-deceased son. There is yet another mutation Bearing No. 20017 attested on 27.5.1981 Ex.P.W.2/5 at page-121 of civil Suit No. 238/1 which pertains to the agricultural land and Sherzad Khan deceased, during his life time, has transferred by way of gift some of the agricultural land in favour of Farhad Rasool and others, his grand sons. The controversy in the present, case now relates to the property consisting of shops, Hujra and houses.
As against this, the learned counsel for the respondents Fahad Rasool etc submitted that although Section 4 of the Muslim Family Laws Ordinance has been declared as unislamic by the Federal Shariat Court but that is impugned in appeal before the Shariat Appellate Bench of the Supreme Court of Pakistan and once an appeal is filed, then, the operation of the same automatically stands suspended under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973.
I have heard the arguments of learned counsel for the parties and scanned the record with their assistance.
This is an admitted fact that Farhad Rasool etc plaintiffs are the sons and daughters of Falaksher Khan who died prior to the death of his father Sherzad Khan, who died in the year 1987 and the inheritance Mutation No. 2512 was attested on 22.11.1987. Perusal of pedigree table on this mutation, copy Ex.P.W.5/1 in Suit No. 238/1 of 1996 titled Bahadur Sher Vs. Farhad Rasool etc decided on 10.4.2000 would show that the deceased Sherzad Khan was survived by Bahadur Sher son, Mst. Asma Pari daughter and Falaksher Khan son who has been shown as pre-deceased survived by Farhad Rasool, Muhammad Ali Khan sons and Shamim, Tasleem Bibi daughters. By then the Muslim Family Laws Ordinance, 1961 was intact and Farhad Rasool etc were entitled to the inheritance of their grand father Sherzad Khan. So they cannot be excluded by any stretch of imagination from the inheritance of their grand father. So, the subsequent declaration by the Federal Shariat Court declaring Section 4 of the Ordinance ibid has got no relevancy to the facts of the present case as it is the death of the pre-positus which will determine the succession.
Even if it is presumed that by then Section 4 of the Ordinance ibid had been declared by Federal Shariat Court to be unislamic, the same is subjudice in appeal before the Apex Court (Shariat Appellate Bench of the Supreme Court of Pakistan), the operation of which stands suspended under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973 as held in the dicta handed down in the cases of Mst. Samia Naz and others. Vs. Sheikh Pervaiz Afzal and others (2002 SCMR 164), Mst. Bhaggay Bibi and others. Vs. Mst. Razia Bibi and others (2005 SCMR 1595), Muhammad Sharif through legal heirs and 5 others Vs. Nawab Ali and 2 others (2002 CLC 285 Lahore) and Muhammad Khan and others Vs. Muhammad Ishaq and others (2005 CLC 1240 Peshawar).
In view of the facts and circumstances of the case narrated above, there is no force in these revision petitions which are dismissed with no order as to costs.
(Sh.A.S.) Revision dismissed.
PLJ 2009 Peshawar 149
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
UBAIDULLAH JAN--Petitioner
versus
IKRAMULLAH KHAN--Respondent
C.R. No. 163 of 2007, decided on 20.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision petition--Pre-emption suit of respondent partly decreed in his favour--Maintained in appeal--Assailed--Notice talb-e-ishhad was duly exhibited on record without any objection from other wise--No objection to its admissibility can be taken at such stage--Notice of talb-e-ishhad has been duly proved by producing scribe of notice as well as one of marginal witnesses who had testified contents of notice and in such respect, trial Court has recorded findings in favour of respondent to which no exception can be taken--Case has been duly proved by producing overwhelming evidence and statement of witnesses have not been shattered in cross examination--Concurrent findings of facts have been recorded by Courts below which cannot be set at naught unless and until same are proved to be perverse or erroneous--Judgments and decrees of two Courts below are based on sound reasoning are strictly in accordance with law and established principles of appreciation of evidence--Thus findings are not liable to be interfered with--Petition dismissed.
[P. 152] A, B, C & D
2001 SCMR 798, 1995 CLC 1857 Peshawar, 2000 SCMR 346, PLD 1994 SC 291 and PLD 2002 SC 293, rel.
Mr. Muhammad Yousaf Khan, Advocate for Petitioner.
Mr. Farid Ullah Khan Kundi, Advocate for Respondent.
Date of hearing: 19.11.2008.
Judgment
Obaidullah Jan petitioner is aggrieved from the judgment and decree of learned Civil Judge, Tank dated 28.3.2005 through, which the pre-emption suit of the respondent was partly decree to the extent of 20 kanals 02 marlas on payment of sale consideration of Rs. 36,160/- against the petitioner, which was maintained by the learned Additional District Judge, Tank vide judgment and decree dated 28.2.2007.
Briefly narrated the facts of the case are that Ikramullah Khan respondent brought a pre-emption suit against Obaidullah Jan petitioner, the sale of which was incorporated in Mutation No. 2175 attested on 25.1.2002 on the ground that the respondent is having a superior right of pre-emption regarding the land fully detailed in the head notes of the plaints which has been purchased by the petitioner i.e. the vendee-defendant and has incorporated an inflated amount in the suit mutation. It was asserted that the respondent-pre-emptor being co-sharer, contiguous owner and participator in appendages and immunities is entitled to the decree for pre-emption. This suit was registered as Suit No. 7/1 decided on 28.3.2005 by the learned Civil Judge. The respondent had averred that he obtained the knowledge on Wednesday, the 30th day of January, 2002 at 04 PM through Aftab Alam and there and then he declared his intention to pre-empt the suit land and subsequently, on 04.2.2002, issued notice Talb-e-Ishhad to the vendee-defendant.
The vendee-defendant-petitioner was summoned who submitted his detailed written statement in which the allegations contained in the plaint were hotly contested and the learned trial Court framed the following issues:--
Whether the plaintiff has got a cause of action?
Whether the plaintiff is estopped to sue by his own conduct?
Whether the suit is time barred?
Whether the plaintiff has a superior right of prior purchase of the land than the defendant?
What is the market value of the land?
Whether the plaintiff has performed all the talabs as per pre-emption law?
Whether the plaintiff is entitled to the relief as prayed for?
Relief
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, passed a partial decree in favour of the respondent vide judgment and decree in Suit No. 7/1 of 2002 decided on 28.3.2005. Being aggrieved, the petitioner filed an appeal against the said judgment which came for hearing before the learned Additional District Judge, Tank who, after hearing the learned counsel for the parties and perusing the record, dismissed the appeal of the petitioner vide judgment in RCA No. 69 of 2006 decided on 28.2.2007 and hence, the instant revision petition.
It was argued by Muhammad Yousaf Khan, learned counsel for the petitioner that the respondent had not proved the requisite demands as envisaged under Section 13 of the NWFP Pre-emption Act, 1987. It was also submitted that one of the marginal witnesses of the notice had died during the pendency of the suit. Neither permission for secondary evidence was obtained nor any person conversant with his handwriting was produced to prove the notice Talb-e-Ishhad. Reliance in this respect was placed on the dicta handed down in the cases of Akhtar Nawaz etc. Vs. Muhammad Nazir etc. (NLR 2005 Civil Lahore 174) and Javed Khan Vs. Ghulam Yasin (2004 CLC Peshawar 1271). On the strength of these rulings, it was contended that the learned two Courts below have fallen into an error by granting the decree in favour of the respondent.
Mr. Faridullah Khan Kundi, learned counsel for the respondent submitted that the respondent had led overwhelming evidence to prove the jumping demands the moment he came to know regarding the suit transaction. The name of the informer, date, time and place have been duly mentioned in the plaint as well as in the notice Talb-e-Ishhad. The scribing of the notice was duly proved by PW Saeed-ur-Rehman Petition Writer. Furthermore, the statement of Ikramullah respondent was recorded and he has proved the assertions contained in the plaint. Aftab Alam was produced as PW-5. He is the informer who informed the respondent regarding the suit transaction and there and then, the respondent declared his intention to pre-empt the suit transaction. He also testified to the contents of the notice Talb-e-Ishhad Ex.P.W.3/2 and thus, it was submitted that the learned trial Court has rightly passed a decree in favour of the respondent. The learned counsel for both the parties restricted their arguments to Issue No. 6 with respect to the performance of Islamic demands and no other issue was agitated.
I have given my anxious consideration to the facts and circumstances of the case and to the valuable arguments of learned counsel for the parties.
As regards notice Talb-e-Ishhad, which was duly exhibited on the record without any objection from the other side, in view of the judgment reported in the case of National Bank of Pakistan Bannu Branch Vs. Syed Mir (1987 CLC Peshawar 1103), no objection to its admissibility can be taken at this stage. The notice Talb-e-Ishhad has been duly proved by producing the scribe of the notice as well as one of the marginal witnesses who had testified to the contents of the notice and in this respect, the learned trial Court has recorded findings in favour of the respondent to which no exception can be taken. Minor discrepancies in the statements of the P.Ws cannot be taken as a ground to non-suit the plaintiff-respondent when otherwise the case has been duly proved by producing overwhelming evidence and the statements of the witnesses have not been shattered in the cross examination in view of the judgments handed down in the cases of Abdul Qayyum through L.Rs. Vs. Mushke Alam and another (2001 SCMR 798) and Imtiaz Ahmad. Vs. Haji Muhammad Ramzan and 2 others (1995 CLC 1857 Peshawar).
Furthermore, the concurrent findings of facts have been recorded by the learned two Courts below which cannot be set at naught unless and until the same are proved to be perverse or erroneous in view of the dicta laid down in the cases of Abdur Rahim and another Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
The judgments and decrees of the two Courts below are based on sound reasoning, are strictly in accordance with law and the established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by learned counsel for the petitioner. Thus, the findings are not liable to be interfered with.
Resultantly, this civil revision fails which is dismissed with no order as to costs.
(Sh.A.S.) Revision dismissed.
S
PLJ 2009 Peshawar 153
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
WAPDA through CHAIRMAN WAPDA, LAHORE
and 7 others--Petitioners
versus
ANJUM TARIQ--Respondent
C.R. No. 206 of 2004, decided on 18.11.2008.
Electricity Act, 1910 (IX of 1910)--
----S. 20--Detection charges--No notice was issued--Suit for declaration challenging the vires of fine was imposed as detection charges-decreed--Assailed--Cardinal principle of law is that before taking any action against any person, a notice must be given to him as envisaged u/S. 20 of Electricity Act, and any action taken at back of consumer and without notice to him, will be violative of principles of natural justice--Checking of meter without notice to consumer is violative of principles of natural justice and is illegal--Concurrent findings of two Courts below are based on correct appreciation of evidence--No misreading or non-reading of evidence has been pointed out by petitioners--Established principles of appreciation of evidence which findings cannot be set at naught in revisional jurisdiction of High Court--Petition dismissed. [P. 155] A, B & C
PLJ 2003 Lahore 1213, ref.
2000 SCMR 346, PLD 1994 SC 291 & PLD 2002 SC 293, rel.
Mr. Minhaj uddin Alvi, Advocate for Petitioners.
Mr. Sultan Shaharyar Khan Marwat, Advocate for Respondent.
Date of hearing: 10.11.2008.
Judgment
WAPDA through Chairman WAPDA Lahore and 7 others have challenged the judgment dated 20.12.2003 of learned Additional District Judge-II, Bannu whereby the appeal filed by the petitioners was dismissed and the judgment dated and decree dated 08.3.2007 of learned Civil Judge-II, Bannu, decreeing the suit of the respondent, was maintained.
The averments in the plaint are that plaintiff Anjum Tariq is the consumer of electricity of WAPDA for the last 18 years which was installed after proper test report and he used to pay the bills for actual consumption as and when received. It is averred in the plaint that on 22.11.2000 the WAPDA authorities removed the meter of the plaintiff without notice and instead installed a second meter and on the same day handed over two bills, one for consumption of electricity and the other for detection of illegal use of energy by the plaintiff Anjum Tariq. Challenge has been put to action dated 15.11.2000 regarding detection bill which has been termed as illegal, based on malafide and against the provisions of relevant law.
The defendants were summoned who submitted their detailed written statement and out of the pleadings of the parties, as many as six issues including the relief were framed. The parties led their respective evidence as they wished to adduce and the learned trial Court, after hearing the learned counsel for the parties and taking into consideration the data available on the record, passed a decree in favour of plaintiff-respondent vide Suit No. 71/1 decided on 08.3.2007. The petitioners-defendants, aggrieved from the said judgment and decree, filed Civil Appeal No. 103/13 which came for hearing before Muhammad Adil Khan, Additional District Judge-III, Bannu who, vide detailed judgment and decree dated 20.12.2003, while concurring with the learned trial Court, dismissed the appeal of the petitioners-defendants and hence, the instant revision petition.
It was argued by the learned counsel for the petitioners that the respondent had been burdened with extra sum as he had illegally utilized the energy and when the WAPDA authorities detected the same, a detection bill was sent. The learned trial Court as well as the appellate Court have not taken into consideration the evidence produced by the petitioners-defendants in its true perspective and have illegally granted the decree in favour of the respondent.
The learned counsel for the respondent submitted that the action taken by the WAPDA authorities was against the principles of natural justice as no notice regarding the removal or change of meter from the premises of the respondent was given nor anybody was associated when the meter was being removed by the WAPDA authorities and thus, the removal of meter, in the absence of the respondent, was violative of the provisions of Electricity Act, 1910.
I have gone through the record of the case and have considered the valuable arguments of learned counsel for the parties.
PW-1 Jehangir Abbasi, Junior Clerk, MNT appeared before the Court and he has categorically stated in examination-in-chief that there was no defect in the suit meter. The statement of Anjum Tariq respondent was recorded who has corroborated the contents of the plaint. Sher Daraz Meter Reading Supervisor appeared as PW-3 who has produced the meter reading from June, 2000 to March, 2002 Ex.P.W.1/1 which was strictly in accordance with the consumption data. DW-1 Nisar Ahmad LS-I was produced by the petitioners who stated that during the days when the meter from the premises of the respondent was removed, he was posted as LS-II in the concerned Sub Division PESCO WAPDA, Bannu. The meter of the respondent had been removed which was burdened with penalty of Rs.83,895/-. The meter was sent to Laboratory which was found defective. In cross examination he admitted that the meter had been subjected to penalty before Laboratory test.
This is the cardinal principle of law that before taking any action against any person, a notice must be given to him as envisaged under Section 20 of the Electricity Act and any action taken at the back of the consumer and without notice to him, will be violative of the principles of natural justice especially in the circumstances when admitted by DW-1 in his cross examination that before the Laboratory test, the fine was imposed on the respondent, meaning thereby that he was convicted before trial. The issuance of a notice is the vested right of a person or at least at the time of removing the meter, respectables from the locality ought to be associated with the proceedings. Checking of the meter without notice to the consumer is violative of the principles of natural justice and is illegal as held in the judgment handed down in the case of Water and Power Development Authority, through its Chairman WAPDA House, Lahore and others. Vs. Mian Shaukat Hayat (PLJ 2003 Lahore 1213).
The concurrent findings of the two Courts below are based on the correct appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioners. The learned two Courts below have arrived at concurrent findings and have considered the evidence strictly in accordance with the established principles of appreciation of evidence which findings cannot be set at naught in the revisional jurisdiction of this Court as held in the dicta handed down in the cases of Abdur Rahim and another Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994. SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
Resultantly, this revision petition being without merits is dismissed with no order as to costs.
(Sh.A.S.) Petition dismissed.
PLJ 2009 Peshawar 156
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA, Lahore and 4 others--Appellants
versus
GHULAM SABIR and 10 others--Respondents
RFA No. 24 of 2007, decided on 01.12.2008.
Land Acquisition Act, 1894 (I of 1894)--
----S. 23--Acquisition for the company and that for public purpose--Held: If the acquisition is for the company, the company will be obliged to pay 25% to the expropriated land owners--If the acquisition for the public purpose--Inspite of the fact that acquiring department was a company i.e. WAPDA but the acquisition was for the public purpose--Thus the landowners held entitled to 25% compulsory acquisition charges. [P. 159] A
PLJ 2001 Pesh. 6.
Mr. Minhaj-ud-din Alvi, Advocate for Appellant.
Mr. Abdul Qayyum Qureshi, Advocate for Respondent.
Date of hearing: 10.11.2008.
Judgment
Water and Power Development Authority through Chairman WAPDA, Lahore and others have filed this appeal under Section 54 of the Land Acquisition Act, 1894 through which they have impugned the judgment and decree dated 27.12.2007 passed, by learned Additional District Judge-V/Referee Court. D.I.Khan under the Land Acquisition Act, 1894, whereby the reference petition filed by the land owners-respondents was accepted and the compensation was enhanced from Rs.4,346/46 to Rs. 16,300/80 per kanal alongwith 25% compulsory acquisition charges and 8% compound interest from the date of taking over possession till the payment of the entire awarded compensation.
Briefly narrated the facts of the case are that the Government of NWFP was in need of acquiring some land for the construction of Drain No. 22 CRBC Stage-II WAPDA for which the land of the respondents measuring 175 acres, 01 kanal and six marlas situated in the area of Gara Ashiq, Tehsil and District D.I.Khan was acquired. The land owners-respondents, while not accepting the award, opted to file Reference Petition praying therein for referring the matter to the civil Court i.e. a Court constituted through notification under the Land Acquisition Act, 1894. Resultantly, the matter was referred to the Court of Additional District Judge-V/Referee Court, D.I.Khan. The land in this case had been acquired through Award No. 281 dated 27.5.2004.
The averments in the petition were that the learned Land Acquisition Collector had announced his Award on 27.5.2004 and had awarded a meager compensation of Rs.4,346/46 per kanal. It was alleged that the one year average, upon which the learned Collector has relied, was not relevant. The land acquired from the respondents had broad future prospects and was highly potential in value. Thus, the learned Land Acquisition Collector had under assessed the land of the respondents. It was also averred that the land acquired from the respondents was completely levelled and Abad land situated about 1« furlong from Multan road Indus Highway and was adjacent to the Abadi of Gara Ashiq where Male and Female Schools. Veterinary Hospital, mettaled road and all the facilities and immunities of life were available. It was also averred that suit land is building site and is commercial in nature. The adjacent lands are being sold at the rate of Rs. 1,20,000/- per kanal. It was also averred that one year average of 1997 was considered but the Award had been announced on 27.5.2004. Furthermore, the market value as determined by the Deputy Commissioner was Rs. 14,000/- per kanal which is being substantially increased due to high trend of inflation and the respondents are entitled to the then prevailing market value.
The defendants-appellants were summoned who submitted their detailed written statement wherein the allegations in the petition were hotly contested and the pleadings of the parties were reduced into following issues:--
Whether the petitioners have got a cause of action?
Whether the petition is within time?
Whether the compensation amount assessed in the disputed Award is wrong, illegal and against the facts and the petitioners are entitled to the enhanced rates as prayed for?
Whether the petitioners are entitled to the relief prayed for?
Relief.
The parties then produced their respective evidence as they wished to produce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, passed the impugned judgment and decreed referred to above.
Mr. Minhajuddin Alvi, learned counsel for the appellants submitted that the learned trial Court has not taken into consideration the evidence recorded in the case and the revenue record, wherein the suit land was shown as Nehr/irrigated type of land. The learned trial Court should have awarded the compensation as determined in the one year average of a year preceding the Notification under Section 4 of-the Land Acquisition Act.
It was also argued that the learned trial Court has not taken into consideration the overwhelming evidence in the shape of documentary as well as oral brought by the parties on' the record and has erroneously determined the compensation to the tune of Rs. 16,300/80 per kanal alongwith compound interest at the rate of 8% plus compulsory acquisition charges at the rate of 25%.
As against this Mr. Abdul Qayyum. Qureshi, learned counsel appearing for the respondents argued that the acquired piece of land was one chunk of land, was situated near the Abadi, was highly potential in value and in fact was building site and commercial in nature. The learned Land Acquisition Collector had under assessed the land of the respondents by awarding a very meager compensation and the learned Referee Court had taken into consideration the data available on the record and has properly assessed the compensation as well as compound interest and 25% compulsory acquisition charges. It was next contended that WAPDA, being a Company, was obliged to pay 25% compulsory acquisition charges and not 15%. Referring to various provisions of the WAPDA Act, it was submitted that WAPDA is a body corporate/Company with a common seal and perpetual succession and thus, acquisition of land was for a Company and the learned Referee Court has rightly given 25% compulsory acquisition charges.
I have heard the learned counsel for the parties and with their valuable assistance have scanned the record.
The learned trial Court has enhanced the compensation and has ordered that the respondents/land owners will be entitled to 8% compound interest from the date of taking over possession till the payment of the entire awarded compensation in view of Section 28 of the Land Acquisition Act but the learned Referee Court was oblivious of the situation that Section 28 had been amended vide NWFP Ordinance No. V of 1983 and 8% compound interest per annum already permissible on the total awarded compensation was reduced to 6% simple interest. Thus, to this extent, the judgment and decree of the learned Referee Court needs modification.
The award of 25% compulsory acquisition charges by the learned Referee Court is also erroneous under Section 23 of the Land Acquisition Act. Although under subsection (2) of Section 23 of the Act ibid if the acquisition of land is for a public purpose, then the land owner would be entitled to the compulsory acquisition charges at the rate of 15% but if the acquisition for a company, then, besides compensation, the land owners will be entitled to 25% compulsory acquisition charges. This is an admitted legal position that if the acquisition is for a Company, the Company will be obliged to pay 25% to the expropriated land owners but perusal of the record reveals that the acquisition of the land was for a public purpose. Although WAPDA is a Company in view of the WAPDA Act, 1958 but Section 13 of the Act ibid provides that the land acquired by the authorities shall be deemed to be an acquisition for a public purpose within the meanings of the Land Acquisition Act, 1894. This is on the record that the acquisition was for the purpose of construction of Chashma Right Bank Canal which was a public purpose. So. in spite of the fact that the acquiring Department was a Company but the acquisition was for public purpose. Thus, the appellants were not obliged to pay 25%, rather the land owners were entitled to 15% compulsory acquisition charges as held in the judgments handed down in the cases of Muhammad Salim Khan and another. Vs. WAPDA (PLJ 2001 Peshawar 6) and Haji Fateh Khan and others. Vs. Govt: of Pakistan (PLD 1997 Peshawar 24). Thus, the judgment and decree of the learned Referee Court is liable to be modified to that extent also.
Now coming to the merits of the case, perusal of the record reveals that the learned Deputy Commissioner had recommended the market value of the suit land to be Rs. 14000/- per kanal but the learned Land Acquisition Collector, in his impugned Award dated 27.5.2004, had awarded meager compensation to the land owners without taking into consideration the location of the land, its high potential value and the future prospects of the same. The learned Referee Court has taken into consideration the factors enumerated in Section 23 of the Land Acquisition Act. The high potential value and the admission of DW-2 Muhammad Aslam Patwari CRBC that the suit land is adjacent to Indus Highway but however, it was asserted that the acquired piece of land is situated at some distance from the Indus Highway. It was also admitted that the potential value of the acquired land has further been increased due to the construction of Flood Carrier Drain No. 22 CRBC Stage-II. It is also on the record that notification under Section 4 of the Land Acquisition Act was issued on 04.10.1994 and the Award was announced on 27.5.2004 and thereby there was upward trend in the prices of the acquired land. It is also admitted on the record that the land is highly potential in value and the compensation fixed by the learned Referee Court in view of the dicta handed down in the cases of Province of Punjab through Collector Attock. Vs. Engineer Jamil Ahmad Malik and others (2000 SCMR 870) and NWFP through Collector Abbottabad Land Acquisition and others. Vs. Haji Ali Asghar Khan and others (1985 SCMR 767) is perfectly in accord with the established principles of law enunciated by the apex Court and are not liable to be interfered with and the judgment of the trial Court with respect to the quantum of compensation is maintained.
In view of the facts and circumstances of the case narrated above, this appeal is partly accepted and the judgment and decree of the learned Referee Court is modified to the extent that compulsory acquisition charges of 25% are reduced to 15%, while the compound interest of 8% is reduced to 6% simple interest from the date of taking over possession till the payment of compensation to the land owners whereas the rest of the judgment and decree of the learned Referee Court is maintained, with no order as to costs.
Above are the reasons for my short order dated 01.12.2008.
(R.A.) Appal accepted.
PLJ 2009 Peshawar 160
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
DR. MUHAMMAD ALI--Petitioner
versus
Mst. FAKHUR-UN-NISA--Respondent
C.R. No. 371 of 2007, decided on 17.11.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--Held: The lis has been decided in accordance the established principles of appreciation of evidence and the concurrent findings cannot be set at naught. [P. 163] A
2000 SCMR 346; PLD 1994 SC 291 & PLD 2002 SC 293 ref.
Mr. Rustam Khan Kundi, Advocate for Petitioner.
S. Mastan Ali Zaidi, Advocate for Respondent on pre-admission notice.
Date of hearing: 17.11.2008.
Order
Dr. Muhammad Ali son of Ghulam Ahmad has filed the instant revision petition against Mst. Fakhr-un-Nisa through which the petitioner has challenged the judgment and decree of learned Additional District Judge-II, D.I.Khan vide which Appeal No. 53/13 of 2006 filed by the petitioner against the judgment and decree of Mr. Johar Ejaz Ali Shah, Civil Judge-I, D.I.Khan in Suit No. 42/1 decided on 18.9.2006 titled Mst. Fakhr-un-Nisa. Vs. Dr. Muhammad Ali, was dismissed and the judgment and decree of the trial Court was maintained.
Brief facts of the case are that Mst. Fakhr-un-Nisa, plaintiff-respondent, brought a suit against Dr. Muhammad Ali for declaration to the effect that the defendant-petitioner is bound to provide to petitioner 18 marlas of vacant plot for the construction of a house in D.I.Khan or outskirts of D.I.Khan i.e. Union Council Dewala. She had also prayed for permanent mandatory injunction that the defendant-petitioner should provide the said plot to the plaintiff Mst. Fakhr-un-Nisa. She had prayed in Madd "Bay" of the plaint for the specific performance of the agreement incorporated in Kabin Nama dated 17.2.1990 for providing 18 marlas plot as aforesaid or in the alternative price of the said plot according to the market value.
It is averred in the plaint that the marriage of the plaintiff-respondent took place with Dr. Muhammad Ali and a Kabin Nama dated 17.2.1990 was got executed between the parties on the eve of marriage wherein an agreement had been made that the defendant-petitioner will provide, besides the dower amount for which the plaintiff has got her remedy before the Family Court, a plot Measuring 18 marlas as detailed in the head notes of the plaint. It is also alleged that during the subsistence of marriage, daughter namely Faiza Ali was born who is living with the plaintiff-respondent. Unfortunately strained relations developed between the parties and the attitude of defendant-petitioner was cruel to the plaintiff and the minor Faiza Ali. Thus, on 13.1.1992, the petitioner turned out the plaintiff-respondent alongwith minor daughter from the house in wearing apparels and also grabbed the dowry articles. It was averred that regarding the dowry articles, maintenance and other amount, Mst. Fakhr-un-Nisa respondent will seek her remedy in the Family Court but the present suit is restricted only to the plot Measuring 18 marlas. It is also averred that now Faiza Ali is a grown up lady, is a student and both of them need a dwelling house in D.I.Khan or the outskirts of D.I.Khan as covenanted by the defendant-petitioner in the Kabin Nama dated 17.2.1990.
The defendant-petitioner was summoned by the trial Court who submitted a detailed written statement wherein the allegations contained in the plaint were hotly contested. The learned trial Court, from the divergent pleadings of the parties, framed as many as ten issues including the relief which are reproduced below:--
Whether the plaintiff has got a cause of action?
Whether the plaintiff is estopped to sue due to her own conduct?
Whether the suit is competent in its present form?
Whether the plaintiff has come to the Court with clean hands?
Whether the suit is time barred?
Whether this Court has jurisdiction to entertain the present suit?
Whether suit is hit by principle of resjudicata?
Whether plaintiff is entitled to be declared as owner of plot mentioned in the plaint?
Whether plaintiff is entitled for the decree of specific performance of the contract dated 17.2.1990 or in alternative to recovery the price of the plot?
Relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, granted a decree for specific performance of the contract incorporated in Kabin Nama and thus, decree for the recovery of Rs.3,18,000/- as price/market value of the said plot was granted in favour of the plaintiff-respondent on 18.9.2006.
The petitioner filed an appeal before the appellate Court and the learned appellate Court i.e. Additional District Judge-II, D.I.Khan, vide Civil Appeal No. 54 of 2006 decided on 10.9.2007, dismissed the appeal and maintained the judgment and decree of the learned trial Court.
Mr. Rustam Khan Kundi, learned counsel appearing for the petitioner submitted that the respondent Mst. Fakhr-un-Nisa has not proved the execution of Kabin Nama which was the basis for filing of the suit. It was also submitted that the respondent was not willing to live with the petitioner and thus, unfortunately, the union of marriage resulted into divorce and there is no matrimonial relationship between the parties. It was also argued that the judgment and decree of the learned trial Court is not in accordance with law. The suit was time barred and the Family Court had the exclusive jurisdiction regarding the recovery of personal belongings of wife which has been included recently through an amendment in the schedule attached to the Family Courts Act, 1964. Elaborating his arguments, the learned counsel submitted that once divorce occurred, then, the defendant-petitioner was absolved of all the responsibilities emanating from the wedlock and thus, the plaintiff-respondent was not entitled to the decree as granted by the two Courts below. Thus, it was prayed that the concurrent findings of facts recorded by the two Courts below be set-aside.
I have heard the learned counsel for the petitioner in detailed and have scanned the available record.
Admittedly, the marriage of the parties was solemnized and the same was consummated and out of the wedlock, minor Faiza Ali was born who is in the custody of respondent Mst. Fakhar-un-Nisa. On the eve of marriage, a deed in the shape of agreement dated 17.02.1990 Ex. PW 1/1 was executed between the parties wherein it was agreed between the parties that the respondent/defendant/husband will provide a plot measuring eighteen (18) Marlas in D.I.Khan city or in the outskirts for construction of a house. PW-1 Muhammad Ibrahim appeared as PW-1 and he testified to the contents of the deed Ex. PW 1/1, he being the scribe of the document was subjected to a very lengthy cross-examination, but nothing adverse has been squeezed out from the mouth of this witness to shatter his veracity. PW-2 Patwari Halqa has appeared who has produced the chart of mutation, Ex. PW 2/1, according to which the average price per Kanal comes to Rs. 4,21,718.40.
Mst. Fakhr-un-Nisa plaintiff-respondent appeared before the Court and corroborated the allegations contained in the plaint. Similarly, Sheikh Khadim Hussain, father of the plaintiff-respondent appeared as PW-6 and supported the version of plaintiff-respondent. These P.Ws were subjected to the cross-examination but nothing adverse was squeezed out from their mouth to shatter the case of plaintiff-respondent. On the other hand, Dr. Muhammad Ali defendant-petitioner appeared as sole witness and in the opening sentence of examination-in-chief, he admitted his signature on the Kabin Nama. Again, in the cross-examination, he was confronted with the contents of Kabin Nama Ex.P.W.1/1 and he admitted the said Kabin Nama. In examination-in-chief the only objection was that although the Kabin Nama bears his signature, but it does not bear the signature of the plaintiff-respondent. From the data available on the record, it is abundantly proved that the plaintiff-respondent has proved her case by producing cogent and convicting evidence which could not be shattered in cross-examination by the defendant-petitioner.
The two Courts below have recorded concurrent findings of facts to which no exception can be taken. No misreading or non-reading of evidence has been pointed out by learned counsel for the petitioner. The lis has been decided in accordance with he established principles of appreciation of evidence and the concurrent findings of facts cannot be set at naught in view of the dicta handed down in the cases of Abdur Rahim and another. Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din. Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad. Vs. Muhammad Siddique (PLD 2002 SC 293).
In view of the facts and circumstances narrated above, there is no merit in the instant revision petition which is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2009 Peshawar 164
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
SARDAR KHAN--Petitioner
versus
SHAH NAWAZ etc.--Respondents
C.R. No. 125 of 2004, decided on 27.10.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Question of--Maintianability of appeal or revision against indivisible decree--Non decree and non-impleadment of respondent--Old proposition of law--Validity--Where the decree is indivisible and same of the parties are omitted then appeal or revision is incompetent. [P. 168] A
1982 SC 46; 2001 MLD Pesh. 1765; PLD 1987 Lah. 387 &
PLD 2006 Lah. 585 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Old revenue record cannot be set aside--Validity--Effects of revenue record--Held: Revenue record and jamabandi have got presumption of correctness unless and until rebutted--Held: About a century old revenue record cannot be set aside on surmises and conjectures. [P. 168] B
Mr. Rustam Khan Kundi, Advocate for Petitioner.
Mr. Sardar Allah Nawaz Khan, Advocate for Respondents.
Date of hearing: 20.10.2008.
Judgment
This civil revision is the outcome of judgment and decree dated 10.3.2004 passed by learned Additional District Judge-IV, Bannu in Civil Appeal No. 24/13 wherein the learned Additional District Judge-IV, Bannu, while accepting the appeal of respondents, set-aside the judgment and decree of the learned Civil Judge-I, Bannu dated 31.1.2003, hence, the instant civil revision petition.
The brief facts of the case are that in respect of the same subject matter, two suits Bearing Nos.78/1 Nim of 2002 and 79/1 Nim of 2002 with original institution of year 1995 were pending adjudication before the learned trial Court wherein both the parties were seeking declaration and permanent injunction in respect of the property fully detailed in the heading of their respective plaints. On service, both the parties put their appearance before the Court and submitted their respective written statements denying the allegations of each other and asserting their respective claims. When on 05.3.2002 Suit No. 79/2002 was consolidated with Suit No. 78/2002 the following consolidated issues were framed:--
Whether plaintiffs Shah Nawaz Khan etc have got a cause of action?
Whether plaintiff Sardar Khan has got a cause of action?
Whether suit of the plaintiff Shah Nawaz Khan etc is time barred?
Whether suit of plaintiff Sardar Khan is time barred?
Whether the suit property in case titled "Shah Nawaz etc. Vs. Sardar" was given in private partition to the predecessor-in-interest of Sardar etc in the year 1905-06 and later on when dispute arose between the predecessor-in-interest of the disputed parties, predecessor-in-interest of Sardar were declared owner on the basis of Oath administered to them but mutation could not be entered and attested in their names due to refusal of the predecessor of the plaintiffs?
Whether suit property in case titled "Shah Nawaz etc. Vs. Sardar" is in ownership, possession of the plaintiffs since long and in the year 1995, Defendants No. 1 to 13 forcibly took possession of the suit land and cultivated Rabi crops in it and incorporated their names in Girdawri of the year 1995 for the first time?
Whether the suit land in case titled "Sardar Khan. Vs. Shah Nawaz etc" is ownership in possession of the plaintiffs since long?
Whether the suit land was declared ownership of the predecessor of the plaintiffs in the year 1905-06 on the basis of Oath administered to them?
Whether the suit land in case titled "Sardar Khan. Vs. Shah Nawaz etc" were declared ownership in possession of the predecessor of defendants in the year 1908 and mutation to this effect was attested in favour of him in the year 1910 Bearing No. 459 attested on 27.2.1910?
Whether the suit property in the case titled "Sardar Khan. Vs. Shah Nawaz etc" is ownership in possession of defendant since 1910?
Whether the plaintiffs in case titled "Shah Nawaz. Vs. Sardar" are entitled to the decree as prayed for?
Whether plaintiff in case titled "Sardar Vs. Shah Nawaz etc" is entitled to the decree as prayed for?
Relief
Both the parties led their pro and contra evidence. Thus, at the conclusion of trial, the learned trial Court while getting convinced with stance of plaintiffs of Suit No. 79/2002 decreed the same which also resulted in dismissal of Suit No. 78/2002.
The plaintiffs of Suit No. 78/2002 being dissatisfied with the judgment and decree dated 31.1.2003 passed by learned Civil Judge-I, Bannu challenged its validity before the appellate Court of Additional District Judge-IV, Bannu by filing Civil Appeal No. 23/13 of 2004 and the learned appellate Court, after hearing the learned counsel for the parties and perusing the data available on record, vide judgment and decree dated 10.3.2004, accepted the appeal and while setting aside the judgment of Civil Judge/trial Court, granted a decree in favour of the plaintiffs-respondents.
Feeling aggrieved with the judgment and decree dated 10.3.2004 passed by appellate Court, the petitioners have challenged the same before this Court on the strength of captioned civil revision petition.
Sardar Allah Nawaz Khan, learned counsel appearing for the respondents at the out set raised a preliminary objection to the effect that once a Court passes an indivisible decree in favour of a party, then all the parties, against whom the decree has been passed, must be arrayed on the panel of the respondents and in case of omission of some of the respondents, the appeal or revision will be incompetent on this score. Reliance in this respect was placed on the judgments handed down in the cases of Musmar and another Vs. Khairullah and another (PLD 1954 Peshawar 52) and Shah Muhammad and others. Vs. Muhammad Bakhsh (PLD 1972 SC 321). Elaborating his arguments, learned counsel submitted that a joint and indivisible decree was passed by the learned appellate Court in favour of Shah Nawaz Khan etc, Respondents No. 1 to 23, and against the petitioner and Raees Khan and others (Respondents No. 2 to 21) in the main appeal filed by Shahnawaz etc, the petitioner has not arrayed Respondents No. 2 to 16 nor these respondents have filed separate revision petition, so, the omission of these respondents from the panel of respondents has rendered the revision petition incompetent.
On merits, it was argued that Gulyar, predecessor-in-interest of the respondents had become the owner of the suit land vide Mutation No. 459 attested on 27.10.1910 and since the purchase of the suit land, Gulyar and thereafter his offspring are repeatedly recorded in the revenue record as owners till 1995 and thereafter the defendants-respondents took forcible possession which culminated into proceedings under Section 145 Cr.P.C. It was argued that the learned trial Court, for no valid reasons, brushed this mutation aside on the sole ground that it does not bear the thumb impression of the vendor and learned appellate Court has rightly passed a decree in favour of the respondents and the cross suit of the petitioner Bearing No. 79/1 Nim of 2002 has rightly been dismissed.
As against this, Mr. Rustam Khan Kundi, learned counsel for the petitioner while rebutting the arguments that the non-impleadment of some of the respondents in the revision petition was not fatal to make this revision petition incompetent as the decree has been passed by the appellate Court against the petitioner only and he has filed the instant revision petition. It was also argued that if certain parties are omitted, the appellate or revisional Court has got the jurisdiction to implead those omitted respondents in the revision petition. Thus, it was argued that the revision petition is competent on merits. It was submitted that the petitioner was the owner of the sit land and since 1905-1906 he is coming in continuous possession of the suit land as it was given to him on the basis of special Oath which his forefathers had taken on the Holy Quran and thus, the appellate Court was not justified to non-suit him.
I have given my anxious consideration to the facts of the case as well as legal points involved and have considered the valuable arguments of learned counsel for the parties and have perused the record on the file.
Perusal of the record reveals that respondents No. 1 to 23 Shah Nawaz Khan etc had filed the suit against Sardar Khan and 12 others which was dismissed by the trial Court against which Shah Nawaz Khan and others filed Civil Appeal No. 24/13 of 2003/2004 in which not only Sardar Khan was arrayed as respondent, but besides him, Raees Khan etc, Respondents No. 2 to 21, were also parry before the appellate Court. In revision petition, Respondents No. 2 to 16 were arrayed in the main appeal but they were not made party in the instant revision petition and thus, the appellate Court passed an indivisible decree against Sarwar respondent and against the omitted respondents. This is a joint decree and the non-impleadment of respondents No. 2 to 16, who were parties before the appellant Court, will render the revision petition incompetent. This is half a century old proposition of law followed by the superior Courts that where the decree is indivisible and some of the parties are omitted, then the appeal or revision is incompetent in view of the dicta handed down in the cases of Maqbool Begum etc. Vs. Gulan and others (PLD 1982 SC 46), Kashmir Vs. Amir Bahadur etc (2001 MLD Peshawar 1765), Muhammad Suleman. Vs. Abdul Rashid and 13 others (PLD 1987 Lahore 387) and Subah Sadiq Vs. Mst. Rajehan through L.Rs (PLD 2006 Lahore 585), the instant revision petition is incompetent and is liable to be dismissed on this ground only.
Even on merits, the petitioner has got no case as the claim of the petitioner is based on taking Oath by his forefathers on the Holy Quran, but no evidence has been led to prove such proceedings. On the other hand, respondents No. 1 to 23 claim the suit land on the basis of Mutation No. 423 attested on 27.2.1910 and on the basis of which they and their forefathers are recorded continuously in possession of the same. Furthermore, this mutation is incorporated till Jamabandi for the years 1994-95 and the dispute arose between the parties which culminated in proceedings under Section 145 Cr.P.C. This is the cardinal principle of law that the revenue record and Jamabandi have got presumption of correctness unless and until rebutted. Burden heavily lies on petitioner to dislodge this presumption which he failed to discharge, About a century old revenue record cannot be set-aside on surmises and conjectures as held in the dicta handed down in the cases of Muhammad Hussain & others. Vs. Khuda Bakhsh, 1989 SCMR-1563 and Ghulam Hassan Vs. Soharu and 131 others, PLD 1984 Peshawar 278).
The judgment and decree of the learned appellate Court is perfectly sound, just and in accordance with the established principles of appreciation of evidence. No misreading or non-reading has been pointed out by learned counsel for the petitioner to warrant interference by this Court in revision petition.
In view of the facts and circumstances of the case narrated above, there is no force in this revision petition which is hereby dismissed with no order as to costs.
(R.A.) Revision dismissed.
PLJ 2009 Peshawar 169
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MALIK SAEED AHMED--Petitioner
versus
Mrs. ASAMA BIBI--Respondent
C.R. No. 154 of 2006, decided on 23.2.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act 1908, Art. 164--West Pakistan Family Courts Act 1964, S. 5--Judgment and decree passed by ADJ in appeal and passed by Civil Judge--Revision against--Suit was filed on the direction of First Appellate Court--Condonation of delay--Respondent (plaintiff) was constrained to file a suit before the Family Court for recovery of dowery articles but Appellate Court, directed to file the suit before Civil Court--Parties were locked into litigation for sufficiently long time the exparte decree was passed while the application for setting aside the same was moved by the petitioner which was not within stipulated period--Civil revision was dismissed for condonation of delay. [Pp. 171 & 172] A, C & D
Limitation Act, 1908 (IX of 1908)--
----Art. 164--Limitation--Stipulated period of thirty days--Ex-parte decree-Revision was time barred by two days and no reason was given for condonation of delay--Validity--Ex-parte decree was passed on 28.7.2003 while application for setting aside was moved by petitioner on 7.10.2004 which was not within stipulated period of thirty days as envisaged u/Art. 164 of Limitation Act. [P. 172] B
Malik Muhammad Asad, Advocate for Petitioner.
Mr. Sultan Shaheryar Khan Marwat, Advocate for Respondent.
Date of hearing: 30.1.2009.
Judgment
Malik Saeed Ahmad has filed the instant civil revision against Mst. Asma Bibi under the provisions of Section 115 C.P.C challenging the judgment and decree of the learned Additional District Judge-I, D.I.Khan dated 21.2.2006 vide which the appeal filed by respondent-plaintiff Mst. Asma Bibi, against the order dated 08.9.2005 of learned Civil Judge-II, D.I.Khan, was accepted and decree for golden ornaments twenty tolas at the rate of the then market value total amounting to
Rs. 1,54,000/- was passed in her favour.
Briefly narrated the facts of the case are that Mst. Asma Bibi plaintiff-respondent filed a suit for recovery of twenty tolas golden ornaments or in the alternative the price of the same which suit was initially filed before the learned Civil Judge-III, D.I.Khan which was registered as Family Suit No. 124/FC of 1998. Besides the other reliefs claimed in that suit, the instant relief for recovery of golden ornaments was turned down on the only ground that the plaintiff-respondent had admitted that the golden ornaments were handed over to her but subsequently it were snatched from her. The appeal filed by the present petitioner before the District Judge. D.I.Khan came for hearing before the learned Additional District Judge-I, D.I.Khan and was registered as F.C.A. No. 23/2000 which was dismissed but the judgment and decree qua the recovery of golden ornaments was modified and the plaintiff-respondent was directed to file a suit before the Civil Court as, according to the verdict of the appellate Court, the plaintiff-respondent had admitted that once the golden ornaments were handed over to her and subsequently snatched away by the petitioner which had become a civil liability for which the plaintiff-respondent should seek her remedy before the Civil Court. Pursuant to the direction by the learned appellate Court, Mst. Asma Bibi respondent filed a suit for the recovery of golden ornaments or the price then prevailing in the market. Mr. Hidayatullah Khan, Civil Judge-III, D.I.Khan, vide Suit No. 292/1 of 2002 decided on 28.7.2003, passed an exparte decree in favour of the respondent for twenty tolas golden ornaments valuing Rs. 7,700/- per tola and thus, a total decree for Rs. 1,54,000/- was passed in her favour. As this was an ex-parte decree, thus, the petitioner filed an application for setting aside the same before the trial Court and the learned trial Court, after scanning of the record, came to the conclusion that the petitioner-defendant had not been duly served in the case and thus, vide order dated 08.9.2005 set-aside the ex-parte decree.
Mst. Asma Bibi respondent filed an appeal before the learned District Judge. D.I.Khan which came for hearing before the learned Additional District Judge-I, D.I.Khan and the learned appellate Court, vide MCA No. 50/2005 decided on 21.2.2006, after hearing learned counsel for the parties and perusing the data available on record, came to the conclusion that the petitioner had knowledge of the ex-parte decree and he moved the application for setting aside the same on 07.10.2004, thus, the application was not within the stipulated period of thirty days from the date of the decree and hence, accepted the appeal, set-aside the impugned order and restored the decree in favour of Mst. Asma Bibi respondent. The petitioner Malik Saeed Ahmad has now come to this Court challenging the said order.
Malik Muhammad Asad, learned counsel appearing for the petitioner submitted that the petitioner had not been duly served by the learned Civil Judge and thus, for no valid reasons, had rejected the application for setting aside the ex-parte decree. It was also submitted that the civil Judge was bereft of jurisdiction as the matter was exclusively triable by the Family Court in view of the recent amendment introduced in the West Pakistan Family Courts Act that even the personal belongings, if claimed by the wife, will be exclusively triable by he Family Court. Reliance in this respect was placed on Muhammad Tariq, Vs. Mst. Shaheen and others (PLD 2006 Peshawar 189).
As against this, Mr. Sultan Shehryar Khan Marwat, learned counsel appearing for the respondent submitted that the petitioner had the knowledge of ex-parte decree and he was intentionally not appearing before the Court. Firstly, the respondent filed a suit before the Family Court and on the direction of the District Appeal Court, she filed suit before the Civil Court. It was also submitted that the application of the petitioner for setting aside the ex-parte decree was not within time and thus, the learned appellate Court has rightly accepted the appeal of the respondent and granted the impugned decree in her favour.
I have given my anxious consideration, to the facts of the case and considered the arguments of learned counsel for the parties.
At the outset it is pertinent to point out that the revision petition is time barred by two days and no cogent reason has been given for condonation of delay in CM. No. 124/2006.
Perusal, of the record reveals that the petitioner had entered into wedlock with the respondent and certain articles were given to her as per Nikan Nama Ex.P.W.1/1 and Kabin Nama Ex.P.W.2/2. Unfortunately the relations between the parties became strained and the wife was constrained to file a suit before the Family Court for the recovery of the dowry articles etc but the learned appeal Court, on appeal filed by the petitioner, partially accepted the same and directed the respondent to move the Civil Court for the recovery of twenty tolas golden ornaments or its value and pursuant to this direction, she filed the suit. Perusal of the record further reveals that the petitioner had been duly served and he was in the know of the proceedings because parties were locked into litigation for sufficiently long time. The ex-parte decree was passed on 28.7.2003 while the application forgetting aside the same was moved by the petitioner on 07.10.2004 which was not within the stipulated period of thirty days as envisaged under Article 164 of the Limitation Act. Thus, the learned appellate Court has rightly held that the ex-parte decree was passed strictly in accordance with law.
The second contention of the learned counsel for the petitioner is also without any substance insofar as the amendment in the schedule annexed to the West Pakistan Family Courts Act, 1964 was brought through amendment in the year 2002 and the present lis is much prior to coming into force of the said amendment. Secondly; that the suit was filed on the directions of the District appeal Court. The case law cited by learned counsel for the petitioner has got no nexus with the facts of the instant case.
The learned appellate Court has fully scanned the record and has arrived at correct conclusion to which no exception can be taken and the same is maintained.
Before parting with this judgment, it is pertinent to note that on the date of announcement of the judgment, Malik Muhammad Asad, Advocate appeared before the Court and submitted a cross-cheque dated 16.02.2009 Bearing No. 2782213 of UBL, UBL Building, Jinah Avenue, Islamabad in the name of Aasma Majeed Alizai amounting to Rs. 1,54,000/- for onward delivery to her. Thus, in a way he has admitted the correctness of the decree passed against him. The same was handed over to the Additional Registrar of this Court. for onward delivery to the respondent on demand after proper receipt to be placed on file.
In view of the facts and circumstances of the case narrated above, this civil revision fails both on merits as well as being time barred which is dismissed alongwith CM.No. 124/2006 for condonation of delay and C.M. No. 131/2006 for staying the execution proceedings.
Above are the reasons for my short uer of even date.
(N.I.) Revision dismissed.
PLJ 2009 Peshawar 172
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
PESCO through Chief Executive PESCO, Peshawar
and 4 others--Petitioners
versus
ASMATULLAH KHAN and 3 others--Respondents
C.R. No. 289 of 2004, decided on 4.12.2008.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration decreed--Revisional jurisdiction--Consumer of electricity--Consumer was not defaulter payment of consumed energy--Disconnection period was illegal, against the principles of natural justice--Meter alongwith all the material appliances were taken away by PESCO and the supply to the premises remained disconnected--Meter was removed without notice--Electric supply remained disconnected to the premises of respondent and two Courts below had taken into consideration the attending circumstances and relevant evidence on record--Courts below had recorded concurrent findings against the petitioners which were strictly in accordance with the well established principles of appreciation of evidence--No mis-reading and non-reading of evidence had been pointed out for the petitioner nor any irregularity had been hinted to in the proceedings of the two Courts below--Concurrent findings of facts recorded by two Courts below could not be set at naught in revisional jurisdiction of High Court--Petition dismissed. [Pp. 174 & 175] A, B & C
2005 SCMR 346; PLD 1994 SC 291 and PLD 2002 SC 293 ref.
Mr. Arif Rahim Ustrana, Advocate for Petitioners.
Mr. Muhammad Ayaz Khan Qasuria, Advocate for Respondents.
Date of hearing: 19.11.2008.
Judgment
PESCO through Chief Engineer PESCO, PESCO House, Peshawar and four others have filed the instant revision petition against Asmatullah and three others under Section 115 C.P.C challenging the judgment and decree of the learned Additional District Judge-IV, Bannu dated 29.01.2004 vide which the appeal of the petitioners was dismissed and the judgment and decree passed by Civil Judge-III, Bannu dated 07.11.2003 was maintained.
Briefly narrated the facts of the case are that Asmatullah, Plaintiff-Respondent No. 1 filed a suit seeking declaration to the effect that the plaintiff-respondent was consumer of electricity to Bungalow No. 20 Survey No. 311 situated in Defence Officers Colony, Bannu vide Connection No. 6612-01144005 and that he has not defaulted in payment of the consumed energy and the billing by the petitioners-defendants from May, 1996 to 30.4.1996 during disconnection period was illegal, against the principles of natural justice, without notice, passed at the back of the plaintiff-respondent, based on mala fide and hence, is not binding on the plaintiff-respondent and thus, the petitioners-defendants are not entitled to claim Rs.82,678/- from the plaintiff-respondent. He had also prayed for decree for permanent injunction restraining the petitioner to recover the suit amount.
The defendants-petitioners were summoned who submitted their detailed written statement in which the allegations contained in the plaint were hotly contested. Out of the divergent pleadings of the parties, the learned trial Court framed as many as 16 issues including the relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after scanning the evidence and taking into consideration the data available on the record, decreed the suit of the plaintiff-respondent to the extent of Rs.55,089/- pertaining to the period for which bill was sent during the disconnection of supply to the premises and the same was declared as null and void. However, the plaintiff-respondent was held liable to Rs. 16,770/- as arrears for actual consumed energy vide judgment and decree in Suit No. 348/1 decided on 07.11.2003. The defendants-petitioners filed an appeal which came for hearing before learned Additional District Judge-IV, Bannu who, while concurring with the learned trial Court, dismissed the appeal vide judgment and decree in Civil Appeal No. 11/13 of 2004 decided on 25.01.2004. Hence, the instant revision petition by the defendants-petitioners PESCO etc.
Mr. Arif Rahim Ustrana, learned counsel for the petitioners submitted that the plaintiff-respondent was consumer of electricity of PESCO but he was also the employee of the said Department. In spite of the fact that the meter had been disconnected, he had installed another meter and in that way had consumed the energy and thus, he was validly charged in the suit bill, therefore, the learned trial Court and the learned appellate Court have fallen into an error by decreeing the suit of the plaintiff-respondent.
On the other hand, Muhammad Ayaz Khan Qasuria, learned counsel for the Plaintiff-Respondent No. 1 submitted that once it is proved on the record that during the disputed period, the supply remained disconnected, the respondent was not entitled to the issuance of the bill for the energy.
I have gone through the record of the case and scanned the entire evidence on the file.
Murtaza Khan, Commercial Assistant appeared as PW-1 and he unequivocally admitted the disconnection of the supply. It was also admitted that the meter alongwith all the material appliances were taken away by PESCO and the supply to the premises remained disconnected from June, 1996 to May, 1998. Sardar Ali Shah, Data Coder/Entry Operator appeared as PW-2 but, however, he showed his ignorance regarding the calculation. DW-1 Nisar Ahmad LS-I, Urban Sub-Division, Bannu had appeared and he has categorically admitted that the meter was removed on 16.2.1996 after notice to the plaintiff but no such notice has been brought on the record. He also showed his ignorance regarding the sending of the letter Ex.P.W.1/32 to the plaintiff-respondent. He, however, denied the suggestion that from April, 1996 to April, 1998 no meter was installed in the house of the Plaintiff-Respondent No. 1.
Scanning of the above evidence reveals that it is abundantly proved on the record that from June, 1996 to May, 1998 the electric supply remained disconnected to the premises of Respondent No. 1 and in this respect, the two Courts below have taken into consideration the attending circumstances and relevant evidence on the record.
The learned two Courts below have recorded concurrent findings against the petitioners which are strictly in accordance with the well established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioners nor any irregularity has been hinted to in the proceedings of the two Courts below. Thus, the concurrent findings of facts recorded by the two Courts below cannot be set at naught in the revisional jurisdiction of this Court in view of the dicta handed down in the cases of Abdur Rahim and another. Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din. Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad. Vs. Muhammad Siddique (PLD 2002 SC 293).
In view of the facts and circumstances of the case narrated above, this revision petition fails which is dismissed with no order as to costs.
(N.I.) Petition dismissed.
PLJ 2009 Peshawar 175 (DB)
[Abbottabad Bench]
Present: Zia-ud-Din Khattak and Ghulam Mohy-ud-Din Malik, JJ.
MUHAMMAD MISKEEN & 3 others--Petitioners
versus
MUHAMMAD ZAREEN & others--Respondents
W.P. No. 233 of 2007, decided on 30.1.2009.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4 & 5-A--Constitution of Pakistan, 1973--Art. 199--Notification for acquisition of land--Challenge to--Objections--Power of authority--Jurisdiction of Civil Court--Bar to sue--Whatever might have been the objections that should be adjudicated upon by the authority mentioned in S. 5-A of the Land Acquisition Act, 1894 which debars a Civil Court from questioning the propriety of a notification u/S. 4 of the Act--Objectors had to go to the collector and findings of the Provincial Government/Commissioner on their objections should be conclusive--Petition allowed. [P. 177] A & B
Miss Raheela Mughal, Advocate for Petitioners.
Date of hearing: 30.1.2009.
Judgment
Zia-ud-Din Khattak, J.--The District Government needed land measuring 11 marlas in Khasra Nos.437, 440 & 441 of Village Gallat Tehsil Ghazi, District Haripur for public purpose, namely, construction of "Link Road Gharangh kalan cum Srikot". Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act") was issued by the District Officer (Revenue & Estate)/Collector, Haripur vide No. 406 dated 23.10.2004.
In response to this notification, Muhammad Zarin and two others-owners, respondents No. 1-3 herein, presented some objections to the Collector. However on 07.09.2005 they filed Suit No. 96/1 of 2005 for a declaration to the effect that notification u/S. 4 of the Act ibid issued by the District Collector, Haripur in respect of acquisition of land was illegal, without lawful authority and of no legal effect; that action taken by the Collector invoking the provisions of Land Acquisition Act was mala fide and result of conspiracy of Muhammad Miskeen and others petitioners and that the District Collector alongwith TMO Ghazi be restrained from acquiring the land.
Muhammad Miskeen etc, petitioners when summoned on 27.11.2005, submitted an application under Order VII, Rules 10/11 CPC praying that the suit may either be returned or dismissed on the ground that acquisition proceedings could not be challenged through a civil suit and, therefore, the Civil Court had no jurisdiction.
Mr. Nehmat Ullah Shah, Civil Judge, Haripur who seized of the case, after hearing the parties/their counsel held that the respondents/owners could object to the acquisition proceedings before the Collector, who alone was competent to adjudicate upon the matter; that the Civil Court lacked jurisdiction, therefore, he vide order dated 15.02.2006 returned the plaint under Order VII, Rule 10 CPC for presentation to the proper forum.
Feeling aggrieved the owners filed Revision No. 2/CR of 2006 before the learned Additional District Judge-I, Haripur, who after hearing the parties/their counsel held that the Civil Court had the jurisdiction to examine the vires of acquisition proceedings. Consequently, he vide judgment dated 05.07.2006 set-aside the said impugned order and remanded the suit to the trial Court for inviting written statement and proceedings with the case in accordance with law.
Dissatisfied, the petitioners filed the instant writ petition (233/07) and called in question the judgment of the learned Additional District Judge-I, Haripur on the ground that the suit before the Civil Court challenging notification u/S. 4 of the Act ibid was neither competent nor entertainable either on the ground of mala fide or any other ground; that the objections regarding the acquisition could be raised only before the Collector; that the learned Additional District Judge-I, Haripur has not correctly appreciated the facts and law involved in the case and, therefore, erred in law.
We have heard the learned counsel for the parties and perused the record.
The only point falling for determination is "whether a suit lies to question a notification under Section 4 of the Act regarding acquisition of land for public purpose"?. The answer is in negative. We may point out that Section 5-A of the Act provides a specific procedure giving the objector an opportunity to put up his case. It gives the objector a chance to place his objections before the Collector, who shall give an opportunity of being heard to the objector either in person or by pleader and after making the requisite enquiry submit the case for the decision of the Provincial Government/Commissioner together with the proceedings held by him and a report containing his recommendations on the objections. It merits a mention that the decision of the Provincial Government/Commissioner on the objections has been made final.
Learned counsel for the respondents has argued that the Provincial Government/Commissioner could not decide the issue of mala fide. In our opinion, Section 5-A of the Act ibid is complete answer to this argument. A special method of redress has been provided in that section and a special Tribunal created for giving that redress. It is well settled that the Land Acquisition Act, 1894 has created a special jurisdiction and provided a special remedy for persons aggrieved with anything done in the exercise of that jurisdiction. The general rule is that when jurisdiction has been conferred upon a special court for investigation of a particular matter, such jurisdiction is exclusive.
In this view of the matter, we hold that what ever may have been the objections that shall be adjudicated upon by the authority mentioned in section 5-A of the Land Acquisition Act, 1894, which debars a Civil Court from questioning the propriety of a notification under Section 4 of the Act. The objectors/respondents have to go to the Collector and the findings of the Provincial Government/Commissioner on their objections shall be conclusive.
This being so, the impugned judgment passed by the learned Additional District Judge, Haripur is set-aside and order dated 15.02.2006 of learned Civil Judge, Haripur stands restored. Accordingly, this petition succeeds and is allowed leaving the parties to bear their own costs while CM No. 03/09 for grant of temporary injunction having become infructuous is dismissed as such.
(N.I.) Petition allowed.
PLJ 2009 Peshawar 178
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD AFZAL--Petitioner
versus
ALLAH BAKHSH and 2 others--Respondents
C.R. No. 293 of 2004, decided on 16.12.2008.
NWFP Pre-emption Act, 1987 (X of 1987)--
----S. 13--Civil Procedure Code, (V of 1908) S. 115--Suit for possession through pre-emption--Dismissal of concurrent findings--Revision--Requirements of talb--Plaintiff while filing the suit had not mentioned the date, time, place and name of the informer in the plaint nor the same was proved in evidence--Held: Date, time, place and the name of the informer must be mentioned in the plaint specifically and should also be proved during evidence--Having not done so in the instant case, the Islamic demands as envisaged u/S. 13 of the NWFP Pre-emption Act, 1987 had not been complied with--Petition dismissed. [P. 180] A
Mr. Nasrullah Khan, Advocate for Petitioner.
Mr. Khuda Bakhsh Khan Baloch, Advocate for Respondents.
Date of hearing: 15.12.2008.
Judgment
Muhammad Afzal has brought the instant civil revision against Allah Bakhsh and others through which he has challenged the concurrent findings recorded by the trial Court and duly maintained by the appellate Court.
Necessary facts of the case are that Muhammad Afzal plaintiff-petitioner filed a suit for possession through pre-emption of land measuring 05 kanals 10 marlas equivalent to 110/136 shares out of 06 kanals 16 marlas situated in village Kurrar, Tehsil and District D.I.Khan as per Jamabandi for the years 1989-90 and the sale was termed to be effected through oral sale.
The defendants-respondents were summoned who submitted their detailed written statement in which the allegations contained in the plaint were hotly contested. It was asserted that they have purchased the suit land on sale consideration of Rs. 10,000/- per kanal and the total sale consideration comes to Rs.55,000/-. It was further averred that the sale has in fact taken place in 1993 regarding which a mutation was duly entered but subsequently the vendor got hostile resulting in cancellation of the mutation. It was also averred that the defendants-respondents remained in continuous possession since 1993. Out of divergent pleadings of the parties, the learned trial Court framed as many as ten issues including the relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after scanning the evidence and taking into consideration the data available on the record, vide Suit No. 181/1 decided on 25.2.2003, dismissed the same.
The plaintiff-petitioner then filed an appeal which came for hearing before Muhammad Riaz Khattak, Additional District Judge-III, D.I.Khan and the learned appellate Court, after perusing the record, dismissed the appeal vide judgment dated 22.7.2004. Hence, the instant revision petition.
Mr. Nasrullah Khan, learned counsel appearing on behalf of the plaintiff-petitioner submitted that the petitioner had duly proved the factum of performance of Islamic demands as envisaged under the provisions of Section 13 of the NWFP Pre-emption Act; 1987 and thus, the learned trial Court, without just and reasonable cause, has misread the evidence in its true perspective. It was also argued that the limitation will not run in this case from the date of possession but the same will start from the dale of attestation of mutation and the suit having been filed within the stipulated period of limitation, was well within time. Reliance in this respect was placed on the cases of Kala Khan. Vs. Ayub Khan (1992 MLD 536, Taj Mulook. Vs. Mst. Zaitoon and others (PLD 1994 SC 356) and Amir Jan. Vs. Ghulam Muhammad (PLD 1997 SC 883).
On the other hand, Mr. Khuda Bakhsh Khan Baloch, learned counsel appearing on behalf of the respondents submitted that the learned two Courts below have recorded concurrent findings of facts which cannot be set at naught by this Court on its revisional jurisdiction. It was also submitted that pursuant to the sale in dispute, the vendee-defendant had taken possession of the suit land prior to the attestation of the mutation and to this effect, an entry was incorporated in Khasra Girdawri, thus, the starting point will be from the date of taking over of possession of the suit property and not of the attestation of the mutation. Reliance in this respect was placed on the case of Din Muhammad. Vs. Suhedar M. Zaman (2001 SCMR 1952).
I have given my anxious consideration to the facts of the case and have minutely scanned the available evidence.
Perusal of the record reveals that the suit transaction was incorporated in Mutation No. 1004 and the possession was handed over to the vendee-Defendant No. 1 after the suit land was duly measured and the possession delivered to the vendee. It is important that all the witnesses including the vendor. DW-1 Allah Bakhsh stated that he sold the suit land to Defendant-Respondent No. 1 on sale consideration of
Rs. 3,763/- and the possession was duly delivered to the vendee. This mutation was subsequently dismissed by the Revenue Authorities due to the connivance of Defendant No. 3 with the plaintiff This fact was categorically admitted by PW-2 Bashir Ahmad Patwari Halqa that possession was transferred to the vendee-defendant-Respondent No. 1 prior to the entry of the said mutation. The plaintiff-petitioner in the plaint, in opening sentence, admitted that sale has taken place and possession has been delivered to Respondent No. 1. It is on the record that PW-5 Ghulam Hussain also admitted this fact that the moment the possession was delivered to the vendee, he informed the plaintiff regarding the impugned sale and the factum of possession is duly entered in Khasra Girdawri Ex.P.W.2/2 in the capacity of vendee/purchaser. Thus, the petitioner was in the know of the transaction as admitted by all the P.Ws. Thus, the Islamic demands were not performed in time and the right of the petitioner stood extinguished under Section 13 of the NWFP Pre-emption Act, 1987
Perusal of the record reveals that the plaintiff, while filing the suit on 09.01.1994, has not mentioned the date, time, place and name of the informer in the plaint nor the same was proved in evidence. By now it is a settled principle of law enunciated by the apex Court that the date, time, place and name of the informer must be mentioned in the plaint specifically and should also be proved during evidence. Having not done so in the instant case, the Islamic demands as envisaged under Section 13 of the NWFP Pre-emption Act, 1987 have not been complied with in view of the dictum handed down in the case of Muhammad Iqbal Vs. Ali Sher (2008 SCMR 1682).
The learned two Courts below have recorded concurrent findings of facts. No misreading and non-reading has been pointed out by learned counsel for the petitioner so as to warrant interference by this Court in its revisional jurisdiction in view of the dicta handed down in the cases of Abdur Rahim and another Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed.
(N.I.) Petition dismissed.
PLJ 2009 Peshawar 181
[Abbottabad Bench Abbottabad]
Present: Ghulam Mohyud Din Malik, J.
WARIS--Petitioner
versus
MUHAMMAD SARWAR--Respondent
C.R. No. 228 of 2004, decided on 27.4.2009.
Right of Pre-emption--
----Non-mentioning of facts in plaint is considered fatal to exercise of right of preemption--Waiver of right of pre-emption--Held: Pre-emptor is bound to mention the date and time of making talb-i-muwathibat in the plaint as there from the period prescribed for talb-i-ishhad has to be counted--Non-mentioning of such facts in plaint is considered fatal to the exercise of right of pre-emption--Date and time of making talb-i-muwathibat is basic foundation or first step upon which structure of preemption suit is to be built up. [P. 183] A
2008 SCMR 404 & 2007 SCMR, 1086, 515 & 302, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VI, R. 17--Amendment of plaint--Amendment allowed on payment of cost--Omission of mentioning date, time and place of making talb-i-muwathibat--Bar to his defence due to his own fault--Validity--Omission of mentioning date, time and place of making talb-i-muwathibat in plaint was rectified on acceptance of application for amendment in plaint by trial Court on payment of cost which order was never challenged before next higher forum--Held: Receiving the cost in civil cases which operates as a complete bar to his defence due to his own fault. [P. 183] B
1971 SCMR 185 fol.
Words and Phrases--
----Waiver--According to dictionary meaning the waiver means to surrender claim or to give something voluntarily. [P. 184] C
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----Ss. 4 & 21--Right of pre-emption--Principle of waiver and estoppel--Evidence is lacking--Question of--Whether the pre-emptor has waived of his right of preemption and by conduct he was estoppel to file preemption suit--Mutation was attested through efforts or active assistance of respondent--Held: Mere presence at the time of bargain or at the time of attestation of sale mutation does not amount to waiver in law--Petition was dismissed. [P. 185] D
PLD 2007 SC 26 & 2002 SCMR 49, rel.
Haji Ghulam Basit, Advocate for Petitioner.
M/s. Q.M. Sharyar and Mr. Khalid Rehman Qureshi, Advocates for Respondent.
Date of hearing: 27.4.2009.
Judgment
The pre-emption suit brought by Muhammad Sarwar (respondent) was contested by Waris Khan petitioner/vendee. The learned trial Court after recording pro and contra evidence in respect of disputed points between the parties, dismissed the suit vide judgment dated 18.11.2002 under the issues of estoppel and waiver of right of pre-emption.
On appeal, the appellate Court, allowed the appeal and decreed the suit of the pre-emptor vide judgment dated 20.7.2004 holding that evidence on record was too scanty to believe that the pre-emptor had in any manner waived of his right of pre-emption and was estopped by his conduct to pre-empt the sale transaction.
Feeling aggrieved by the above said judgment of the appellate Court, the petitioner has filed this revision petition.
I have heard the arguments of the learned counsel for the parties and have perused the record.
Learned counsel for the petitioner argued the case mainly on two fold grounds, namely, that in the original plaint date, time and place of information and making of Talb-i-muwathibat was not disclosed, secondly, that the petitioner has waived of his right of pre-emption, therefore, he was estopped by conduct to file the pre-emption suit against the petitioner.
On the other hand, learned counsel representing the respondent submitted that no question what-so-ever respecting waiver was specifically pleaded in the written statement nor was put to plaintiff or his witnesses in cross examination. With regard to non-mentioning of date and time of making Talb-i-muwathibat in the plaint he submitted that there was submitted an application for making amendment in the plaint which application was allowed by the learned trial Court on payment of cost and accordingly amended plaint was filed which was never objected to by the petitioner rather he had received the cost, imposed on permitting amendment in the plaint, therefore, he is precluded to raise this objection at a later stage of hearing revision petition.
It is undoubtedly a settled law that a pre-emptor is bound to mention the date and time of making Talb-i-muwathibat in the plaint as there from the period prescribed for Talb-i-Ishhad has to be counted, therefore, non-mentioning of such facts in the plaint is considered fatal to the exercise of right of pre-emption. The date and time of making Talb-i-muwathibat is the basic foundation or first step upon which structure of pre-emption suit is to be built up. The case law cited at the bar by the petitioner's counsel shows its importance and necessity for exercise of right of pre-emption. He relied upon 2008 SCMR page 404, SCMR 2007 page 1086, 515 and 302.
But in the instant case the facts are a little bit distinguishable. The omission of mentioning date, time and place of making Talb-i-muwathibat in the plaint was rectified on acceptance of application for amendment in the plaint by the learned trial Court on payment of cost which order was never challenged before the next higher forum, so-much-so, that the cost imposed on the pre-emptor for submission of amended plaint was received by the petitioner. So by his conduct he is prevented by legal rule to re-agitate the same issue before High Court in revision. He and his counsel had thorough knowledge, understanding and experience or study of law about the consequences of receiving the cost in civil cases which operates as a complete bar to his defence due to his own fault. This question also came up before worthy Supreme Court of Pakistan in a case reported in 1971 S.C.M.R. page 185, where they made the following observations:--
"Civil Procedure Code (V of 1908), S. 115 & O.VI, R. 17--Amendment of plaint-Amendment allowed by trial Court on payment of cost-Party moving revision before High Court but pending revision accepting cost in Court below-Held: High Court justified, in circumstances, to dismiss revision petition."
"(a) Civil Procedure Code (V of 1908), O.XLI, r.22-Respondent in appeal can support a decree even on points against him but cannot attack decree and ask for its variation without filing cross-objection."
On these facts it can fairly be concluded that respondents have managed to achieve a complete cure to the problem of non-mentioning of date and time in the plaint by filing amended plaint under the permission and order of learned trial Court.
The next question which falls for discussion is whether the pre-emptor has waived of his right of pre-emption and by conduct he was estopped to file the pre-emption suit.
According to the allegations, the pre-emptor had declined to purchase the suit property and further that he was present at the time of attestation of sale mutation in Jalsa-Aam.
According to dictionary meaning the "waiver" means to surrender claim or to give some thing voluntarily. In this case evidence is that the pre-emptor was reluctant to purchase the land offered to him by the vendor but on record no confidence inspiring evidence exists to believe that he had voluntarily surrendered, specially right of pre-emption in favour of vendee. There is no evidence as to action of pre-emptor indicating an intention to waive the right of pre-emption in favour of petitioner, saying, "I forego my right of pre-emption in favour of vendee." Likewise evidence is lacking that the sale was affected with pre-emptor's advice, consent and in his presence through him the vendor had collected sale consideration suggesting that he had no longer any desire to pre-empt the sale. It means the evidence does not prove or purport or operate to extinguish right of pre-emptor in the disputed property. So in this view of the matter, I am of the considered opinion that the right of pre-emption exists in favour of respondent to secure the benefit of his own property without molestation from undesirable neighbour, he is not estopped from asserting his right of pre-emption against the petitioner who as per the record is a stranger. Actually it would require very strong and cogent reasons that would compel the Court to apply principle of waiver and estoppel in a suit for pre-emption that the sale was affected with pre-emptor's advice, consent or for that matter he provided money to the vendee for payment to the vendor or he affected bargain between the vendee and vendor or that at any stage of the transaction he had assured the vendee that he would not pre-empt the transaction. Similarly evidence is lacking in the instant case, that the sale mutation was attested in favour of petitioner through the efforts or active assistance of respondent or that he helped the petitioner in any manner in delivery of possession of the property sold. These could be a few examples amounting to waiver of right of pre-emption. Mere presence at the time of bargain or at the time of attestation of sale mutation does not amount to waiver in law. On the subject case law reported in 2002 SCMR page 49 can be relied upon. The relevant part of which reads as under:--
"Ss. 4 & 21-Right of pre-emption-Principle of waiver and estoppel--Applicability--Presence of pre-emptor at the time of attestation of mutation--Effect--Mere presence of the pre-emptor at such time and even to act as witness in the bargain was not sufficient to prove the waiver of right of pre-emption or could not constitute estoppel."
"Pre-emption suit-Waiver of right of pre-emption--
Overt and positive acts necessary for participation in sale transaction."
(R.A.) Revision dismissed.
PLJ 2009 Peshawar 185
[D.I. Khan Bench]
Present: Syed Yahya Zahid Gilani, J.
DEPUTY DIRECTOR WORKS AND SERVICES DEPARTMENT DISTRICT TANK--Petitioner
versus
ABDUL AZIZ and 7 others--Respondents
C.R. No. 212 of 2008, decided on 12.2.2009.
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 8(1)(2) & S. 79--Civil suit against the govt. policy--Determination is the competency of the suit--Suit allegedly instituted in representative capacity meets with the legal requirements contained in Order 1 Rule 8(1) and (2) of C.P.C. or not, fundamental infirmity in the suit is violative of the provision of Section 79, C.P.C.--Although, policy based decision of the provincial Govt. of NWFP has been brought by filing the suit but district officers of the provincial govt. in the works and service department, who are public functionaries meant for implementation of that decision of the Provincial Govt. have been arrayed as defendants and not the Govt. of N.W.F.P. through secretary, works and service department--Suit was incompetent. [Pp. 188 & 189] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2 & S. 115--Revisional jurisdiction--Suo moto exercise--Temporary injunction--Civil suit against government functionaries to call in question change of site of construction--Competency of suit--Ingredients--Validity--Suit appears to be incompetent in its present form for this reason, he had no prima-facie case and the temporary injunction issued in instant case was illegal on such score alone because three ingredients i.e. prima facie case, balance of convenience and irreparable loss must co-exist for grant of temporary injunction--Case remanded. [Pp. 191 & 192] B
Mr. Muhammad Zahid Khan, Advocate for Petitioner.
Mr. Rustam Khan Kundi, Advocate for Respondent No. 1.
Mr. Sanaullah Khan Shamim Gandapur, D.A.G. for Official Respondents.
Date of hearing: 2.2.2009.
Judgment
Abdul Aziz Respondent No. 1 instituted civil suit against Government functionaries to call in question change of site of construction of a School. Allegedly, it is a suit in representative capacity. Mainly, the dispute relates to two departments of the Govt: of NWFP. As far as the Education Department is concerned, Secretary Education, Schools and Literacy is Defendant No. 1 in the suit, with a few local officers of Education Department who are also defendants in the suit. The second involved Department of the Govt: of NWFP is Works and Services Department, sued through "Deputy Director" and "Assistant Director" Works and Services Department, posted at District Tank.
An application for temporary injunction was moved to stop the defendants from shifting the construction of Govt: Girls Primary School, Haleem Koroona Adam Abad, Tank to any other place and a temporary mandatory injunction directing the defendants to avoid delay in construction.
The suit was contested by Executive District Officer, Schools & Literacy, District Tank (Defendant No. 5) who submitted written statement and written reply of the application for temporary injunction. It is pertinent to mention here that Deputy Director Works & Services Department, Tank was placed exparte vide order dated 04.6.2008. Arguments on application for temporary injunction were heard and vide order of Mr. Adam Khan Sulemankhel, Civil Judge First Class, Tank, the application for temporary injunction was accepted on 24.6.2008 and defendants were restrained from changing the site of the School or to transfer the same to another place.
Defendant No. 5/Deputy Director, Works & Services Department, Tank later on applied for setting aside exparte proceedings against him, which was set-aside on 05.9.2008 on the consent of the counsel for plaintiff, on payment of cost of Rs.100/-. He then submitted written statement and an application for vacation of the order of temporary injunction passed on 24.6.2008, invoking the provisions of Order XXXIX Rule 4 C.P.C but after hearing, this application was dismissed by the trial Court vide order dated 11.11.2008.
Both the orders of trial Court dated 24.6.2008 whereby the temporary injunction was issued and the order dated 11.11.2008 whereby its vacation was refused, were appealed against by the Deputy Director, Works & Services Department District Tank. Learned District Judge, Tank, after hearing, dismissed the appeal in limine vide judgment dated 26.11.2008.
Now, the Defendant No. 3/Deputy Director, Works and Services Department, Tank has instituted this revision petition which was admitted for hearing to consider that whether the impugned order of temporary injunction amounts to interference with the public duty of the concerned Department of Provincial Government, not interferable due to bar contained in Section 56 (d) of the Specific Relief Act and hence, temporary injunction could not be issued.
I have heard Mr. Muhammad Zahid Khan, Advocate for the petitioner. Mr. Rustam Khan Kundi, Advocate for contesting respondent/plaintiff Abdul Aziz. Mr. Sanaullah Shamim Gandapur, Deputy Advocate General appeared to look after the governmental interest.
At the outset, Mr. Rustam Khan Kundi, Advocate raised a preliminary objection over the competency of revision petition contending that the Deputy Director, Works & Services Department, District Tank could not institute a revision petition in his own capacity and it should have been filed through proper channel, by the Office of Advocate General.
On the other hand, learned counsel for the petitioner replied that it is the contesting plaintiff-Respondent No. 1 who has put the petitioner in such a difficult situation. On the one hand, he has wrongly sued the petitioner, violating Section 79 C.P.C and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973, a temporary injunction has been got issued against the petitioner from the civil Court. Appeal against it has been dismissed in limine. The revision petition is being objected upon on the ground of maintainability and competency. In such circumstances, how the petitioner would perform his duties when on the one hand, Provincial Government wants shifting of the site of School, under its policy based decision, and on the other hand, the Court is stopping the petitioner from shifting the site. Ultimately, the petitioner would face contempt of Court proceedings as he is to act on the decision of Provincial Government. In order to avoid that situation, he had no other option but to move this revision petition to place the matter before this Court for a decision according to law. He added that in this case the trial Court has not issued a proper summon to Govt: Pleader under Order XXVII Rule 4 C.P.C and that is why, no application has been moved by the Govt: Pleader under Sub-rule (2) of Rule 8 of Order XXVII C.P.C, therefore, it shall be deemed that the present suit is between the private parties and that is why, the petitioner has instituted the appeal and revision petition accordingly. Hence, objection to competency of revision petition is invalid.
Learned D.A.G objected on the practice of local Govt. functionaries of directly pursuing the civil suits wherein the interest of Govt: is involved and submitted that this practice should be discouraged. However, at the same time, he conceded the legal defect in the suit in the light of Section 79 C.P.C.
At this juncture, I would not indulge in controversy about the competency of revision petition in view of the objection raised by learned counsel for the contesting respondent-plaintiff because attention to competency of his client's suit is more important in the facts and circumstances discussed above.
I, therefore, having come this important controversy in knowledge, opt to take suo-moto cognizance of the matter under Section 115 C.P.C.
The primary issue for determination is the competency of the suit of plaintiff-respondent, in the present form. Apart from the fact that the suit allegedly instituted in representative capacity meets with the legal requirements contained in Order I Rule 8 Sub Rules (1) and (2) of C.P.C or not, fundamental infirmity in the suit is violative of the provision of Section 79 C.P.C read with Article 174 of Constitution of Islamic Republic of Pakistan have not been complied with. Although, policy based decision of the Provincial Govt: of NWFP has been brought in question by filing the suit but District Officers of the Provincial Government in the Works & Services Department, who are public functionaries meant for implementation of that decision of the Provincial Government, have been arrayed as defendants and not the Govt: of NWFP through Secretary, Works & Services Department. Chain of authorities are available on this point of law declaring that such a suit is incompetent.
A Division Bench of Sindh High Court has held in para-7 in the case of Secretary BR Govt. of West Pakistan and 4 others Vs. Fazal Ali Khan (PLD 1971 Karachi 625) that when a suit is to be filed against a Provincial Government, the plaintiff should pay due regard to the provisions of Section 79 of the Code of Civil Procedure and Article 213 of the Constitution of Pakistan, 1962 (which was in operation in those days). It has been concluded in Para-13 of this judgment that in view of the case law reported as Sheriff of Bombay. Vs. Hakam Ji Motaji and Co (AIR 1927 Bom. 521), Manaham S. Yeshoova. Vs. Union of India and others (AIR 1960 Bom. 1996) and P.B.Shah and Co. and others Vs. Chief Executive Officer and others (AIR 1962 Cal. 283), the suit brought against official designations or titles is bad in form and must fail.
Honourable apex Court has decided this issue in the case Province of the Punjab through Member Board of Revenue. Vs. Muhammad Hussain through legal heirs (PLD 1993 SC 147). The relevant paragraph 7 of this respectful judgment is quoted below for ready reference:--
"7. If the trial Court, the appellate Court and the revisional Court had kept in view the requirements of Section 79 of the Civil Procedure Code read with Order XXVII, CPC, they would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and the representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974--much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.
As regards the Collector of the District, the procedure prescribed was quite a simple--one--a straightforward one, far service on him. It is provided in Order XXVII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort, at any stage, was made to effect service through the Government Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming the Collector represented ex-officio the Province of Punjab and by impleading him Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction had been made. (Note: Underlining is mine).
"Leaving aside the merits of the present revision, I tend to observe and hold suo moto under Section 115, C.P.C, that the very suit brought by Muhammad Jan Khan against the Divisional Forest Officer and Executive Engineer concerned was bad in law and was in clear violation of Section 79(b) and Section 80(b) read with Order 27, Rule 3 of the C.P.C. It was a suit not against Divisional Forest Officer or the Executive Engineer nor was it the property thereof but it was a suit against the Government, the Secretaries whereof ought to have been sued on behalf of the Provincial Government." (Note: Underlining is mine)
"It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears that the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of Section 79, C.P.C, or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless the suit is filed through a proper person, any order directing exparte proceedings against the defendant would be liable to challenge. Reference in this regard may be made to a judgment of this Court in Province of the Punjab. Vs. Muhammad Hussain (PLD 1993 SC 147), our attention to which has been invited by the learned counsel for the appellant himself in this case, questions raised before this Court for the first time in regard to maintainability of the suit, its valuation or its being within time, which had not received due attention earlier by the Courts below while dealing with the case, were considered by this Court and the judgments and the decrees passed by the Courts below were set aside and the suit filed by they plaintiffs was dismissed as barred by limitation. Therefore, there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge in Chambers is not open to exception. "(Note: Underlining is mine)
From the above quoted case law, it is abundantly clear that the very suit of Respondent No. 1/plaintiff appears to be incompetent in its present form. For this reason, he had no prima-facie case and the temporary injunction issued in this case is illegal on this score alone because three ingredients i.e. prima-facie case, balance of convenience and irreparable loss must coexist for grant of temporary injunction. Learned appellate Court has ignored this legal aspect of the case and its order is also illegal. I, therefore, in exercise of suo-moto revisional jurisdiction, set-aside the impugned orders of the appellate Court dated 26.11.2008 and that of the trial Court dated 24.6.2008 and 11.11.2008.
The case is remanded to the trial Court where the parties shall appear on 28.02.2009 and the plaintiff-respondent shall be allowed to move application within reasonable time for suitable amendment in his, and application for addition of necessary parties and deletion of unnecessary parties, whereafter, the Court, if the suit is competent in the amended form, shall also determine that whether it is properly initiated under Order I, Rule 8, C.P.C, in the representative capacity shall cause the Provincial Government to be served through the Government Pleader under Order XXVII, Rule 4 C.P.C for further proceedings according to law.
(M.S.A.) Case remanded.
PLJ 2009 Peshawar 192
[D.I. Khan Bench]
Present: Muhammad Alam Khan, j.
GUL AMEER KHAN and 3 others--Petitioners
versus
ZAHID ULLAH KHAN--Respondents
Civil Revision No. 253 of 2004, decided on 13.3.2009.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Civil Procedure Code, (V of 1908), S. 115--Suit for pre-emption decreed--Appeal dismissed--Concurrent findings of fact of two Courts below--Objection regarding one suit for three transactions and incorporated in three registered deeds of sale--Held: When the suit transactions are between the same parties and on the same date, then oneness of the transactions is discernable and a joint pre-emption suit can be filed regarding all the transactions. [P. 195] A
1992 SCMR 2375, rel.
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 13--Starting point for talabs--Date of attestation of mutation or registration of sale-deed--Even if a sale prevails over a period of one year in its completion, but the starting point for filing of the pre-emption suit and performance of the Islamic demands as envisaged u/S. 13 of the N.W.F.P. Pre-emption Act 1987 will be from the date of attestation of mutation or registration of sale-deed because prior to that no cause of action accrued to the plaintiff/pre-emptor--Petition dismissed. [P. 195] B
2008 SCMR 431, rel.
Mr. Muhammad Aslam Khan, Advocate for Petitioners.
Mr. H. Zafar Iqbal, Advocate for Respondent.
Date of hearing: 2.3.2009.
Judgment
Gul Amir Khan and others have brought the instant revision petition against Zahidullah Khan under Section 115 CPC challenging the judgment and decree of learned District Judge Lakki Marwat dated 24/6/2004 vide which, the appeal of the defendants/petitioners was dismissed and the judgment and decree dated 28/4/2004 passed by the learned Civil Judge 1st Class was maintained.
Rs. 20,000/- after deducting 1/3rd already deposited till 25/5/2004 failing which the suit of the plaintiff/respondent was to stand dismissed. The defendant/vendee filed an appeal before the learned District Judge who after scanning the evidence on record and hearing the parties vide judgment and decree dated 24/6/2004 dismissed the appeal and hence the instant civil revision petition in which the defendants/petitioners Gul Amir Khan etc' have challenged the concurrent findings recorded by the two Courts below.
Learned counsel for the petitioners/defendants contended that the suit land was sold vide three registered deeds Bearing Nos. 46 to 48 of the same date, i.e. 28/8/1997 upon which the different mutations of sale has been entered and attested. The plaintiff/respondent had brought only one suit against all the transactions and the same was not competent, as the cause of action in all the three transactions was different. It was also argued that the plaintiff/pre-emptor had not performed the Islamic demands within the stipulated statutory period as envisaged under Section 13 of the N.W.F.P. Pre-emption Act 1987. It was also submitted that the respondent/defendant had obtained the fard jamabandi from Patwari halqa on 24/8/1997 and he had the knowledge of the suit transaction and Talb-e-Muwathibat having been performed on 3/9/1997 was not in accordance with law. Reliance in this respect was placed on the cases of Haji Muhammad Saleem Vs. Khuda Bakhsh (PLD 2003 Supreme Court-315), Zafar Ali Vs. Zain-ul-Abidin (1992 SCMR page 1886) and Hayatullah Jan etc. v. Jan Alam etc; (NLR 2003 Civil Page 62).
Haji Zafar Iqbal Advocate, learned counsel for the respondent, submitted that although the plaintiff/respondent had obtained the fard jamabandi on 24/8/1997, but the sale through the sale-deeds took place and completed on 28/8/1997. So it was submitted that by then there was no sale in the field, so how can the knowledge of the pre-emption could be established. It was submitted that the transaction in the suit registered deeds were one and the same, only it was bifurcated, parties were the same, cause of action was the same and joint suit could be filed under the provisions of Order 2 Rule 3 CPC. It was also argued that the Courts have recorded concurrent findings which cannot be set aside in revisional jurisdiction.
I have given my anxious consideration to the facts of the case and have scanned the record carefully with the valuable assistance of the learned counsel for the parties.
The evidence produced by the plaintiff/respondent with respect to the performance of Talb-e-Muwathibat and Talb-e-Isshad is consistent, confidence inspiring and all the witnesses produced by the plaintiff/respondent, i.e. Pre-emptor, are unanimous in their version with regard to the date, time and place of conveying information to the plaintiff/respondent. They have been subjected to lengthy cross-examination and nothing has been squeezed from their mouths to shatter their testimony.
The argument of the learned counsel for the petitioner that the transactions were three in number and incorporated in three registered deeds of sale, the filing of one pre-emption suit was not warranted under the law, is also without substance, because when the suit transactions are between the same parties and on the same date, then oneness of the transactions is discernable and a joint pre-emption suit can be filed regarding all the transactions in view of the dicta handed down, in the case of Alam Khan and 3 others Vs. Pir Ghulam Nabi Shah & Company reported in 1992 SCMR Page 2375). The argument of the learned counsel for the petitioner that the plaintiff/respondent had obtained Fard Jamabandi on 24/8/1997 and thus the suit was not within time, is also not convincing, as the suit sale transactions were registered on 28/8/1997 and the moment the knowledge of the suit sale was conveyed to the plaintiff/respondent, he there and then declared his intention to pre-empt the suit transaction and performed Talb-e-Muwathibat. Even if a sale prevails over a period of one year in its completion, but the starting point for filing of the pre-emption suit and performance of the Islamic demands as envisaged under Section 13 of the N.W.F.P. Pre-emption Act 1987 will be from the date of attestation of mutation or registration of the sale-deed because prior to that no cause of action accrued to the plaintiff/pre-emptor as held in the dictum handed down in the case of Taza Gul and others Vs. Haji Fazal Subhan reported in 2008 SCRM 4311.
The learned two Courts below have scanned the evidence strictly in accordance with the established principles of appreciation of evidence. No mis-reading or non-reading of evidence has been pointed out by the learned counsel for the petitioner which could warrant of this Court in the exercise of its revisional jurisdiction under Section 115 CPC. Further more, the two Courts below have recorded concurrent findings of facts which cannot be set aside unless and until material irregularity is pointed out in view of the dicta handed down in the cases of Abdur Rahim and another Vs. Mst. Janat Bibi and others (2000 SCMR 346), Haji Muhammad Din Vs.. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad Rashid Ahmad Vs. Muhammad Siddique (PLD 2002 Supreme Court 293).
In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed with no order as to costs.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 196
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
FAQIR RIAZ ASIF and 2 others--Petitioners
versus
Mst. ZARMARJANA and others--Respondents
C.R.P. No. 56 of 2006, decided on 22.12.2008.
Public documents--
----Revenue record is liable to be correct--Patwari halqa appeared and placed on record daily diary which clearly bears the endorsement with respect of the sale on behalf of the vendor in favour of the respondent duly attested by the witnesses--Being a public document to which the presumption of correctness is attached and the same objection--Once a document is exhibited and brought on record with out reservation, no subsequent objection can be raised with respect to is admissible. [P. 198] A
1987 CLC 1103 Pesh. rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration and permanent injunction decreed--Appeal dismissed--Revisional jurisdiction--Held: Courts below have recorded concurrent findings against the petitioner/defendants--No misreading and non-reading of evidence has been pointed out which findings are strictly in accordance with the established principles of appreciation of evidence, which cannot be interfered with in the revisional jurisdiction. [P. 199] B
2000 SCMR 346, PLD 1994 SC 291 & PLD 2002 SC 293, rel.
Mr. Nasrullah Khan, Advocate for Petitioners.
Mr. Muhammad Ayaz Khan Qasuria, Advocate for Respondent on pre-admission notice.
Date of hearing: 22.12.2008.
Order
The facts of the case are that Mst. Zarmar Jana Respondent No. 1 filed a suit against Faqir Muhammad Ismail for declaration to the effect that she is owner in possession of land measuring 07 kanals 02 marlas equivalent to 142/284 shares situated in the area of village Landidak Bazidkhel, Tehsil and District Bannu through sale alongwith all rights appurtenance to the suit land. The sale has been effected for the last one year and the revenue record is liable to be correct. She had also prayed for decree of permanent mandatory injunction restraining the defendants-petitioners from interference in the suit land and alienation of the same. She had also prayed for specific performance of agreement regarding land measuring 07 kanals 02 marlas against Faqir Muhammad Ismail, predecessor-in-interest of the petitioners in amended plaint dated 21.9.2004 with special reference to mutation No. 215 attested on 06.8.2001 in favour of defendants-petitioners with prayer for cancellation of the same.
The defendants were summoned who appeared and contested the suit of the plaintiff-respondent and asserted that he had effected sale of 07 kanals 02 marlas for sale consideration of Rs. 6000/- per kanal with the plaintiff-respondent and in this respect Mutation No. 203 was entered on 31.7.1999 but subsequently it came to light through Patwari Halqa that the suit land is situated in the column of cultivation and thus, dismissed the suit mutation on 23.10.1999. It was also asserted that the plaintiff-respondent has not paid any sale consideration and the suit is liable to be dismissed. The learned trial Court framed the following issues out of the divergent pleadings of the parties:--
Whether plaintiff has got a cause of action?
Whether suit of the plaintiff is based on malafide?
Whether plaintiff is estopped by his own conduct to bring the present suit?
Whether defendant is entitled to special costs under Section 35-A C.P.C?
Whether plaintiff is bonafide purchaser of the suit property?
Whether plaintiff is entitled to the decree as prayed for?
Relief
The parties then produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the arguments of learned counsel for the parties and perusing the data available on record, vide Suit No. 28/1 decided on 23.12.2004, came to the conclusion that Mutation No. 215 dated 06.8.2001 has been wrongly attested by Faqir Muhammad Ismail in favour of Defendants No. 9 and 10 and declared the said mutation as illegal and granted decree in favour of the plaintiff as prayed for. Faqir Riaz etc defendants-petitioners being aggrieved from the judgment and decree of the learned Civil Judge, filed an appeal which came for hearing before Additional District Judge-IV, Bannu who, vide Civil Appeal No. 17/13 of 2005 decided on 05.01.2006, dismissed the appeal and maintained the judgment and decree of the learned trial Court with a slight modification and direction to Respondent No. 1 that the remaining sale consideration of Rs.26,600/- will be deposited by her in Court within two months from the date of announcement of the judgment for onward payment to the legal heirs of Faqir Muhammad Ismail. Thus, the legal heirs of Faqir Muhammad Ismail namely Faqir Riaz and others have challenged the concurrent findings of the two Courts below through the instant revision petition.
Learned counsel for the petitioners argued that the suit of the respondents was time barred as the alleged mutation pertains to the year 1889 which was not backed by possession and in the meantime the suit land had been gifted by Faqir Ismail defendant in favour of his sons the present petitioners vide Mutation No. 205 and thus, he was not the owner of the suit land and nothing could be transferred to the plaintiff-respondent.
Muhammad Ayaz Khan Qasuria Advocate appearing on behalf of Mst. Zar Marjana on pre-admission notice submitted that the vendee has admitted the sale in the written statement but had avered that as there was defect in the title of the vendee namely Faqir Muhammad Ismail, thus, the mutation could not be attested and in order to deprive the plaintiff-respondent, in the meantime the suit land was transferred by said Faqir Muhammad Ismail in the name of his son which was collusive transfer not binding on the plaintiff-respondent.
I have given my anxious consideration to the facts of the case in view of the valuable arguments of learned counsel for the parties.
Perusal of the record reveals that while submitting the written statement Faqir Muhammad Ismail has admitted the factum of sale, but denied the receipt of the sale consideration. Patwari Halqa appeared and placed on record daily diary Ex.P.W.2/3 which clearly bears the endorsement with respect to the sale on behalf of the vendor in favour of the respondent duly attested by the witnesses. This being a public document to which the presumption of correctness is attached and the same was brought on record without any objection. Once a document is exhibited and brought on record without reservation, no subsequent objection can be raised with respect to its admissibility as held in the dictum handed down in the case of National Bank of Pakistan, Bannu Branch through its Manager Vs. Sayed Mir (CLC 1987 1103 Peshawar).
Besides the admission of Faqir Muhammad Ismail, the respondent has led overwhelming evidence on record to prove the suit sale transaction. One aspect of the case is astonishing that Mutation No. 203 in favour of the respondent was rejected by the revenue authorities without showing any reasons and on the other hand, Mutation No. 215 was attested in favour of the petitioner on behalf of the same vendor. The intention was manifest to deprive the respondent of the suit land. In
rebuttal, no convincing and cogent evidence has been led by the petitioner. The suit Mutation No. 215 in favour of the petitioner was attested during the pendency of the suit which is hit by the doctrine of lis-pendens as held in Muhammad Sharif and others. Vs. Mst. Fateh Bano and others (2004 SCMR 813) and is not binding on the rights of the respondent.
The two Courts below have recorded concurrent findings against the petitioners-defendants. No misreading or non-reading of evidence has been pointed out which findings are strictly in accordance with the established principles of appreciation of evidence, which cannot be interfered with in the revisional jurisdiction as held in the dicta handed down in the cases of Abdur Rahim and another. Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din. Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
In view of the facts and circumstances of the case narrated above, there is no force in the revision petition which is dismissed in limine alongwith C.M.No. 40/2006.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 199 (DB)
Present: Shah Jehan Khan and Shahji Rahman Khan, JJ.
Dr. MUHAMMAD SALEEM, ASSOCIATE PROFESSOR, DEPARTMENT OF ARABIC, PESHAWAR UNIVERSITY--Petitioner
versus
UNIVERSITY OF PESHAWAR through Vice-Chancellor
and 2 others--Respondents
W.P. No. 599 of 2008, decided on 21.5.2009.
Peshawar University Act, 1974--
----S. 21(3)--Petitioner was appointed Associate Professor in University but after eight months appointment order was withdrawn--Constitutional petition against the withdrawal order--Quorum of the meeting of the Syndicate was one half of the total number of the Syndicate--Admittedly, the total number of the syndicate was 21, therefore, the required quorum would be and should be 11 (eleven)--As the appointment order of the petitioner was approved by the Syndicate when it was short of quorum by one member, therefore, in the subsequent meeting of the syndicate it was rightly, properly and legally declared null and void and without lawful authority and impugned order based on approval of Syndicate when it was short of quorum was rightly withdrawn in perfect justification of Statute of the University Act. [P. 201] A
Interpretation of Statutes--
----Interpretation should be natural, appropriate and simple and should give the words their ordinary meaning--It should be consistent with the intention of legislature and should help the administration of justice--It should not offend the common sense--It should not lead to ridiculous consequences--Order accordingly. [P. 201] B
Mr. Said Rahman, Advocate for Petitioner.
Mr. Wasimuddin Khattak, Advocate for Respondents.
Date of hearing: 21.5.2009.
Judgment
Shahji Rehman Khan, J.--Petitioner in this Constitutional Petition filed under Article 199 of the Constitution of Pakistan, 1973 has impugned order bearing No. 481/Estt. Dated 26.2.2008 whereby his appointment as Associate Professor Department of Arabic in BPS-20 was withdrawn.
Brief facts of the case necessary for the disposal of this petition are that petitioner was appointed as a Lecturer on adhoc basis in Arabic Department in Peshawar University on 30.9.1992. Later on the post of Associate Professor was advertised in the Newspaper and the petitioner having the required qualification applied for the same and was recommended by the Selection Board of the University in its meeting held on 21.2.2007 and in the 397th meeting of the Syndicate of the Peshawar University held on 13th June, 23rd July and 23rd August 2007 got approved his appointment has Associate Professor and appointment order in his favour bearing No. 2634 dated 23.8.2007 was issued. But after the period of eight months when the respondents vide the impugned Order No. 481/Estt. Dated 26.2.2008 referred to above withdraw his appointment as Associate Professor. Hence this petition.
The learned counsel appearing on behalf of the petitioner vehemently contended that when the appointment order dated 23.8.2007 was issued in favour of the petitioner, the same could not have been withdrawn vide the impugned order dated 26.2.2008 and the reasons furnished by the respondents in their comments that because of the break up of quorum in the meeting of syndicate all decisions taken in the 4th session of 397th meeting held on 23rd August 2004 were null and void ab initio is without lawful authority and not based on proper interpretation of quorum of (sic) ten out of twenty one members of the Syndicate was just, proper and legal and the impugned order dated 26.2.2008 be recalled and reversed. Reliance was placed on PLD 1983 Peshawar 123 and 2004 YLR page 1979.
As against that, the learned counsel appearing for the respondents submitted that the quorum of the meeting of the Syndicate under Section 21(3) of the Peshawar University Act 1974 is one-behalf of the TOTAL NUMBER of the members of the Syndicate. Since the total number of the Syndicate is twenty one, therefore, the required number would be eleven and the decision taken by ten members of the Syndicate is illegal, wrong and violative of the statutory provision, therefore, the impugned order was justified and lawfully taken in the subsequent meeting of he Syndicate.
Before attending to the arguments of the learned counsel for the parties, it would be instructive to reproduce the relevant provision herein below:--
"21. (1)----
(2)-----
(3) THE QUORUM FOR A MEETING OF THE SYNDICATE SHALL BE ONE HALF OF THE TOTAL NUMBER OF MEMBERS, A FRACTION BEING COUNTED AS ONE."
Perusal of the aforesaid provision of law would reveal in unequivocal terms that the QUORUM of the meeting of the Syndicate is one half of the TOTAL NUMBER of the Syndicate. Admittedly, the total number of the Syndicate is 21, therefore, the required quorum would be and should be 11 (eleven). As the appointment order of the petitioner bearing endorsement No. 2634/Estt dated 23.8.2007 was approved by the Syndicate when it was short of the quorum by one member, therefore, in the subsequent meeting of the Syndicate held on 20.10.2007 it was rightly, properly and legally declared null and void and without lawful authority and the impugned order based on approval of Syndicate when it was short of quorum was rightly withdrawn in perfect justification of the Statute of the University Act 1974. Therefore, in the writ jurisdiction of this Court it cannot be and should not be interfered with as the same has been issued in letter and spirit of the statutory provision of law. Because the general principles of interpreting statutes is that the interpretation should be natural, appropriate and simple and should give the words heir ordinary meaning. It should be consistent with the intention of legislature and should help the administration of justice. It should not offend the common sense. It should not lead to ridiculous consequences.
The judgments cited by the learned counsel for the petitioner being distinguishable for their peculiar facts are no relevant for the disposal of this writ petition.
In view of what has been discussed above, we see no reason muchless plausible to interfere with the impugned Order No. 481/Estt. dated 26.2.2008 in the extra ordinary, equitable, discretionary, constitutional jurisdiction of this Court. Therefore, finding no merit or substance in this writ petition, the same is accordingly dismissed. However, as the impugned order was issued against the petitioner on technical ground, therefore, in the interest of justice, the respondents are directed to re-consider the case of the petitioner in the next meeting of the Syndicate to be held within two months.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 202
[D.I. Khan Bench]
Present: Syed Yahya Zahid Gilani, J.
AMEEN-UD-DIN--Petitioner
versus
TEHSIL KHAN--Respondent
C.R. No. 97 of 2009, decided on 22.5.2009.
NWFP Pre-emption Act, 1987 (X of 1987)--
----Ss. 31 & 32--Civil Procedure Code, (V of 1908), S. 115 & O.VII, R. 11--Pre-emption suit challenging an ostensible gift transaction with a prayer that it may be declared to be a sale--Application was rejected Rejected under Order 7 Rule 11, CPC being time barred--Appeal filed by pre-emptor was also dismissed--Civil revision--Held: Provision of Section 31 of the NWFP Pre-emption Act, which is mandatory in nature is independent of Section 32 of the Act, which is directory in nature and Section 32 of the Act, cannot operate to change the clear and visible effect of Section 31 of the Act--Suit should have been instituted within 120 days from the date of registration of the deed, in view of Section 31(a) of the Act, and it having been instituted on 13.9.06 is badly barred by time--Hence, the plaint was rightly rejected by both the Courts below--Revision dismissed. [P. 204] A
2004 SCMR 1941 & 2000 SCMR 1305
Mr. Muhammad Younis Thaheem, Advocate for Petitioner.
Date of hearing: 22.5.2009.
Order
Aminuddin instituted pre-emption suit challenging an ostensible gift transaction with a prayer that it may be declared to be a sale. The gift deed was registered on 5.12.2005. The suit was instituted on 13.9.2006. The defendant applied for rejection of plaint on the ground that the suit is time barred. Ultimately, the application was accepted by the trial Court and the plaint was rejected on 17.01.2008. Thereafter the appeal filed by the pre-emptor was also dismissed on 26.3.2009. Hence, this revision petition.
Addressing the Court at motion stage, learned counsel for the petitioner submitted that although the registered sale deed was attested on 5.12.2005, but the mutation was subsequently attested on 25.7.2006. Hence, the suit filed on 13.9.2006 was within time because the registration of the gift deed was concealed. He further argued that notice of the registered deed was not issued under Section 32 of the NWFP Pre-emption Act, 1987 and for that reason the plaint could not be rejected. In this respect, he placed reliance on the case of Muhammad Shah Vs. Additional District Judge, Kohat decided by Honourable apex Court, which is reported in 2004 SCMR 535.
The interdependency of Sections 31 and 32 of the NWFP Pre-emption Act, 1987 has been thoroughly discussed by Honourable apex Court in the case of Maulana Noor ul Haq Vs. Ibrahim Khalil (2000 SCMR 1305). It has been categorically decided that the provisions of Section 32 of the Act are directory in nature for want of a penal clause and cannot in any manner override or dilute the provisions of Section 31 of the Act which are mandatory by all standards. Hence, plaint can be rejected under Order VII Rule 11 CPC if the suit is time barred keeping in view of the limitations prescribed in Section 31 of the Act. In Muhammad Shah's case, referred by learned counsel for the petitioner, the Honourable Apex Court left the matter pertaining to non-issuance of notice under Section 32 of the Act (ibid) to be decided by trial Court after framing an issue on this point but subsequent to it, the judgment in the case of Muhammad Shah was discussed by the Honourable Apex Court in the case of Reham Badshah Vs. Zalia Khan (2004 SCMR 1941) and Muhammad Shah's case has been interpreted and explained as under:--
"In Muhammad Shah's case 2004 SCMR 535, this Court had left undecided the question of interdependence of Sections 31 and 32 of the Act and had observed that it be left to be decided by the trial Court after framing issues and recording evidence. Meaning thereby, that the real question was left undecided despite the fact that this Court in Noorul Haq's case (supra) had already given a verdict thereon. Had some different view of the matter been taken by the larger Bench in Muhammad Shah's case (supra) it might have changed the interpretation but as no decision on the crucial point was finally taken that adopted in Noorul Haq's case would hold the field. For reasons given in the earlier part of the judgment, we also find ourselves in agreement with the view taken in Noorul Haq's case (supra) and hold that the provisions of Section 31 of the Act, having no nexus with the provisions of Section 32 of the Act, the instant suit is barred by time."
Consequently, in view of the interpretation after direct focus and analysis of Sections 31 and 32 of the Act (ibid) in Maulana Noorul Haq's case and Reham Badshah's case and the interpretation of the case of Muhammad Shah in Reham Badshah's case the legal position which emerges is that the provision of Section 31 of the NWFP Pre-emption Act which is mandatory in nature independent of Section 32 of the Act (ibid) which is directory in nature and Section 32 of the Act cannot operate to change the clear and visible effect of Section 31 of the Act.
Resultantly, since in the pre-emption suit in hand the impugned transaction was carried out through a registered deed dated 5.2.2005, the pre-emption suit should have been instituted within 120 days from the date of registration of the deed, in view of Section 31(a) of the Act, and it having been instituted on 13.9.2006, is badly barred by time. Hence, the plaint was rightly rejected by both the Courts below.
The revision petition is, therefore, dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 204 (DB)
[D.I. Khan Bench]
Present: Z, JJ.
TARIQ HABIB--Petitioner
versus
Haji MUHAMMAD RAMZAN and 3 others--Respondents
W.P. No. 272 of 2009, decided on 23.6.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6) & 154--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Order passed by Justice of Peace, assailed through constitutional petition whereby he directed the registration of FIR against the petitioner under Section 22-A(6), Cr.P.C.--Held: When a cognizable offence is alleged and reported by a citizen, the SHO is bound to register FIR under the mandatory provisions of Section 154, Cr.P.C.--Since in the case in hand a cognizable offence has been alleged and the SHO was reluctant to register FIR, the Justice of the Peace had no other option but to issue direction for registration of case which was issued and it must be complied with.
[Pp. 205 & 206] A & B
PLD 2009 SC 102, PLD 2007 SC 539, rel.
Mr. Jamal Abdul Nasir Awan, Advocate for Petitioner.
Date of hearing: 23.6.2009.
Order
Syed Yahya Zahid Gilani, J.--When learned counsel for the petitioner explained facts of the case, it revealed on record that the respondent Haji Muhammad Ramzan applied under Section 22-A Cr.P.C. for registration of FIR on the basis of allegations that Tariq Habib (petitioner herein) issued a fraudulent and bogus cheque which was dishonoured and in spite of reporting these allegations constituting a cognizable offence under Section 489-F PPC, the SHO Police Station Cantt: D.I.Khan did not register the case. Hence, learned Additional Sessions Judge-I/Justice of the Peace, D.I.Khan, vide order dated 16.6.2009 directed registration of FIR against the petitioner. Till so far this order has not been complied with and we have been told at the bar that FIR has not yet been registered, which itself is highly objectionable which may expose the SHO of P.S. Cantt., D.I.Khan to explain his indolence, but the instant constitutional petition has been moved for declaring that the aforesaid order of Justice of the Peace is without lawful authority and of no legal effect.
"The police are under a statutory duty under Section 154 of the Code of Criminal Procedure and have a statutory right under S. 156 of the Code of Criminal Procedure to investigate a cognizable offence whenever a report is made to it disclosing the commission of a cognizable offence. To quash the police investigation on the ground that the case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with duties of police".
"For the purposes of this petition, we are concerned, primarily, with clause (i) of the above quoted provisions of subsection (6) of the Section 22-A of the Cr.P.C. These provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police Station by refusing to register a criminal case i.e. not recording an F.I.R. We have held above that the provisions of Section 154, Cr.P.C. command a S.H.O. to lodge an F.I.R. if the information conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or incorrect. Undoing this wrong of non-registration of a criminal case would mean only an order to the S.H.O. to register the case. The provisions of the said subsection (6) of Section 22-A, Cr.P.C. confer no additional powers on an Ex-officio Justice of the Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in question nor do the said provisions give any extra authority to the said Ex-officio Justice of the Peace to refuse registration or order non-registration of an F.I.R. in violation of or beyond the mandatory requirements of Section 154, Cr.P.C".
We, therefore, hold that since in the case in hand a cognizable offence has been alleged and the SHO was reluctant to register FIR, the Justice of the Peace had no other option but to issue direction for registration of case which was issued and it must be complied with.
The writ petition is found without force and dismissed in limine. However, it will not preclude the petitioner to seek any remedy according to law in the light of this Court's judgment delivered in Salahuddin SHO. Vs. Mst. Noor Jehan (PLD 2008 Peshawar-53), but that too, after registration of the case.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 206 (DB)
[Abbottabad Bench]
Present: Ghulam Mohy-ud-Din Malik & Zia-ud-Din Khattak, JJ.
Dr. SHAHABULLAH KHAN and another--Petitioners
versus
Mst. SOBIA MEHRIN and 2 others--Respondents
W.P. No. 120 of 2009, decided on 3.6.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Maintenance of wife--Husband's obligation to maintenance of wife commences from the moment wife surrenders herself to the command and desire of her husband, i.e. affords him the right of consortium--However, it becomes a demandable debt when she is living in desertion due to his cruel or unbecoming conduct. [P. 208] A
Dower--
----Validity of Islamic Marriage--All Sunni Schools of law agreed that the dower is one of the condition of validity of marriage--There are about six verses in the Quran which refer to the dower--They are 2:229, 4:24, 4:20, 4:25, 5:5 and 60:10, stating that the dower is a condition for the validity of an Islamic Marriage--Petitions dismissed. [P. 209] B
Mr. Q.M. Ghazanffar, Advocate for Petitioner.
Date of hearing: 3.6.2009.
Judgment
Ghulam Mohy-ud-Din Malik, J.--Aggrieved by the judgments and decrees of learned subordinate Courts respecting decree for maintenance allowance and return of dowry articles, petitioners have filed this writ petition against the respondent.
The learned counsel for the petitioners contended that the suit of respondent for recovery of dowry articles or in alternative price thereof and suit for maintenance allowance was wrongly and illegally decided in favour of respondent without taking into consideration the evidence and all the attending facts and circumstances of the case. Further he contended that Mst. Farhat Jan was summoned repeatedly as Court witness by the learned Judge Family Court but she did not appear and instead of using coercive method for procuring her attendance she was abandoned. Further contended that there was evidence to believe that the dowry articles were returned to the respondent and that she had left the house of the petitioner without any lawful excuse and thus in these circumstances neither decree for recovery of dowry articles nor for maintenance allowance was justifiable.
We have perused the available record and found that no doubt vide Order Sheet No. 27 dated 13th October, 2003 the summoned C.W. Mst. Farhat Jan was reported to have gone for performance of Umra and counsel for respondent was directed to inform the Court as and when she returned home. Besides the available record shows that the learned trial Judge did all his best to procure her attendance but she could not be traced out nor her correct address was furnished by the petitioners: for service. The Court of its own tried to serve her on given address, at a place of her definite abode as well as at her temporary deposit but all the ¦time notices/summonses were returned as unserved with the report that she was not available there. So in these circumstances, there was left no other alternative remedy except to abandon her and decide the case on the evidence already recorded. Actually the evidence on record was good enough to decide the disputed issues pertaining to maintenance allowance and the recovery of dowry articles. The list of dowry articles Ex.P.W.4/1 has been proved to be correct list of articles which were given to the respondent by her parents at the time of marriage. The statement of attorney of respondent, statement of C.W.1 Mst. Rabeha Haroon mother of respondent and statement of C.W.2 Muhammad Shamhoon brother of respondent go in line with regard to matter of dowry articles that these were delivered at the time of marriage and were never returned back after her desertion, So this being the factual position proved on the strength of evidence, there is left no room to doubt the claim of respondent.
With regard to the maintenance allowance admittedly she was living in desertion. The amount of maintenance allowance in case of desertion was agreed upon between the parties at the time of marriage but he failed to honour his undertaking and started litigation on whimsical and flimsy grounds. The conduct of petitioner that he had contracted and divorced other wives as well and the life of the respondent during the existence of matrimonial tie was made miserable can be inferred from the parties evidence. So it appears that under the compelling circumstances she had left the house of petitioner and started living with her parents wherein she was not provided any maintenance allowance. The husband's obligation to maintenance of wife commences from the moment wife surrenders herself to the command and desire of her husband, i.e., affords him the right of consortium. However, it becomes a demandable debt when she is living in desertion due to his cruel or unbecoming conduct. In this case he has become debtor because there was decided by mutual consent that in case of unpleasant circumstances, he would provide her separate maintenance.
In these circumstances, the decree passed by the learned trial Court and upheld by the Appellate Court against the petitioner seems to be well found, based on proper reasoning and correct exposition of law which cannot be interfered with in exercise of constitutional jurisdiction.
Before parting with the instant judgment we may observe that there is a separate Writ Petition No. 121/2009 filed by the petitioner against the judgment and decree of learned subordinate Court as to grant of dower decree.
It is undisputed fact on the record that at the time of marriage between the parties, land measuring 5 kanals was given by the petitioner to Mst. Sobia Mehreen respondent in dower. According to Column Nos. 13 to 16 of Nikah Nama dated 22.3.2000 Ex.P.W.1/1 in lieu of dower the above said property was given to her and to this fact Mutation No. 5563 was attested by the petitioner in favour of respondent. The petitioner could not lead any confidence inspiring evidence to prove that the entry in the Nikah Nama was false, fake or fictitious. Similarly, he could not prove that his signatures were forged on the Nikah Nama. So in these circumstances, she is entitled to receive dower from the husband in consideration of marriage. All Sunni Schools of Law agreed that the dower is one of the condition of validity of marriage. There are about six verses in the Qur'an which refer to the Dower. They are: 2: 229; 4; 24, 4; 20; 4. 25; 5: 5 and 60: 10, stating that the dower is a condition for the validity of an Islamic. Marriage. The crux of above is that she has proved fixation of her dower and non-payment and as such she is legally entitled to get the same, particularly after the divorce. So there is no reason to interfere into concurrent findings of both the learned subordinate Courts on factual as well as legal aspect of the case respecting the dower decree.
For the foregoing reasons, both the above mentioned writ petitions being meritless stand dismissed.
(M.S.A.) Petitions dismissed.
PLJ 2009 Peshawar 209 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ.
ZAFRULLAH KHAN--Petitioner
versus
DISTRICT CO-ORDINATION OFFICER, LAKKI MARWAT
and 5 others--Respondents
W.P. No. 70 of 2006, decided on 31.3.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Petitioner came to Court with unclean hands--Supressed the facts and also with delay--Laches--Initially for redressal of his grievance he had filed a civil suit in Civil Court which was dismissed, thereafter he filed an appeal which too met the same--Constitutional petition is hit by the doctrine of `laches'--While the instant writ petition has been filed Supreme Court on 3.4.2006 and when the petitioner failed at the lower fora to get his grievance redressed, instead of filing a revision petition, he opted to file the present incompetent constitutional petition--Petition was dismissed. [P. 211] A
Mr. Saleem Ullah Khan Ranazai, Advocate for Petitioner.
Mr. Sana Ullah Shamim Gandapur, D.A.G. for Respondents.
Date of hearing: 25.3.2009.
Judgment
Muhammad Alam Khan, J.--Through the instant Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner Zafrullah Khan seeks to declare the order Bearing No. 1469-78 dated 30/11/2004 issued by the Executive District Officer, Schools and Literacy Lakki Marwat/ Respondent No. 3 as null, void, illegal and thus ineffective upon his rights and to declare him entitled for appointment as Driver instead of Respondent No. 5 or 6.
Facts of the case giving rise to this writ petition briefly stated are that pursuant to an advertisement published in daily news papers, Respondent No. 3 invited applications for recruitment as Drivers from deserving and suitable candidates and in response thereto, the petitioner had applied and participated in the test on 25/2/2004 and he was placed at second position in the merit list with 75% marks. He was, however, refused appointment on the ground of over-age having 33 years age as his date of birth was 1/10/1969 while the age-limit was thirty years. The stance of the petitioner is that Respondent No. 5 appointed as Driver placed at Serial No. 4 in the merit list with 68% marks and 35 years age and Respondent No. 6 with 72% marks, being lower than him, were not entitled to the appointment as Drivers through the impugned order of Respondent No. 3. To augument his stand, the petitioner has stated that his upper age limit has been relaxed for five years vide Annexure `E' on the file.
Comments were called from Respondent No. 3 who has categorically denied and refuted the allegations of the petitioner supported by documentary evidence.
We have carefully examined the available record of the case in the light of valuable arguments of the learned counsel for the parties.
Perusal of the record makes it crystal clear that the instant writ petition is not maintainable, misconceived and the petitioner has not come up to this Court with clean hands having suppressed the material facts. Initially, for redressal of his grievances he had filed a civil suit in the Civil Court at Lakki Marwat vide Suit No. 14/1 of 2004, titled
Zafrullah Vs. DCO Lakki etc; which was dismissed by the leaned Senior Civil Judge
Lakki Marwat vide judgment dated 17/5/2006. Thereafter, he filed an appeal which too met the same fate before the learned Additional District Judge-I
Lakki on 27/1/2006. Instead of challenging the order of the lower appellate Court in revision before this Court, he opted to file another civil suit which was dismissed as withdrawn on 22/3/2006 in order to file a writ petition. All these facts have been suppressed while filing the instant writ petition. The plea that he was granted five years relaxation in upper age limit by the Establishment and Administration Department vide annexure E' on the file is also misplaced and ill founded as it is only the copy of application addressed to the Chief Minister over which recommendations have been made in this behalf, but that too by incompetent persons, as it is only the Secretary to Government of NWFP, General Administration Department, who is competent to grant age relaxation in deserving cases. Besides, the writ petition is hit by the doctrine ofLACHES'. The impugned order is dated 30/11/2004, while the instant writ petition has been filed in this Court on 3/4/2006 and when the petitioner failed at the lower fora to get his grievances redressed, instead of filing a revision petition, he opted to file the present incompetent constitutional petition. The impugned order is thus, well-founded, based on correct legal premises and not open for interference by this Court in exercise of its extra ordinary constitutional jurisdiction.
Consequently, we find no substance in this writ petition which is dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2009 Peshawar 211
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
Haji NAWAB KHAN--Petitioner
versus
SHAIZULLAH KHAN--Respondent
C.R. No. 280 of 2006, decided on 27.5.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Onus of proof regarding benami nature--Whenever a person alleges a transaction to be of benmi nature, the initial onus lies on him to prove the same, but the onus may shift during the evidence if he proves the ingredients of the transaction, then the burden is on the defendant to disprove the allegation and thus, non consideration of important evidence resulted in placing the onus wrongly and the same was not properly placed--Case was remanded. [P. 215] A
1971 SCMR 703, ref.
Mr. Abdul Aziz Khan Kundi, Advocate for Petitioner.
Mr. Riaz Muhammad Khan, Advocate for Respondent.
Date of hearing: 30.3.2009.
Judgment
This civil revision petition is directed against the concurrent findings of the learned lower fora dated 31/3/2006 and 28/6/2006 respectively, whereby declaratory suit of the plaintiff/petitioner Haji Nawab Khan was dismissed.
Facts of the case are that Haji Nawab Khan had filed a suit for declaration and perpetual injunction against the respondent Shaizullah Khan to the effect that he is owner-in-possession of the suit shop with Balakhana bearing No. 201/1+A since its purchase in the year 1974 fully detailed in the head notes of the plaint where he runs the business of Books Selling. In this connection letter pads and other utility bills are also in his name, while he used to pay the property tax regularly. Besides, being owner, he reconstructed the suit shop as a double story building with investment of million of rupees. Being elder, as a benami owner regarding the title of the suit shop a decree was obtained in the name of the respondent in the event of proceedings of Civil Suit No. 305/1 decided on 4/6/1974. That when a month prior to the institution of the suit respondent refused to transfer the ownership of the suit shop in the name of the petitioner then he filed the instant suit.
Respondent was summoned who after service contested the suit of the petitioner by filing written statement wherein he refused to acknowledge the ownership of the petitioner with respect to the suit shop rather he claimed the same as his sole ownership and also claimed the business to be joint with the petitioner and averred that the new construction over the suit shop has been raised from joint income of joint business.
The learned trial Court out of the divergent pleadings of the parties framed the following issues:--
Whether plaintiff has got the cause of action? OPP
Whether suit is based on malafide? OPD
Whether suit is within time? OPP
Whether plaintiff is estopped to sue by his own conduct? OPD
Whether in the event of dismissal of the suit would defendant be entitled to receive compensatory cost u/S. 35-A of CPC? OPD
Whether plaintiff purchased the suit shop benami in the name of defendant? OPP
Whether title of the suit shop vests in the plaintiff and defendant is only benami owner? OPP
Whether plaintiff has incurred huge expenses on the construction/improvement of the suit shop? OPP
Whether plaintiff is entitled to the decree as prayed for? OPP
Relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court after hearing the parties, consulting issues and the data available on record dismissed the suit vide judgment and decree in suit No. 143/1 decided on 31/3/2006 with special cost of Rs. 25,000/-.
Feeling aggrieved, the plaintiff/petitioner filed appeal No. 12/13 of 2006 which came up for hearing before learned Additional District Judge-V Bannu and the learned appellate Court vide judgment and decree dated 28/6/2006 dismissed the appeal and hence this revision petition.
Mr. Abdul Aziz Khan Kundi, learned counsel for the petitioner, submitted that the petitioner had produced overwhelming evidence on record to substantiate his case and has proved on record that the possession since its inception was with the plaintiff/petitioner and he in the presence of the respondent/defendant raised huge construction of three storied building and no objection was raised to the said construction and the continuous silence of the respondent amounted to estoppels on his part. It was also argued that when the dispute arose, the compensation determined by the Mediators was duly deposited by the plaintiff/petitioner in the account of defendant/respondent which lay in deposit and the evidence led by the petitioner has neither been taken into consideration by the trial Court nor appellate Court. Reliance was placed on the case of Abdul Majeed and others Vs. Amir Muhammad and others (2005 SCMR 577).
Haji Riaz Muhammad Khan, learned counsel for the respondent while controverting the arguments of the learned counsel for the petitioner submitted that the burden of proof that the transaction was benami was on the plaintiff/petitioner and in this respect the onus has not been discharged. It was submitted that the plaintiff has to prove his own case and will not take benefit of the weaknesses of the defendants case. Elaborating his arguments, the learned counsel submitted that the ingredients of benami nature of the transaction has not been proved by the petitioner and the evidence if perused minutely produced by the petitioner, an inference can be drawn that he admitted the ownership of the respondent, Firstly that substitute property was offered to the respondent for the suit shop and, Secondly pursuant to the alleged arbitration between the parties, the petitioner has deposited Rs. 37,000/- with accrued benefit in the suit shop in the account of the respondent and the plaintiff/petitioner cannot wriggle out of these admissions. Reliance was placed on the cases of Muhammad Yaseen Siddiqui Vs. Tahseen Jawaid Siddiqui (2003 MLD 319) and Al Haaj Muhammad Rafique Vs. Mst. Khalida Shehzadi (2003 CLC 559).
I have heard learned counsel for the parties and with their valuable assistance have scanned the evidence and available record.
Perusal of the record revealed that the plaintiff/petitioner had led over whelming evidence on the record to substantiate and prove his case, but neither the learned trial Court nor the appellate Court has scanned the evidence. Zahid Ali Khan Record Keeper had appeared as PW. 1 and he had produced the copies of Taxation Register, which proved the long standing possession of the petitioner which was never interrupted by any one. Mussarat Ali, Assistant Habib Bank, appeared as PW.2 who produced the extract from Account No. 3159-9 in which Rs. 37,000/- as determined by the Arbitrator was duly deposited. Rahmatullah Draftsman, was examined as PW.3 who testified to the reconstruction of the paid shop by the plaintiff in the year 1984. Imam-ud-Din son of Zain-ud-Din appeared as PW.4 who admitted that the said shop was initially purchased by his father for the parties, but subsequently the sale consideration was paid by the plaintiff. PW.5 Haji Muhammad Noor Bad Shah appeared as a witness of mediation between the parties. Similarly, PWs 6 and 7 appeared as the two Mediators to prove the mediation between the parties. PW.8 Asmatullah Khan testified to the fact of reconstruction of the suit shop by the petitioner.
The most two important witnesses are PWs. 9 and 10, Razaullah Khan and Umer Daraz Khan. Who are also witnesses of the mediation between the parties, out of whom PW.10 Umer Daraz Khan is the most important witness, as he is the brother-in-law of the defendant/respondent and his testimony cannot be doubted. PW. 11, the petitioner, has appeared and has corroborated the version given in the plaint.
From the defendant side, DW-1 Patwari Halqa, DW-2 Muhammad Imran and DW-3 Mst. Noor Gula appeared as the sole witnesses of the defendant as attorney and recorded her statement. The respondent avoided to come to the witness box.
Perusal of the judgment of the trial Court and upheld by the learned appellate Court would reveal that the important evidence has neither been taken into consideration nor discussed. What was the effect of non-appearance of the defendant/respondent in the witness box is also a fact shrouded in mystery and the findings so recorded suffers from non-reading of evidence.
The onus of proof regarding the proof of Benami nature of the transaction was also placed on the petitioner. Correct that whenever a person alleges a transaction to be of Benami nature, the initial onus lies on him to prove the same, but the onus may shift during the evidence if he proves the ingredients of the transaction, then the burden is on the defendant to disprove the allegation and thus, non-consideration of important evidence resulted in placing the onus wrongly and the same was not properly placed as held in the case of Muhammad Sajjad Hussain Vs. Muhammad Anwar Hussain (1991 SCMR 703).
The learned trial Court has taken Issues No. 6 to 8 jointly for discussion. Issue No. 6 was with respect to Benami transaction but the rest two issues were never adverted to by the learned lower fora nor the evidence with respect to these issues was taken into consideration. No independent findings have been recorded on these issues although evidence had been led by the parties on these issues and the provisions contained in Order 20 Rule 5 CPC has been flagrantly violated. Similarly is the position of recording finding on the issue of limitation and imposition of compensatory costs on the plaintiff/petitioner.
For the reasons stated above, I am constrained to accept the instant revision petition, set aside the impugned judgments and decrees of the two Courts below and remand the case to the trial Court for decision afresh after affording opportunity of hearing to the parties and keeping in view the observations recorded above. The learned trial Court is directed to decide the matter positively within three months excluding the month of August 2009 in which the Courts are closed due to summer vacations. The learned trial Court should summon the parties after receipt of record from this Court.
(M.S.A.) Petition accepted.
PLJ 2009 Peshawar 216 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and (sic), J.
Miss MAHEEN BEGUM--Petitioner
versus
SENIOR MEMBER BOARD OF REVENUE N.W.F.P. PESHAWAR
and others--Respondents
W.P. No. 343 of 2007, decided on 26.11.2008.
West Pakistan Land Revenue Act, 1967 (XVIII of 1967)--
----S. 163--Constitution of Pakistan, 1973, Art. 199--Review application--Hoplessly time barred--Jurisdiction of Civil Court--Question of validity of gift--Application was submitted after the death of nine months--Challenged the gift mutation being based on fraud, misrepresentation and collusion--Validity--Question to the validity of gift is essentially an intricate question of title which cannot be decided without recording of pro and contra--Held: Respondents have challenged the mutation in-question on the grounds of fraud, collusion and misrepresentation for which on the Civil Courts are competent to dilate and adjudicate thereupon and that too, after recording of pro and contra evidence of the parties in the light of record and not by officers of revenue hierarchy under the provisions of West Pakistan Land Revenue Act, 1967--Petition was accepted.
[Pp. 218 & 219] A & C
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 163 & Scope of--Review--Order of attestation of mutation can be rectified--Validity--Scope of review is very limited and only mistakes apparent on record in the order of attestation of mutation can be rectified therein--Question whether a gift was or was not made by donor particularly when he was dead will not fall within the scope of review. [P. 218] B
2007 MLD 1664, 2003 CLC 110 & PLJ 2004 Lah. 958, rel.
Malik Muhammad Bashir, Advocate for Petitioner.
Mr. Gohar Zaman Kundi, Advocate for Respondents Nos. 6 to 9.
Date of hearing: 26.11.2008.
Judgment
Muhammad Alam Khan, J.--Through the instant Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner, Miss Maheen Begum, has challenged the judgment/order dated 19/9/2006 of the learned Member, Board of Revenue N.W.F.P. Camp Court D.I.Khan, whereby her revision petition against the order dated 6/5/2004 passed by the Presiding Officer, Revenue Appellate Court No. II Camp Peshawar maintaining the order dated 24/1/2001 of Collector D.I.Khan was dismissed and has prayed for its setting aside.
Precisely stated facts of the case are that one Mst. Sandoor Bibi was owner of landed property measuring 1383 kanals 4 marlas situated in village Takwara Nulla Hussainzai, Tehsil Kulachi who vide Mutation No. 1395 attested on 16/8/1993 had gifted the same to Mst. Maheen Begum, petitioner herein. Subsequently, Abdul Majeed etc; the legal heirs of the donor Mst. Sandoor Bibi challenged the said gift Mutation No. 1395 before the Revenue Officer/Collector in review being based on fraud, misrepresentation and collusion. It was also alleged in review petition that the petitioner was a minor girl and the gift in lieu of services was not a valid gift as she could not do any service to the donor. It was also averred in the review petition that the attesting witnesses of the mutation of gift were closely related to the donee and the gift was just to deprive the legal heirs of the deceased from inheritance. The learned Collector referred the application for review to the EAC D.I.Khan for enquiry and report on 19/4/1994 and after the enquiry by EAC, the learned Enquiry Officer recommended the matter to be reviewed under Section 163 of the West Pakistan Land Revenue Act 1967 and consequently the learned Collector passed the impugned order dated 24/1/2001 vide which the Revenue Officer Kulachi was directed to enter and attest the inheritance v. mutation of Mst. Sandoor Bibi in favour of Abdul Majeed etc; her legal heirs. Mst. Maheen Begum being aggrieved of the said order dated 24/1/2001 of the Collector challenged the same in revision before the Additional Commissioner D.I.Khan but remained unsuccessful as it was dismissed by the Presiding Officer Revenue Appellate Court-II D.I.Khan vide order dated 6/5/2005. Not contented therefrom, the petitioner agitated her grievances second revision before the Senior Member, Board of Revenue N.W.F.P. but could not succeed vide order dated 15/9/2006. Still not satisfied, the petitioner has filed the present constitutional petition.
Malik Muhammad Bashir, learned counsel for the petitioner, argued that the review petition filed before the Collector firstly time barred as it was filed beyond the purview of limitation of ninety days, secondly under Section 163 of the West Pakistan Land Revenue Act 1970, the Collector could review his own order and not that of Revenue Officer/Tehsildar, thirdly that disputed questions of facts regarding the genuineness of the transaction, the validity of the gift, its proof cannot be gone into in review jurisdiction and fourthly the Enquiry Officer recorded the statements of some witnesses but no opportunity of cross-examination was afforded to the petitioner. It was also submitted that mutation proceedings are summary in nature and detailed enquiry or question of title can only be agitated before the competent Civil Court. It was lastly submitted that the remedy of appeal was available to the Respondents Nos. 6 to 9 which they did not avail and instead filed a time barred review petition. Reliance in this respect was placed on Abdul Majeed Vs. Director Excise and Taxation Department, Farid Kot House Lahore and 4 others (2007 MLD 1664), Abid Hussain Vs. Mst. Kalsum (2003 CLC 110) and Muhammad Ali Sabtain and 4 others Vs. Mst. Shah Jahan Bibi and others (PLJ 2004 Lahore 958).
Mr. Gauhar Zaman Kundi, learned counsel appearing for Respondents No. 6 to 9 argued that the learned Collector was empowered to hear the review petition. During the enquiry the petitioner has neither proved the mutation nor the transaction of gift in itself. The ingredients of gift were missing in this case and neither declaration of gift nor its acceptance nor the delivery of possession had been proved and thus the mutation of gift was rightly set aside by the learned Collector in his review jurisdiction. Reliance was placed on the cases of Secretary to the Government of Punjab., Forest Department Punjab Lahore through Divisional Forest Officer Vs. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415), Abdur Rauf Khan Government of N.W.F.P. through Chief Secretary and 3 others (PLD 1991 Supreme Court K 236) and Ali Nawaz Chowhan Government of the Punjab through Chief Secretary SG&D and 16 others (PLD 1992 Supreme Court 413).
We have scanned the entire record of the case threadbarely and minutely considered the valuable arguments of learned counsel for, the parties.
Perusal of the record makes it crystal clear that the impugned orders of the fora below are not based on correct appreciation of evidence brought on record and thus, liable to be set aside. Mutation No. 1395 attested on 16/8/1993 which is the bone of contention between the parties was entered and attested by the donor Mst. Sandoor Bibi with her own free will during her life time and it was after her death, almost after nine months that Respondents No. 6 and 7 submitted a hopelessly time barred review application and liable to dismissal on the ground of limitation alone. Besides, the question of validity or otherwise of a gift is not the domain of the revenue hierarchy but it is the exclusive jurisdiction of Civil Court to dilate upon according to law. The question with respect to the validity of gift is essentially an intricate question of title which cannot be decided without recording of pro and contra evidence. The scope of review is very limited and only mistakes apparent on record in the order of attestation of mutation can be rectified therein. The question whether a gift was or was not made by the donor particularly when she/he is/was dead will not fall within the scope of review. Besides, the respondents Abdul Majeed etc.; have challenged the mutation in question on the grounds of fraud, collusion and mis-representation for which only the Civil Courts are competent to dilate and adjudicate thereupon and that too, after recording of pro and contra evidence of the parties in the light of record and not by officers of the revenue hierarchy under the provisions of The West Pakistan Land Revenue Act, 1967.
Consequently, we accept this writ petition, set aside the impugned orders of Respondents No. 1 to 3 being illegal, without lawful authority and with no legal effect and resultantly restore the gift Mutation No. 1395 attested on 16.8.1993 on behalf of Mst. Sandoor Bibi in favour of Mst. Maheen Begum petitioner.
Above are the reasons for our short order dated 26/11/2008.
(R.A.) Petition accepted.
PLJ 2009 Peshawar 219 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ.
NADIA SHABNUM and 3 others--Petitioners
versus
LAND ACQUISITION COLLECTOR (N-55) N.H.A. D.I. KHAN
and 7 others--Respondents
W.P. No. 47 of 2008, decided on 15.4.2009.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 11 & 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Announcement of award--Property was acquired for a public purpose--Petitioner not being satisfied with quantum of compensation filed reference which was rejected--Validity--At the time of announcement of the award, petitioners were present before Land Acquisition Collector or any notice as envisaged u/S. 12 of Land Acquisition Act, was ever issued to them--Reference petition filed by petitioner was remitted to Land Acquisition Collector with direction to refer the same to Court. [P. 221] A
Land Acquisition Act, 1894 (I of 1894)--
----S. 18(b)--Announcement of award--Limitation--Reference filed by petitioner was not within time i.e. not within forthy-two days/six weeks from the date of announcement of award--Held: S. 18(b) of Land Acquisition Act, would apply and the period of limitation would be six months from the date of announcement of award. [P. 221] B
Constitution of Pakistan, 1973--
----Art. 199--Land Acquisition Act, 1894, Ss. 11 & 12(2)--Announcement of award--Petitioner not being satisfied with quantum of compensation, filed a reference which was rejected by Land Acquisition Collector--Assailed--Rejected the application had misconceived the law--Validity--Impugned order of Land Acquisition Collector was non-speaking, not in accordance with law and thus was liable to be struck down under Art. 199 of Constitution, same is declared as such being illegal ultra vires and without lawful authority. [P. ] C
Mr. Muhammad Ayaz Qasuria, Advocate for Petitioner.
Mr. Minhaj-ud-Din Alvi, Advocate for Respondents.
Date of hearing: 15.4.2009.
Order
Muhammad Alam Khan, J.--After hearing the learned counsel for the parties at some length, it transpired that Petitioner Nos. 2 to 4 are minors and they have filed the instant writ petition through Nadia Shabnam widow of Fazal Rehman, as next friend and guardian-ad-litem of the petitioners.
"This is to inform you that your reference under Section-18 of the Land Acquisition Act, 1894 titled Mst. Nadia Shabnam etc vs. Land Acquisition Collector NHA etc has not been referred to the Court of law. It has been rejected for being time barred".
Sd/-
(Malik Mansoor Qaiser)
Land Acquisition Collector (N-55)
D.I.Khan Sarai Gambila Project
D.I.Khan
The main stance taken by the learned Land Acquisition Collector was that the reference filed by Nadia Shabnam etc was not within time i.e. not within forty-two days/six weeks from the date of announcement of the award.
We have scanned the record of the case and find that Petitioners Nos. 2 to 4 are minors and when notice under Section 9 was issued to them, that was received by Khalil-ur-Rehman, and in the impugned notice they were described as majors but in fact they were minors. There is no evidence on record that at the time of announcement of the award, the Petitioners No. 2 to 4 were present before the Land Acquisition Collector or any notice as envisaged under Section 12(2) of the Land Acquisition Act, was ever issued to them. Thus, in such like situation, proviso (B) attached to Section 18 of the Land Acquisition Act would apply and the period of limitation would be six months from the date of announcement of the award. The award was announced on 29.11.2007, reference petition filed on 13.02.2008, was well within time. The learned Land Acquisition Collector rejecting the application has misconceived the law on the subject. Thus, the impugned order of the learned Land Acquisition Collector dated 14.02.2008 is non-speaking, not in accordance with law and thus the same is liable to be struck down under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the same is declared as such being illegal, ultra vires and without lawful authority.
Resultantly, the reference petition dated 13.02.2008 filed by Petitioners No. 2 to 4 through the next friend Nadia Shabnam, is remitted to the learned Land Acquisition Collector with direction to refer the same to the Court i.e. The Referee Court , duly constituted through a Notification under the provisions of Land Acquisition Act, 1894, in order to be decided on merits. No order as to costs. Petitioners are directed to appear before the learned Land Acquisition Collector on 30.4.2009. This writ petition is thus disposed off accordingly.
(R.A.) Petition disposed off.
PLJ 2009 Peshawar 221 (DB)
Present: Ejaz Afzal Khan and Jahanzaib Rahim, JJ.
KASHIF-UR-REHMAN KHALIL--Petitioner
versus
KHYBER MEDICAL UNIVERSITY & GIRLS CAMPUS, PESHAWAR through its Vice-Chancellor and 5 others--Respondents
W.P. No. 713 of 2008, decided on 2.7.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Issuance of an appropriate directing to countenance for migration from one college to another--Criterion for migration--Question of--Provisions of prospectus--If provisions of prospectus mean something, they mean something for every body including Govt.--If none of colleges is required to accommodate even a single student over and above its sanctioned strength, how could Govt. be an exception to that--Frustrate of merit, violation of equality clause and cause for bad governance--Validity--Where an application for migration of a student from one college to another is decided by looking to a nod and not by looking into its merit, Courts of law, quite naturally, would have to be thronged by aggrieved persons--Held: Petitioners falling in realm of factual controversy cannot be decided by High Court in exercise of constitutional jurisdiction--High Court instead of expressing his view one way at such stage, would direct principal of colleges and Govt. to decide their cases strictly in accordance with law for the reasons to be recorded as positively--Petitions disposed of. [P. 224] A & C
General Clauses Act, 1894 (X of 1894)--
----S. 24-A--Educational institution--Question of migration--Once an application before principals of College or Govt. is made it is to be decided for reasons to be recorded--Validity--Such application is not to be sat and slept over for an indefinite period of time--It is to be decided with due regard to merit of each case in light of grounds mentioned in application as expeditiously as possible. [P. 224] B
Mr. M.S.H. Qureshi, Advocate for Petitioner.
Mr. Ghulam Shoaib Jolly, Advocate & Mr. Qaisar Rashid, AAG for Respondents.
Dates of hearing: 1.7.2009 and 2.7.2009.
Judgment
Ejaz Afzal Khan, J.--By this single judgment we propose to dispose of Writ Petitions No. 713 and 1303 of 2008, wherein the petitioners have asked for the issuance of an appropriate writ directing the respondents to countenance their prayer for migration from Ayub Medical College, Abbottabad to Khyber Medical College, Peshawar.
Learned counsel appearing on behalf of the petitioner in Writ Petition 713 of 2008 contended that when the parents of the petitioner are living hand to mouth, they couldn't afford to bear the extra expenditure on his education in Ayub Medical College. The learned counsel next contended that the petitioner couldn't have smooth sailing in his studies with stress on his mind as ailing parents and sisters are in the lurch and there is, none to look after them. The learned counsel next contended that where migration is allowed to the undeserving children of high ups with utter disregard of merit, resort to constitutional jurisdiction would be the only course open before an aggrieved person.
The learned counsel appearing on behalf of the petitioner in Writ Petition No. 1303 of 2008 contended that where the petitioner is suffering from recurrent urticaria and his ailment gets aggravated because of the inclement weather at Abbottabad, a case for migration from Ayub Medical College Abbottabad to Khyber Medial College, Peshawar, is made out. Ailing parents, the learned counsel added, is another factor which constitutes a compassionate ground to justify his migration from Ayub Medical College, Abbottabad to Khyber Medical College, Peshawar, that too, when there is none to look after them in the absence of the petitioner. The learned counsel next contended that when all the migrations from one College to another have been made without any legal and moral justification, the case of the petitioners for being placed on a higher plank of merit calls for interference by this Court.
As against that, the learned counsel appearing on behalf of the Medical Colleges contended that none of the students has been allowed migration without justification and that where the College has already outgrown its sanctioned strength, neither the petitioner in Writ Petition 713/08 nor the one in Writ Petition 1303/08 can be accommodated.
The learned AAG appearing on behalf of the Provincial Government contended that the Provincial Government comes into play only when the matter has been cleared with concurrence of the Principals of the respective Colleges. It, he added, does not take a decision on its own independently of the Principals of the Colleges.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
Though migration, on papers, is regulated by the provisions contained in Prospectus but the details as to the number of the students migrating from different Colleges to the Khyber Medical College would show that except for one or two all the migrations have been allowed at the instance of the Government in derogation of the said provisions. When confronted as to what is the criterion for migration of a student from one College to another, the learned counsel for the Medical Colleges read out the relevant provisions of the Prospectus. When confronted as to how a student could be allowed to migrate from one College to another, when the College has exceeded its sanctioned strength, the learned counsel replied that it was done at the instance of the Government by relaxing the rules. This answer, to say the least, shows that neither the College nor the Government adheres to the provisions of the Prospectus. They permit it, if and when their whim and caprice permit and they decline it if it is otherwise. Adherence to merit or the provisions of the Prospectus may be seen in clear words on papers but it cannot be seen even with microscope in practice. Semblance or even pretence of adherence to merit and the provisions of the Prospectus has become extinct specie, if seen in the light of details mentioned above. If the provisions of the Prospectus mean something, they mean something for every body including Government. If none of the Colleges is required to accommodate even a single student over and above its sanctioned strength, how could the Government be an exception to that? Here lie the tragedy, the frustration of merit, the violation of the equality clause and cause for bad governance. Where an application for migration of a student from one College to another is decided by looking to a nod from above and not by looking into its merit, the Courts of law, quite naturally, would have to be thronged by the aggrieved persons. We have also been informed, during the course of arguments, about the number of applications awaiting concurrence of the Principals and decision of the Government respectively but what would be their fate is any body's guess.
Be all that as it may, once an application before the Principals of the Colleges or the Government is made, it is to be decided for reasons to be recorded in accordance with the provisions of Section 24-A of the General Clauses Act. Such application is not to be sat and slept over for an indefinite period of time. It is to be decided with due regard to the merit of each case in the light of the grounds mentioned in the application as expeditiously as possible. We, too, were quite poised to decide the question of migration in the petitions before us but since many of the contentions raised by the learned counsel for the' petitioners falling in the realm of factual controversy cannot be decided by us in the exercise of our constitutional jurisdiction, we instead of expressing our own view one way or the other at this stage, would direct Principals of the Colleges and the Government to decide their cases strictly in accordance with law for the reasons to be recorded as highlighted above within a month positively. These petitions, thus, stand disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Quetta 17 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Akhtar Zaman Malghani, J.
FAZAL QADIR QALBANI, DIRECTOR INTELLIGENCE AND INVESTIGATION C.B.R. KARACHI etc.--Appellants
versus
CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL BENCH-I, KARACHI etc.--Respondents
Customs Ref. Appl. No. 25/2007 & C.P. No. 101 of 2008, decided on 10.9.2008.
Customs Act, 1969 (IV of 1969)--
----Ss. 171 & 187--Seizure of vehicle--No registration plate driven by respondent--Show-cause notice was issued by adjudication officer--Order of out right confiscation--Reference--Non-compliance of mandatory provision--Validity--Notice as required u/S. 171 of Customs Act, was not served upon him before seizure of vehicle which provisions in light of different judgments were held to be mandatory by appellate tribunal--Held: It was a case of seizure of vehicle on the allegation of being smuggled one brought into the country without payment of customs and other duties, which allegations were well within the knowledge of respondent and no prejudice has been caused to him by non-service of notice as required by S. 171 of Customs Act--Plea was not taken by him before Addl. Collector of Customs nor he ever asked for supply of copy of seizure as such non-compliance of Section 171 was not fatal and appellate tribunal erred in law by allowed appeal in such technical ground--Petition dismissed. [Pp. 19 & 21] A & B
Ch. Mumtaz Yousaf, Standing Counsel for Appellant (in Customs Reference Application No. 25/2007).
Mr. M. Qahir Shah, Advocate for Respondents (in Customs Reference Application No. 25/2007).
Syed Ayaz Zahoor, Advocate for Appellant (in C.P. No. 101/2008).
Date of hearing: 12.8.2008.
Judgment
Akhtar Zaman Malghani, J.--By this common judgment we intend to dispose of Customs Reference No. 25/2007 filed against order of Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I, Karachi dated 17.09.2007 and C.P. No. 101/2008 as identical questions of facts and law are involved.
Briefly stated, facts of case are that on 06.03.2007 staff of Intelligence and Investigation (Customs and Excise), Quetta intercepted a Toyota Land Cruiser bearing no registration plate driven by respondent who on demand could not produce any proof regarding its legal import, as such; the said vehicle was seized under the relevant provisions of Customs Act, 1969. A show cause notice was accordingly issued to respondent by Adjudication Officer who after hearing the parties vide order dated 17.04.2007 out right confiscated the vehicle. The Respondent No. 2 being dissatisfied by order-in-original preferred an appeal before Collector of Customs (Appeals) who maintained the order-in-original and dismissed the appeal. The Respondent No. 2 thereafter presented appeal before the Customs, Excise and Sales Tax Appellate Tribunal, Karachi which was allowed and the order of out right confiscation passed by Adjudication Officer and maintained by Collector (Appeals) was set aside, hence this reference.
The respondent has also instituted Constitutional petition praying therein that the Customs authorities may be directed to release the vehicle in light of order dated 17.09.2007 passed by Member Technical Customs, Excise and Sales Tax Appellate Tribunal Karachi. Bench-I, Karachi.
We have heard the learned Standing Counsel as well as learned counsel for respondent. Learned Standing Counsel vehemently contended that the Member Technical failed to take note of the fact that import documents relied upon by the owner of vehicle were fake and forged, as such; burden of proof for lawful possession in terms of Section 187 of Customs Act, 1969 was shifted to respondent who failed to discharge the same. He further contended that Member Technical also erred in law by setting aside the order of two forums below on the ground of violation of Section 171 of Customs Act, 1969 as no prejudice was caused to respondent by any violation of Section 171 of the Customs Act, 1969 because he was well aware of the charge and was being defended by an Advocate. In this regard he placed reliance on judgment reported in 1980 SCMR 114. He further argued that no ground with regard to non-service of notice was agitated before Adjudication Officer and Collector Appeals, as such; the order of confiscation was not liable to be interfered on such ground.
On the other hand learned counsel for respondent vehemently contended that the vehicle in question was lawfully imported into, country which was confirmed by bill of entry and the learned Appellate Tribunal rightly set aside the confiscation order and directed for release of vehicle. He was also of the view that violation of Section 171 of Customs Act had made the seizure illegal, and invalid. He ¦further contended that respondent was bona fide purchaser who had purchased already imported vehicle from open market, as such; he had discharged the burden in terms of Section 187 of Customs Act, 1969 and the vehicle was rightly released. He further argued that despite release order the Customs authorities had illegally detained vehicle, and directions of this Court were required for release of vehicle.
"Recovery memo mentioning grounds of seizure furnished to person from whose possession goods recovered--Requirement of S. 171, held, met notwithstanding refusal of such person to receive same--Petitioner at liberty to ask later on for recovery memo or grounds of seizure--Such request however, never made--Objection as to violation of requirements of S. 171 in circumstances, held, without substance".
The same view was reiterated by Hon'ble Apex Court in the judgment reported in PTCL 1994 CL 322 wherein it was observed as under:--
"We have heard the learned counsel for both the sides. As observed earlier, there is a conflict of views in the Karachi High Court and Quetta High Court on the construction and scope of Section 171 ibid. In Azizullah v. The State (PLD 1981 Kar. 250) a Single Bench of the Karachi High Court relying on an earlier decision of that Court in S.M. Yousuf and others v. Collector of Customs and others (PLD 1968 Kar. 599) maintained that provisions of Section 171 are mandatory and thus prosecution of a person and seizure of goods from him on the ground that he smuggled prohibited goods into Pakistan, in the absence of service of notice under Section 171 of the Customs Act, are wholly illegal. It is to be noticed that in S.M. Yousuf's case Section 172-A of the Sea Customs Act, 1878, provisions whereof are similar to Section 171 had fallen for consideration before the High Court, and its breach was considered as fatal to the prosecution of the accused person. However, the High Court of Balochistan in Hizbullah v. The State and another (PLD 1984 Quetta I) maintained that the trial of an accused is not dependent on issuance of notice under Section 171 and its requirement would stand satisfied. If at the trial the accused has sufficient notice of the charges leveled against him. The conflict of views in the interpretation of this provision should no longer subsist, for, this issue has already been decided by this Court in Abdul Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others (1980 SCMR 114) and it has been held that non-service of notice under Section 171 is not fatal to the prosecution and seizure of contraband goods, if the recovery memo mentioning the ground of seizure is furnished to the accused. It appears that this judgment was not brought to the notice of this Court, while granting leave to appeal. Seemingly the purpose of notice under Section 171 is to post accused with the knowledge of the allegations against him and service of such notice is not the condition precedent for launching the prosecution. This requirement is substantially complied with where a recovery memo is prepared in the presence of the accused or otherwise is brought to his notice and from its terms the accusation against the person concerned can reasonably be spelt out. What Section 171 ordains is that when anything is seized or any person is arrested on account of violation of the provisions of the Customs Act, as soon as possible he may be informed in writing of the grounds of the seizure or arrest, as the case may be. Neither there is anything in the Section itself nor in other provisions of the Act specifying any consequence of nullification for non-compliance therewith, which is generally a hallmark of the statutory provision mandatory in character. It the information sought to be conveyed to the accused by virtue of notice under Section 171 is passed on to him through other steps taken in the course of the proceedings commenced against him, the requirement of notice would stand fulfilled substantially and validity of the action shall remain unaffected".
For the fore going reasons, we are inclined to allow the customs reference by setting aside order dated 17.09.2007 rendered by Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-I, Karachi and remand the matter to it with the direction to decide appeal filed by Respondent No. 1 on its own merits in accordance with law. Consequently, the constitutional petition filed by respondent is dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Quetta 21 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Akhtar Zaman Malghani, J.
EHSANULLAH REKI--Petitioner
versus
Lt. General (Retd.) ABDUL QADIR BALOCH
and others--Respondents
C.P. No. 383 of 2008, decided on 10.9.2008.
Representation of the Peoples Act, 1976 (LXXXV of 1976)--
----Ss. 46, 54, 55 & 62--Constitution of Pakistan 1973, Art. 199--Election petition--Challenging the election of petitioner--No list of official witnesses was appended with election petition--Issues framed by tribunal--Production of election record with prayer that commission may be appointed to prepare and submit a report in relation to record, particularly in respect of valid and unvalid votes--Challenged through Constitutional petition--Validity--Provisions of Section 62 of the Act, 1976 read with notification are directory in nature because no penal consequences have been provided in the Act for its non-compliance--Penal consequences entailing in dismissal of election petition have been provided in Section 63 of the Act, 1976 which envisages that tribunal shall dismiss the petition, if the provisions of Section 54 or 55 have not been complied with--Even notification in itself empowers tribunal by virtue of to examine any witness whose name is not mentioned in petition--Petition partly allowed. [P. 25] A
Mr. M. Riaz Ahmed, Advocate for Petitioner.
Mr. H. Shakil Ahmed, Advocate for Respondent No. 1.
Mr. Salahuddin Mengal, A.G. and Ch. Mumtaz Yousaf, Standing Coounsel on Court notice.
Date of hearing: 28.8.2008.
Judgment
Akthar Zaman Malghani, J.--Following relief has been claimed in the instant Constitutional petition:--
A. That the impugned order dated 25.07.2008 passed in CMA-698/2008 & 697 of 2008 in Election Petition No. 30/2008 are without any lawful basis and justification and has no legal effect.
B. Restraining the Election Tribunal for further conducting the proceedings till final decision of this petition;
C. To pass any other appropriate order which may deem fit and proper in the circumstances of the case, in the interest of justice".
Briefly stated, facts of case are that Respondent No. 1 instituted election petition before Election Tribunal challenging election of petitioner from Constituency NA 271 Kharan-Panjgur cum Washook which petition was contested by petitioner by way of filing written statement. Learned Election Tribunal in the light of pleadings of parties framed as many as 16 issues and fixed the case for evidence of Respondent No. 1 who submitted two applications; one containing list of 12 witnesses to be summoned through process of Court and second under Section 46 of the Representation of the Peoples Act, 1976 (herein-after referred to as Act, of 1976) for production of election record with further prayer that commission may be appointed authorizing it to prepare and submit a report in relation to record, particularly in respect of valid and invalid votes. Both the applications were contested by petitioner, however; learned Tribunal by two separate orders dated 25.07.2008 allowed both the applications, hence this petition.
We have heard learned, counsel for petitioner as well as learned counsel for respondents and learned A.G. Learned counsel for petitioner vehemently contended that under Section 62 of the Act, 1976 the election petition was required to be tried in the manner as prescribed by Election Commission and in this regard a Notification dated 16.03.1985 was issued whereby petition is required to be accompanied by all such documents and affidavits of witnesses as are desired to be produced, by petitioner which provisions were mandatory in nature, as such; Election Tribunal erred in law by allowing Respondent No. 1 to produce witnesses other than those whose affidavits were filed alongwith petition. He further contended that no list of official witnesses was appended with election petition as required under Para 5 of said Notification, therefore, Election Tribunal acted illegally by allowing respondent to summon official witnesses. He further argued that production of record within the purview of Section 46 of the Act, 1976 could only be made when a prima facie case is made out but in the instant case without recording evidence Tribunal directed not only for production of record but also appointed a commission authorizing him to de-seal the election record and count valid and invalid votes which direction was in excess of authority and jurisdiction vested in Election Tribunal. Learned counsel in support of his contentions placed reliance on the judgments reported in 1992 CLC 1766, 1999 YLR 1995, PLJ 2007 Lahore 898 and 1202, PLD 2005 S.C 600, 1998 SCMR 1597, 1987 SCMR 1107, PLD 1987 S.C 447, PLD 2003 Quetta 94, 2007 CLC 141.
On the other hand learned counsel for Respondent No. 1 at the very outset stated that Respondent No. 1 would not contest the order whereby learned tribunal directed for production of record and appointed commission for recounting of valid and invalid votes provided the application submitted by respondent under Section 46 of the Act, 1976 is directed to remain pending which would be pressed at appropriate time, however; he requested that in order to avoid any manoeuvering or tampering with record, the record may be directed to be kept by the Election Tribunal in its safe custody which powers are available to it under Section 46 of the Act 1976. As regards list of witnesses submitted by Respondent No. 1 after framing of issues learned Counsel contended that provisions of Section 62 of the Act, 1976 read, with Notification dated 16th March, 1985 are not mandatory in nature but directory, as such; Election Tribunal has power to call any witness at any stage, though his name was not mentioned in list of witnesses. He further contended that the instant petition was not maintainable having been filed against interlocutory orders. He placed reliance on the judgments reported in 2005 CLC 1493, 1999 SCMR 1597 and PLD 1999 S.C-I.
Learned Advocate General supported arguments of learned counsel for respondent and referred to the judgment reported in 1999 YLR 1995.
We have carefully considered the Contentions put forth by the parties' learned counsel and have also gone through the orders rendered by Election Tribunal as well as relevant law. The learned counsel for Respondent No. 1 has not opposed the petition to the extent of order passed on application filed under Section 46 of the Act, 1976 however; he requested that Tribunal may be directed to procure record and keep it in safe custody in order to avoid tampering or manoeuvering by either of parties which request was contested by learned counsel for petitioner. It may be observed that under Section 46 of the Act, 1976 the Election Tribunal has been empowered to direct for production of election record from proper custody, therefore, we find it just and appropriate to direct that election record after requisition be kept in safe custody by the Election Tribunal.
6 Though Election Tribunal has powers to order for recounting of votes in appropriate cases on satisfaction of requisite conditions, yet in view of categoric statement of learned counsel for respondent order dated 25.07.2008 passed on application filed under Section 46 of Act, 1976 is set aside with the result that application would be deemed to be pending before Election Tribunal and the Respondent No. 1 would be at liberty to press the same at any appropriate stage.
Adverting to next order whereby Respondent No. 1 was allowed to produce witnesses mentioned in list submitted after framing of issues. Before deciding the question as to whether provisions of Section 62 of the Act, 1976, read with Notification dated 16th March, 1985 are of mandatory nature, we would like to visit the judgments pronounced in this behalf.
In the judgment reported in 1992 CLC 1766 it was held that Election Commission's Notification specifying procedure for filing election petitions had created obligation upon petitioner to file affidavits alongwith petition and in contravention thereof would not be lightly ignored. It was further held that election petition without filing affidavits or list of official witnesses alongwith such petition was not maintainable.
In another judgment reported in PLJ 2007 Lahore 898 it was held that trend of judicial approach reflected from case law discussed in that judgment was that even small material deviations from procedure prescribed by Election Laws had resulted in dismissal of election petitions.
In the judgment, reported in 2005 CLC 1493 it was held that by virtue of Section 64 of the Act, 1976 read with Para 6 of Notification dated 16.03.1985 Tribunal could examine a witness if his affidavit was not filed with petition.
In the judgment reported in 2004 CLC 914 it was held that procedure prescribed by Notification of 17.03.1985 insofar as it relates to submission of list of witnesses and their evidence is directory.
Similar view was also taken in judgment reported in 2003 YLR 3032 wherein it was observed that provisions of Notification being directory in nature, failure to file affidavits and other documents with election petition could not be a ground for dismissal of election petition.
Likewise in the judgment reported in 1999 YLR 1995 it was held that omission in filing required list of witnesses and their affidavits despite being glaring could not entail dismissal of election petition.
The Hon'ble Apex Court in the judgment reported in 1996 SCMR 426 held that Election Tribunal would have all the powers of Civil Court under CPC except for trial of election petition where Election Tribunal will follow procedure prescribed by Election Commission.
The survey of above discussed judgments would indicate that there is conflict of view with regard to mandatory nature of Section 62 of the Act, 1976 read with Notification dated 16.03.1985. After having gone through the above referred judgments as well as relevant provisions of law we would respectfully endorse the view wherein it has been observed that provisions of Section 62 of the Act, 1976 read with Notification dated 16.03.1985 are directory in nature; because no penal consequences have been provided in the Act for its non-compliance. It may be noted that penal consequences entailing in dismissal of election petition have been provided in Section 63 of the Act, 1976 which envisages that Tribunal shall dismiss the petition, if the provisions of Sections 54 or 55 have not been complied with or if the petitioner fails to make further deposit required under sub-section (4) of Section 62 of the Act, 1976. Omission of Section 62(1) from the above said, provisions clearly indicate the intent of legislature, otherwise Section 62(1) could have conveniently been added alongwith other provisions, non-compliance whereof empowers the Tribunal to dismiss the petition. Even otherwise; the Notification in itself empowers Tribunal by virtue of Para No. 6 to examine any witness whose name is not mentioned in petition, therefore, in our considered view the learned Tribunal neither acted illegally nor in excess of jurisdiction whereby it allowed Respondent No. 1 to produce the witnesses mentioned in the list filed after framing of issues.
The learned Counsel for petitioner in order to demonstrate that provisions of Section 62 of the Act, 1976 are of mandatory nature referred to a number of judgments but we are afraid that those judgments are not applicable to the peculiar facts of instant case as in those judgments the provision regarding verification of contents of petition on oath in light of provisions of Sections 54 and 55 of the Act, 1976 read with Section 63 of the Act, 1976 were held to be mandatory. The Hon'ble Supreme Court in the judgment reported in 2005 S.C 600 observed that so far as provisions of civil law are concerned, such verification generally are of directory in nature and omission to do so can be rectified subsequently during trial and even the Court can direct such rectification while, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under Section 63 (a) of the Act that makes it mandatory for tribunal to dismiss the election petition if the provisions of Sections 54 and 55 of the Act, 1976 have not seen complied with. Similarly in the judgment reported in 1997 CLC 1132 verification of contents of petition on oath were held to be mandatory.
In view of what has been discussed above, we partly allow the petition and set aside the order passed by Election Tribunal on the application filed under Section 46 of the Act, 1976 with the result that application would be deemed to be pending before the Learned Election Tribunal with further direction to Election Tribunal to call for election record of NA 271 and keep it in its safe custody. The petition is, however; dismissed to the extent of order dated 25.07.2008 passed in CM.A No. 698/2008. Parties are left to bear their own costs.
(M.S.A.) Petition allowed.
PLJ 2009 Quetta 26
Present: Akhtar Zaman Malghani, J.
BROWN GYMKHANA through its President--Appellant
versus
AL-REHMAN HOSPITAL through its Managing Partner
and others--Respondents
FAO No. 53 of 2007, decided on 5.12.2008.
Constitution of Pakistan, 1973--
----Arts. 189 & 201--Decision of High Court--Question of law or is based upon or enunciate a principle of law, be binding on all Courts subordinate to it and where there are conflict of views between two High Courts, the subordinate Court have to follow the view taken by High Court of that province. [P. 30] A
2004 CLD 279, ref.
Mr. Hadi Shakeel Ahmed, Advocate for Appellant.
Mr. Muhammad Qahir Shah, Advocate and Mr. Zahid Moqueem Ansari, Advocate for Respondents.
Date of hearing: 21.11.2008.
Judgment
This appeal is directed against order dated 09.10.2007 passed by Civil Judge-I/Rent Controller Quetta whereby eviction application filed by appellant was dismissed.
(i) Whether the instant eviction application is not maintainable in view of legal objection A, C, D, E & F raised by Respondents No. 1, 2, 3 & 4 in rejoinder?
(ii) Whether there exists relationship of tenant and landlord between applicant and Respondents No. 1 to 5?
(iii) Whether Respondent No. 1 sublet the premises to Respondent No. 2 ?
(iv) Whether Respondent No. 1 committed willful default in payment of rent?
(v) Whether the applicant is entitled for the relief claimed for?
(vi) Relief?
The learned Rent Controller heard arguments on legal issues and dismissed eviction application vide impugned order.
On the other hand learned counsel for respondent vehemently contended that eviction application on behalf of appellant was not maintainable as it was not a registered society and eviction application was rightly dismissed.
(a) Brown Gymkhana is neither a society registered under any law meant for the registration of societies or Firms or Companies;
(b) Brown Gymkhana is not a legal/juristic person and it can neither sue nor be sued in its name;
(c) Brown Gymkhana is not capable of owning/holding any immovable property in its name;
(d) Brown Gymkhana has no lawful right or title in respect of the property, superstructure comprised in the premises of Al-Rehman Hospital Patel Road, Quetta.
(e) The lease agreement dated 16th July 1986 is devoid of any legal force and is not binding on the plaintiff.
(f) The lease agreement dated 16th July, 1986 is illegal having been got signed by the plaintiff and others, through fraud, misrepresentation and concealment of facts and also due to the reason that the Defendant No. 2 had not put his signatures on the same;
(g) The plaintiff is entitled to receive back a sum of
Rs. 2,74,667/- from Defendants No. 1 & 2, which has been unlawfully received by them as rent for the premises of Al-Rehman Hospital, Quetta. It is further prayed that a decree in the sum of Rs. 2,74,667/- may kindly be passed in favour of the plaintiff and against the Defendants No. 1 & 2 with costs. It is further prayed that a permanent injunction may be passed restraining the Defendants No. 1 & 2 from interfering with the possession and business of the plaintiff at the premises comprised in Al-Rehman Hospital Patel Road Quetta from proclaiming the Brown Gymkhana as owner/landlord of the suit property for all times to come.
Any other relief to which the plaintiff may be found entitled may kindly be granted".
"As far as contention of the learned counsel for the respondent that an unregistered body neither can sue nor can be sued, as such; eviction application filed on behalf of Brown Gymkhana and agreement executed on its behalf was illegal, has no substance, because all the members would be deemed to be owners of the properties owned by such un-registered association and any one of them is competent to execute lease agreement and maintain eviction application without joining other owners of the property in dispute. In the judgment reported in 1982 CLC 859 it was observed as under:
"I see no force in this contention of the learned Advocate, as the remaining respondents, who were applicants in the original application, according to the learned Advocate for the respondents were the legal heirs of the deceased applicants and the provisions of CPC as such are not strictly applicable to the proceedings under the Rent Ordinance in question. In my opinion, application for eviction of the tenant can be made by one of the several owners (or landlords). In this view, I am fully supported by case of Ghulam Sadiq V. Zainab Bibi".
The Hon'ble Apex Court in the judgment reported in 1980 SCMR 29 held as under:--
"Regarding the second point which undoubtedly is a technical one, it needs to be observed that in addition to the considerations which weighed with the learned lower appellate Courts, it cannot be ignored that the definition of landlord contained in Section 20 of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said ordinance, but a person mentioned in the definition who is competent to received rent on behalf or for the benefit of the aforementioned landlord would also be landlord".
It appears from record that one Suleman Farooq who was respondent in said revision petition filed civil petition being No. 2661/2005 before Hon'ble Apex Court which was dismissed vide order dated 07.02.2007. It was observed by Hon'ble Apex Court in the said judgment that impugned judgment is just and fair to which no exception can be taken. The record further reveals that earlier eviction application was also dismissed by Rent Controller on the ground that application was not filed by a competent person on behalf of Brown Gymkhana, however, with consent of parties in the light of judgment passed in Revision Petition No. 343/2003 the said order was set aside and matter was remanded to Rent Controller for proceedings in the case in accordance with law.
Under Article 201 of Constitution of Islamic Republic of Pakistan subject to Article 189 any decision of High Court shall to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all Courts subordinate to it and where there are conflict of views between two High Courts, the subordinate Courts have to follow the view taken by High Court of that province. In this regard in judgment reported in 2004 CLD 279 it was observed as under:
"Therefore, we are of the view that learned Judge has not followed the principles of judicial discipline which requires that the law declared by this Court should be unreservedly followed by the Courts subordinate to it, enshrined in Article 201 of the Constitution, he instead followed the view taken by Lahore High Court, which was not a correct approach in case of conflict of views between two High Courts".
In view of what has been, discussed above, I am inclined to set aside the order dated 18.10.07 passed by Civil Judge-I/Rent Controller Quetta and remand the case to it with direction to proceed in the matter in accordance with law. The appeal is allowed with cost.
(M.S.A.) Appeal allowed.
PLJ 2009 Quetta 31
Present: Akhtar Zaman Malghani, J.
Haji ABDUL KHALIQ--Petitioner
versus
MULLA MUHAMMAD and 2 others--Respondents
Civil Revision No. 219 of 2003, decided on 5.12.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit was dismissed and no executable decree was passed in the suit in favour of respondent, as such his miscellaneous application for execution of decree was legally not maintainable as executable decree is one where there is a definite order to a definite person to do or to refrain from doing a certain thing either forthwith or at a given future day or to the happing of a certain event and where there is no such direction then decree could not be legally executable--Order accordingly. [Pp. 33 & 34] A
Mr. Naeem Akhtar Afghan, Advocate for Petitioner.
Mr. Muhammad Riaz Ahmed, Advocate for Respondents.
Date of hearing: 28.11.2008.
Judgment
This revision petition is directed against order dated 10.05.2003 passed by Qazi, Kharan whereby application filed by petitioner for review and recalling of order dated 02.02.2002 was dismissed.
Briefly stated, facts of case are that petitioner instituted a suit for specific performance in Court of Qazi against respondents which plaint was rejected by him vide order dated 23.08.1999 under Order-VII, Rule-11 CPC which order was assailed by him by way of filing appeal before Majlis-e-Shoora Chagai/Karan at Nushki who allowed the appeal vide judgment and decree dated 10.03.2000 and the matter was remanded to Qazi Court whereafter again learned Qazi dismissed the suit vide judgment and decree dated 24.06.2006. Appeal filed by petitioner against said judgment and decree was also dismissed by Majlis-e-Shoora. It appears from record that thereafter a civil miscellaneous application was filed by Haji Qadir Bukhsh (Respondent No. 3) for directing Naib Tehsildar and Patwari to enter the property in his name and Qazi directed accordingly. On coming to know about such order petitioner moved an application for review and recalling of order dated 02.02.2002 which application was dismissed vide impugned order.
I have heard learned counsel for petitioner as well as learned counsel for respondents. Learned counsel for petitioner vehemently contended that suit of petitioner filed for specific performance of agreement dated 06.02.1994 was dismissed without any adjudication or determining rights of parties, as such; it was not an executable decree but the Qazi in excess of jurisdiction directed for transfer of mutation entries in the name of Haji Qadir Bukhsh in respect of property bearing Khewet No. 2, Khatooni No. 2 which was even otherwise not subject matter of suit. He further argued that learned Qazi in the impugned judgment admitted that property which was transferred in the name of Haji Qadir Bukhsh was not subject matter but refused to interfere on the ground that Tehsildar Washuk transferred said property in excess of his powers for which petitioner should seek other remedies provided under law.
On the other hand learned counsel for respondents vehemently contended that dismissal of suit was also a decree and executable as petitioner failed to prove his right over property in dispute, therefore, learned Qazi rightly directed for carrying out mutation entries in favour of respondents.
On application Qazi Kharan passed following order:--
In pursuance of that order Qazi Kharan sent an order on 2.2.2002 wherein Tehsildar Washuk was directed that Khatooni No. 2 Khasra No. 12 measuring 118 rods, 30 poles be entered in the name of Respondent No. 3 (Haji Qadir Bukhsh) which order is impugned in the instant petition. It may be noted that in the earlier suit, which was between Haji Mulla Muhammad and others and Haji Qadir Bukhsh culminating in compromise decree, the subject matter was property bearing Khatooni No. 1, Khewet No. 1 and unsettled land whereas property bearing Khewet No. 2, Khatooni No. 2 which was recorded in the name of petitioner was not subject matter of that suit nor any decree was passed in respect of said property. Similarly in suit filed by petitioner against respondents for specific performance, property bearing Khewet No. 2, Khatooni No. 2 bearing Khasra No. 12 was not subject matter, therefore, order passed by learned Qazi directing revenue authorities to mutate said property in the name of Haji Qadir Bukhsh was illegal and without jurisdiction. Furthermore; suit filed by petitioner was dismissed and no executable decree was passed in the suit in favour of Respondent No. 3, as such; his miscellaneous application for execution of decree dated 24.6.2000 was legally not maintainable as executable decree is one where there is a definite order to a definite person to do or refrain from doing a certain thing either forth with or at a given future day or to the happening of a certain event and where there is no such direction then decree could not be legally executable. The Qazi though in impugned order admitted that Tehsildar Washuk exceeded his power by mutating ancestral properties of petitioner in the name of Respondent No. 3 which were not subject matter of decree, yet refused to review his order which order on the face of it was illegal and without jurisdiction because Naib Tehsildar Washuk has mutated property bearing Khewet No. 2, Khatooni No. 2, Khasra No. 12 in the name of Respondent No. 3 on the direction of Qazi conveyed to him through order dated 02.02.2002 and not independently by exercising his own powers.
In view of what has been discussed above, the order dated 02.02.2002 passed by Qazi, Kharan on Miscellaneous application of Respondent No. 3 is hereby set aside and Tehsildar Washuk is directed to re-mutate property bearing Khewet No. 2, Khatooni No. 2, Khasra No. 12 in the name of petitioner after canceling mutation entries from the name of Respondent No. 3. Parties are left to bear their own cost. Petition is disposed of accordingly.
(M.S.A.) Petition disposed of.
PLJ 2009 Quetta 34 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Akhtar Zaman Malghani, J.
Dr. ABDUL SAMAD and 3 others--Petitioners
versus
GOVT. OF BALOCHISTAN through Secretary Health, Chairman, Balochistan Clinical Laboratory Regulatory Authroity, Civil
Secretariat, Quetta and 2 others--Respondents
C.P. No. 565 of 2008, decided on 3.3.2009.
Constitution of Pakistan, 1973--
----Art. 18(b)--Constitutional petition--Challenging validity of letter issued by Chief Planning Officer whereby petitioners were directed to close their private laboritories--Freedom and right of lawful profession, business and trade of every citizen--Held: Such right is not an absolute right but is liable to certain restrictions Proviso (a) of Art. 18 of the Constitution confers upon a federal or provincial government to regulate any trade, profession through a licensing system--Art. 18(b) granted power to the government to regulate trade, commerce or industry in the interest of free competition--Fundamental right in Art. 18 of the Constitution pertaining to freedom of trade is also subject to such qualifications as may be prescribed by law which is a clog on the said fundamental right--Under Art. 18 person without having a qualification can run a business or trade or transport but freedom of profession does not mean the freedom to enter upon any profession or occupation without having the requisite qualification. [P. 38] A & C
Interpretation of Statutes--
----While examining vires of a statute the legislature will not flout a constitutional provision and all efforts shall have to be made to learn in favour of constitutionality to save it rather than to destroy it.
[P. 38] B
Balochistan Clinical laboratory Regulatory Rules, 2005--
----R. 13--Under Rule 13 existing laboratories were allowed six months grace period for registration and to obtain a valid licence from the authority--All the Laboratories are required to be supervised by pathologist with necessary post-graduate qualification which restriction could not be said to be un-reasonable as they have to carry out test of or on human body or its excreta for the purpose of diagnosing any deceased or otherwise which test essentially requires the person doing it must have expertise in such field--Petition dismissed. [P. 39] D
Syed Ayaz Zahoor, Advocate for Petitioners.
Mr. Salahuddin Mengal, Advocate General for Respondents.
Date of hearing: 24.12.2008.
Judgment
Akhtar Zaman Malghani, J.--The petitioners have challenged validity of letter dated 22nd September, 2008 issued by Respondent No. 3 whereby they were directed to close their private laboratories, in the instant petition claiming following relief:--
A. Declaring that the petitioners are qualified and trained medical Doctors and have every right to open, establish and run their private clinical laboratories and the act on the part of Respondent No. 3 in issuing the letter dated 22.9.2008 under the directives of the Respondent No. 1. for closure of the clinical laboratories of the petitioners is illegal, unlawful in excess and mis-exercise of the authority vested in them and is contrary to the earlier decisions taken by them thus, is of no legal consequences.
B. After having declaimed so, the respondents may be directed to allow the petitioners to run their clinical laboratories till the proposed amendment is not finalized.
OR
Directing the respondents to provisionally register the laboratories of the petitioners till such time the amendment is finalized.
C. Further directing the respondents to take up the matter with the concerned quarters for finalization of the proposed amendment bill which has been withheld by authorities without any rhymes and reasons since the year 2007.
D. Permanently restraining the respondents from interfering in the smooth running of the clinical laboratories of the petitioners, which are being run on legally and lawfully on the basis of qualifications and experiences they possess.
E. Any other relief, which this Hon'ble Court deems fit and appropriate may also be awarded with cost of the petition in favour of the petitioner, in the interest of justice".
We have heard learned counsel for the petitioners as well as learned Advocate General. Learned counsel for the petitioners vehemently contended that the act of respondents in depriving the petitioners from running their laboratories by means of letter dated 22nd September, 2008 was not only illegal and improper but also in violation to the provisions of Balochistan Clinical Regulatory Authority Rules, 2005 and advice of Pakistan Medical and Dental Council. He further contended that the petitioners were trained qualified doctors in their respective subjects having experience of 15 to 20 years, on the basis whereof they had been running their clinical laboratories and on account of their experience the committee recommended for amendments in the rules enabling the petitioners to run laboratories which amendments were under process, as such; the respondents' direction to close the laboratories without waiting for amendment was illegal and without jurisdiction. He next argued that under Rule 4 (6) of Balochistan Clinical Laboratory Regulatory Authority Rules, 2005 only non-medical persons have been banned to operate clinical laboratories and the petitioners being qualified doctors were eligible to run their laboratories, therefore; there was no occasion for the respondents to have closed their laboratories and such action on the part of respondents was in derogation of Rule 4 (6). He also argued that condition imposed in the law that only pathologist would be authorized to supervise the laboratories, was in violation of fundamental rights guaranteed by the Constitution.
On the other hand learned Advocate General vehemently contended that though pathology is taught in MBBS but it does not imply that MBBS doctor can open clinical laboratories and perform pathologist tests. He further argued that on account of mushroom growth of laboratories in the province and being run by the un-qualified persons there was need for regulating such laboratories through process of law which the government was competent to regulate as provided under Article 18 of the Constitution. He next argued that under the law all the laboratories functioning prior to promulgation of Ordinance and Rules made there under were required to get them registered within the grace period but petitioners failed to register their laboratories, as such; respondents were justified and lawfully competent to direct for close of their laboratories.
We have carefully considered the contentions put forth by the parties' learned counsel. It may be observed that in recent years, there has been sudden spurt in the number of pathological laboratories and clinics in the province in general and capital Quetta in particular. There was no separate effective law to control and regulate the activities of those laboratories. Taking advantage of the situation most of those laboratories were fleecing the innocent patients. Many of them were functioning without proper infra structure, equipments and trained pathologist as well as working under unhygienic condition. It was also noticed by this Court in number of petitions that many of those laboratories not carrying out the examination in proper way leading to wrong diagnoses. In fact running of laboratories by unqualified person tantamounts to play with lives of patients. Plight of a patient can very well be imagined who gets himself treated for a disease only to be informed later on that he was never suffering from that disease.
It was high time and need of the day to regulate functioning of those laboratories through process of law, as such; in number of petitions this Court suggested to the government to promulgate law in this behalf The government also realized to take steps and prescribe norms and standards for laboratories and make provisions for their registration compulsory so as to save the people from the unhealthy business practice playing with the lives which the government was competent to regulate under Article 18 of the Constitution of Islamic Republic of Pakistan.
The provisions of Article 18 proclaim that every citizen of Pakistan is entitled to enter upon any lawful profession or occupation, and to conduct any lawful trade or business subject to qualifications, if any, as may be prescribed by law and the State may, by law (a) regulate any trade, or profession by a licensing system, or (b) regulate any trade, commerce or industry in the interest of free competition, or (c) carry on, itself or grant to a Provincial Government, or a corporation controlled by any such Government, of any trade, business, industry or service, exclusively or partially.
It may be seen from above that this right is not an absolute light but is liable to certain restrictions. Proviso (a) of Article-18 of the Constitution confers upon a Federal or Provincial Government to regulate any trade, profession through a licensing system. Proviso (b) of the said Article granted power to the Government to regulate trade, commerce or industry in the interest of free competition. Governments have been given power under Proviso (c) of the said Article, to carry on any trade, business industry or service, by excluding completely or partially persons to enter into it if trade, business, industry or service is owned or controlled by it. The power to regulate necessarily includes even a power to prohibit. It implies a power to foster, to protect, control and restoration. Fundamental Right in Article 18 of the Constitution of Pakistan pertaining to freedom of trade is also subject to such qualifications as may be prescribed by law which is a clog on the said fundamental right. If the Constitution gives to the Legislature the power to regulate a trade by a licensing system it must follow that the power to prohibit vests in the Legislature insofar as the trade under such system may only be carried by the licensed persons, corporations. Not only Article 18 subjects the Fundamental Right therein to such qualification as may be prescribed by law, there is a specific authority to regulate any trade or profession by licensing system. While examining vires of a statute it has to be presumed that the Legislature will not flout a constitutional provision and all efforts shall have to be made to learn in favour of constitutionality to save it rather than to destroy it.
Under Article 18 person without having a qualification can run a business or trade or transport but freedom of profession does not mean the freedom to enter upon any profession or occupation without having the requisite qualifications. Regulations of the professions of medicine, dentistry, law and other like professions which involve the safety and health of the general public are carried on in most of the countries and this paragraph provides that such qualifications may be prescribed by laws. In the case of trade or business the State in requiring technical qualifications, may lay down rules and regulations necessary to secure the confidence of the public in such business when it is a business for the utility of the public and it is essential that it should have the confidence of the public.
In order to determine reasonableness of restriction, likely imposed to the nature of business and conditions prevailing in the trade, it is obvious that these factors must differ from trade to trade and no hard and fast rules concerning of trades can be laid down. In other words pursuit of any lawful trade or business may be made subject to such conditions as may be deemed essential by the legislature to the safety, health, peace and moral of the community.
Likewise creation of moral rights in favour of person or body of persons to carry on any business prima-facie affects the freedom of trade. But it cannot be said that in no circumstance the exclusion of competition so as to create a moral monopoly is justified. The nature of business will be a important element in determining the legality of exclusion of the competition in a particular case.
In the instant case as already observed feeling necessity of regulating business of clinical laboratories through process of law in the larger interest of general public the government of Baluchistan promulgated Balochistan Clinical Laboratories Regulatory Authority Ordinance, 2001 to establish an authority, with the aim and objective to undertake all measures to ensure safety, protection and promotion of human life through a comprehensive and quality clinical laboratory service. Section 17 of the Ordinance, 2001 empowers the authority to make rules with the approval of government to carry out the purpose of Ordinance, in pursuance whereof Rules called Balochistan Clinical Laboratory Regulatory Rules, 2005 were made and under Rule 13 existing laboratories were allowed six months grace period for registration and to obtain a valid licence from the authority. Under sub-rule (1) of Rule 4 all the laboratories are required to be supervised by pathologist with necessary postgraduate qualification which restriction could not be said to be un-reasonable as they have to carry out test of or on human body or its excreta for the purpose of diagnosing any disease or otherwise which test essentially requires the person doing it must have expertise in such field. The petitioners may have expertise in their respective fields but merely because during their study in MBBS the petitioners were taught elementries of pathology would not expertise them in the subject nor on the basis thereof they could be allowed to practice in the said filed.
It may further be observed that the Ordinance, 2001 and rules made there-under do not put any clog on the running of clinical laboratories by the petitioners but only lays down condition that the said laboratories should be supervised by a pathologist who should be physically present during routine working hours, provided that their laboratories fulfill other prerequisite as provided under Rules 5, 6, 7, 8, 9 and 11 of Rules 2005. The petitioners have not applied for registration dining the grace period of six months and were running their laboratories without registration and having valid licences, therefore; the respondents have rightly and lawfully issued letter dated 22nd September, 2008 directing petitioners to close their laboratories which were being un-authorizedly run. The petitioners are neither entitled to the relief claimed for nor petition is maintainable merely because some committee recommended for amendments in the law which did not find favour with government, as on the basis thereof no legal vested right created in favour of petitioners. The rules providing supervision of laboratories by recognized Pathologist are neither discriminatory nor affected fundamental rights guaranteed by Constitution as legislature is competent to impose conditions as may be essential to the safety, health, peace and moral of the community.
In view of what have been discussed above, we find not merits in the instant petition, which is dismissed accordingly.
(M.S.A.) Petition dismissed.
PLJ 2009 Quetta 40 (DB)
Present: Mehta Kailash Nath Kohli and Ahmed Khan Lashari, JJ.
Dr. Hafiz MUHAMMAD RAFIQUE and others--Petitioners
versus
GOVERNMENT OF BALOCHISTAN through its Chief
Secretary Quetta and others--Respondents
C.P. No. 565 of 2003 and C.P. No. 495 of 2007, decided on 13.10.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Implementation of service rules applicable in Health Department--Different cadres of members working in Health Department--Senior most doctors having service of couple of decades were working in subordination of junior doctors--Validity--Rules were flagrantly violated and various doctors who were eligible to be posted and promoted according to their seniority have been deprived of their lawful rights--Held: It is duty of Courts that when not only fundamental rights are violated there is structural collapse the Courts should exercise the jurisdiction.
[Pp. 45 & 46] A & E
Constitution of Pakistan, 1973--
----Arts. 27 & 199--Balochistan Civil Servants Act, 1974, Scope--Fundamental rights--Writs of mandamus and prohibition--Senior most doctors having service of couple of decades were working in subordination of junior doctors--Constitutional petition--Jurisdiction of High Court--No person otherwise qualified for appointment in service of Pakistan shall be discriminated against in respect of any such appointment, while Art. 4 provides equal treatment--Superior Courts have jurisdiction to direct enforcement of fundamental rights by issuing writs of mandamus and prohibition. [Pp. 45 & 46] B, C & D
H. Shakil Ahmed, Advocate for Petitioner in both petitions.
Syed Ayaz Zahoor and Mr. Muhammad Mohsin Javed, Advocates for Respondents (in C.P. No. 565 of 2003).
Mr. Naeem Akhtar, Advocate for Respondents (in CP No. 495 of 2007).
Date of hearing: 30.9.2009.
Judgment
Mehta Kailash Nath Kohli, J.--This petition has been directed for implementation of various Service Rules applicable to the different cadres of members working in the Health Department. Both petitions Bearing C.P. No. 495/2007 and CP No. 565/2003 are commonly disposed of through this judgment.
Facts of the petition are that the petitioners are serving in Health Department, Government of Balochistan in different capacities, and are governed by Balochistan Civil Servants Act, 1974. Initially Service Rules pursuant to Section 25 of the Balochistan Civil Servants Act, were framed in the year 1984 having been promulgated on 13th December, 1984, (these Rules governed both cadres of service i.e. general cadre and specialist teaching cadre). It is stated in the petition that in the year 1995 separate Service Rules were promulgated for specialist cadre applicable to the members having requisite qualification as provided by the appendix to Service Rules of the year 1995 applicable to employees of B-18 and above in the said Rules. It is further stated that several amendments were brought in the year 1997 in the said Rules. It is also case of the petitioners that in year 2001. Federal Government had implemented National Health Policy of 2001 whereby it was suggested to introduce 4-Tiar System to improve the working and efficiency of the Health Department. The Government of Balochistan vide Notification dated 4th June, 2001 adopted 4-Tiar System in the ratio 1:15:34:50% for upward elevation of the doctors of general cadre. By means of another Notification dated 12th June, 2001, the Government of Balochistan had fixed quota of 761 posts in B-18, B-19 and B-20, the approval of said posts was also made relating to said 4-Tiar System. It is further stated that the Government had issued/ re-designated the posts of Health Management by virtue of Notification dated 26th June, 2001 and also issued Notification whereby the Rules were framed for the Health Management cadre on 28th August, 2001. In the said Management cadre Rule 15 provided option to the members of general cadre for opting the Health Management cadre, however, the members having attained age of 55 years or above were exempted from requisite qualification. It has been stated that the Government of Balochistan had also adopted a policy for contract appointment as well as (Appointment, Promotion and Transfer) Rules 1979, were applicable to the official respondents. In violation of above mentioned Rules and the decisions of the Cabinet various people including private respondents have been posted to Management cadre who belong either to general cadre or specialists teaching cadre and the juniors have been posted to higher grade, while the employees of higher grade are working in subordination of junior scale officers. Reference to some of the posting and transfers were mentioned in the body of the petition which were not denied by respondents, are reproduced herein below:--
a) Most Junior Officers of Grade-19 posted on Senior most posts of Grade-20
S.No. Name and Designation Place of posting
Chief Medical Officer. Superintendent BMC
Hospital.
Chief Medical Officer. Superintendent
Helper Hospital
b) Most Junior Officers of Grade-19 working on Senior most posts of Grade-19
S.No. Name and Designation. Place of posting
Medical Officer. Project
Medical Officer.
Chief Medical Officer.
Dr. Rahim Sherani, Chief Medical Officer. E.D.O.H. Zhob.
Dr. Ayub, Chief Medical Officer. E.D.O.H. Ziarat.
c) Most Junior Doctors of Grade-17/18 working on Senior most posts of Grade-19
S.NO. Name and Designation. Place of posting
Coordinator
Malaria Control
Programme
Coordinator Aids
Control Programme
Coordinator T.B.
Control Programme.
Dr. Aziz Lehri, SMO (BPS-18) E.D.O.H. Quetta
Dr. Shoib Magsi, SMO (BPS-18) E.D.O.H. Kharan
Dr. Anwar Kharani, SMO (BPS-18) E.D.O.H. Barkhan
Dr. Ashiq Magsi, SMO (BPS-18) E.D.O.H. Jhal Magsi.
Dr. Abdul Qadir Mengal, SMO (BPS-18). E.D.O.H. Nasirabad
It was further pointed out that the Department has failed to maintain proper seniority list and also failed to abide by the provisions of Civil Servants Act 1974 which provided that the promotion to the post of selection grade should be made on the basis of Seniority-cum-merit'. It has been further stated that the transfers and posting are made at the will of the officers holding political influence/authority and the fundamental rights as contained in Article 4, 5, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 are being violated. The following prayer was made:--
(a) "That the official respondents are under obligation to follow and implement the departmental service rules and policy of the government regarding tenure, posting, transfer and other related matters and failure to do so, is unconstitutional, mala fide, discriminatory and of no legal effect.
(b) That the private respondents cannot hold the post in higher grade in the presence of persons available in the department and the orders issued by the Government being nullity in the eye of law are liable to be declared as of no legal effect.
(c) That the official respondents be directed to implement the rules and the policies and all appointments, posting and transfers be directed to be done in accordance with law.
(d) Any other order as may be deemed fit and appropriate in the circumstances of the case may also be awarded in the interest of justice."
The petition was admitted and notices were issued to the respondents. Respondent No. 10 has filed his counter affidavit and has stated that the Court has no jurisdiction to adjudicate upon the matter reference to various sections and rules have been made that the competent authority has got jurisdiction to promote and depute according to their will and choice. Secretary, Government of Balochistan had filed his comments and had admitted that 4-Tiar System was introduced pursuant to policy of 2001 and consequently about 1055 posts were created in B-18 to B-20, and further admitted that rules for special cadre have also been promulgated with certain amendments. The Government of Balochistan was given ample time on different dates of hearing and the Secretary to the Government of Balochistan was required for regularizing and channelizing service cadres according to their own rules. On the last date of hearing, the Secretary, Health Department appeared before the Court and stated that he had sent the summaries for correction of irregularities relating to appointment, promotions and posting, of senior doctors to their relevant posts, according to cadre & merit, however, stated that he has no authority under the amended notification issued on 14th December 2002 to pass any order of transfer, posting, promotion and only the Minister concerned is competent authority to transfer employees of B-l to B-17, while appointment, transfer and posting of employees of B-18 and above could be made by the Chief Minister. It was further pointed out that he had submitted detailed summary whereby he had requested that transfers, posting and promotions of various doctors, be made according to seniority list. He had admitted that the employees, who are senior in higher grade are working in subordination to junior doctors in violation of the rules. He had also filed detailed list of the doctors who were senior most employees of the department, have been ignored.
Mr. H.Shakil Ahmed, Advocate appeared on behalf of the petitioners and stated that the petitioners being senior most doctors are entitled to be posted according to their option given in the year 1995, when they had opted for management cadre. It was further stated that in violation of fundamental rights guaranteed by Constitution of Islamic Republic of Pakistan, 1973, they are being treated differently and junior doctors have been posted and are being promoted to higher grade superseding genuine legal rights of the petitioners.
On the other hand Mr. Aminuddin Bazai appearing on behalf of Government and in view of the statement given by the Secretary, health Department was not able to defend the action of the official respondents, however, Wazirzada Fazalur Rehman, Counsel for the Respondent No. 10 as well as Mr. Naeem Akhtar, Advocate have stated that the remedy by way of service appeal is available, as such this Court has no jurisdiction.
We have considered the arguments advanced by the counsel for the parties and perused the record. On examination of the record we were shocked to know that the senior most doctors having service of couple of decades are working in the subordination of junior doctors. Section 9 of the Civil Servants Act clearly provide the criteria of promotion to be made according to (seniority-cum-merit) in relation to selection posts. The Government functionaries have failed to demonstrate before us that the petitioners were not senior to that of respondents or they were meritless to be appointed to the specific posts on their cases were considered. Moreover, the Government has framed rules for general management and special cadres they had obtained options for joining the general and management cadre as well as special cadres. The posts have also been specified by the Government as admitted by the Department after applying 4-Tiar System pursuant to Health Policy of 2001. The record further reflects that the rules were flagrantly violated and various doctors who were eligible to be posted and promoted according to their seniority have been deprived of their lawful rights. Article 27 of the Constitution of Islamic Republic of Pakistan occurs in the chapter of Fundamental Rights provides no person otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment, while Article 4 provides equal treatment. It is the duty of Courts that when not only fundamental rights are violated there is structural collapse, the Courts should exercise the jurisdiction. The Courts have already come to rescue where welfare of society is involved. Reference is made to Karachi Building Control Authority Vs. Saleem Akhtar and others (1993 SCMR 1451) and M/s Ellahi Cotton Mills Ltd: & others Vs. Federation of Pakistan through Secretary M/s Finance Islamabad and 6 others (PLD 1997 SC 582) . So far as the question raised by the private counsel that this Court has no jurisdiction to adjudicate upon the matter; suffice to observe that the Superior Courts have jurisdiction to direct enforcement of fundamental rights by issuing writs of mandamus and prohibition. In the case in hand we are of the opinion that the department has failed to abide by the provisions of law as well as the rules framed thereunder from time to time also having failed to promulgate the seniority list. The junior doctors have been assigned higher posts while senior doctors have been made subordinate to them. Moreover; the cadres have been changed without considering and following the law and Rules framed thereunder. The superior Courts have always disapproved use of political influence while posting, transfers and promotions are made. Thus the official respondents are directed to issue revised seniority list and implement the provisions of Civil Servants Act and the rules framed thereunder having been amended from time to time. The posts are to be filled strictly according to the cadre to which they belong on the basis of principle contain in Section 9 of the Civil Servants Act without any discrimination following the provisions of law. Thus, for forgoing reasons we allow this petition with direction to the official respondents to implement the provisions of law as well as rules framed thereunder and to appoint, post and promote the doctors in their own cadres i.e. (i) General cadre (ii) Specialist teaching cadre and (iii) Health management cadre within period of 30 days and communicate the result to Registrar of this Court for our perusal in Chamber. The petition is disposed of in the above terms.
(Sh.A.S.) Petition disposed of.
PLJ 2009 Quetta 46 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
KHADIM HUSSAIN, EX-ASSISTANT GOVERNMENT INTER COLLEGE SURAB, DISTRICT KALAT--Petitioner
versus
GOVT. OF BALOCHISTAN through its Secretary Education Secretariat Quetta and another--Respondents
C.P. No. 383 of 2007, decided on 13.4.2009.
Balochistan Province Removal from Service (Special Powers) Ordinance, 2000--
----S. 3--Constitution of Pakistan, Art. 199--Constitutional petition--Civil servant--Allegation of drawing an amount against bogus claims of salaries of teachers--Dismissal from service--Embezzled amount was deposited--Entitlement to be re-instated--No mandamus could be issued for implementation of any order--Held: High Court has no jurisdiction to adjudicate upon the matter with regard to termination order and appellate order and the embezzled amount had been deposited, meaning thereby that guilt had been admitted--Relief under constitutional petition is discretionary and cannot be exercised to perpetuate and encourage corruption--Petition was dismissed.
[P. 50] A
Mr. Manzoor Ahmed Rehmani, Advocate for Petitioner.
Mr. Muhammad Salahuddin Mengal, Advocate General for Respondents.
Date of hearing: 31.3.2009.
Order
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that petitioner was appointed in Education Department, in the year 1986 and was working as office Assistant in Government Inter College, Soorab, District Kalat. It was stated that petitioner was served with show-cause notice, issued by Secretary Education Department/ Competent Authority (Respondent No. 1) on 14th October, 2003 on the allegations of drawing an amount of Rs. 2,32,482/- against bogus claims of salaries of three teachers, vide receipt dated 05th January, 2002. It was further stated that reply to the show-cause notice was submitted by the petitioner and he had denied the allegations alleged against him. Record shows that Secretary Education Department/Competent Authority, vide order dated 16th March, 2006, dismissed the petitioner from service by concluding in the following terms:--
"IN VIEW OF THE ABOVE, Mr. Khadim Hussain is proved to be guilty of gross mis-conduct and major penalty of removal from service is imposed upon him under Section-3 of the Balochistan Province Removal from Service (Special Powers) Ordinance, 2000 with immediate effect. An amount of Rs.232,482/- mis-appropriated is hereby ordered to be recovered from Mr. Khadim Hussain as arrears of land revenue."
Being aggrieved of aforementioned dismissal order, petitioner filed departmental appeal before the Secretary Education/Competent Authority (Respondent No. 1), subsequently; petitioner deposited the alleged embezzled amount of Rs.2,32,482/- in Government Treasury through Bank receipt. It was further stated that the said amount was received from the responsible officer of Education Department namely Javed Shamim. It was also stated that the Chief Secretary, Government of Balochistan (Respondent No. 2) forwarded the departmental appeal to the Chief Minister, who had accepted the department appeal and the petitioner was allowed to be re-instated into service with immediate effect, vide order dated 11th December, 2006., It was case of the petitioner that the Respondent No. 2 was approached by the petitioner for final order in compliance of orders/directives of Chief Minister, but the Respondent No. 2 delayed the matter on one pretext or the other, hence; present petition has been filed and following prayer has been sought:--
"It is therefore, respectfully prayed that this Hon'ble High Court may kindly be pleased to declare that order dated 16-03-2006 passed by Respondent No. 1 about dismissal of service of petitioner is illegal, unlawful, without lawful authority and of no legal effect.
Further the respondent may be directed to re-instate and post the petitioner in the compliance with order of re-instatement passed by Chief Minster dated 11-12-2006."
Notice of this petition was given to the other side. Para-wise comments were filed by Respondents No. 1 and 2, wherein; legal objections were raised that; (a) this Court has got no jurisdiction to entertain the present petition, as the matter pertains to the service and the petitioner should have approached the Balochistan Service Tribunal for redressal of his grievance, therefore, the relief sought in the petition cannot be extended in favour of petitioner; (b) petitioner has not approached the Court with clean hands and has suppressed the material facts, therefore, the petition is liable to be dismissed; (c) the appeal is barred by time for the reason that the competent Authority had considered the appeal of petitioner for re-instatement into Government service, which was rejected vide order dated 29th November, 2006; the petitioner was required to prefer appeal before the competent forum within a period of thirty days of the final order of the competent authority dated 08th January, 2007, but; the petitioner has preferred the present petition in July, 2007 after lapse of more than six months, even; no application for condonation of delay as provided under the Balochistan Civil Servant's Appeal Rules, 1977; (d) petitioner has no locus standi to invoke the Constitutional jurisdiction of this Court, as there are serious charges of embezzlement of huge Government amount against the petitioner, which were admittedly deposited by the petitioner, as such; the said allegations stood proved against him, thus; the present petition is liable to be dismissed. On merits also, the petition was contested and the claim of petitioner was denied. It was stated that reply to the show-cause notice submitted by the petitioner was unsatisfactory, and thus; the petitioner was removed from serviced under Section 3 of the Balochistan Province, Removal from Service (Special Powers) Ordinance, 2000 with immediate effect on 16th March, 2006. It was further stated that the allegations were proved against the petitioner, because he had deposited the alleged embezzled amount in the Treasury vide challan dated 20th June, 2006, which means that he was guilty of his illegal acts committed by him. It has been stated that the petitioner had twicely attempted to obtain directives of the Chief Minister Balochistan by misleading the Chief Executive Offices, however, as per procedure and policy, summaries were moved to the competent authority for re-instatement and on both occasions the same were returned with the then Chief Minster's remarks recorded as 'Seen file', which is treated as rejected in view of convincing contents of the Education Department, contained in the said summaries proving the petitioner as guilty, hence;, the petitioner is no more required in Government service. It was stated that the appeal of petitioner was duly considered by the competent authority and the same was accordingly rejected.
Mr. Manzoor Ahmed Rahmani, Advocate appeared on behalf of petitioner, while Mr. Muhammad Salah-ud-din Mengal, learned Advocate General appeared on behalf of respondents.
Learned counsel for petitioner has contended that the order was made by the Chief Minister for re-instatement has not been considered and the petitioner was required to be re-instated, as he already deposited the alleged embezzled amount.
On the other-hand, learned Advocate General has contended that the order of termination was passed on 16th March, 2006, against which appeal also failed. It was further stated that the representation was made to the Chief Minister Balochistan and summaries were moved accordingly, wherein; the Chief Minister was pleased to see the record having observed `seen', as such; no order of Chief Minister is in field. It was also contended that the jurisdiction with regard to the present case rests with Service Tribunal, and thus, this Court has no jurisdiction to adjudicate upon the matter.
We have considered the arguments advanced by learned counsel for the parties and perused the record. It is to note that services of petitioner were terminated somewhere in 2006, against which appeal failed. He filed representation to the Chief Minister on the ground that the alleged embezzled amount has already been deposited, thus; he is entitled to be re-instated. The order of Chief Minister has not been acknowledged/owned by the Department. On summaries moved in this behalf were returned with endorsement of `seen'. The Government has filed para-wise comments, wherein they have stated that the file was sent and was returned back thus; no mandamus could be issued for implementation of any order. Even otherwise, this Court has no jurisdiction to adjudicate upon the matter with regard to the termination order and appellate order, and; since the embezzled amount has been deposited, meaning thereby that guilt has been admitted. The relief under Constitutional petition is discretionary and cannot be exercised to perpetuate and encourage corruption, therefore; the petition is dismissed with no order as to cost.
(R.A.) Petition dismissed.
PLJ 2009 Quetta 50 (DB)
Present: Amanullah Khan Yasinzai, C.J. and Metha Kailash Nath Kohli, J.
Haji ZAHIR ALI & others--Petitioners
versus
GOVERNMENT OF PAKISTAN REVENUE, DIVISION, FEDERAL BOARD OF REVENUE, ISLAMABAD and another--Respondents
C.P. No. 137 of 2008, decided on 13.4.2009.
Constitution of Pakistan, 1973--
----Arts. 199 & 212--Barred by Art. 212--Civil servant--Terms and conditions of service and regularization of civil servant--Vested legal right--Civil servants were appointed on adhoc basis for a period of twelve months--Period of adhoc appointment was extended from time to time--Services were dispensed--Challenge to--Objections were raised--Not maintainability of petition under Art. 212 of Constitution--Services fall under domain of Civil Servants Act--Civil servants cannot be redressed under constitutional jurisdiction--No vested right as their appointment contracts--Not entitled for any relief--High Court has no jurisdiction under Art. 199 of Constitution to have judicial view--Validity--Civil servants were appointed on adhoc basis and had undergone various examinations and courses--An adhoc appointment was always made without adopting due process of law of selection as has been held by superior Court and is virtually a stop-gap arrangement by Governor--Held: Adhoc employees do not carry any vested legal right to be confirmed--Present petition was thus, barred by Art. 212 of Constitution as it relates to terms and conditions of service and regularization of the civil servants--Petition disposed of. [P. 53] A, B & C
Mr. H. Shakil Ahmed, Advocate for Petitioners.
Ch. Mumtaz Yousaf, Standing Counsel Assisted by Mr. Muhammad Azam, Law Officer, Customs Department for Respondents.
Date of hearing: 30.3.2009.
Judgment
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that in pursuance of Central Board of Revenue, Islamabad U.O.No. 1/16/Admn/2003 dated 13th August, 2003, the petitioners were appointed against the posts of Inspectors (BPS-11) in the Collectorate of Customs, Sales Tax and Central Excise, Quetta, on adhoc basis for a period of twelve months, vide appointment orders dated 15th September, 2003, issued by Respondent No. 2. It was case of the petitioners that they alongwith other adhoc appointees have undergone basic departmental trainings, while some of the petitioners have also obtained training in Customs, Sales Tax, Bomb Disposal, Appraisement and have acquired computer skills. It was stated that the service contract of petitioners remained extended from time to time up to 31st March, 2008. It has been stated that the Federal Board of Revenue (FBR) is in process of establishing Model Customs Collectorate in accordance with the requirements of World Trade Organization (WTO), and in order to have the best possible staff and to provide better facilities to the employees, the FBR (Respondent No. 1) initiated internal job posting (IJP) process, wherein the petitioners participated and were declared qualified by Respondent No. 1, vide letter dated 13th August, 2007. Record reflects that the services of one of the colleagues of petitioners namely Abdul Aziz Umrani, Appraiser, who was appointed on adhoc basis alongwith petitioners have been regularized, while the petitioners were assured that their services will also be regularized in due course, however; their period of adhoc appointment was extended from time to time. Record shows that vide order dated 31st March, 2008 issued by Headquarter Deputy Collector, Custom House Quetta, the services of the petitioners have been dispensed with, thus; the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed and following prayer has been sought:--
"It is accordingly respectfully prayed that it may be declared:
(a) That the order dated 26th March, 2008 communicated by Respondent No. 2 vide letter dated 31st March, 2008 is discriminatory, mala fide, unconstitutional, in excess of authority and of no legal effect.
(b) That the respondents be directed to regularize/confirm the services of the petitioners.
(c) Pending disposal of the petition, the respondents be restrained from filling up the vacancies in question, became available due to termination.
(d) Any other order as may be deemed fit and appropriate in the circumstances of the case may also be awarded in the interest of justice."
Notice of the petition was given to the other side. Pursuant to notice, para-wise comments were filed by Respondent No. 1, wherein objections were raised that; (a) the present petition is not maintainable under Article 212 of the Constitution; (b) the services of the petitioners fall under the domain of Civil Servants Act, hence the grievances of the petitioners cannot be redressed under the Constitutional jurisdiction; (c) the petitioners have no vested right as per their appointment contracts, thus; they are not entitled for any relief; (d) certain allegations have been levelled against the respondent, which need evidence, hence; this Court has no jurisdiction under Article 199 of the Constitution to have a judicial review, of the matter. On merits also, claim of the petitioner has been refuted and denied. It has been stated that eighteen Inspectors and two sepoys were appointed by the FBR Islamabad on contract/adhoc basis for a period of twelve months and the contract was extended from time to time. It has been further stated that FBR, Islamabad vide letter dated 26th March, 2008 informed that since the Prime Minister has approved extension in the contract period of forty-three employees up to 31st March, 2008, therefore, it is not desirable to re-refer the matter to the Prime Minister for further extension. The officials on completion of their contract on 31st March, 2008 be relieved, thus; in compliance of said directives of FBR, the services of petitioners were dispensed with accordingly vide order C.No. CB/Adhoc-Appointment/AR/05/2003/ 9373-9412, dated 31st March, 2008. It was stated that none of the Inspectors have gone through the basic training, which is carried out at Directorate of Training Karachi, however, some of them have gone through basic computer courses, and the extension/termination of contract is the sole authority of FBR/Prime Minister of Pakistan. It was further stated that the selection of petitioners through IJP is only a measurement of certain skills, which by itself does not confer any right/amendments in service contract appointment Rules, which is explicit to the extent of termination of services by the competent authority. It was stated that as far as adhoc appointment of Abdul Aziz Umrani Appraiser is concerned, the same were regularized under the directives of the Prime Minister in relaxation of all relevant procedure and regulations relating to the initial appointment.
Mr. H. Shakeel Ahmed, Advocate appeared on behalf of petitioners, while Chaudhry Mumtaz Yousaf, Standing Counsel assisted by Mr. Muhammad Azam, Law Officer, Custom appeared on behalf of respondents.
Learned Counsel for petitioner has urged that the petitioners have been appointed on adhoc basis and had undergone various examinations and training programmes, as such; they are entitled to be regularized as permanent civil servants. Learned counsel has further stated that one Abdul Aziz Umrani has been appointed as Appraiser on adhoc basis has been regularized by the Prime Minister of Pakistan, as such; the action of respondents in not confirming the petitioners is discriminatory.
On the other-hand, learned Standing Counsel has contended that the jurisdiction to adjudicate upon the matter is barred by under Article 212 of the Constitution of Islamic Republic of Pakistan. In alternative, it was stated that an adhoc employee does not carry any vested legal right to be confirmed, as such; the petitioners are not entitled to the relief claimed for.
We have considered the arguments advanced by learned counsel for the parties and perused the record. From the perusal of record, it is crystal clear that the petitioners were appointed on adhoc basis and had undergone various examinations and courses, and thereafter; there employment was kept on extending till 31st March, 2008. An adhoc appointment is always made without adopting due process of law of selection as has been held by the Superior Court and is virtually a stop-gap arrangement by the Government. The stop-gap arrangement is a deviation from the normal course of selection. It was duty of the concerned officials to have referred the said posts for selection to the competent authority, who should have advertised the same immediately. We are in full agreement with the learned Standing Counsel that the adhoc employees do not carry any vested legal right to be confirmed. Such view was also taken by the Hon'ble Apex Court in the cases of Province of Punjab through Chief Engineer, Irrigation & others v. Azhar Abbas & others (NLR 2002 Service 97) and Dr. Naveeda Tufail & others v. Government of Punjab & others (2003 T.D. (Service) 50). The whole case law was threshed out and their lordships were of the view that the adhoc employees do not carry vested right. The present petition is thus; barred by Article 212 of the Constitution of Islamic Republic of Pakistan, as it relates to the terms and conditions of service and regularization of the petitioners.
We, however; direct the official respondents that the Government while selecting or filling the posts, should also consider the cases of the petitioners sympathetically through selection by Public Service Commission or Departmental Appointment Committee, as is permissible under law, and; the petitioners may also be considered in the process of selection. It would be relevant to point out that while selection, their experience and training, which they have obtained, should be considered as additional factors for appointment on the said posts.
With the above observations, petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2009 Quetta 54 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
MURAD BAKHSH & others--Petitioners
versus
SENIOR MEMBER BOR BALOCHISTAN, QUETTA
and others--Respondents
C.P. No. 115 of 2008, decided on 15.4.2009.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Civil servant--Notification issued by Govt. of Balochistan, Service and General Administration Department--Appointments of employees sons/daughters--Son/ daughter of deceased, retired and disabled Secretariat Staff member should be provided a job according to qualification--After completion of all codal formalities--Petitioners' sons were ignored by official--Appointment orders of conditions strictly in accordance with rules and regulations--Question--Whether qualifies for the post--Validity--It is only the qualification and experience to be counted for the purposes of appointment of the sons of the petitioners--He must be found suitable for knowledge, skill and fit person to be appointed by competent authority, suitability of a candidate is to be considered by competent authority and is not function of the Courts to judge the administrative task--Official respondents, as well as, private respondents have categorically stated that sons of petitioners appeared in examination, but did not qualify for the posts--Petition was dismissed. [P. 57] A
Mr. Abdul Rauf Lehri, Advocate for Petitioners.
Mr. Nasrullah Achakzai, Addl. A.G. for Respondent Nos. 1 & 2.
Miss Sarwat Hina, Advocate for Respondent Nos. 3 to 20.
Date of hearing: 6.4.2009.
Judgment
Mehta Kailash Nath Kohli, J.--Facts of the case, in brief, are that and advertisement was published in newspaper for appointment of junior clerks and class-IV staff in Board of Revenue Department, Quetta; pursuant to said advertisement, petitioners' sons appeared in test and interview. It has been stated that while selecting the candidates, petitioners' sons were ignored by the official respondents, despite the fact that priority was to be given to the children of retired serving employees of Board of Revenue. It was stated that the aforementioned appointments were made in violation of the notification dated 21st March, 1998, issued by the Services and General Administration Department, hence; present petition has been filed and following prayer has been sought:
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to declare the selection committee/ appointment of junior clerks and class-IV posts made by the Respondents No. 1 and 2 as unlawful and void and of no legal effect and may be set-aside by giving proper relief to the petitioners to which he may be found entitled any other relief, which this Hon'ble Court deems fit and proper in the circumstances of the case may also be awarded in the interest of justice."
Notice was given to the respondents. Official Respondents No. 1 and 2 filed their para-wise comments, wherein; it was stated that after completion of all codal formalities, the appointing authority (Respondent No. 1) had issued appointment orders of eleven candidates as Junior Clerk and seven candidates as Naib Qasid, strictly in accordance with rules and regulations. It was admitted that sons of petitioners applied for appointment on the above said posts, but the Departmental Selection Committee had not considered them fit for selection for these posts. It has been stated that notification dated 21st March 1998 is not applicable in the instant case, in this regard appeal filed before the Provincial Ombudsman was also rejected. It was categorically stated the entire appointments were made on merits.
Mr. Abdul Rauf Lehri, Advocate appeared on behalf of petitioners, while Mr. Nasrullah Achakzai, Additional Advocate General appeared on behalf of Respondents No. 1 and 2, and; Miss Sarwat Hina, Advocate appeared on behalf of private Respondents No. 3 to 20.
Learned counsel for petitioners has stated that the petitioners' son are entitled to be selected on one of the posts advertised by the official respondents, and thus; the order of appointment of private respondents is bad in law.
On the other-hand, learned Additional Advocate General assisted by learned counsel for private respondents has contended that the petitioners' sons did not qualify for the said posts, in examination, thus; they were not selected as such.
We have considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it transpires that the Government of Balochistan, Services and General Administration Department, vide Circular No. 2-25/89-Coord: S&GAD, dated 07th July, 1990, had issued notification, whereby; it was advertised that one son/daughter of deceased, retired and disabled Secretariat Staff Member should be provided a job according to his "qualification". Para 2 of the said notification also stated that he must possess qualification/experience required for the said job. Para 2 of the said notification is reproduced herein-below:
"2. It is requested that above decision of the Government may be implemented by the Appointing Authorities provided a person possesses the qualification/experience prescribed under the rules for that particular post."
From the reading of above para, it is quite clear that the first question to be considered by the competent authority is as to whether he/she qualifies for the said post. "Qualified" has been defined by Black's Law Dictionary, Fifth Edition in the following terms:
"Qualified. Adapted; fitted; entitled; susceptible; capable; competent; fitting; possessing legal power or capacity; eligible; as a "qualified voter" (q.v.) Applied to one who has taken the steps to prepare himself for an appointment or office, as by taking oath, giving bond, etc. Also limited; restricted; confined; modified; imperfect, or temporary."
"Qualification" has further been defined in the Webster's New World College Dictionary, Third Edition, and has provided as under:
"Qualification; 1. a qualifying or being qualified 2 a modification or restriction; limiting condition 3 any quality, skill, knowledge, experience, etc. That fits a person for a position, office, profession, etc.; requisite 4 a condition that must be met in order to exercise certain rights."
The word `qualification' has further been interpreted in the case of Kh. Noor-ul-Ameen v. Sardar Muhammad Abdul Qayyum Khan & another (1991 MLD 2658 [Azad J&K]), which reads as under:
"18... .... .... The word "qualification" conveys the fitness or capacity of a person for a particular post."
From the perusal of aforementioned definition and the conclusion drawn in the aforementioned manner, we are of the opinion that it is only the qualification and experience to be counted for the purposes of appointment of the sons of the petitioners. It is also requirement that he must be found suitable for knowledge, skill and fit person to be appointed by the competent authority, `suitability' of a candidate is to be considered by the competent authority and is not function of the Courts to judge the said administrative task. Official respondents, as well as, private respondents have categorically stated that sons of the petitioners appeared in examination, but did not qualify for the said posts. Thus, for the foregoing reasons, we do not find any merit in this petition, which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2009 Quetta 57 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
MUHAMMAD ASIF and another--Petitioners
versus
SELECTION COMMITTEE BOLAN MEDICAL COLLEGE, QUETTA through its Chairman and 5 others--Respondents
C.P. No. 91 of 2009, decided on 30.4.2009.
Constitution of Pakistan, 1973--
----Arts. 15 & 199--Constitutional petition--Educational institution--Petitioners applied for admission in medical college against the reserved seats of District--Petitioners claiming to be locals of District Kalat on the basis of local certificates--On objection to these certificates, the selection committee referred the case to EDO, Revenue to hold enquiry--EDO, Revenue held that since the grand father and father of the petitioners had obtained local certificates on the basis of district on that report the selection committee rejected the candidature of petitioners--Held: It is always the status of the candidate, which is to be considered at the time of admission--Art. 15 of the Constitution, confers a right on every citizen to move freely and reside and settle anywhere in any part of the country, subject to reasonable restriction imposed by law in public interest--Since the petitioners themselves have obtained local certificate independently from district therefore, their intention to settle in district cannot be doubted at such stage--Selection committee erred in not considering their candidate on the basis of the local certificates, obtained independently and admittedly are still intact and have not been cancelled--Petition allowed. [P. 61] A
1991 SCMR 2099 and 1993 SCMR 2083, rel.
Mr. Muhammad Mohsin Javed, Advocate for Petitioners.
Mr. Muhammad Rauf Atta, Advocate for Respondents No. 1 to 3.
Mr. Nasrullah Achakzai, Addl. A.G. for Respondent No. 5.
Syed Zareef Shah, Advocate for Respondents No. 4 and 6.
Date of hearing: 7.4.2009.
Judgment
Amanullah Khan Yasinzai, C.J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the order dated 18.9.08, passed by Respondent No. 1 (Selection Committee), whereby, applications submitted by petitioner for admission in 1st Class of MBBS, Bolan Medical College, Quetta, have been rejected.
Facts in the background are; that, petitioners claiming to be locals of District Kalat on the basis of Local Certificates dated 01.04.08, issued in their favour by the Executive District Officer, Revenue, Kalat, applied for admission in 1st Year Class of MBBS, Bolan Medical College, Quetta, against the reserved seats of District Kalat. The private Respondents 4 to 6 who also applied from the same District, raised objection against the candidature of petitioners, that they do not belong to District Kalat and infact they belong to District Mastung. The objections were filed before the Respondent No. 1, wherein it was averred that the grandfather and father of petitioners obtained duel Local Certificates from District Mastung and District Kalat, therefore, in view of para-32 of the Prospectus, petitioners are not eligible to apply for admission against the reserved seats of District Kalat. Petitioners while controverting the same, explained that the grandfather and father of petitioners had obtained Local Certificates from District Kalat and though earlier they obtained Local Certificates from District Mastung, but both of them surrendered their earlier Local Certificates on 15.6.07, and requested for cancellation of the same. On their such request, the Local Certificates were duly cancelled by the Executive District Officer Revenue, District Mastung on 27.6.07 and thereafter they both obtained Local Certificates from District Kalat on 16.6.07. Further stated infact they are resident of village Gazag, Tehsil Mangocher, District Kalat. Subsequent to that, both the petitioners independently obtained separate Local Certificates from District Kalat on 1.4.08 and on the basis of such Local Certificates, applied for admission in 1st Year MBBS Class of Bolan Medical College for the current session 2008-09, from District Kalat.
The Selection Committee, after hearing the parties, referred the case to EDO, Revenue, Kalat, with directions to hold an enquiry regarding authenticity of the Local Certificates of petitioners. Thereafter the petitioners and private respondents appeared before the EDO, Revenue Kalat. The private respondents submitted Objections, challenging the validity of the Local Certificates of petitioners, mainly emphasizing therein that, Grandfather and father of petitioners had obtained Local Certificates from District Mastung in the year, 1988, and the same was cancelled on 27.6.07 on their request, whereas the Local Certificates from District Kalat were obtained on 16.6.07, thus at the time when Local Certificates were obtained, they were in possession of duel Local Certificates from District Mastung and District Kalat, as such, the petitioners were not entitled for admission, under para-32 of the Prospectus.
The petitioners while refuting the Objection, emphatically stated that the grandfather and father of petitioners surrendered their Local Certificates before the EDO, Revenue, Mastung on 15.6.07 and the matter was delayed by the EDO, who cancelled the same on 27.6.07, thus it cannot be said that at the time of obtaining Local Certificates from District Kalat, they were in possession of Local Certificates, both from District Mastung and District Kalat. It was additionally agitated that, petitioners have obtained the Local Certificates, for the first time in their own name from District Kalat on 01.04.08.
The EDO, Revenue Kalat, after hearing the parties, held that since the Grandfather and father of petitioners had obtained Local Certificates on basis of false affidavits, therefore, they do not belong to District Kalat. On the basis of such findings of EDO, Revenue, Kalat, the Selection Committee, rejected the candidature of petitioner vide impugned order, hence this petition.
We have heard Mr. Mohsin Javed, learned Counsel for petitioners. Syed Zarif Shah, learned Counsel represented the case of respondents 4 and 6, whereas Mr. S.A.M. Quadri, learned Counsel appeared on behalf of Respondent No. 5. Mr. Aminuddin Bazai, learned Additional Advocate General, represented the official respondents.
Learned Counsel for petitioners contended; that, para-32 of the Prospectus for admission in Bolan Medical College, is not an impediment in the way of petitioners as at the time of applying for admission, admittedly the Grandfather and father of petitioners were only in possession of one Local Certificate issued from District Kalat, as the earlier Local Certificates obtained from District Mastung, were got cancelled. Learned Counsel further contended that, since the petitioners had not obtained any local Certificate, prior to the one obtained by them on 1.4.08, thus the Selection Committee erred in not considering the independent Local Certificates of petitioners, as for admission in a professional College, it is status of the candidate, which is to be considered. Learned Counsel pointed out that, petitioners and their family owe ancestral property in village Gazag, Tehsil Mangocher, District Kalat, therefore, it cannot be held by any stretch of imagination that, they do not belong to District Kalat. Learned Counsel further stated that there were no malafides in cancelling the Local Certificate from District Mastung and obtaining Local Certificates from District Kalat. Lastly learned Counsel, vigorously pointed out that from both District Mastung and District Kalat, the petitioners were on the top of merit list, but by declining admission, grave miscarriage of justice has been caused to them.
Mr. S.A.M. Quadri, learned Counsel, vehemently argued that, provisions of Section 32 of the Prospectus were rightly applied in the cases of petitioners, as at the time of obtaining the Local Certificates from District Kalat, the Grandfather and father of petitioners were also in possession of Local Certificates from District Mastung, as the later were cancelled on 27.6.07.
Syed Zarif Shah, learned Counsel and Mr. Aminuddin Bazai, learned Additional Advocate General, however, adopted the arguments of Mr. SAM Quadri, learned Counsel.
We have minutely considered the arguments putforth by learned Counsel for parties and with their assistance also perused the record of the case.
Before dilating upon the respective contentions of the learned Counsel for parties, it would be appropriate to reproduce para-32 of the Prospectus, which reads as under :--
"A candidate or his/her father/mother/guardian as the case may be found in possession of two or more local/domicile certificate issued by competent authority of different Districts/Agencies in the time of applying for admission, shall not be considered for admission against the seats of any District. Agencies for which he or she has applied. Such cases can be considered as a special case only if he or she the parents/guardian inform the committee at the time of admission and that too have got cancellation of their certificates at least two years before applying for admission in Bolan Medical College, Quetta, if such cases not mentioned at the time of admission will be de-seated without any notice and will not be eligible for admission in future for at least three coming years and he or she has no right to appeal in any Court of law".
Agreeing with the contention of learned Counsel for petitioners, in our considered view, para-32 of the Prospectus is not attracted in the case of petitioners. It may be observed here that perusal of record reveals that, Local Certificates obtained by the Grandfather and father of petitioners on 24.7.1988, were surrendered before the EDO, Revenue, District Mastung on 15.6.07, for cancellation which was cancelled on 27.6.07. The contention of learned Counsel for petitioner, has substance that, on 15.6.07, once they submitted the original Local Certificate for cancellation, they were no more in possession of such Local Certificates and thus it cannot be said that at the time of obtaining Local Certificates from District Kalat, they were in possession of any other Local Certificates. Besides on the day, when petitioners applied for admission, the Grandfather and father of petitioners were only in possession of Local Certificates from District Kalat. Admittedly the Admission Forms were submitted by petitioners in the month of September, 2008, and on such date the Grandfather and father of petitioners were only in possession of Local Certificates obtained from District Kalat. Thus, by no stretch of imagination, it can be held that, at the time of admission, the Grandfather and father of petitioners were, in possession of Local Certificates, both from Districts Kalat and Mastung.
Reverting to the next contention of learned Counsel that the Respondent No. 1, erred in not considering the admission of petitioners, on the strength of Local Certificates obtained by them, independently in their own name from District Kalat on 1.4.08, which were issued to them, on the basis of their ancestral property owned by them in village Gazag, Tehsil Mangocher, District Kalat, it may be observed that, it is always the status of the candidate, which is to be considered at the time of admission. Article-15 of the Constitution of Islamic Republic of Pakistan, confers a right on every citizen to move freely and reside and settle anywhere in any part of the Country, subject to reasonable restriction imposed by law in public interest. Since the petitioners themselves have obtained Local Certificate independently from District Kalat therefore, their intention to settle in said District cannot be doubted at this stage. And therefore, we are of the considered opinion, that Selection Committee erred in not considering their candidature on basis of said Local Certificates, obtained independently and admittedly are still intact and have not been cancelled. Besides, surprisingly it is noted that throughout, this private respondents have been raising objections on the local Certificates of the grandfather and father of petitioners, and no objection has been raised against the Local Certificates of the petitioners obtained by them, independently from District Kalat.
It may also be observed that the original Local Certificates issued to the Grandfather and father of petitioners have been surrendered on 15.6.07, and there is nothing on record to suggest that, petitioners had ever benefited from such Local Certificates, in as much as, there is also nothing on record to show, whether the names of petitioners were entered in the local Certificate of their father or otherwise? As both sides have not placed anything in this regard, before us, therefore, it appears that the petitioners have applied independently for the first time for obtaining Local Certificates from District Kalat, which has not be objected and same are intact. Thus, the rejection of their candidates is without lawful authority. In this behalf, we are fortified from the Judgments reported in 1991 SCMR 2099 (Miss Sumia Vs. Selection Committee, Bolan Medical College Quetta and others) and 1993 SCMR 2083 (Miss Salma Vs. Selection Committee).
In the former case, the Hon'ble Supreme Court held as follows:--
"On the basis of the above uncontroverted facts that the appellant was born in Lasbella in 1970, was brought there, got her entire education three except her Intermediate Examination for want of Girls College, it cannot be held that she does not belong to Lasbella. The mere fact that the appellant's father came to the Province of Baluchistan after joining service as a teacher in 1969, would not negate the above status of the appellant. It has not been brought on record that the appellant in fact has been residing at any other place then Lasbella or Quetta for her college education. The alleged Karachi address in the service book of the appellant's father and its alleged alteration by committing alleged forgery by the appellant's father, were consideration alien to the jurisdiction of committee. It is the status of a candidate which is to be determined and not of the family as pointed out hereinabove. Additionally, we may point out that there is no material on record to conclude that the appellant's father has not opted to settle down permanently in Lasbella by purchasing a plot of, land and by raising construction of house thereon and residing therein with his family and by obtaining a domicile certificate on 12-09-1978. The impugned order of the Committee is apparently in conflict with above-quoted unreported judgment of this Court".
Concurring with the above view, again in the later case, the Hon'ble Supreme Court held as under :--
"In view of the above stated facts, there was hardly any material either before the Selection Committee or before the learned Judges of the High Court to hold that the appellant was not a bona fide resident of Lasbella District. In the case of Miss Sumaeea Zareen V. Selection Committee, Bolan Medical College, Quetta and others (1991 SCMR 2099) this Court while interpreting the scope of the expression: as to whether a candidate actually belongs to the district agency of which he/she produced the local/domicile certificate; in the Prospectus of the College observed as follows:
"11. Since the words `as to whether a candidate actually belongs to the district agency of which he/she has produced the local/domicile certificate' have been used, it may be appropriate to refer to the ordinary literary meaning of the keyword "belong" as it is a well-settled principle of interpretation of statutes or the rules framed there under that the words have to be given their ordinary meaning in the absence of any special meaning assigned to them under the relevant statute or the statutory rules. In this behalf reference may be made to judgment of this Court in the case of Ashiq Hussain and others v. The State (1989 SCMR 392).
The Concise Oxford Dictionary (Sixth Edition, 1976) and Chambers 20th Dictionary(New Edition), define the above word as follows:--
"belonging v.i. 1. Be rightly assigned to (as duty, right, possession, natural or usual accompaniment, expamle in classification, characteristic, part member, inhabitant, appendage); to be member of(club household, grade of society, etc).
Be resident in or connected with.
Be rightly placed or classified (in under, etc); fit a specified environment etc, (ME, app. An intensive, f BE-2, of ME Longen belong f. OE langian (genland at hand)".
"belong bi-blong, v.i. (in all senses usu with to) to go along (with): to pertain (to): to be the property (of): to be part or appendage (of), or in any way connected (with): to be specially the business (of)".
From the above quoted definition, it is evident that the above word has very wide connotation as it inter alia includes a resident, a native and an inhabitant. In the absence of any special definition in the prospectus there seems to be no justifiable reason to place narrow or strict construction. We may point out that Article 15 or the Constitution confers right on every citizen subject to reasonable restrictions imposed by law in public interest to enter and move freely throughout Pakistan and to reside and settle in any part thereof. The above Constitutional fundamental right cannot be in any manner impaired or defeated directly or indirectly. Above para.34 of the prospectus is to be construed as to advance the objective envisaged by the above Article".
In view of the above discussion, we feel no hesitation in holding that, Selection Committee seriously erred in rejecting the application of the petitioners.
As a consequence, the impugned order being without lawful authority is set aside and Selection Committee is directed to admit the petitioners against the reserved seats of District Kalat, in 1st Year MBBS Class of Bolan Medical College, Quetta, on merits.
Parties are left to bear their own costs.
(M.S.A.) Petition accepted.
PLJ 2009 Quetta 64
Present: Amanullah Khan Yasinzai, C.J.
GOVT. OF BALOCHISTAN through Deputy Commissioner, District Quetta and another--Petitioners
versus
Syed ABDUL QADIR ALGILANI and 6 others--Respondents
C.R. No. 257 of 2008, decided on 26.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--While exercising powers u/S. 115, CPC, the Court has to satisfy itself that, subordinate Court had jurisdiction to try the case and had exercised the same rightly, and that, while exercising jurisdiction, the Court had not acted legally or in breach of any provision of law or with material irregularity, and if the Court was satisfied that the criteria had been met with by the Courts below, then the High Court shall not interfere, even if it differs with the findings of subordinate Courts on the question of law or facts.
[P. 70] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction of High Court--Concurrent findings--High Court while sitting in revisional jurisdiction, will not interfere in the concurrent findings of facts arrived at by the Courts below, unless it is established that the Courts below have passed the judgment without jurisdiction or have committed material illegality, irregularity. [P. 70] B
2005 SCMR 135, ref.
"Maurosi Bazgars"--
----Constructing houses and installing tube wells--Question of--Respondents were in possession of land in dispute and they have developed the same with the passage of time by spending huge amount and applied for entering their names as "Maurosi Bazgars" and the revenue authorities after inspection of the land conducting enquiry, after being satisfied, entered their names as `Maurosi Bazgars' and further, they have been developing the land in-question, constructing houses and installing tubewells, without any objection, thus the Courts below have done substantial justice, and no interfere is called--Petition dismissed. [P. 70] C
Mr. Nasrullah Achakzai, Additional A.G. for Petitioners.
Mr. Arshad Ch. Advocate for Respondents.
Date of hearing: 15.5.2009.
Judgment
This Civil Revision under Section 115 CPC is directed against the Judgment and decrees dated 27.09.07 and 07.06.08, passed by learned Senior Civil Judge-II, Quetta and Additional District Judge-IV, Quetta respectively, whereby the suit filed by predecessor-in-interest of respondents and respondents 2 and 4 was decreed and the appeal filed by petitioners was dismissed.
Concisely; the facts leading to filing of instant petition are that, predecessor-in-interest of respondents and respondents 2 and 4, filed a suit for declaration, consequential relief and permanent injunction, with the averments that, they own agricultural property in Mahal & Mouza Khush Kaba
Sariab, Tappa Shadanzai, Tehsil and District Quetta, and adjacent to their lands, there are lands bearing Khatta No. 80/134 Min bearing Khasra Nos. 595 to 706 and 941 to 947 and 977 to 1085 (181 Qittas) total measuring 1331 Rods and 0
Pol. The said property was transferred in their name vide Intiqal No. 157. The said lands consisted upon small pieces of land adjoining each other and were waste and barren land. The predecessor-in-interest of respondents and respondents 2 and 4 came in possession of these lands about 40/50 years back and by spending lacs of rupees and by endless efforts, they succeeded in developing and converting the lands from barren to cultivable lands. Thereafter the respondents approached the then Deputy Commissioner, with the plea that, since they have done Nautor' and have developed the lands and are also payingUsher' therefore, the said lands be transferred in their name. The said plea was accepted and on 22.12.1991, the predecessor-in-interest of respondents and respondents 2 and 4 were recorded as `Mauroosi Bazgars' in the record of rights. After the lands were entered in their names, their possession remained undisturbed and in 2000 the predecessor-in-interest of respondents and respondents 2 and 4, came to know that, entries in the record of rights have been cancelled from their name and entered in the name of Government of
Baluchistan. On checking the record, it was revealed that the entries were cancelled in view of the Notification dated 06th December, 1995 and the
Baluchistan Cancellation of Illegal Allotments of Land Act, 1996 (herein-after referred to as the Act of 1996). It was stated that after cancellation of mutation, the respondents had been approaching petitioners, but they refused to reverse the mutation, thus the above suit was filed, with the following relief:--
It is, therefore, prayed that a decree may kindly be passed in favor of plaintiffs and against defendants in the following terms:--
(a) Declaring that plaintiffs are the lawfully recorded "Mauroosi Bazgars" in possession of lands in dispute.
(b) Declaring that order dated: 12.10.2000 whereby Defendant No. 2 cancelled the Intiqal Nos: 157 and 216 is illegal, void and without lawful authority and of no legal effect.
(c) Declaring that the notification No: 180-14/93-Rev. dated 06.12.95 has no application on the revenue entries i.e. Intiqal Nos: 157 and 216 of lands in dispute in the names of plaintiffs.
(d) By means of consequential relief the revenue entries vide Intiqal Nos: 157 and 216 may be directed to be restored.
(e) By means of permanent injunction defendants may be directed to refrain from resuming possession of lands in dispute from plaintiffs.
(f) Costs of proceedings may also be awarded to plaintiffs against defendants.
The suit was contested by petitioners on legal and factual grounds. It was mainly asserted that, mutation was cancelled in view of the Notification dated 6th December, 1995 and the Act of 1996. Out of the pleading of parties, following Issues were framed for determination :--
THE ISSUES.
Whether the suit of plaintiffs are not maintainable in view of P/Os "1", "3" of W/S?
Whether the Notification No. 180-14/93 Rev: dated 06.12.1995, applies to lands in dispute and cancellation of allotment of dispute and from the name of plaintiffs are legal vide by means of order dated 19.12.1995, by Defendant No. 02?
Whether plaintiffs are in possession of land in dispute for last 40/45 years, as Maurssi Bazgars?
Whether plaintiffs are entitled to the
Relief?
The respondents-plaintiffs in support of their plea produced the following witnesses :--
PW-1 Haji Rozi Khan.
PW-2 Ghulam Dastagir
PW-3 Haji Kamal Khan.
PW-4 Ghulam Qadir.
PW-5 Syed Arshad Ali, Attorney.
PW-6 Bashir Ahmed.
PW-7 Abdul Salam.
PW-8 Amir Jan.
PW-9 Muhammad Siddique
In rebuttal petitioners-defendants examined DW-1 Abdullah Jan and DW-2 Muhammad Siddique, Saddar Qanoongo.
It may be pointed out that initially the suit was dismissed vide Judgment and decree dated 14.4.06. Being dissatisfied, the respondents filed an appeal, which came-up for hearing before the learned Additional District Judge-IV, Quetta. After hearing arguments, the appeal was partly allowed and case was remanded to trial Court. In the meanwhile the predecessor-in-interest of respondents Pir Zainuddin Agha died, thus the respondents-plaintiffs 1,3 and 5 to 7 were impleaded in the suit. After remand, the learned Senior Civil Judge-II, Quetta decreed the suit in favour of plaintiffs-respondents vide Judgment dated 27.9.07. Being aggrieved from the same, the petitioners filed an appeal before the learned District Judge, which was transferred on the file of learned Additional District Judge-IV, Quetta, who vide Judgment and decree dated 07.06.08, dismissed the same. Hence this petition.
I have heard Mr. Nasrullah Khan Achakzai, learned Additional Advocate General for the petitioners and Mr. Arshad Chaudhry, learned Counsel for the respondents.
Learned Addl: A.G. contended that; both the Courts below have erred in decreeing the suit, as the case of respondents fell within the forecorners of Notification dated 5th December, 1995 and the Act of 1996, therefore in view of the same, the mutation entries were rightly cancelled by the Revenue Department. Learned Addl: A.G. vehemently argued that the Courts below have misread and mis-appreciated the evidence on record, and came to a conclusion, which is extraneous to record and further argued that, there are various illegalities and irregularities, on the basis of which, the impugned Judgment is not sustainable.
Learned Counsel for the respondents, emphatically argued as under :--
A. In the first place, the provisions of the Act of 1996 and the Notification dated 5th December, 1995, were not applicable to the case of respondents, as the land was not allotted to them, but their names were only entered as `Mauroosi Bazgars' in the property in dispute, on the basis of their possession.
B. The cancellation order dated 12.10.06, was passed in violation of the principle of natural justice.
C. There are concurrent findings of facts arrived at, after proper appreciation of evidence, thus this Court while exercising powers under Section 115 CPC, has limited scope to enter into the same, unless there is a jurisdictional defect or the Judgments are perverse and based on, no evidence.
D. Substantial justice has been done, therefore, this Court may not exercise powers under Section 115 CPC, as the respondents had developed the land after spending huge amount of money and time and the same were throughout in their possession, thus they were entitled to retain the same.
Coming to the contention of learned Addl: A.G. regarding cancellation of the land from the name of respondents on the basis of the Notification dated 5th December, 1995 and the provisions of the Act of 1996; it may be observed that, it is the case of respondents, that they were in possession of the land in dispute for last many decades and after spending huge amount, it was developed and turned into a cultivable land. In this regard the statements of PWs are very important. PW-7 Abdul Salam, Senior Clerk, Irrigation department produced documents Ex. P/41 to 48, indicating therein, the amounts deposited for use of Bulldozers and further names of the drivers are also mentioned, who brought the Bulldozers to the land and leveled the same. PW-8 Amir Jan and PW-9 Muhammad Siddique tendered documents Ex. P/49 and 50 and 51 to 57 respectively, indicating the payment of Usher' made by the respondents in respect of the land in dispute. However, DW-2, Muhammad Siddique tendered document Ex. D/2 which shows that the land in dispute was recorded in the name of respondents. The statement of said witnesses have not been disputed by the petitioner, which shows that the land in dispute was adjacent to the settled lands of respondents, who developed the same, byNautor' and turned it into cultivable land and then applied for recording their names as Maurosi
Bazgars' thus it was not an abrupt entry in the record of rights and ownership rights were not transferred in the names of respondents, and they were only entered asMaurosi Bazgars'. The contention of learned Counsel for respondents has substance that the Notification and the Act of 1996, were not applicable to the case of respondents. It would be relevant to refer to Section 3 of the Act of 1996, and the operative portion of the Notification, which reads as under:--
"Now, therefore, with prior approval of Government of Baluchistan and in exercise of powers vested in it, the Board of Revenue Baluchistan hereby directs immediate cancellation of all titles/rights/interests acquired directly or indirectly through the process of settlement work started with effect from Board of Revenue Baluchistan's Notification No. 180-14/84-Rev dated 28.10.1986 and consequently through Notification No. 180-14/Rev: dated 089.11.1987. This will, however, have no effect on legitimate titles/rights/interests acquired earlier than 28th October, 1986 in respect of all area under settlement operation after the above dated and all valid transactions made by land owners and their successors in interest in respect of lands validly owned by them. The revenue record prepared by Settlement Staff is transferred to Deputy Commissioner/Collector, Quetta District with immediate effect for necessary entries in the relevant record and resumption of state land in accordance with rights and titles in relevant record before issuance of the above said notifications."
As observed herein-above that the land in dispute was not allotted to respondents, but they were only entered as `Maurosi Bazgars' after due process of enquiry.
Coming to the next contention of learned Counsel for respondents that, after passing of the Notification and the enactment of the Act of 1996, the land in dispute, which was admittedly in possession of respondents, was deliberately cancelled, without giving any notice or initiating enquiry. In view of the fact that the respondents had developed the land in dispute, installed Tube wells, constructed houses for labour, which fact is indicative from the statements of PWs-1 to 3, who stated that the respondents were in possession of the land in dispute since last 40 years; thus it can safely be held that the cancellation order was passed without jurisdiction and in violation of the principle of natural justice.
Adverting to the next contention that, since there are concurrent findings of facts arrived at by the Courts below, thus this Court while exercising revisional jurisdiction under Section 115 CPC, cannot interfere in the findings of fact. It is a settled principle of law that while exercising powers under Section 115 CPC, the Court has to satisfy itself that, subordinate Courts had jurisdiction to try the case and had exercised the same rightly, and that, while exercising jurisdiction, the Court had not acted legally or in breach of any provision of law or with material irregularity, and if the Court is satisfied that the aforesaid criteria has been met with by the Courts below, then the High Court shall not interfere, even if it differs with the findings of subordinate Courts on the question of law or facts. Reference may be made to N.S. Venkatagiri Ayyunger's case (PLD 1949 Privy Council 26). In my considered opinion, the Courts below have arrived at a conclusion, after proper appreciation of evidence.
The only ground agitated by the learned Addl: A.G. was that, mutation entries were cancelled in view of the Notification and the Act of 1996, which contention was rightly repelled by the Court below, giving cogent reasons for the same, it may be observed that, it is a settled principle of law that High Court while sitting in Revisional jurisdiction, will not interfere in the concurrent findings of facts arrived at by the Courts below, unless it is established that the Courts below have passed the Judgment without jurisdiction or have committed material illegality, irregularity or impropriety. Reference may be made to 2005 SCMR 135. Since the learned Addl: A.G. could not point out any illegality or irregularity committed by the Courts below, thus the findings being unexceptionable, do not warrant interference.
It may be observed that in the case in hand, the respondents were in possession of the land in dispute and they have developed the same with the passage of time by spending huge amount and applied for entering their names as Maurosi Bazgars' and the Revenue Authorities after inspection of the land and conducting enquiry, after being satisfied, entered their names asMaurosi Bazgars' and further, they have been developing the land in question, constructing houses and installing tube wells, without any objection, thus the Courts below have done substantial justice, and no interference is called.
C
As a result, the petition being devoid of substance is dismissed, leaving the parties to bear their own costs.
(M.S.A.) Petition dismissed.
PLJ 2009 Quetta 71 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
SHAUKAT ALI--Appellant
versus
FEDERAL PUBLIC SERVICE COMMISSION through its Secretary Islamabad and 2 others--Respondents
F.P.S.C. Appeal No. 1 of 2008, decided on 30.3.2009.
Federal Public Service Commission Ordinance, 1977 (XLV of 1977)--
----Ss. 3 & 7(3)(d)--Competitive Examination (CSS) Rules 2007, Rr. 13 & 15--Allocation of a particular group of service--Federal Public Service Commission was constituted under the Ordinance XLV of 1977, wherein the right of appeal was provided in the year 2003 before the High Court--Appeal can be filed against any decision of public service commission before the relevant High Court--Section 10 provides for framing of rules in such regard, which were framed in 2007 for the examination of CSS and Rule 13 relates to the fact that the appellant cannot claim as a matter of right to be allocated a particular group of service--Candidate shall be selected amongst the choices given in the form--Rule 15 of CSS Rules, 2007, clearly bars the jurisdiction of the Courts to examine the suitability judged by high powered Board with regard to the allocation of group/service, which function is of the Board, who have to consider various factors including psychological test, health considerations, aptitude test--It is the wisdom of the legislature to leave it to the competent authority to examine the same, unless some malafides are proved on record or established by cogent evidence--There appears no malafides in the exercise of jurisdiction and appeal under Rule 15 is not competent. [P. 75] A
Mr. Imran ul Haq Khan, Advocate for Appellant.
Mr. Muhammad Afzal Jami, DAG assited by Syed Asghar Ali Shah, Joint Secretary ED & Mr. Saleem Akbar, Dy. D. FPSC, Quetta for Respondents.
Messrs Mujeeb Ahmed Hashmi & Nadir Ali Chalgari, Advocates for Respondent No. 3.
Date of hearing: 18.3.2009.
Order
Mehta Kailash Nath Kohli, J.--This appeal under Section 7(3)(d) of the Federal Public Service Commission Ordinance, 1977 (No. XLV of 1977) has been directed against the decision of Federal Public Commission (F.P.S.C.), Islamabad (Respondent No. 1) issued by the Establishment Division, Cabinet Secretariat Government of Pakistan (Respondent No. 2), dated 18th June, 2008 on the representation filed by the appellant for group allocation on the basis of merits, as well as, decision dated 7th July, 2008, passed on the review application.
Facts of the case, in brief, are that appellant appeared in CSS examination 2007 for the post of (BS-17) under Federal Government, vide roll number 4664, and stood qualified at Merit No. 143, issued by F.P.S.C., vide press note dated 16" February, 2008. It was further stated that appellant had submitted his order of preference for following occupational groups:--
Foreign Services of Pakistan.
District Management Group.
Custom & Excise Group.
Police Services of Pakistan.
Income Tax Group.
Pakistan Audit & Accounts Group.
Pakistan Railways.
Postal Group.
Information Group.
It is case of the appellant that in all respects he was suitable for the services in the Federal Government, and was entitled to be allocated Foreign Services of Pakistan, but; vide press note of Competitive Examination, 2007, issued by Government of Pakistan, Cabinet Secretariat, Establishment Division, appellant was arbitrarily allocated Income Tax Group, ignoring the order of his preference list for Occupational Groups and Provincial Quota. It was further stated that the seat of Foreign Services of Pakistan has been allocated to Respondent No. 3 (Ghulam Haider), whose merit number is 145 in Pakistan and 7th in Balochistan. It was also stated that aggregate score of appellant was 793, while Respondent No. 3 scored 791. Being aggrieved of aforementioned allocation of seat, appellant filed representation before Federal Service Commission on 05th May, 2008, which was rejected vide order dated 18th June, 2008, contents whereof are reproduced herein-below:--
"2. You are further informed that allocation is based upon prescribed parameters, which include candidate's merit, suitability, preferences, domiciles, number of vacancies in each group/service (women quota & merit/provincial and regional quotas). Suitability of candidates is determined by the Commission's Viva Voce Board comprising the Chairman and Members under Rule-12 of Competitive Examination, 2007 reproduced below:--
"Subject to the Recruitment policy explained in Appendix-Ill of these Rules, candidates securing the highest places on the combined results of the written Examination, Psychological and Viva voce tests and eligible for appointment will be appointed upto the number of vacancies available. No candidate will, however, be considered for appointment to any of the Groups/Services for which he/she has been declared "not suitable" by the Commission at the time of Viva Voce test."
Record shows that review application was filed on 30th June, 2008, which too was rejected on 7th July, 2008. Being aggrieved of aforementioned impugned orders, appellant has filed the present appeal and has sought the following prayer:--
It is, therefore, most humbly and respectfully prayed that keeping in view the aforementioned humble submission the appeal of the appellant may kindly be accepted and the impugned decision of the Federal Public Service Commission Islamabad issued by the Establishment Division, Cabinet Secretariat Government of Pakistan vide a Press Note (Allocation for CSS 2007) and orders dated 18th June 2008 & 07th July, 2008 passed by the Federal Public Service Commission Islamabad may kindly be ordered to be set aside and he may kindly be allocated to Foreign Services of Pakistan on merit basis as per his own order of preference;
AND
Declare that the clause 12 of the Rules for Competitive Examination (CSS 2007) is in violation and in contrast with the Competitive Examination 2007, Recruitment Policy-Appendix-III, hence the Rule 12 of Competitive Examination (CSS 2007) is liable to be declared as ultra vires and the Respondent Nos.1 and 2 cannot be allowed to misuse the same.
Any other order deemed fit in the circumstances of the case may kindly be passed."
Notice of this appeal was given to the respondents. Pursuant to notice, para-wise comments were filed on behalf of respondent-F.P.S.C., wherein; objections were raised that; (i) allocation of competitive examination is based on prescribed criteria, which include candidate's merits, suitability, preference, domicile, number of vacancies earmarked for each group/services against merit/provincial and regional quotas, women quota. The suitability of a candidate to or group/service is determined by the Commission at the time of Viva Voce under Rule-12 of Competitive Examination 2007, hence; the appellant was declared not suitable for Foreign Service of Pakistan (FSP) and Police Service of Pakistan (PSP); suitability of all candidates is determined by the authority i.e. Viva Voce Board at the time of Viva Voce; (ii) as per rule-15, page 3 of rules for Competitive Examination 2007 under heading appointments no appeal against decisions of the Government is entertainable. On merits contents of the appeal were contested and denied. It was stated that at the time of viva voce, appellant had given his order of preference in FSP, DMG, CEG, PSP, ITG, PAAS, CTG, Post.G, IG, RCTG. It was further stated that the psychological test and viva voce of the appellant were conducted in terms of Rule-10(i) and .11 of Appendix-I of Rules of the Competitive Examination 2007, and thus; he was declared unsuitable for FSP and PSP in terms of Rule-12. It has been stated that appellant had not deposited the representation fee as required vide Rule-7 (ii), Appendix-I of Competitive Examination Rules, 2007, hence; he was directed vide letter dated 27th May, 2008 to deposit the required fee, as such; the delay in disposal of his representation was on his own part. Similarly, rejoinder has been filed by Respondent No. 3, who has also contested the claim of appellant.
Mr. Imran-ul-Haq Khan, Advocate appeared on behalf of appellant, while Mr. Muhammad Afzal Jami, learned Deputy Attorney General appeared on behalf of Respondents Nos. 1 and 2, assisted by Syed Asghar Ali Shah, Joint Secretary Cabinet Division and Mr. Saleem Akbar, Deputy Director, F.P.S.C. Quetta, and; Respondent No. 3 was represented by Messrs Mujeeb Ahmed Hashmi and Nadir Ali Chalgari, Advocates.
Learned counsel for the appellant has contended that the appellant had secured higher number and was entitled to be selected in his earlier preference number of choices, has been ignored, as such, the appellant has been deprived of his legal right. It was further contended that in some of the choices, the seats are available, but; those are declined to the appellant for the reasons best known to the Deputy Attorney General.
On the other-hand, learned Deputy Attorney General, as well as, counsel for Respondent No. 3 have strenuously contended that this Court has no jurisdiction to determine the group services, as such discretion vests with the Board interviewing in this behalf. It was also contended that the suitability and the fitness is the function of the Board, who has to examine the various factors for determination as to whether the appellant is entitled to be selected for the particular group. The appellant has no right to agitate that he should be allocated particular group and such decision is not justicable before the Court.
We have considered the arguments advanced by learned counsel for the parties and perused the record.
Federal Public Service Commission was constituted under the Ordinance XLV of 1977, wherein the right of appeal was provided in the year 2003 before the High Court. It was mentioned in Section-3 that against any decision of Public Service Commission, appeal can be filed before the relevant High Court. Section 10 provides for framing of Rules in this regard. Record reflects that rules were framed in 2007 for the examination of CSS and Rule 13 relates to the fact that the appellant cannot claim as a matter of right to be allocated a particular group of service. However, it was specifically mentioned that the candidate shall be selected amongst the choices given in the form. Rule-15
of the Competitive Examination (CSS) 2007, is reproduced herein-below:--
"15. The Government reserves the right to allocate a candidate against any Group/Service irrespective of his/her preferences, in the public interest. No appeal against the decision of the Government will be entertained."
Above rule clearly bars the jurisdiction of the Courts to examine the suitability judged by the high powered Board with regard to the allocation of group/service, which function is of the Board, who have to consider various factors including psychological test, health considerations, aptitude test etc. It is the wisdom of the Legislature to leave it to the competent authority to examine the same, unless some malafidies are proved on record or established by cogent evidence. In the case in hand, there appears no malafidies in exercise of jurisdiction and appeal under Rule 15 is not competent. Even otherwise, it is to conclude that appellant has been granted one of the preferences in the application cannot claim as a matter of right to be selected for a particular post or group.
Appeal being without merit is accordingly dismissed in limine.
(M.S.A.) Appeal dismissed.
PLJ 2009 Quetta 76 (DB)
Present: Amanullah Khan Yasinzai, C.J. and
Mehta Kailash Nath Kohli, J.
Syed MUHAMMAD QASIM--Applicant
versus
ADDL. COLLECTOR CUSTOM (ADJUDICATION) CUSTOMS HOUSE, COLLECTORATE OF CUSTOMS, AIRPORT ROAD QUETTA and another--Respondents
Custom Reference Application No. 16 of 2006, decided on 30.3.2009.
Customs Act, 1969 (IV of 1969)--
----S. 187--Burden of proof as to lawful authority--Question, whether custom authorities were under legal obligation to prove that it was a fake punched vehicle--Held: It was the applicant, who had to show that the vehicle was properly and legally imported one--Section 187 of the Customs Act, 1969 clearly contemplates that the person, who is in possession of the vehicle has to show the proper entitlement having lawfully imported the vehicle and having paid custom duty and taxes--Reference answered. [P. 79] A
1980 SCMR 114, ref.
Mr. Muhammad Qahir Shah, Advocate for Applicant.
Chaudhry Mumtaz Yousaf, Standing Counsel Assisted by Mr. Muhammad Azam, Law Officer, Customs Department for Respondents.
Date of hearing: 19.3.2009.
Order
Mehta Kailash Nath Kholi, J.--This Reference under Section 196 of Customs Act, 1969 (IV of 1969) has been directed against order dated 11th March, 2006 passed by Custom, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I, Karachi (Respondent No. 2) in Custom Appeal No. 1277/2001, whereby; appeal filed against order-in-Original No. 211/2001 dated 09th August, 2001 passed by Additional Collector Customs (Adjudication), Collectorate of Customs, Quetta, has been directed to be dismissed.
Facts of the case, in brief, are that the officials of Directorate of Intelligence and Investigation (Customs, Excise and Sales Tax) Regional Office, Quetta received an authentic information to the effect that a smuggled Mitsubishi Pajero Jeep bearing Registration No. QAE-5213 with tempered chassis number was being driven in Quetta city. Pursuant to said information, the above said vehicle was intercepted by the officials of CIA, city circle Quetta on 04th October, 1999. It was further stated that the officials of CIA after impounding and adopting all legal formalities, handed over the Pajero Mitsubishi Jeep, Model 1989, having Chassis No. CLO49WKJ400685 (tempered) Engine No. 4D56-BM-6316, 2500 CC to the staff of Customs. It was further stated that thorough examination of the vehicle visibly revealed that chassis digits i.e. CLO49WKJ400685 have been punched/tampered. The CIF value of the vehicle as per seizure report is seven lacs rupees. It was case of the applicant that since no proof of legal import and lawful possession of the said vehicle was produced by anyone, as required under Section 187 of the Customs Act, 1969, thus; the staff of Customs Intelligent and Investigation, Quetta under the provisions of Customs Act, 1969, seized the vehicle, and; forwarded the same to the adjudicating authority on 23rd October, 1999 for adjudication. It was further stated that the then adjudicating authority issued show cause notice to the applicant on 15th November, 1999. After conclusion of proceedings, Respondent No. 1 vide order dated 09th August, 2001, passed in Customs order-in-original No. 211/2001, concluded in the following terms:--
"5. .... .... .... It has, thus, been established beyond any doubt that the vehicle involved in this case was brought into the Country illegally and owner of the vehicle manipulated the chassis numbers of the vehicle with the chassis number of another vehicle to hood wink the anti smuggling agencies as is evident from the report of FSL, Crimes Branch, Quetta. In view of the foregoing facts, I have been left with no option except to order the outright confiscation of the vehicle involved in this case under Clauses 8 and 89 of Section 156(1) of the Customs Act, 1969."
Against aforementioned order of confiscation, applicant filed Customs Appeal No. 1277/2001 before Respondent No. 2. Learned Appellate Tribunal (Respondent No. 2) vide order dated 11th March, 2006 up-held the order passed by Respondent No. 1.
Being aggrieved of aforementioned orders passed by the respondents, present Reference has been filed and following prayer has been sought:--
"In light of above mentioned facts, circumstances and grounds, this Hon'ble Court may graciously be pleased:--
(a) To declare that the order in original No. 211/2001 in seizure case/report No. V-Seiz/INT/136/99 and the order in original dated 11.3.2006 received 12.4.2006 in Appeal No. Q. 1277 of 2001 both impugned herein passed by respondents respectively are against the provisions of law may please be set aside being bad in law.
(b) To declare that the confiscation of seized vehicle under clause 8 & 89 of the Section 156(1) of Customs Act, 1969 is illegal and unlawful. On declaring so, the orders in original No. 211/2001 dated 9.8.2001 and order in original passed in Custom Appeal No. Q.1277 of 2001 dated 11.3.2006 be set aside and the vehicle Pajero Jeep Reg: No. QAE-5213 be ordered to be returned to the applicant.
(c) To grant any other relief alongwith costs."
Mr. Muhammad Qahir Shah, Advocate appeared on behalf of applicant, while Chaudhry Mumtaz Yousaf, learned Standing Counsel, assisted by Law Officer Custom, appeared on behalf of respondents.
Learned counsel for applicant contended that it was the duty of the Customs authorities to have proved that it. is fake punched vehicle and the learned Forums below have failed to attend this aspect of the matter and notice was not issued within a period of two months as provided by Section 168 of the Customs Act, 1969, and thus; the proceedings are corum non-judice.
On the other-hand, learned Standing Counsel stated that onus was upon the applicant to show that the vehicle is properly and legally imported having proper and legal number. It was further stated that the forums below have properly appreciated the evidence, which requires no interference by this Court. It was stated that on receipt of vehicle and documents, the notice was issued in time.
We have considered the arguments advanced by learned counsel for the parties and perused the record. From the perusal of record, it transpires that the Courts `below have attended the factum of vehicle being punched number and factual controversy has been set at rest. Section 187 of the Customs Act, 1969 deals with burden of proof, and reproduced herein-below:--
"187 Burden of proof as to lawful authority, etc.--When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him."
It was the applicant, who had to show that the vehicle was properly and legally imported one. Section 187 of the Customs Act, 1969 clearly contemplates that the person, who is in possession of the vehicle has to show the proper entitlement having lawfully imported the vehicle and having paid custom duty and taxes. We are supported by the judgment reported in the case of Abdur Rauf Khan v. Collector, Central Excise & Land Customs, Peshawar & 3 others (1980 SCMR 114).
The question of issuance of notice is urged by the counsel for applicant; suffice to observe that the forums below have taken notice of the same and it was pointed out that initially the vehicle was taken into custody by Police and thereafter, it was handed over to Custom authorities, and Custom authorities after receiving the vehicle issued notice in the terms provided under Section 168 of the Customs Act, 1969, within a period of two months. The relevant observations of the order of Additional Collector dated 9th August, 2001 are reproduced herein-below:--
"2. A show cause notice Bearing C.No. V-8(566)Cus/99/28830-33 dated 15-11-1999 was issued to the accused person/persons of the seized vehicle calling upon him/them as to why penal action should not be taken against him/them and the vehicle in question should not be confiscated under the aforesaid provisions of law."
Thus for the foregoing reasons, no question of law is involved warranting interference by this Court. Reference is, therefore, answered in negative.
(M.S.A.) Reference in negative.
PLJ 2009 SC 1
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabbir &
Syed Sakhi Hussain Bukhari, JJ.
LAHORE RACE CLUB through its Secretary etc.--Appellants
versus
RAJA KHUSHBAKHT-UR-REHMAN--Respondent
Civil Appeal No. 820 of 2004, decided on 30.5.2008.
(On appeal from the judgment of the Lahore High Court, Lahore
dated 7.4.2003 passed in C.R. No 2596 of 2002)
Companies Ordinance, 1984 (XLVII of 1984)--
----S. 152(1)(a)(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Removal of the name from the register of membership of the club--Objection of the jurisdcition of the Civil Court--Determination of--Rectification can be made by the Court if the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture-holder of a company.
[P. 6] A
Words and Phrases--
----Original jurisdiction--Original jurisdiction is the authroity of a Court to hear a case in the first instance to function as a trial Court and the appellate jurisdiction. [Pp. 6 & 7] B
Black's Law Dictionary.
Words and Phrases--
----Rectification--Itself connotes some error, which has crept in requiring correction--Error would only mean everything as required under the law has been done yet by some mistake. [P. 9] C
Maxim--
----When a thing is to be done in particular manner, it must be done in that particular manner, and not otherwise.. [P. 9] D
PLD 1971 SC 61.
Civil Procedure Code, 1908 (V of 1908)--
----S. 9, O. VII R. 10--Specific Relief Act, (I of 1877) Ss. 42 & 54--Companies Ordinance 1984, Ss. 9(3) & 152--Respondent filed a suit for declaration challenging the removing the name from the register of membership of club--Rectification--Return of plaint in lieu of S. 7 of the Companies Ordinance--"Whether the respondent should have approached the High Court u/S. 152 of the Companies Ordinance, or has rightly resorted to the plenary jurisdiction of the Civil Court?--Held: High Court being the Court of original jurisdiction under the Companies Ordinance, 1984, is empowered to entertain to the application for correction/rectification of the register of members in the first instance and thereafter if reached to the conclusion by taking into consideration the application reply thereto and the documents produced before it, that the matter is out of the purview of the summary procedure as provided under Section 9(3) of the Ordinance, it may refer/advise the party to approach the Civil Court for resolution of the disputed controversies. [P. 9] E
AIR 1998 SC 3153 ref.
Dr. Khalid Ranjha, ASC for Appellants.
Sh. Salahuddin, ASC for Respondent.
Date of hearing: 21.5.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal by leave of the Court is directed against the judgment dated 07.04.2003 passed by a learned Single Judge of the Lahore High Court, Lahore, in Civil Revision No. 2596 of 2002.
The brief resume of the case is that the respondent Raja Khushbakht-ur-Rehman had instituted a suit in the Court of Senior Civil Judge, Lahore, for declaration asserting therein the plaint that he was one of the members of the "Lahore Race Club" having its registered office at Rakh Chandra Kot Lakhpat, functioning in terms of Section 42 of the Companies Ordinance, 1984, praying for a decree for declaration with consequential relief in his favour against the defendant-appellants by declaring the decision of the appellants removing the plaintiff-respondent's name from the register of membership of the Club, vide Letter No. 1075/SEC/2002 dated 13.08.2002, illegal, void, unjust, unwarranted, mala fide, without jurisdiction, based on ulterior motives, personal ill-will and inoperative, non-existent qua his membership rights, restraining the defendant-appellants from stopping the respondent to use and exercise his membership right at any place of the Club, any time, anywhere.
The suit was contested by the defendant-appellants who filed their written statements raising some preliminary objections specially lack of jurisdiction by the Civil Court. The learned trial Court after hearing the arguments on the preliminary objections of jurisdiction by observing that in view of Section 7 of the Companies Ordinance, 1984, the Court lacks jurisdiction, returned the plaint to the plaintiff-respondent, vide order dated 17.09.2002. The plaintiff-respondent filed an appeal before the First Appellate Court/Additional District Judge, Lahore, who vide order dated 26.11.2002, dismissed the same, upholding the order of the Civil Court. In state of disappointment, the respondent filed a Civil Revision No. 2596 of 2002 before the High Court which was accepted, vide the impugned judgment. Hence, this appeal.
The learned counsel for the appellants vehemently argued that the Civil Court has no jurisdiction to entertain the instant suit and the High Court has the exclusive jurisdiction to try the disputes under the Companies Ordinance, 1984, contending that the Judge of the High Court was competent to decide the matter and if found controversial controversies requiring recording of evidence, could refer the respondent to approach the Civil Court. He placed reliance on M/s Ammonia Supplies Corporation Private Ltd. V. M/s Modern Plastic Containers (Pvt) Ltd & others (AIR 1994 Delhi 51).
While on the other hand, the learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the appellant contending that where there are intricate questions of law and facts involved, the Civil Court in its plenary jurisdiction is competent to adjudicate upon the matter and even otherwise, the High Court as well as the Civil Court having concurrent jurisdiction, committed an error of law in returning the plaint. He placed reliance on the cases of Hamid Husain v. Government of West Pakistan & others (1974 SCMR 356), Sh. Mushtaq Ahmad v. Shaukat Soap Factory & others (1987 CLC 2079), Khurshid Ahmad Khan & another v. Pak Cycle Manufacturing Company Ltd., Shahdara & 4 others (PLD 1987 Lahore 1), Zakir Latif Ansar & another v. Pakistan Industrial Promoters Ltd. & 2 others (1988 CLC 1541), Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore & others (PLD 2001 Lahore 523).
We have heard the arguments of the learned counsel for the parties and examined the relevant provisions of law with their assistance.
The disputed issue before us is the "rectification" of the register of membership of the Club and removing the name of the plaintiff-respondent from the register maintained by the office holder of the Club. It is admitted position that the appellant is registered under Section 42 of the Companies Ordinance as a limited company. The dispute between the Club and its member is covered under the Companies Ordinance, 1984 prevailing in the country. Section 7 of the Ordinance provided the jurisdiction of the Courts which reads as under:-
"7. Jurisdiction of the Courts.--(1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate:
Provided that the Federal Government may, by notification in the official Gazette and subject to such restrictions and conditions as it thinks fit, empower any Civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court.
(2) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up.
(3) Nothing in this section shall invalidate a proceeding by reason of its being taken in a Court other than the High Court or a Court empowered under sub-section (1)."
"the Court" means the Court having jurisdiction under this Ordinance;
"Power of Court to rectify register.--(1) If--
(a) the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture-holders of a company; or
(b) default is made or unnecessary delay takes place in entering on the register of members or register of debenture-holders the fact of the person having become or ceased to be a member or debenture-holder;
the person aggrieved, or any member or debenture-holder of the company, or the company, may apply to the Court for rectification of the register.
(2) The Court may either refuse the application or may order rectification of the register on payment by the company of any damages sustained by any party aggrieved, and may make such order as to costs as it in its discretion thinks fit.
(3) On any application under sub-section (1) the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or debenture-holders or alleged members or debenture-holders, or between members or alleged members, or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand; and generally may decide any question which it is necessary or expedient to decide for rectification of the register.
(4) An appeal from a decision on an application under sub-section (1), or on an issue raised in any such application and tried separately, shall lie on the grounds mentioned in Section 100 of the Code of Civil Procedure 1908 (Act V of 1908)--
(a) if the decision is that of a Civil Court subordinate to a High Court, to the High Court; and
(b) if the decision is that of a Company Bench consisting of a Single Judge, to a Bench consisting of two or more Judges of the High Court. "
The plaintiff is aggrieved of removal of his name from the register of membership and prayed for declaring this act as illegal, void and unwarranted, mala fide, etc.
Keeping in view the prayer clause of the plaint and Section 152 sub-section
(1)(a)(b), it can easily be inferred that the rectification' can be made by the Court if the name of any person is fraudulently or withoutsufficient cause' entered in or omitted from the register of members or register of debenture-holder of a company.
The question that boils down for determination before this Court is whether the plaintiff-respondent should have approached the High Court under Section 152 of the Companies Ordinance or he has rightly resorted to the plenary general jurisdiction of the Civil Court. The word "Court" in the Companies Ordinance means "High Court/Company Judge notified by the Chief Justice of the High Court" as defined in Section 2(11) of the Companies Ordinance and Section 7(1) enacts that the Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place where the registered office of the Company is situated. Proviso to Section 7(1) empowers the Federal Government to confer the powers upon any Civil Court. Section 9 contemplates the procedure to be followed by the Company Judge while dealing with the matter under this Ordinance. Now, the question is whether the jurisdiction of High Court under Section 7 is statutory jurisdiction/original jurisdiction/civil jurisdiction. A study of the Ordinance clearly demonstrates that all the matters under Ordinance, are initiated before the Company Judge by moving up an application and by filing of reply to it, as laid down in the case of Messrs Sunrise Textiles Limited & others v. Mashreq Bank PSC and others (PLD 1996 Lahore 1). The said question has also exhaustively been dealt with by this Court in the case of Brother Steel Mills Ltd & others v. Mian Ilyas Miraj & 14 others (PLD 1996 SC 543), wherein it is observed that the High Court or a Court empowered under Section 7(1) of the Companies Ordinance, 1984, has been vested with the jurisdiction to entertain, hear, try and decide the matters in cases arising under the Ordinance as, such jurisdiction has been conferred by the Ordinance. The proceeding under the Ordinance is initiated in the High Court as a Court of first instance and while exercising such jurisdiction it has the characteristics and attributes of original jurisdiction.
The term "original jurisdiction" means "jurisdiction in the first instance"; jurisdiction to take cognizance of a cause as its inception, try it, and pass judgment upon the law and facts. As per Black's Law Dictionary, "Original Jurisdiction" is the authority of a Court to hear a case in the first instance, i.e., to function as a Trial Court and the "Appellate Jurisdiction" is the authority of a Court to hear a case that has first been decided by a lower Court. Jurisdiction of a Court is never established by the Court itself but by some authority external to it either in a Statute or the Constitution. "Original Civil Jurisdiction" of a Court is such jurisdiction where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said Court and entertained by it as a Court of first instance and are decided by it. Sub-article (2) of Article 175 of the Constitution of Islamic Republic of Pakistan enshrines that, "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law". The jurisdiction can be conferred on any Court including a High Court by a Statute which may be provided for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil disputes, it will be termed as "Original Civil Jurisdiction." It is also a common proposition that Statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a Court of first instance for purposes of exercise of jurisdiction.
The High Court enjoys the "original jurisdiction" under Article 199 of the Constitution of the country and under different Statutes like the Companies Ordinance, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 2001, etc.
Section 9 of the Companies Ordinance, 1984 has provided procedure to dispose of all matters coming before the High Court and against the judgment of the High Court in exercise of its original jurisdiction, the appeal is provided to a Bench consisting of two or more Judges of the High Court.
So far as taking the cognizance of the matter is concerned, it is provided in the Ordinance, 1984, that an application shall be preferred before the Court (the High Court) by the aggrieved person or any member of the company for "rectification" of the register. Though Section 152 of the Companies Ordinance, 1984 gives wide power to the High Court to rectify the register of members, yet, the jurisdiction of the High Court is summary in nature, as emerges in Section 9 sub-section (3), which reads as under:--
"In the exercise of its jurisdiction as aforesaid, the Court shall, in all matters before it, follow the summary procedure."
A careful examination of Section 9 of the Companies Ordinance, 1984, would show that the intention of the legislature is to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. In case where there is allegation of fraud and fabrication or intricate question of law is involved requiring recording of evidence, the High Court can advise the party to approach the Civil Court of competent jurisdiction to get the issue determined and in case of favourable judgment, the litigant can always approach the High Court again under Section 152 of the Ordinance. A Division Bench of the High Court of Sindh at Karachi, in the case of Manzoor Ahmad Bhatti & 4 others v. Haji Noval Khan & 5 others (1986 CLC 2560), directed the parties to approach the Civil Court for resolution of disputed question of fact raised in the petition. Similarly, in the cases of Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore & others (PLD 2001 Lahore 523) and Zakir Latif Ansari & others v. Pakistan Industrial Promoters Ltd. and others (1988 CLC 154), the aggrieved person was advised by the High Court to approach the Civil Court of competent jurisdiction to get the issues determined and in case of a favourable judgment, he could always approach the High Court again under Section 152 of the Ordinance with a similar prayer for rectification of the Register of the Company.
In the case of Muhammad Hussain v. Dawood Flour Mill & others (2003 CLD 1429), a Division Bench of the High Court of Sindh at Karachi observed that if the name of any person is fraudulently or without "sufficient cause" entered in or omitted from the Register of Members, the aggrieved person can apply to the Court for rectification of the Register and the Court after enquiring into the matter may order rectification of Register if it is satisfied that the aggrieved person is entitled to such relief.
The question of jurisdiction of rectification of name in the Register of Members has also been dealt with by a Full Bench of Delhi High Court in the case of M/s. Ammonia Supplies Corporation Private Ltd. V. M/s. Modern Plastic Containers (Pvt) Ltd & others (AIR 1994 Delhi 51) and the Court observed that the jurisdiction of the Court is discretionary and summary in nature. The Delhi High Court in that case took into consideration different views rendered by the Indian High Courts. The judgment of the Delhi High Court was challenged before the Supreme Court of India in the case of M/s. Ammonia Supplies Corporation (P) Ltd v. M/s. Modern Plastic Containers Pvt. Ltd. and others (AIR 1998 SC 3153) and the Court keeping in view the powers of the Court to rectify Register of Members of the Company under Section 38 of the Indian Companies Act, 1913, observed that "rectification of Register of Members, jurisdiction of the Company Court is summary in nature and Civil Court's jurisdiction is impliedly barred." Section 38 of the Indian Companies Act, 1913 dealing with powers of the Court to rectify the Register corresponds with Section 152 of the Companies Ordinance, 1984. Section 152 empowers the Court to decide any question relating to "rectification" of the Register including the law. There can be no doubt that any question raised within the peripheral field of rectification, it is the High Court under Section 152 alone which has the exclusive jurisdiction. However, the question raised does not rest here. In case any claim is based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member and if the Court feels such claim does not constitute to be a rectification but instead seeking adjudication of basic pillar some such facts falling outside the rectification, its discretion to send a party to seek his relief before Civil Court first for the adjudication of such facts, it cannot be taken away merely on account of that no such language is provided in the section. For instance, if under the garb of rectification one may lay claim of many such contentious issues for adjudication not falling under it, in other words, the Court under it has discretion to find whether the dispute raised are really for rectification or is of such a nature, unless decided first it would not come within the purview of rectification. A plain reading of the word "rectification" itself connotes some error, which has crept in requiring correction. Error would only mean everything as required under the law has been done yet by some mistake the name is either omitted or wrongly recorded in the register of the company.
The Companies Ordinance, 1984, is a special law. It has provided special remedy and procedure to resolve disputes erupting between the company and the members under the said Ordinance. It is settled proposition of law that when a thing is to be done in a particular manner, it must be done in that particular manner, and not otherwise. The neglect of plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner, as laid down in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore & 2 others (PLD 1971 SC 61).
Having dealt with the matter in hand, in the manner discussed above, we hold that the High Court being the Court of "original jurisdiction" under the Companies Ordinance, 1984, is empowered under Section 152 of the Ordinance to entertain the application for "correction/rectification of the register of members", in the first instance, and thereafter if reached to the conclusion by taking into consideration the application, reply thereto and the documents produced before it, that the matter is out of the purview of the summary procedure as provided under Section 9(3) of the Ordinance, it may refer/advise the party to approach the Civil Court for resolution of the disputed controversies.
For the foregoing reasons, we are not inclined to agree with the impugned findings/judgment of the Lahore High Court which is not sustainable in law. Resultantly, this appeal is allowed and the impugned judgment of the High Court is set aside.
(W.I.B.) Appeal Allowed.
PLJ 2009 SC 10
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-Ul-Hassan &
Ch. Ejaz Yousaf, JJ.
FAZALI REHMANI--Appellant
versus
CHIEF MINISTER NWFP, PESHAWAR and others--Respondents
Civil Appeal No. 1346 of 2007, decided on 19-06-2008.
(On appeal from the judgment dated 19-04-2007 in Service Appeal
No. 831 of 2005 passed by the NWFP Service Tribunal Peshawar).
NWFP Service Tribunal Act, 1974--
----S. 4(b)(i)--Promotion--No selection post--Criteria--Seniority-cum-fitness--Question of fitness--Jurisdiction of service Tribunal--Held: Though eligibility for promotion of a civil servant can be subjected to judicial scrutiny by the service tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction. [P. 12] A
PLD 1994 SC 539, 2007 SCMR 682, 1972 SCMR 323, 2002 SCMR 574, 1056 ref.
Promotion--
----Promotion itself cannot be claimed as of right. [P. 13] B
Seniority Cum Fitness--
----Promotion to posts carrying basic scale--Held: Promotion in case of selection posts i.e. BPS-19 and above is to be made on basis of fitness-cum-seniority meaning thereby that seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i.e. BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. [Pp. 17 & 18] C
Mr. Maazullah Barkandi, ASC for Appellant.
Mr. Qaiser Rashid, Addl. A.G. NWFP for Respondents No. 1-4.
Qazi M. Anwar, Sr. ASC for Respondent No. 5.
Date of hearing: 19.6.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal is directed against judgment dated 19.4.2007 passed by the NWFP Service Tribunal, Peshawar, (hereinafter referred to as "the Tribunal"), whereby service appeal filed by the appellant against promotion of the Respondent No. 5 to BPS 21, was, for lack of jurisdiction, dismissed with reference to Section 4(b)(i) of the NWFP Service Tribunals Act, 1974 (hereinafter referred to as the "Act").
Facts of the case, necessary for the disposal of instant appeal, briefly stated, are that the appellant as well as Respondent No. 5 both were serving in BPS-20 (Executive Grade). Their promotion cases for filling one post in BPS-21 was placed before the Provincial Selection Board in its meeting held on 12.7.2005. Since service record of Respondent No. 5 was found comparatively better, therefore, he was recommended for promotion, though he was at S.No. 2 in the seniority list, below the appellant, who was at S.No. 1. A notification to the above effect was issued on 2.8.2005. The appellant filed review/representation before the Respondent No. 1, i.e. the Chief Minister, NWFP, Peshawar, under the rules, which was rejected on 24.9.2005. Resultantly, the appellant approached the NWFP Service Tribunal through appeal No. 831 of 2005 which was dismissed vide the impugned judgment, hence this appeal.
It has been contended by the learned counsel for the appellant that since very eligibility of the Respondent No. 5 for promotion to BPS-21, was challenged before the Service Tribunal therefore, the Tribunal could not have declined to exercise jurisdiction by bringing the matter under Section 4(b)(i) of the Act, which was patently wrong. He added that since the appellant was the senior most officer in BPS-20 and was also eligible in all respects for promotion to BPS-21, therefore, he could not have been deprived of legitimate right of his promotion without any cogent reason. It is further his grievance that Respondent No. 5's promotion to BPS-21 was also in violation of rules and regulations as he had not done the NIPA Course from the Staff College, which was a mandatory requirement for promotion to Grade 21; that since promotion of PCS (Executive Group) comes within the purview of non-selection post therefore, it was to be made on the basis of seniority-cum-fitness and thus the impugned order of Respondent No. 4 was against the law, rules and policy.
Qazi Muhammad Anwar, learned Sr. ASC, appearing for Respondent No. 5, on the other hand, while vehemently controverting the contentions raised by the learned counsel for the appellant, has submitted that question of eligibility for promotion of the Respondent No. 5 was never raised before the Tribunal and only his promotion to BPS-21 was challenged which being not within the jurisdiction of the NWFP Service Tribunal, under Section 4(b)(i) of the Act, the appeal filed by the appellant was rightly dismissed. He maintained that since the posts in Grade 21 and above were selection posts, therefore, it could not have been filled on the basis of seniority-cum-fitness. While controverting the contention of the learned counsel for the appellant that Respondent No. 5 had not done the NIPA Course, he submitted that since Respondent No. 5 had served for one year as head of NIPA specialized Training Institution, therefore, he was rightly exempted by the competent authority and thus was eligible for promotion to Grade 21. Learned counsel added that appellant as well as Respondent No. 5 were considered by the Board and since appellant was not found fit for promotion he was superseded.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance, minutely.
As regard the first contention raised by the learned counsel for the appellant that since very eligibility of Respondent No. 5 for promotion to the next higher Grade was disputed as compared to the appellant, therefore, the learned Tribunal could not have declined to exercise jurisdiction by bringing the matter under Section 4(b)(i) of the Act, it may be pointed out here that eligibility for promotion and fitness for promotion are distinct and separate from each other. Eligibility relates to the terms and conditions of service, whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a Tribunal or a Court hence, neither eligibility to promotion can be equated with promotion nor prospects of promotion can be included in terms and conditions of service. It is well settled that though eligibility for promotion of a civil servant can be subjected to judicial scrutiny by the Service Tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction under Section 4(b)(i) of the NWFP Service Tribunals Act, which reads as follows:--
"4. Appeals to Tribunals........
(a) .........
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:
(i) the fitness or otherwise of a person to be appointed to a higher post or grade;
In a number of judgments, it has been repeatedly laid down by this Court that though the question of eligibility relates to the terms and conditions of service and therefore, would fall within domain of the Tribunal yet, the question of fitness of a civil servant for promotion is barred from the jurisdiction of the Tribunal. Reference in this regard may usefully be made to the following reported judgments:
(i) Muhammad Anis & others v. Abdul Haseeb and others (PLD 1994 SC 539)
(ii) Muhammad Iqbal v. Executive District Officer (Revenue) (2007 SCMR 682)
(iii) Syed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323)
(iv) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui & others (1991 SCMR 1129)
(v) Muhammad Akram & others v. the State & others (1996 SCMR 324)
No doubt it has also been, in some cases including (i) Muhammad Anis (supra), (ii) Muhammad Rehman Khan v. Chief Secretary, NWFP & others (2004 PLC (C.S) 62), (iii) Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority & others (2002 SCMR 574), and (iv) Zafarullah Baloch v. Government of Balochistan & others (2002 SCMR 1056), laid down by this Court that when a civil servant was eligible for promotion but ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, yet, in the instant case, since the appellant had failed to show that Respondent No. 5 was ineligible for promotion, therefore, the learned Tribunal had rightly declined to interfere with the order of the departmental authority. Needless to point out that though consideration for promotion is a right yet, the promotion itself cannot be claimed as of right. Record reveals that the cases of both the appellant as well as Respondent No. 5 were thoroughly considered by the Selection Board and since Respondent No. 5 was found fit for promotion, therefore, his name was recommended. The contention therefore, is devoid of force.
"Government of Pakistan
Cabinet Secretariat
Establishment Division
No. 10(5)/91-CP-I Islamabad, the 8th May, 1991
OFFICE MEMORANDUM
Subject:-- PROMOTION POLICY - EXEMPTION FROM NIPA AND STAFF COLLEGE/NDC COURSE.
The undersigned is directed to refer to this Division's d.o. Letter No. 10(10)/85-CP-I, dated the 15th May, 1985 on the above subject and to say that apart from those who have crossed the age of 56 years, training requirement of NIPA/PASC/NDC can only be waived for the following categories of officers:--
(i) for promotion to BPS-20; those who have served on directing staff in BPS-19 for 2 years in NIPA, Staff College, NDC, Civil Services Academy and the specialized training institutions imparting training to officers in BPS-17 and above.
(ii) For promotion to BPS-21: those who have served on directing staff in BPS-20 for two years in the Staff College, NDC, NIPA and Civil Services Academy or have served for one year as head of NIPA/ specialized training institutions imparting training to officers in BPS-17 and above.
(Ashiq Hussain)
Section Officer (CP-I)
Tele: 828610
All Ministries/Divisions, Rawalpindi/ Islamabad
All Chief Secretaries of
Provincial governments."
A bare perusal of the above letter particularly latter part of clause (ii) indicates that those officers who had served for one year as Head of NIPA/specialized training institutions imparting training to officers in BPS-17 and above, are exempted from the training requirement of NIPA, hence, the Respondent No. 5 having served as such, his eligibility towards promotion was never under jeopardy. This contention too, therefore has no force.
"II. Promotions on Seniority-cum-Fitness Basis
III. Promotion to Selection Posts
Posts in Basic Pay Scale 19 or higher are selection posts. Promotions to these posts are to be processed through the Central Selection Boards.
In order to ensure that selection by these Boards does not amount to a mere elimination of the unfit the Establishment Division shall place a larger panel of eligible officers before the Boards. Depending on the availability of eligible officers in a cadre, the number of officers to be included in the panel shall be as follows:--
(a) for promotion to A minimum of 2 officers
supervisory posts for every vacancy.
(b) For promotion to A minimum of 3
middle and senior officers for every
management posts. vacancy.
Another relevant fact which cannot be lost sight of is that the posts carrying Basic Pay Scale 21, against one of which the appellant lays a claim, fall in senior management, involving important policy-making or extensive administrative jurisdiction and therefore, in addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management and since the potential cannot be adjudged by mathematical formula, therefore Selection Board is required to apply its collective wisdom to determine the same. Clause 6 of the said guidelines at Page 238 of the Code is explicit in this regard, which is reproduced herein below in extenso:
"6. Posts carrying Basic Pay Scale 22 fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil servant must fulfil the following conditions for promotion to senior management post:--
(a) Qualifying Service: Possess 22 years service as an officer subject to the provisions contained in Establishment Division's OM. No. 1/9/80-R-II (A), dated 2.6.1983.
(b) Eligibility threshold: attain a minimum score of 70 marks in CRs in accordance with the formula given in the Addendum.
(c) Qualifications: as are prescribed by relevant recruitment rules.
(d) Relevance of Experience: possess experience relevant to the functions of the post being filled by promotion.
(e) "Quality and Output of Work" and "Integrity": marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer.
(f) Variety of Experience: the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments (on account of work load or its complexity) viz-a-viz relatively routine duties particularly in the secretariat. Depending on the posts to be filled, an officer possession well rounded experience with adequate exposure to difficult assignments should normally be preferred.
(g) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. This requirement will be waived for officers who:
(i) have served as head of a training institution for at least one year; or
(ii) have served on the directing staff of a training institution for at least two years; or
(iii) have exceeded the age of 56 years.
(h) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice.
In the wake of above, it thus follows that where promotion to posts carrying Basic Pay Scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i.e. BPS-19 and above is to be made on the basis of "fitness-cum-seniority" meaning thereby that in the earlier case, i.e. BPS-18 and above, seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i.e. BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and affect of rules, by virtue of sub-section (2) of Section 25 of the Civil Servants Act, 1973 as has been held by this Court in the case of (i) Secretary to the Govt. of the Punjab v. Abdul Hamid Arif & others (1991 SCMR 628) and (ii) Muhammad Yousaf & others v. Abdul Rashid and others (1996 SCMR 1297), therefore, this contention too, has no force.
Upshot of the above discussion is that this appeal being msiconceived is hereby dismissed.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 18
[Review Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Saiyed Saeed Ashhad, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir, Zia Perwez, Mian Hamid Farooq, Syed Sakhi Hussain Bokhari, Syed Zawwar Hussain Jaffery, Sheikh Hakim Ali & Muhammad Farrukh Mahmud, JJ.
TIKA IQBAL MUHAMMAD KHAN--Petitioner
versus
GENERAL PERVEZ MUSHARRAF, CHIEF OF ARMY STAFF, ARMY HOUSE RAWALPINDI and 3 others--Respondents
Civil Review Petition No. 7 of 2008, decided on 15.2.2008.
(On review from the judgment/order dated 23.11.2007 of this Court passed in Constitution Petition No. 87 of 2007).
Constitution of Pakistan, 1973--
----Art. 188--Provisional Constitution Order, (1 of 2007)--Constitution (Amendment) Order, 2007--Constitution (Second Amendment) Order, 2008--Oath of Office (Judges) Order, 2007--Review of judgment--Extra-constitutional steps of the Chief of Army Staff of 3rd November, 2007--Supreme Court while declaring the extra constitutional steps of the Chief Army Staff of 3rd Nov. 2007 as valid in the judgment reported as PLJ 2009 SC 446 minutely examined the prevailing conditions involved in the case and agitated by the counsel for the parties--It had been held that extra constitutional measures were taken in the largest interest of the State necessity and for welfare of the people--Consequently all the President's Orders, Ordinances, Orders of the COAS including the Oath of Office (Judges) Order 2007, amendments in the Constitutionmade and all other laws, Orders made, proceedings taken after 3rd Nov. 2007, have been validly made and shall continue in force subject to their repeal or alteration, as contemplated by Art. 270AAA of Constitution--All such acts and legislative measures have been taken or done in the interest of State necessity to advance and promote the good of the people--No exception can be taken to the conclusions arrived at the findings recorded and directions given in the short order and the detailed judgment--Petitioner cannot be allowed to re-agitate the same points having already been deatt with and determined by Supreme Court--No case of review made out--Petition dismissed.
[Pp. 32, 44, 45 & 46] A, B, C, D, G & H
Constitution of Pakistan, 1973--
----Art. 188--Oath of Office (Judges) Order 2007--Review of judgment--Reinstatement of former Chief Justice of Pakistan and other Judges of the Superior Courts--Held: Supreme Court had already examined the issue of re-instatement of deposed judges with all its ramifications and had found that they had ceased to hold their office on 3.9.2007--Later, by virtue of President's Order Nos. 8 & 9 of 2007 dated 14.12.2007, they had been retired and held entitled to draw pensionary benefits accordingly--The action in respect of former C.J.P. and former judges being a `fait accompli and hit by the doctrine of past & closed transaction could not be re-opened and was irreversible. [Pp. 45 & 46] E & F
PLD 1977 SC 657, PLD 2000 SC 869, PLD 1997 SC 865, PLD 1998 SC 363 & PLD 2001 SC 233, ref.
Mr. Arshad Ali Ch., ASC/AOR for Petitioner.
Syed Sharifuddin Pirzada, Sr. ASC & Raja M. Ibrahim Satti, ASC for Respondent No. 1.
Malik Muhammad Qayyum, Attorney General of Pakistan and Ch. Naseer Ahmad, ASC for Respondent No. 2.
Date of hearing: 15.2.2008.
Judgment
Abdul Hameed Dogar, CJ.--The petitioner seeks review of the Short Order dated 23.11.2007 and the detailed judgment of this Court passed in Constitution Petitions No. 87 & 88 of 2007.
(1) There is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
(2) There has also been a spate of attacks on state infrastructure and on law enforcement agencies;
(3) Some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation's resolve and diluting the efficacy of its actions to control this menace;
(4) There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
(5) Constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
(6) Some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
(7) Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
(8) The Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
(9) An important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
(10) The humiliating treatment meted to government officials by some members of the judiciary on a routine basis during Court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
(11) The law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded; and
(12) A situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures.
It was stated in the Proclamation that the situation had been reviewed in meetings with the Prime Minister, the Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings.
(i) The President may, from time to time, by Order amend the Constitution, as is deemed expedient;
(ii) The Fundamental Rights under Articles 9, 10, 15,16,17,19 and 25 shall remain suspended;
(iii) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260 (3) (a) and (b) shall continue to be in force;
(iv) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction;
(v) The Supreme Court or a High Court and any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority;
(vi) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass;
(vii) Subject to clause (1) above, the Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function;
(viii) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President;
(ix) No Court, including the Supreme Court, the Federal Shariat Court, and the High Courts, and any Tribunal or other authority, shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath of Office (Judges) Order, 2007 or any Order made in pursuance thereof;
(x) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or Tribunal against the President or the Prime Minister or any authority designated by the President;
(xi) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him;
(xii) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution; and
(xiii) The above provision shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
(a) A person holding office immediately before this Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect;
(b) A person who is given, and does make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be;
(c) A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule.
(d) A person who has made oath as aforesaid shall be bound by the provisions of the Oath of Office (Judges), the Proclamation of Emergency of 3rd November, 2007, the Provisional Constitution Order No. 1 of 2007, and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
The Judges of the Superior Courts who were not given, or who had not taken oath in terms of the aforesaid Order ceased to hold their office on and with effect from 3rd November 2007.
On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007) the President made certain amendments in the Constitution, i.e., Articles 175, 198 and 218 (establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath of Office (Judges), Order, 2007 to be deemed under the Constitution). By the same Order, the President added Article 270AAA in the Constitution (validation and affirmation of laws etc.).
By the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not taken oath under the Oath of Office (Judges) Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath of Office (Judges) Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.
By Constitution Petitions No. 87 and 88 of 2007, the petitioner and one Zafarullah Khan respectively called in question the validity of the instruments and measures of 3rd November 2007. They prayed that the deposed Judges of the Superior Courts and the Fundamental Rights be restored, the general election to the National Assembly and the Provincial Assemblies be held within the period provided by the Constitution, the detenus held under preventive detention laws be released forthwith and restrictions on the media be lifted. The Full Court disposed of both the Constitution Petitions by means of the Short Order as under:--
"The above Constitution Petitions are directed against the Proclamation of Emergency of the 3rd day of November 2007 and the Provisional Constitution Order No. 1 of 2007 issued by the Chief of Army Staff, as also the Oath of Office (Judges) Order, 2007 made and promulgated by the President of Pakistan.
(i) in the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;
(ii) The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional, limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the state machinery, particularly legislative and executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary;
(iii) The sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;
(iv) The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto V. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah V. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance;
Sufficient corroborative material has been produced by the respondents, which justifies the taking of the extra-constitutional measures by the Chief of Army Staff and the President.
(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(ii) the extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No: 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform--
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e., independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures; (v) The Chief Justices and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
(vi) The learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.
The petitions are disposed of in the above terms."
The detailed judgment in support of the above Short Order was released on 13.2.2008. The review petition filed against the Short Order and the detailed judgment was dismissed vide Short Order dated 15.2.2008 as under:--
"For reasons to be recorded later on, this review petition is dismissed."
(i) The judgment and the short order passed by this Court suffer from various errors apparent on the face of record and the same deserve to be reviewed and recalled.
(ii) The judgment under review is based on surmises and conjectures and it proceeds on incorrect comprehension and interpretation of the Constitutional law.
(iii) There was no justification for taking extra-constitutional steps on 3.11.2007, which were coram non judice and without lawful authority.
(iv) The Chief of Army Staff did not have the power or authority to proclaim emergency, which under the Constitution could only be done by the President.
(v) The President could not have delegated his power of proclamation of emergency to the Chief of Army Staff, who, even otherwise, did not possess any such authority under the Constitution or the Army Act.
(vi) The extra-constitutional steps taken by the respondent were not in the national interest and were directed against certain Constitutional functionaries.
(vii) The former Chief Justices and the former Judges of the Superior Courts were removed without having recourse to the Supreme Judicial Council as required by Article 209 of the Constitution. The provisions of the Oath of Office (Judges) Order, 2007 being ultra vires Article 209 of the Constitution were liable to be struck down.
On the other hand, Malik Muhammad Qayyum, learned Attorney General for Pakistan submitted that the judgment under review elaborately dealt with each and every point raised in the Constitution Petitions and left nothing unattended. He referred to Paragraph 7 of the judgment, wherein the arguments of Mr. Irfan Qadir, ASC, learned counsel for the petitioner (in Constitution Petition No. 87 of 2007) were noted. Likewise in Paragraph 8 thereof, the arguments advanced by Barrister Zafarullah Khan, ASC, (in Constitution Petition No. 88 of 2007) were noted in great detail. In Paragraph 13, legal position with regard to the jurisdiction of the Supreme Court under Article 184(3) of the Constitution was examined in the light of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Syed Zafar Ali Shah's case (PLD 2000 SC 869). He submitted that the issue of maintainability of petitions under Article 184(3) in the present case was conceded at the hearing and this Court reaffirmed the view already taken in the case of Syed Zafar Ali Shah and held that the Supreme Court was competent to examine the vires of the Proclamation of Emergency of 3rd November 2007, the Order No. 1 of 2007, as amended, and the Oath of Office (Judges) Order, 2007 notwithstanding the ouster clauses contained therein.
The learned Attorney General further submitted that in Paragraph 15 of the judgment, this Court dealt with the grounds on which the Proclamation of Emergency was founded. In this context, the letter of the Prime Minister giving the details of law and order situation, which prevailed during the period from January 2007 to October 2007 was taken into consideration. This Court also took note of the speech of the President in which he recalled the circumstances leading to the issuance of Proclamation of Emergency and the other Orders issued pursuant thereto. In Paragraph 19, this Court recounted some of the major incidents of terrorism which occurred in various parts of the country and observed that the wave of terrorism reached its climax on 18th October 2007 when, in two bomb blasts at the rally of a former Prime Minister, about 150 people were killed and 350 seriously wounded. The incident posed grave threat to the national security and also lowered the image of Pakistan in the international community. This Court read with great pain the comments made in the news story titled "The Most Dangerous Nation in the World is not Iraq - It's Pakistan", carried by the Newsweek of 29th October 2007. This Court took the view that unfortunately the Government efforts to combat terrorism bore no fruit.
The learned Attorney General next contended that in Paragraphs 20 and 21 of the judgment, this Court examined the other ground of the Proclamation of Emergency relating to the erosion of trichotomy of powers enshrined in the Constitution of Pakistan on account of actions taken and orders passed in some cases by some of the former Judges, particularly the former Chief Justice of Pakistan. This Court held that the Supreme Judicial Council was virtually rendered ineffective and redundant. It was an extraordinary situation for which the Constitution provided no solution.
In the above context, the learned Attorney General stated that the judgment under review discussed threadbare the principle of separation of powers, which was the cornerstone of the Constitution of Pakistan and held that the former Chief Justice of Pakistan umpteen times interfered with, and interrupted, the working of almost every department/office of the Government and created a situation in which the other branches of the Government were handicapped from performing their functions and discharging duties in accordance with of the Constitution and the law. This Court found that on 3rd November 2007 a situation of chaos and anarchy prevailed in the country. Therefore, the Chief of Army Staff was constrained to take extra-constitutional steps in the larger interest of the State necessity and for the welfare of the people. The learned Attorney General referred to Paragraphs 41 to 51 wherein this Court elaborated the doctrine of salus populi est suprema lex, the nature and the kind of actions envisaged by the said doctrine and the circumstances necessitating proclamation of emergency, particularly in the backdrop of jurisprudence that had developed after going through a historical process spreading over 60 years of the emergence of the State of Pakistan. The learned Attorney ¦ General stated that the issue of reinstatement of the former Judges/Chief Justices of the Supreme Court and the High Courts, who had ceased to hold their office under the Oath of Office (Judges) Order 2007 was dilated upon in Paragraph 53 of the judgment. It was found that the instant case was covered on all fours by the law laid down in Zafar Ali Shah's case. He further submitted that at Paragraphs 63 and 64, this Court took up the issues, such as suspension of certain Fundamental Rights, alleged restrictions on the media and the alleged detention of lawyers-cum-political workers. This Court, with conscious application of mind had due deliberation considered all the points involved in the Constitution Petition. He contended that the earlier findings of this Court were supported from the material available on record. As such, there was neither any misreading nor any error apparent on the face of record warranting review of the impugned judgment.
Syed Sharifuddin Pirzada, Sr. ASC, learned counsel for the Respondent No. 1 submitted that all the issues raised in the Constitution Petitions had been adequately dealt with in the impugned judgment. He confined his submission to the scope of review jurisdiction of this Court. He contended that bare reading of the pleas taken in the review petition made it abundantly clear that the petitioner had, in fact, sought re-hearing of the matter, which was not permissible at law as laid down in the cases of Mian Rafiq Sehgal v. Bank of Credit and Commerce International (Overseas) Ltd (PLD 1997 SC 865), Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363) and Waseem Sajjad v. Federation of Pakistan (PLD 2001 SC 233).
We have heard the learned counsel for the parties as well as the learned Attorney General for Pakistan at length. The Proclamation of Emergency, the Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 were primarily founded on two grounds, viz., incidence of terrorism, militancy and extremism beyond the control of the civilian government, and the erosion of trichotomy of powers in consequence of increased interference in the other branches of the Government by some members of the superior judiciary, particularly the former Chief Justice of Pakistan.
This Court, while declaring the extra-constitutional steps of the Chief of Army Staff of 3rd November 2007 as valid, minutely examined the prevailing conditions and circumstances and recorded its finding on all the points involved in the case and agitated by the learned counsel for the parties. For facility of reference, some excerpts from the judgment are reproduced below:--
RE: MAINTAINABILITY OF THE CONSTITUTION PETITIONS
"13.....However, at the hearing of the petitions both Syed Sharifuddin Pirzada, Sr. ASC as well as Malik Muhammad Qayyum, learned Attorney General for Pakistan candidly conceded that in view of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Zafar Ali Shah's case (PLD 2000 SC 869), this Court would continue to exercise the power of judicial review to judge the validity of the Proclamation of Emergency and the other Orders issued by the President/Chief of Army Staff despite the non obstante clauses contained in the Provisional Constitution Order No. 1 of 2007. We have ourselves considered the question of ouster of jurisdiction of this Court. A somewhat similar objection was dealt with in the case of Zafar Ali Shah (supra) in which the following observations were made:--
"220. It seems quite clear that the Army takeover of 12th October, 1999 was extra-constitutional. The Superior Courts of Pakistan have laid down that they retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases had failed to prevent such objectives of the incumbent administrations.
Thus visualized, the purported ouster in the Proclamation and the PCO 1 of 1999 of the jurisdiction of the Superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/juridical personality, the Superior Courts would continue to exercise this power."
The relevant portion from the Short Order Zafar Ali Shah's case is reproduced below:--
"Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, as amended and the Oath of Office (Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy also suggests that this Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the above petitions. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent, to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution Petitions filed by the petitioners under Article 184(3) of the Constitution are, therefore, maintainable."
RE: TERRORISM, MILITANCY AND EXTREMISM
"19.....The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally. The unabated gruesome terrorist activities worsened the security as also the law and order situation in the country, which called for zero tolerance approach. It is also clear from the letter of the Prime Minister that the Government's efforts to combat terrorism on the civil side unfortunately bore no fruit. It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution."
RE: EROSION OF TRICHOTOMY OF POWERS
"36. A survey of case law makes it abundantly clear that the power and jurisdiction under Article 184(3) of the Constitution cannot be invoked for redress of individual grievances. Unfortunately, the former Chief Justice of Pakistan paid no heed to the judicial precepts. He spared no department, whether judicial, executive or legislative. He took over the functions of superintendence over the subordinate Courts, which was the exclusive domain of the High Courts under Article 203 of the Constitution. He would entertain cases making grievances in matters pending before the High Courts as well as the subordinate Courts or which ought to be dealt with by a District & Sessions Judge. The learned Attorney General submitted that on several occasions, during the hearing of suo motu applications it was pointed out off and on by many counsel that power and jurisdiction under Article 184(3) of the Constitution could not be exercised in those matters, but unfortunately, the former Chief Justice would brush aside such submissions by making awful observations and remarks. According to the learned Attorney General, as a result of the above, the former Chief Justice of Pakistan interfered with and interrupted the working of each and every department/office of the government and created a situation in which the other branches of the government were not allowed to perform their functions and duties in accordance with the provisions of the Constitution and the law. This was a situation of chaos and anarchy for which the Constitution provided no solution and the Chief of Army Staff was constrained to take extra-constitutional steps in the larger interest of the state necessity and for the welfare of the people."
RE: THE SUPREME JUDICIAL COUNCIL OF PAKISTAN
"20. The other set of reasons and circumstances given in the Proclamation of Emergency relates to the trichotomy of powers enshrined in the Constitution of Pakistan, which was eroded as a result of actions taken and orders passed in some cases by some of the former Judges of the Supreme Court and the High Courts, particularly the former Chief Justice of Pakistan. The learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan repeatedly submitted that the Government held the superior judiciary in the highest esteem and believed in its independence. They, however, stated that the Supreme Judicial Council was virtually rendered ineffective and redundant. Pakistan was the first country in Asia, apart from Malaysia, which made a provision in its Constitution for accountability of the Judges of the superior Courts by their own peers. Article 209 of the Constitution provides an exclusive forum called Supreme Judicial Council of Pakistan comprising the Chief Justice of Pakistan, two most senior Judges of the Supreme Court and two most senior Chief Justices of High Court. In case of a Reference against a member of the Council, the next senior most Judge of the Supreme Court, or next senior Chief Justice of another High Court, as the case may, is to act as a member of the Council in his place. On 9th March 2007 the President made a Reference under Article 209 of the Constitution to the Supreme Judicial Council against the former Chief Justice of Pakistan. In the course of the proceedings of the Reference, some objections were raised before the Council. Subsequently, a petition was filed by the former Chief Justice of Pakistan invoking the original jurisdiction of this Court under Article 184(3) of the Constitution against the Reference despite the clear bar of jurisdiction of Courts contained in Article 211. The hearing of the petition of the former Chief Justice of Pakistan continued for nearly two months. Unfortunately, very unpleasant and uncharitable observations were made by some former Judges of the Supreme Court and authors of the petition in the course of the hearing, which tended to bring the Supreme Judicial Council into disrespect and disrepute among the masses. Such a conduct on the part of some former Judges was incompatible with their office. Here, we may cite, with advantage, a passage from page 270 of the book titled "Justice at Cross Roads" by V.R. Krishna Iyer, a former Judge of the Supreme Court of India and a scholar of great repute, which reads thus:--
The bench is a hallowed seat and judges must observe a gracious port and presence without making derisive comments and digs at lawyers and litigants who could as well retort and humble the bench in public. Offensive observations, even regarding other judges and judgments, are not uncommon with little-minded judges. Comic performance cannot be fobbed off on a submissive Bar, David Pannick cites some British instances which may have Indian parallels:
"Judicial humour can turn into judicial scorn. The eighteenth century Scottish judge, Lord Braxfield, was a disgrace to the age'.
He took pleasure intauntingly repelling the last despairing claims of a wretched culprit, and sending him to Botany Bay or the gallows with an insulting jest'. Robert Louis Stevenson based Lord Hermiston upon Braxfield. In
Court, Hermiston took his ease and jested, unbending in that solemn place with some of the freedom of the tavern, and the rag of man (the defendant) was hunted gallowsward with jeers'. Braxfield and his contemporaries have a special place in the annals of judicial misbehaviour. They werecynically indifferent to the proprieties of the Bench to an extent which now may well seem incredible. Uncouth in appearance, profane in speech, frequently harsh and contemptuous in the discharge of their judicial functions, addicted to the wildest eccentricities, and exhibiting at all times are decided penchant for deep potation and the course and boisterous jocularity of the tavern...', they lacked all judicial qualities." (David Pannick-Judges-Oxford University
Press, 1988 Edn., p.83)
Some judges do not care to listen or are too loquacious and by ¦ frequent interruptions make coherent argument impossible. There are many other ways in which judges can disrupt fair hearing. Performance and discipline are components of judicial decorum."
"11. A perusal of the above clause (clause 5 of Article 209) indicates that on an information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, he shall direct the Council to inquire into the matter. The above clause does not admit filing of a Constitutional petition for a direction to the Supreme Judicial Council or to the President to initiate proceedings of a judicial misconduct against a Judge of a Superior Court by a practicing lawyer or any other citizen of Pakistan. The wisdom seems to be that in order to keep the Judges free from being pressurized through frivolous Constitutional petitions or other legal proceedings for filing of a Reference, the framers of the Constitution provided above mechanism. This Court or a High Court cannot take upon itself the exercise to record even a tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution as it will be contrary to the language and spirit of the said Article."
In the above case, it is clearly laid down that direction cannot be issued to the Supreme Judicial Council to initiate proceedings of judicial misconduct against any Judge of a superior Court at the instance of a lawyer or a citizen. The above judgment in clear terms prohibits the Supreme Court as also a High Court to take upon themselves the exercise to record even tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution. On the same analogy, no direction could be issued to the Supreme Judicial Council to stay its hands off the Reference filed against the former Chief Justice of Pakistan, what to speak of quashing the Reference altogether. During the course of arguments, the learned Attorney General stated at the bar that a former Judge of the Supreme Court, in connivance with a Banking Judge for whom, in turn, he managed to get his tenure extended, purchased property worth more than Rs. 20,000,000/- for a petty consideration of Rs. 4,000,000/-. The Government very much wanted to file a Reference against him before the Supreme Judicial Council, but refrained from doing so in view of the treatment meted out to the Reference filed against the former Chief Justice of Pakistan."
"50. It is clear from the material placed on record by the respondents and the circumstances of the present case that the situation which led to the issuance of Proclamation of Emergency and the two other Orders was quite similar to the one that prevailed in July 1977 and October 1999. In 1977 almost in an identical situation martial law was imposed and the Constitution held in abeyance. The action of the Chief of Army Staff was upheld by this Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) on the touchstone of state necessity. The Chief Martial Law Administrator was possessed with the power to amend the Constitution. The Parliament validated all the actions and constitutional amendments of the Chief Martial Law Administrator through the Constitution (Eighth Amendment), Act, 1985 including Article 58(2)(b) of the Constitution, which conferred power on the President to dissolve the National Assembly and to direct holding of fresh elections."
"52. However, in the present case, soon after the imposition of emergency and the promulgation of the Provisional Constitution Order 2007, the Government announced the holding of election on schedule. The tug of war launched by the former Chief Justice of Pakistan and some other former Judges of the Supreme Court and the High Courts against the other branches of the Government made them non-functional and ineffective. Practically, the country had been driven to a state of lawlessness. The situation that prevailed on 3rd November 2007 could also adversely affect the defence capability of the country. From this perspective, the present situation was even worse than the one that prevailed in October 1999, which was fully covered by the law laid down in Zafar Ali Shah's case at page 1169 of the judgment, where this Court held as under:--
"252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society."
RE: REINSTATEMENT OF THE FORMER JUDGES
As for the reinstatement of the former Judges of the Supreme Court and the High Courts who ceased to hold office under the Oath of Office (Judges) Order, 2007, we have already held in the Short Order that the learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who were not given, or who did not make, oath under the aforesaid Order had ceased to hold their respective offices on 3rd November 2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transaction. During the course of arguments, both the learned counsel for the petitioners repeatedly submitted that the Government ought to have adopted constitutional means to meet the situation that prevailed in the country on or before 3rd November 2007. However, they failed to point out any particular course that had been provided under the Constitution to meet a situation where any organ of the State, particularly when some former Judges of the superior Courts transgressed their constitutional limits and took upon themselves the execution of the functions of the executive or legislative branches of the Government, thereby bringing the functioning of the Government to a standstill. The learned Attorney General for Pakistan vehemently contended that the treatment the Presidential Reference filed against the former Chief Justice of Pakistan received at the hands of the former Judges of the Supreme Court closed the door for the Government to resort to the constitutional remedies provided for the accountability of the Judges of the superior Courts. According to him, the practical effect of the order dated 20th July 2007 passed by a majority of 10 to 3 in Constitution Petition No. 21/2007 was that the provisions of Article 209 of the Constitution were rendered nugatory and redundant. He further submitted that on the eve of hearings before the Supreme Judicial Council of Pakistan, lawyers-cum-political workers would enter the Supreme Court premises, raise slogans against the members of the Supreme Judicial Council and interrupt working of the Council as well as the Supreme Court Benches. The Court premises were practically turned into a ground exclusively meant for political processions and rallies, which badly impaired the sanctity of the Court. The learned Attorney General further stated that on the very first date of hearing of the Reference before the Supreme Judicial Council, the former Chief Justice did not sit in the vehicle made available to him at his official residence for traveling to the Supreme Court to attend the proceedings of the Council and insisted on walking on foot along with his family members. According to the learned Attorney General, it was an act unbecoming of a person who happened to be the Chief Justice of Pakistan and thus, the dignity and prestige of the highest judicial office of the country were disregarded. He submitted that the law enforcing personnel on duty requested the former Chief Justice time and again to use the vehicle provided to him for going to the Supreme Court, but he did not accede to their request. Hence, the behaviour of the former Chief Justice created an unpleasant scene. At the top of it, one of the former Judges took suo motu action of the matter and created an embarrassing situation for the administration - a situation that was the creation of the former Chief Justice. The learned Attorney General lamented on the fact that the media, particularly some private T.V. channels, took the occasion as the high time of their business and never realized the sensitivity of the issue. Instead of confining to their true role of relaying information to the masses, they turned their talk shows into an exercise aimed at advocating a particular point of view.
The learned Attorney General also submitted that a politician-cum-lawyer, who was one of the counsel of the former Chief Justice of Pakistan, used all his political skills and expertise in turning the Reference into a political gambol. He used every occasion in the course of the proceedings of the Reference and later the Constitution Petition filed by the former Chief Justice of Pakistan against the said Reference to gain political mileage. He organized political rallies for the former Chief Justice of Pakistan to address the bar associations throughout the width and breadth of the country. He became a personal driver of the former Chief Justice and also intended to ply a coaster for the other former Judges. Many former Judges of the High Courts would participate in those events all of which were calculated to destabilize the Government machinery under a scheme. Every speaker on the stage presided over by the former Chief Justice would make a political speech and at the end the former Chief Justice would deliver speech on the `rule of law'. It was a mockery of the Constitution and the law.
The learned Attorney General for Pakistan next submitted that the former Chief Justice as well as the former Judges of the Supreme Court created an atmosphere of extreme uncertainty in the matter of hearing/decision of the case relating to the election of the President of Pakistan. In the first round, the matter was heard for a very long time and ultimately the petitions were found to be not maintainable by a majority of six to three. Thereafter the nomination papers of the incumbent President were accepted by the Chief Election Commissioner through a well reasoned order, which was upheld by this Court vide judgment dated 19th November 2007 passed in Constitution Petition No. 73/2007 and Criminal Original Petition No. 51 of 2007. At the scrutiny of the nomination papers for the election of the President, some mischief mongers attempted to interrupt the functioning of the Chief Election Commissioner of Pakistan and created a situation of law and order. The law enforcing agencies had to intervene to ensure that the aforesaid constitutional functionary of the State was not prevented from performing his constitutional functions. However, the former Chief Justice of Pakistan, in line with his past conduct, initiated suo motu action against the concerned public servants and compelled the Government to take instant arbitrary action against those officials without waiting for the result of the inquiry ordered by the Government into the matter. Rather he never allowed the Government to proceed with the aforesaid inquiry. According to the learned Attorney General, this was not the first time that the State functionaries were intimidated, frightened and put in an embarrassing situation by the former Chief Justice. The suo motu actions of the former Chief Justice had created an atmosphere in which no senior officer was willing and ready to be posted in the administration of Islamabad Capital Territory.
The learned Attorney General for Pakistan further submitted that after the acceptance of the nomination papers for the Presidential election, the matter was again brought before the Supreme Court in the second round. The hearing continued for nearly two months. During this period the election to the office of President took place and though the incumbent President secured the highest votes (about 98%), yet the former Judges passed an order restraining the Chief Election Commissioner from issuing notification of the result of the election. The former Chief Justice of Pakistan kept changing the composition of the Bench, rather increased from time to time the number of the Judges on the Bench. Firstly, a Bench of 9 Judges was constituted. Later the number was raised to 11. The matter of election of the highest office of the country required urgent resolution in the supreme national interest. The situation was being closely monitored at the international level, particularly in view of the position taken by the Government of Pakistan in the war on terrorism. Summing up his arguments, the learned Attorney General submitted that the above uncertain state of affairs badly impaired the image of the country among the comity of nations, negatively impacted on the security as also the law and order situation in the country and adversely affected the economic growth.
We have given deep consideration to this aspect of the matter. The learned counsel for the petitioners have not been able to rebut the submissions made by the learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan on the above issue. The facts and circumstances narrated by the learned Attorney General for Pakistan in the preceding paragraphs presented an alarming situation and unfortunately the concerned stakeholders in the judicial and the legal arena of the time never realized the implications of the situation to which the country had been driven. The State functionaries were pushed against wall and no way out was left for them. Thus, the action of 3rd November 2007 had become inevitable, which had been taken by the Respondent No. 2 to save the country from chaos and anarchy. Being a step taken in the interest of State necessity and for the welfare of the people, this Court through the Short Order dated 23rd November 2007 validated the same."
"61. The cases of the former Judges of the superior Courts who ceased to hold office by virtue of the Oath of Office (Judges) Order, 2007, are fully covered by the law laid down in Zafar Ali Shah's case and cannot, be dealt with differently. Further, soon after the action of 3rd November 2007 the process for filling the vacancies was undertaken and consequently appointments were made in the Supreme Court as well as in the High Courts. The Constitution stands revived on and from 15th December 2007 and is in full force. The action in respect of the former Chief Justice and former Judges has attained finality and being a fait accompli the same is even otherwise not reversible. The present dispensation attracts the provisions of Article 264 of the Constitution, which, inter alia, says:--
"Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law..."
We, therefore, reaffirm, uphold and validate the action taken by the Respondent No. 2 under the Oath of Office (Judges) Order, 2007 in the light of the law laid down in Zafar Ali Shah's case. Upon Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order of 2007, the former Chief Justice of Pakistan and other former Judges of superior Courts had ceased to hold office. Thereafter any order passed or function performed by them was void, coram non judice and of no legal effect or consequence."
RE: SUSPENSION OF FUNDAMENTAL RIGHTS
"63. We gave some thought to the issue of suspension of Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution under the Provisional Constitution Order No. 1 of 2007. During the course of arguments, on a Court query, the learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan stated that as soon as the objects of the emergency were achieved and the situation returned to normalcy, the emergency would be lifted immediately. Considering the positive assurance given on behalf of the Government, no order was deemed to be called for on this aspect of the matter.
RE: ALLEGED RESTRICTIONS ON THE MEDIA
"64. As to the alleged restrictions on the media, or the alleged detention of certain lawyers-cum-political workers, suffice it to observe that the matter involved individual grievances of the concerned T.V. channels and the alleged detenues, which could not be properly adjudicated upon in these proceedings. The owners of those T.V. channels, as also the alleged detenues were at liberty to seek remedy at the appropriate forums in accordance with law. However, all through the emergency, there were no restrictions on the print media and the viewpoint of the citizens got full coverage. The critics of the actions of 3rd November 2007 even got extra coverage, rather undue projection. During this period yellow journalism touched new heights and attempts to malign the institutions of the State were made, which was an unhealthy sign in this noble profession. It should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere."
RE: DURATION OF ORDINANCES/LEGISLATIVE MEASURES
"71. In our view, the Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which were in force at the time of, or during the period for which the Proclamation of Emergency of 3rd November, 2007 held the field, would continue to be in force by virtue of the Provisional Constitution Order, 2007, read with Article 270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate legislature. There would be no question of expiry of these Ordinances in terms of Article 89(2), or as the case may be, under Article 128(2) of the Constitution."
In the Short Order followed by the detailed judgment, we have held that the extra-constitutional measures of 3rd November 2007 were taken by the Chief of Army Staff in the larger interest of the State necessity and for the welfare of the people under the doctrine of salus populi est suprema lex. The grounds of the Proclamation of Emergency have been duly considered in the judgment. It is concluded that a situation had arisen under which the constitutional machinery had come to a grinding halt and the extra-constitutional measures had become inevitable. On 12th October 1999, in a somewhat similar situation, the Chief of Army Staff proclaimed emergency, held the Constitution in abeyance, issued the Provisional Constitution Order No. 1 of 1999 and assumed the position and status of the Chief Executive of the country with power to amend the Constitution. He also issued the Oath of Office (Judges) Order, 2000 in pursuance whereof a number of the then learned Judges of the Superior Courts including the then Chief Justice of Pakistan ceased to hold their office. The former Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry and former Senior Puisne Judge, Justice Rana Bhagwandas, amongst others, not only took oath under the Oath of Office (Judges) Order, 2000, but were also signatories to the judgment of this Court in Syed Zafar Ali Shah's case wherein this Court declared the above actions of the Chief of Army Staff as valid. In these circumstances, we have not found any distinguishing features between the actions of 3rd November 2007 and those of 12th October 1999 and 26th January 2000.
The Superior Courts as well as the successive Parliaments in Pakistan have recognized the exercise of power by the Chiefs of Army Staff to amend the Constitution during the period of constitutional deviation, which is borne out from the judgments of this Court in the cases of Begum Nusrat Bhutto, Syed Zafar Ali Shah and Tika Iqbal Muhammad Khan as well as through the Eighth and the Seventeenth Amendments of the Constitution. Both the said constitutional amendments reaffirmed/validated the amendments brought about in the Constitution through the President's Orders/Legal Framework Order. The amendments made in the Constitution through the President's Orders/Legal Framework Order have substantially remained unaffected. Therefore, consistent with the previous constitutional developments of Pakistan, this Court in the instant case held that General Pervez Musharraf, Chief of Army Staff/President, in the larger public interest and the safety, security and integrity of the country was entitled, during the interregnum, to perform--
(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tended to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
No. 6 of 2007) and all other laws, orders made, proceedings taken, appointments made, actions taken or done on or after 3rd November 2007, notifications, rules, orders and byelaws, which were in force at the time of or, during the period of operation of Proclamation of Emergency have been validly made, taken or done and shall continue in force subject to their repeal, alteration or amendment as contemplated by Article 270AAA of the Constitution. The question of automatic repeal of the Ordinances, which were in force at the time of, or issued during, the Proclamation of Emergency of 3rd November 2007, in terms of Article 89(2) or Article 128(2) of the Constitution would not arise. In our view, all the acts and legislative measures including the amendments made in the 1973 Constitution and all other actions taken as aforesaid, have been taken or done in the interest of State necessity to advance and promote the good of the people for the ordinary orderly running of the State. The same are, therefore, reaffirmed.
As regards the reinstatement of the learned former Chief Justices and Judges of the Superior Courts, who were not given, or who had not taken, oath under the Oath of Office (Judges) Order, 2007, this Court examined the issue with all its ramifications and found that they had ceased to hold their office on 3rd November 2007. Later, by virtue of President's Orders No. 8 and 9 of 2007 dated 14.12.2007, they have been retired and held entitled to draw pensionary benefits accordingly. On 15th December 2007, the emergency has been revoked by the President by the Revocation of Proclamation of Emergency Order, 2007. The Order No. 1 of 2007 has been repealed. However, the aforesaid revocation or repeal would not revive anything not in force or existing at the time of the revocation or repeal, or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007. The action in respect of the former Chief Justices and former Judges, being a fait accompli and hit by the doctrine of past and closed transaction cannot be reopened and is irreversible. Reference to Article 209 of the Constitution in the matter is inapt, as the said provision cannot be attracted where the Constitution is held in abeyance. Thus, the case of such Judges is fully covered by the law laid down in Zafar Ali Shah's case.
The Constitution of the Islamic Republic of Pakistan, 1973 has been revived. The Chief Justice of Pakistan and the other Judges of the Superior Courts have taken oath of office as provided by the Constitution. Being holders of constitutional office, all such Judges including the Chief Justices shall be governed by the Constitution. The rights, privileges or obligations so acquired, accrued or incurred, including their tenure of office are protected under the Constitution.
No exception can be taken to the conclusions arrived at, the findings recorded and the directions given in the Short Order and the detailed judgment. The petitioner cannot be allowed to re-agitate the same points, which have already been dealt with and determined by this Court. In Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. (PLD 1997 SC 865), which was quoted with approval in Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233) it was held that--
"Review proceedings cannot partake re-hearing at a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation, and have a material bearing on the final result of the case."
The petitioner has not been able to make out any case for review of the Short Order and the detailed judgment. Therefore, this review petition is dismissed.
The above are the reasons for our Short Order dated 15th February 2008.
(J.R.) Petition dismissed.
PLJ 2009 SC 85
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD SADIQ and others--Appellants
versus
SUPERINTENDENT OF POLICE and others--Respondents
Civil Appeals No. 1341, 1648, 1700, 1880, 1893, 1923 of 2005, C.As. No. 17, 20, 21 of 2006, CPLA No. 2870-L of 2004, Civil Appeals No. 1649, 1680, 1894 of 2005, C.As. No. 222, 223, 224 of 2006 and CPLA
No. 2947-L of 2003, decided on 19.5.2008.
(On appeal from the judgment dated 15.7.2003 in Appeal No. 407/2002 passed by the Punjab Service Tribunal, Lahore).
Punjab Civil Servants (Efficiency & Discipline) Rules, 1975--
----Rr. 4(1)(b)(i) & 29--Constitution of Pakistan, 1973, Art. 212(3)--Leave to appeal--Inflicting punishment to a civil servant--Held: No doubt departmental authority while inflicting punishment on a civil servant to a lower post or time scale or to a lower stage in time scale, is competent to impose any sort of penalty, yet it cannot be inflicted in disregard of Fundamental Rule 29, which provides that if a Govt. servant on account of misconduct or inefficiency is reduced to a lower grade or post, or to a lower stage in his time scale, then the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent--As no time had been fixed or specified in the impugned orders of the competent authorities for which penalty was imposed, so they were not sustainable.
[P. 95] A
Punjab Civil Servants (Efficiency & Discipline) Rules, 1975--
----R. 4(1)(b)(i)--Constitution of Pakistan 1973, Art.
212(3)--Reduction to lower post--Connotation and import of--Held: Reduction to the "lower post" does not mean reduction to the "lowest post"--It implies that reduction to a lower post should normally be limited to one stage only and not beyond that--However in time scale it may be to the extent of any stage--Use of word a' is significant because it being multifaceted denotes not onlyone' or `any' but at times is used in plural sense, as well. [P. 96] B
2005 SCMR 774; 2004 SCMR 74; 2004 SCMR 647; 2005 SCMR 436; 1993 SCMR 122 & 2002 SCMR 775.
Mian Mehmood Hussain, ASC for Appellant (in C.A. 1341 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. 1341 of 2005).
Mian Mehmood Hussain, ASC for Appellant (in C.A. No. 1648 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 1648 of 2005).
Mian Mehmood Hussain, ASC for Appellant (in C.A. No. 1700 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 1700 of 2005).
Mian Mehmood Hussain, ASC for Appellant (in C.A. No. 1880 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 1880 of 2005).
Mian Mehmood Hussain, ASC for Appellant (in C.A. No. 1893 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 1893 of 2005).
Nemo for Appellant (in Civil Appeal No. 1923 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 1923 of 2005).
Mian Mehmood Hussain, ASC for Appellant (in C.A. No. 17 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 17 of 2006).
Appellant in person (in C.A. No. 20 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 20 of 2006).
Appellant in person (in C.A. No. 21 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.A. No. 21 of 2006).
Nemo for Appellant (in C.P.L.A. No. 2870-L of 2004).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.P.L.A. No. 2870-L of 2004).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 1649 of 2005).
Mr. G.N. Gohar, AOR for Respondent (in C.A. No. 1649 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 1680 of 2005).
Nemo for Respondent (in C.A. No. 1680 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 1894 of 2005).
Mian Mehmood Hussain, ASC for Respondent (in C.A. No. 1894 of 2005).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 222 of 2006).
Mr. Arshad Ali Chaudhry, AOR for Respondent (in C.A. No. 222 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 223 of 2006).
Mian Mehmood Hussain, ASC for Respondent (in C.A. No. 223 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A.
No. 224 of 2006).
Mian Mehmood Hussain, ASC for Respondent (in C.A. No. 224 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.P.L.A. No. 2947-L of 2003).
Respondent in person (in C.P.L.A. No. 2947-L of 2003).
Date of hearing: 19.5.2008.
judgment
Ch. Ejaz Yousaf, J.--These fifteen appeals and two petitions are directed against separate judgments of different dates passed by the Punjab Service Tribunal, since a common question of law is involved in all these cases, therefore, we purpose to decide the same through this common judgment.
CA 1341/2005
In Civil Appeal No. 1341 of 2005, allegation against the appellant was that he had taken into possession Motorcycle No. 574/OKB under Section 550 Cr.P.C. vide Rapt No. 31 dated 20.2.1998 from Abdul Sattar, who was an accused of case FIR No. 420 dated 9.12.1997 under Section 392 PPC registered at Police Station B-Division, Okara and later on its release to the real owner, namely, Nazar Hussain as such he committed misconduct besides showing in-efficiency as Sub-Inspector of Police then posted at Police Station Sadar, Renalakhurd. After preliminary enquiry conducted by the DSP/CIA Okara, he was to proceed against on the charges detailed in the statement of allegation and charge sheet dated 13.5.2000. ASP/SDPO was appointed as enquiry officer. The appellant submitted reply to the charge sheet denying all the allegations being false and baseless. However, enquiry officer submitted adverse enquiry report against him and the appellant was directed to appear before the Superintendent of Police, Okara for personal hearing on 26.11.2000, who after completing the formality of hearing, ultimately imposed major penalty of compulsory retirement on the appellant. Being aggrieved he filed appeal before the Deputy Inspector General of Police, Lahore, Range, Lahore, which was dismissed vide order dated 7.4.2001. Thereafter he filed revision petition before the Inspector General of Police, Punjab, Lahore, who after hearing the appellant passed order of his re-instatement in service but at the same time, reduced him in rank from S.I to ASI from the date of compulsory retirement from service. The said order was assailed by the appellant in service appeal before the Punjab Service Tribunal, which was dismissed vide the impugned judgment.
C.A. 1648/2005
In Civil Appeal No. 1648 of 2005, appellant Muzaffar Ali, while posted as SHO Police Station Badiana, District Sialkot, was found guilty of misconduct as he had allegedly taken bribe in the sum of Rs. 10,000/- while conducting raid at the residence of Mst. Irshad Bibi. The appellant was charge sheeted and accordingly a show cause notice was also issued to which he submitted reply, denying the allegation. Deputy Inspector General of Police Gujranwala, thereupon deputed ADIG Gujranwala range to hold departmental enquiry as a result whereof the appellant was found guilty. On receipt of report the DIG passed order dated 26.12.2000 thereby inflicting major penalty of reduction in rank i.e. from Inspector to Sub-Inspector. The appellant preferred a departmental appeal which was rejected vide order dated 31.8.2001. He then approached the Punjab Service Tribunal, Lahore, vide Appeal No. 2164 of 2001 which too, was dismissed vide judgment dated 2.10.2002, impugned herein.
CA 1700/2005
In C.A. No. 1700/2005 the appellant while posted as ASI in Traffic Staff, Faisalabad, was proceeded against on the charges, inter-alia, that he had accepted Rs. 1,000/- as illegal gratification/monthly for extending favour to Sajjad Ali of Sunny Motor Workshop for plying vehicles without route permits under his control. Enquiry was dispensed with in view of sufficient incriminating evidence on record and ultimately penalty of reduction in rank from ASI to Head Constable was inflicted on him vide order dated which was upheld by the appellate and revisional authorities in the hierarchy of the department. Being aggrieved the appellant approached the Service Tribunal through Appeal No. 375/2001 which was dismissed vide judgment dated 22.5.2002 as no legal infirmity was found in the impugned order.
CA 1880/2005
In Civil Appeal No. 1880 of 2005 the appellant while posted as Circle Audit Officer in the Local Fund Audit Department, was charge sheeted on account of financial irregularities, including allegation of preparation of bogus/fake pension payment orders of retired employees, corruption, inefficiency and misconduct etc. Enquiry was held. According to the finding of the enquiry officer, nine, out of fourteen charges, were proved against him. Resultantly, major penalty of reduction in rank was inflicted upon the appellant vide order dated 4.8.2000. The appellant preferred departmental appeal which was rejected on 7.12.2001. Revision petition filed against the said order was also rejected on 26.1.2002. The appellant then approached the Service Tribunal vide Appeal No. 386/2002. Learned Tribunal while dismissing the appeal held that despite punishment of reduction in rank awarded to a civil servant, it cannot stop the competent authority from reconsidering him for promotion to the grade which he had lost in consequence of punishment at any subsequent stage, meaning thereby that no civil servant stood condemned for ever. It was further held that the appellant was not debarred from being reconsidered for promotion at any subsequent stage, if improvement was shown.
CAs. 1893-1894/2005
Appellant Zubaida Sahar, Deputy District Education Officer W(EE) in C.A. 1893/2005 has filed this appeal against the judgment dated 27.4.2002 passed by the Punjab Service Tribunal, Lahore. The Secretary Education Government of Punjab, has also filed C.A.1894/2005 against the said judgment. Facts of the case are that Appellant Zubaida Sahar was charge sheeted for being guilty of misconduct on the ground that she had made irregular appointments of PTC teachers in Mian Channu and Markaz Talamba in the year 1995. The appellant submitted a detailed reply admitting the allegation but stated that she had done so under tremendous political pressure. After conducting enquiry, the appellant was imposed upon major penalty of reduction of three steps down in time scale, vide order dated 31.12.1997, against which departmental appeal was filed but was of no avail. The appellant then preferred Appeal No. 808 of 1998 before the Punjab Service Tribunal, Lahore. The Tribunal while dismissing the appeal converted the penalty of "reduction of the three steps down in time scale" into "reduction to a lower stage in pay scale".
CA No. 1923/2005
In Civil Appeal No. 1923 of 2005, allegation against the appellant was that he had fraudulently drawn a sum of Rs. 2,10,984/- as advance for purchase of 472 bags chick starter from M/s International Feeds, Lahore and bogus entry was shown in the feed register. Payment was shown to have been made to the firm concerned but physically no feed was purchased/received. After preliminary enquiry, charge sheet was served on the appellant on 30.10.1997 along with the statement of allegations which was replied. The Enquiry Committee found the appellant guilty of the charges and recommended for imposition of major penalty of reduction by five stages in the time scale and entry of the same in his ACR vide order dated 30.6.1998. Being aggrieved, the appellant filed departmental appeal before the Secretary Live Stock & Dairy Development, Lahore which was dismissed vide order dated 28.01.1999. The said order was assailed by the appellant in service appeal before the Punjab Service Tribunal, which, was dismissed.
CA.No. 17/06
In Civil Appeal No. 17 of 2006, allegation against the appellant was that while posted at P.S. Shalimar, he had failed to perform his official duty in an appropriate manner. Show-cause notice dated 9.3.2000 was served on him, to which he furnished reply. However, it was found unsatisfactory by the S.P. Cantt. Div. Lahore. The appellant was held guilty of the charge and awarded punishment of reduction in pay by two stages. Being aggrieved he filed departmental appeal before the Deputy Inspector General of Police Lahore who rejected his appeal vide order dated 1.2.2001. Thereafter he filed revision petition before the Addl: I.G. Police, Punjab which too was rejected vide order dated 20.2.2002. The said order was assailed before the Punjab Service Tribunal, Lahore through appeal which was dismissed vide the impugned judgment.
C.A.No. 20 of 2006
In Civil Appeal No. 20 of 2006, allegation against the appellant was that he had failed to perform his official duties in a proper and appropriate manner in that a copy of order dated 10.9.2003 passed by the Lahore High Court, Lahore along with a Writ Petition No. 12036/03 (Muhammad Latif Vs. S.H.O. etc,) was received at P.S. Kot Momin, whereby, local Police was abstained from causing harassment to the petitioner in that case i.e. Muhammad Latif s/o Muhammad Din, caste Dindar r/o Kot Momin, Tehsil Bhalwal, District Sargodha. The appellant despite knowledge of the above order unauthorizedly summoned petitioner Muhammad Latif in a civil matter. DSP/Hqrs, Sargodha was detailed to conduct an inquiry into the matter who, vide his report dated 13.2.2004, held the appellant guilty. The appellant filed reply to the show-cause notice on 27.2.2004. After affording opportunity of personal hearing, the authority imposed penalty of withholding of promotion for one year on the appellant vide his order dated 15.3.2004. Being aggrieved the appellant filed appeal before the D.I.G. Police, Sargodha denying all the allegations. D.I.G. vide his order dated 19.1.2005 added the punishment of reduction in pay by five stages to the punishment of withholding of promotion for one year already awarded to him by the DPO, Sargodha. The said order was assailed by the appellant in service appeal before the Punjab Service Tribunal. The Tribunal dismissed the appeal maintaining the punishment of withholding of promotion for one year as the period of one year for which the said punishment was awarded already expired on 15.3.2005. However, the punishment of reduction in pay by five stages, was converted into reduction in pay by two stages.
CA No. 21/06
In Civil Appeal No. 21 of 2006, the appellant was proceeded against as a co-accused, under the Punjab Removal from Service (Special Powers), Ordinance, 2000 on the allegation that on receiving file No. FT-1587 of plot No. 871 Block-D Faisal Town Scheme in LAC Branch, on 25.6.2001, the appellant Akbar Ali, the then Patwari, firstly raised objection that fresh Fard-e-Malkiat and Chant of Khata should be added, then sent the file to Exemption Branch without getting it signed/routed through Tehsildar and LAC. On the fresh application from the applicant, the appellant made a report on 17.7.2001 in file No. FT-1587 and cleared the file without bringing it into the notice of his superiors and that in file No. 1045 of plot No. 720 Faisal Town Scheme (along with three other attached files), Mr. Munir Ahmad, Patwari, made his report and the appellant/Qanungo verified the same. Instead of sending the file to Tehsildar of LAC Branch or to LAC they put fake signatures of Malik Tasawar Ejaz, LAC on the file and forwarded the same to the Deputy Director (Exemption). Both the officials confessed their guilt before Malik Tasawar Ejaz and Mr. Rizwan Nazir, LACs. Inquiry was held and according to the report of Inquiry Officer, charges against the appellant were proved, consequently major penalty of reduction in pay by three stages in time scale was inflicted on him. After exhausting the departmental remedy, the appellant filed appeal before the Punjab Service Tribunal which could not find favour and was dismissed vide, the impugned judgment.
CA 1649/2005
Civil Appeal No. 1649 of 2005 has been filed by the Secretary Housing, Urban Development & Public Health Engineering Department, Punjab and two others against the judgment dated 13.9.2005 passed by the Punjab Service Tribunal in Appeal No. 2804 of 2004 whereby penalty of "reduction in pay to lowest stage" on the respondent was ordered to be changed as "reduction in pay to lower stage, (one stage)". In this case the respondent while posted as Assistant Director, Town Planning, Multan Development Authority (MDA) Multan, was proceeded against under Punjab Removal from Service (Special Powers) Ordinance, 2000, on the allegation that he had unauthorisedly changed the building plan thus providing favour to the owners of the building in construction, against the actual sanctioned plan/building bye laws. Enquiry was held. The appellant, having been found guilty, was imposed upon penalty of reduction in pay scale to the initial stage, with the warning to be careful in future. After exhausting his departmental remedy the appellant approached the Punjab Service Tribunal vide Appeal No. 2804/2004 wherein, the above impugned order was passed.
C.A. 1680/2005
Respondent Syed Akhtar Raza Zaidi, Deputy Director Food, Multan, was proceeded against on the charges inter-alia, for not carrying out mandatory periodic inspections of P.R. Centres of his division; for not distributing the insecticide within the specified period; for not ensuring daily cleaning and un-hindered ventilation of wheat stocks, etc. Since the allegations were denied therefore, enquiry was conducted. Having been found guilty, major penalty of reduction in rank to the lower post was inflicted on him. Appeal bearing No. 398/2003 was preferred by the respondent which was partially allowed and it was ordered that since no period was specified while inflicting the major penalty of reduction in rank to the lower post on the respondent, therefore it shall be for a period of two years.
CAs. 222 to 224 of 2006 & CPLA 2870-1/2004
Civil Appeals No. 222 to 224 of 2006 have been filed by the Chief Secretary, Punjab against the employees, namely, (i) Muhammad Ehsan Khan Sadozai, (ii) Malik Shaukat Hussain, and (iii) Tanvir Elahi, whereas CPLA No. 2870-L/2004 has been filed by Muhammad Ehsan Khan Sadozai against the same judgment.
Allegation of embezzlement of certain amounts in token tax, registration fee, recovery of C.V.T., etc. were leveled against the respondents/employees for causing loss to the government-exchequer. Show-cause notices were accordingly replied. Enquiry was conducted and the Enquiry Officer the District Officer/Director Excise & Taxation (Region A), Lahore, recommended stoppage of one annual increment for a period of one year in the case of Tanveer Elahi, Malik Shaukat Hussain and Muhammad Ehsan Khan Sadozai, whereas, Shaukat Hussain and Nadeem Siddiqui, Junior Clerks were recommended for stoppage of two increments for a period of two years. The authority did not agree with the recommendations of the enquiry officer and issued notice to the respondents calling upon them, as to why the penalty be not enhanced? The notices were duly replied. The authority, after extending personal hearing to the respondents, imposed the following penalties on them:-
Shaukat Hussain and Muhammad Naeem Siddiqui, Junior Clerks were removed from service, whereas Tanveer Elahi, E&T Officer/Motor Registering Authority, Multan, was reduced to lower post of Assistant Excise & Taxation Officer, Multan; Malik Shaukat Hussain, Assistant Excise & Taxation Officer, Multan, was imposed upon penalty of reduction to lower post of E&T Inspector, whereas Muhammad Ehsan Khan Sadozai, E&T Inspector, Multan was penalized by reduction to the initial stage in his pay scale."
Their respective appeals to the Chief Secretary, Government of the Punjab, were rejected on 6.2.2004. The respondents then filed separate appeals before the Punjab Service Tribunal. The Tribunal while dismissing the appeals altered the penalty of Mian Shaukat Hussain and Muhammad Naeem Siddiqui from "removal from service" into "reduction to the initial stage in pay scale for a period of two years".
C.P.L.A. No. 2947-L/2003
In C.P.L.A. No. 2947-L of 2003 the respondent while posted as District Food Controller, Kasur was served with charge sheet, containing allegations, inter-alia, that he did not carry out inspections of P.R. Centre Khuddian; had also failed to take appropriate remedial measures to improve the quality; that on 10.1.2001, at the time of unloading, the condition of the stocks was highly infested and excessive dust was mixed, for which, he failed to ensure the dispatches of FAQ wheat to Lahore due to his lack of supervision and control. Respondent filed reply to the charge sheet denying the allegations in general. Enquiry was held. The authority did not find the reply satisfactory and proceeded to impose on him the penalty of reduction to a lower post. The review petition filed by him was also not decided as such he filed Service Appeal No. 1082/2003 before the Service Tribunal. The Tribunal dismissed his appeal, however, the period of reduction in rank was set as one year.
It has been mainly, contended by the learned counsel for the appellants/petitioner that while imposing penalties on the appellants/petitioner, amounting to reduction to lower posts, or time scale, or to lower stages in time scale, within the purview of rule 4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, since, in most of the cases, either the appellants/petitioner have been reverted to lower posts more than one stage or reduced in time scale without specifying time, or the time specified does not correspond with gravity of offence, therefore, the impugned orders are not sustainable. Learned counsel has maintained that the learned Service Tribunal has also gone wrong in law by upholding the same.
Ms. Afshan Ghazanfar, learned Assistant Advocate General, Punjab, has though stated that in view of the evidence in the above cases the appellants/petitioner were rightly punished as charges against them were proved and their guilt was fully brought home yet, candidly conceded that while imposing penalty under the above rules, it was incumbent on the authority to have specified period for which the penalty was imposed but in most of the cases period has not been specified which being contrary to law is unjustified. She further contended that since in C.A. No. 1680/2005, CAs. No. 222 to 224 of 2006 and CPLA No. 2870-L/2004, and in CPLA No. 2947-L/2003, while imposing penalties, the Tribunal has specified the period as "two years" and "one year" respectively, which does not correspond with gravity of the offence, therefore, it may be enhanced.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance, minutely.
No doubt, departmental authority while inflicting punishment on a civil servant to a lower post or time scale or to a lower stage in a time scale, is competent to impose any sort of penalty permissible under Rule 4(1)(b)(i) of the Punjab Civil Servants (E&D) Rules, 1975 yet, it cannot be inflicted in disregard of Fundamental Rule 29, which provides that if a government servant, on account of misconduct or inefficiency, is reduced to a lower grade or post, or to a lower stage in his time scale, then the Authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent. Admittedly, in most of the cases in hand, the competent authority while inflicting punishment on the employees has not specified or fixed time for which the penalty has been imposed. The impugned orders, therefore, to that extent, in our view, are not sustainable. Here it would be advantageous to have a glance at Rule 4(1)(b)(i) of the Punjab Civil Servants (E&D) Rules, 1975 as well as FR 29 which read as follows:
A
(a) Minor Penalties:
(i) .....
(ii) .....
(iii) .....
(iv) .....
(b) Major Penalties:
(i) Reduction to a lower post or time-scale, or to a lower stage in time-scale;
(ii) .....
(iii) .....
(iv) .....
(v) ....."
"F.R. 29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to a postpone future increments and if so, to what extent."
"18. First in preference is the word time scale. We are to comprehend its real meanings. Fundamental Rule 9(31)(a) defines a time scale as follows:--
"(31) (a) Time-scale pay means pay which, subject to any conditions prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressives".
It means that when a pay periodically increases by specified increments reaching from a specified minimum to a specified maximum is a time scale; like, for example, in case of Muhammad Fayyaz respondent, he at the given time was in pay/time scale of Rs. 1725-116-3465, Regardless of how many increments he had received, he was reduced to the minimum of time scale so as to take a fresh start. Each of the increments adding up periodically constituted different stages in the time scale through which the maximum of the scale is attained. However, comprehended the time scale and the highest thereof, the question that remains to be answered is as to whether the words used by the Legislature as "a" lower stage are indicative of only one lower stage or any stage chosen by the departmental authority.
Words and Phrases Permanent Edition Volume-1 describes the use of "a". This description is with reference to the legal decisions rendered on the subject. It lays down that "the" is the word used before nouns, with a specifying or particularizing effect, opposed to the indefinite or generalizing force of "a" or "an" U.S. v. Hudson, 65 F.68, 71. From this description one can observe that "a" or "an" are used for indicating the indefinite number of for generalizing force and can be used in plural sense contrary to the word "the", which has a specifying or particularizing effect of a singular.
In First Trust Joint Stock Land Bank of Chicago v. Armstrong, 269 NW, 502, 506, 222 Jowa 425, 107 ALR 873, it was laid down that the word "a" has varying meanings and uses. "A" means "one" or "any", but less, "emphatically than either". It may mean one where only one is intended and it may mean anyone of a great number. It is placed before the nouns of the singular number, denoting an individual object or quality individualized.
In State v. Martin, 30 S.W. 421, 422, 423, 60 Ark. 343, 28 L.R.A. 153, it was defined that the adjective "a" is commonly called the indefinite article and so called because it does not define any particular person or thing. Meaning thereby that "a" is commonly indefinite without particularizing a person or thing and can be used in the plural sense as well. People v. One 1940 Buick Sedan, 162 P.2d 318, 320, 71 C.A. 2d 160, held article "a" as synonymous with "any" thereby giving a sense of plurality. Similar connotation was given in Senders, 54 Law J.Q.B. 331, 333 and National Union Bank v. Copeland 4 N.E. 794, 795, 141 Mass. 257, 267 and Crown Coach Co. v. Public Service Commission, 179 S.W. 2d 123, 127, 238 Mo. App. 387.
Bourland v. First Nat. Bank Bldg. Co. 237 S.W. 681, 683, 152 Ark, 139 also considered article "a" in a plural sense holding the article "a" is a word of vague meaning and too indefinite to limit the number. The article "a" is generally not used in a statute in a singular sense unless such an intention is clear from the language of statue, is a determination of the word "a" given in Lindely v. Murphy, 56 N.E.2d 832, 838, 387 111, 506 and Dobbs v. Board of County Com rs of Oklahoma Country, 257 P.2d 802, 809, 208 Okl. 514.
From such discussion in detail, we have arrived at the conclusion that "a" is generally used for generalizing the number in the plural sense and not particularizing the same as is done by the article "the". It might have the impression of a singular but for that purpose each statute has to be seen in its own perspective and in the background of the legislative intention. With this conclusion in mind, we revert to the Rule 4(1)(b)(i) in question.
It may be realized that the penalties imposed in the rule above are major penalties. If it is presumed that reduction to only one lower stage in the time scale was the intention of legislature, it would appear highly implausible because it amounts to snatching only one increment which can be snatched even by stoppage of increment or increments for future, which in turn is a minor penalty, it appears that with strict reference to major penalties the Legislature never intend the reduction to one lower stage in the time scale but to any lower stage in the time scale as deemed fit, to be selected by the departmental authority keeping in view the gravity of misconduct involved. The word "a" used in the instant case denotes the word "any" and not "one".
Had the Legislature intended the reduction to one lower stage in a time scale, it was not at all difficult for the law-maker to have used the word "one" instead of "a" or to have used the article "the" instead of "a". The very Rule 4(1)(b)(i) provides for a reduction to lower grade or time scale meaning thereby that the very time scale as such can also be reduced. If the entire time scale can be reduced to the lower time scale, then reduction to any stage in a time scale is not as serious as the former. We are clear in our mind that by using the word "a" for a lower stage in a time scale the intention of the Legislature was never restricted to one lower stage, rather, it was generalized to any lower stage in such time scale availed by the civil servant. The reduction to the minimum of the time scale in the instant case, was, therefore, not at all unlawful.
The reduction to more than one stages in a time scale is not a new phenomena and this Court has taken notice of it on numerous occasions without holding that such punishment could not be imposed. A Full Bench of this Court in the case of The Commandant, 502, EME Central Workshop, Rawalpindi (1997 SCMR 1471) was confronted with a similar situation where the Service Tribunal had converted penalty of removal from service into "reduction to three lower stages in the time scale for a period of three years without cumulative effect", this Court upheld reduction of three lower stages in a time-scale. A case of Zain Yar Khan 1998 PLC (C.S.) 1484 came before a Full Bench of this Court where major penalty of reduction to lower stage by four steps in the time scale had been imposed, no exception was taken to such penalty by this Court. Similarly, the case of Aslam Javed, Deputy Superintendent, Dry Port, Lahore 2000 PLC (C.S.) 1180 came before this Court where by civil servant after departmental proceedings was awarded penalty of reduction to five stages in the time scale. This too was never taken an-exception to."
In the case of Secretary (Schools), Government of the Punjab, Lahore & others v. Muhammad Sharif Tirmazi (2004 SCMR 74), major penalty of reduction in pay by three stages lower in time scale was awarded. On appeal before the Punjab Service Tribunal, the major penalty of reduction in pay scale by three stages was converted to that of minor penalty of withholding of three increments. It was held by this Court that penalty of reduction in pay by three stages lower in time scale could not have been imposed in view of the provision as contained in Rule 4(1)(b)(i), of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975. In the case of Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore (2004 SCMR 647), major penalty of reduction in pay to initial of B-17, was inflicted on the petitioner by the appellate authority which order was upheld by the Punjab Service Tribunal. On appeal to this Court, it was held that since the imposition of punishment of reduction to a lower grade without specifying the period of punishment was in violation of FR 29, therefore, it could not have been sustained. Consequently, judgment of the Tribunal was modified thereby restricting the punishment inflicted on the appellant for a period of four years only. In the case of Government of Pakistan through Secretary, Establishment Division, Islamabad v. Muhammad Umer Morio (2005 SCMR 436), the major penalty of reduction to a lower rank by demoting him from BS-19 to BS-18 of PSP in terms of Rule 1(1)(b)(i) of the Government Servants (E&D) Rules, 1975, was inflicted on the respondent by the departmental authority. On appeal to the Service Tribunal, the penalty imposed on him was set-aside. Instead he was censured with all back-benefits viz. difference of pay and allowances. It was argued on behalf of the appellants that the Tribunal had erred by setting aside the penalty of reduction in rank on the plea that period of penalty was not specified. The contention was repelled and it was laid down that while passing the order imposing the penalty of reduction to a lower grade or post, or to a lower stage in his time scale, the requirements prescribed in F.R. 29 should have been strictly observed. The view expressed in the above quoted judgments also finds support from the case reported as (i) Muhammad Younus v. Secretary, Ministry
of Communications and others (1993 SCMR 122), and (ii) Zafar Yasin v. Prime Minister of Pakistan (2002 SCMR 775).
(J.R.) Order accordingly.
PLJ 2009 SC 100
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, CJ., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ISHAQ--Appellant
versus
STATE--Respondent
Crl. Appeal No. 592 of 2006, decided on 22.4.2008.
(On appeal from the judgment dated 28.2.2005 of the Lahore High Court, Lahore passed in Cr. A. No. 186-J of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by First Appellate Court--Assailed--Appreciation of evidence ocular account--Accused murdered his wife and mother-in-law in a callous manner, by causing repeated churri blows to them--Prosecution succeeded in bringing on record sufficient evidence to establish his guilty--Ocular account was fully corroborated by medical evidence, motive, recovery of weapon and positive report of serologist leaving no room for doubt at all--No illegality was found in the impugned judgment--Appeal dismissed.
[P. 105] A & C
Criminal Trial--
----Circumstantial evidence--Sentence of death--Held: Death sentence can be awarded on circumstantial evidence, provided that circumstances constitute a chain and its no link is missing and their combined effect is that the guilt is established beyond any shadow of doubt. [P. 105] B
PLD 2003 SC 1, ref.
Malik M. Kabir, ASC for Appellant.
Mian Asif Mumtaz, DPG Punjab for State.
Complainant in person.
Date of hearing : 22.4.2008.
Judgment
Abdul Hameed Dogar, CJ.--This appeal with leave of this Court is directed against judgment dated 28.2.2005 of the learned Lahore High Court, Lahore whereby Criminal Appeal No. 186-J of 2000 filed by appellant Muhammad Ishaq was dismissed and murder reference sent by trial Court for confirmation of death sentence was answered in affirmative.
The prosecution story as narrated by complainant, Inayatullah (PW-8) in FIR No. 538 dated 19.9.1997 lodged at Police Station Ugoki, Sialkot is that he is working in United Cargo, Samberial and is resident of Muradpur. On the fateful day i.e. 19.9.1997 at about 2.00 p.m. he came to his house and saw appellant Muhammad Ishaq who is his son-in-law was inflicting churri blows to his wife Mst. Latifan Bibi and daughter Mst. Robina. He tried to rescue them but he was threatened for life if he came near. On hue and cry his sons PWs, namely Azhar Iqbal and Mazhar Iqbal attracted to the place of incident. The appellant fled away along with weapon of offence. Meanwhile, many people reached to the place occurrence. As a result of successive churri blows Mst. Latifan Bibi and Mst. Robina succumbed to the injuries at the spot.
The motive behind the occurrence is that appellant had forbidden his wife Mst. Robina (deceased) for attending the marriage of his brother Muhammad Abdullah, at this the relations became strained and deceased Mst. Robina left for the house of her parents.
On 22.9.1997 appellant was arrested and after usual investigating he was sent up to face trial before learned Additional Sessions Judge, Sialkot.
Lady Doctor Balqees, WMO (PW-10) conducted postmortem of deceased Mst. Latifan Bibi and Mst. Robina and found following injuries:--
Mst. Latifan Bibi
"1. An incised wound 1 « cm x 1 cm oval obliquely on front of left side of neck, skin deep 4 cm below lower margin of mandible.
An incised wound 1 cm x 1 « cm muscle deep obliquely on the left side of forehead 1 cm above left eyebrow.
An incised wound 1 cm x « cm muscle deep obliquely on left side of forehead near hairline.
An incised wound 1 « cm x 1 cm muscle deep obliquely on right side of neck near jaw.
An incised wound 4 cm x 1 cm bone deep obliquely on back of head below of occipital region.
An incised wound 8 x 1 « cm, muscle deep obliquely on back of neck on upper part of neck.
An incised wound 4 cm x 1 cm muscle on front of left side of chest obliquely 7 cm from left breast nipple.
An incised wound 2 cm x « cm muscle deep obliquely on left side of chest in lower part 1 cm lateral to epigastriom.
An incised wound 4 cm x 1 cm muscle deep horizontal near umbilicus on right side of abdomen.
An incised wound 3 cm x 1 cm muscle deep oblique on supra public region.
An incised wound 1 cm x « cm muscle deep oblique on front of right exilla.
An incised wound 3 cm x 1 « cm muscle deep obliquely on the back of right side of chest in upper part 1 cm from midline.
An incised wound 6 cm x 2 cm muscle deep obliquely on back of right chest 3 cm below Injury No. 12.
An incised wound 2 cm x 1 cm muscle deep obliquely on back of right chest on lower part.
An incised wound 3 cm x 1 cm muscle deep obliquely back of right chest 7 cm lateral to Injury No. 14.
An incised wound 3 cm x 1 cm going deep on back of left chest on lower part.
An incised wound 4 cm x 1 cm muscle deep obliquely on front of right shoulder.
Mst. Robina Bibi
"1. An incised wound 2 cm x 1 cm muscle deep was present obliquely on left side of jaw.
An incised wound 2 « cm x « cm muscle deep obliquely on left side of jaw 2 cm lateral to Injury No. 1.
An incised wound 2 « cm x 1 cm muscle deep obliquely on left side of neck in upper part 1 cm lateral to Injury No. 2.
An incised wound 1 « x 1 cm muscle deep obliquely 1 cm below Injury No. 2 on front of upper neck.
An incised wound 1 cm x « cm muscle deep obliquely in front near the left ear lop.
An incised wound 6 cm x 1 cm below chin muscle deep, horizontal.
An incised wound 4 cm x 1 cm cutting cricoi (laryngeal) conrtilate, transverse in the upper neck.
An incised would 2 cm x 1 « cm cutting tracheal cartilate transverse on front of lower part of neck.
An incised wound 2 cm x « cm muscle deep obliquely on right side of neck below jaw.
An incised wound 3 cm x « cm muscle deep obliquely on right side of neck below lower jaw.
An incised wound 3 cm x 1 cm muscle deep obliquely in front of right upper part of neck.
An incised wound 3 cm x 1 cm muscle deep obliquely in front of neck near sternoclavicular joint on right side.
An incised wound 2 cm x 1 cm muscle deep obliquely on left side of neck above the clavicle.
An incised wound 2 cm x « cm muscle deep obliquely on right side of front of chest below the clavicle.
An incised wound 3 cm x 1 cm going deep into chest cavity obliquely on back of lower chest near midline right side.
An incised wound 2 cm x 1 « cm muscle deep oblique on back of left lumber region.
At trial, the prosecution examined at many as 11 prosecution witnesses.
Appellant in his statement recorded under Section 342 Cr.P.C. denied the case of the prosecution and claimed innocence. He neither examined himself on Oath as required under Section 340(2) Cr.P.C. nor led any evidence in his defence.
On the conclusion of trial, appellant was found guilt under Section 302 PPC and was sentenced to death on two counts. He was directed to pay Rs. 50,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased Mst. Latifan Bibi or in default to undergo S.I. for six months. He was also directed to pay compensation to the legal heirs of deceased Mst. Robina Shaheen or in default whereof to further undergo six months S.I.
Feeling aggrieved, appellant filed Criminal Appeal No. 186-J of 2000 before learned Lahore High Court, Lahore which was dismissed as stated above.
Leave to appeal was granted by this Court on 6.7.2006 to consider that in the circumstances of the case, the appellant cannot be awarded death sentence as his case comes under Sections 306(c) and 307(c) read with 308(2) PPC.
We have heard Malik M. Kabir, learned ASC for the appellant, Mian Asif Mumtaz, learned DPG Punjab and complainant appearing in person at length and have gone through the record and proceeding of the case in minute in particulars.
Learned counsel for the appellant vehemently contended that appellant is innocent and has been falsely involved in this case on mere suspicion and ill-will of the complainant. According to him, it was unseen incident which was not witnesses by any body as the eye-witnesses have not proved their presence at the spot at the relevant time. He contended that appellant took the plea of alibi which was not considered by the Courts below. He further contended that the incident took place inside the house of complainant. He contended that number of injuries on the persons of deceased were more than 30 which show that sufficient time was consumed in the infliction of injuries and if the PWs were present at the spot, they must have intervened and could not be silent spectators at the spot. He contended that Mst. Robina Shaheen is the wife of appellant and in such circumstances appellant cannot be granted death sentence.
On the other hand learned DPG Punjab supported the impugned judgment and contended that ocular account evidence furnished by complaint directly connect appellant with the act of inflicting churri blows on the persons of deceased corroborated by recovery of weapon of offence i.e. blood stained churri. He further contended that appellant had butchered his wife and mother-in-law over a very petty matter. The active role of appellant in the commission of the crime being natural, straight forward and consistent with the medical evidence as well as in accordance with the facts and circumstances of the case has been rightly believed by the trial Court as well as the learned High Court. He contended that there were no extenuating circumstances available which should justify to take out the case of the appellant from the infliction of the normal penalty of death.
In our considered view, prosecution has proved its case against appellant beyond any shadow of doubt who murdered his wife and mother-in law in callous manner. The evidence on record clearly proves the act of participation of appellant in the commission of the offence as he caused repeated churri blows upon the persons of both deceased. The case of prosecution rests upon the circumstantial evidence, medical evidence and recovery of weapon of offence. The prosecution has succeeded in bringing on record sufficient evidence whereby the guilt of appellant and his active participation in the commission of offence has been established. The ocular account furnished by complainant Inayatullah (PW-8) is fully corroborated by medical evidence, motive, recovery of weapon of offence at the instance appellant and positive report of serologist leaving no room for doubt at all. It is the settled principle of law that death sentence can be awarded on circumstantial evidence, provided that circumstances constituted a chain and its no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt. The brutal and atrocious manner in which the appellant committed murders of his wife and his mother-in-law does not call for any leniency in the sentence. Reliance is placed on the case reported as Muhammad Ajmal v. The State (PLD 2003 SC 1) wherein this Court had held that the brutal and atrocious manner in which the petitioner committed the cold-blooded murders of his mother-in-law and her mother does not call for any leniency in the sentence. Moreover, the learned trial Court as well as the learned High Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. Learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment warranting interference by this Court. Accordingly, the appeal being devoid of merit is dismissed.
(J.R.) Appeal dismissed.
PLJ 2009 SC 106
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan & Ch. Ejaz Yousaf, JJ.
LIAQUAT ALI etc.--Petitioners/Appellants
versus
STATE--Respondent
Crl. P. No. 155/2002 & Crl. A. No. 103/2002, 6/2003 and 24/2004, decided on 29.4.2008.
(On appeal from the judgment of the Lahore High Court, Lahore dated 10.1.2002 passed in Criminal Appeals No. 621 and 1016 of 1992 and
Crl. Revisions No. 476 and 761 of 1992)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 148 & 149--Conviction & sentence of death--Appreciation of evidence--Day-light occurrence--Motive and enmity had been established, even admitted by the accused--There was no possibility of false implication as both parties were from the same locality--Prosecution case was fully proved by ocular evidence duly corroborated by medical evidence & motive--Formation of the unlawful assembly, premeditated & preconcerted attack resulting into two murders and causing injury to one PW was proved beyond any doubt--Venue of occurrence was also established--Weapons were specifically mentioned by PWs and were duly proved by medical evidence as pellets had been recovered from two dead bodies--Held: Minor discrepancies could not mar the prosecution case--However as appellants had not come to the place of occurrence with weapon and they were disregarded by complainant party, before persons in the marriage ceremony--Death sentence was converted into life imprisonment. [P. 112] A, B & C
Syed Zahid Hussain Bokhari, ASC & Haji Muhammad Rafi Siddiqui, AOR for Petitioners/Appellants.
Mian Asif Mumtaz, D.P.G. Punjab for State.
Mr. Hasan Ahmad Kanwar, ASC for Complainant.
Date of hearing: 29.4.2008.
Judgment
Muhammad Qaim Jan Khan, J.--These Criminal Appeals and the connected Criminal Petition have arisen out of consolidated judgment of a learned Division Bench of the Lahore High Court, Lahore dated 10.1.2002 passed in Criminal Appeals No. 621 and 1016 of 1992 and Criminal Revisions No. 476 and 761 of 1992.
Facts of the case, as reflected from the FIR lodged by Muhammad Sharif complainant, resident of Chak No. 240/RB, Abadi Khojewala, are that about three years ago Mst. Mondan daughter of Saleh was abducted by Allah Yar son of Qambar resident of the same Chak, regarding which Saleh and others got the abduction case registered against the complainant in which case Allah Yar and Mst. Mondan were challenged to the Court while all other accused were exonerated by the Investigating Agency. On account of this incident, the complainant and the accused side were not on visiting terms with each other. On the fateful day i.e. 1.2.1991 marriage of daughter of one Nausher of the same Chak was to be solemnized. Nusrat Ali s/o Saleh and Muhammad Afzal son of Waryam had also come there to attend the marriage ceremony. Zafar Iqbal son of the complainant and Walayat son of Jalal took exception to their coming there and raised objection that since they were not on talking terms with each other, they should not have come to their Basti, as a result of which an altercation took place between Nusrat Ali and Zafar Iqbal, which converted into exchange of abuses between them. Consequently, Zafar Iqbal and Walayat gave slaps to Nusrat Ali and Muhammad Afzal, however, the people present around intervened and patched up the matter. Nusrat Ali and Muhammad Afzal left the spot by issuing threats that they will teach the complainant party a lesson for misbehaving with them. Both the sides left for their respective places of residence. On the same day i.e. 1.2.1991, after a short while i.e. at about 4.00 P.M. Muhammad Sharif complainant alongwith his son Zafar Iqbal, Walayat son of Jalal and Jawaya son of Ahmad came and while they were present in front of the house of Jawaya, Amir and Munir brothers inter se sons of Raja, Muhammad Afzal son of Waryam, Nusrat Ali, Liaqat Ali brothers inter se sons of Saleh and Sarfraz son of Shera, all residents of the same Chak armed with .12 bore guns, raising lalkaras that they would take revenge of the insult metted out to Muhammad Afzal and Nusrat Ali, reached the spot. Muhammad Afzal fired first shot which hit Zafar Iqbal on the front of his left thigh. Amir fired second shot at Zafar Iqbal which hit him on front of his neck, as a result whereof he fell down. Liaqat Ali fired at Walayat which hit on his right wrist. Munir also fired a shot which hit Walayat on the right side of his head. Thereafter Sarfraz fired a shot, a pellet of which hit on the left wrist of the complainant. Mian Khan son of Allah Yar, Zulfiqar son of Hajoora and Bashir son of Noor Muhammad were attracted to the spot from the dera of the complainant, and as soon as they reached in front of house of Qambar Ali, Nusrat Ali fired a shot which hit Mian Khan on left side of his chest as a result of which he fell down. Other people of the locality were also attracted to the scene by the noise. The accused while raising lalkaras and making aimless firing, decamped from the spot. Zafar Iqbal and Mian Khan succumbed to the injuries on the spot while Walayat in injured condition was sent to Civil Hospital, Faisalabad. The complainant lodged report. The accused were arrested on 21.2.1991 and after completion of investigation challan was submitted in Court. The accused were brought before the Court and charged for the murder of Mian Khan and Zafar Iqbal and attempting at the life of Walayat, to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced 15 PWs and after tendering the reports of the Chemical Examiner, Exh. PBB and PZ and the reports of Serologist Exh. PAA and PCC, closed its case.
The accused were examined under Section 342 Cr.P.C. They pleaded innocence but neither recorded their statements under Section 340(2) Cr.P.C. nor produced any evidence in defence. Consequently, after hearing the prosecution and the defence the trial Court on 24.5.1992 passed the following order :--
"18. On the basis of my above findings, I hold that the prosecution has succeeded to prove the ocular account duly corroborated by medical evidence in respect of Qatl-i-Amd of both the deceased namely Mian Khan and Zafar • Iqbal and the charge of Section 302 PPC as introduced by Qisas and Diyat Ordinance stands established against both the accused namely Nusrat Ali and Amir but I find that the provision of Section 34 of PPC does not apply in the case of both the accused because both of them did not repeat the fire-arm injury on the persons of both the deceased and one fact can also not be denied that Mian Khan was murdered in front of the house of Qambar PW and Zafar Iqbal deceased was caused to death in front of the house of Jawaya PW and the prosecution also collected the blood stained earth from two different places so both the murders are not the result in furtherance of the common intention of both the accused and thus Section 34 of PPC is not attracted to both the accused and they are only found to be individually liable for their acts. The case of both the accused is also not covered under Section 302 (a and b) of PPC as introduced by Qisas and Diyat Ordinance and I also find extenuating and mitigating circumstances in the prosecution case for not proving the motive and recoveries and by placing my reliance on the citations of PLD 1959 Karachi page 460 (b) and 1980 SCMR page 859, I take the lenient view and convict the accused Nusrat Ali and Amir under Section 302(c) of PPC as introduced by Qisas and Diyat Ordinance, 1990. Resultantly I acquit all the accused namely Nusrat Ali, Liaqat Ali, Amir, Munir, Sarfraz and Muhammad Afzal from the charges of Section 148/149 of PPC, Section 324 of PPC as introduced by Qisas and Diyat Ordinance, 1990 and Section 149 PPC by giving them the benefit of doubt. I also acquit the accused Liaqat Ali, Munir, Sarfraz and Muhammad Afzal from the charge of Sections 302/149 of PPC by giving them the benefit of doubt. The accused Liaqat Ali, Munir, Sarfraz and Muhammad Afzal are present in Court in police custody so they have been informed accordingly. They shall be released by the Jail Authorities immediately, if not required in any other case. However, convict the accused Nusrat Ali under Section 302(c) of PPC as introduced by Qisas and Diyat Ordinance, 1990 for committing Qatl-i-Amd of Mian Khan deceased and sentence him to 25 years R.I. under Section 302(c) of PPC. I also convict the accused Amir under Section 302(c) of PPC as introduced by Qisas and Diyat Ordinance, 1990 for committing Qatl-i-Amd of Zafar Iqbal deceased and sentence him to 25 years R.I. under Section 302(c) of PPC. The accused Nusrat Ali is ordered to make the payment of compensation amount of Rs. 10,000/- to the legal heirs of Mian Khan deceased and the accused Amir is also ordered to make the payment of compensation amount of Rs. 10,000/- to the legal heirs of Zafar Iqbal deceased as required under Section 544-A of Cr.P.C. and in default of payment of compensation amount, both the aforementioned convicted accused shall further suffer imprisonment for a period of 6 months R.I. each. Moreover, both these accused namely Nusrat Ali and Amir are given the benefit of Section 382-B of Cr.P.C. Both of them are present in Court in police custody so they have been informed accordingly. The case property i.e. blood stained earth of both the deceased and last worn clothes of both the deceased shall be destroyed after the expiry of period of appeal or revision if any. The weapons of offence i.e. guns recovered from the accused Nusrat Ali, Amir, Liaqat Ali, Munir and Muhammad Afzal shall be confiscated in favour of the State and the licensed gun of Sarfraz accused will be returned to him according to the rules on the subject after the expiry of period of appeal or revision if any."
Dissatisfied with the said judgment, Nusrat Ali and Amir convicts filed Criminal Appeal No. 621/1992 before the Lahore High Court, Lahore while the State through Public Prosecutor Punjab preferred Criminal Appeal No. 1016/1992 seeking reversal of acquittal of Liaqat, Munir, Sarfraz and Muhammad Afzal and Criminal Revision No. 761/1992 praying for enhancement of sentences awarded to Nusrat Ali and Amir convicts whereas the complainant filed Criminal Revision No. 476/1992 against all the accused and a learned Division Bench of the said Court after hearing the respective counsel for the parties and scanning the record, allowed Criminal Appeal No. 1016/1992 and Criminal Revision No. 761/1992 while dismissed Criminal Appeal No. 621/1992 and disposed of Criminal Revision No. 476/1992, vide the impugned judgment dated 10.1.2002 as under:--
"21. For the foregoing reasons conviction and sentence of Nusrat Ali and Amir appellants under Section 302(c) P.P.C. is set aside. Likewise acquittal of Liaqat Ali, Munir and Muhammad Afzal-respondents is set aside. Accordingly, Nusrat Ali, Amir, Liaqat Ali, Munir and Muhammad Afzal are convicted under Sections 302(b)/149, 324/149 & 148/149 P.P.C.
Now we advert to quantum of sentences to be awarded to Nusrat Ali, Amir-appellants. Liaqat Ali, Munir and Muhammad Afzal-respondents. We have failed to find out any extenuating circumstances in favour of Nusrat Ali and Amir-appellants, so they are convicted under Sections 302(b)/149 P.P.C. and sentenced to death on two counts with further direction to pay Rs. 20,000/- each on two counts to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of Section 544-A Cr.P.C. In case of non-payment of compensation they shall suffer simple imprisonment for six months each under each count.
Since Munir-respondent is not assigned the role of causing an injury on the deceased, so we take a lenient view in the matter of sentence to be awarded to him. He is convicted under Sections 302(b)/149 P.P.C. and sentenced to imprisonment for life on two counts with further direction to pay Rs. 20,000/- under each count to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of Section 544-A Cr.P.C. or in default thereof to further undergo simple imprisonment for six months.
As far as Liaqat Ali and Muhammad Afzal-respondents are concerned, we find that they were minors on the day of occurrence as indicated through certificates (Exhs. DA & DB) respectively, so they are convicted under Section 308 P.P.C. on two counts and sentenced to rigorous imprisonment for fourteen years each under each count. They shall also be liable to Diyat on both the counts.
We also find that Nusrat Ali, Amir-appellants, Liaqat Ali, Munir and Muhammad Afzal-respondents, are guilty of charge under Section 324/149 P.P.C. for committing murderous assault upon Walayat (PW. 12). We accordingly convict them under Section 324/149 P.P.C. and sentence them to rigorous imprisonment for five years each. They shall also pay a fine of Rs. 10,000/- each or in default thereof to further undergo rigorous imprisonment for one year each. Half of fine if realized shall be paid to Walayat (PW. 12) victim of assault.
We also find that Nusrat Ali, Amir-appellant, Liaqat Ali, Munir and Muhammad Afzal-respondents in prosecution of the common object of the unlawful assembly are guilty of offence of rioting punishable under Section 148 P.P.C. so they are convicted as such and sentenced to rigorous imprisonment for three years each. Sentences awarded to the above said appellants and respondents shall run concurrently. Benefit of Section 382-B Cr.P.C. shall be extended to Munir, Liaqat Ali and Muhammad Afzal-respondents."
Hence these appeals and the petition.
Learned counsel for the appellants/petitioners mainly argued that the prosecution version is not supported by the medical evidence and the motive; that no empty has been recovered from the spot; that it was a matter of family honour and strangely enough the convict-appellants attended the marriage ceremony of daughter of Nausher Machhi on his invitation and he being a Khadim of the village did not object to their coming at the Baraat but said Nausher has not been produced by the prosecution; that the complainant party has committed highhandedness as firstly the sister of the appellants was abducted and even they were restrained from attending the Baraat of daughter of Nausher Machhi; that the quarrel was initiated by deceased Zafar Iqbal and not the appellants; that during investigation four accused have been termed innocent and that the recoveries are fake and concocted; that according to the medical report only an abrasion is present on the arm of complainant Muhammad Sharif and thus his statement is negated by the medical evidence; that the acquittal recorded by the trial Court was correct and no case of death is made out as the appellants have been dishonoured by the complainant party and falsely implicated. He lastly contended that he would not challenge the conviction rather would confine himself only to mitigation.
Learned counsel for the complainant, on the other hand, strenuously supported the impugned judgment. He argued that it is a day light occurrence. FIR is promptly lodged. The accused have been specifically nominated with specific role and weapon of offence; that the conduct of the appellants is also to be seen as they ran away from the Court after hearing the sentences. Nusrat Ali remained absconder for two years and Amir remained absconder for one year and they were arrested on 3.1.2003 which shows their guilty mind; that the prosecution case is proved beyond any shadow of doubt and is admittedly corroborated by the medical evidence and the motive.
Learned Deputy Prosecutor General argued that no question of mitigation can arise in the present circumstances. The prosecution has proved its case beyond any shadow of doubt. The scuffle is admitted, the motive is proved and two precious lives have been lost; that the appellants have formed an unlawful assembly and committed the murder of Zafar Iqbal and Mian Khan with due preparation although the matter was patched up in the first instance by the villagers. He argued that the version of the appellants is frivolous and not proved from the record. However, the State as well as the learned counsel for the complainant did not say much about the acquittal of Sarfraz.
We have heard the learned counsel for the appellants/petitioners the complainant and the learned Deputy Prosecutor General and have also perused the available record with their assistance. Admittedly, it is a day light occurrence, the FIR has been promptly lodged and motive has also been established. Even the appellants/petitioners have admitted the enmity and motive in their own statements. The parties being residents of the same locality are known to each other, therefore, the question of false implication is improbable. Prosecution case is fully proved by ocular evidence duly corroborated by the medical evidence and motive. The occurrence is even admitted by the accused appellants/petitioners but in a somewhat different manner. Formation of the unlawful assembly, premeditated and preconcerted attack on the complainant party resulting into two murders and causing injury to one PW is proved beyond any doubt. Venue of the occurrence is also established as blood-stained earth has been collected from the spots where Zafar Iqbal and Mian Khan died. The weapons of offence have been specifically mentioned by the PWs and are duly proved by the medical evidence as pellets have been recovered from the two dead bodies. The PWs were put to lengthy searching cross-examination but nothing favourable to the defence came out from their mouth. Minor discrepancies cannot mar the prosecution case. With regard to the "possibility" of single fire shot in the statement of Doctor the learned Division Bench has very elaborately explained the difference between the "possibility" and the "opinion" of the Doctor. As far as the acquittal of Sarfraz is concerned that has not been seriously challenged by the complainant and the State, So, in this background of the case, as far as the conviction is concerned, the appellants have rightly been convicted by the learned Division Bench of the Lahore High Court, but keeping in view the factum that they were invited by Nausher Machhi to the marriage ceremony of his daughter and they had come to the said ceremony without any arms or weapons and at the first moment it was Zafar Iqbal who objected to their coming and initiated the quarrel by giving slaps to Nusrat Ali and Muhammad Afzal and disgraced them before the Baraatis, in our view punishment of death is too harsh.
On 29.4.2008 the following short order was passed:--
"For the reasons to be recorded later, Criminal Appeals No. 6/2003 and 24/2004 filed by appellants, Ameer Ali and Nusrat Ali are partly allowed and their sentences of death are altered to imprisonment for life whereas Criminal Appeal No. 103/2002 filed by Munir & another and Criminal Petition No. 155/2002 filed by Liaqat Ali & another are dismissed. However, it is ordered that sentences of the petitioners/appellants will run concurrently with benefit of Section 382-B Cr.P.C."
These are the reasons in support of our above short order.
(J.R.) Order accordingly.
PLJ 2009 SC 113
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
TARIQ MEHMOOD--Appellant
versus
STATE through Deputy Attorney General--Respondent
Crl. Appeal No. 576 of 2006, decided on 24.6.2008.
(On appeal from the judgment dated 1.9.2005 of the Peshawar High Court, Peshawar passed in Crl. Appeal No. 217 of 2004).
Control of Narcotic Substances (Govt. Analyst) Rules, 2001--
----Rr. 4 & 5--Control of Narcotic Substances Act, 1997, S. 9(c)--Dispatching of samples beyond 72 hours--Legal effect--Held: There is no bar on the Investigating Officer to send the samples beyond 72 hours of the seizure or receiving the F.S.L. report after 15 days--These Rules are directory & not mandatory and so cannot control the substantive provisions of C.N.S.A.--Their non-compliance would not frustrate the purpose of the Act or render the search, seizure and arrest an absolute nullity & non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules.
[P. 116] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9 (c)--Recovery of 15 Kg charas--Conviction & sentence--Challenge to--Appreciation of evidence--Held: Charas in a huge quantity was recovered from the bag carried by the accused--Recovery was proved by the members of raiding party having by the members of raiding party having no personal reasons to involve him--Explanation offered by the accused for false implication was not plausible--No material discrepancy and contradiction was pointed out in the evidence--Conviction & sentence was upheld. [P. 117] B
2000 P.Cr.LJ 1812; 2003 P.Cr.L.J. 680; PLD 2006 Pesh. 128; 2004 SCMR 1361; 2004 SCMR 988; 2006 P.Cr.LJ 988; 2007 YLR 1767 & 2007 YLR 1799, ref.
Haji M. Zahir Shah, ASC for Appellant.
Nemo for Respondent.
Date of hearing: 24.6.2008.
Judgment
Ijaz-ul-Hassan, J.--Tariq Mehmood appellant, was tried by learned Judge, Special Court (CNS) N.W.F.P., Peshawar at Kohat Camp in case FIR No. 1 dated 05.1.2003 registered with Police Station Anti Narcotic Force, Kohat, for an offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997 (herein after referred to as the Act). The learned trial Court, by virtue of judgment dated 23.2.2004 convicted the appellant under Section 9 (c) of the Act, and sentenced him to suffer life imprisonment with fine of Rs. 2,00,000/- or in default thereof to undergo further one year S.I, giving him the benefit of Section 382-B Cr.P.C. The accused preferred an appeal against his conviction and sentence before the Peshawar High Court, Peshawar, which was registered as Criminal Appeal No. 217 of 2004. The learned High Court, while maintaining the conviction and sentence dismissed the appeal on 01.9.2005. Hence instant Criminal Appeal No. 576 of 2006.
The prosecution story in brief is, that on 05.1.2003, Inspector Asmatullah Khan P.W complainant, in this case, alongwith ASI Bhadar Nawaz, FC Muhammad Amin, FC
Muhammad Rauf and others, was present at kotal check post for checking, when at about 9.30 a.m., a coaster bearing Registration No. K-3736 N.W.F.P. was sighted coming from Dara Adam Khel' side. The Coaster was stopped. The complainant entered inside the coaster, started search and on suspicion brought down a passenger with a bag lying underneath his seat. On asking, the passenger disclosed his name and parentage as Tariq Mahmood son of Muhammad Rafique, resident ofMasjid Firdous Qadeem' Darya Khan, Bhakkar. The bag was opened and
`charas' was found in the same, weighing 15 kilograms i.e. 15 packets of one kilogram each. A meager quantity i.e. two grams each was separated out of the seized property and sent to the office of Chemical Examiner to Government of
Punjab, Rawalpindi for analysis. The remaining was sealed in a separate parcel.
On personal search of the accused, a cash amount of Rs. 500/-, National
Identity Card, ticket, service card and pocket diary etc. were also secured from his possession. The accused was arrested and a case was registered against him under Section 9(c) of the Control of Narcotic Substances Act, 1997. The challan was accordingly submitted against him to face the trial before the
Special Court established under the ibid Act.
The prosecution in support of charge against the accused examined five witnesses at the trial, namely Feroz Khan Muharrir, PW. 1, Muhammad Rauf FC PW.2, Asmatullah Khan Inspector PW.3, Muhammad Amin FC PW.4 and Rehman Khan AD PW.5. After close of the prosecution case, accused was examined under Section 342, Cr. P.C. He denied the prosecution allegations, disowned the ownership of the bag and contraband narcotics, asserting that the bag was recovered by the Investigating Officer from the floor of the vehicle and he was falsely implicated on account of being `Punjabi' speaking. He, however, did not opt to produce evidence in his defence or depose on oath in disproof of the allegations appearing against him in the prosecution case. The learned trial Judge, on the conclusion of the trial held the appellant guilty of the charge and convicted and sentenced him as mentioned in the opening paragraph of this judgment. On dismissal of the appeal by learned Peshawar High Court, Peshawar vide judgment dated 01.9.2005, the appellant has filed instant appeal.
Haji M. Zahir Shah, Advocate, in support of the appeal, contended with vehemence that there is no reliable evidence led by the prosecution to have proved the charge against the appellant, but Courts below, without appreciating the same, recorded erroneous finding; that the prosecution has failed to prove nexus of appellant with the bag containing contraband charas as no article or identity Card of the appellant were recovered there from; that there are serious discrepancies/contradictions between the statements of prosecution witnesses; that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of Section 103, Cr.P.C; that specimens separated from the recovered material have been sent to Laboratory after considerable delay, which has made the prosecution story highly doubtful; and that the investigation officer had not taken and send the sample of each packet for chemical examination and only three samples instead of 15 samples were sent and it cannot be held with certainty that the entire lot was infact charas. Concluding the arguments, learned counsel submitted that appellant is first offender and a young man of about 28 years of age and sentence awarded to him is on higher side and may be reduced substantially to meet the ends of justice. To substantiate the contentions, reliance has been placed on Mst. Iqbal Bibi versus The State, (2000 PCr. LJ 1812), Johar Ali and another versus The State, (2003 PCr. LJ 680) and Mst. Zubaida Sadruddin versus The State, (PLD 2006 Peshawar 128).
The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband charas from the bag carried by him, has produced two witnesses, namely FC Muhammad Rauf, (PW.2) and Inspector Asmatullah Khan, (PW.3). The former is one of the marginal witnesses to the recovery memo (Exh.PW 2/1) through which the contraband charas was taken into possession whereas the later, carried out investigation and submitted challan against the accused in Court. Both the witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination. The contradictions pointed out by learned counsel for the appellant, are not of serious nature and those cannot be considered sufficient to vitiate the trial or to make the recovery doubtful. The mere fact that these witnesses belonged to Anti Narcotic Force, by itself, cannot be considered a good ground to discard their statements. Reference in this context can be made to the cases of Naseer Ahmad versus The State, (2004 SCMR 1361) and Riaz Ahmad versus The State, (2004 SCMR 988).
Learned counsel for the appellant strenuously contended that the samples separated from the seized Charas were sent to the Forensic Science Laboratory at belated stage and in the process sufficient time had consumed and in view of Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 the sample dispatched for analysis beyond seventy two hours and the report received is illegal and rendered the seizure invalid in the eye of law.
The rules have placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure, receive the F.S.L report after fifteen days and the report so received to place before the trial Court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S.A. and to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the CNSA an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the appellant that the property was tampered with during the process of transit or the remaining property was not charas. It was for the appellant to have taken such plea before the trial Court but the appellant did not do so. However, we have examined the chemical Analyzer's report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the appellant is not sound. In this regard, reference can be made to Amjad versus The State (2006 PCr.LJ 988), Ibrahim versus The State, (2007 YLR 1767 Peshawar) and Abdul Hassan and another versus The State, (2007 YLR 1799 Peshawar).
The contention of learned counsel for the appellant that the recovery was not witnessed by persons from public, we may observe that Section 25 of CNSA excludes the application of Section 103, Cr.P.C.
Learned counsel for the appellant further contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.
The objection of learned appellant's counsel is that the investigating officer had not taken and send the sample of each packet for chemical examination and only three samples instead of 15 samples were sent and it cannot be held with certainty that the entire lot was infact charas, is also devoid of force and carries no weight.
The perusal of the record would not show any legal or factual defect in the current findings of the two Courts regarding the guilt of the appellant. The Charas in huge quantity has been recovered from the bag carried by the appellant. The recovery was proved by the members of raiding party, who had no personal reasons to involve the appellant in a false case. The explanation offered by the appellant for false implication is not plausible. The learned counsel for the appellant has not been able to point out any material discrepancy and contradiction in the evidence suggesting a slight doubt in the prosecution case arising in favour of appellant and consequently, we would not take any exception to the judgment of High Court.
Adverting to the sentence, we find that a legal sentence has been awarded to the appellant which hardly requires interference of this Court.
Pursuant to above, finding no substance in this appeal, we dismiss the same and maintain the impugned judgment.
(J.R.) Appeal dismissed.
PLJ 2009 SC 118
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan & Zia Perwez, JJ.
MUHAMMAD TAJ--Petitioner
versus
ARSHAD MEHMOOD and 3 others--Respondents
Civil Petition No. 983 of 2008, decided on 30.7.2008.
(On appeal from the judgment dated 17.6.2008 of the Islamabad High Court, Islamabad passed in Civil Revision No. 323 of 2007).
Contract Act, 1872 (IX of 1872)--
----S. 55--Transfer of Property Act, (IV of 1882), S. 4--Constitution of Pakistan, 1973, Art. 185(3)--Appellate jurisdiction--Determination of--Question of time being essence of the contract has to be decided with reference to facts of the each case--By virtue of Section 4 of the Transfer of Property Act, 1882, transactions involving sale of immoveable property are subject to the relevant provisions of the Contract Act, 1872--Section 55 of the Contract Act, 1872 stipulates the contracts where time is essence of contract, which is generally not attracted to transactions involving sale of immovable property--Held: Mere mentioning of a specific date for performance of the agreement would not make time the essence of contract but such intention is to be gathered from the terms agreed amongst the parties contained in the contract in the light of the facts and circumstances of the case.
[P. 120] A
Transfer of Property Act, 1882 (IV of 1882)--
----S. 4--Registration of transfer of property by an attorney--Whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal. [P. 120] B
Mr. Ibad-ur-Rehman Lodhi, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 30.7.2008.
Judgment
Zia Perwez, J.--Petitioner seeks leave to appeal against the impugned judgment of the Islamabad High Court, Islamabad dated 17.6.2008, whereby Civil Revision No. 323 of 2007 filed by the petitioner was dismissed.
Suit for specific performance with respect to Property No. 2241 situated in CDA, Colony 1-10/1, Islamabad, hereinafter referred to "as the said property" against the sale consideration of Rs. 5,23,000/- was instituted by Muhammad Yaseen now represented through his legal heirs. An amount of Rs. 30,000/- was paid by the deceased as earnest money and balance of sum of Rs. 4,93,000/- was to be paid at time of transfer of the said property on or before 20.5.1991. However, it appears that No Objection Certificate which was a prerequisite condition for effecting transfer of the said property was issued by the Capital Development Authority on or about 25.11.1991. After service of legal notice dated 8.12.1991 calling upon the petitioner to transfer the said property, the suit was instituted before the learned Civil Judge, Islamabad, who vide order dated 3.6.1996 dismissed the suit, while ordering forfeiture of the earnest money amounting to Rs. 30,000/-. The said order was set aside in Civil Appeal No. 205 of 2005 by the Additional District Judge, Islamabad vide his judgment and decree dated 16.12.2006 mainly on the ground that the time was not the essence of the contract. Revision Application No. 323 of 2007 before the High Court was also dismissed through the impugned judgment.
We have heard Mr. Ibad-ur-Rehman Lodhi, learned ASC for the petitioner and have pursued the record.
After perusal of the facts, the learned counsel for the petitioner contended that the time was essence of the contract and failure of respondent to make payment called for forfeiture of the amount of earnest money and under the terms of the agreement. There was no case for specific performance after failure of respondent to make payment of the balance amount of sale consideration within the stipulated period. In support of his contention, the learned ASC has place reliance on the cases of Ghulam Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344) & Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494).
Indeed the agreement between the parties provided for payment of balance amount at the time of the registration of the sale deed and transfer of property on or before 30.5.1991, however, the said payment was subject to transfer in the office of C.D.A. Islamabad. In the instant case, obtaining of N.O.C. was a precondition for such transfer and sale of property. The NOC was to be issued by an independent agency beyond the control either party NOC bears the date 23.11.1991 and was issued on or after that date by the CDA, therefore, the respondent could not held liable on account of such delay by the CDA. The question of time being essence of contract has to be decided with reference to the facts of the each case. By virtue of Section 4 of the Transfer of Property Act, 1882, transactions involving sale of immovable property are subject to the relevant provisions of the Contract Act, 1872. Section 55 of the Contract Act, 1872 stipulates the contracts where time is essence of contract, which is generally not attracted to transactions involving sale of immovable property. Merely mentioning of a specific date for performance of the agreement would not make time the essence of Contract but such intention is to be gathered from the terms agreed amongst the parties contained in the contract in the light of the facts and circumstances of the case as held by this Court in the case of Ghulam Nabi (supra). In the instant case the condition of transfer of property in the office of CDA clearly stipulated further condition in addition to the date. In the absence of issuance of NOC such transfer was not possible. The record further shows that within couple of days after the issuance of NOC on 23.11.1991, the respondent served legal notice dated 8.12.1991 calling upon the petitioner to transfer the property in his favour followed by the suit for specific performance.
In the case of Mst. Batul and others v. Mst. Razia Fazal and others (2005 SCMR 544), this Court has already taken a view where the transfer was obliged to obtain the clearness certificate as a precondition for valid execution and registration of sale-deed. The delay in obtaining the same not attributable to the vendee could not effect the claim for specific performance of contract. The case of Ghulam Nabi (supra) relied upon by the learned counsel, therefore, does not support the case as the impugned judgment is in conformity with the principle laid down by this Court.
In the case of Jamil Akhtar (supra) the question pertained to registration of transfer of property by an attorney in his own name where registered general power of attorney did not authorize such a transfer. It is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal. Therefore, the case is distinguishable from the present petition.
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 121
[Appellate Jurisdiction]
Present: M. Javed Buttar & Muhammad Qaim Jan Khan, JJ.
SHAHZAD AHMED--Petitioner
versus
MIAN MUAZZAM SHAH & others--Respondents
Civil Petition No. 1195 of 2008, decided on 16.9.2008.
(Against judgment dated 18.6.2008 passed by the Federal Service Tribunal, Islamabad in Appeal No. 195(R)/CS/2006).
Civil Servants (Seniority) Rules, 1993--
----Rr. 2 & 6--Constitution of Pakistan, 1973, art. 27 & 185(3)--Leave to appeal--Seniority list--Recommendations of the appointment of the petitioner--Implementation--Appointment against various quotas could be made by Government--Nine persons were selected for direct appointment--Question of--In final Seniority List promotes was assigned seniority above petitioner and respondents in accordance with provisions of R. 6--He was promoted in same calendar year i.e. 1999 in which petitioner and respondents were appointed by initial appointment--Held: Rule relates only to actual dates of promotion and appointment for purposes of assignment of seniority and does not consider other factors like dates of recommendations or selections made by Federal Public Service Commission--There is no law under which the petitioner and respondents can be deemed to have been appointed in the year 1998 when they were merely recommended and selected for appointments by FPSC--They were appointed from dates specified in their appointment letters in the year 1999--Principle for determination of inter se seniority of those who are appointed by initial appointment in same batch--Action of the Ministry in revision the seniority list was against the law and the rules--Leave refused.
[P. 124] A
Hafiz S.A. Rehman, Sr. ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 16.9.2008.
Order
M. Javed Buttar, J.--This petition is directed against the judgment dated 18.6.2008 passed by Federal Service Tribunal, Islamabad whereby appeal filed by Respondent No. 1, Mian Muazzam Shah challenging/assailing the seniority list issued by Respondent No. 2 on 5.10.2005, was allowed and Respondent No. 1 was declared to be senior to the petitioner and Respondents No. 3 and 4. It was also held that Respondent No. 1 would be entitled to all consequential benefits including consideration for promotion on the basis of seniority assigned to him in the list dated 6.5.2003.
"D.M-II/D.M-I
13.12.2003
Sd/-
(Muhammad Azam Warriach)
Draftsman
15th December, 2003 "
On 23.9.2004 Secretary, Population Welfare Division ordered assignment of seniority of petitioner and Respondents No. 3 and 4 over Respondent No. 1 by declaring the petitioner and Respondents No. 3 and 4 as belonging to the batch of 1998 and Respondent No. 1 as promotee of year 1999. However, in the next seniority list issued on 17.1.2005 Respondent No. 1 was again shown as senior to petitioner and Respondents No. 3 and 4 as being promotee of same calendar year in which petitioner and Respondents No. 3 and 4 were appointed. On 28.1.2005, petitioner represented against the said seniority list. On 5.10.2005 another seniority list was issued in which the petitioner and Respondents No. 3 and 4 were shown as senior to Respondent No. 1. Being aggrieved thereby Respondent No. 1 filed a departmental appeal and as the same was not responded, he filed Service Appeal No. 195(R)CS/2006 before the Federal Service Tribunal, Islamabad which, as mentioned above vide its judgment dated 18.6.2008 accepted the said appeal and held that Respondent No. 1 was senior to petitioner and Respondents No. 3 and 4 in the seniority list of BS-19 Non-Technical Officers and set aside the seniority assigned to petitioner and Respondents No. 3 and 4 over and above Respondent No. 1 in the seniority list issued on 5.10.2005. Hence this petition for leave to appeal.
We have heard the learned Senior ASC for the petitioner at length and have also seen the available record with his able assistance. It may also be mentioned that the petitioner in the meanwhile is alleged to have been promoted to BS-20 on 5.3.2008.
It is submitted that 9 persons were selected for direct recruitment by FPSC on 21.5.1998 and one Riaz Ahmed was placed at Serial No. 1 on the merit list and he was appointed on 1.10.1998 and the petitioner and Respondents No. 3 and 4 were also amongst those 9 persons who were selected by FPSC on 21.5.1998, however, as they were selected for initial appointment against posts which were reserved for appointments in Provincial/other quota and since the period given in Article 27 of the Constitution during which appointments against various quotas could be made by the government, expired, therefore, the appointments of the petitioner and Respondents No. 3 and 4 could not be made in 1998 and their appointments were made on 30.8.1999, 8.9.1999 and 13.9.1999 when the said period was extended through the constitutional amendment, hence, it was none of their fault which resulted in a delay of more than a year in their appointment; that Riaz Ahmed of their batch was appointed in 1998 on the basis of merit, the petitioner and Respondents No. 3 and 4 who belonged to the same batch, had to be given the seniority position immediately after him and none could be placed in between Riaz Ahmed and them. Reliance in this regard has been placed on Rule 2 of the Civil Servants (Seniority) Rules, 1993 which deals with inter se seniority in the same batch. It has also been argued that since the appointments of the petitioner and Respondents No. 3 and 4 were delayed due to no fault on their part, they shall be deemed to have been appointees of the year 1998 in which the said Riaz Ahmed was appointed as he belonged to their batch. It has further been argued that the seniority lists issued on 6.5.2003 and 17.1.2005 were erroneous and Ministry of Population Welfare, had the right to correct the mistake in consultation with Establishment Division and Ministry of Law, hence the final seniority list dated 5.10.2005 was competently and lawfully issued and Federal Service Tribunal, Islamabad illegally interfered with the same.
The arguments of the learned Sr. ASC have no force and this petition has no merit. In the seniority list dated 6.5.2003, Respondent No. 1 who was a promotee, was assigned seniority above the petitioner and Respondents No. 3 and 4 in accordance with the provisions of Rule 6 of the Civil Servants (Seniority) Rules, 1993. He was promoted in the same calendar year i.e. 1999 in which the petitioner and Respondents No. 3 and 4 were appointed by initial appointment. The said rule relates only to the actual dates of promotion and appointment for purposes of assignment of seniority and does not consider other factors like the dates of recommendations or selections made by FPSC. There is no law under which the petitioner and Respondents No. 3 and 4 can be deemed to have been appointed in the year 1998 when they were merely recommended and selected for appointments by FPSC. They were appointed from the above mentioned dates specified in their appointment letters in the year 1999. As far as Rule 2 of Civil Servants (Seniority) Rules, 1993 is concerned, which has been relied upon by the learned Sr. ASC for the petitioner, it lays down the principle for determination of inter se seniority of those who are appointed by initial appointment in the same batch. It is not related to seniority of promotees Vs. appointees by initial appointment for which the relevant rule is Rule 6 of the above Rules. Therefore, the action of the respondent-Ministry in revising the seniority list dated 6.5.2003 through seniority list dated 5.10.2005 was against the law and the Rules. It is also observed that the promotion of the petitioner in the meanwhile to BS-20 or for that matter the promotion either of Respondents No. 3 and 4 in. the meanwhile to BS-20 would not change the fact that Respondent No. 1 is senior to them.
In view of the above mentioned, we find no merit in this petition which is dismissed and leave refused.
(S.A.) Leave refused.
PLJ 2009 SC 125
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, M. Javed Buttar & Muhammad Qaim Jan Khan, JJ.
FAZAL MUHAMMAD--Petitioner
versus
GOVT. OF NWFP, etc.--Respondents
Civil Petition No. 316-P of 2007, dismissed on 25.8.2008.
(On appeal from the judgment dated 28.2.2007 of the NWFP Service Tribunal, Peshawar passed in Appeal No. 224 of 1996).
NWFP Civil Servants (Appointment, Promotion & Transfer) Rules, 1989--
----R. 17(b)--Constitution of Pakistan, 1973, Art. 212(3)--Leave to appeal--Appointment of petitioner and respondent as Auditor in Local Fund Audit Department NWFP--Seniority--Determination of--Petitioner as well as respondent were selected and appointed in same batch--Admittedly, Respondent is older in age than petitioner--Held: Petitioner assumed duties earlier would not adversely affect the seniority position of respondent--Impugned judgment of Tribunal is plainly correct to which no exception can be taken--No question of public importance is involved as contemplated in Art. 212(3) of Constitution of Pakistan, 1973 so as to warrant interference by Supreme Court--Leave to appeal refused. [P. 126] A
Mr. Siddiq Haider Qureshi, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 25.8.2008.
Judgment
Faqir Muhammad Khokhar, J.--The petitioner and the Respondent No. 3 (Azmatullah) were selected by the Selection Committee and were appointed as Auditor (BPS-11) in Local Fund Audit Department, NWFP. However, Respondent No. 3 could not assume the charge of the post as sanction of relaxation in age limit was awaited. Therefore, he joined his duties ten days later than the petitioner. Initially the petitioner was shown senior to the Respondent No. 3 in the seniority lists. However, the seniority dispute was resolved by the departmental authorities in favour of the Respondent No. 3 who was found senior to the petitioner both in order of merit and age. In the final seniority list as it stood on 31.12.1995, the Respondent No. 3 was shown at Serial No. 33 and the petitioner next below him. The petitioner, therefore, filed Appeal No. 224 of 1996 which was dismissed by the N.W.F.P Service Tribunal. The case was earlier remanded by this Court. The Tribunal, by impugned judgment dated 28.2.2007, dismissed the service appeal of the petitioner. Hence, this petition for leave to appeal.
The learned counsel vehemently argued that the petitioner and Respondent No. 3 were selected from Zones 1 and 2 respectively. Moreover, the petitioner had joined his duties in the department earlier than the Respondent No. 3. Therefore, in terms of sub-rule (b) of Rule 17 of the NWFP Civil Servants (Appointment, Promotion & Transfer) Rules, 1989, the seniority of both parties was required to be determined with reference to the date of regular appointment to the post and the Respondent No. 3 could not be declared to be senior to the petitioner by any stretch of imagination.
We have heard the learned counsel at length and have also perused the available record. We find that the petitioner as well as the Respondent No. 3 were selected and appointed in the same batch. Admittedly, the Respondent No. 3 is older in age than the petitioner. The mere fact that the petitioner assumed the duties earlier would not adversely affect the seniority position of the Respondent No.
In our view, the impugned judgment of the Tribunal is plainly correct to which no exception can be taken. Moreover, no question of public importance is involved as contemplated in Article 212(3) of the Constitution of Islamic Republic of Pakistan so as to warrant interference by this Court.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(S.A.Sh.) Leave refused.
PLJ 2009 SC 137
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
BASHIR AHMED--Petitioner
versus
MUHAMMAD SIDDIQUE and others--Respondents
Civil Petition No. 386 of 2008, decided on 11.8.2008.
(On appeal from the judgment dated 26.2.2008 of the Lahore High Court, Lahore passed in W.P. No. 2420 of 2007).
Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6, 7 & 8--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Application for transfer of application of the case from Anti-Terrorism Court to Court of ordinary jurisdiction--Application was dismissed--Constitutional petition was accepted by High Court--Challenge to--Blood feud enmity between the parties--Question of--Whether an offence would fall within ambit of S. 6 of Anti Terrorism Act and an act of terrorism or not, the motivation, object, design or purpose behind Anti-Terrorism Act, is to be seen--Validity--Motive was enmity inter-se the parties--Application of S. 7 of Act, 1997 which requires the spread of sense of insecurity and fear in common mind is lacking in the instant case--Occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders were committed owing to previous enmity between two groups--Held: Fear or insecurity must not be a by product, fall out or unintended consequence of a private crime--Creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive--Further held: Where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of S. 6 of the Act and shall be triable by a Special Court constituted for such purpose--Special Court has no jurisdiction to try the offence as it did not fall within the ambit of the Act and is triable by an ordinary Court having jurisdiction--Leave refused.
[Pp. 139, 140 & 141] A, B & C
Mr. Arshed Ali Chaudhry, AOR for Petitioner.
Syed Zahid Hussain, ASC for Respondent No. 2.
Mian Asif Mumtaz, Deputy Prosecutor General for State.
Date of hearing: 11.8.2008.
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against the judgment dated 26.2.2008 passed by a learned Division Bench of Lahore High Court, Lahore, whereby Writ Petition No. 2420 of 2007 filed by Respondent Nos. 1 to 4 was allowed, the case titled Muhammad Siddique etc versus The State was withdrawn from Anti-Terrorism Court, Lahore and sent to Sessions Judge, Sheikhupura for trial.
1.00 p.m. complainant Bashir Ahmed, Ameer Ali alias
Bhutto his brother and others, were on the way in motorcars from Sharaqpur
Sharif to village Fatoowala'. When they reached near thehaveili' of Naseem alias Mithoo, all of a sudden respondents Muhammad Siddique, Muhammad Yaqoob, Muhammad Khalid Mahmood and Muhammad Idrees and others, duly armed, emerged from the said `haveili' and started firing at the complainant party, as a result of which, four persons namely Ameer Ali alias Bhutto, Jamil Ahmad, Muhammad Ashraf and Mushtaq Ahmad lost their lives and Mohammad Arfakhshand sustained serious injuries. After accomplishing the mission, respondents made good their escape, while making aerial firing, creating terror, insecurity and traumatic effect in the locality. The motive leading to the incident was stated be blood feud enmity between the parties. The case was registered against the respondents and others vide FIR No. 428/2006, under Sections 302/324/148/149 and 109 PPC. During the investigation of the case, Section 7 of Anti-Terrorism
Act, 1997 was also inserted. Respondent Nos. 1 to 4 and others moved an application for transfer of the case from Anti-Terrorism Court to the Court of ordinary jurisdiction, which was dismissed vide order dated 7.3.2007. Feeling aggrieved, Respondent Nos. 1 to 4 filed writ petition which was accepted by a
Division Bench of Lahore High Court, Lahore through the impugned judgment, necessiating filing of the present petition.
We have heard Mr. Arshed Ali Chaudhry, Advocate for the petitioner, Syed Zahid Hussain, Advocate for Respondent No. 2 and Mian Asif Mumtaz, learned Deputy Prosecutor General for the State in the light of the material on file.
Learned counsel for the petitioner, bitterly criticised the impugned judgment and attempted to argue that learned High Court has not followed the guidelines recorded by this Court in case titled "Mst. Najam-un-Nisa versus Judge Special Court, etc." (2003 SCMR 1323) and transferred the case to the Court of Sessions Judge, Sheikhupua without any justifiable reason, totally ignoring that four innocent persons were murdered and one sustained serious injuries at the hands of respondents and their companions and it had the effect of striking terror and creating a sense of fear and insecurity in the locality. Learned counsel reiterated that where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. To substantiate the contentions, learned counsel placed reliance on Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521), Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) and Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah. 199).
On the contrary, learned Deputy Prosecutor General assisted by learned counsel for Respondent No. 2, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment whole heartedly and prayed for its sustenance.
In order to determine as to whether an offence would fall within the ambit of Section 6 of the Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances.
It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under Sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect.
Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. A perusal of the record would reveal, that occurrence has taken place in front of the haveli' of the respondents, situated in villageFatoowala'. The motive for the occurrence is enmity inter-se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter-se the parties, the application of
Section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups. The present case, as observed above, does not fulfill the requirements laid down in the judgment titled as
"Basharat Ali v. Special Judge Anti-terrorism Court-II, Gujranwala (PLD 2004 Lah. 199), wherein it was held that fear or insecurity must not be a byproduct, fall out or unintended consequence of a private crime. As such, creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive. The gist of the citation is that act of terrorism desires to be determined from the yardstick and scale of motive and object, instead of its result or after effect. From the facts of case, the definition of terrorism is not attracted as the said offence has neither created any threat to coerce or intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society.
Reference in this regard can be made on Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521), Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) and Basharat Ali v. Special Judge Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah.
199).
In Bashir Ahmad's case (supra), a reference was made to Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445, in which it was observed that:--
"The offences mentioned in the schedule should have nexus with the object of the Act and the offences covered by Sections 6, 7 and 8 thereof. It may be stated that Section 6 defines terrorist acts, Section 7 provides punishment of such acts, and Section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clause (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires."
From the entire resume, it is manifest on record that intention of the respondents was not at all to create sense of insecurity or destabilize the public-at-large or to advance any sectarian cause. Thus, we are of the view that the design or purpose of the offence as contemplated by the provisions of Section 6 of the Act is not attracted. Reference can be made to the case of this Court reported as Bashir Ahmad v. Naveed Iqbal PLD 2001 SC 521 whereby sprinkling of spirit on the person of victim was made within the boundary walls of the house of petitioner which was not a public place and accordingly the element of a striking terror or creating sense of fear and insecurity in the people or any section of the people was found missing, therefore, the order of transferring the case to the Court of learned Sessions Judge passed by the High Court was upheld.
After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in Section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of FIR, its cumulative effect on the society or a group of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of Section 6 of the Act and shall be triable by a Special Court constituted for such purpose but in the instant case position is all together different. Learned Special Court has no jurisdiction to try the offence as it did not fall within the ambit of the Act and is triable by an ordinary Court having jurisdiction.
In view of the above, we do not find any merit in this petition, which is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 141
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ch. Ejaz Yousaf & Sheikh Hakim Ali, JJ.
MUHAMMAD YAMEEN alias RAJA--Appellant
versus
STATE and others--Respondents
Crl. Appeal No. 131 of 2006, decided on 9.7.2008.
(On appeal from the order dated 20.2.2006 and judgment dated 11.3.2006 of the High Court of Sindh, Karachi, passed in Spl. A.T. Acquittal Appeal No. 60 of 2001).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Statements were recorded after more than one month and 21 days--Validity--According to police record, statements of the witnesses were recorded on 30.10.2000 while deposing on oath prosecution witness had given the date of recording of his statement as 30.11.2000--Held: Such creating doubts in their statements with regard to their presence, at the time of alleged occurrence, recording of statement and identification parade which was not held on 25.11.2000 in a transparent manner. [P. 147] A
Identification Test--
----Description or features of accused--No value--Mere mentioning of a young boy in FIR cannot be considered sufficient for detection of an accused--Identification test was not given any weight when the impression of the accused given by prosecution witnesses was that one accused was in show-cause and shirt and other were in shalwar kamiz--Description was not considered helpful at the time of identification test--Held: Mere mentioning of a young boy in FIR, therefore, cannot be considered sufficient for the correct detection of an accused at the identification parade. [P. 147] B
Appreciation of evidence--
----Identification parade--Weakest type of evidence--Held: Identification parade has last its worth when prosecution witnesses had admitted that the accused was produced before Magistrate in custody of the police--Statements of the witnesses was is more than enough to pronounce acquittal of the accused in the case. [P. 147] C
Identification Test--
----Delay of 76 days--Not described the role of the accused--Validity--Identification test was conducted after a lapse of 76 days and at time of identification test, prosecution witnesses had not described the role of each accused, which was played by them at the time of alleged occurrence--Memo of identification test has also not shown the details, names and addresses of documents--Legal infirmities due to which the identification test has lost its verity. [P. 147] D
Malik Shehzad Ahmed Khan, ASC for Appellant.
Mr. M. Qasim Mirjat, AAG Sindh with Raja Abdul Ghafoor, AOR for State.
Nemo for other Respondents.
Date of hearing: 9.7.2008.
Judgment
Sheikh Hakim Ali, J.--On 10.9.2000, an FIR No. 131/2000 was got registered by one Naib Subedar Manzoor Ahmed son of Ghulam Nabi, resident of 12-Liaqat Barrak, Karachi, with Police Station Saddar, District South Karachi, with regard to an occurrence of murder having taken place inside Kapasi Clinic, Missfield Street, Jabbar Plaza Saddar, Karachi. The contents of the FIR, which was in English, is reproduced in verbatim as under:--
"I live on above mentioned address and I work as Naib Sobedar in Pakistan Army. On 9.9.2000 at 8.20 in the night I was present in my unit at that time Hawaldar Abdul came and informed me that any unknown accused have seriously injured Hawaldar Muhammad Akram in Saddar by making fire. I immediately reached Kapaci Clinic in Saddar. I saw Hawaldar Muhammad Akram there in serious injured condition and made enquiry. I came to know from Abdul Hameed and other peoples who were present there that a young person at about 8 O'clock in the night by standing at the gate of Kapaci Clinic situated at Jabbar Plaza Missfield Street Sadder due to some unknown reason have fired one bullet shell with pistol on the left side of left eye of Hwaladar Muhammad Akram with intention to kill who was sitting in Kapaci Clinic and the accused fled away on foot. I along with Abdul Hameed removed Muhammad Akram to PNS Shafa in injured condition immediately in my vehicle where during operation and treatment he died at about 12.45 in the night. I have brought the dead body to Jinnah Hospital for legal proceedings and post-mortem. My complaint is against unknown accused persons to murder Hawaldar Muhammad Akram due to some unknown reason by making firing with fire-arm during performing Govt. duty. Legal action may be taken. Heard the statement and is correct."
"1. Manzoor Ahmed as PW.1 Ex.9 dated 1-2-2001. He produced the inquest report & memo of dead body of the deceased named above and his own 154 Cr.P.C. statement as Ex.9-A to 9-C respectively.
Dr. Jabir Kapasi as PW.2 Ex. 10 dated 1.2.2001. He produced memo of inspection of place of Wardat and recovery of the incriminating material such as the empty bullet and bloodstained earth etc. as Ex. 10-A.
William Masih as PW.3 Ex. 11 dated 10.2.2001. He produced nothing.
Abdul Hameed as PW.4 Ex.12 dated 10.2.2001. He produced nothing.
ASIP Safdar Zaman as PW.5 Ex.13 dated 14.2.2001. He produced the FIR of the case mentioned above as Ex. 13-A.
SIP Muhammad Akram as PW.6 Ex.14 dated 14.2.2001. He produced the receipt of the dead body as Ex. 14-A.
Dr. Dilip Khatri the MLO, Jinnah Hospital as PW.7 Ex.15 dated 19.2.2001. He produced the post mortem examination report, medical certificate of cause of death of the deceased named above and police request for observing the required formalities in respect of the said body as Ex. 15-A to 15-C respectively.
Dr. Zofishan as PW.8 Ex.16 dated 19.2.2001. She produced the medical record of the PNS Shifa Hospital as to treatment and death of the said deceased as Ex. 16-A and 16-B respectively.
PC Muhammad Iqbal as PW.9 Ex.17 dated 19.2.2001. He produced the memo of arrest and personal search of the accused Muhammad Yameen as Ex. 17-A.
PC Mujahid Iqbal as PW.10 Ex.18 dated 19.2.2001. He produced the memo of arrest and personal search of the accused Israr as Ex.18-A.
Mr. Javed Meer, the Judicial Magistrate, 8, South, Karachi as PW.11 Ex.19 dated 21.2.2001. He produced the police request and memos of the identification test held on his part in respect of the accused persons through the said four witnesses of the prosecution and their 164 Cr.P.C. statements etc. as Ex. 19-A to 19-G respectively.
Mr. Rahmatullah Moro, the Judicial Magistrate, 10, South, Karachi as PW.12 Ex.20 dated 21.2.2001. He produced confessional statements of the said accused persons and other relevant record thereof as Ex.20-A to 20-F respectively.
Tahir Khalique as PW.13 Ex.21 dated 24.2.2001. He produced nothing.
Inspector Syed Naimul Hassan, the I.O. of the case as PW. 14 Ex.24 dated 13.3.2001. He produced the FSL report regarding the said empty bullet, chemical examiner report as to the said bloodstained earth and memos of pointation of the accused persons of the place of wardat etc as Ex.24-A to 24-D respectively."
After closure of the evidence of the prosecution, statements of the accused under Section 342 Cr.P.C. was recorded by the learned Judge, Anti-Terrorism Court No. 1, Karachi. After appreciation of the evidence brought on the record, the learned Judge acquitted all the accused, as it was found by the learned Judge that the prosecution had failed to prove its case beyond reasonable doubt. This judgment announced on 14.4.2001 by the Anti-Terrorism Court No. 1 Karachi was challenged before the learned High Court of Sindh at Karachi, wherefrom acquittal of Muhammad Yameen was reversed through short order dated 20.2.2006, while the detailed judgment was delivered on 11.3.2006 by learned Division Bench of the High Court of Sindh at Karachi. Hence, this criminal appeal by Muhammad Yameen alias Raja, appellant.
According to the above noted impugned judgment Muhammad Yameen was convicted under Section 302(b) PPC read with Section 7(ii) of the Anti-Terrorism Act, 1997 and was awarded life imprisonment. He was also ordered to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased in accordance with provision of Section 544-A of the Cr.P.C. or in default, to suffer R.I. for a period of six months more. The acquittal of the other two accused was, however, maintained.
Appellant's learned counsel submits that the prosecution had cooked up a case against the appellant on the basis of following three heads:--
(i) Judicial confession;
(ii) Ocular testimony; and
(iii) Identification test.
As per learned counsel, the learned High Court has disbelieved the alleged judicial confession, to be a legal confession and declared it to be an incredible piece of evidence. Learned counsel states that the trial Court has also discarded the judicial confession, having been allegedly made voluntarily before Rehmatullah Moro, Magistrate (PW.12). Therefore, this piece of evidence having been concurrently found implausible by both the learned Courts below, cannot be used against the appellant at this stage, as the State has failed to challenge these findings also in this Court.
The second segment of evidence which was brought on record by the prosecution was the ocular testimony in the shape of statements of Dr. Jabbar Kapasi (PW.2), William Masih, Dispenser (PW.3), Hawaldar Abdul Hameed (PW.4) and Tahir Khalique (PW.13). Learned counsel submits that this part of evidence of these four witnesses was also not reliable to convict the appellant, because the statements of all these witnesses were full of discrepancies and was not of such a nature so as to convict the appellant for the life imprisonment. Learned counsel argues that according to statement of Dr. Jabir Kapasi (PW.2) he had only heard a voice inside the Clinic where someone had demanded the key of vehicle, and that he was not an eye-witness of the actual occurrence. Learned counsel submits that it could not be established by the prosecution that the appellant was the person who had fired upon the deceased. As regards statement of PW.3, William Masih, he had also not seen the commission of occurrence while PW.4 Hawaldar Abdul Hameed, although he had stated in his deposition that a boy had come to the Clinic and had fired a shot at the deceased through his pistol, the name, features of that accused was never mentioned in the FIR nor in the statements, recorded under Section 161 Cr.P.C. The demand of key of motorcycle by the culprit from Akram deceased before the actual firing were not mentioned. The fourth alleged eye-witness was Tahir Khalique (PW.13). His evidence was also incredible because in the statement recorded under Section 161 Cr.P.C., he had not given any feature of the accused who had allegedly fired at the deceased in his presence. Therefore, his evidence is also not reliable. Learned counsel has referred to PLD 1995 SC 1 (State v. Farman Hussain), to support his contention that when features/details of the culprit is not given in the FIR or in the statement recorded under Section 161 Cr.P.C. his statement is not to be believed.
Learned counsel has also challenged the validity of the identification parade by stating that the prosecution witnesses had an opportunity to see the appellant, before the identification parade was conducted, as it was admitted by PW.3 William Masih that the accused was produced in handcuffs. Therefore the identification parade which had other many infirmities was also not a piece of evidence, on which a prudent man could act upon to award sentence to an accused person.
The learned AAG appearing for the State has supported the judgment of the learned High Court of Sindh by stating that PWs 2 to 4 and 13 had fully supported the case of the prosecution. They had picked up the appellant during the identification parade, conducted by the learned Magistrate. Therefore, the appeal filed by the appellant may be dismissed.
After hearing the arguments and examining the record of the case, we have found that in the FIR, the basic document which is the first foremost document of vital importance, and the case of the prosecution commences upon that document, there is no mention of the description and features of the culprit. It is important to note that the presence of the alleged eye-witnesses PWs. 2, 3 and 13 was also not entered in the aforementioned FIR. Even the details of the occurrence with regard to the demand of the key of motor-bike was lacking in the FIR. There is another important aspect of the case which has created an impression of doubt regarding the implication of appellant into the occurrence. The alleged eye-witnesses had failed to mention the prominent characteristic of the culprit in their statements even recorded under Section 161 of the Cr.P.C. There is no explanation as to why the particulars were not provided in the aforementioned statement although these were four alleged eye-witnesses of the occurrence. It has also transpired from the record that statements under Section 161 Cr.P.C. of these witnesses were recorded after more than one month and 21 days. According to the police record, statements of these witnesses were recorded on 30.10.2000 while deposing on oath PW Abdul Hameed had given the date of recording of his statement as 30.11.2000. Thus, creating doubts in their statements with regard to their presence, at the time of alleged occurrence, recording of their statement and identification parade which was not held on 25.11.2000 in a transparent manner. In 1993 SCMR 585 (State/Government of Sindh v. Sobharo), it was held that ocular account of the eye-witnesses who had not given description or the features of the accused, they had seen at the time of occurrence, were to be disbelieved thereafter, at the stage of identification test. In PLD 1995 SC 1 (supra) identification test was not given any weight when the impression of the accused given by the PWs was that one accused was in show-cause and shirt and two others were in Shalwar-Kamiz. This description was not considered helpful at the time of identification test. In the instant case, the mere mentioning of a young boy in the FIR, therefore, cannot be considered sufficient for the correct detection of an accused at the identification parade. This sole aspect of the case is enough to destroy the veracity of the prosecution case. However, we have considered the other piece of evidence relied upon by the prosecution i.e. identification parade. This piece of evidence, as has been held in many cases, is the weakest type of evidence. In the instant case, identification parade has lost its worth when William Masih (PW.3), Tahir Khalique (PW.13) had admitted that the appellant was produced before the learned Magistrate in handcuffs and in the custody of the police. Therefore, the statements of these two witnesses is more than enough to pronounce acquittal of the appellant in the case. Moreover, this identification test was conducted after a lapse of 76 days and at the time of identification test, the PWs had not described the role of each accused, which was played by them at the time of the alleged occurrence. Memo of identification test has also not shown the details, names and addresses of the dummies. There are many other legal infirmities due to which the identification test has lost its verity.
Therefore, we are inclined to acquit the appellant from the present case. Imposition of payment of an amount of Rs. 1,00,000/- as compensation to the legal heirs of the deceased and in default thereof to undergo further sentence of six months R.I. is also remitted. We, therefore, allow this appeal, set aside the impugned judgment of the learned High Court and acquit the appellant from all the charges levelled against him. Accordingly, he shall be released forthwith if not required in any other case.
(R.A.) Appeal allowed.
PLJ 2009 SC 148
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ASLAM (AMIR ASLAM) and others--Petitioners
versus
DISTRICT POLICE OFFICER, RAWALPINDI and others--Respondents
C.P. Nos. 652, 653 of 2008 and Crl. P. No. 270 of 2008, decided on 21.8.2008.
(On appeal from the judgment dated 28.4.2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, in W.P. Nos. 55 and 179 of 2008).
Constitution of Pakistan, 1973--
----Arts. 199, 4 & 9--Fundamental rights--Duty of Courts--Held: Courts have to safeguard the fundamental rights of every citizen and to protect their life & liberty from illegal, unauthorized and malafide acts of omission or commission by an authority or person--In cases where the liberty of citizen was involved, the action of police when found mala fide, the Court should not hesitate to step in and grant relief to the citizens. [P. 151] A
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Control of Narcotic Substances Act, 1997, S. 9-C--Recovery of charas--Quashment of FIR--Petitioner was in jail for more than 8 months--Not a single witness had been examined and the trial was being delayed on one pretext or the other--Medical Board noted a number of multiple injuries on the person of the petitioner, besides fracture of his leg, showing the atrocities of the police--No traces of charas were found in the initial report of chemical examiner--No offence was made out and the charge on the face of it appeared to be groundless and there was no possibility of conviction--FIR quashed. [Pp. 151 & 155] B, C, D, E & F
1994 SCMR 1283, 2002 SCMR 1076, PLD 2007 SC 85 &
PLD 2002 SC 590, ref.
Sardar M. Latif Khan Khosa, ASC & Ch. Akhtar Ali, AOR for Petitioners.
Ch. Munir Sadiq, D.P.G. for Respondents.
Date of hearing: 21.8.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned petitions for leave to appeal, proceed against a common judgment dated 28.4.2008 and order dated 22.7.2008 passed by Learned Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petition Nos. 55 and 179 of 2008 and Crl. Misc. No. 604-B of 2008 filed for quashment of FIRs and for grant of bail to petitioner Muhammad Aslam (Amir Aslam), have been dismissed.
The facts as gathered from the record are, that the petitioners invoked constitutional jurisdiction of learned High Court by way of filing above mentioned petitions for quashment of FIR Nos. 951 and 952 dated 9.12.2007 registered at Police
Station, Civil Lines, Rawalpindi under Section 9-C of the Control of Narcotic
Substances Act, 1997, averring that house of the petitioners was raided on the night of 28th of May, 2005 by Civil Lines Rawalpindi police and besides violating the privacy of the house, petitioner Muhammad Aslam was mercilessly beaten as a result of which his right leg was fractured. Against such criminal misdeeds, Writ Petition No. 1508 of 2005 was filed before learned Lahore High
Court, Rawalpindi Bench, for registration of a criminal case against respondent police officials which was disposed off with the direction to approach the
Court of Sessions in the first instance. Sequel to petition under Section 22-A of the Code of Criminal Procedure, learned Additional Sessions Judge, Rawalpindi, vide order dated 28.6.2005 referred the matter to District Police
Officer, Rawalpindi, for proceedings in accordance with law in the light of submissions made in the said petition. However, since nothing came out therefrom, the petitioners were constrained to file Writ Petition No.
3293/Q/2005 which was admitted to regular hearing and is pending adjudication.
Petitioners also averred that in furtherance to nefarious designs, petitioner
Muhammad Aslam was arrested by S.I. Muhammad Ramzan of Police Station, Civil
Lines, Rawalpindi and subjected to torture on the night between 8th and 9th of
December, 2007 and thereafter lodged the mentioned FIRs against petitioners
Muhammad Aslam and Muhammad Imran, alleging that they were riding on a motorcycle and when stopped at Marrir Hassan' bus stop, Rawalpindi, the motorcycle slipped as a result of which petitioner Muhammad Aslam was hauled up while Muhammad Imran succeeded to make good his escape. A shopping bag containingchars' weighing 1150 grams was recovered from the possession of petitioner Muhammad Aslam whereas Muhammad Imran while running threw a shopping bag containing 1111 grams of `chars' wrapped in a plastic paper. Petitioner
Muhammad Aslam applied for bail to learned Additional Sessions Judge, Rawalpindi, which was dismissed vide order, dated 29.5.2008.
The above referred writ petitions for quashment and Crl. Misc. for grant of bail were dismissed by learned High Court vide impugned judgment and order, giving rise to the filing of instant petitions.
We have heard Sardar Muhammad Latif Khan Khosa, Advocate for the petitioners and Ch. Munir Sadiq, Deputy Prosecutor General for the State. We have also examined the record with their assistance.
Learned counsel for the petitioners bitterly criticised the impugned judgment and order and contended that petitioners had no hand in the affair and they have been falsely implicated in the case and made victim of excesses on account of refusal of Mst. Anwar Sultana, sister of the petitioners, to withdraw the case against officials of Civil Lines Police Station, Rawalpindi, registered pursuant to the orders of learned Sessions Judge, Rawalpindi. Learned counsel also submitted that material on record has not been appreciated in its true perspective and provisions of Sections 173 and 344 Cr.P.C. had been flagrantly violated in this case. Concluding the arguments, learned counsel contended that in view of facts and circumstances of the case, learned High Court had no justification to decline to grant bail to Muhammad Aslam petitioner, quash FIRs in question and dismiss the writ petitions in limine. To supplement the contentions, reliance was placed on Government of Sindh through the Chief Secretary, Karachi and four others vs. Raeesa Farooq and five others (1994 SCMR 1283), Maqbool Rehman vs. The State (2002 SCMR 1076 and The State vs. Amjad Ali (PLD 2007 SC 85).
Conversely, learned Deputy Prosecutor General, defended the impugned judgment and order maintaining that the course of action adopted by learned High Court was neither illegal nor arbitrary or opposed to the settled principles of law of safe dispensation of justice and that the High Court was perfectly justified in dismissing the writ petitions and refusing to quash the proceedings pending against the petitioners.
The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. In cases where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizens.
In this case we find that petitioner Muhammad Aslam is in jail ever since his arrest on 9.12.2007. Sub Inspector Nazir Ahmed, on Court's query stated that all the witnesses except the Investigation Officer, had been examined and the trial is likely to conclude in near future. However, on verification it transpired that not a single witness has been examined and the trial is being delayed on one pretext or the other. When attention of the Sub
Inspector was drawn to this aspect of the case, he had no plausible reply to make. Record reveals that pursuant to Court order a Medical Board was constituted to examine petitioner Muhammad Aslam. The Board noted a number of multiple injuries on the person of the petitioner. One of the legs of the petitioner was also found fractured. This shows the atrocities committed by the police. We also find that in the initial report of the Chemical Examiner, traces of chars' were not found and the Chemical Examiner asked for further sample. It was held by this Court in The State vs. Amjad Ali (PLD 2007 SC 85) thatonce a substance had been tested then extraordinary reasons must exist and must be given before directing fresh examination of such a substance'. We also find force in the submission of learned petitioner's counsel that formalities of Sections 173 and 344 Cr.P.C. had not been complied with and challan against the petitioner has not been submitted within the stipulated period, resulting in grave miscarriage of justice.
"8. It is not only this case in which it has been noticed that the Investigating Agency as well as District Attorneys have failed to submit challan of the case registered against accused within the stipulated period but in majority of the case the police report/challan under Section 173, Cr.P.C. is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial and ultimately for such reasons accused claim bail despite their detention in the offences which are heinous in nature because denial of bail to an accused in non-bailable offence under the circumstances would be against the principle of administration of justice.
Admittedly for such delay no one else except the police and the office of the District Attorney can be held responsible for not submitting the challan surprisingly, in the instant case, the representatives of both the agencies i.e. the then Superintendent of Police, Mandi Bahauddin and the District attorney instead of accepting their fault found their rescue for not complying with the mandatory provisions of law under Section 173 Cr.P.C. started blaming each other but ultimately failed to furnish satisfactory explanation for not complying the process of submission of challan within stipulated period of 14 days. Factually both the agencies are equally responsible for not complying with the provisions of law because as far as Superintendent of Police is concerned he is not only a figure head of the District Police but it is his one of the duty to adopt effective devices to ensure that criminal cases registered by the police within his jurisdiction are processed strictly in accordance with law and it is not possible to submit final challan then he should ensure submission of at least interim challan in terms of proviso to Section 173 (1), Cr.P.C. and if the SHOs or investigating officers are found negligent in not complying with the mandatory provisions of law, he should initiate action against them promptly and if he himself is contributory in this behalf for any reason then action could also be initiated against him departmentally as well as by the Courts for causing delay in the trial of cases and detaining accused person in custody without trial contrary to the provision of Article 9 of the Constitution of Islamic Republic of Pakistan because this Article provides that no person shall be deprived of his life for liberty save in accordance with law. Therefore if an accused is arrested in a cognizable offence by the police or law enforcing agencies it is his right to be dealt with save in accordance with law i.e. a justification has to be shown for his detention in custody because on the arrest of an accused initially he can be detained without permission of the Court for a period of 24 hours under Section 61, Cr.P.C. and if during this period investigation of the case is not completed and the police has reasons to believe that the accusation or information is well founded then he shall be produced before the Magistrate who after having satisfied himself about progress of the case may authorize detention of such person in police custody for a period not exceeding 15 days as a whole under Section 167, Cr. P.C. on completion of maximum period of police remand the accused becomes entitled for trial and every investigating officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation, challan is to be submitted before the Court of competent jurisdiction through the Public Prosecutor, as per Section 344, Cr.P.C. it is the duty of the police officer to furnish justification for detention of accused in custody if challan under Section 173, Cr.P.C. has not been filed and trial has not commenced, otherwise in absence of report of a police officer of challan detention of the accused would be unjustified and against the provisions of law.
Delay in submission of challan/police report under Section 173, Cr. P.C. has been noticed invariably in the criminal cases, despite the fact that Section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.
Undoubtedly Section 173, Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the Police Departmental and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of Section 173, Cr.P.C. ineffective by not following its sprit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned investigating officers as it has exactly happened in the instant case because the then Superintendent of Police Mandi Bahauddin who is supposed to be Incharge of criminal cases as per Rule 5.1, Chapter 5 of the Punjab Law Department Manual, 1938 failed to furnish reasons for not submitting the challan before the Court through Public prosecutor as per the provisions of Section 173, Cr.P.C. Similarly Public Prosecutor who is also the Incharge of District Prosecution Agency in terms of Rule 5-A, 2 Chapter 5-A of the Punjab Law Department Mannual, 1934 could not satisfy the Court for not submitting the challan/police report final or interim within the stipulated time.
It may be noted that in the case of Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge sheet of report under Section 173, Cr.P.C. of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution Agency we are of the opinion that in absence of good working relations between both the agencies it is not possible to strictly adhere to the provisions of Section 173, Cr.P.C. but on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard, the Court which had been granting judicial remand of the petitioner in terms of Section 344, Cr.P.C. would also equally responsible for the delay in commencement of trial case because if it had insisted hard upon police to comply with the provisions of Section 173, Cr.P.C. or to face consequence for keeping the accused in custody there was no reason that concerned SHO/Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with the matter. We are sure that if the provisions of Section 173, Cr.P.C. are complied with in letter and sprit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled.
We may observe here that on completion of period of police remand under Section 167, Cr.P.C. if final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of Section 173(1), Cr.P.C. or record reasons for remanding the accused to judicial custody for want of challan in terms of Section 344, Cr.P.C. and simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward. Similarly in the instant case the Magistrate as well as Additional Sessions Judge, who had been granting police or judicial remand without insisting upon the SHO/Investigation Officer to submit challan against him was not put up but when request for grant of bail was repeated he granted bail to the accused instead of initiating stern action against SHO/Investigation Officer as well as Superintendent of Police for not submitting the challan is also responsible for unjustified detention of the accused."
In the facts and circumstances of the case, we feel that continuation of the proceedings would be a futile exercise and wastage of time. In view of the material on file no offence has been made out and the charge on the face of it appears to be groundless and there is no possibility of conviction. In law, no-thing warrants for the argument that since charge has been framed by the trial Court, the proceedings could not be buried by way of quashment. There is no invariable rule of law and it was dependent on the facts of each case whether to allow the proceedings to continue or to nip in the bud. In our opinion, a case of interference by this Court is made out. Consequently, we convert Civil Petition Nos.652 and 653 of 2008 into appeals, and allow the same, setting aside the impugned judgment dated 28.4.2008 of learned High Court. Resultantly, FIR Nos. 952 and 953 dated 9-12-2007 registered at Police Station Civil Lines, Rawalpindi, are quashed. Jail authorities are directed to release Muhammad Aslam, petitioner, forthwith, if not required in any other case.
In view of the above, learned counsel for the petitioners does not press Criminal Petition No. 270 of 2008 for grant of bail to petitioner Amir Aslam. The same is dismissed as not pressed.
Above are the detailed reasons of our short order dated 21.8.2008.
(J.R.) Order accordingly.
PLJ 2009 SC 155
[Orginial Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
HARIS STEEL INDUSTRIES (PVT.) LTD. and 4 others--Petitioners
versus
THE NATIONAL ACCOUNTABILITY BUREAU
and others--Respondents
Const. Petitions No. 4 to 7 & 9 of 2008 and Crl. O.P. Nos. 44 & 48 of 2008, decided on 15.9.2008.
Constitution of Pakistan, 1973--
----Art. 186-A--Transfer of writ petitions--Held: Conduct of N.A.B. authorities especially at Lahore (N.A.B. Punjab) was not above board--Due to their coercive tactics, petitioners were unable to pursue remedy before High Court freely--Writ Petitions were transferred to Islamabad High Court in the interest of justice petitions were allowed. [Pp. 163 & 164] A
2003 SCMR 1085, 1999 SCMR 275 & 1994 SCMR 2009, ref.
Syed Sharif-ud-Din Pirzada, Sr. ASC, Mr. Wasim Sajjad, Sr. ASC, Mr. Ahmer Bilal Soofi, ASC & Mr. Arshad Ali Ch., (AOR) for Petitioners.
Raja M. Ibrahim Satti, Sr. ASC, Dr. Danishwar Malik PG NAB & Dr. M. Asghar Rana, ADPG NAB for Respondents Nos. 1 to 4.
Kh. Haris Ahmed, A.G. Punjab and Qazi M. Amin, Addl. AG Punjab for Respondents No. 5 & 6.
Mr. Arif Tasleem, Asstt. Manager for Respondent No. 7.
Sardar M. Latif Khan Khosa, Attorney General for Pakistan for Respondent No. 8.
Mr. M. Akram Sh., Sr. ASC & Ch. Akhtar Ali, AOR for Respondent No. 9.
Dr. Babar Awan, Sr. ASC for Respondents No. 11 & 12.
Date of hearing: 24.7.2008.
Order
Abdul Hameed Dogar, CJ.--By this single order was intend to dispose of Constitution Petitions No. 4, 5, 6, 7 and 9 of 2008 involving identical question. These petitions have been filed by petitioners under Article 186-A of the Constitution of Islamic Republic of Pakistan, 1973 for transfer of Writ Petitions No. 7104, 5192, 5847, 7852 and 4789 of 2008 pending before learned Lahore High Court to this Court.
"Send a copy of this petition along with allied documents to Respondent No. 3 for his report and parawise comments, so as to reach this Court on and before 1.7.2008.
To come up on 1.7.2008.
Meanwhile no uncalled for harassment shall be caused to the petitioners."
On 01.7.2008 the matter again came up for hearing before learned Division Bench consisting of Mr. Justice M.Bilal Khan and Mr. Justice Fazal-e-Miran Chauhan and following order was passed:--
"Report and parawise comments in terms of this Court's order dated 18.6.2008 have not been filed. Further time has been sought by the learned Senior Prosecutor NAB.
The learned counsel for the petitioner complains that the NAB authorities are incessantly harassing the petitioners; they are being subjected to one raid after the other during the course of which their vehicles, office equipments, cash amount and other valuable have been removed. It is further complained that the petitioners are made to suffer extreme humiliation and indignities. This according to the learned counsel is being resorted to notwithstanding the order dated 18.6.2008 passed by this Court whereby the NAB authorities had been directed not to cause undue harassment to the petitioners.
In this backdrop, we were not inclined to grant further time to the NAB authorities, as prayed for by their learned Special Prosecutor, but in the interest of justice, we direct that the requisite report and parawise comments may be filed within the next 10 clays.
However, in the meanwhile, no further coercive measures shall be adopted against the petitioners. This restraint order will enure only till the next date of hearing i.e. 14.7.2008."
In another writ petition i.e. No. 7852 of 2008 filed by petitioner Hafiz Afzal and others, which came up for hearing before the same learned Division Bench on 1.7.2008 the following order was passed:--
"Inter alia contend that seizure of the vehicles the details whereof find mention in para 3 of this petition and the freezing of the CDC account of the petitioner is absolutely illegal and without lawful authority.
A copy of this petition along with its annexures has been handed over to Mr. Abdul Sattar, the learned Senior Prosecutor, NAB who was incidentally present in this Court in connection with some other case. He will seek report and parawise comments from Respondent No. 3, so as to reach this Court within ten days.
Re-list on 14.7.2008.
CM No. 2/2008
Another CM i.e. No. 4 of 2008 was filed in Writ Petition No. 7104 of 2008 which came up for hearing on 8.7.2008 and following order was passed:--
"Copy of this petition is handed over to learned counsel representing the NAB, Authorities who shall file his reply, get instruction from the relevant quarters and assist the Court.
In view of the prayer made through this petition bailiff of this Court is also deputed to visit the site and prepare a detailed report which shall be placed on record before the next date of hearing."
In pursuance of above order bailiff submitted his report on 12.7.2008 as under:--
"In this case I visited PS Model Town, Lahore. After making necessary entry in daily diary, I along with police escort raided at the spot on given address and found both of main gates of the company were locked. Two gunmen of the NAB were posted there. Nobody was allowed to enter the office. Some employees were also gathered outside the gate who were not paid their salaries. Nobody from the respondent side was available except two gunmen. The GM of the company Sheikh Muhammad Yaqoob was present at outside gate along with some employees. He asked me who I was. I told him that I am Bailiff. He told me that 170 employees were being demanding entry in the office since 27.6.2008. The employees told me that they were not being given their salaries and could not enter the office. The main entrance into the office was sealed by the I.O. On my enquiry the gunmen namely Amer/6046 and Muhammad Javed/9723 stated before me that the office was locked by I.O. for about two weeks ago. One single room besides the office was opened and all the A.C. units were running since two weeks ago. The motorcycle bearing No. LRW-2996 (CD 70) and LOX-9205 (Yamaha) belonging to company were also parked in the Courtyard of the company were being used by police. The gunmen informed that these motorcycles belong to the office. After longtime the I.O. of the case namely Aftab arrived at the spot along with the record. Conversely I.O. stated before me that the office was seized by the orders of the NAB. He stated that everyone was allowed to enter the office freely. When I confronted him how can any employee enter when gates are closed and your guards are saying that no one is allowed to enter; he could not answer. I asked him to open the office immediately and show me the factual position inside the office in order to prepare detailed report in this regard. Firstly the I.O. totally rejected to open the same. Later on he opened the office which was seized and taken into possession by I.O. The office was well furnished but looking in very deplorable position. All the safes were broken. I asked him under what authority he had broke the safes. He said D.G. order. The I.O. admitted that he visited office three days ago and he did not turn back. He also admitted that nobody was allowed to visit or enter the site as the record of the evidence would be disturbed/dispersed. He I.O. also furnished a copy of the NAB order/F.A. It was ordered office was seized. This order was to remain in force for a period of fifteen days. The fifteen days had expired today, i.e. 8.7.2008. When confronted, I.O. changed his story and stated that application was filed in the Court of the learned Administrative Judge, Accountability Court, Lahore for its confirmation today. However, the Court refused to confirm the seizing because of restraining orders passed by the High Court. When I asked I.O. why he is not following the orders of the High Court, I.O. said NAB has suo motu powers. When asked freezing order by Accountability Court not confirmed why he was not vacating office and still applying coercive measures despite High Court orders to which he had no answer. I then entered the office which was opened by the I.O. finally. All the safes of the office were broken. The GM stated before me that one safe of my room was broken in his presence and
Rs. 500000/- were recovered from the safe. I also enquired the matter from I.O. who told me that other safes/almirahs were broken by the I.O. and recovered Rs. 1,40,17,230/- were recovered from the safe in the presence of Deputy Director NAB Punjab and nobody from the victim side was available at the spot. He also showed me a list of office vehicles eleven in numbers as well as particulars of the documents regarding guns, pistols and pump action new. I asked I.O. whether he had any authority to break the safes or take over the vehicles. The I.O. said he had a search warrant issued by the Accountability Court but could not produce.
The I.O. agreed to keep the office open to the employees from 9 am to 4 pm for the employees from next day in his presence. Meanwhile, Brig. Irfan arrived at the spot where he told me that we are not in this position to vacate the office as the NAB Court authorized them to freeze. He also stressed not to vacate the office to the I.O. I questioned the Brig. of the order dated 1.7.2008 and earlier orders for compliance. However, they said closing the office did not mean coercive measure."
Thereafter the matter came up for hearing before learned Division Bench consisting of Tariq Shamim, J. and Muhammad Ashraf Bhatti, J. on 14.7.2008 and following order was passed:--
"Arguments have been partly heard.
Adjourned for tomorrow (15.7.2008). The interim relief granted to the petitioners shall continue till then.
The office is directed to put up WP No. 4789 of 2008 along with this petition."
When the matter came up for hearing on 15.7.2008, the following order was passed:--
"One of us (Tariq Shamim, J.) would not like to hear this petition. Office is directed to place this matter, along with the connected matters today before some other learned Division Bench of this Court, after obtaining necessary order from the Hon'ble Chief Justice."
Hence, these constitutional petitions have been filed under Article 186-A of the Constitution for transfer of writ petitions pending before the learned Lahore High Court with the prayer to withdraw the same from the said Court and be heard and decided by this Court.
Learned counsel for the petitioners have stated that the matter was placed before different Benches of the learned Lahore High Court, Lahore but hearing could not complete rather one of the learned Judges declined to hear the same for unknown reasons. It is their contention that though the learned High Court passed orders restraining the respondents/Investigating Agency not to apply coercive methods yet, the same has not been complied with rather repeatedly efforts have been made to harass the petitioners, in as much as, despite specific direction made by this Court vide order dated 24.7.2008 to the respondents/NAB to comply with the order of the learned High Court, one of the employee of the petitioners, namely, Irfan Ali was not only arrested from the Court premises when he was sitting with his counsel in the bar room, but was dragged and was physically maltreated and it was only due to intervention of this Court that he was got released from the clutches of the NAB officials. Thus the petitioners genuinely apprehend that in case, the writ petitions are not transferred from the Lahore High Court the petitioners would not be able to seek justice and pursue the same at Lahore due to hostile and partial attitude of the investigating agency. They further contended that since the Provincial Government is showing extra ordinary interest in the case, therefore, fair and impartial hearing of the petitions would not be possible in the Province of Punjab. According to them, since the loan amount has already been rescheduled therefore, the petitioners are no more defaulters and the coercive measures applied by investigating agency are not warranted. They have stated that under Article 186-A of the Constitution this Court has the power to withdraw any case, appeal or other proceedings pending before a High Court to it and dispose the same of or transfer the same to any other High Court in the interest of justice. According to them, it is a fit case for transfer of the writ petitions to this Court for doing complete justice. In support they referred to the cases of Muhammad Tahir Siddiqui & another v. National Accountability Bureau & another (2003 SCMR 1085), Federation of Pakistan v. Khalid Malik (1999 SCMR 275), and Mst. Bushra Raheel v. Sajjad Haider Khan & others (1994 SCMR 2009).
Dr. Babar Awan, learned Sr.ASC for Respondents No. 11 and 12 supported the above contentions and stated that untoward incident whereby an employee of the petitioner company who had come to pursue the case before this Court was not only manhandled but was taken into custody within the Supreme Court premises despite the restraint order passed, is the manifestation of highhandedness and partial attitude of the investigating agency hence, the petitioner's request for transfer of the case from Lahore High Court is genuine and reasonable. He prayed that the case may either be disposed of by this Court or be transferred to any other High Court for disposal.
Raja Muhammad Ibrahim Satti, learned Sr. ASC appearing on behalf of NAB controverted the above contentions and urged that NAB initiated proceeding on the complaint filed by Acting President of the Bank, of Punjab, in pursuance of report of audit team mentioning that loans of billions of rupees were sanctioned to fake and unidentified borrowers against inflated/unreal value of collaterals and non-existent business places. He stated that though the proceedings could not take place in the Lahore High Court due to pendency of these constitution petitions before this Court yet, since the learned Chief Justice of Lahore High Court has constituted a special bench consisting of two senior most Judges to hear the petitions, therefore, there is no need to transfer the petitions.
Mr. Muhammad Akram Sheikh, learned Sr.ASC appearing on behalf of Bank of Punjab while controverting the contentions raised by learned counsel for the petitioners urged that the grounds taken in the petitions for transfer are ill-founded as in all circumstances the Courts are duty bound to protect life, liberty, honour and dignity of citizens and the petitioners deserve to be treated at par with others. While placing reliance on the cases of Brig. (R) Imtiaz Ahmed v. Government of Pakistan & others (1994 SCMR 2142) and Muhammad Arshad v. Said Asim Saqlain etc. (1994 SCMR 969) he stated that there is no justification for transfer of the petitions from Lahore High Court to this Court otherwise there would be a flood of such like applications.
Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan while supporting the contentions of the learned counsel for the petitioners submitted that since attitude and behaviour of the investigating agency was abnormal and coercive methods were constantly applied in preventing the petitioners and their employees to pursue the matter at Lahore, therefore, it would be highly appropriate to transfer the petitions to some other High Court, for disposal.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the entire record, minutely, with their assistance.
Admittedly, the learned Judges in the Lahore High Court, on the complaint made by learned counsel for the petitioners, directed on 18.6.2006 that no uncalled for harassment shall be caused to the petitioners. Despite that, on the next date of hearing i.e. 01.7.2008, which was fixed for filing of report and para wise comments, it was complained by the petitioners that they were made to suffer extensive humiliation and indignities inasmuch as one raid after the other was conducted and in course thereof cash, office equipments, vehicles and other valuables were removed. Freezing of the CDC account was also complained by the petitioners. In the circumstances, the learned Judges were constrained to pass yet, another restraint order on 1.7.2008 thereby ordering that no further coercive measures shall be adopted against the petitioners. It appears that the subsequent order was consciously passed by learned Judges in the High Court because, report as required, was not furnished by investigating agency on the said date, and it was again complained by the petitioners that hostile attitude of investigating agency was persisting. It was not end of the matter yet, necessity was felt by the Court to appoint a bailiff to visit the site and prepare a detailed report. The bailiff submitted his report on 12.07.2008 pointing out, inter-alia, that when visited, the premises of the company were locked, employees were not permitted to enter into, the safes lying in the office were broken and cash etc. was taken away by the NAB Officials. Further though fifteen days period had expired on 8.7.2008 and Accountability Court had not confirmed the order regarding seizer of the property yet, the Investigating Agency was not prepared to vacate the premises and it was done under the garb and clog of suo motu powers by the NAB authorities. A number of vehicles belonging to the petitioners as well as customers, were also seized by the NAB authorities and they were not prepared to release those which belonged to the customers even. Thereafter, the matter was partly heard on 14.7.2008 and was adjourned for 15.7.2008 for remaining arguments. On that date one of the learned Judges (Tariq Shamim, J.) declined to hear the case. It was such state of affairs that this Court was approached with the request that since behaviour of the investigating agency was hostile, belligerent and inimical towards the petitioners and the NAB officials in Punjab Province were bent upon to it apply coercive methods despite restraint orders passed by the High Court and due to high handedness of the NAB officials at Lahore, it was made impossible for the petitioners to seek protection of law, therefore, the writ petitions may be transferred from learned Lahore High Court, to this Court.
These petitions were taken up by this Court on 22.7.2008 when the learned counsel for the petitioners reiterated their concern regarding hostile attitude of the NAB officials and requested that since the NAB officials despite restraint order passed by the High Court were bent upon to harass and pressurize the petitioners, therefore, they may be restrained to apply coercive methods. The matter was adjourned to 24.7.2008 however, it was ordered by this Court that interim order passed by the High Court dated 01.7.2008 and the orders passed in continuance shall remain in field. Here we would like to point out with grave concern that when order was passed on 24.7.2008 to maintain the position which was subsisting prior to the restraint order, learned counsel for the petitioners yet, again approached this Court and complained about the incident that after passing of the above order when the parties disbursed, one of the employee of petitioners namely, Irfan Ali, while sitting in the Bar Room along with Advocate on Record was apprehended by the NAB officials, dragged, severely beaten and taken away, hence, action may be taken against the culprits. Resultantly, the concerned officials including the Investigating Officer of the case as well as the Chairman NAB were called by this Court. As the Investigating Officer admitted that said Irfan Ali was arrested from the Supreme Court premises, therefore, the concerned officials were sent behind the bars for initiation of proceedings for contempt of Court. However, on 30.7.2008, on furnishing unconditional apology they were released and proceedings were dropped.
10-A. Sequence of above narrated events suggests that conduct of the NAB authorities especially at Lahore (National Accountability Bureau, Punjab) is not above board and we see force in the contention of the learned counsel for the petitioners that due to coercive tactics applied by the NAB authorities and other officials, the petitioners are unable to pursue remedy before the Lahore High Court freely, therefore, we, in the interest of justice, deem it proper to allow the petitions. Consequently, these Constitution petitions are allowed and Writ Petitions No. 7104, 5192, 5847, 7852 and 4789 of 2008 are withdrawn from the file of learned Lahore High Court, Lahore and transferred to Islamabad High Court, Islamabad for disposal in accordance with law and on merits.
(J.R.) Petitions accepted.
PLJ 2009 SC 164
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD TASWEER--Petitioner
versus
HAFIZ ZULKARNAIN and 2 others--Respondents
Crl. Petition No 124 of 2008, decided on 1.7.2008.
(On appeal from the judgment dated 02-04-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. Appeal No 485/2003 and Crl. Revision No 201/2003).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417--Appeal against acquittal--Appreciation of evidence--Principle--When an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious fanciful and against the record. [P. 167] A
2003 SCMR 477, ref.
Medical Evidence--
----Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime. [P.168] B
Absconsion--
----Mere absconsion is not conclusive proof of guilt of an accused person--It is only a suspicion circumstance against an accused that he was found guilty of the offence--Value of absconsion, therefore, depends on the fact of each case--Absconsion of the accused may be consistent which is to be decided in keeping in view overall facts of the case.
[P. 168] C & E
Suspicion--
----Suspicion after all are suspicion cannot take the place of proof.
[P. 168] D
Malik Waheed Anjum, ASC for Petitioner.
Mr. Siddique Khan Baloch, Deputy Prosecutor General Punjab for State.
Date of hearing: 1.7.2008.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition leave has been sought against judgment dated 2.4.2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, accepting appeal filed by Respondent Nos. 1 and 2, setting aside their conviction and sentences recorded under Section 302(b) PPC, by learned Additional Sessions Judge, Rawalpindi, vide judgment dated 11.10.2003 and dismissing petitioner/complainant's revision for enhancement of sentence of life imprisonment awarded to the respondents.
The prosecution story, in brief, is that on receipt of information on 17.12.2001 about murder of Hafiz Mansoor Ahmad, deceased, in village `Waggal' Tehsil Kotli Sattian, District Rawalpindi, S.I. Muhammad Afzal, of Police Station Kotli Sattian, went to the spot, recorded statement of complainant/petitioner Muhammad Tasweer, father of deceased, and incorporated it in FIR No. 142 dated 18.12.2001, to the effect that on 17.12.2001 complainant was present in his sister's house in his village, when he learnt that his son Hafiz Mansoor Ahmed had died, upon which he along with his nephew Muhammad Saleem reached the house of Muhammad Abbas and found the dead body of Hafiz Mansoor Ahmad lying in the veranda of the house. The complainant also came to know that Hafiz Mansoor Ahmed died of fire-arm injuries and that Hafiz Saghar Bin Abbas and Zulqurnain (respondents) were accompanying the deceased before the occurrence and they might be in a position to say something about the cause of his death. The complainant further stated that no one was inimical towards him and that after the occurrence respondents disappeared.
On 3.1.2002, the respondents appeared before the Investigating Officer voluntarily. Respondent Zulqurnain led to the recovery of .12 bore licenced gun of Muhammad Abbas, father of respondent Hafiz Saghar Bin Abbas alongwith empty cartridge, which were taken into possession vide memo Ex.PH.
Dr. Shabbir Hussain, Medical Officer, Tehsil Headquarter, Hospital Murree, (PW-6), conducted post-mortem examination of deceased on 18.12.2001 and noted the following injuries:--
"1. A fire-arm wound of entry 1« x 1¬ inches on the area of right eye margins burned.
A fire-arm wound of entry 1 « inches x 1« inches on the fore head lower part. Bone was absent and margins were found burned.
A fire-arm wound of exit 4 inches x 2 inches on the left side of the head 3 cm lateroal to mid line. B one was absent.
In-opinion of the doctor, the deceased died due to shock, loss of blood and fatal injury to his brain.
Upon completion of the investigation, charge was framed against the respondents under Section 302/34 PPC which was read over and explained to them, they pleaded not guilty and claimed to be tried.
After completion of the trial, during which the prosecution produced 11 witnesses in all, whereas respondents examined 2 witnesses in defence, learned Additional Sessions Judge, Rawalpindi, vide judgment dated 11.10.2003 convicted both the respondents under Section 302(b) PPC and awarded them imprisonment for life. They were also directed to pay Rs: 100,000/- each as compensation to legal heirs of the deceased or in default whereof, to suffer further S.I. for six months each. The respondents challenged their conviction and sentence by filing Criminal Appeal No. 485 of 2003. The complainant/petitioner also filed Criminal Revision No. 201 of 2003 seeking enhancement of sentence awarded to the respondents. A learned single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi vide impugned judgment, accepted appeal and dismissed the revision, as stated and mentioned in the opening paragraph of this judgment, necessitating the filing of instant petition.
We have heard Malik Waheed Anjum, learned Advocate for the petitioner/complainant and Mr. Siddique Khan Baloch, learned Deputy Prosecutor General for the State, in the light of the material on file.
Learned counsel for the petitioner contended with vehemence that overwhelming evidence was available on record, in the shape of evidence of `Vaj Takar', Muhammad Hafeez, recovery of dead body from the house of respondent Saghar Bin Abbas, recovery of crime weapon i.e .12 bore gun, at the pointation of respondent Zulqarnain, motive and absconsion, fully proving the participation of the respondents in the commission of crime, which has not been properly examined and appreciated in its true perspective, resulting in miscarriage of justice. The learned counsel also contended that having regard to facts and circumstance of the case, learned High Court had no justification to take contrary view and pass a finding of acquittal in favour of the respondents, 9. Conversely, Learned Deputy Prosecutor General, representing the State, defended the impugned judgment maintaining that same having been passed with sound reasonings, does not suffer from any illegality or infirmity, calling for interference by this Court.
Having heard the arguments of learned counsel for the parties and re-examining the evidence on file, we find that learned counsel for the petitioner has not been able to point out any piece of evidence which could persuade us to hold that the conclusion arrived at by the High Court is against the evidence brought on record. Learned High Court has assigned cogent and valid reasons in Para Nos. 12, 13, and 14 of the impugned judgment for disbelieving the prosecution version and extending benefit of doubt to the respondents. In this context reference may be made to the cases of Sikandar Hayat vs. Muhammad Nawaz and others (LJJ 1995 SC 351), Ghulam Murtaza and another vs. Muhammad Akram and others (2007 SCMR 1549), Rahimullah Jan vs. Kashif and another (PLD 2008 SC 298) and Altaf Hussain vs. Fakhar Hussain and another (2008 SCMR 1103).
Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar versus Muhammad Asghar and others, (2003 SCMR 477). "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of evidence.... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible".
It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested.
In view of what has been discussed above, we do not find any ground to interfere with the impugned judgment which is mainatined. Accordingly, the petition being devoid of force is dismissed.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 168
[Appellate Jurisdiction]
Present: Zia Perwez, Syed Zawwar Hussain Jaffery &
Sheikh Hakim Ali, JJ.
MUHAMMAD NAWAZ etc.--Appellants
versus
FATEH SHER, etc.--Respondents
Civil Appeal No. 965/2005, Civil Petitions No. 1564-L and 1565-L/2005, decided on 21.5.2008.
(On appeal from the judgment dated 15-04-2005 passed by the Lahore High Court, Lahore in C.R. No. 2547 of 2004 and FAO No. 264 of 2002)
Muhammadan Law--
----Inheritance--Devolution--Principle--Upon death of an owner, devolution of lands, properties or assets automatically takes place, as the succession opens at that time and at that stage. No affirmance authorization or declaration is necessary for such devolution.
[P. 173] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185(3)--Revision--Scope--Jurisdiction of High Court--Held: When judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of High Court cannot be restrained or curtailed in that event, so as to correct those judgments and decrees and to pass any judgment as High Court thinks fit in the facts and circumstances of given case in accordance with the provision of Section 115 of C.P.C. [P. 175] B
Decrees--
----Principle--Decrees are binding upon revenue officers and the decrees of Civil Court cannot be upset or reversed by the Revenue Authorities, as these authorities have got no such power to sit upon the judgments and the decrees of the Civil Court as an appellate authority. [P. 175] C
Kh. Saeed-uz-Zaffar, ASC for Appellants.
Kh. M. Farooq, ASC for Respondents No 1-5 (L.R. of 6 i.e. (i-iii) in C.A. No. 965/2005).
Mr. M. Farooq Qureshi Chishti, ASC for Respondents No 7-14 (in C.A. No. 965/2005) and for Petitioners (in both petitions.)
Nemo for Respondents (in both petitions).
Date of hearing: 21.5.2008.
Judgment
Sheikh Hakim Ali, J.--We intend to dispose of instant Civil Appeal No. 965 of 2005 titled as Muhammad Nawaz etc. Vs. Fateh Sher etc. along with connected Civil Petitions No. 1564-L of 2005 (Muhammad Hayat and others Vs. Muhammad Nawaz and others) and 1565-L of 2005 with the same title, as all these three cases have sprung out from one and the same main judgment dated 21.04.2005 passed by learned Lahore High Court, Lahore and have got common questions of law and facts involved therein.
Facts of the case are simple but the legal implications involved therein are not so. Dispute arose when one Fateh Sher, owner of agricultural lands, situated in Mauza Zail Singh, Tehsil Khushab had expired in the year 1927. According to the admitted facts, Fateh Sher had two sisters, namely, Mst. Chungi, Mst. Gullan and one widow, namely, Mst. Fateh Khatoon, who were alive at the time of his death. As he was issuless, therefore, Lal and Jamal sons of Shera, the nephew of Fateh Sher had also become successor to the land left by the aforesaid deceased. Mst. Chungi, one of the sisters, was wife of Lal. She along with Lal and Jamal filed a suit against Mst. Fateh Khatoon, the widow of Fateh Sher, praying for the grant of decree for declaration that the lands in dispute was owned by Mst. Chungi, wife of Lal on the basis of a will. It was also pleaded in that suit that in case claim of Mst. Chungi was not proved, even then Lal and Jamal, Plaintiffs No. 2 and 3, would be deemed owners of the land in dispute and Mst. Fateh Khatoon defendant would have no concern with that land. On 7.12.1937, parties produced a written compromise before the learned Civil Judge, Sargodha, who was seized of the suit. According to that compromise, it was settled that 2/3rd shares out of the left land was to be delivered to Lal and Jamal while l/3rd land would remain with Mst. Fateh Khatoon, up-till her life or till her remarriage. Possession of the land to the extent of 2/3rd was also delivered to Lal and Jamal. The suit was decreed on the basis of that compromise on 7.12.1937, while the suit to the extent of Mst. Chungi was dismissed. This settlement continued in operation when in the year 1950, another suit was filed by Lal, Jamal and Mst. Chungi against Muhammad Hayat and Noor Muhammad sons of Muhammad Yar, Yaroo son of Nawab, Mst. Fateh Khatoon (widow of Fateh Sher) and Mst. Gullan, the widow of Nawab, claiming declaration that sale affected through Mutation No. 592, dated 24.10.1950, in favour of Defendants No. 1 to 3 (Muhammad Hayat, Noor Muhammad and Yaroo) by Mst. Fateh Khatoon, the limited owner of the estate was illegal, null and void. This suit was also decreed on 29.11.1951, after it was contested by the parties. Learned Sub-Judge 1st Class, Sargodha had held that Mst. Fateh Khatoon was a limited owner of the estate to the extent of 1/3rd share of the land left by Fateh Sher, deceased while Muhammad Hayat, Noor Muhammad and Yaroo (Defendants No. 1 to 3) could purchase and retain the land only to the extent of her legal share of 1/4th from the land possessed by Mst. Fateh Khatoon as limited owner of the estate (out of l/3rd possessed by her). As regard Mst. Chungi and Mst. Gullan, it was held that they had failed (in their attempt), while to the extent of Lal and Jamal, the declaration as prayed for as noted above was granted. This decree dated 29.11.1951 was not challenged by any of the parties before any other higher Civil Court. Thus it had attained finality.
On the basis of above mentioned decree dated 29.11.1951, Mutation Nos. 37 to 42 were sanctioned in the revenue record. Meanwhile, on 12.1.1981 Mst. Fateh Khatoon expired. Against these above noted mutations, appeals and revisions were filed before the learned EAC and Additional Commissioner respectively, which could not succeed to get the desired result of reversal of these Mutations No. 37 to 42 mentioned above, but revision before learned Member Board of Revenue filed by the aforesaid successors-in-interest of Muhammad Hayat and others was accepted on 18.12.1985, which became the cause of action for the filing of the present suit on 20.02.1986, by which the validity of order dated 18.12.1985 was challenged by Fateh Sher and others successors-in-interest of Lal and Jamal, against Mst. Beeban and others, the legal representatives of Muhammad Hayat and others. The suit was dismissed by learned Civil Judge Nurpur on 16.05.1992, and so the appeal before the learned District Judge on 17.09.2004, but the Civil Revision No. 2547 of 2004 turned out to be a beneficial effort for the plaintiffs. On 21.04.2005, Civil Revision No. 2547 of 2004 filed by the plaintiffs was allowed, while Civil Revision No. 3044 of 2004, FAO No. 264 of 2004 and FAO No. 330 of 2004 for the enforcement of compromise became infructuous. According to that judgment, it was held by the learned Judge of the Lahore High Court, Lahore in chamber that Mst. Fateh Khatoon was limited interest owner to the extent of l/3rd of the land left by Fateh Sher deceased and upon the termination of limited interest, the aforementioned land was to be distributed in accordance with the following shares i.e., 1/4th to Mst. Fateh Khatoon while 2/3rd to Mst. Gullan and Mst. Chungi and l/12th to petitioners/plaintiffs. This judgment has been challenged in this Court through the above noted civil appeal as well as civil petitions as detailed supra.
Learned counsel appearing on behalf of above mentioned appellants/petitioners submits that the impugned judgment passed by learned Lahore High Court, Lahore is liable to be reversed on the following grounds:--
(i) The entire estate of Fateh Sher should have been redistributed in accordance with Muslim Law of Inheritance upon the death of Mst. Fateh Khatoon on 12.01.1981, when Mst. Fateh Khatoon had expired. According to the learned counsel, widow shall get l/4th while sisters 2/3rd and 1/12th would be inherited by Lal and Jamal in whole of the land left by Fateh Sher.
(ii) Decree dated 7.12.1937 was void, ineffective and inoperative against Mst. Gullan because she was not made party to that suit.
(iii) According to rule of Spes Succession, the compromise entered into between the parties on 7.12.1937 was ineffective, as the legal heirs of Fateh Sher had not still inherited the lands left by Fateh Sher, deceased.
(iv) Decree dated 7.12.1937 was a collusive decree, therefore, was inoperative as against the appellants.
(v) The scope of revision under Section 115 of the C.P.C. being limited, the concurrent judgments of the learned Courts below could not be upset by the learned Judge of the Lahore High Court, Lahore, through the impugned judgment.
(vi) Limited interest of Mst. Fateh Khatoon having been terminated after the enforcement of the Shariat Application Laws, the decrees dated 7.12.1937 and 29.11.1951 had got no effect as those had lost its efficaciousness, and so were null, void and inoperative. The order dated 18.12.1985, passed by learned Member Board of Revenue and the decrees of dismissal by learned Courts of Civil Judge and District Judge were to be maintained.
(a) That the land left by Fateh Sher could not be inherited by Mst. Chungi and Mst. Gullan in accordance with the custom prevalent at the time of death of Fateh Sher and Lal and Jamal were the persons, who had inherited the land left by Fateh Sher but due to compromise, decree dated 7.12.1937, which had come into existence on that date, Mst. Fateh Khatoon was granted 1/3rd out of the total land left by Fateh Sher, as limited interest owner till her death or remarriage. As per learned counsel this compromise and the decree based upon it, was never challenged by any of the stakeholders.
(b) The settlement of 1937 was never challenged by any one and it had continued till the year 1981, when the death of Mst. Fateh Khatoon, the limited interest owner had occurred.
(c) When Mst. Fateh Khatoon had sold the land, held by her as limited interest owner, then the suit was filed by Lal, Jamal and Mst. Chungi, and the decree was passed on 29.11.1951 after contest. This decree was also not challenged by Mst. Gullan or by any other interested person before any forum of Civil Court hierarchy, which had declared Mst. Fateh Khatoon only a limited owner to the extent of 1/3rd and entitled to inherit it up-to 1/4th share out of it.
(d) The learned Member Board of Revenue had no power or jurisdiction to upset the decrees of the Civil Court, therefore, the impugned order dated 18.12.1985 and the judgment dated 16.05.1992 and 17.09.2004 delivered by learned Civil Judge and the learned District Judge respectively were illegal, and were rightly set aside and reversed by learned Judge Lahore High Court, Lahore through the impugned judgment.
(e) The decrees of 1937 and 1951 having been acted upon had become a past and closed transaction and could not be reopened in the year 1981, during or after the death of Mst. Fateh Khatoon. So, he has supported the impugned judgment by his arguments.
After hearing the lengthy arguments of the learned counsel of the parties and examining the record, it has become transparent on the surface of the record that decrees dated 7.12.1937 and 29.11.1951 were never challenged by any of the interested parties before any higher strata of Civil Court. In other words, parties had accepted the ground realities of prevalence of custom at the time of death of Fateh Sher when the succession to his lands left had opened; compromise entered on 7.12.1937 and dismissal of suit of Mst. Chungi and Mst. Gullan on 29.11.1951 through decree of that date from the learned Civil Court; and the findings recorded therein that Mst. Fateh Khatoon had rightly delivered the land to the extent of 2/3rd to Lal and Jamal, the legal heirs of Fateh Sher (deceased) in the year 1927; and that Mst. Chungi and Mst. Gullan were deprived to inherit the lands due to custom in vogue in those days; the decree dated 29.11.1951 having held that Mst. Fateh Khatoon was entitled to inherit 1/4th out of 1/3rd in her possession upon the termination of her limited interest after the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948; no appeal having been filed against that decree, the inaction, the silence, which had remained in operation after passing of that decree of 29.11.1951; through which the legal battle was won by Lal and Jamal finally through that decree; it had finally sealed the fate of present appellants and petitioners to claim inheritance from the land of Fateh Sher deceased. Cumulative result and effect of both these decrees dated 7.12.1937 and 29.11.1951 was that the land in possession of Mst. Fateh Khatoon, to the extent of 1/3rd only out of total land left by Fateh Sher, was to be distributed amongst the legal heirs of Fateh Sher upon the termination of her limited interest due to enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act of 1948, while 2/3rd from total land left by Fateh Sher had already become the owned land of Lal and Jamal as absolute owners in the year 1937 as the decree of 1937 had become a past and closed transaction due to proviso of Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948. Accordingly, the impugned judgment cannot be held illegal and liable to be reversed.
It is worth mentioning at this stage that according to Muhammadan Law, upon death of an owner, devolution of lands, properties or assets automatically takes place, as the succession opens at that time and at that stage. No affirmance, authorization or declaration is necessary for such devolution. Keeping in view this settled and approved rule of succession, upon the death of Fateh Sher, all his legal heirs in concordance to Muhammadan Law might have become owners but as the custom was the order of the day, therefore, sisters and widow of deceased were deprived from inheritance. The argument of appellant's learned counsel cannot be approved that succession had not opened upon the death of Fateh Sher. To utter it in other words, the succession had opened in the year 1927 at the time of death of Fateh Sher but his sisters and widow could not claim the inheritance due to prohibition of customary law in force. It was, therefore, that Mst. Gullan had not claimed the inheritance from the land left by her brother and Mst. Chungi, the other sister, even after having become a party to the suit of 1937 was deprived of from the lands of the deceased, and Mst. Fateh Khatoon, instead of inheriting as absolute owner was deprived from that interest of complete ownership and had accepted the transfer of land in her favour as limited interest owner till remarriage or of her death. The acceptance of this settlement by Mst. Fateh Khatoon through the compromise of 1937 and the inaction of both the abovementioned sisters was itself a strongest proof of custom prevalent in the family and so the decree passed in pursuance of this custom could not be challenged after many decades which followed thereafter to this settlement, arrangement and compromise, with consequence of passing of decree of 1937.
It is pertinent to point out here that in the year 1950, when the suit for declaration was filed by Lal and Jamal along with Mst. Chungi against Muhammad Hayat and others, Mst. Gullan was also impleaded therein and the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 had also found its place in the Statute Books, which was also found mentioned in the judgment of learned Civil Judge. Mst. Gullan and Mst. Chungi had failed in that suit to obtain the land left by Fateh Sher except the land opened to succession upon the termination of limited interest of Mst. Fateh Khatoon. They had not filed any appeal against that judgment, therefore, they had also accepted not only the previous decree dated 7.12.1937 but the decree of 29.11.1951 as well that Mst. Fateh Khatoon was limited turner up to the extent of 1/3rd share from the lands left by Fateh Sher and that she was to inherit only 1/4th after the enforcement of Shariat Application Act of 1948 from this 1/3rd.
The arguments of the learned counsel for the appellants that decree dated 7.12.1937 had no binding effect upon the interest of inheritance of Mst. Gullan, or it was collusive was defeated by the passing of decree dated 29.11.1951. Therefore, it has got no force. As regards the rule of Spes Succession, it cannot be applied to the facts and circumstances of the case because the succession had opened upon the death of Fateh Sher and the parties had entered into a settlement/compromise dated 7.12.1937 after the death of Fateh Sher. It was not a case of expectancy of inheritance but it was entered when Fateh Sher's death had opened the succession as noted above. With regard to scope of revision, suffice it to say that; when judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of learned High Court cannot be restrained or curtailed in that event, so as to correct those judgments and decrees and to pass any judgment as the learned High Court thinks fit in the facts and circumstances of a given case in accordance with the provision of Section 115 of the C.P.C. of 1908.
There is another most important aspect of the case. The decrees are binding upon revenue officers and the decrees of the Civil Court cannot be upset or reversed by the Revenue Authorities, as these authorities have got no such power to sit upon the judgments and the decrees of the Civil Court as an appellate authority. These authorities are bound to implement these decrees in their revenue record, therefore, the learned Member Board of Revenue had exceeded in its power and authority, while rejecting the implementation of those decrees and making those decrees ineffective by his disputed order dated 18.12.1985.
In nutshell, the result of the above discussion is that the civil appeal has got no merit and the same is dismissed with all the civil petitions noted above, and leave is refused to the Civil Petitions.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 175
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MEHAR MUHAMMAD NAWAZ, EX-OG-I SMALL BUSINESS FINANCE CORPORATION MULTAN--Appellant
versus
MANAGING DIRECTOR, SMALL BUSINESS FINANCE CORPORATION and 2 others--Respondents
Civil Appeal No. 427 of 2005, decided on 23.10.2008.
(On appeal from the judgment dated 9.1.2003 passed by the Federal Service Tribunal, Islamabad in Appeal No. 755 (R)CE/2000).
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Civil servant was dismissed from service--Charge sheeted for having, committed irregularities, malpractices in five cases of loan disbursement--Appeals were dismissed by competent authority and Federal Service Tribunal--Challenge to--Discriminated and treated unfairly qua successor who was also dismissed from service on the basis of the same case--Penalty was afterwards converted into compulsory retirement and penalty of recovery was also set aside--Colleagues of the appellant, involved in the case were also treated in like manner--No marked difference between the case of the appellant--Entitlement of legal representative for pension--Validity--While dealing with the case where aggrieved party alleges discrimination, the Court cannot over look the implication thereof--Equal treatment of all situated is the basic principle on which rests justice under the law--Held: If even handed justice is not administered, it can have many adverse and negative effects on a society--It can cause dis-contentment and frustration in the social set-up--No denial that social justice is an objective and enshrined in Constitution of Pakistan--Entitlement of the legal representatives of the deceased for pension and other benefits is concerned, reference can be made to judgment of Supreme Court--Appeal was accepted. [P. 178] A & B
2005 PLC (C.S.) 1424 ref.
Sardar Muhammad Latif Khan Khosa, Sr. ASC and Ch. Akhtar Ali, AOR for Appellant.
Mr. F.K. Butt, ASC for Respondents.
Date of hearing: 9.10.2008.
Judgment
Ijaz-ul-Hassan, J.--This appeal, with leave of the Court, is directed against judgment of the Federal Service Tribunal, Islamabad, delivered on 09.1.2003, whereby Service Appeal No. 755 (R) CE of 2000, preferred on behalf of appellant, an ex-employee of respondent-corporation, has been dismissed.
Briefly stated the facts, leading to the filing of this appeal are, that appellant Mehar Muhammad Nawaz, joined the service of respondent-Corporation in 1979 as Assistant. He was promoted in due course. While working as Regional Manager, D.G. Khan, the appellant was charge sheeted for having, committed irregularities/malpractices in five cases of loan disbursement, Bearing Nos. 750, 751, 752, 844 and 1891. The appellant was issued another charge sheet, containing 14 separate charges. The appellant submitted reply denying the allegations. He was placed under suspension and a final Show Cause Notice was issued alongwith copy of report of the inquiry officer. In the inquiry report, out of 14 charges, the inquiry officer held him guilty on five counts. Resultantly, major penalty was imposed on the appellant and he was dismissed from service vide order dated 29.6.2000. The appellant filed an appeal/review before the competent authority, which was dismissed vide order dated 17.8.2000. The appellant, feeling aggrieved thereby, challenged the action of the management by filing appeal before the Federal Service Tribunal, Islamabad, which was also dismissed per judgment impugned herein.
Sardar Muhammad Latif Khan Khosa, learned Sr. Advocate for the appellant, without dilating upon the merits of the case, craved for conversion of dismissal of appellant from service into compulsory retirement. The learned counsel submitted that appellant has been discriminated and treated unfairly qua his colleagues, similarly placed and named in Audit Report. The learned also contended that appellant passed away on 28.1.2008 during pendency of appeal, leaving behind a widow, a son and three daughters, wholly dependant on the deceased and they are entitled for pension and pensinary benefits of the appellant. In support of the last contention, reliance was placed on Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs versus Ministry of Finance, Government of Pakistan, through its Secretary, Islamabad (1991 SCMR 1192).
Mr. F.K. Butt, learned Advocate, representing the respondents-Corporation, on the other hand, while opposing the arguments of learned counsel for the appellant, contended that the allegations leveled against the appellant have been substantiated by cogent and concrete evidence. A comprehensive inquiry was conducted and proper opportunity of hearing was afforded to the appellant to vindicate his position and reply of the appellant having been found unsatisfactory, he was dismissed from service for valid and cogent reasons which are not open to legitimate exception. The learned counsel also contended that right to sue was not inheritable on the death of a civil servant and his legal representatives were not entitled to continue proceedings launched by him and thus appeal has abated and legal heirs of the appellant are not entitled for pension and other benefits of the appellant. The learned counsel invited our attention to Section 2(b) of the Civil Servants Act, 1973 and urged that right of appeal under the Service Tribunals Act, 1973 has been given to a civil servant aggrieved by a final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service and there being no provision in the Service Tribunals Act, 1973 to provide any remedy to the successor in interest of a civil servant, legal heirs of the appellant are not entitled for pension and other benefits. Learned counsel in support of his contentions, referred to the judgments reported as Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence and others, (PLD 2006 SC 602) and Muhammad Idrees versus Agricultural Development Bank of Pakistan and others, (PLD 2007 SC 681).
On perusal of the record, it transpires that appellant joined the service of respondent-Corporation in 1979 as Assistant. He was promoted in due course. While working as Regional Manager, D.G. Khan, appellant was proceeded against on the charges of having committed irregularities/malpractices in five cases of loan disbursement. Resultantly, after completing legal formalities, appellant was dismissed from service. The appellant had 22 years of service to his credit. He had topped the recovery campaigns of the respondent-Corporation consecutively for a period of three years from 1995 to 1997. Learned counsel for the appellant contended with justification that appellant has been discriminated and treated unfairly qua his successor Sadaqat Hussain, Who was also dismissed from service vide order dated 29.6.2000 on the basis of the same case, since he was Manager of respondent-Corporation, Multan branch, during the period when the loan in question was processed, sanctioned and disbursed. Nevertheless, Sadaqat Hussain's penalty was afterwards converted into compulsory retirement and the penalty of recovery was also set aside. Hassan Jamil and Khalid Masood, colleagues of the appellant, involved in the case were also treated in the like manner. There appears to be no marked difference between the case of the appellant and those of Hassan Jamil, Khalid Masood and Sadaqat Hussain. Needless to emphasise that while dealing with the case' where the aggrieved party alleges discrimination, the Court cannot overlook the implication thereof. Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If even handed justice is not administered, it can have many adverse and negative effects on a society. It can cause dis-contentment and frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution.
So far as the objection, regarding entitlement of the legal representatives of the deceased for pension and other benefits is concerned, reference can be made to the judgment of this Court, in Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another versus Syed Afzal Muhammad Farooq and another and Dr. Qamar-uz-Zaman Ch. Versus Syed Afzal Muhammad Farooq and others, (2005 PLC (C.S) 1424), wherein it was observed:--
"It may be noted that during pendency of appeals Syed Afzal Muhammad Farooq-Respondent No. 1 had passed away although to the extent of his promotion as Director-General, Meteorological, his legal heirs had no cause of action but if his claim would have been accepted, by way of promoting him to
next grade as Director General, Meteorological Department, his legal heirs would be entitled for enhanced pensionary benefits, etc. But they have not been joined as party thus, in their absence it would not be fair to dilate upon the merits of the case. Therefore, leave granted order dated 30.6.1998 is rescinded, and Federation of Pakistan through Secretary, Establishment Division is directed to re-consider the case of both the respondents, as per the direction of the High Court and if late Syed Afzal Muhammad Farooq is found to be entitled for promotion to the post of Director-General, in accordance with law, then the pensinary benefits may be extended to his legal heirs."
(R.A.) Appeal accepted.
PLJ 2009 SC 179
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
Ch. MUHAMMAD ASLAM--Petitioner
versus
CHAIRMAN COMMITTEE FOR ALLOTMENT OF OFFICIAL RESIDENTIAL ACCOMMODATION, PIMS, ISLAMABAD
& others--Respondents
C.P.L.A. No. 13 of 2008, decided on 11.2.2008.
(On appeal from the judgment dated 12.12.2007 in Appeal No. 200(R)(C.S)/2006 passed by the Federal Service Tribunal, Islamabad)
Accommodation Allocation Rules, 2002--
----Rr. 6 & 7--Constitution of Pakistan, 1973, Art. 185(3)--Allotment of official residential--Allotment policy--Recommendations of respondent by chairman committee--Service tribunal remanded the matter to departmental authority--Employees of the PIMS would be non-entitled for government accommodation in view of the fact, that they had their own residential colony and allotments were being made on the recommendations of the PIMS authorities--However, it was clarified that the allotments already made would not be reversed--Since applications for allotments of accommodation by the petitioner and others including the respondents, appear to have been made after the promulgation of Accommodation Allocation Rules, 2002, therefore, in order to set the controversy at rest Supreme Court deem it appropriate to direct the departmental allotment committee to examine cases of the petitioner as well as respondent in the light of Accommodation Allocation Rules 2002--Order accordingly.
[Pp. 184 & 185] A & B
Ch. Afrasiab Khan, ASC with Ch. Akhtar Ali, AOR for Petitioner.
Raja Muhammad Irshad, DAG, alongwith S. Zamir Naqvi, Supdt. PIMS & Raja Abdul Ghafoor, AOR for Respondents 1-2.
Mr. Muhammad Ashraf, JEO for Respondent No. 3.
Respondents No. 5 & 6 in person.
Date of hearing: 11.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 12.12.2007 passed by the Federal Service Tribunal, Islamabad, whereby appeal filed by respondent No. 6 was partially allowed and case was remanded to the authority.
F' situated in PIMS Colony, to Respondent
No. 4 Dr. Matloob Azam, vide order dated 23.6.2005 was challenged. In addition, order dated 11.2.2006, whereby categoryF' houses were allotted to officers, other than the said respondent, was also challenged. Case of Respondent No. 6 before the FST was that he had joined Pakistan Institute of Medical Sciences on 1.5.1986 and was allotted an `E' type house in the year 1988 in which he was still residing, despite his promotion in BS-18 on 28.1.2004. It would be pertinent to mention here, that the above mentioned house was allotted to
Respondent No. 4 Dr. Matloob Azam, who was in BS-19, vide allotment order dated 23.6.2005 on the recommendations of Respondent No. 1 i.e. the Chairman, Committee for Allotment of Official Residential Accommodation. Respondent No.
6, Dr. Musharraf Ali Khan, submitted a departmental representation dated 27.7.2005 to Respondent No. 1. Since Respondent No. 1 had also allotted a number of vacant houses to various employees of PIMS vide letter dated 11.2.2006 which did not contain the name of the said Respondent No. 6, therefore, he i.e. the Respondent No. 6 took it as implied denial and approached the Federal Service Tribunal. During pendency of the said appeal before the FST, present petitioner Ch. Muhammad Aslam and Respondent No. 5 Dr.
Muhammad Irshad submitted applications to join the proceedings which were allowed, hence they were also impleaded as respondents. After hearing the learned counsel for the parties including the present petitioner, the Tribunal, vide its judgment dated 12.12.2007, while relying on the case of Mehran
University of Engineering and Technology, Jamshoro v. Dr. Muhammad Moazzam
Baloch and another (2006 PLC (C.S) 25), without going into merits of the case, observed as under:--"Pursuant to the above, we do not find it necessary to look into the merits of this case and direct the respondents to process the departmental representation dated 27.7.2005 of the appellant in accordance with the laid down procedure and forward it to the Appellate Authority within 15 days of receipt of this judgment for an appropriate order. Pending decision by the Appellate Authority, one F-type house which has been kept vacant vide our order dated 1.11.2006 in MP. No. 503/2007 shall not be allotted to any other official. In case the appellant feels aggrieved by the appellate order he would be at liberty to seek remedy from this Tribunal, if so advised. The appeal is disposed of in these terms."
Being aggrieved of the above order, the petitioner has approached this Court through the instant petition.
It has been contended by the learned counsel for the petitioner that since the petitioner having been appointed in BS-18 on 17.3.1993 was senior most applicant in his
Grade for allotment of F' type accommodation in residential colony of PIMS and
Respondents No. 5 & 6 were junior to him under the mandate of Federal
Accommodation Allocation Rules 1993 as well as Accommodation Allocation Rules, 2002, therefore, the petitioner had a preferential right for allotment ofF' type accommodation. It is further his case that the Respondent No. 4 was though in Grade 19 yet, since he had applied for allotment later than the petitioner, therefore, allotment in his favour too, could not have been made ahead of the petitioner. It is further case of the petitioner that since he was allotted
House No. F-16, which was a separate house, therefore, he could not have been deprived to enjoy its possession. In order to supplement his argument the learned counsel clarified that Respondent No. 4 Dr. Matloob Azam was allotted
House No. 8, whereas House No. F-16 was allotted to the petitioner, hence, allotment in favour of Respondent No. 4 was not a hurdle, in transfer of possession of the said house to the petitioner. It is further his grievance that delivery of possession of House No. F-16 was unjustifiably denied to the petitioner by the Estate Office on the pretext that an injunction was granted by the Federal Service Tribunal in the case filed by the Respondent No. 6. He maintained that the Tribunal was under obligation to decide the case of the parties on merits itself instead of remanding the same to the appellate authority.
Respondents No. 5 & 6, while controverting the contentions raised by learned for the petitioner submitted that since subsequent to introduction of Accommodation Allocation Rules, 2002, power to allot houses was vesting in the Committee constituted for the purpose, therefore, the case was rightly remanded by the Federal Service Tribunal for reconsideration.
Raja Muhammad
Irshad, learned Deputy Attorney General, while appearing for Respondents No. 1
& 2, though denied the claim of the petitioner to the extent that he was senior most in Grade 18, yet admitted that the petitioner had a claim towards allotment of an F' type house as per his entitlement. He however, submitted that Respondent No. 4 Dr. Matloob Azam being in Grade 19 too, was, as per his choice, entitled for allotment of anF' type house, as no `G' category house, as per his entitlement, was available in the PIMS colony. He further added that prior to introduction of Accommodation Allocation Rules, 2002 though allotment of Government owned accommodations was being made by the Estate department, yet, subsequent to promulgation of "the Rules, 2002", it was vesting in the departmental allotment committee.
It would be pertinent to mention here that earlier the petitioner had also approached this Court vide CPLA No. 264 of 2007, wherein the following order was passed:--
"After arguing the petition at quite some length on merits, learned counsel would not press this petition, as the petitioner would resort to Estate Officer, Federal Estate Office for the redress of his grievance under the Accommodation Allocation Rules, 2002. Petition is accordingly disposed of. Petitioner would be at liberty to agitate his right before the forum that may be available to him under the law."
Subsequent to the above order, according to the petitioner, he had submitted an (application to the Estate Officer and another to the Supervisory Authority, namely, the Senior Joint Secretary, Ministry of Housing and Works, Islamabad, for allotment of `F' type house, in consequence whereof allotment of House No. 16 was approved in his favour and conveyed for implementation to the Estate Officer, by the Ministry of Housing & Works vide its Letter No. 16-F-PIMS-EI dated 21.7.2007. The said letter reads as under:--
"I am directed to refer to the subject noted above and to convey that the competent authority has approved the allotment from the pool of PIMS of House No. F-16, PIMS colony Islamabad, to Ch. Muhammad Aslam, Deputy Director (Engg) BS-18) PIMS, Islamabad on subject to vacation basis.
The Estate Office shall take further necessary action in the matter after completing all codal formalities under intimation to the Ministry."
It is grievance of the petitioner that despite submission of report of vacant possession and clearance by the Estate Officer, delivery of possession of the said house, to him, was delayed on the ground that an injunction was issued by the Federal Service Tribunal. Record reveals that two separate houses i.e. Bearing No. 16 & 8 were allotted to the petitioner as well as Respondent No. 4 Dr. Matloob Azam, respectively, hence, apparently there was no clash of interest but since the applicants were eager to get possession of the houses, therefore, they entered into litigation. Be that as it may, in order to properly appreciate the proposition in hand, it would be advantageous to have a glance at the registration and allotment policy as prescribed by Rules 6 and 7 of the Accommodation Allocation Rules, 2002 which read as under:-
"6. Maintenance of General Waiting Lists.--(1) The applications for allotment of Government accommodation shall be received on the application form specified in annex-B. This form shall be forwarded to Estate Office under covering note by the department or Ministry of the applicant, certifying that the particulars given in the form are correct.
(2) The application for accommodation as and when received form an applicant, shall be acknowledged by the Estate Office by issuing a registration card in the form set out in annex-C.
(3) The Estate Office shall maintain waiting list of FGSs who have applied for government accommodation on the prescribed form. The copies of the GWL shall be provided to all eligible Ministries or divisions or departments for information.
(4) Seniority of a FGS in the relevant GWL shall be determined from the date of his entitlement to the class of accommodation.
(5) If the date of entitlement of two or more FGSs is the same, the seniority shall be determined on the basis of length of service in the BPS and if the length of service in BPS is the same then the seniority shall be determined from the date of birth.
(6) If an allottee is transferred or sent on deputation to out station to an eligible department, he shall carry his seniority with him and shall be allotted accommodation at the new station of his posting on the basis of his date of entitlement to the class of accommodation.
(7) Federal Secretaries (BPS-22) and officers in BPS-22 will be given priority of allotment of accommodation in case they are not in occupation of Government accommodation elsewhere.
(2) Allotment of pool accommodation of Ministry of Foreign Affairs and ISI only be made by the Estate Office on the recommendation of the relevant department.
(3) Allotment in each class and category shall be made subject to the terms and conditions laid down in the form of allotment letter as set out in annex-D.
(4) In case a house of his entitlement is not available, a FGS may be allotted an accommodation of a class or category lower than his entitlement on payment of normal rent on maturity of his turn on the basis of GWL of that category."
It would be pertinent to mention here that in the meeting dated 10.10.2007, held under the Chairmanship of Secretary (Housing & Works), it was decided that employees of the PIMS would be non-entitled for government accommodation in view of the fact, that they had their own residential colony and allotments were being made on the recommendations of the PIMS authorities. However, it was clarified that the allotments already made shall not be reversed. Clause-V of the said minutes is explicit in this regard which reads as follows :--
"v. The employees of PIMS will be declared non-entitled for government accommodation in view of the fact, that they have their own residential colony and allotment of which is being made on the recommendation of PIMS authorities. However, allotments already made will not be reversed. Henceforth, the allotments of PIMS Colony will be made by PIMS authorities at their own."
Since applications for allotments of accommodation by the petitioner and others including the Respondents No. 4 & 6, appear to have been made after the promulgation of Accommodation Allocation Rules, 2002, therefore in order to set the controversy at rest we deem it appropriate to direct the departmental allotment committee to examine cases of the petitioner as well as Respondents No. 4 & 6, in the light of Accommodation Allocation Rules, 2002 and finalize the same within one month of the receipt of the copy of this judgment, positively.
Upshot of the above discussion is that this petition is converted into appeal and disposed of in the above terms.
(M.S.A.) Appeal disposed of.
PLJ 2009 SC 185
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan &
Mian Hamid Farooq, JJ.
CENTRAL BOARD OF REVENUE through its Chairman/Secretary Revenue Division, Islamabad--Appellant
versus
SHAFIQ MUHAMMAD and another--Respondents
Civil Appeal No 717 of 2007, decided on 14.4.2008.
(On appeal from the judgment/order dated 06-12-2006 passed by Federal Service Tribunal in Appeal No. 1081 (R) CS/2004)
Constitution of Pakistan, 1973--
----Art. 212(3)--Service Tribunals Act, 1973, S. 4(1)(a)--Government Servants (E&D) Rules, 1973--Scope & jurisdiction--Awarded punishment of dismissal from service--Penalty of dismissal from service was converted into reduction of pay--Interference of Supreme Court--Condonation of delay by tribunal--Question of--Tribunal exercised its discretion arbitrarily, capriciously and in a fanciful manner--Superior Courts normally do not interfere in the discretionary orders passed by the sub-ordinate Courts but it is equally true that when the discretion was exercised by them unreasonably, unjustly, arbitrarily and in a fanciful manner of course, it is the duty of superior Courts to interfere in such like orders--Appeal allowed impugned judgment was not sustainable in law and respondent's appeal was dismissal ground of limitation.
[Pp. 187, 196 & 197] A, G & H
PLD 1970 SC 139 & PLD 1994 SC 222, ref.
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 5--Power to tribunals--Tribunal may confirm, set aside, vary or modify the order appealed against in an appropriate manner--Only limitation on the power of the Service Tribunal is to satisfy the test of reasonableness. [P. 189] B
Condonation of Delay--
----Litigant seeking condonation of delay has to explain delay of each and every day for not filing his within the prescribed period. [P. 185] C
Condonation of Delay--
----Appeal was barred by almost 5 years erroneously condoned the delay on the ground that the penalty is harsh incomplete oblivion of the fact that valuable rights had accrued in favour of the appellant, which could not be denied on flimsy ground. [P. 185] D
PLD 1970 SC 287.
Condonation of Delay--
----Involvement of valuable rights of the petitioner does not furnish proper ground for condonation of delay in a civil matter. [P. 196] E
1988 SCMR 1354.
Limitation--
----"After the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for.
[P. 196] F
Raja Muhammad Bashir, ASC and Mr. Arshad Ali Chaudhry, AOR for Appellant.
Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 14.4.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been directed against the judgment dated 6.12.2006 passed by Federal Service Tribunal by virtue of which Service Appeal Bearing No. 1081(R) CS/2004 filed by Respondent No. 1 challenging the order passed by the departmental authority whereby he was awarded punishment of dismissal from service, was partly allowed and the penalty of dismissal from service was converted into reduction of pay by two stages in the time scale for a period of two years with direction of reinstatement in service.
"Leave to appeal is granted to examine as to whether the Tribunal had condoned the delay of 04 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the respondent from the office of petitioner for 05 years can be condone when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years absence was properly explained but there was no ground to justify the absence for another 05 years which finding of the department dated 10.09.1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15.03.2000."
Initially the appeal filed by the respondent before the Service Tribunal was dismissed in limine on the question of limitation and this Court vide judgment dated 27.7.2006 passed in Civil Petition No. 1422 of 2005 remanded the case to the Tribunal for decision of the appeal afresh after obtaining reply from the department on appeal as well as on miscellaneous application containing explanation for condonation of delay. In post remand proceedings, the Tribunal allowed the appeal of respondent vide impugned judgment.
The main ground of assailing the judgment of Tribunal before us in this appeal, relates to the question of condonation of delay in appeal before the Tribunal. The learned counsel for the appellant has contended firstly that the Tribunal after coming to the conclusion that the explanation offered by the respondent for condonation of delay was not sufficient, could have no justification to exercise discretion in favour of condonation of such a long delay and secondly that the long absence of respondent from duty without leave, was not deniable therefore, notwithstanding the principle of law that in the cases involving controversial question of fact regular inquiry as envisages under the rules is necessary, the dispensation of such inquiry in the present case was not against the law and competent authority in exercise of powers under Section 5 (1) (iii) of Government Servants (E&D) Rules, 1973, rightly while dispensing with the regular-inquiry, passed the final order. Lastly, learned counsel argued that under Section 4 (1) (a) of the Service Tribunal Act, 1973 a civil servant on expiry of 90 days from the date of filing the departmental appeal, is not supposed to further wait for decision of appeal and must file appeal within next 30 days, failing which the appeal would be out of time and in support thereof, has placed reliance on Nawab Khan Vs. Government of Pakistan (PLD 1994 SC 222) and Secretary, Government of the Punjab Vs. Riaz-ul-Haq (1997 SCMR 1552).
Learned counsel for the respondent on the other hand, with reference to the judgments of this Court in Basharat Ali Vs. Director Excise and Taxation (1997 SCMR 1543), Managing Director, SSGC Ltd. Vs. Ghulam Abbas (2003 SC 724) and Chief Engineer (North) Vs. Saifulah Khan Khalid (1995 SCMR 776) without denying the position of law that if a departmental appeal/representation is not decided within a period of 90 days, the civil servant without waiting for the result of appeal/representation, can file an appeal before the Tribunal within next 30 days, submitted that an appeal filed before the Tribunal beyond 120 days from the date of order passed by the competent authority cannot be dismissed as barred by time for the reason that the original order is merged in the order of the appellate authority, passed in appeal and without challenging the appellate order, an appeal against an original order may not competently succeed, therefore, the limitation of 30 days for filing an appeal before the Service Tribunal in a case in which the remedy of departmental representation/appeal is provided under the rules, would start from the date of communication of the order passed by the appellate authority. Learned counsel submitted that a civil servant without being aware of the reason of rejection of his appeal/representation may not be able to set up his case in appeal before the Tribunal and would not get a fair treatment in law.
Learned counsel argued that the Tribunal taking into consideration the extraordinary and abnormal situation leading to the absence of respondent from duty in the light of the facts of case in totality has rightly exercised discretion in favour of condonation of delay which was not unreasonable, unjust or unfair to be questioned before this Court. Learned counsel added that absence of respondent from duty without leave was not willful rather it was due to the circumstances beyond his control and this fact was also acknowledged by the department by treating his case as that of hardship case, granted him ex-Pakistan leave for another period of one year. Learned counsel while summoning up his arguments, submitted that in view of the factual position in the background and plausible explanation of respondent for absence from duty, the condonation of delay by the Tribunal in its discretionary jurisdiction, was not contrary to law to be questioned.
The peculiar circumstances of the case in the background would give rise to the essential question for determination as to whether absence of respondent was willful and he intentionally avoided to report for duty or he was prevented by the unavoidable circumstances to resume the duty. In the light of explanation of respondent that he under the compelled circumstances, prolonged his stay abroad, on the face of it, would suggest that his absence was not willful, therefore, a contrary presumption could not be drawn without recording evidence and holding regular inquiry as the controversial question of fact whether absence was willful or not, could not be decided on the basis of mere show-cause notice and its reply, therefore, the presumption of willful absence raised by the competent authority for imposing major penalty of dismissal from service was not legal without providing a fair and proper opportunity of hearing to the respondent who was condemned unheard. Learned counsel lastly argued that the Tribunal in exercise of power under Section 5 of the Service Tribunal Act, 1973, in the light of the facts of case, may modify the quantum of punishment and unless this discretionary jurisdiction is found to have been exercised beyond the scope of law, it may not call for interference of this Court.
Section 5 of the Service Tribunal Act, 1973, provides that Tribunal may confirm, set aside, vary or modify the order appealed against in an appropriate manner. The careful examination of this provision would show that only limitation on the power of the Service Tribunal is to satisfy the test of reasonableness. Section 5 of Service Tribunal Act, 1973, provides as under:--
"5. Power to Tribunals: (1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination of witnesses and documents."
In the present case, it appears that Tribunal having considered the question of law and facts raised in the appeal formed an opinion that the extreme penalty of dismissal from service was not in consonance with the nature and gravity of charge of absence from duty without leave and while exercising power under Section 5 ibid, converted major penalty of dismissal from service into stoppage of two increments for a period of two years and careful perusal of the record would not suggest that discretion was exercised beyond the scope of law. The learned counsel for the appellant also has not been able to satisfy us that the Tribunal has committed any wrong in exercising the jurisdiction on the basis of test of reasonableness or settled principle of law on the subject, which may be treated a jurisdictions error calling for interference of this Court. The scope of interference of the Supreme Court in a case under Article 212(3) of the Constitution is confined to the extent of satisfaction of the Court regarding involvement of substantial question of law of public importance, therefore, the order passed by the Tribunal unless is found to have been passed without jurisdiction, or same is coram non judice, mala fide or illegal, in respect of substantial question of law, this Court may not interfere in the matter in exercise of its powers under Article 212 (3) of the Constitution. In the present case, it appears that Tribunal firstly exercised discretion in favour of condonation of delay for the consideration that absence without leave may not be deliberate and intentional rather due to the abnormal situation which prevented the respondent to return Pakistan and secondly, keeping in view the nature of charge and the circumstances under which respondent could not resume duty, exercised discretion in favour of lesser penalty in the interest of substantial justice. The law authorizes the Tribunal to make a decision on the question of penalty awarded to a civil servant by the departmental authority and substitute the quantum of punishment in an appropriate manner in a suitable case in its discretion within the statutory command and this is settled law that a judicial power exercised in discretionary jurisdiction, is not supposed to be interfered by a higher judicial forum for collateral consequence in its discretion.
It is clear that Tribunal has to follow the limitations and restrictions of law in exercise of discretion in a manner, which may not offend the spirit of law. The concept of discretion in judicial power is to advance the cause of justice and exercise of this power in a judicious manner in aid of justice and not to perpetuate injustice whereas the executive authorities have different consideration for exercise of such power. The judicial norms do not permit to encourage continuation of exercise of jurisdiction by a State functionary to deprive a person from his legitimate rights. It would been seen highly unlikely that Supreme Court imbue the discretionary action of a public functionary if the same was done in departure to the recognized principles of exercise of discretionary power. The distinction in the recognition of an action of a person and governmental authorization of public officer can be demonstrated by the test of determination whether deprivation of a right was the result of such an action of individual or the breach of law by a public authority. The deprivation of some right or privilege is caused in consequence to an official act and the party charged with the deprivation is a person who acted as public functionary, therefore, the judicial powers necessarily to be exercised in aid of protecting the right and must not be exercised in aid of injustice. In the light of the facts and circumstances of the present case, the exercise of discretion by the Tribunal in condoning the delay as well as disposal of appeal with reduction of punishment without remand of case to the departmental authority for holding inquiry was quite in accordance with the concept of substantial justice in such a case of hardship.
The respondent proceeded abroad with the permission of department and was also subsequently allowed ex-Pakistan leave on humanitarian ground, therefore, the element of willful absence in view of repeated explanation of respondent regarding his difficulty, sought extension in ex-Pakistan leave. The department at the first instance treating it a hardship case allowed ex-Pakistan leave and subsequently without change of circumstances taking a harsh view initiated departmental proceedings against him and ultimately awarded him extreme penalty of dismissal from service and in these circumstances, the remand of the case to the department would be futile. The regular inquiry in the departmental proceedings is a rule and dispensation is an exception depending on the facts of a case, therefore, the question whether regular inquiry in a case is necessary or not, it is to be kept in mind as to whether an adverse inference drawn without making probe in to the facts in the light of explanation of a civil servant, would not amount to condemn a person unheard. The Courts must not ignore cardinal principle that the hearing simplicitor does not mean providing of opportunity of written explanation to the show-cause notice rather in the facts of each case, it must be seen that the enquiry is just, proper and fair, therefore, no general rule can be laid down for dispensation of regular inquiry. The departmental proceeding on the charge of misconduct is a sort of semi-criminal proceeding in which initial burden is on the department to prove the charge and if the allegations are denied by the official accused the charge cannot be proved without producing evidence. In the present case, the stand of respondent right from beginning was that his absence was not willful rather due to unavoidable circumstances, he was prevented to resume duty. In view thereof, the procedure of dispensation of inquiry adopted by the department, was contrary to the law laid down by this Court and consequently, the finding of the Tribunal in the peculiar facts and circumstances of the present case, that regular inquiry was essential to ascertain as to whether the question of willful absence and dispensation of such an inquiry was not in accordance with the spirit of law in the given facts, was unexceptional. In view thereof, the major penalty of dismissal from service without regular inquiry was not justified. The contention that the Tribunal should have remanded the case instead of disposal of appeal on merit was not raised before the Tribunal and now it is too late to undertake such a futile exercise of remanding the case at this stage.
In the light of general principle, appeal before the Tribunal appeared to be time barred but in view of the circumstances pleaded therein, no exception can be taken to the condonation of delay by the Tribunal as the objection could conveniently be over ruled in view of the fact that the order of dismissal of appeal was conveyed to the respondent vide letter dated 15.3.2000 and he immediately thereafter filed the appeal, therefore, in view of his bona fide, the objection of limitation, may have no significance. This Court in Haji Kadir Bux Vs. Province of Sindh (1982 SCMR 583) in similar circumstances, held that a civil servant could wait till communication of decision of departmental appeal and would not be non-suited on technical grounds.
In the light of above discussion, we are of the considered view that the discretion exercised by the Tribunal in condoning the delay and disposal of appeal on merits with conversion of penalty of dismissal from service into stoppage of increment, was not illegal or improper exercise of jurisdiction. The departmental proceedings were initiated against the respondent in the year 1998 which continued for a period of about 10 years and we have been informed that the impugned judgment having been already given effect, respondent was performing his duty and in view thereof, it is not proper for this Court to interfere in the judgment of the Tribunal at this stage on technical grounds. Learned counsel has not been able to convince us that the discretionary jurisdiction exercised by the Tribunal in respect of condonation of delay and conversion of penalty was arbitrary, illegal or un-reasonable to attract the jurisdiction of this Court under Article 212(3) of the Constitution.
The upshot of above discussion is that the instant appeal has no merit and same is accordingly dismissed with no order as to costs, by majority of two to one.
Mian Hamid Farooq, J.--I have had the advantage of reading the judgment authored by my learned brother Muhammad Nawaz Abbasi J, for whom I have great regard and whose legal acumen I have always admired, however, I find myself unable to agree with his views, findings and conclusions, thus I propose to write dissenting judgment.
"10. In view of the above discussion both in favour and against the appellant, we convert the punishment of major dismissal to that of major penalty of reduction of his pay by two stages in the time scale for a period of two years in which he was working at the time when dismissal from service was imposed. He shall accordingly be reinstated in service. The period during which the appellant remained out of service will be treated as leave of the kind due to him if any at his credit and the remaining as extraordinary leave without pay.
The appeal is partly accepted as above with no orders as to cost. Parties be informed".
Facts of the case, in brief, are that Respondent No. 1 (respondent) was working as Additional Commissioner in Income Tax Department, when, he was deputed for foreign training in the USA by the Government of Pakistan with effect from 24.8.1992 to be completed on 31.12.1995; on the said date, the respondent applied for ex-Pakistan leave and he was granted 731 days ex-Pakistan leave from 1.1.1996 to 31.12.1997 vide notification dated 2.5.1996; subsequently, further ex-Pakistan leave, for 365 days with effect from 1.1.1998 was granted to the respondent vide notification dated 9.7.1998; the respondent filed yet another application seeking further extention of ex-Pakistan leave, but the department refused to grant the same and issued him a show-cause notice dated 23.2.1999, which was replied by the respondent explaining the reasons for not assuming duty. The reply to the show-cause notice was found unsatisfactory by the department and thus major penalty of dismissal from service was imposed upon the respondent, vide notification dated 4.8.1999. His departmental appeal, filed on 10.9.1999, was rejected on 15.3.2000. Respondent, on 27.12.2004, filed grossly time barred appeal before the Federal Service Tribunal, which dismissed it as time barred, however this Court, on 27.7.2006, remanded the case to the Tribunal for fresh decision of the appeal on merits including the question of limitation. In post remand proceedings, the Tribunal condoned the delay of almost five years and accepted the appeal, vide impugned judgment dated 6.12.2006 in the terms noted above. Feeling aggrieved by the said judgment, the department filed the petition for leave to appeal (CP.72/2007) and this Court, on 7.2.2007, granted leave to appeal in the following manner:--
"Leave to appeal is granted to examine as to whether the Tribunal had condoned the delay of 04 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the respondent from the office of petitioner for 05 years can be condoned when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years absence was properly explained but there was no ground to justify the absence for another 05 years which finding of the department dated 10.09.1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15.3.2000".
"8. The point that needs to be examined at the preliminary stage is whether the appeal is barred by time and therefore hit by limitation. From the record of the case it is clear that the appellant was imposed upon the major penalty of dismissal from service vide impugned notification dated 4.8.1999 which was received as stated by the appellant on 18.8.1999 through the embassy of Pakistan, Washington. The appellant preferred a departmental appeal on 10.9.1999 which was rejected by the department on 15.3.2000. The appellant claims that he did not receive any intimation regarding the rejection of his departmental appeal and that it was only when he came to Pakistan in the year 2004, on his enquiry with the department regarding the fate of his departmental appeal that he was informed that the departmental appeal has been rejected. The contention of the appellant that he did not receive intimation regarding the rejection of his departmental appeal does not appeal to reason as all communications addressed to the appellant through the Embassy of Pakistan, Washington were admittedly received by the appellant and the claim that only the rejection of his departmental appeal which was also routed through the same agency i.e. the Embassy of Pakistan, Washington D.C., was not received seems to be at the very least doubtful. It appears to be a convenient ploy on the part of the appellant to justify the lapse on his part in seeking timely redressal before a competent forum including this Tribunal. He remained silent for almost five years and only on return to Pakistan he chose to agitate his case before this Tribunal on the plea that he had not received intimation about the rejection of his departmental appeal. We are not inclined to accept the contention of the appellant that he did not receive the intimation regarding the rejection of his departmental appeal especially as he does not deny having received all other relevant communications through the same source i.e Embassy of Pakistan, Washington D.C. However, as the penalty is extreme i.e dismissal from service we with some reluctance condone the delay". (Underlining is for emphasis)
"In such a context, however, the sole submission of the learned counsel for the petitioner is that if the delay in filing the appeal is not condoned, injustice done to the petitioner shall be perpetuated and thereby he shall suffer an irreparable loss caused by the impugned order. Learned Tribunal held that the law on the point, however is well settled that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. For these reasons the application for condonation of delay was rejected and, consequently, the appeal was dismissed vide the impugned order.
We have examined the submissions made by the learned counsel and find no substance in them. The impugned order is unexceptionable. Leave refused and the petition is, consequently, dismissed". (Underlining is mine).
Now dealing with the plea of the learned counsel for the respondent regarding exercise of discretion by the Tribunal. The learned Tribunal, as noted above, after rejecting the plea of the respondent for condonation of delay, condoned the delay of 5 years simply on the ground that the penalty is harsh, thus to my mind, the learned Tribunal exercised its discretion arbitrarily, capriciously and in a fanciful manner. It is true that the superior Courts normally do not interfere in the discretionary orders passed by the subordinate Courts, but it is equally true that when the discretion was exercised by them unreasonably, unjustly, arbitrarily and in a fanciful manner, of course, it is the duty of superior Courts to interfere in such like orders. In this case, I feel that the Tribunal exercised discretion against all the recognized principles laid down by the superior Courts for exercise of discretion, therefore, this Court has ample powers to interfere in the discretion exercised by the Tribunal. Reference can be made to the cases of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139) & Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222).
In the above perspective, I have examined the impugned judgment and find that the same is not sustainable in law and the respondent's appeal before the Tribunal was liable to be dismissed on the ground of limitation as it was grossly barred by time. The Tribunal acted illegally and incomplete ignorance of law while condoning the delay and thus I am persuaded to reverse the judgment.
For the foregoing reasons, the appeal in hand is allowed and the impugned judgment dated 6.12.2006 passed by the Service Tribunal is set aside and the respondent's appeal stands dismissed on the ground of limitation. No order as to costs.
(W.I.B.) Appeal allowed
PLJ 2009 SC 197
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ejaz Yousaf &
Muhammad Farrukh Mahmud, JJ.
REHAN--Petitioner
versus
STATE--Respondent
Crl. Petition No 242 of 2008, decided 28.8.2008.
(On Appeal from the order dated 30-06-2008 of the Peshawar High Court, Abbottabad Bench passed in Crl. Misc. No 63/08)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 173--Challan--Non submission--Non submission of challan for such a long period is a matter of great concern and cannot be taken lightly.
[P. 199] B
Constitution of Pakistan, 1973--
----Arts. 9 & 10--Distinction--Art. 9 of Constitution guarantees that no person would be deprived of life or liberty save in accordance with law; while Art. 10 of Constitution provides safeguard as to arrest and detention. [P. 201] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, Ss. 324/34--Bail, grant of--Indiscriminate firing--Complainant attributed indiscriminate firing to all the accused while according to rough site-plan no empty was recovered from the spot nor any blood stains was observed at the place of occurrence--According to medical evidence, the complainant suffered two pallet injuries on his back which have not been described "as dangerous to life" and did not cause and fracture--Admittedly no recovery was affected from the petitioner--Bail allowed. [P. 199] A
Qari Abdul Rasheed, ASC for Petitioner.
Ch. Muhammad Akram, ASC for Complainant.
Mr. Zia-ur-Rehman, A.G. NWFP for State.
Date of hearing: 28.8.2008.
Judgment
Muhammad Farrukh Mahmud, J.--This petition is directed against order dated 30.6.2008 handed down by the learned Judge in Chambers of Peshawar High Court, Abbottabad Bench in case FIR No. 462, registered at Police Station Saddar, Mansehra on 8.10.2007 for offences under Sections 324/34 PPC whereby bail application of the petitioner was dismissed.
The relevant facts are that on the fateful day, Muhammad Banaras complainant was going to Mansehra to attend to a Court date on a taxi cab Registration No. 04227-Mansehra, which was driven by Sajid. Complainant's father Muhammad Mahroof, brother Muhammad Tariq and sister's husband Niaz Akhtar were accompanying him. At about 8:30 a.m. while they were near the house of Khaqan co-accused, Javed armed with klashnikov, Rehan-petitioner armed with .12 bore repeater, Khaqan and Naseer both armed with .30 bore pistol, who were present there, fired at the cab in-discriminately, resultantly Muhammad Banaras received injuries on the back of his chest. The motive behind the occurrence was existing enmity between the parties over a previous murder.
The learned counsel for the petitioner had argued that petitioner was in jail since 6.11.2007 and so far challan/final report under Section 173 Cr.P.C. has not been submitted; that injuries suffered by the complainant were simple in nature; that the story was not plausible; that no recovery was effected from the petitioner; that according to investigation, the occurrence did not take place in the manner described in the FIR and that the petitioner was innocent who was implicated due to admitted enmity.
Conversely, learned counsel for the complainant has submitted that petitioner was duly named in the promptly lodged FIR and that medical evidence connected the petitioner with the crime as the injuries suffered by the complainant were caused by pallets and that his case was distinguishable from the co-accused admitted to bail as only petitioner was armed with .12 bore repeater.
The learned Advocate General, NWFP has submitted with concern that so far challan/final report under Section 173 Cr.P.C. has not been submitted in the Court.
We have heard the learned counsel for the parties and have scanned the entire record of the case.
The complainant attributed indiscriminate firing to all the accused while according to rough site-plan no empty was recovered from the spot nor any blood stains was observed at the place of occurrence. According to medical evidence, the complainant suffered two pallet injuries on his back which have not been described "as dangerous to life" and did not cause any fracture. Admittedly no recovery was affected from the petitioner.
In addition to that, petitioner is in jail for about 11 months and so far charge-sheet/challan/final report under Section 173 Cr.P.C, has not been submitted in the Court. Non submission of challan for such a long period is a matter of grave concern and cannot be taken lightly. Time and again Superior Courts have been deprecating the practice of delay in submission of challan/report under Section 173 Cr.P.C So Section 173 Cr.P.C. was suitably amended by Act XXV of 1992 which is being reproduced hereunder for ready reference:--
"173. Report of police-officer. (1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer Incharge of the police-station shall, {through the public prosecutor.}.
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
{Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer Incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decided that the trial should not so commence}
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:
Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
"(5) Where the officer incharge of a police-station forwards a report under sub-section (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial".
"However, our emphasis is that notwithstanding the fact that before or after completion of investigation period prescribed under Section 167, Cr.P.C. if it is not possible to submit final report, the Investigating Agency should strictly adhere to the provisions of Section 173 (1), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification.
Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees that no person would be deprived of life or liberty save in accordance with law; while Article 10 of the Constitution provides safeguard as to arrest and detention. The Courts should be mindful of the above noted Articles before remanding the accused to police custody or postponing the commencement of trial. The Superior Courts had been taking serious note of the lapses on behalf of Police, Public Prosecutors, Magistrates and the Sessions Judges in charge on that regard, but it appears that unfortunately after passage of time, the above noted functionaries go into slumber and need to be shaken up. It is obvious from the fact that action was taken by this Court in the year 2002, against all concerned functionaries while deciding the case of Hakim Mumtaz Ahmed supra yet the malaise of delay in submission of challan/final report under Section 173 Cr.P.C. persists.
Considering all the above noted circumstances, we are inclined to convert this petition into appeal which is allowed, as a consequence whereof, impugned judgment dated 30.6.2008 passed by the Peshawar High Court, Abbottabad Bench in Crl. Misc. No. 63/2008, is set-aside.
(1) Copy of this judgment be sent to Inspector General of Police, NWFP who is directed to take action against the concerned SHO/Investigating Officer, D.S.P. Investigation and S.S.P/ Incharge of Investigation as to why provisions of Section 173 Cr.P.C. were not complied with.
(2) Copies of this judgment shall also be sent to the Home Secretaries and Inspectors-General of Police of all the Provinces including Inspector General of Police, Islamabad Capital Territory and Registrars of all the High Courts including Islamabad High Court, Islamabad, for ensuring strict compliance of Section 173 Cr.P.C. read with Section 344, Cr.P.C.
(3) The Registrar of Peshawar High Court will also bring this matter into the notice of Hon'ble Chief Justice for initiating action against the Magistrate who had been granting remand of the accused beyond the period of 14 days under Section 173 (1) Cr.P.C. without insisting upon the police to submit challan within stipulated period.
"For the reasons to be recorded later, this petition is converted into appeal and is allowed. Appellant Rehan s/o Ayub is granted bail subject to furnishing surety in the sum of Rs. 100,000/- (rupees one lac only) with PR bond in the like amount to the satisfaction of trial Court.
(W.I.B.) Bail allowed.
PLJ 2009 SC 202
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ch. Ejaz Yousaf & Mian Hamid Farooq, JJ.
M/S NOORANI TRAVELS, KARACHI--Petitioner
versus
MUHAMMAD HANIF & Others--Respondents
Civil Petitions No. 445-K to 447-K of 2006, decided on 25.2.2008.
(On appeal from the judgments dated 10-08-06 in C.P No. S-593/04, C.P No S-199/06, C.P No. S-724/04 passed by the High Court
of Sindh Karachi)
Partnership Act, 1932 (IX of 1932)--
----S. 42--Dissolution of partnership--Effect--Partnership dissolve on the happening of certain contingencies including death of a partner, yet it does not necessarily follow that its business came to an end as intention to continue business in partnership with legal heirs/representatives of the deceased partner may be gathered from conduct of the parties. [P. 212] A
Un Authorized Sub-tenant--
----An unauthorized sub-tenant can be evicted alongwith the tenant against whom the eviction order is passed by rent controller and he is not a necessary party to the proceedings being unauthorized in occupation of the premises. [P. 212] B
Civil Procedure Code, 1908 (V of 1908)--
----O. 1--R. 10--Proper and necessary party--Criteria--Held: To become a party to the proceedings it is to be established by the intervener or interceptor that he has a legal right in the property which is enforceable by law" otherwise he cannot claim to be a necessary party in proceedings. [P. 212] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 119--Burden of proof--Burden of proof as to any particular fact lies on that person who wishes to believe the Court that proof of that fact lies on another person. [P. 213] D
Mr. Abdul Qadir Khan, ASC and Mr. Tariq Khokhar, ASC for Petitioner.
Malik Muhammad Qayyum, ASC and Mr. Mansoorul Arfin, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents.
Date of hearing: 25.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--We propose to dispose of these three petitions for leave to appeal through this common judgment as it relate to one and the same property i.e. No. SR-6/3 & SR-6/4, situated on Frere Road and South Nepair Road, Karachi, commonly known as "Yousufali Alibhoy Karimji Building" a portion whereof is claimed to be occupied by the petitioner as a lawful sub-tenant.
CPLA No. 445-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh, Karachi whereby C.P. No. S-593/04 filed by the petitioner was dismissed and learned Rent Controller was directed to proceed with the execution applications filed by Respondents No. 1 to 3 in accordance with law.
C.P. 446-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh, Karachi, whereby C.P. No. S-199/2006 filed by the petitioner against the orders dated 10.1.2004 and 19.7.2004 dismissing the petitioner's FRA No. 266/2001 (Old No. 669/98) for non-prosecution, was dismissed.
CP 447-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh at Karachi whereby C.P. No. S-724/2004 filed by the respondents was allowed, order dated 5.10.2004 passed by the VIth Additional Sessions Judge, Karachi was set-aside and order dated 18.3.2004 passed by the learned Rent Controller was restored.
It is claimed by the petitioner that in the year 1979, Respondent No. 4 let out a separate and independent shop on ground floor to the petitioner on a rent of Rs.125/- per mensum and upon payment of pagri in the sum of Rs. 2,50,000/- The rent was increased finally to Rs. 270/- excluding water and betterment tax. The petitioner after acquiring tenancy right in the said shop started running business therein and paid rent to the Respondent No. 4 upto the month of November, 1995 and thereafter, deposited the same in MRC No. 1428/2005 in the Court of IIIrd Sr. Civil Judge, Karachi (South).
Two rent cases were filed by Yusufali Alibhoy Karimji and Company, against Respondent No. 4 in the Court of Rent Controller, Karachi (South) for seeking ejectment on the ground of subletting. The said rent cases ended into compromise wherein it was agreed that Respondent No. 4 would be competent to sublet the premises to various tenants.
In the year 1992, Yusufali Alibhoy Karimji and Company, filed Rent Case No. 1631 of 1992 against Respondent No. 4 seeking ejectment on the ground of default in payment of rent, however, the ground of subletting was not taken in the said case. It is alleged that the petitioner and other tenants were not made party to the above proceedings. In the said Rent Case i.e. No. 1631 of 1992 the Respondents No. 1 to 3 on the basis of a sale-deed, moved an application under Order I Rule 10 CPC for substitution in place of the original owner M/s. Yusufali Alibhoy Karimji and Company, which was allowed vide Order dated 5.5.1997.
It is alleged by the petitioner that on 1.4.1997 a group of labourers claiming to have been hired/ engaged by the Respondents No. 1 to 3, started demolishing and damaging the said building, therefore, the petitioner along with 5 other sub-tenants filed Suit No. 403 of 1997 for permanent injunction against Respondents Nos. 1 to 3. During pendency of the said Suit, the petitioner and other subtenants filed applications under Order I Rule 10 CPC for impleadment as party in Rent Case No. 1631 of 1992, which were dismissed for non-prosecution on 16.4.1998 by the Rent Controller. Subsequently, on 22.4.1998, the ejectment application filed by the Respondents No. 1 to 3 in Rent Case No. 1631/1992 was allowed against Respondent No. 4 in respect of two tenements i.e. No. 1 and 4. The petitioner being aggrieved from the orders dated 16.4.1998 and 22.4.1998 preferred FRA No. 66 of 1998 before the High Court of Sindh which was dismissed vide judgment dated 24.11.1998. Against the said judgment, the petitioner preferred C.P.L.A. No. 38-K of 1999 before this Court which was converted into appeal and disposed of with consent of the parties vide order dated 10.6.1999 and matter was remanded for fresh decision after affording opportunity to the parties to lead further evidence, if any.
After remand, FRA No. 226 of 2001 was dismissed on 10.1.2004 for non-prosecution, for the reason that proprietor of the petitioner firm could not appear for his cross-examination. The petitioner moved an application under Order 41, Rule 19 for setting aside the order dated 10.1.2004 which was also dismissed vide order dated 19.7.2004 against which the petitioner filed C.P. No. S-199/2006 before the High Court of Sindh, Karachi, which was dismissed vide judgment dated 10.8.2006, impugned in C.P.L.A. No. 446-K of 2006.
Respondents No. 1 to 3 filed execution Application No. 37/98 against Respondent No. 4 ¦which was allowed vide order dated 10.9.1998. The said respondents also moved an application for issuance of writ of possession in the said execution but was dismissed vide order dated 10.10.2001. The said respondents then filed an application for review of the order which was also dismissed vide order dated 17.4.2001. The respondents then filed FRA No. 84/2001 against the order dated 9.1.2001 and 17.4.2001 which too was dismissed by 1st Addl. District & Sessions Judge vide order dated 24.5.2001. It was specifically stated by the petitioner before the High Court that Respondents No. 1 to 3 did not challenge order dated 24.5.2001 in FRA No. 84/2001 before the High Court.
The petitioner on 3.3.2004 moved an application under Order XXI, Rule 99 and 100 read with Section 151 CPC in the said execution Application No. 37/98 which was dismissed vide order dated 18.3.2004. The petitioner then filed appeal FRA No. 58 of 2004 against order dated 18.3.2004 passed by the Court of VIth Addl. Sessions Judge, Karachi, which was allowed vide order dated 5.10.2004. Against the said order the Respondents No. 1 to 3 filed C.P.No. S-724 of 2004 which was allowed, order dated 5.10.2004 was set-aside and the order dated 18.3.2004 was restored against which C.P.L.A. No. 447-K of 2006 has been filed.
Against the order dated 18.3.2004, dismissing the writ of possession, Respondents No. 1 to 3 filed FRA No. 46 of 2004 before the Vth Additional District & Sessions Judge, Karachi (South), which appeal was allowed vide order dated 31.5.2004 and order dated 18.3.2004 was set-aside. Being aggrieved the petitioner filed CP. No. S-593/2004 before the High Court of Sindh, Karachi, which was dismissed vide the judgment impugned in C.P.L.A. No. 445-K/2006.
Learned counsel for the petitioners has contended; that the Courts below have gravely erred in not appreciating the fact that the petitioner was duly authorized sub-tenant in the premises as Respondent No. 4 M/s. Tar Muhammad Haji Jamal was authorized by the real owner i.e. M/s. Yusufali Alibhoy Karimji & Co. to sub-let the premises; that the petitioner ought to have been joined as a necessary party in the Rent Case as well as in the execution application because the petitioner was in possession of the rented premises in capacity of a lawful tenant since 1979; that since the petitioner was not a party to the ejectment proceedings and Respondents No. 1 to 3 were trying to execute the order against the petitioner under the garb and clog of ejectment order obtained against Respondent No. 4, a dead person, therefore, it was ineffective against the rights of the petitioner; that the ejectment order could not have operate against the petitioner as it was passed regarding Tenements No. 1 & 4 while the petitioner was in possession of a distinct and separate property.
M/s. Malik Muhammad Qayyum and Mansoorul Arfin, learned counsel for the respondents, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner, have stated that since the premises was unauthorisedly occupied by the petitioner, therefore, he had no locus standi to file application under Order I Rule 10 CPC in Rent Case No. 1631/92 out of which this petition has arisen, praying that he may be joined as a party. They have stated that though it is claimed by the petitioner that he was lawful tenant and was inducted in the premises by Respondent No. 4 M/s. Tar Muhammad Haji Jamal yet, an iota of evidence was not available on record that he had paid rent to the owners i.e. Respondents No. 1 to 3. They have added that seeking permission to deposit rent in MRC 1428/95 in the name of Respondent No. 4 before the Rent Controller indicates that rent was never paid to the original owner, otherwise deposit would have been made in the name of the owner. They further added that claim of the petitioner regarding induction as an authorized sub-tenant in the premises in the year 1979, was patently false because Respondent No. 4 M/s. Tar Muhammad Haji Jamal, at that point of time themselves were not authorized to sublet the premises. They maintained that in the circumstances the petitioner had no right or locus standi either to become a party to the proceedings or to abstract or delay the execution. They have further submitted that petitioner was claiming tenancy rights through Respondent No. 4 against whom ejectment order was passed, therefore, the petitioner was bound by the said order and liable to be ejected. Hence petitions being misconceived, may be dismissed.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely, with their assistance.
As to the first contention raised by the learned counsel for the petitioner that the Courts below have gravely erred in not appreciating the fact that the petitioner was duly authorized sub tenant in the premises as Respondent No. 4 M/s. Tar Muhammad Jamal was authorized by the "real owner" M/s. Yusufali Alibhoy Karimji & Co. to sublet the premises, it may be pointed out here that, as per record, the entire building, a part whereof is allegedly occupied by the petitioner, originally belonged to M/s. Fazle Abbas s/o Ghulam Hussain Asgher, Akber, Hansain, Nooruddin, Muhammad Ali, Munawar Ali, Abid Hussain and Fatima Bai, and M/s. Yusufali Alibhoy Karimji & Co., to whom Respondent No. 4 M/s. Tar Muhammad Haji Jamal used to pay rent, was only a Rent Collector on their behalf. Statement of Anwar Ali, a partner of M/s. Yusufali Alibhoy Karimji & Co. made in Rent Case No. 1026/1987 titled as Yusufali Alibhai Karimji & Co. versus M/s. Tar Muhammad Haji Jamal & Co. which was later on compromised and in pursuance thereof M/s. Tar Muhammad Haji Jamal were authorized to further sublet the premises, is explicit in this regard. The relevant portion of the statement reads as follows:--
"Since 1942 I am partner in the firm of applicants. The premises was letout to the opponent by the applicants. It is correct that M/s. Fazle Abbas s/o Ghulam Hussain Asgher, Akber, Hansain, Nooruddin, Muhammad Ali, Munawar Ali, Abid Hussain and Fatima Bai are the owners of the premises in question, but the applicants are attorney of the above persons. It is correct that the applicants are not owners of the property in question. ........... There is no written rent agreement in between the applicants and the opponents. ............. voluntarily says that opponent was not authorized to sublet the premises. I am looking after the building since 1947. ............ It is incorrect to suggest that the opponents authorized to construct the small offices and shops in the building and letout the same to the tenants without our permission.
It is the claim of the petitioner that said "real owner" i.e. M/s. Yusufali Alibhoy Karimji & Co. filed Rent Case No. 1026/1987 against the original tenant, i.e. Respondent No. 4, M/s. Tar Muhammad Haji Jamal, in the Court of 1st Senior civil Judge & Rent Controller (South) Karachi, for ejectment on the ground of subletting which ended into a compromise and by means thereof the original tenant i.e. Respondent No. 4, Tar Muhammad Haji Jamal, was authorized to sublet the premises to various tenants with the permission of the said "real owner" vide order dated 30.3.1988. It would be pertinent to mention here that though the petitioner was not a party to the said proceedings yet, in order to establish that he was a "lawful sub-tenant", he has relied thereon. In order to fully appreciate the controversy, we deem it appropriate to reproduce the above order dated 30.3.1988 in extenso, which reads as under:--
"APPLICATION U/O 23 RULE 3 CPC
The parties have settled their dispute as under:--
That in future after doing all or any of the acts complained of in this case, the opponent will intimate the same to the applicant.
It is, therefore, prayed that, this Hon'ble Court may be pleased to dismiss the above suit in terms hereof.
Karachi
Dated 28.3.1988
Sd/- Sd/-
Advocate for applicant Partner of applicant
Sd/- Sd/-
Advocate for opponent Partner of opponents
ORDER
Contents of this application are read over to the party in urdu, who accept it to be true and correct. In view of the joint statement given by the party case is disposed of in the terms of compromise.
Announced in the open Court this the 30th day of March, 1988.
Sd/- 30.3.1988
(Hussain Bakhsh Khoso)
1st Senior Civil Judge, Karachi South"
It appears that an agreement i.e. Ex.P.20 was also executed in this regard (Stamp affixed thereon is dated 23.12.1987 whereas, Notary Public's attestation date is 23.12.1988), between the parties, whereby the said tenant was duly authorized to let out the premises to subtenants however, perusal thereof reveals that prior thereto M/s. Tar Muhammad Haji Jamal were not authorized to let the premises on rent to any body else. Learned Judge in the High Court while taking notice of the situation has, in the impugned judgment, observed that on the basis of receipts (as per note/terms and conditions printed on both the annexures i.e. P-7 and P-8, the rent receipts), issued by M/s. Yuusufali Alibhoy Karimji and Co. to M/s. Tar Muhammad Haji Jamal, it was clear that Respondent No. 4 M/s. Tar Muhammad Haji Jamal was not competent to sublet the premises or transfer it to any third party. Relevant extract from the impugned judgment is reproduced hereunder:--
"There is no proof on record that the previous owner was M/s. Yousaf Ali Alibhoy Karimiji and Co. who issued any receipt of rent to the tenant/Respondent No. 4. From the perusal of the Annexure 7-7 and P-8 there is note which is reproduced as under:
"Attention is drawn to the terms of tenancy as per reverse. Tenant will on paying rent to landlords or their bill collector obtain proper receipt on the bill itself without which no payment will be recognized"
In the Terms and conditions as mentioned in the above receipts it is specifically mentioned that the Respondent No. 4 shall not sublet the premises or transfer possession thereof to any third party."
It is claimed by the petitioner that the petitioner firm was inducted in the premises in the year 1979 by Respondent No. 4 M/s. Tar Muhammad Haji Jamal. If this claim is admitted to be true, then the firm is non-suited by its own admission for the simple reason that at the relevant time i.e. in the year 1979, M/s. Tar Muhammad Haji Jamal themselves were not authorized to sublet the premises to some body else. Be that as it may, since no document or agreement was produced on record by the petitioners to show that they were ever authorized by M/s. Tar Muhammad Haji Jamal to occupy the premises, even in the year 1985, which fact was categorically denied by M/s. Tar Muhammad Haji Jamal therefore, the stance taken by the petitioner was rightly disbelieved by the Courts below. It would be worthwhile to mention here that the situation led the learned Judge in the High Court to, while deciding application under Order I, Rule 10 CPC, observe that though intervener i.e. the petitioner claims that it was a necessary party to the proceedings and without impleading it the Rent Case No. 1631/1992 could not have been decided yet, in the application it was no where stated that the intervener after having been inducted in 1979 as tenant, had paid rent to the original owner, nor any proof in respect of the issuance of rent receipts or expenses/payment of pagri in the sum of Rs.2,50,000/- was produced. The learned Judge was further, of the opinion that the rent receipts and the telephone bills etc. produced by the petitioners including the deposit of rent in the MRC, were of no help to the petitioner because it did not establish that the premises in question was ever let out to the petitioner by Respondent No. 4 i.e. M/s. Tar Muhammad Haji Jamal. It would be pertinent to reproduce herein below the relevant extract from the judgment which reads as follows:
"Receipts annexure P-7 page 111 indicates bill No. 5283 dated nill issued by Tar Muhammad Haji Jamal in the sum of Rs.300/- but there is no date though there is writing with pencil dated 1.10.1980 being bill No. 5313 dated nill amounting to Rs.200., and the application moved in May, 1981. These are Telephone bills at P-10 at page 117 and P-11 at page 119, P-12 at page 113 and P-13 at page 123 and there is receipt issue by Court of Civil Judge and Rent Controller Karachi south dated 10.8.1996 for deposit of rent from 1.7.1978 on 30.6.2000 amounting to Rs. 6720/-. There is another receipt P-15 at page 127 issued by Court of Senior Civil Judge and Rent Controller III Karachi (South) indicating name of Saleem Ali son of Nazar Ali dated 4.7.2000 amounting to Rs. 6720/- as advance for two years from July 2003 to 30.6.2005. Said rent was deposited by Saleem Ali son of Nazar Ali for Tar Muhammad Haji Jamal.
Admittedly the petitioner has not filed rent receipts since 1979 as claimed by him that he was inducted as tenant in the said shop at the rent of Rs. 175/- per men sum. Receipts at P-7 and P-8 do not prove that the said receipts are in respect of rental claimed by the Respondent No. 4 as one receipt date 1.10.1980 and the other is dated 31.1.1981 as pointed out by the learned counsel for the petitioner but from the perusal of the said receipt there is no indication that the said receipts were issued on such dates because there is no date on both the receipts. The petitioner has admitted in this petition that the started depositing rent in MRC 1428/95 before the learned Rent Controller Karachi (South) for the month of December 1995 and thereafter deposited advance rent up to June 2005 as per P-15 page 127."
In later part of the judgment, it was further observed as under:
"The petitioner may claim himself as proprietary concern of M/s. Noorani Travels but he was never inducted as tenant by the original owner nor by the Respondent No. 4 (Tar Muhammad Haji Jamal) as the petitioner failed to bring any documentary proof regarding payment of Pagri of Rs.2,50,000/- by producing two receipts P-7 and P-8. The petitioner cannot claim themselves to be the lawful tenant. The electricity bills do not create any title to be the tenant of the premises in dispute. In telephone bills at P-10 and P-11 it is disclosed that the said bills were sent to Suleman Bawani as rental for July 1983 and 31.8.1991 and 3rd bill is dated 6.8.1988 as P-13. There is only one Telephone bill P-12 page 121 which reflects that it was issued on 5.10.1991 for billing period august 1991. As per assertion of petitioner in Para 7 of the petition that the petitioner started depositing rent since December 1995 in MRC. No. 1428/95 before the Rent Controller Karachi (South). It is golden rule as laid down by the superior Courts that stranger has no right to claim unauthorized possession as lawful owner or a tenant of the tenement."
Thus it is clear that the petitioner had miserably failed to establish that it was occupying the premises as authorized sub-tenant. The contention, therefore, is devoid of force.
Taking up the next contention of the learned counsel for the petitioner that the petitioner ought to have been joined as a necessary party in the Rent Case as well as in the execution proceedings because it was in possession of the rented premises as a lawful sub-tenant since 1979, it may be mentioned here that claim of the petitioner, to be impleaded as necessary party in the above proceedings, was contingent on establishing that he was an authorized and lawful sub-tenant but since the needful was not done therefore, petitioner's claim towards impleadment too, could not find favour as the Rent Restriction Ordinance does not provide a forum for litigation between a stranger and the landlord. We, therefore, find no merit in this contention as well.
As regard the next contention of the learned counsel for the petitioner that since the petitioner was not a party to the ejectment proceedings and Respondents No. 1 to 3 were trying to evict the petitioner from the premises under the garb and clog of ejectment order obtained against Respondent No. 4, a dead person, therefore it was ineffective against rights of the petitioner, it may be mentioned here that as discussed above, since the Rent Restriction Ordinance provides a forum for litigation between a landlord and the tenant only and not between an alien or stranger and landlord, therefore, the petitioner was not a necessary party to the proceedings and the Respondents No. 1 to 3 were not precluded to get execute the ejectment order against the Respondent No. 4, through his legal heirs, notwithstanding his death. The fact cannot be lost sight of that though Muhammad Amin who claimed himself to be son of Haji Jamal had, through an affidavit, disclosed that his father Haji Muhammad Jamal had expired on 27.7.1993 yet, there is no proof that the said partnership firm came to an end because a firm may, under Section 42 of the Partnership Act, dissolve on the happening of certain contingencies including death of a partner yet, it does not necessarily follow that its business came to an end as intention to continue business in partnership with legal heirs/representatives of the deceased partner may be gathered from conduct of the parties. Be that as it may, even if it is presumed that the firm owing to death of Haji Jamal was dissolved, the legal heirs of the deceased would still continue to be tenants in the premises because the partnership firm, unlike a company which is a "juristic person", is not a legal entity distinct and separate from its partners and therefore, tenancy in a partnership firm on death of a partner devolves upon his legal heirs as per their respective shares or interest in the partnership, therefore, dissolution of the firm or death of a partner for the purpose of tenancy or execution of any ejectment order is virtually insignificant. Thus the contention of the learned counsel, in this respect too, has no force.
Adverting to the next contention that the ejectment order cannot operate against the petitioner as it was passed regarding Tenements No. 1 & 4 while the petitioner is in possession of a distinct and separate property, it may be mentioned here that the stand taken by the petitioner before the Courts below as well as this Court is highly inconsistent, inasmuch as on one hand it is being pleaded that since the petitioners are occupying a different premises and the eviction application filed by Respondents No. 1 to 3 against Respondent No. 4 is in respect of tenements No. 1 & 4, therefore decree passed in favour of Respondents No. 1 to 3 cannot affect his rights and on the other it is solicited that since the Respondent No. 4 was authorized to sublet the premises in question by its original owner, therefore, the petitioner being "authorized sub-tenant" can not be evicted in execution of the decree/order obtained against Respondent No. 4. Additionally, it is also urged by the petitioner that the Courts below have failed to appreciate that in view of agreement dated 23.12.1987, the sub-tenancy, even, if any, stood regularized and cured. It is well settled that an unauthorized sub-tenant can be evicted along with the tenant against whom the eviction order is passed by Rent Controller and he is not a necessary party to the proceedings, being unauthorizedly in occupation of the premises. Though in order to avoid complications in the execution, it has been, in some cases, suggested that sub-tenant may also be impleaded in the rent proceedings, yet, the fact remains that in order to become a party to the proceedings it is to be established by the intervener or the interceptor that he has a "legal right in the property which is enforceable by law", otherwise he cannot claim to be a necessary party in the proceedings. Reference in this regard may usefully be made to Sh. Fazal Elahi & Co. v. Maula Bakhsh & others (1968 SCMR 735) and Minochar N. Kharas v. Ali Hassan Manghi & others (1986 CLC 1378) approved by this Court in the case of Taj Muhammad v. Ali Hassan Mangi (1987 SCMR 565). It is not case of the petitioner that he was inducted in the premises as tenant by the original owner, his case is that the premises was let out to him on rent as sub-tenant by Respondent No. 4 who was authorized to do so by the original owner as per agreement dated 23.12.1987. As per Article 119 of the Qanun-e-Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person. Learned Judge in the High Court has categorically observed that petitioner has failed to discharge the burden of proof that he was an authorized tenant inducted by Respondent No. 4. Learned Judge in the High Court has further observed that petitioner firm was unauthorisedly occupying the premises in question because there was no material available on record to believe that the premises was ever handed over to the petitioners Firm by the original owner or by Respondent No. 4. This contention therefore, too, has no force.
Upshot of the above discussion is that we find no legal or factual infirmity in the impugned judgments warranting interference by this Court in exercise of its constitutional jurisdiction, therefore all the three petitions, being misconceived, are hereby dismissed and leave is declined.
(W.I.B.) Leave refused.
PLJ 2009 SC 213
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad & Muhammad Moosa K. Leghari, JJ.
M/s. AHMED BROTHER TRADE INTERNATIONAL WALIABAD GULMIT HUNZA, GULGIT--Petitioner
versus
COLLECTOR CUSTOMS, CUSTOMS HOUSE RAWALPINDI/ISLAMABAD and others--Respondents
Civil Petition No. 1116 of 2008, decided on 18.9.2008.
(On appeal from the judgment dated 16.6.2008 passed by Islamabad High Court, in C.R. No. 5 of 2008).
Custom Act, 1969--
----S. 3(1)--Import and Export Control Act, 1950, S. 3(1)--Constitution of Pakistan, 1973, Art. 185(3)--Goods, unregistered and banned--Confiscation of seized goods--Appeals before Collector dismissal of--Reference before High Court and orders passed by forums below upheld--Leave to appeal--The goods were formally seized after providing enough opportunity to the petitioner to submit the proof of import authorization--No respond to the query made by the customs authorities despite lapse of 1« months--Show-cause notice issued to petitioner but no satisfactory reply submitted--Tribunal after thoroughly dilating upon the issue of show-cause notice rightly concluded that it was within time--Report from Health Ministry is available on the record to show that the goods, so imported by the petitioner, were not only unregistered but banned in Pakistan on account of causing adverse effect to human being--Leave to appeal refused. [P. 215] A
Malik Manzoor Hussain, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 18.9.2008.
Judgment
Muhammad Moosa K. Leghari, J.--The petition for leave to appeal is directed against the judgment dated 16.6.2008 passed by the Islamabad High Court in C.R. No. 5/2008. By the said judgment the Reference filed by the petitioner against the judgment of Customs Appellate Tribunal was dismissed.
Precisely stated, the facts of the case are that the petitioner filed G.D. No. 3018/2007 dated 11.6.2007 through M/s. Haideri Enterprises, Customs Clearing Agency for the clearance of their consignment imported from China on 14.6.2007 vide IGM No. 3069/07 dated 4.6.2007. On examination of the consignment, after its de-stuffing, by the Customs Authorities, the same was found to contain "Dipyron Injunctions". The importer/clearing agent could not produce any proof of import authorization from the sole distributor and Ministry of Health, Islamabad. Hence the goods were detained for want of NOC from Ministry of Health. On inquiry it was informed by Ministry of Health that the drug, so imported, was unregistered. Besides, the consignment, contained metaminzole which was banned in the country on account of its adverse effects. In order to verify the claim of the petitioner, a Reference was also made to M/s. Shaheen Agency on 16.6.2007 but the same was not responded. Subsequently, the goods were seized for having been imported in violation of Section 32(1) of the Customs Act 1969 read with Section 3(1) of Imports and Exports (Control) Act, 1950 and the rules framed under the Drugs Control Act, 1976. On receipt of seizure report a Show-cause notice dated 20.8.2007 was issued to the petitioner. Eventually the Additional Collector Customs, Rawalpindi ordered for confiscation of the seized goods. On appeal, against the order in original passed by the adjudicating authority, the Collector Appeals also upheld the same. The petitioner then approached the Appellate Tribunal but without success. In the Reference filed before Islamabad High Court, the orders passed by the forums below were upheld. Hence this petition.
Learned ASC for the petitioner contended that the Show-cause notice was not issued to the petitioner within the stipulated period of two months; that the petitioner was entitled to the return back of the goods which were brought into the country inadvertently and mistakenly.
We have anxiously considered the arguments advanced before us and have also minutely scrutinized the orders passed by the High Court as well as the Customs Authorities.
The contention with regard to time-barred Show-cause notice is without substance. As a matter of fact, the goods on importation were lying at the dry port area pending clearance without any seizure having been affected as the matter was being inquired into. The goods were formally seized after providing enough opportunity to the petitioner to submit the proof of import authorization. Even M/s. Shaheen Agency, Karachi, on whose behalf the petitioner claims to have imported the goods, did not respond to the query made by the Customs Authorities despite the lapse of 1« months. The petitioner was accordingly issued a Show-cause notice after affecting formal seizure of the goods but it could not submit a satisfactory "reply. The learned Tribunal after thoroughly dilating upon the issue of Show-cause notice rightly concluded that it was within time. Nothing has been placed on record by the petitioner to take a different view and to hold otherwise.
Regarding the second limb of arguments, suffice it say that the report from Health Ministry is available on the record to show that the goods, so imported by the petitioner, were not only unregistered but banned in Pakistan since 21.03.2006 on accounts of causing adverse effects to human being. In view of the fact that the drugs having adverse effect on human health already stood banned in the country could in no case, be released/returned. The contentions raised by the petitioner have sufficiently been discussed and properly dealt with by the Tribunal as well as the High Court in a legal and valid manner.
In the circumstances, no interference is warranted in the matter. The petition, being without merit, is dismissed, leave refused.
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 257
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ejaz Yousaf &
Muhammad Farrukh Mahmud, JJ.
MUHAMMAD SALEEM KHAN--Petitioner
versus
SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN & others--Respondents
Civil Petition No. 982 of 2007, decided on 14.4.2008.
(On appeal from the judgment dated 31.10.2007 of the Federal Service Tribunal, Islamabad passed in Appeal No. 992(R)CS/04)
Adverse Remarks--
----Non-communication of--Effect of--Respondents have not brought anything on record showing that adverse remarks were communicated to the petitioner within the time as contemplated by the rules--Non-communication of adverse remarks makes the authenticity of such remarks ineffective and petitioner cannot suffer the consequences of any adverse order untill the same was communicated to him enabling him to challenge the same before competent forum--Held: Adverse remarks would be ignored only if they were not communicated--Appeal allowed. [P. 258] A
Mr. Muhammad Shoaib Shaheen, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Ms. Nahida Mehboob Ellahi, DAG, Mr. M.S. Khattak, AOR and Mr. Nazirul Islam, Admn. Officer, E-n-C Br. for Respondents No. 1-2.
Nemo for Respondents No. 7, 11, 12, 20, 21 & 24.
Others Respondents in person.
Date of hearing: 14.4.2008.
Order
Abdul Hameed Dogar, CJ.--Through this petition, petitioner seeks leave to appeal against judgment dated 31.10.2007 passed by learned Federal Service Tribunal, Islamabad whereby Appeal No. 992(R)CS of 2004 filed by him claiming promotion with effect from 30.7.2004 instead of 26.12.2005 was dismissed.
Briefly, stated facts giving rise to the filing of instant petition are that petitioner joined his services as Sub-Engineer (Grade-II) in Engineer-in-Chief's Branch on 10.4.1986 and subsequently promoted to the post of Sub-Engineer (Grade-I). Respondent No. 2 vide Order No. l017/9/EIE dated 11.8.2004 promoted Sub-Engineers junior to petitioner as AEE/M, ignoring the criteria laid down for the promotion. Feeling aggrieved, petitioner filed departmental representation to Respondent No. 1 which was not responded despite the lapse of statutory period of 90 days. As such, he filed appeal before the learned Federal Service Tribunal, Islamabad on 30.11.2004 which was admitted for regular hearing. During the pendency of Appeal, the petitioner was promoted as AEE/M vide order dated 6.1.2006 with effect from 26.12.2005 but not from due date i.e. 30.7.2004. Thus, he filed amended appeal which came up for hearing and was dismissed vide impugned judgment as stated above.
We have heard Mr. Muhammad Shoaib Shaheen, learned counsel for the petitioner, Ms. Nahida Mehboob Ellahi, learned DAG and private respondents appearing in person at length and have gone through the record and proceedings of the case in minute particulars.
It is vehemently contended by learned counsel for the petitioner that the impugned judgment of the learned Federal Service Tribunal is against the facts and law. According to him, petitioner had been superseded because of adverse remarks contained in his ACR for the year 1999 which were never conveyed to him. He referred to para 3.1(vii) of the Performance Evaluation Guide wherein it has been stated that a confidential report containing adverse remarks should not be taken into consideration until it has been communicated in writing to the officer concerned within one month from the date the report is countersigned. He further contended that the ACR in question is for the period from 5.10.99 to 31.12.1999 and in view of para 2.24A(i) of the Performance Evaluation Guide it should not be considered as the period is less than three months. In support he placed reliance on the cases of Abdul Jabbar Khan v. Government of Sindh (1996 SCMR 850) and Muhammad Farooq Chauhan v. The Province of Punjab (PLD 1987 SC 271).
When confronted with the above contentions of learned counsel for the petitioner, learned Deputy Attorney General could not controvert the same and admitted that ACR is for a period less than three months which cannot be considered against petitioner.
The respondents have not brought anything on record showing that adverse remarks were communicated to the petitioner within the time as contemplated by the Rules. Non-communication of adverse remarks makes the authenticity of such remarks ineffective and petitioner cannot suffer the consequences of any adverse order until the same was communicated to him enabling him to challenge the same before competent forum. It was held by this Court in the case of Muhammad Farooq Chauhan referred (supra) that in case of promotion, the adverse remarks would be ignored only if they are not communicated. It was also held by this Court in the case of Abdul Jabbar (supra) that if a civil servant, who has not been considered for promotion at a stage and is subsequently promoted and no order for inter se seniority has been passed by the competent authority, then such civil servant would be entitled to have been promoted in the same batch as his juniors, meaning thereby that he will maintain the seniority of his batchmates.
In view of above, this petition is converted into appeal and is allowed. The impugned judgment of the learned Federal Service Tribunal, Islamabad is set aside. The appellant shall be entitled for promotion from the date his juniors were promoted. No orders as to cost.
(M.A.K.Z.) Appeal allowed.
PLJ 2009 SC 259
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ch. Ejaz Yousaf & Muhammad Farrukh Mahmud, JJ.
Ch. MUHAMMAD SHARIF--Appellant
versus
STATE and others--Respondents
C.M.A. No. 2175 of 2008 & C.A. No. 1224 of 2007, decided on 26.8.2008.
(On appeal from the judgment dated 25.11.2004 passed by the High Court of Sindh. In C.P. No. D-1176/04)
National Reconciliation Ordinance, 2007--
----S. 7--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Pendency of trial after remanding--Application u/S. 7 of National Reconciliation Ordinance, 2007, for acquittal--Maintainability--Since the case is pending before the trial Court as such it would be appropriate that the appellant may prefer application under Section 7 of NRO before Supreme Court. [P. 261] A
Mr. Wasim Sajjad, Sr. ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Dr. M.Asghar Rana, Addl. DPG, NAB for Respondents No. 1-2.
Sh. F.M. Javed, ASC and Mr. G.N. Gohar, AOR for Respondent
No. 3.
Mr. Mukhtar Ahmad, co-accused (Present in Court) on Courts Call.
Date of hearing: 26.8.2008.
Order
Abdul Hameed Dogar, H.C.J.--This appeal by leave of the Court is directed against the judgment dated 25.11.2004 passed by the learned Division Bench of the High Court of Sindh, Karachi, whereby the C.P. No. D-1176 of 2004 filed by the petitioner was disposed of.
Precisely facts of the case are that the appellant former Deputy Director of FIA, was arrested on 16.10.1999 on the allegation that he acquired property disproportionate to his lawful source of income. He was sent up to face trial before the Accountability Court and was convicted and sentenced to 14 years R.I. and a fine of Rs. Ten Crores or in default to suffer further R.I. for seven years. On appeal learned Sindh High Court, remanded the matter to the trial Court. Whereafter trial Court directed that the case of three accused including the appellant be tried separately, which order was amended on the application of Special Prosecutor and joint trial was ordered to proceed. The appellant assailed the said order before the High Court but later prayed for withdrawal of the petition. The learned High Court, while rejecting the withdrawal of the petitioner ordered for joint trial of all the accused including the appellant. The appellant filed CPLA before this Court in which leave to appeal was granted and the matter was stayed till the decision of the appeal.
During pendency of appeal, the appellant has filed instant CMA No. 2175 of 2008 with the prayer that his case is covered under Section 7 of the NRO 2007, therefore, he be acquitted.
We have heard Mr. Wasim Sajjad, learned Senior ASC for the appellant and Mr. F.M. Javed, ASC on behalf of Respondent No. 3 and Mukhtar Ahmad co-accused, in person at length.
Mr. Wasim Sajjad, learned Senior ASC, contended that inquiry in the instant matter was started on 29.12.1996 with a Source Report about Zarak Textiles, in which the appellant's share was 5%. The inquiry continued by the FIA and then by Ehtesab Commissioner and after investigation was final, the case was sent up before the Accountability Court for trial. According to him the case of the appellant is fully covered by Section 7 of the N.R.O., 2007 as according to him proceedings under investigation includes inquiry. Inquiry is referred to Section 5(a) of the National Accountability Ordinance, 1999, whereby "accused" shall include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under this Ordinance or is subject of an investigation or inquiry by the National Accountability Bureau or any other agency authorized by the National Accountability Bureau in this regard under this Ordinance. He has placed reliance upon short order dated 14.3.2008 passed by this Court in the case of Ahmad Riaz Sheikh, etc. v. the State (Cr.M.A. No. 62 of 2008 in Cr.P. No. 349 of 2005).
On the other hand Dr. M. Asghar Rana, learned ADPG NAB opposed the above contentions of the learned counsel for the appellant and supported impugned judgment.
Since the case is pending before the trial Court as such it would be appropriate that the appellant may prefer application under Section 7 of the NRO before the said Court, which if preferred, be disposed of within one week's time on merits. In view of the above observation CMA No. 2175/2008 and Civil Appeal No. 1224 of 2007 are disposed of.
(M.A.K.Z.) Appeals disposed of.
PLJ 2009 SC 261
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Qaim Jan Khan & Muhammad Akhtar Shabbir, JJ.
MUHAMMAD NAWAZ MINHAS and others--Petitioners
versus
Mst. SURRIYA SABIR MINHAS and others--Respondents
Civil Petitions No. 834 & 835 of 2008, decided on 13.8.2008.
(On appeal from the judgment dated 19.4.2008 passed by the Islamabad High Court, Islamabad in C.Rs. No. 37 and 38/2005).
Benami Transaction--
----Onus of particular sale--Determining factors--Essence of a benami is the intention of the party and not unoften such intention is shrouded in a thick "veil", which cannot be easily pierced through--Despite that such difficulties do not relieve the person taking the plea of "Benami" transaction to be benami of any part of the serious onus that rests on him--Whether a particular sale is "Benami" or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering laid down the criteria to determine the "Benami", transaction. [P. 265] A
Constitution of Pakistan, 1973--
----Art. 185(3)--Appellate jurisdiction--Scope of--Findings of all the three Courts below on question of fact did not suffer any illegality, infirmity, misreading a non-reading of evidence--Supreme Court is always reluctant to interfere with the judgment of the lower Courts--Leave refused. [P. 264] A
2003 SCMR 18 rel.
Syed Asghar Hussain Sabzwari, ASC for Petitioners (in both cases).
Mr. Abdur Rashid Awan, ASC for Respondents.
Date of hearing: 13.8.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This judgment will dispose of C.Ps.No. 834 and 835 of 2008 arising out of the impugned consolidated judgment passed in C.R.Nos. 37, 38/2005 by a learned single Judge of the Islamabad High Court, Islamabad.
The facts giving rise to the present petitions are to the effect that Mst. Surriya Begum widow of Muhammad Sabir Minnhas had instituted a suit with regard to property basement of House No. 1241, St. No. 84, Sector G-9/4, Islamabad with prayer of mandatory injunction and seeking direction to the defendant to pay the arrears of benefits enjoyed form October, 1998 to 1999, @ Rs.3000/- per month i.e. Rs.36,000/- and also claimed compensation for use of unauthorized possession of property in the Court of Civil Judge, Islamabad asserting in the plaint that her husband was the owner of the house, who transferred the same in her favour and before the said transfer, her husband allowed the defendant to reside in the basement of the house on his request. It was further asserted in the plaint that Muhammad Sabir Minnas, her husband, while staying in Middle East (Kuwait) executed a general power of attorney in favour of his brother/defendant Muhammad Babar Minhas and on the basis of this authority, he got installed Sui Gas connection, Telephone connection and electricity connection in his own name in the basement of the house. Power of Attorney executed by the husband of Mst. Surriya Begum had been cancelled thereafter.
While Muhammad Nawaz Minhas-petitioner, Muhammad Babar Minhas, Muhammad Riaz Minhas. Muhammad Fayyaz Minhas, Mst. Iqbal Begum (brothers and mother) of Muhammad Sabir Minhas had also filed a suit against Muhammad Sabir Minhas and Mst. Surriya Begum for declaration to the effect that they are actual owner of the house (property subject matter of the petition) claiming Muhammad Sabir Minhas as `Benamidar' seeking declaration that transfer of house by him in favour of his wife Mst. Surriya Begum was void. It was also averred in the plaint that they had applied for the allotment of plot to the CDA in the name of Muhammad Sabir Minhas and they paid the price of plot claiming that the construction of plot had also been raised by them.
Both the suits were consolidated by the learned trial Court, vide order dated 16.5.2001. Parties contested the suit and from the pleadings of the parties, the trial Court led to frame various consolidated issues. The trial Court after recording, appreciating the evidence of the parties, pro and contra, dismissed the suit for declaration filed by Muhammad Babar Minhas petitioner etc and decreed the suit filed by Mst. Surriya Begum respondent. The judgment and decree of the trial Court had been challenged through two separate appeals by Muhammad Nawaz etc before the appellate Court which were entrusted to learned Additional District Judge, Islamabad for disposal, who had dismissed the same, vide judgment dated 22.12.2004. Feeling aggrieved, Muhammad Nawaz Minhas, etc and Muhammad Babar Minhas assailed the judgment of the Courts below by filing two separate Civil Revisions, which had been dismissed, vide impugned judgment by the High Court.
Learned counsel for the petitioners contended that the application for allotment of plot was filed by Muhammad Nawaz Minhas, etc in the name of their brother Muhammad Sabir Minhas and price was paid by them. The construction on the said plot has been raised through their own funds. Muhammad Sabir Minhas was staying in Middle East (Kuwait) and remaining family members were in Pakistan, they had purchased the plot for their own residence. Further contended that the payment of the plot by Muhammad Nawaz, etc is established on record. Further contended that the Courts below have misread the evidence on record. Further contended forcefully that purchase of plot in the name of Sabir Minhas as "Benamidar" construction on the same by petitioners is proved on record.
While on the other hand, the learned counsel for the respondents vehemently opposed the arguments of the learned ASC for the petitioners and supported the impugned judgment.
We have heard the learned counsel for the parties, perused the record with their kind assistance.
The question for determination before the Court was the ownership of the house/property in dispute. The plaintiffs-respondents had pleaded that Muhammad Sabir Minhas, husband of Mst. Surraya Begum was "Benamidar" while the defendants-petitioners Muhammad Nawaz Minhas etc were the actual purchasers and they from their own funds/source of income made the payment/price of the plot and also raised construction on the same. While Mst. Surriya Begum/respondent has taken the stand that her husband himself had applied for allotment of the plot to the CDA, which had been allotted in his name through open balloting and made construction over the said plot from his own funds through his attorney, thereafter transferred the same in her name.
It is well settled by the superior Courts that the onus of the particular sale/purchase if
"Benami" and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami' or establish circumstances reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thickveil', which cannot be easily pierced through. Despite that such difficulties do not relieve the person taking the plea of Benami' transaction to be benami of any part of the serious onus that rests on him. The question, whether a particular sale isBenami' or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, unformally applicable in all situations, can be laid down, yet in determining the probabilities and for gathering the relevant indicia, the Courts have usually laid down the criteria to determine the `Benami' transaction.
Determining factors to be taken into consideration are enumerated as under:--
(i) Source of construction;
(ii) from whose custody the original title, bill and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for Benami transaction.
In this context, reference can usefully be made to the cases of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim & Co. (2001 SCMR 1443), Abdul Majeed & others v. Amir Muhammad & others (2005 SCMR 577), MD. Abdul Majid & others v. MD. Jainul Abedin & others (PLD 1970 Dacca 414) and Jane Margrete William v. Abdul Hamid Mian (1994 CLC 1437).
The initial burden of proof is on the party that an ostensible owner is a "Benamidar" and to establish the "Benami" transaction, the petitioners in evidence have not proved their permanent source of income to justify the purchase of the plot or constructing the house on the same. PW-2 deposed that he was doing tailoring in 1974 and PW-11 Muhammad Nawaz deposed that he was in Kuwait and on his return home, he started business of property and opened a PCO shop in Abpara, Islamabad. In support of their assertions, no documentary evidence has been produced to establish their income. While on the other hand, it is established on the record that Sabir Minhas, husband of Mst. Surriya Bibi had been in Kuwait and after earning he had been sending money to his elder brother Babar Minhas for construction of the house. It is also proved on the record that on the advertisement inviting applications for allotment of plots, Plaintiff No. 2 Babar Minhas and Sabir Minhas, who was abroad, sent two separate applications for allotment of plots in their own names separately. Luckily the plot was allotted in the name of Sabir Minhas and he being the actual owner paid the whole amount regarding the suit plot. The plaintiff Babar Minhas failed in balloting, had not been allotted plot by the CDA. It is sufficient to infer that husband of respondent Mst. Surriya Minhas applied for allotment of the plot in his own name which when allotted to him, he sent money to his elder brother Babar Minhas for payment of price of the plot and for raising constructions over the same. Two meters of electricity, one sui gas connection were got installed in his name as admitted by the petitioners in Paragraph No. 11 of their plaint. It is also admitted position that Sabir Minhas, Defendant No. 1 was residing in the ground floor of the building and Plaintiff No. 2 Muhammad Babar Minhas was residing in basement and the remaining plaintiffs had been residing in the first floor of the building.
The documents of title of property: letter (Ex.D.I), application for loan (Ex.D.2), permission for mortgage of the same (Ex.D.3), notices regarding illegal construction (Ex.D.4 & 5), completion certificate
(Ex.D.6), transfer application (Ex. D7) and transfer letter (Ex. D.10), had been produced in the Court by the defendants-respondents. As to the motive for
Benami' transaction, the petitioners miserably failed to assert the reasons for purchase of the plot asBenami' transaction in the name of Sabir Minhas, husband of the petitioner. The respondent, Mst. Surriya Bibi has successfully proved that her husband himself filed application for allotment of the plot, mortgaged the plot with a financial institution and obtained loan for raising construction over the same and also sent money from Kuwait to his elder brother who was his general attorney also, their possession over the ground floor of the house and produced relevant documents of their ownership and title. The petitioners had failed to discharge onus of proof on issues regarding defendant being Benami' owner of the suit property. The trial Court, Appellate Court and
High Court in revision found the evidence of the defendants-respondents more weighty, plausible and convincing after perusal of the same injuxtaposition' to the evidence of plaintiffs-petitioners. The findings of all the three Courts on question of fact did not suffer from any illegality, infirmity, misreading or non-reading of evidence. In such like cases, this Court is always reluctant to interfere with the judgments of the lower Courts. In this context, reference can be made to the case of Khalid Mehmood v. Abida Perveen (2003 SCMR 18).
For the foregoing reasons, we do not find any substance in these petitions which are dismissed and leave to appeal refused.
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 266
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan &
Muhammad Farrukh Mahmud, JJ.
MUHAMMAD TARIQ and 4 others--Appellants
versus
ASIF JAVED and another--Respondents
Civil Appeal No. 1450 of 2004, decided on 27.5.2008.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 13.4.2004 passed in Civil Revision No. 191-D of 2002).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(2)(d)--Performance of talbs--Concurrent findings--Validity of judgment and decree--Judgments of the appellate Court and revisional Court are plainly correct on the point of talbs as minor clerical omission in the statement of a witness whose statement is recorded after sufficient time, cannot mar the case of the plaintiff--Law does not favour to throw away the pre-emptor just on technicalities--Any how, the pre-emptors/respondents have proved the two talbs with cogent oral and documentary evidence--No interference with the concurrent findings--Appeal rejected. [P. 269] A
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 20, 15 & 13--Equal right of pre-emptor and the vendee--Property, division of--If the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of pre-emptors and vendees. [P. 269] B
Mr. Muhammad Younis Bhatti, ASC for Appellants.
Agha Tariq Mehmood, ASC for Respondents.
Date of hearing: 27.5.2008.
Judgment
Muhammad Qaim Jan Khan, J.--This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the validity of the judgment and decree dated 13.4.2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No. 191/2002 vide which the decreed property has been ordered to be divided equally between the contesting parties.
Short facts of the case are that Asif Javed and Atif Javed plaintiffs/respondents, through their natural guardian/father Ghulam Muhammad, instituted a suit against Muhammad Tariq and 4 others, defendants/appellants for a decree of possession by pre-emption of land measuring 20 kanals 17 marlas situated in village Tamman, Tehsil Talagang District Chakwal transferred vide Mutation No. 2169 attested on 25.9.1995. It was further alleged in the plaint that as the plaintiffs/respondents were minors and Ghulam Muhammad being their real father, had got no adverse interest against the minors in filing the suit for their benefit; that Mst. Sultan Begum etc. sold the suit property to the defendants/appellants vide Mutation No. 2169 attested on 25.9.1995 at a price of Rs.30,000/- but in order to defeat the plaintiffs/ respondents' pre-emptive right an amount of Rs.50,000/- has been shown in the mutation; that the price of the suit land was not more than Rs. 50,000/-; that on 8.10.1995 at 8.00 a.m, one Muhammad Hayat informed Ghulam Muhammad, plaintiffs/respondents' father regarding the sale of the suit property, upon which Ghulam Muhammad there and then in the same sitting and in presence of the witnesses announced his intention of pre-empting the suit property; that after making Talb-i-Muwathibat on the same day i.e. 8.10.1995, Ghulam Muhammad sent notice of Talb-i-Ishhad to the defendants/appellants in the presence of the witnesses including Muhammad Hayat, Shahid Ahmad and Aziz Hanif; that the plaintiffs/respondents have got superior right of pre-emption than the defendants/vendees/appellants on the ground of being Shafi Khaleet and Shafi Jaar; that the plaintiffs/respondents need the suit land for the protection of their own land and that the defendants/appellants were strangers; that several times the defendants/appellants were asked to accept the price and hand over the suit property to the plaintiffs/respondents but as they refused to do so hence the present suit.
The defendants/appellants contested the suit by filing two sets of their written statements i.e. one by Defendants/Appellants No. 1 and 2 and the other by Defendants/Appellants No. 3 to 5. On the divergent pleas of the respective parties the trial Court framed almost seven issues apart from relief. Evidence, pro and contra, was recorded and after hearing the respective counsel for the parties and going through the record the trial Judge by his judgment and decree dated 16.9.2000 dismissed the suit of the plaintiffs/respondents leaving the parties to bear their own costs.
Dissatisfied with the said judgment plaintiffs/respondents filed appeal in the Court of Addl. District Judge, Talagang and the said Court after hearing the respective counsel for the parties and going through the record while accepting the appeal set aside the judgment and decree of the trial Court and granted a decree in favour of the plaintiffs/respondents to the extent of 2/7 share out of the suit land vide judgment dated 27.2.2002 and they were directed to deposit Rs. 14,286/- i.e. 2/7 share of the total pre-emption money (Rs. 50,000/-) within one month failing which their suit would stand dismissed.
Aggrieved from the judgment and decree of the appellate Court the defendants/appellants filed Civil Revision No. 191-D/2002 in the Lahore High Court, Rawalpindi Bench, Rawalpindi and a learned Judge of the said Court after hearing the respective counsel for the parties and going through the record, set aside the judgment and decree of the appellate Court and granted a decree in favour of the appellants and respondents in equal shares i.e. « each vide impugned judgment dated 13.4.2004 and directed the plaintiffs/respondents to deposit Rs.25,000/- which is « of the pre-emption money of Rs.50,000/- minus any amount already deposited by them in the shape of Zar-e-Soim within two months. Hence this appeal.
Learned counsel for the defendants/appellants assailed the impugned judgment on two points i.e. (i) Talbs and (ii) the per capita share. In support of his contentions he relied upon Ladhi Bibi Vs. Masaddar Ali (AIR 1949 Assam 81), Amir Hassan Vs. Rahim Bakhsh and others (ILR 19 All 466), Feroze Khan Vs. Ahmad Yar (1992 MLD 1570), Sar Anjam Vs. Abdul Raziq (1999 SCMR 2167), Muhammad Hayat Vs. Faiz Ali (2002 MLD 938), Sarfaraz Khan Vs. Niamatullah Khan (2002 SCMR 751), Muhammad Bashir Vs. Abbas Ali Shah (2007 SCMR 1105) and Faiz Muhammad Vs. Muhammad Azam (PLD 2008 Lahore 7).
Learned counsel for the plaintiffs/respondents, however, supported the impugned judgment and placed reliance on Kala Khan Vs. Ayyub Khan (1993 SCMR 543), Abdul Malik Vs. Muhammad Latif (1999 SCMR 717), Abdul Qayum Vs. Mushk-e-Alam (2001 SCJ 361), Khalid Hussain Vs. Muhammad Baqir (PLD 2002 Lahore 280), Rooh-ul-Qadoos Vs. Muhammad Rafique (2002 CLC 379), Muhammad Nawaz Vs. Ahmad Khan and another (2005 YLR 197), Hayat Muhammad Vs. Mazhar Hussain (2006 SCMR 1410) and Section 26 of the West Pakistan General Clauses Act, 1956.
We have heard the learned counsel for the parties at length and have gone through the record as well as the respective rulings produced by the two counsel. Only two points have been agitated by the learned counsel for the appellants viz. with regard to Talbs and the division of the decreed property. As far as the first point is concerned, the appellate Court as well as the Revisional Court have held that the plaintiffs/respondents have performed the two Talbs in accordance with law. We have scrutinized the whole evidence and are of the view that the judgments of the two Courts below i.e. the appellate Court and the Revisional Court are plainly correct on the point of Talbs as minor clerical omission in the statement of a witness whose statement is recorded after sufficient time, cannot mar the case of the plaintiff. Moreover, the law does not favour to throw away the pre-emptor just on technicalities. Any how, the pre-emptors/respondents have proved the two Talbs with cogent oral and documentary evidence and we are not inclined to interfere with the concurrent findings of the two Courts below.
Now coming to the next point whether the decreed property should be divided on per capita basis or on equal basis. The case law favours that the property be divided in equal shares i.e. « each. Any how, in order to further strengthen the same, we would scrutinize the very words of Section 20 of the Punjab Pre-emption Act, 1991 which is reproduced hereunder:--
"20. Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally."
A bare reading of the text of above section clearly shows that the legislature has divided the pre-emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee, and if the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of pre-emptors or the vendees. If we follow the other version of per capita basis then the whole sense of the section would altogether be damaged. Up till this time, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or « each because the contesting parties are two different classes, so keeping in view this principle the impugned judgment of the High Court is plainly correct and needs no interference. Hence the appeal is dismissed. No order as to costs.
(M.A.K.Z.) Appeal dismissed.
PLJ 2009 SC 269
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD SHAHZAD SIDDIQUE--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 227 of 2008, decided on 8.9.2008.
(On appeal from the order dated 19.5.2008 of the Lahore High Court, Bahawalpur Bench Bahawalpur passed in Crl. Misc. No. 427-B of 2008).
Bail--
----Counter version--Entitlement of bail--Question as to which party was at fault, aggressor and which party was aggressed--Further inquiry--Held: If one party is granted bail, other party is also entitled to same relief in case of counter version. [P. 271] A
1996 SCMR 1845 rel.
Raja Ibrahim Satti, Sr. ASC with Mr. G.N. Gohar, AOR for Petitioner.
Ch. Munir Sadiq, DPG for Respondent No. 1.
Mr. Saleemuddin Aftab, ASC with Mr. Arshad Ali Ch. AOR for Respondent No. 2.
Date of hearing: 8.9.2008.
Judgment
Ijaz-ul-Hassan, J.--This petition, for leave to appeal, is directed against the order dated 19.5.2008, of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dismissing Crl. Misc. No. 427-B of 2008, moved on behalf of the petitioner-Muhammad Shahzad Siddique, for grant of bail, in case FIR No. 59/2007 dated 25.2.2007 registered at Police Station Abbas Nagar district Bahawalpur in respect of offences under Sections 337-H(ii)/148/149/302/324/337-A(i)(ii), F(v)(vi) PPC.
The facts of the case have been sufficiently mentioned in the memo of petition, as such, we do not consider it necessary to reproduce the same. Suffice is to state that petitioner is charged for firing a shot with repeater which hit Naveed Arshad on his right foot and one pellet of the said fire hit Aslam's small finger of his right hand.
Raja Ibrahim Satti, Advocate for the petitioner, in support of the bail petition, contended that High Court as well as Trial Court while declining bail to the petitioner have not appreciated the matter in depth; that the case of cross-version lodged by the petitioner party was not taken note of and that in given facts and circumstances of the case, High Court had no justifiable reason to decline the concession of bail to the petitioner.
Ch. Munir Sadiq, learned Deputy Prosecutor General for the State assisted by Mr. Saleem-ud-Din Aftab, Advocate for respondent Mst. Shahnaz, on the other hand, while controverting the arguments of learned counsel for the petitioner, supported the impugned order maintaining that bail has been refused to the petitioner for valid and cogent reasons which are not open to legitimate exception.
Submissions of learned counsel for the parties have been considered at length in the light of the material on record.
The petitioner is behind the bars since his arrest on 16.3.2007 and there is no likelihood of the completion of his trial in near future. According to the FIR, the petitioner does not have any attribution towards deceased Muhammad Saleem. The allegation against the petitioner is that he fired a shot with repeater which hit Naveed Arshad on his right foot and one pellet of the said fire, hit Aslam's small finger of his right hand. Further the question as to which party was at fault, aggressor and which party is aggressed, is a legal ground for further inquiry. Other side is on bail granted by trial Court vide order dated 28.3.2007. It is settled principle of law that if one party is granted bail, other party is also entitled to the same relief in case of counter version. We may profitably quote the following observations made by this Court in Shoaib Mehmood Butt versus Iftikhar-ul-Haq and 3 others, (1996 SCMR 1845).
"In case of counter-versions arising from the same incident, one given by complainant in FIR and the other given by the opposite party case law is almost settled that such cases are covered for grant of bail on the ground of further inquiry as contemplated under Section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reasons that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (1976 SCMR 391) in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others (1972 SCMR 682)."
Pursuant to above, we are inclined to convert this petition into appeal and allow bail to the appellant subject to furnishing surety in the sum of Rs. 100000/- (one lac) with PR bond in the like amount to the satisfaction of the trial Court.
We had, by short order dated 8.9.2008 granted bail to the appellant for reasons to be recorded later. Above are the detailed reasons of the same.
(R.A.) Bail granted.
PLJ 2009 SC 272
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
GHULAM SIDDIQUE and another--Petitioners
versus
MALIK MUHAMMAD QASIM--Respondent
C.P. No. 45-Q of 2008, decided on 12.9.2008.
(On appeal from the judgment dated 25.4.2008 of the High Court of Balochistan Quetta passed in FAO No. 54/2007).
Balochistan Urban Rent Restriction Ordinance, 1959--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Limitation Act, 1908, S. 5--Order of ejectment from suit premises--Assailed--Time barred--Rejection of--Leave to appeal--Condonation of delay--Duty of the petitioner--It was the duty of the petitioner to keep himself informed about the fate of his case in the High Court, and negligence on the part of the counsel to give him the necessary information would not per se constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite party by efflux of time--Mere engagement of counsel does not absolve litigant of all his responsibilities and that also as well as counsel both are bound to see that appeal is properly and diligently prosecuted--Held: If lacking in his sense of responsibility to Court, opposite party cannot be made to suffer on that account--Leave to appeal refused. [Pp. 273 & 274] A
Qari Abdul Rashid, ASC for Petitioners.
Mr. Jamal Khan Mandokhel, ASC with Raja Abdul Ghafoor, AOR for the Respondent.
Date of hearing: 12.9.2008.
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against the judgment of the High Court of Balochistan, Quetta dated 25.4.2008, whereby FAO No. 54/2007, preferred by the petitioners, assailing the order of ejectment from suit premises, passed by Rent Controller, Quetta on 29.9.2007, has been dismissed, being barred by time.
Shortly narrated the facts are, that Malik Muhammad Qasim-respondent herein, filed a petition under Section 13 of Balochistan Urban Rent Restriction Ordinance, 1959 before Rent Controller, Quetta for ejectment of Ghulam Siddique and Mujahid, petitioners herein, from suit premises i.e. shop and a house, situated at Main Road Nawan Killi, Quetta. The ejectment was sought on the ground of default in payment of rent, personal bonafide need and subletting.
The petition was resisted, claim of the respondent was denied and the petition was alleged to have been filed with sole object to enhance rent. In view of the pleadings of the parties, following issues were framed:--
Whether the Respondent No. 1 has subletted the disputed premises to Respondent No. 2?
Whether the applicant requires the premises in dispute for his personal bonafide use?
Whether the Respondent No. 1 has defaulted the rent amount since 1.6.2004?
Relief claimed for?
At the conclusion of trial, Rent Controller, Quetta, upon consideration of the material placed before him, accepted the petition vide order dated 29.9.2007 and directed ejectment of the petitioners from suit premises. The petitioners, feeling dissatisfied, preferred appeal there-against, which was dismissed through the judgment impugned, being barred by time.
Qari Abdul Rashid, Advocate, appearing on behalf of the petitioners, contended before us that impugned judgment is contrary to facts, law and equity, thus cannot not be allowed to remain intact and application for condonation of delay was to be considered and thereafter, the matter was required to be decided on merits and failure on the part of High Court to do so, has resulted in manifest injustice.
Mr. Jamal Khan Mandokhel, Advocate, on the other hand, opposed the arguments of learned counsel for the petitioners and defended the impugned judgment whole heartedly, maintaining that application for condonation, of delay has been dismissed for valid reasons, which cannot be successfully challenged.
Having considered the matter from all angels, we find that it is a detailed and well reasoned judgment leaving no room for further consideration. It does not suffer from any infirmity, legal or factual, warranting interference of this Court. Despite his best efforts, learned counsel for the petitioners, could not persuade us to take a view contrary to the view expressed by the learned High Court. It is held by this Court on various occasions that it was the duty of the petitioner to keep himself informed about fate of his case in the High Court, and neligence on the part of the counsel to give him the necessary information would not per se constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite-party by efflux of time. Mere engagement of counsel does not absolve litigant of all his responsibilities and that also as well as counsel both are bound to see that appeal is properly and diligently prosecuted. Counsel engaged, if lacking in his sense of responsibility to Court, opposite party cannot be made to suffer on that account. In this connection, we may, refer to the decision of Saifullah Siddiqui versus Karachi Electric Supply Corporation Limited, (1997 SCMR 926), wherein it was held:--
"A party does not discharge his obligation to conduct the case or to defend it by engaging an Advocate but it owes a duty to the Court to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of his Advocate will be binding on him."
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 274
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ch. Ejaz Yousaf, JJ.
ALAMGIR KHAN (decd.) through L.Rs. & others--Petitioners
versus
Haji ABDUL SITTAR KHAN and others--Respondents
C.P. for Leave to Appeal No. 2686 of 2005, decided on 18.7.2008.
(On appeal from the judgment dated 5.9.2005 in C.R. No. 227 of 2003 passed by the Peshawar High Court, Abbottabad Bench).
Concurrent Findings--
----Supreme Court does not normally go beyond concurrent findings of facts recorded by Courts below unless it is shown that findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice. [P. 280] A
Appreciation of Evidence--
----Concurrent findings--Principle--Supreme Court does not meddle with findings of facts reached by primary Courts or High Court when it is established that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.
[P. 280] B
2008 SCMR 756, PLD 2007 SC 460, 2007 SCMR 198, 2007 SCMR 368 & 1994 SCMR 2198, foll.
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Practice and rule of Supreme Court in civil petition for leave to appeal--Held: Burden lies heavily on the petitioner to show that concurrent findings of facts recorded by Courts below are not sustainable--Leave refused. [P. 281] C
Mr. Abdul Karim Khan Kundi, ASC and Ch. Muhammad Akram, AOR for Petitioners.
Mr. Zulfiqar Khalid Maluka, ASC for Respondent No. 1.
Raja Abdul Ghafoor, AOR for Respondent No. 2.
Nemo for Respondents No. 3 to 6.
Date of hearing: 18.7.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 5.9.2005 passed by a learned Single Bench of the Peshawar High Court, Abbottabad Bench, whereby the revision filed by the petitioner was dismissed.
(i) that the Respondent No. 1 being owner in possession was entitled to exploit the forest and Respondent No. 2 had no right to further sell the same to third party on better price;
(ii) that the claim of ownership of 37.5% share in the suit forest was illegal and further the agreement between petitioner and Respondent No. 2 regarding the suit forest was ineffective against the rights of Respondent No. 1.
In addition, the Respondent No. 1 also prayed for grant of perpetual injunction against the petitioner and the Respondent No. 2. Record reveals that the petitioner and Respondent No. 2 were summoned by the Court and since Respondent No. 2 admitted claim of the Respondent No. 1, therefore, the file was consigned to record vide order dated 28.3.1995. The petitioner filed revision against the said order which was dismissed by the District Judge, however, the suit was decreed in favour of the Respondent No. 1 as against Respondent No. 2 on the basis of admission (Iqbal-e-dawa) vide judgment dated 6.1.1997. The said order was assailed through writ petition which was accepted by the High Court and resultantly original suit was restored with direction to the trial Court to proceed with the matter in accordance with law, vide judgment dated 15.5.1998.
The petitioner, after remand, relied on the written statement already filed. The Respondent No. 2 also filed written statement and admitted the execution of agreement dated 22.3.1992, partnership with petitioner and its dissolution after settlement of account, but pleaded that the agreement, for want of certain contractual obligations at the part of the Respondent No. 1, was liable to be terminated. The trial Court, on the pleadings of the parties, framed 15 issues, and after recording evidence, for and against the plaintiff, and after hearing arguments of the learned counsel for the parties, decreed the suit. The petitioner, being aggrieved, filed appeal which was dismissed by the District Judge. The petitioner then approached the Peshawar High Court by way of Civil Revision No. 227 of 2003 which was dismissed vide the impugned judgment, hence this petition.
Mr. Abdul Karim Khan Kundi, learned counsel for the petitioner has contended that Courts below have erred in not placing reliance on the agreement dated 25.11.1986 between the petitioner and Respondent No. 2, the agreement for arbitration dated 13.5.1992 and the arbitration award dated 10.1.1993, all of which related to the suit forest. It is further his grievance that the said agreement, which was not taken into consideration by the Courts below, for the reason that the same was not registered document ought to have been taken into consideration as it did not require compulsory registration under the Registration Act. It is further his contention that the real owners of Seo village were illegally divested of their proprietary rights through the ex-parte decree, hence, he pleaded that the Courts below have failed to note that the ex-parte decree dated 17.3.1992 in Civil Suit No. 200/1 of 1991. when the entire village proprietary was sued in representative capacity through some seventeen (17) defendants was not a valid decree in the eyes of law, hence no reliance could have been placed thereon.
Mr. Zulfiqar Khalid Maluqa, learned counsel for the Respondent No. 1, on the other hand, while controverting the contentions raised by the learned counsel for the petitioners, has submitted that no doubt the forest in question originally belonged to the inhabitants of village Seo, from whom it was purchased by Respondent No. 2 who in turn sold the same to Respondent No. 1 vide registered sale deed dated 22.3.1994, hence claim of the petitioner that on 25.11.1986, Respondent No. 2 had also entered into an agreement with him for exploitation of three forests, one of which was the suit forest, had no substance. He pleaded that earlier a suit for declaration and consequential relief with regard to the suit forest and on the basis of agreement of arbitration award as well as agreement dated 10.1.1993 was also filed by the petitioner against the respondents but after receiving of a sum of Rs. 10,00,000/- (ten lac) he gave up his claim and the said suit therefore, was dismissed having not been pressed. He stated that Exhs. DW-2/3 as well as PW/B available at pages 126-133 and 134-135, respectively, of the paper book, are explicit in this regard. He pleaded that since there were concurrent finding of facts against the petitioner, therefore, the revision filed by him was rightly dismissed by the High Court.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case, minutely, with their assistance.
It is claim of the petitioner that on 25.11.1986 the Respondent No. 2 had entered into an agreement with him for exploitation of three forests, one of which was the suit forest, the other two being Ghat Kandao/Zail Khad and Gabbner Nala. It is further his claim that a sum of Rs.10,00,000/- (ten lac) was paid by him as advance for the sale consideration of agreement dated 25.11.1986 relating to the suit forest and a sum of Rs.5,00,000/- (five lac) was also paid relating to Ghat Kandao. He has pleaded that since a dispute arose between the parties, hence, the petitioner instituted a suit relating only to Ghat Kandao forest, however, later on it was agreed between the parties on 13.5.1992, to refer the "whole dispute" relating to Ghat Kandao and that of suit forest to an arbitrator who gave separate awards relating to the forests on 10.1.1993. It is his grievance that in flagrant disregard of previous agreements and the arbitration award, the Respondent No. 2 entered into an agreement on 22.3.1994 whereby he sold the suit forest called "Razikah" to Respondent No. 1 for a sale consideration of Rs.20,00,000/- and in the backdrop of the above agreement the suit was instituted by Respondent No. 1 in the Court of Senior Civil Judge Kohistan for declaration and permanent injunction claiming that he was entitled to exploit the suit forest since he had purchased the same from the Respondent No. 2 vide agreement dated 22.3.1994. It is also the grievance of the petitioner that though he had filed a written statement in the suit thereby objecting its maintainability on the ground that he i.e. the petitioner was owner of the suit forest to the extent of 37.5% share on the basis of the agreement dated 25.11.1986 executed between him i.e. the petitioner and Respondent No. 2 and that the agreement executed between Respondents No. 1 and 2 to the extent of 37% share in the forest, was illegal and void, yet, his claim was not entertained by the trial Court and suit of the Respondent No. 1 was decreed on 31.7.2002 against the petitioner and Respondents No. 2 to 5 against which the appeal and revision filed too, remained unsuccessful.
Admittedly there is concurrent finding of facts against the petitioner by both the Courts below i.e. the trial as well as the First Appellate Court. The learned Judge in the High Court having found that Respondent No. 2 in the year 1986 had purchased the rights to exploit the suit forest from its original owner i.e. Seo which transaction subsequently was confirmed by a Court decree dated 13.3.1992 (Ex.DW-1/D-1) and transfer of rights by the Respondent No. 2 in favour of Respondent No. 1 vide registered agreement dated 22.3.1994 (Ex.PW-1/1), the suit filed by the Respondent No. 2 was rightly decreed by the trial Court in his favour. It was categorically observed by the learned Judge in the High Court that since the petitioner had failed to substantiate his claim regarding 37.5% share in the suit forest, therefore, he had no legal claim against Respondent No. 2. Learned Judge in the High Court had also, on the basis of record, repelled the contention of learned counsel for the petitioner that the petitioner was owner of the suit forest to the extent of 37.5% share and the agreement i.e. Ex PW-1/1 to that extent was void in view of agreement/Memorandum of Understanding dated 25.11.1986 because as per the said Memorandum of Understanding, which was written on a plain personal letterhead pad of the petitioner, and suffering from cuttings in writing at various places with no initials thereon to verify the same, had never resulted into a formal agreement as required by Clause 8 of the said MOU which envisages execution of an agreement, hence, no right could have been claimed on the basis thereof. It would be advantageous to have a glance at the relevant discussion with reads as follows:--
"The contention of the learned counsel that the petitioner is owner to the extent of 37.5% share in the suit forest and the agreement (Ex.PW-1/1) to that extent is void in view of agreement/Memorandum of Understanding dated 25.11.1986 (Ex.DW-2/1), agreement for arbitration dated 13.5.1992 (Ex.DW-1/D03) and Arbitration Award (Ex.DW-7/1), is without any substance. The record reveals that the agreement/MOU (Ex.DW-2/1) was executed between Haji Qadoor (Respondent No. 2), Haji Amber on the one part and Alamgir (petitioner) on the second part in respect of forest called `Rajankai'. Haji Amber was shown shareholder in the above forest to the extent of five Annas. The agreement/MOU had also referred to the payment of Rs.10,00,000/- to Respondent No. 2 and so is found mentioned in the written statement of the petitioner that Respondent No. 2 had received Rs.10,00,000/- on 20.11.1986 from him. The petitioner appeared in Court as DW-2 and deposed that he had made the payment to Respondent No. 2 in March, 1986 but his witnesses in Court had categorically denied making of said payment before them.
The agreement/MOU was written on the personal letterhead pad of petitioner. There were cuttings in the writing at various places with no initial thereon to verify the same. The Clause 8 of the agreement/MOU envisaged execution of a formal agreement on stamp paper, which was never executed. The petitioner
(DW-2) confirmed this fact in Court that he is in possession of the blank stamp paper and has been holding the same for the last sixteen years but no formal agreement was executed between them. The agreement/MOU was scribed by petitioner having two marginal witnesses namely, Sher Bahadur and Saeed Ullah. The petitioner, in order to prove its execution, could produce only one marginal witness (DW-3) and, besides second marginal witness, Haji Amber shown as partner/ shareholder in the suit forest was not produced. The petitioner did not confront Respondent No. 2, when appeared in Court, with the agreement/MOU or his signature thereon and no question whatever was asked regarding its execution. This document (agreement/MOU) was executed between three persons but the third shareholder, Haji Amber is not visible any where in the suit record. The agreement/MOU relates to Rajankai forest and not to Razika and it was not an agreement but the expression of intention of parties to enter into formal agreement, which intention was never materialized. Since the agreement/MOU was an informal one with above referred weaknesses, therefore, a very heavy burden, more heavier than what was required by Article 79 of Qanun-e-Shahadat Order 1984, was on the petitioner's shoulders to prove, of course on the balance of probabilities, that an agreement was executed, rights and obligations thereunder were created and parties had acted thereunder but he could not discharge his burden."
The learned Judge in the High Court, after assessing the material on record including the arbitration award Ex.DW-7/1 "mark A", ultimately came to the conclusion that there was no substance in the claim of the petitioner and therefore, concurrent finding of facts arrived at by the Courts below did not suffer from misreading or non-reading of evidence nor there was any jurisdictional error in the judgments of the Courts blow and thus the revision was not maintainable. It is well settled principle of law that this Court does not normally go beyond concurrent findings of facts recorded by the Courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice. It is also well settled that this Court does not meddle with findings of facts reached by primary Courts or High Court when it is established that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. In this view, we are fortified by the following reported judgments:--
(i) Amir Abdullah Khan v. Kafaitullah Khan (2008 SCMR 756).
(ii) Sheikh Fateh Muhammad v. Muhammad Adil (PLD 2007 SC 460);
(iii) Shaukat Ali v. Allied Bank of Pakistan Ltd, (2007 SCMR 198)
(iv) Shafi Muhammad v. Khanzaeda Gull (2007 SCMR 368)
(v) Muhammad Zubair v. The State (2007 SCMR 437)
(vi) Province of Punjab v. Muhammad Yaqoob Khan (2007 SCMR 554)
(vii) Muhammad Sharif v. Muhammad Anwar (2007 SCMR 687)
(viii) Mst. Muhammadi v. Ghulam Nabi (2007 SCMR 1047)
(ix) Syed Ansar Raza Zaidi v. Chief Settlement Commissioner (2007 SCMR 910)
(x) Bashir Ahmed v. Muhammad Ali (2007 SCMR 1047)
(xi) Punjab Industrial Development Board v. United Sugar Mills Limited (2007 SCMR 1394)
(xii) Musarat Shaukat v, Safia Khatoon (1994 SCMR 2198)
(xiii) Naeem-ur-Rehman v. Abdul Aziz (1986 SCMR 61)
(xiv) Abdul Harmed v. Ali Ahmed (1979 SCMR 503)
This being practice and rule of this Court in Civil petitions for leave to appeal, the burden lies heavily on the petitioner to show that the concurrent findings of facts recorded by the Courts below are not sustainable.
We have ourselves scanned the entire material on record. We are unable to find any illegality or material irregularity in the findings of all the Courts below, hence we are not inclined to interfere with the same in exercise of our constitutional jurisdiction.
Upshot of the above discussion is that this petition being misconceived is hereby dismissed and leave is refused.
(R.A.) Leave refused.
PLJ 2009 SC 281
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
NAZIR AHMED--Appellant
versus
STATE--Respondent
Crl. A. No. 239 of 2007, decided on 28.3.2008.
(On appeal from the judgment dated 23.2.2006 of the Lahore High Court, Bahawalpur Bench passed in Cr. A. 367/02)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 337-A(ii)--Criminal Procedure Code, (V of 1898), Ss. 382-B & 544-A--Constitution of Pakistan, 1973--Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Assailed--Leave to appeal--Appreciation of evidence--Ocular account--Cause of death was due to cardiorespiratory arrest by head injureis--Ocular account furnished by complainant and eyewitnesses was fully corroborated by medical evidence, though prosecution witnesses were subjected to lengthy cross examination yet their evidence remained unshattered--Appeal was dismissed. [P. 284] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 337-A(ii)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Lack of motive--In case of lack of motive altogether or if the prosecution is unable to prove motive for murder it does not affect the imposition of normal penalty of death in murder case, if the prosecution has been able to prove its case against accused beyond reasonable doubt--No error in impugned judgment warranting interference by Supreme Court--Appeal dismissed. [P. 284] B & C
Mr. Javed Aziz Sindhu, ASC for Appellant.
Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 28.3.2008.
Judgment
Abdul Hameed Dogar, HCJ.--This appeal with leave of this Court is directed against judgment dated 23.02.2006 passed by learned Division Bench of Lahore High Court, whereby Criminal Appeal No. 367 of 2002 filed by appellant was dismissed whereas Murder Reference
No. 88 of 2002 was answered in affirmative.
Briefly stated the facts of the case are that on 08.08.2002 Abdul Razzaq, complainant lodged FIR No. 116 of 2002 at Police Station Takht Mehal alleging that at about 1:00 a.m. while he and Ghulam Haider were sleeping in the Dera of Khawaja Noor Ahmad whereas his brother Mushtaq was sleeping in the Astabal of Pir Hassan Mehmood. On the sound of alarms, he accompanied by Ghulam Haider, Pir Muhammad Yar and Masood Imran reached at the spot and saw in the light of bulb that appellant Nazir Ahmed was beating his brother Mushtaq Ahmed with danda on the pretext to teach him a lesson for insulting him. It was furthered alleged by complainant that when they tried to rescue the deceased, the appellant inflicted a danda blow on the back side of head of Masood Imran who was injured and fled away from the place of occurrence. The deceased Mushtaq Ahmed succumbed to the injuries at the spot whereas injured Masood Imran was taken to the hospital.
Appellant was arrested on 18.8.2002 and after usual investigation, he was sent up to face trial before learned Additional Sessions Judge, Bahawalnagar.
At trial prosecution examined 12 witnesses in all.
PW-1 Dr. Muhammad Iqbal, Medical Officer, DHQ, Bahawalnagar conducted post-mortem of deceased Mushtaq Ahmed and found following injuries:--
(i) Lacerated wound 6 x 3 cm over the forehead and underlying bone was fractured.
(ii) Lacerated wound 3 x 1 cm over right eyebrow and underlying bone was exposed.
(iii) Lacerated wound 10 x 5 cm across the middle of right ear. Ear was cut and underlying bone was fractured.
(iv) Top of scalp was contused.
He opined that cause of death was due to cardiorespiratory arrest by head injuries due to Injuries No. 1 to 4 collectively.
(i) There was a lacerated wound 5 cm x 1 cm x bone exposed situated on the posterior region of scalp.
In his statement recorded under Section 342 Cr.P.C. appellant denied the case of prosecution and pleaded false implication. He, however, neither examined himself on Oath nor produced any thing in his defence.
On the conclusion of trial appellant was convicted and sentenced as under:--
(i) Under Section 302 (b) PPC to death;
(ii) Under Section 544-A Cr.P.C. he was directed to pay
Rs. 200,000/- as compensation to the legal heirs of deceased; and
(iii) Under Section 337-A(II) PPC for causing injuries to Masood Imran to 2 years R.I. with direction to pay Arsh amount equal to 4% of the diyat amount.
However, benefit of Section 382-B Cr.P.C. was extended to him.
Feeling aggrieved appellant filed Criminal Appeal No. 367 of 2002 whereas learned trial Court sent Murder Reference No. 88 of 2002 for confirmation or otherwise of the death sentence of the appellant to the learned Lahore High Court, Bahawalpur Bench, Bahawalpur. The appeal filed by appellant was dismissed whereas Murder Reference was answered in affirmative vide impugned judgment.
It is vehemently contended by learned counsel for the appellant that entire evidence had not been examined vigilantly and in its true perspective which resulted in miscarriage of justice. According to him prosecution has failed to prove motive against appellant and if he had any motive then he should have murdered Hassan Mehmood and not the deceased. He contended that eye-witnesses were not present at the place of incident and PW-6 Imran Masood reached at the spot after the occurrence and it was not possible that he received injuries in presence of eye-witnesses. He also referred to the statement of PW Hassan Mehmood whereby it was stated by the said witness that he had reached after one hour of the incident though he was residing in the same haveli. He further contended that whole occurrence has been camouflaged by the prosecution and there is no eye-witness of the incident. He lastly contended that in the facts and circumstances of the case it being not a premeditated murder, the sentence of death could not have been awarded.
On the other hand, Ch. Munir Sadiq, learned DPG Punjab controverted the above contentions and supported the impugned judgment.
We have considered the contentions raised at the bar and have also appraised the entire evidence with their assistance. The occurrence had taken place on 8.8.2002 at 1.00 a.m. and the FIR was lodged promptly wherein appellant has been named as accused. The ocular account furnished by complainant and eye-witnesses is fully corroborated by the medical evidence; though the PWs were subjected to lengthy cross-examination yet their evidence remained unshattered. So far as the motive is concerned, it was held by this Court in the case of Nawaz Ali & another v. The State (2001 SCMR 726) that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against accused beyond reasonable doubt. It was also held by this Court in the case of Ahmad Nisar v. The State (1977 SCMR 175) that absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they are otherwise reliable. Learned counsel could not point out any illegality or infirmity in the impugned judgment.
In view of above discussion, we also see no error in the impugned judgment warranting interference by this Court which is maintained. Accordingly, the appeal being devoid of any force is dismissed.
(R.A.) Appeal dismissed.
PLJ 2009 SC 285
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ.
REHMAN SHAH and others--Petitioners
versus
SHER AFZAL and others--Respondents
C.P. No. 208-P of 2006, decided on 29.12.2008.
(On appeal from the judgment dated 31.1.2006 of the Peshawar High Court, Peshawar passed in C.R. No. 177/1997)
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 25--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Power to remand the case--Pronounce the judgment--Legality--Power to remand the case should not be exercised lightly but sufficient care should be taken in such regard and Court should examine the evidence and if it comes to conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it--Held: There was no sufficient material to decide the lis effectively and properly and do complete justice between the parties--Supreme Court did not find any infirmity legal or factual in the impugned judgment calling interference by Supreme Court--Leave refused. [P. 286] A, B & C
1975 SCMR 221; 1983 SCMR 133; 1993 SCMR 216 and
PLD 1994 SC 52 rel.
Haji Zahid Shah, ASC/AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 29.12.2008.
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against a judgment dated 31.1.2006 passed by learned Single Judge of Peshawar High Court, Peshawar, whereby civil revision filed by Sher Afzal and others, respondents/defendants has been allowed, judgments/decrees dated 24.4.1993 and 8.4.1997 of learned Civil Judge, and learned Additional District Judge-II, Peshawar, dismissing suit and accepting appeal filed by petitioners/plaintiffs, respectively, have been set aside and case has been remanded to the trial Court for decision afresh.
Haji Muhammad Zahir Shah, Advocate for the petitioners/plaintiffs contended with reference to provision of Order XLI, Rule 25 of Civil Procedure Code and attempted to argue that as the evidence on record was sufficient to pronounce the judgment, there was no occasion to remand it for re-writing the judgment by trial Court; that learned Single Judge of the High Court could have decided the case on merits on the material on record, as from the impugned judgment it does not appear that there was any deficiency in the evidence or the evidence was not sufficient to pronounce the judgment and in such circumstances the High Court instead of remanding case should have pronounced the judgment on merits in order to save the parties from unnecessary litigation.
Power to remand the case should not be exercised lightly but sufficient care should be taken in this regard and Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it, as held by this Court in Fateh Ali vs. Pir Muhammad and another (1975 SCMR 221), Sher Muhammad and others vs. Jamadar Ghulam Ghous (1983 SCMR 133), Arshad Ameen vs. Messrs Swiss Bakery and others (1993 SCMR 216) and Syed Abdul Hakim and others vs. Ghulam Mohiuddin (PLD 1994 SC 52). In the instant case there was no sufficient material on record to decide the lis effectively and properly and do complete by justice between the parties. In this regard we consider it appropriate to reproduce Para 5 of the impugned judgment which reads:-
"What is the basis of entries made in the column of "Legaan", and how far the are supported by deeds, are the questions which unfortunately have not been attended to by either of the Courts below. No doubt, entries made in the rent column cannot over-ride those made in the possessory column, all the same there is no harm to make an inquiry as to the origin of such entries and basis therefore. No finding one way or the other could be handed down without inquiring whether the deeds have any nexus with the entries made in the rent column. Therefore, I don't feel inclined to maintain the impugned judgments.
For the reasons discussed above, this petition is allowed, the impugned judgments and decrees of both the Courts below are set aside and the case is sent back to the learned trial Court for decision afresh in accordance with law..."
In this perspective of the matter, learned counsel for the petitioner despite his best efforts could not point out any misreading or non-reading of the evidence on record. We also do not find any infirmity legal or factual in the impugned judgment calling interference by this Court.
The petition is berift of merit. The same is dismissed and leave refused. As the case is pending since 1990, it is directed that the same be decided is expeditiously as possible not exceeding six months.
(R.A.) Leave refused.
PLJ 2009 SC 287
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
MUHAMMAD NAJEEB--Petitioner
versus
STATE--Respondent
Crl. P. No. 317 of 2008, decided on 23.9.2008.
(On appeal from the judgment dated 20.8.2008 of the Peshawar High Court, Peshawar passed in Crl. M. No. 845/2008)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Bail, grant of--Further inquiry--Accused was nominated in FIR--High Court declined bail--Affidavit sworn by complainant--Validity--Accused was nominated in FIR by complainant as an accused but later on through affidavit he stated that complainant was satisfied with regard to the innocence of the accused and did not want to proceed with the matter--Matter was not taken into consideration by Courts below--Held: Supreme Court without touching the merits of the case are of the view that case of the accused is of further inquiry--Petition was converted into appeal and bail was granted. [P. 289] A
Syed Iftikhar Hussain Shah, Sr. ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Mr. Zia-ur-Rehman, AG NWFP for State.
Date of hearing: 23.9.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition for leave to appeal is filed against judgment dated 20.8.2008 passed by learned Judge in Chambers of Peshawar High Court, Peshawar whereby Crl. Misc. No. 845 of 2008 filed by petitioner was dismissed and concession of bail was declined to him.
Briefly stated facts as narrated by complainant Sahib Khan in FIR No. 152 dated 20.3.1999 at Police Station Hangu under Sections 365/34 PPC are that on 19.3.1999 he along with his wife sister's son Muhammad Ishtiaq started for the house in a Suzuki Van. On their way an unknown person also boarded the vehicle. As the vehicle slowed down on a speed breaker the unknown person pushed Mohammad Ishtiaq out of the vehicle where four persons including the brother of the petitioner Amanullah Khan a fugitive from law and his companion Mula Din duly armed were standing on the road whereas petitioner Muhammad Najeeb was also present just near them in a blue colour vehicle. All the four persons abducted Mohammad Ishtiaq, pushed him in a vehicle and proceeded towards Thall. The motive for abduction was that in the year 1997, the petitioner's cousin Saib Nabi was murdered for which his brother at the instance of petitioner committed the murder of Khawaja Mohammad. On account whereof, he and his entire family members were annoyed and in order to exert pressure Ishtiaq was abducted. Initially FIR was registered under Sections 342/347/34 PPC which was subsequently altered to Sections 365/34 PPC. The abductee Muhammad Ishtiaq was recovered on 07.8.1999, who in his statement recorded under Section 164 Cr.P.C. charged petitioner and others for his abduction and for demanding ransom amount in the sum of Rs. 30,00,000/- from his father for his release.
Petitioner was arrested in this case on 14.5.2008 when his ad-interim pre-arrest bail was not confirmed by the learned trial Court. Feeling aggrieved, he filed Crl. Misc. No. 845 of 2008 before learned Peshawar High Court, Peshawar which was dismissed as stated above.
Learned counsel for the petitioner vehemently contended that learned High Court while declining bail to the petitioner has not appreciated the facts of the case in its true perspective which resulted in miscarriage of justice. According to him, FIR was lodged with a delay of one day. Learned counsel for the petitioner referred to the affidavit sworn by complainant wherein he has stated that after being fully satisfied with regard to innocence of the petitioner he does not want to pursue the matter further. He further contended that at the time of registration of FIR No. 412 dated 04.8.1998 under Sections 302/324/34 PPC. The petitioner was out of country whereas in FIR No. 34 dated 25.1.1999 registered at Police Station Hangu, he has been acquitted from the said case in terms of compromise, however, this aspect escaped from the notice of learned High Court. He contended that abductee was not recovered from the possession of the petitioner rather he was handed over to his parents by the elders of the Khoidadkhel tribe but their statements were not recorded by the police. He further contended that allegedly the complainant was present along with abductee at the time of occurrence but the abductee in his statement recorded after his release does not mentioned the presence of complainant at the scene of incident which clearly creates doubt in the prosecution story.
On the other hand learned Advocate General NWFP controverted above the contentions and supported the impugned judgment. He contended that petitioner was charged by abdutee for his abduction, moreover, petitioner remained absconder for more than nine years. He further contended that in the facts and circumstances of the case petitioner is not entitled for grant of bail.
We have considered the contentions raised at the bar and have also gone through the material brought on record in minute particulars. Though initially petitioner was nominated in the FIR by the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the Courts below. We without touching the merits of the case are of the view that case of petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed. Appellant Muhammad Najeeb is granted bail subject to furnishing surety in the sum of Rs. 200,000/- (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court.
These are the reasons of our short order of even date.
(R.A.) Appeal allowed.
PLJ 2009 SC 289
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
AHMAD RIAZ SHEIKH & others--Petitioners
versus
STATE & others--Respondents
Crl. M.A. No. 62 of 2008 in Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 & 2380 of 2005, decided on 14.3.2008.
(On appeal from the judgment dated 26.8.2005 of the Lahore High Court, Lahore passed in Cr.A. No. 1965/01, Writ Petitions No. 15582 and 7109 of 2004).
National Reconciliation Ordinance, 2007--
----Ss. 7 & 39-F--National Accountability Ordinance, 1999, Ss. 9(a)(c) 10, 18(g) & 24--Constitution of Pakistan, 1973, Art. 89--Withdrawal and termination of prolonged pending proceeding initiated prior to 1999--Complaint was filed against petitioner before Chief Ehtesab Commissioner--Corruption and corrupt practices--Inquiry exonerated from charges--Matter was taken over by NAB authorities--Conviction and sentence--Criminal appeal and writ petitions were dismissed--Assailed--During pendency of the petitions--Promulgation of NRO--No direct allegation of corruption or corrupt practices--Allegation to be benamidars of principal accused--Validity--Prosecution had failed to prove any of factor determining benami as neither source of consideration, nor possession or motive had been proved--Appellant had been acquitted of the charges u/S. 7 of NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars--Petitions were converted into appeal and were allowed.
[P. 293] B
Words and Phrases--
----Benamidar--The Word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. [P. 293] A
Ch. Mushtaq Ahmed Khan, Sr. ASC, Mr. Farooq H. Naik, ASC, Mr. M.A. Malik, ASC and Syed Zafar Abbas Naqvi, AOR for Petitioners (in all cases).
Dr. Danishwar Malik, PG NAB and Dr. M. Asghar Rana, ADPG NAB for Respondents (in all cases).
Malik Muhammad Qayyum, Attorney General for Pakistan (on Court notice).
Date of hearing: 14.3.2008.
Judgment
Abdul Hameed Dogar, CJ.--Through this judgment we intend to dispose of Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 of 2005 and 2380 of 2005 arising out of judgment dated 26.8.2005 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 1965 of 2001 filed by petitioner Ahmed Riaz Sheikh was dismissed, however the sentence was reduced to five years with benefit of Section 382-B Cr.P.C. Similarly, Writ Petitions No. 15582 & 7109 of 2004 filed by petitioners Mst. Shabina Riaz and Mst. Uzma Beg respectively were dismissed.
Briefly stated facts of the case are that on 9.8.1997 a complaint was filed against petitioner Ahmed Riaz Sheikh before Chief Ehtesab Commissioner alleging that he being a holder of public office had indulged in acts of corruption and corrupt practices and had acquired assets beyond his source of income. This complaint was sent to Chairman Ehtesab Cell, Prime Minister's Secretariat, Islamabad for inquiry/investigation. Mr. Eijaz Elahi Rana, Deputy Director FIA, Rawalpindi Zone, Rawalpindi was appointed as Inquiry Officer who on the conclusion of the inquiry exonerated him from the charges. The inquiry report was recommended by Director General, FIA but the Secretary Ministry of Interior ordered de novo inquiry in the matter. However, due to the filing of Writ Petition No. 565 of 1997 the proceedings of de novo inquiry could not be initiated. In the meanwhile, National Accountability Ordinance, 1999 was promulgated in 1999 and the matter was taken over by the NAB authorities which culminated in Reference No. 15 of 2001 under Sections 18(g) and 24 of the NAB Ordinance, 1999. On the conclusion of trial, petitioner Ahmed Riaz Sheikh was convicted and sentenced under Section 10 read with Section 9(a)(v) of the NAB Ordinance to 14 years R.I. with fine of Rs. one crore or in default thereof to further undergo three years R.I. The property comprising 306 Kanals in Qalanderpur Tehsil Minchinabad District Bahawalnagar, plot in Ammerpura and land measuring 4 kanals in Qalandarpur allegedly in the name of his wife petitioner Shabina Riaz and articles in the nature of jewellery and ornaments in the name of petitioner Mst. Uzma Beg as benamidars of petitioner Ahmed Riaz Sheikh were forfeited. Feeling aggrieved petitioners filed Criminal Appeal and writ petitions as stated above before the learned Lahore High Court which were dismissed and the conviction of petitioner Ahmed Riaz Sheikh was maintained, however, sentence was reduced from 10 years to 5 years R.I. with fine of Rs. two crores or in default the same shall be recovered from the petitioner in the manner prescribed under Section 386 Cr.P.C. whereas the direction for forfeiture of properties was upheld vide the impugned judgment.
During the pendency of these petitions President of Pakistan in exercise of his powers under Section 89 of the Constitution of Islamic Republic of Pakistan, 1973 promulgated the National Reconciliation Ordinance, 2007 (hereinafter referred to as "the NRO"). By virtue of Section 7 of the NRO a new Section 33-F has been inserted in the Ordinance, which reads as under:--
"Withdrawal and termination of prolonged pending proceedings initiated prior to 12.10.1999 (1). Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court including a High Court and the Supreme Court of Pakistan initiated by or on a Reference by the National Accountability Bureau inside and outside Pakistan including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public officer shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date."
In view of above provision of law petitioner Ahmed Riaz Sheikh has filed Cr. M.A. No. 62 of 2008 in this Court for withdrawal of proceedings against him.
3A. We have heard M/s Ch. Mushtaq Ahmed Khan, learned Sr.ASC, Farooq H. Naik, learned Sr.ASC for the petitioners, Dr. Danishwar Malik, learned Prosecutor General NAB and Malik Muhammad Qayyum, learned Attorney General for Pakistan at length and have through the record and proceedings of the case in minute particulars.
It is vehemently contended by learned counsel for the petitioners that originally a complaint dated 9.8.1997 was filed by one Muhammad Muzaffar against petitioner Ahmed Riaz Sheikh alleging misconduct and corruption. According to him, the matter was inquired into and on conclusion of the inquiry he was exonerated from the charges, however, the competent authority i.e. Secretary Ministry of Interior ordered de novo inquiry but the same could not commenced due to order passed by learned High Court in Writ Petition No. 565 of 1997. Learned counsel further contended that after the promulgation of the National Accountability Ordinance in 1999 the matter was taken over by the NAB which culminated into filing of Reference No. 15 of 2001. According to him since inquiry was initiated prior to the cut off date as given in Section 7 of the NRO, as such his case is fully covered under the same. He contended that the petition pending before this Court stands withdrawn and terminated, hence the same cannot continue further. As regards to petitioners, namely, Mst. Shabina Riaz and Mst. Uzma Beg learned counsel for the petitioner contended that they are also entitled to the same benefit.
On the other hand Dr. Danishwar Malik, learned Prosecutor General NAB conceded that the case of petitioner Ahmed Riaz Sheikh, falls within the ambit of Section 7 of the NRO.
Learned Attorney General for Pakistan supported the case of petitioner and conceded that Section 7 of the NRO is applicable in the case of petitioner as inquiry/investigation was conducted prior to the cut off date i.e. 12th October, 1999 as such the case against petitioner may be withdrawn.
After hearing learned counsel for the parties and going through the record we are of the view that case of petitioner Ahmed Riaz Sheikh squarely falls within the ambit of Section 7 of the NRO. He was working as Deputy Director, FIA and inquiry against him was initiated in 1997 and the matter was transferred to National Accountability Bureau whereupon Reference No. 15 of 2001 was filed before the Accountability Court which shows that proceedings were initiated before 12th October 1999 the cut off date. The provisions of Section 7 of the NRO stipulates that under Section 33-F of the Ordinance the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance.
In view of above discussion Cr. M.A. No. 62 of 2008 is allowed. Resultantly, Criminal Petition No. 349 of 2005 is converted into appeal and is allowed in terms of Section 7 of the NRO. Appellant Ahmed Riaz Sheikh is acquitted of the charges as he is on bail his sureties are ordered to be discharged.
So far as Civil Petition No. 2379 and 2380 of 2005 are concerned, there are no direct allegation of corruption or corrupt practices against petitioners namely, Miss Uzma Beg and Mrs. Shabina Riaz Sheikh but they are only alleged to be benamidars of the principal accused/appellant Ahmed Riaz Sheikh. The word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. The prosecution has failed to prove any of the factor determining benami as neither source of consideration, nor possession or motive has been proved. Since appellant Ahmed Riaz Sheikh has been acquitted of the charges under Section 7 of the NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars. Accordingly, both the petitions are converted into appeal and are allowed. The order of confiscation of properties is set aside and shall be released to the appellants.
These are the reasons of our short order of even date.
(R.A.) Appeal allowed.
PLJ 2009 SC 293
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ARIF BALOCH and another--Appellants
versus
STATE and another--Respondents
Criminal Appeals No. 638 & 639 of 2006, decided on 21.8.2008.
(On appeal from the judgment dated 25.5.2004 of the Lahore High Court, Lahore passed in Cr.A. No. 130/01).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Control of Narcotic Substances Act, 1997, Ss. 9(c) & 15--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Principle of consistency--Entitlement to benefit--Interested witnesses--Sentence of death was converted into life imprisonment--Co-accused were acquitted by trial Court--All co-accused except the appellant were acquitted u/S. 265-K, Cr.P.C.--Held: On Principle of consistency he was also entitled to same benefit--Prosecution had failed to prove its case against the appellant beyond any reasonable doubt--Statement of prosecution witnesses suffered from material improvement, besides they were interested witnesses and therefore that statements could not have been relied upon--Appellant was acquitted. [P. 297] A
Sardar M. Latif Khan Khosa, Sr. ASC for Appellant (in Crl. A. No. 638 of 2006).
Sh. Riazul Haque, ASC for Respondent (in Crl. A. No. 638 of 2006).
Sh. Riazul Haque, ASC for Appellant (in Crl. A. No. 639 of 2006).
Sardar M. Latif Khan Khosa, Sr. ASC for Respondent (in Crl. A. No. 639 of 2006).
Date of hearing: 21.8.2008.
Judgment
Abdul Hameed Dogar, CJ.--These appeals with leave of this Court are directed against judgment dated 25.5.2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 130 of 2001 filed by appellant Muhammad Arif Baloch was dismissed, however, the sentence of death was converted into life imprisonment. The sentence of fine amounting to Rs. 10,00,000/- (Rupees one million) or in default thereof to undergo R.I. for two years and benefit of Section 382-B Cr.P.C. was also granted to the appellant/accused.
Briefly stated facts giving rise to the filing of FIR No. 17/97 are that one Khalid Khan during investigation of case FIR No. 37/97 disclosed that his group was preparing to smuggle heavy quantity of narcotics abroad which was concealed at a place situated in Bahawalpur and that appellant Arif Baloch and Haji Salim Memon could point out the said place. Resultantly the appellant was arrested from Karachi on 18.9.1997. During investigation, appellant disclosed that two and a half tons of superior quality "Charas" was concealed by him and his group members, namely, Haji Salim Memon, Khalid Khan, Atta Muhammad Shah, Syed Tanvir Hussain Naqvi and Faiz Mustafa Bukhari, in Tehsil Ahmedpur Sharqia for exporting to Australia. A raiding party consisting of Major Abdul Rab, complainant Ahmed Jalil Raja DSP, ANF Lahore, Syed Hassan Ijaz, Deputy Director, Subedar Pervaiz Iqbal, Hawaldar Muhammad Sarwar SSG, Spoy Zain Ullah and a number of persons from ANF, was constituted and on the pointation of appellant Muhammad Arif Baloch a raid was conducted in a deserted factory near Chowk Bhatta, Tehsil Ahmed Pur Sharqia District Bahawalpur. After breaking lock of the building 120 plastic torras were recovered which contained 20 packets each weighing 2400 kilograms of charas. 10 grams, from each packet, were separated for chemical examination.
Investigation was carried out and on completion thereof the accused persons were challaned to the Court of Special Judge, ANF, Lahore for trial, under Sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997. It would be pertinent to mention here that during trial, except the appellant, the co-accused persons namely Muhammad Salim Memon, Syed Tanvir Hussain Naqvi, Khalid Khan and Atta Muhammad Shah were acquitted of the charge by the learned trial Court under Section 265-K Cr.P.C.
In his statement recorded under Section 342 Cr.P.C. appellant pleaded false implication and while answering to the question as to why the PWs had deposed against him he replied as under:--
"As a matter of fact I was arrested from Karachi on the pretext of extorting a confession against one Senator Asif Ali Zardari husband of former Prime Minister Mohtarama Benazir Bhutto which I denied. Consequently to pressurize me further I was tortured, humiliated and implicated in the instant case along with other fabricated cases but I resisted for the truth."
On conclusion of the trial, appellant Muhammad Arif Baloch was convicted under Section 9(c) of the CNSA, 1997 and sentenced to death alongwith a fine of Rs. 10,00,000/- (Rupees one million) or in default thereof to further undergo R.I. for two years.
Feeling aggrieved appellant filed Criminal Appeal No. 130 of 2001 which was dismissed, however, the sentence of death was converted into life imprisonment vide impugned judgement.
We have heard Sardar Muhammad Latif Khan Khosa, learned Sr. ASC for the appellant and Sh. Riazul Haque, learned Special Prosecutor ANF, at length and have gone through the record and proceedings of the case in minute particulars.
It is vehemently contended by Sardar Muhammad Latif Khan Khosa, learned Senior ASC appearing on behalf of appellant Muhammad Arif Baloch that arrest of the appellant in case FIR No. 37 of Police Station ANF, Lahore and his subsequent arrest in FIR No. 17 of Police Station ANF, Bahawalpur was entirely afflicted by malice and political victimization that has been overlooked by the learned Courts below. According to him appellant has been falsely implicated in this case with ulterior motives and the sentence of appellant is not maintainable as the learned trial Court had acquitted the actual culprits under Section 265-K Cr.P.C. and has thrown the whole burden upon the appellant. According to him appellant is a highly respectable businessman but was maliciously implicated in the case with a view to obtain alleged confessional statement under duress against Senator Asif Ali Zardari husband of the former Prime Minister of Pakistan. Learned counsel further contended that on the basis of the aforesaid alleged statement case FIR No. 525 was registered at Police Qila Gujjar Singh against the appellant as well as Senator Asif Ali Zardari. Since the appellant did not support his so-called confessional statement, therefore, as a punishment he was involved in the present case. As regard the alleged recovery of narcotics learned counsel contended that the same is highly doubtful as neither any person from the public was associated with the raid proceedings nor police station ANF Bahawalpur was intimated about the raid being conducted which clearly casts doubts regarding the story of the prosecution connecting the appellant with the alleged crime. Learned counsel contended that entire investigation of the case was conducted in a dishonest manner, as the alleged recovery of charas was affected from the area located within the territorial jurisdiction of police station ANF Bahawalpur but except registration of the formal FIR the entire investigation was conducted by ANF, Lahore without any justification and order. Learned counsel prays that in view of above submissions the conviction and sentence of the appellant be set aside and he be acquitted of the charge.
On the other hand Sh. Riazul Haque, learned Special Prosecutor ANF controverted . the above contentions and contended that since the learned High Court has already taken a lenient view and he has filed Appeal No. 639 of 2006 for enhancement of the sentence of the accused Muhammad Arif Baloch, therefore, he may not be acquitted of the charge. He contended that in the circumstances of the case the learned trial Court was justified in granting sentence of death to the accused.
We have considered the arguments raised at bar by the learned counsel for the parties and have also gone through the record and proceedings of the case in minute particulars. Appellant Muhammad Arif Baloch in his statement recorded under Section 342 Cr.P.C. has taken the specific plea that he was arrested from Karachi in order to extract a confession from him against Senator Asif Ali Zardari to which he did not accede. Consequently he was implicated in the present case but this aspect of the matter has not been taken into account by the Court below. Moreover, all the co-accused except the appellant were acquitted under Section 265-K Cr.P.C. Therefore, on the principle of consistency he is also entitled to the same benefit. The prosecution has failed to prove its case against the appellant beyond any reasonable doubt. The statements of PW-3 and 4 suffer from material improvement, besides they are interested witnesses and therefore that statements could not have been relied upon.
These are the reasons of our short order of even date which reads as under:--
"For the reasons to be recorded later Criminal Appeal No. 638 of 2006 (Muhammad Arif Baloch v. The State) is allowed. The conviction and sentence of appellant is set aside and he is acquitted of the charges. Since appellant has been acquitted from the charges as such the orders of confiscation/forfeiture of his properties, if any, shall stand vacated. Appellant present in Court is informed about the orders.
(R.A.) Appeal dismissed.
PLJ 2009 SC 297
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
IJAZ AHMAD--Appellant
versus
STATE--Respondent
Crl. A. No. 327 of 2004, decided on 1.7.2008.
(On appeal from the judgment dated 03-10-2002 in Cr. A. No. 439/98, M.R. No. 285 of 1998 passed by the Lahore High Court, Lahore)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 410--Pakistan Penal Code, (XLV of 1860), Ss. 302/34/109--Conviction and Sentence--Challenged--Appreciation of evidence--Both the eyewitnesses, at the trial have given consistent and coherent statements which are corroborative of each other on all material points, hence their statement were rightly believed by both the Courts below--Medical evidence, account whereof at the trial was furnished by PW further strengthen the prosecution case and leads to the conclusion that occurrence has taken place in the manner as suggested by the prosecution. [Pp. 300 & 301] A
Interested Witness--
----Mere relationship of a witness with the deceased is no ground for discarding his evidence if he otherwise appears to be truthful and his presence at the place of occurrence is probable. [P. 301] B
Interest Witness--
----Mere relationship of a witness with any of the parties would not dub him as an interested witnesses because interested witness is one who has of his own, a motive to falsely implicate the accused is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused on account of the occurrence, by no stretch of imagination can be regarded as an interested witness. [P. 301] C
Related Witness--
----Evidence of an interested witness even, cannot be outrightly discarded unless it is proved that witness had involved the accused for some ulterior motive and in case of interested witness, only as rule of prudence and not as a rule of law. [P. 302] D
2007 SCMR 518, PLJ 2007 SC 226 & PLJ 2004 SC 320, ref.
Qari Abdul Rashid, ASC for Appellant.
Mr. M. Siddique Baloch, D.P.G. Punjab for State.
Date of hearing: 1.7.2008.
Judgment
Ch. Ejaz Yousaf, J--This criminal appeal with leave of the Court is directed against the judgment dated 3.10.2002 passed by a Division Bench of the Lahore High Court, Lahore, whereby appeal bearing No. 439/1998, filed by the appellant, against his conviction and sentence recorded by the Additional Sessions Judge, Wazirabad, in case FIR No. 157/95 under Section 302/34/109 PPC was dismissed.
Facts of the case, in brief, are that in the night between 17/18 May, 1995 report was lodged by one Muhammad Nazir with P.S. Saddar Wazirabad, District Gujranwala at 3.00 a.m. wherein it was alleged that in the night of occurrence, the complainant and his wife Mst. Surrayya Begum, along with other family members were sleeping on the roof of the house. At about 2.00 a.m. they heard a sound from the rear side as some one was climbing on the roof. They woke up and saw, in the moonlight, that Ijaz Ahmad armed with pistol, Rafaqat Ali, armed with churri and Asif Hussain, empty handed, were standing around the cot of Zulfiqar Ali, son of the complainant. Zulfiqar Ali also woke up and was sitting on the cot when Asif Hussain raised lalkara exhorting the co-accused to kill him. Thereupon Ijaz Ahmad, accused, fired two pistol shots at Zulfiqar Ali, one after the other, which landed on his right and left shoulders. Rafaqat Ali, accused, gave churri blow hitting Zulfiqar Ali on the left armpit. The complainant raised alarm whereupon the accused fled away from the side of the un-inhabited house of Muhammad Sarwar Cheema. After their departure, they went near Zulfiqar Ali, and found that he had succumbed to the injuries. It was further stated in the report that two years prior to the occurrence the deceased had injured Rafaqat Ali and Ijaz, accused persons, in consequence whereof a case was registered and two months prior to the occurrence a compromise was effected between the parties, however, the accused persons had grudged against the deceased and on account thereof ultimately killed him. On the stated allegations formal FIR bearing No. 157/95 was registered at the said Police Station, under Sections 302/34/109 PPC and investigation was carried out in pursuance thereof. On completion of investigation, the accused persons were challaned to the Court for trial. It would be pertinent to mention here that appellant Ijaz Ahmad, initially, remained at large for about nine months and was also declared as proclaimed offender but after arrest was challaned to the Court for trial along with other co-accused persons.
Charge was accordingly framed to which the accused pleaded not guilty and claimed trial. In order to prove the charge and substantiate the allegation levelled against the accused persons, the prosecution produced 15 witnesses in all, whereafter the accused persons were examined under Section 342 Cr.P.C. They, however, failed to lead evidence in their defence or to appear as their own witnesses in terms of Section 340(2) Cr.P.C. On conclusion of the trial, the trial Court convicted appellant Ijaz Ahmad under Section 302 PPC and sentenced him to death along with a fine of Rs. 100,000/- or in default thereof to further undergo S.I. for two years. It was also ordered that half of the amount of fine, if recovered, should be paid to the LRs of the deceased. The co-accused persons, namely, Asif Hussain, Rafaqat Ali and Wajid Hussain, were however, acquitted of the charge.
Being aggrieved the appellant Ijaz Ahmad, approached the High Court by way of Criminal Appeal No. 439 of 1998, which was dismissed vide the impugned judgment and Murder Reference No. 285 of 1998 sent by the trial Court for confirmation of the sentence of death was answered in the affirmative, hence this appeal.
Qari Abdul Rashid, Advocate, learned counsel for the appellant has contended that since both eye-witnesses were related and interested in prosecution of the appellant, therefore, their testimony could not have been believed; that no independent witness of the occurrence was produced; that since on the basis of same evidence three co-accused persons were acquitted by the trial Court, therefore, the appellant too, could not have been convicted; that since the recovery of revolver P-6 was not believed by the High Court, therefore, the rest of the evidence was not sufficient to record conviction thereon.
Mr. Muhammad Siddique Baloch, learned Deputy Prosecutor General, Punjab, on the other hand while controverting the contentions raised by the learned counsel for the appellant, has submitted that FIR was lodged promptly just after an hour of the occurrence and not only names of all the accused persons were mentioned therein but specific roles were also attributed; that eye-witness account of the occurrence was given by inmates of the house, who were natural witnesses; that statements of eye-witnesses were duly corroborated by the medical as well as other evidence, therefore, the appellant was rightly convicted for the offence.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case carefully, with their assistance.
The prosecution case rests on the ocular evidence, account whereof, at the trial, was furnished by PW-1 Muhammad Nazir, complainant, and PW-2 Surrayya Begum, who are father and mother of the deceased, respectively, the medical evidence, the evidence of abscondance and other circumstantial evidence. Though recovery of revolver P-6 has been declared by the High Court to be of no use for the prosecution as neither empty was recovered from the place of occurrence nor was sent and matched with the recovered weapon yet, the learned Judges in the High Court were of the opinion that rest of the evidence was sufficient to base conviction thereon. It would be pertinent to mention here that in the instant case occurrence took place at about 2.00 a.m. in the night between 17/18 May, 1995, whereas the report was lodged at 3.00 a.m. just after an hour with the Police Station situated at a distance of about four kilometres from the place of occurrence, hence, there was hardly any delay. Further in the report not only names of all the accused persons were mentioned but specific roles were also attributed to them. Since the present appellant had enmity with the deceased and litigation was also going on between the parties, therefore, he being previously known to the eye-witnesses, possibility of mistaken identity has to be ruled out and likewise it was not the case of substitution of the accused which otherwise is a rare phenomena. Both the eye-witnesses, at the trial, have given consistent and coherent statements which are corroborative of each other on all material points, hence their statements were rightly believed by both the Courts below. The medical evidence, account whereof at the trial was furnished by PW-9 Dr. Muhammad Yousaf, further strengthen the prosecution case and leads to the conclusion that occurrence has taken place in the manner as suggested by the prosecution.
As regards the contention that both the eye-witnesses were related and thus interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witnesses because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. This view receives support from the following reported judgments:--
(i) Sheraz Tufail v. The State (2007 SCMR 518)
(ii) Khair Muhammad & another v. State (PLJ 2007 SC 226)
(iii) Amal Sherin & another v. State through A.G. NWFP (PLJ 2004 SC 320)
(iv) Dosa & others v. The State (2002 SCMR 1578)
(v) Mulla Riaz Ahmad v. The State (2002 SCMR 626)
(vi) Feroze Khan v. The State (2002 SCMR 99)
(vii) Farmanullah v. Qadeem Khan and another (2001 SCMR 1474)
(viii) Muhammad Amin v. The State (2000 SCMR 1784)
(ix) Saeed Akhtar & others v. The State (2000 SCMR 383)
(x) Mir Hassan and others v. State & others (PLJ 1999 SC 1702)
(xi) Sharafat Ali v. The State (1999 SCMR 329)
(xii) Sardar Khan & others v. State (PLJ 1998 SC 1398)
(xiii) Wahid Bukhsh & others v. The State (1997 SCMR 1424)
(xiv) Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639)
(xv) State of Rajasthan v. Hunaman (AIR 2001 SC 282)
(xvi) State of Punjab v. Wassan Singh & others (AIR 1981 SC 697)
What to speak of related witnesses, evidence of an interested witness even, cannot be outrightly discarded unless it is proved that the witness had involved the accused for some ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from other evidence. In this view, we are fortified by the following reported judgments:--
(i) Abdul Majeed v. The State (2001 SCMR 90)
(ii) Suraj Pal v. State of U.P. (AIR 1994 SC 748)
(iii) State of Karnataka v. Bheemappa (1993 Cr.L.J. 2609 (SC)
(iv) State of U.P. v. Ballabh Das & others (AIR 1985 SC 1384)
In the instant case both PWs 1 & 2 being father and mother were natural witnesses and therefore, their presence in the house, at the relevant time, was rightly believed by both the Courts below. The contention, therefore, has no force.
As to the next contention that since on the basis of same evidence, co-accused persons, namely, Asif Hussain, Rafaqat Ali and Wajid Hussain, were acquitted of the charge, therefore, the appellant could not have been convicted for the offence, it may be mentioned here that no doubt aforementioned accused persons were acquitted of the charge, by the trial Court, for want of proof, yet, it cannot be said that the appellant was convicted on the basis of same evidence, because both the afore mentioned eye-witnesses had, at the trial, categorically stated that though they had charged Rafaqat Ali for inflicting churri blow to the deceased yet, they were not sure as to whether it actually hit the deceased or otherwise and no overt act whatsoever was attributed to the third accused, namely, Wajid Hussain. On the contrary the present appellant was specifically charged by them for inflicting gun shot injuries to the deceased, therefore, it can, by no stretch of imagination, be said that on the basis of same evidence the co-accused persons were acquitted. This contention therefore, is devoid of force.
Upshot of the above discussion is that this appeal being misconceived is hereby dismissed.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 303
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
GOHAR ALI and another--Appellants
versus
M/S HOECHST PAKISTAN LIMITED--Respondent
C.A. Nos. 2763 & 2764 of 2001, decided on 03-07-2008.
(On appeals from the judgments dated 19-09-2001 of the Peshawar High Court, Peshawar passed in RFA Nos. 35 & 36 of 1999)
Master and Servant--
----Civil Servant--Termination of employee of corporation--Effect--Question of compensation--Remedy--An employee of a corporation in the absence of violation of law or any statutory rule cannot press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages. [Pp. 306 & 307] A
Damages--
----Criteria--Damages are meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. [P. 307] B
1996 SC 737 and 1998 SCMR 60, ref.
Mr. Nazeer Ahmad Bhatti, ASC, Mr. Waseem-ud-Din Khattak, ASC and Ch . Muhammad Akram, AOR for Appellants.
Mr. Neel Keshov, ASC for Respondent.
Date of hearing: 3.7.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned appeals by appellants are directed against identical judgments dated 19.9.2001 passed by learned Peshawar High Court, Peshawar, whereby Regular First Appeal Nos. 35 and 36 of 1999 filed by M/s. Hoechst Pakistan Ltd., respondent company, were accepted, setting aside judgments and decrees of learned Civil Judge, Peshawar, dated 9.4.1999 and as a result, suits filed by the appellants were dismissed.
Facts of the case need not be reiterated as the same have been mentioned in detail in the impugned judgments as well as in the memo of petitions. Suffice is to state that Gohar Ali and Sher Zaman Khattak, appellants, filed separate suits in the Court of Senior Civil Judge, Peshawar, claiming Rs. 54,81,750/- and Rs. 54,77214/- respectively as damages against respondent company, averring that while serving as Senior Medical Information Officers with the respondent company, appellants' salaries, gratuity bonuses, premium and leave fair allowances were with-held by respondent company and that appellants were transferred from Peshawar to far lung areas i.e. Hyderabad, Sukkur and Larkana in order to pressurize them to resign from service of the respondent company and ultimately appellants' services were terminated on 23rd January 1996 on false and baseless grounds ignoring that appellants through out their service showed satisfactory performance and devotion to their jobs and as an appreciation of the same appellants were given promotion by the respondent company.
The suits were resisted on all grounds legal as well as factual and claim of the appellants was denied. To adjudicate upon the matter, following issues were framed for trial:--
Whether the plaintiff has got a cause of action?
Whether this Court has got the jurisdiction in the matter?
Whether the suit is bad for non-joinder and mis joinder of the parties?
Whether the suit is bad/incompetent as framed?
Whether the relationship of master and servant exists between the parties?
Whether the petitioner is liable to receive the suit amount from the respondent?
Whether the petitioner is entitled to the decree prayed for?
Relief.
Upon consideration of the material placed before him, learned trial Judge, seized of the matter vide judgments and decrees dated 9.4.1999 and allowed both the suits with costs awarding Rs. 700,000/- each to the appellants as damages due to illegal termination of their services by the respondent company. Feeling aggrieved, respondent company preferred Regular First Appeals before learned High Court which through the judgment impugned herein have been allowed, as stated and mentioned above.
We have heard in detail Mr. Waseem-ud-Din Khattak, Advocate appearing on behalf of the appellants and Mr. Neel Keshov, Advocate representing the respondent company, in the light of the material on file.
Learned counsel for the appellants bitterly criticised the impugned judgment and contended that learned High Court has taken contrary view and reversed the findings of the trial Court without justifiable reasons and in total disregard to the material on record, resulting in complete failure of justice. Learned counsel added that hammer has fallen on the appellants for no other reason but on account of their refusal to abide by the wishes of the management of the respondent company culminating in termination of appellants' services. To augment the contentions reliance was placed on Habib Bank Limited and others vs. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60).
As against that learned counsel representing the respondent company, fully supported the impugned judgment submitting that services of the appellants were terminated for valid and cogent reasons i.e. absence from duty and lack of interest towards their jobs; that there was nothing on file to substantiate the claim of the appellants and that transfer from one team, territory or city to another anywhere in Pakistan is a normal incident in the business of respondent company.
Having heard learned counsel in the light of the material on file, we find weight in the submissions of learned counsel for the appellants. We feel necessary to refer to Paras 6, 7 and 9 of the impugned judgment which read:--
The letter of termination of the respondents' (appellants) service dated 23.1.1996 (Ex PW 1/3) states that the respondent's services have been terminated under Clause 8 of his letter of appointment. No reasons however, were given nor any allegations made in the letter of termination. In the written statement filed by the appellant company it was pleaded that the respondent's services were terminated under Clause 9 of the letter of appointment. It will be seen that Clause 8 does not make any reference to the period of employment or termination of the respondent's services. It only makes reference to the manner in which the respondent is to conduct business of the company. Reference to Clause 8 in the letter of termination of service was erroneous, whether made consciously or mistakenly. Respondent's services could not have been terminated under Clause 8 and the only provision under which such action could have been taken was Clause 9(a). The respondent's termination of service is, therefore, to be considered as having been made under Clause 9(a).
According to Clause 9(a) the respondent's services were liable to be terminated on one month's notice or one month's pay in lieu thereof. However, no such notice was required if the respondent's services were terminated on the grounds of misconduct etc. If the respondent's services were terminated in violation of Clause 9(a) his only remedy was to recover one month's salary. He cannot claim any compensation for termination of his service ¦ as his service was not for specified fixed period but liable to termination at any time at the will of the employer.
The learned counsel for the respondent had also argued that the respondent was victimized during his employment. It may be stated that the relationship of the respondent and the plaintiff was of master and servant and according to Clause 9(a) of the letter of appointment the respondent was at liberty to quit the services by giving one month's notice to the employer. Thus he had the option to leave the appellants employment if he could not get alongwith his employer. By not exercising that option he now has no right to claim compensation for the alleged victimization which he could have averted by resigning from his services."
A careful scrutiny of the record would reveal that salaries of the appellants were withheld by the respondent company without any legal justification. Appellants were transferred from one place to the other to compel them either to abide by the wishes of the management or tender resignation and ultimately services of the appellants were terminated vide letter dated 23.1.1996 (Ex.PW 1/3) under Clause 8 of the appointment letter dated 5.10.1987, which clause does not provide for such action. Neither any reason for said action has been given nor the required one month's notice was issued to the appellants before termination of their services. Naturally by such illegal action on the part of the respondent company without any justifiable reason appellants suffered in their reputation and prospects of future employment.
Adverting to the question of compensation it may be observed that the effect of the application of the master and servant rule is that an employee of a corporation in the absence of violation of law or any statutory rule cannot press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages. It was held by this Court in Sufi Muhammad Ishaque vs. The Metropolitan Corporation Lahore through Mayor (PLD 1996 SC 737) that there can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injure. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party.
In the light of the above discussion both the appeals are allowed, impugned judgments of learned High Court are set aside and the judgments and decrees passed by learned trial Court in favour of the appellants are restored. There shall be no order as to costs.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 307
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
PROVINCE OF PUNJAB through Collector Bahawalpur and others--Appellants
versus
Sh. HASSAN ALI and others--Respondents
Civil Appeals No. 1330 to 1335 and 1465 to 1468 of 2006, decided on 6.6.2008.
(On appeal from the judgment dated 07-06-2006 in R.F.A. No. 3/1992 passed by the Lahore High Court, Bahawalpur Bench)
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 9--Appointment of local commission--Power of Court--Either the Court can appoint local commission without application?--Held: Legally there is no impediment in appointing a Local Commission when the evidence brought on record alone is not capable to resolve the controversy. [P. 315] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 9--Determining the amount of compensation--Duty of Court--It was duty of Court to determine the amount of compensation--Recourse to Order XXVI, Rule 9 of CPC could have been made even without on application by any party. [P. 316] B
2005 CLC 1998, CLC 1779 PLD, 1996 Pesh 22 & PLD 1995 Pesh 78, Ref.
Ms. Afshan Ghazanfar, A.A.G Punjab for Appellants (in C.A. No. 1330 & 1465 of 2006).
Sh. Zamir Hussain, Sr. ASC for Appellant No. 3 (in C.A. No. 1330 & 1465 of 2006).
Mr. Muhammad Ozair Chughtai, AOR for Respondents (in C.A. No. 1330 & 1465 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A. No. 1331 of 2006).
Sh. Zamir Hussain, Sr. ASC for Appellant No. 3 (in C.A. No. 1331 of 2006).
Mr. Muhammad Ozair Chughtai, AOR for Respondents (in C.A. No. 1331 of 2006).
Ms. Afshan Ghazanfar, AAG Punjab for Appellants (in C.A. No. 1332 to 1335 of 2006).
Mr. Muhammad Ozair Chughtai, AOR for Respondents (in C.A. No. 1332 to 1335 of 2006).
Ch. Mushtaq Ahmed Khan, Sr. ASC, Mr. Muhammad Ozair Chughtai, ASC and Ch. Akhtar Ali, AOR for Appellants (in all cases).
Ms. Afshan Ghazanfar, AAG Punjab for Respondents (in C.R. Nos. 1466 to 1468).
Date of hearing: 6.6.2008.
Judgment
Ch. Ejaz Yousaf, J.--These civil appeals under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan, 1973 are directed against the judgments dated 7.6.2006 & 6.6.2006, passed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench. Since identical questions of law and facts are involved in these appeals therefore, we propose to decide the same through this common judgment.
In C.A. No. 1331/2006 land measuring 17 Kanals 17 marlas in Mauza Uch Sharif Bukhari, Tehsil Ahmadpur East, District Bahawalpur, was acquired by the Government vide notification dated 4.6.1981. Compensation was assessed by the Collector @ Rs. 15,467/- per Acre, on 12.1.1984. The respondent/land owner objected to the compensation and Reference under Section 18 of the Land Acquisition Act was filed. Learned Civil Judge, Bahawalpur, on the report of Local Commission, vide his judgment dated 30.1.1993, determined the compensation @ Rs. 1,000/- per marla. RFA No. 52 of 1993 was filed by the appellant before the High Court, which appeal was dismissed vide the impugned judgment.
In CAs. No. 1332 to 1335 and 1466 to 1468 of 2006, land measuring 300 Kanals in Mauza Uch Sharif Bukhari, Tehsil Ahmadpur East, Distt. Bahawalpur, was acquired vide notification dated 2.5.1983. Compensation was assessed by the Collector @ Rs. 15,467/- per Acre, on 2.8.1983. The respondents/land owners objected to the compensation and References under Section 18 of the Land Acquisition Act were filed. Learned Civil Judge, Bahawalpur, on the report of Local Commission, vide his judgment dated 30.1.1993, determined the compensation @ Rs. 1,000/- per marla. Against the said order RFA Nos. 53, 54 & 56 of 1993 were filed by the appellants/Government before the High Court, which appeals were dismissed vide the impugned judgment.
Learned counsel for the appellants has contended that the learned Courts below have, while assessing the prevailing market price of the property in question, gravely erred in relying on the report of the Local Commissioner; that the land in question at the time of acquisition was agricultural land, hence learned Judges in the High Court have erred in describing it as Urban area; that the learned Judges in the High Court have failed to take into consideration the documentary evidence produced by the parties with regard to market value of the property in question by the appellants; and that the respondents/land owners had failed to produce any documentary evidence regarding market value of the property in question or prevailing in the vicinity at the time of acquisition of land, hence the impugned judgment may be set-aside and the amount of compensation assessed by the Collector may be maintained.
Learned counsel appearing on behalf of the respondents (appellants in C.As. 1466-1468/2006,) while controverting the contentions raised by the learned counsel for the appellants submitted that sufficient oral as well as documentary evidence was available before the Referee Court, which was fully appreciated in determining the prevailing market price. Further Local Commissioner was appointed and report furnished by him was also taken into consideration in assessing the amount of compensation. He maintained that price determined by the Referee Court i.e. Rs. 10,000/- per marla was fair and the learned Judges in the High Court have erred in reducing the same to that of Rs. 4,000/- per marla.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
In Civil Appeals No. 1330 & 1465 of 2006, the land in question was acquired by the Government for the construction of Abbasia Link Canal, Tehsil Ahmadpur East at the expenses of WAPDA. The Collector had assessed the price of the land at the rate of Rs. 15467/- per acre in the year 1983. It was claimed by the respondents/land owners that the land in question at the relevant time was a valuable land as it was being used as residential as well as commercial property, which, on the other hand was refuted by the appellants. In order to prove their case, oral as well as documentary evidence was led by the parties. The land owners produced Allah Diwaya, Post Master, AW-1, Qadir Bux, AW-2, Ghulam Rasool AW-3, Muhammad Siddique AW-4 and one of the land owners Hassan Ali appeared as AW-5. They also produced documentary evidence including Ex.A/1 copy of Bainama of the sale-deed, EX.A/2 & 3, copies of Jamabandies, Ex.P4 copy of Award and Ex.A5 copy of Gazette notification. On the other hand, the appellant/WAPDA had produced Masood Leghari, Collector as RW1 and Muhammad Anwar Ali Shah, Naib Tehsildar, as RW2, who produced Ex. R1 to R23. Since evidence of the parties was found deficient in determining market value of the property in question, therefore, Local Commissioner was appointed by the learned trial/ Referee Court who after visiting the site and recording evidence of the parties about market value of the land submitted his report mentioning therein that the market value of the land in question at the relevant time was Rs. 10,000/- (Rupees ten thousand) per marla. While appearing as AW-1 Allah Diwaya, Post Master, had deposed that a piece of land measuring 31 marlas was purchased by his department in the year 1974 and in the year 1980-81 such type of land was worth Rs. 5,000/- to Rs. 15,000/- per marla in the vicinity. He had also mentioned that land in question was situated at a distance of about one acre from the office of Town Committee of Uch Sharif and there were also post office building and octroi post adjacent to the land in question. AW2 Qadir Bakhsh had deposed that, at the relevant time, such type of land was being sold between Rs. 5,000/- to Rs. 15,000/- per marla and that a Rest House, Bus Stand and office of Town Committee situated adjacent to the land in question. The learned Judges in the High Court having found that in rebuttal not a single word was uttered by Mr. Masood Leghari, Collector, AW1, and Muhammad Anwar Shah, RW2 and copies of mutations Ex.R5 to R7 (Pert Patwar) did not show whether the properties transferred through those mutations were agricultural, residential or commercial and the said documents were further deficient to reflect distance from the property in question observed that it were rightly not considered by the learned Referee Judge. It was further observed by the learned Judges in the High Court that the land in question was situated at a distance of an acre from the Town of Uch Sharif, and adjacent to the Post Office, Office of Town Committee, Tehsil Office, Octroi post of the City Uch Sharif, and residential colony, named as Shamas Colony, though situated outside the municipal limits at the time of acquisition i.e. 1989, yet having been subsequently included in the limits of Town committee of Uch Sharif, vide Ex.P-4 and the location having been verified by the Local Commissioner, potential value of the land was much more than claimed by the appellants. The learned Judges in the High Court were further of the view that though the Local commissioner had assessed "market value" of the property in question at Rs. 10,000/- per marla but keeping in view the provision of Section 23 of the Land Acquisition Act as well as other relevant factors it was fair to assess the same at Rs. 4,000/- per marla. It would be pertinent to mention here that criteria for determination of compensation of land has been laid down in Section 23 of the Land Acquisition Act and it includes, inter-alia, the market value of the land at the date of publication of notification under Section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reasons of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it also includes the damages from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land, etc., meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time.
It would be pertinent to mention here that in the case of Murad Khan v. Land Acquisition Collector (1999 SCMR 1647) after scanning almost all the case law available on the subject, this Court had summarized the matters/factors required to be taken into consideration in determining the amount of compensation and it would be instructive to reproduce the same which read as follows:--
(i) The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No. 54 issued presumably under Section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyses all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.
(iii) Sub-section (1) of Section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take, into consideration the market value, loss by reason of serving such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under Section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits.
(vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hand of the owners.
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser..........this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration.
(xiv) The phrase "market value of the land" as used in Section 23(1), of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration.
It would also be worthwhile to mention here that the principles laid down in the case of Murad Khan (supra), were reiterated and reaffirmed by this Court in the case of Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870). In addition, the following reported judgments may also be referred to in this regard:--
Province of Sindh v. Ramzan & others (PLD 2004 SC 512).
Muhammad Saeed v. Collector, Land Acquisition (2002 SCMR 407).
Nisar Ahmad Khan v. Collector, Land Acquisition (PLD 2002 SC 25).
Collector, Land Acquisition v. M. Ayub Khan (2000 SCMR 1322).
Province of Punjab v. Abdul Majeed (1997 SCMR 1692).
Pakistan Burmah Shell Ltd. v. Province of NWFP (1993 SCMR 1700).
As regards the contention that Local Commissioner could not have been appointed without application by any party and that the report furnished by the Commissioner could not have been taken into consideration in determining the amount of compensation by the Referee Court, it may be pointed out here that legally there is no impediment in appointing a Local Commissioner when the evidence brought on record alone is not capable to resolve the controversy.
It may be mentioned here that in any suit, in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profit, or damages or annual net profits, the Court may, under Order XXVI Rule 9 CPC, issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court and the application of this method has not only been appreciated in determining the amount of compensation but approved in the case of Sarhad Development Authority v. Land-Acquisition Collector (1998 SCMR 730) and Muhammad Saeed & others v. Collector, Land Acquisition (2002 SCMR 407). Reference in this regard may also be usefully made to the following reported judgments:--
Mian Sarfraz Gul v. Collector Land Acquisition (2005 CLC 710).
Syed Aolad Ali Shah Gillani v. Govt. of Azad J&K (1998 CLC 1779).
Muhammad Saeed & others v. Collector Acquisition Land (PLD 1996 Peshawar 22).
Collector, Land Acquisition, Peshawar v. Rokhan and others (PLD 1995 Peshawar 78).
Since primarily it was the duty of the Court to determine the amount of compensation, therefore, a recourse to Order XXVI, Rule 9 CPC could have been made even without an application by any party. The contention, therefore, is devoid of force.
It may be noted here that in Civil Appeal No. 1331 of 2006, which arises out of RFA No. 52/1993, both the Courts below after considering the evidence produced by the parties particularly statements of Malik Ghulam Rasool, AW-1, Malik Dodha AW-2, Allah Wasaya Malik AW-3, Murid Ahmad Khan, respondent, who appeared himself as AW-4, and perusing the relevant documents i.e. copies of the Sale Deeds particularly Exs.P-3, P-4 and P-6, and keeping in view the fact that the property in question was situated in the suburbs of Uch Sharif Gillani City came to the conclusion that amount of compensation of the land at the rate of Rs. 1,000/- per marla was fair, therefore, there appears to be no infirmity in the findings of the Courts below.
In Civil Appeals No. 1332 to 1335 of 2006 and 1466 to 1468 of 2006, which arises out of R.F.A. Nos. 53 to 56 of 1993, too, the Referee Court as well as the learned Judges of the High Court after evaluating the oral evidence i.e. the statements of AW-1 Khawaja Imtiaz Hussain, AW-2 Muhammad Yousaf, AW-3 Sadiq Hussain and AW-4 Akhtar Ali Shah one of the land owners, and after perusing the documentary evidence, particularly Exs. A-1, A-2 and A-3, and also after evaluating the evidence produced by the WAPDA, i.e. statement of RW-1 Muhammad Yaqoob and the documents Ex.R-2 to R-18 came to the conclusion that the land in question was situated in the suburbs of the Uch Sharif city and compensation of the land assessed at Rs. 1,000/- per marla by the Referee Court was fair and just and thus maintained the same, therefore, we see no infirmity in the judgments of both the Courts below.
Since in these cases the learned Judges in the High Court after fully appreciating the entire evidence available on record have assessed the sale price of the lands in question and the findings have also the support of the material placed on record and while determining the amount of compensation the Courts below have also considered potentiality of the land in question and likelihood of its development and improvement, therefore, the impugned judgments, in our view do not suffer from any legal infirmity, so as to call for interference by this Court.
Upshot of the above discussion is that these appeals being misconceived are hereby dismissed. No order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 317
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ch. Ejaz Yousaf & Muhammad Farrukh Mahmud, JJ.
MUHAMMAD MAQSOOD SABIR ANSARI--Appellant
versus
DISTRICT RETURNING OFFICER, KASUR and others--Respondents
Civil Appeal No. 1149 of 2007, decided on 21.8.2008.
(On appeal from the judgment dated 27.3.2007 in W.P. No. 16703/05
passed by the Lahore High Court, Lahore)
Qunun-e-Shahadat, 1984 (10 of 1984)--
----Art. 9--Evidence Act, (I of 1872), S. 126--Communication with client by counsel--Privilege--Disclosure of any communication in evidence--Evidentiary value and effect--Question of--Whether any knowledge which the counsel had acquired as to formation and process of working of the stove--Held: Knowledge acquired by the counsel as to the formation and process of working of the stove amounted to a communication made to him by his client in the course and for the purpose of his employment--Further held: Evidence was inadmissible. [P. 324] A
AIR 1918 Allahabad 38 and AIR 1934 Lah 269, ref.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Scope--Discretionary--Constitutional jurisdiction is discretionary in character and therefore, cannot be invoked by a person who has come to the Court with unclean hands and likewise--None can be allowed to take advantage of his wrong act. [P. 327] B
2007 SCMR 1318; 2007 SCMR 655; 2007 SCMR 729 2007 SCMR 49 and 2006 SCMR 642, ref.
Dr. Babar Awan, Sr. ASC and Mr. Ali Ch., AOR for Appellant.
Mr. Tariq Mahmood, ASC for Respondent Nos. 3 & 4.
Ex-parte for Respondents No. 1-2.
Date of hearing: 15.4.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal with leave of the Court is directed against the judgment dated 27.3.2007 passed by a learned Single Bench of the Lahore High Court, Lahore whereby the appellant's writ petition filed against his disqualification for contesting election against a seat reserved for "peasant", was dismissed.
(a) That nomination of the petitioner was invalid as he was disqualified to contest election against the seat reserved for a "peasant";
(b) That the election of the petitioner was procured on the basis of filing incorrect statement of his assets, etc. and for the same reason the order of the learned Returning Officer dated 16.9.2006 and the District Returning Officer dated 20.9.2005 are upheld; and
(c) Since the petitioner was not qualified to contest the election, result of his elections both as a Member and as a Naib Nazim Zila Council, Kasur were also void.
A cost of Rs. 50,000/- was also imposed on the appellant as according to the learned Judge in the High Court, he i.e. the appellant had misused the Judicial Process of the Court. Resultantly, the concerned authorities were directed to fill the vacancies in accordance with law/Rules. Being aggrieved, the appellant approached this Court by way of CPLA No. 340 of 2007, which was allowed and leave in the following terms was granted:--
It is, inter alia, contended by Dr. Babar Awan, learned ASC appearing on behalf of petitioner that impugned judgement is not in consonance with the provisions as contained in Article 225 of the Constitution of Islamic Republic of Pakistan read with Section 70 of the Punjab Local Government Ordinance, 2001. It is next contended that various factual aspects of the controversy have been dilated upon by the learned High Court in exercise of constitutional jurisdiction and without affording an opportunity of hearing which could not have been resolved without recording evidence. It is pointed out that writ of quo warranto was issued against petitioner without hearing him as such he has been condemned unheard. It is also pointed out that so far as the alleged default is concerned, it is not correct as the petitioner has been finally cleared it on 20.9.2005. It is also pointed out that a line of distinction has to be drawn between pre-election and post-election disputes which aspect of the matter has been ignored by the learned High Court in writ petition filed by the petitioner.
On the other learned counsel appearing for Respondent No. 4 controverted the above contentions and contended that so far as the constitutional jurisdiction of the learned High Court is concerned, it is evident that petitioner himself filed the Constitution petition as such debarred from raising any objection about the jurisdiction.
The jurisdiction of the Court is not governed by the mutual consent of the parties but as per provisions of statute. The petitioner has already been notified as Naib Nazim District Kasur. Be that as it may, the petition is converted into appeal and leave to appeal is granted to consider the above points. To be fixed within two weeks. Meanwhile, the fresh election shall not be held and the schedule announced be kept in abeyance."
Dr. Babar Awan, learned counsel for the appellant has, inter-alia, contended that since Respondent No. 4 Ghulam Ahmad Ansari, was counsel for the appellant in the proceedings before the Commissioner of Income Tax Zone V, Lahore, regarding assessment of the appellant's company, i.e. Gohar Maqsood & Co. and had thus acquired knowledge regarding business carried out by the appellant previously, therefore, he while taking advantage of the same not only himself filed objections before the Returning Officer against the appellant but also prompted and asked the Respondent No. 2 to challenge candidature of the appellant. He added that since the information acquired by Respondent No. 4 as a counsel for the appellant was a "privileged communication", hence the respondent was estopped under the law to disclose the same what to speak of taking advantage and filing objections against the appellant on the basis thereof. He maintained that since the very objections filed by the respondents were not maintainable, having been incompetently and malafidely filed therefore, it could not have been entertained by the Returning Officer and action taken in pursuance thereof was patently illegal rather void. He has further contended that since Respondents No. 3 and 4 were neither voters in the list nor were they contesting candidates, hence, they had no locus standi to object to the nomination of the appellant; that the High Court has gravely erred in law in holding that the appellant was not qualified to contest the election against the seat reserved for "peasant"; that mere fact that the appellant was not mentioned as cultivator in Khasra Girdawri by itself was not a ground for rejection of the appellant's nomination when it was otherwise established on record that he was a "peasant" within the purview of Section 152 read with Section 2(xxvi) of the Punjab Local Government Ordinance, 2001; and that the election of the appellant could not have been set-aside by the Lahore High Court as it was an election-dispute and was resolved by the Election Tribunal.
Mr. Tariq Mahmood, learned counsel for Respondents No. 3 & 4, while controverting the contentions raised by the learned counsel for the appellant has stated that though Respondent No. 4 was previously a counsel for the appellant in some cases but the objection raised by him as well as Respondent No. 3 had no nexus with the same and the knowledge acquired by him in the course of his employment was independent of his engagements. He added that since on the basis of record/documents, it was proved to the hilt that appellant was an industrialist being share holder of a company, therefore, he was not a "peasant" within the purview of Section 152(II) read with Section 2(xxvi) of the Punjab Local Government Ordinance, 2001, and thus was precluded to contest the elections. He, after taking us through the definition of "peasant" as appeared in the Punjab Local Government Ordinance, added that representation to a "peasant" was given in the said enactment in order to accommodate landless cultivators and not the industrialists.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the available record with their assistance, minutely.
In order to supplement his first contention that since Respondent No. 4 was appellant's counsel in the proceedings before the Commissioner of Income Tax, Zone V, Lahore, and thus had acquired certain information regarding business of the appellant which he malafidely used in filing objections against him before the Returning Officer, the learned counsel for the appellant has submitted that perusal of the objections filed by the Respondent No. 4, particularly, the Objection Nos. 2, 3 and 4, indicate that it were raised on the basis of the information acquired by the respondent in the course and discharge of his professional duties as an advocate for the appellant and since under Article 9 of the Qanoon-e-Shahadat Order, 1984 it was a "privileged communication", therefore, it was protected under the law of being communicated or disclosed to some body else or used subsequently particularly against the appellant. He has added that since the Respondent No. 4 had violated the trust reposed in him and had misconducted himself therefore, the objections filed by him as well as the Respondent No. 3, being invalid, had lost their efficacy and therefore, could not have been entertained by the learned Presiding Officer. The entire superstructure raised thereon must collapse. In order to ascertain as to whether or not there is substance in the contention raised by the learned counsel for the appellant, we have ourselves carefully gone through the relevant record. Perusal of Order No. 947769478, dated 26.2.2007 passed by the Commissioner of Income Tax indicates that objector Ghulam Ahmed Ansari had represented the appellant's company i.e. M/s. Gohar Maqsood & Co. as a counsel and was thus fully aware of his business activities/engagements. It would be beneficial to reproduced herein below the said order in extenso, which reads as under:
"IN THE OFFICE OF THE COMMISSIONER OF INCOME TAX, (APPEALS) ZONE-V, LAHORE
ORDER NO. 9477/948 DATE OF ORDER
26.2.2002.
Name and address of appellant; M/s. Gohar Maqsood &
Co. Railway Road
Kasur, Zone Zone-B, Lahore.
National Tax Number. 06-19-0167318
Name of assessing officer, Mr. Liaqat Ali Khan
Assessing Officer Code, S.O.I.T.
Name of Representative Ghulam Ahmad Ansari
Status of Representative ADWAR
Date of Hearing of appeal 20.2.2002
Appeal No. Date of U/S Assessment Income/Loss Revenue
Institution of Years Wealth/penalty Involved
Appeal assessed Rs. Rs.
9477 8.10.2001 63 1997-98 220,000/- 27,500/-
9478 8.10.2001 63 1998-99 220,000/- 27,500/-
APPELLATE ORDER U/S. 132 OF INCOME TAX ORD: 1979
These two common appeals are filed by an individual, and pertains to assessment years 1997-98 & 1998-99, Objections are raised against:--
(i) Ex-parte assessment u/S. 63, not providing sufficient opportunity to the assessee.
(ii) Service of statutory notices, while are denied or effected upon irrelevant persons.
(iii) Estimation of income at Rs. 220,000/- and Rs. 220,000/- being excessive, unjustified, harsh and arbitrary.
These appeals shall be decided through a combined order.
Mr. Ghulam Ahmad Ansari, Adv/AR of the Appellants, attended and pleaded the case as per appeal grounds.
Facts of the case are considered and assessment record is also examined. It is observed that proper opportunity, beside other factors has certainly not been allowed to the appellant. It shall be fair and just, if the assessments in question are set-aside for fresh proceedings with the special reference to allow proper opportunity of being heard to the appellant. Nevertheless, assessee is also directed to make proper compliance of the requirements of the proceedings as to help to arrive at fair and just assessments.
Appeals are decided as indicated above.
Sd/-
(QURBAN ALI BUGTI)
Commissioner of Income Tax/Wealth Tax
(Appeals) Zone-V, Lahore."
"9. Professional communications. No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this Article shall protect from disclosure--
(1) any such communication made in furtherance of any illegal purpose; or
(2) any fact observed by any advocate, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to such fact by or on behalf of his client.
Explanation. The obligation stated in this Article continues after the employment has ceased."
Bare reading of the above provision leads to the inference that the provision in question not only secures the secrecy of professional communication but prohibits in express terms an advocate from disclosing any information, communication, instruction and advice made to him, or received, obtained, and tendered by him during the course of his professional engagement and this prohibition not limited to the knowledge of events or things acquired by him but also extends to facts observed by him in the course and for the purpose of his professional employment.
In the case of Hakam v. Emperor (AIR 1934 Lahore 269), one Mst. Allah Wasai was allegedly enticed away by certain persons and a complaint under Section 498, I.P.C. to the above effect was lodged. During the pendency of the case a suit was brought by Mst. Allah Wasai in the Civil Court for cancellation of her marriage through Lala Asa Nand, a pleader. In the case under Section 498 I.P.C. mentioned above Lala Asa Nand was called as a witness for prosecution and asked if the woman was accompanied by another person when she came to him for the purpose of filing the suit, he stated that she was accompanied by another man. He was then asked who that companion was, the pleader refused to answer this question relying on the privilege conferred on pleaders by Section 126 of the Evidence Act (now Article 9 of the Qanun-e-Shahadat Order, 1984). The Magistrate decided that the privilege claimed extends only to communications by the client or to advice given by him but does not protect the pleader from disclosing the name of the person who accompanied the woman. Petition was filed in the High Court challenging order of the Magistrate. It was held that since identity of the friend of Mt. Wasai was observed by the pleader at the meeting with his client, and that anything observed by the pleader at that meeting was in the nature of a confidential communication which the pleader was not obliged to disclose without the consent of his client, therefore, the impugned order was liable to be quashed.
In the case of Gopilal & others v. Lakhpat Rai and others (AIR 1918 Allahabad 38), in a suit for revocation of a patent in which the question for decision was the formation and process of working of a stove owned and used by the defendant, the plaintiff examined in evidence a vakil who had been employed by the defendant in some previous proceedings and had, in the course and for the purpose of his employment, visited the defendant's premises at the latter's invitation, in order to make himself acquainted with the working of the stove. Question arose as to whether any knowledge which the said counsel had acquired as to the formation and process of the working of the stove, was protected under Section 126 of the Evidence Act. After detailed discussion as to the obligation of the counsel under the relevant provision it was held than the knowledge acquired by the counsel as to the formation and process of the working of the stove amounted to a communication made to him by his client in the course and for the purpose of his employment and therefore his evidence was inadmissible under Section 126. It would be instructive to reproduce herein below the relevant discussion from the said judgment, which reads as follows:--
"Mr. Banerji told us that any knowledge which he had acquired as to the formation and the process of the working of the stove in question was acquired by him only in the course of and for the purpose of his employment as such vakil, The only question therefore which remains is as to whether any communication with the meaning of the section was made to him by his client. The exact fact which he proposed to prove was not disclosed and the nature of the communication was not given. We thought it undesirable to hear the evidence without first deciding whether it could under any circumstances be admissible. We think that as a matter of law it is immaterial whether the communication was verbal, that is to say, by word of mouth, or by demonstration. To our mind if the communication were of such a nature that the client had, for the purpose of enabling his vakil to defend the charge of nuisance, described the formation and the process of the working of the stove in his own language, it would be impossible to contend that such conversation would not be excluded by the rule of professional privilege laid down in S.126. We think it follows that if the client, instead of giving the vakil a verbal description of the process itself, told him to go himself to see it, or pointed it out to him, that would equally be a communication within the meaning of the section.
This view is borne out really by proviso (2) of the section. In England there has been some discussion in the decided cases as to whether the rule of professional privilege applies to facts brought to the knowledge of a professional gentleman by his senses, i.e. facts observed by him; and it was decided, at any rate in one well-known case, that where a matter is in Court, and by his senses the counsel becomes aware that an entry in a book has been fabricated or altered after its production in evidence before the Court, this is a matter which is brought to his senses by observation independently altogether of his client and is a matter which, he is bound to disclose. But the Code says that any fact observed by the vakil in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment is not protected. That clearly indicates that facts observed may be just as much communication as other communication in the ordinary way by word of mouth. The rule is a statutory rule and ought to be strictly applied, for at least two reasons, It is in the interest of the proper and honourable conduct of an honourable profession. If communication coming either directly or indirectly to the knowledge of the vakil or lawyer in the course of and for the purpose of his employment are not protected it is easy to conceive cases in which the vakil might become acquainted with circumstances, for example of crime, which it would be the ordinary duty of a citizen to communicate to the proper authorities, and he would render himself liable for prosecution under the Penal Code for not disclosing such information to the proper authorities. It is clear that professional gentlemen who do their duty ought not to be placed in a position of that kind. Secondly, it is of importance to the public that they should be protected in the right which the law gives them to defend themselves against proceedings of all kinds with absolute freedom, untrammelled by the embarrassment of the possible consequences of failure to disclose the full facts within their knowledge to the expert assistance on which they rely for the conduct of their cases. It would be impossible for the ordinary man to consult a lawyer with anything like confidence, for example, about some machinery or system in his own premises about which he is litigating with a rival in trade, if, when the public authorities threatened him with a case for nuisance, he had to call a lawyer to assist him in answering that charge without knowing whether or not the lawyer might not the next day turn round and present his opponent in the civil suit with all the information which the lawyer had obtained from his otherwise unauthorized visit to his client's premises."
In the case of State Bank of India v. Mrs. J. K. Sohan Singh (AIR 1963 Punjab 27), a commission was issued for examination on interrogatories of an advocate in Pakistan. It was held that since the interrogatories concerned an admission which could not have been received in evidence and it related to a professional communication about which no evidence could have been led under Sec. 126 of the Evidence Act, therefore, the order was not legal.
In the case of Muhammad Yaqoob Khan v. Adalat Khan (1983 CLC 976), an Hon'ble Judge i.e. Mr. Justice Saraf, before elevation, had acted as a counsel for one of the parties, namely, Mst. Feroze Begum, it was held that the obligation laid down in Section 9 of the Qanun-e-Shahadat Order, 1984 continues even after the employment is ceased. It would thus appear that there was a legal impediment for a counsel to divulge any communication or information which he happened to receive from his client during his employment as such.
What to speak of disclosing the information acquired by an advocate in the course of his employment to some body else, in the instant case Mr. Ghulam Ahmad Ansari, has gone to the extent of filing a complaint on the basis of the knowledge acquired by him, in the course of his engagement as an advocate which is evident from perusal of order dated 26.2.2002 reproduced herein above in Para 7, which, in our view, was not only unethical but was in patent violation of Article 9 of the Qanun-e-Shahadat Order, 1984, because the provision in question expressly prohibits an • advocate from disclosing any communication made to him in his capacity as an Advocate for the party.
Perusal of the objections filed by Shaukat Ali Ansari, indicate that they were not only identical but none other than the objections filed by Ghulam Ahmad Ansari himself. It thus leads to the inference that the objections filed by Shaukat Ali Ansari were also based on the information received by Ghulam Ahmad Ansari in the course of his employment as a counsel for the appellant and therefore, the objections filed by him too, were invalid.
In the wake of above, it thus, proceeds that since the objections filed by both the Respondents i.e. No. 3 & 4 were not valid, therefore, it could not have been entertained by the learned Presiding Officer. Proceedings carried out in pursuance thereof were therefore, void and of no legal consequence.
It is well settled that constitutional jurisdiction is discretionary in character and, therefore cannot be invoked by a person who has come to the Court with unclean hands and likewise no one can be allowed to take advantage of his wrong act. In this view we are fortified by the following reported judgments:--
West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) (2007 SCMR 1318).
Inayat Khan & others v. Allah Ditta & others (2007 SCMR 655).
Rehmatullah & others v. Saleh Khan & others (2007 SCMR 729).
Raja Ali Shan v. Messrs Essem Hotel Limited & others (2007 SCMR 741).
Ch. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838).
Muhammad Sharif v. Additional District Judge and others (2007 SCMR 49).
Mauzam Hanif v. Settlement Officer/Collector & another (2006 SCMR 642).
Mohtrama Benazir Bhutto & another v. President of Pakistan (PLD 1998 SC 388).
In view of our above findings, the rest of the contentions raised by the learned counsel for the appellant need not to be attended to.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 328
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Akhtar Shabbir & Sarmad Jalal Osmany, JJ.
MUHAMMAD ILYAS KHAN--Appellant
versus
SENIOR MEMBER, BOARD OF REVENUE NWFP, PESHAWAR
and others--Respondents
C.P. No. 1337 of 2008, decided on 16-10-2008.
(On appeal from the judgment dated 25-09-2008 passed by the NWFP Service Tribunal in Appeal No. 806/2008)
NWFP Civil Servant Act, 1973 (XVIII of 1973)--
----S. 10--Constitution of Pakistan, 1973, Art. 212(3)--Transfer & posting of patwari--Violation of policy--Prior to completion of a period of three years--Validity--Successive transfer of the respondent to three stations within a span of eight months are against the posting/ transfer policy of the Provincial Government, which indicated that a Government servant should not be transferred in ordinary circumstances, prior to completion of a period of three years at one place of posting--Leave refused. [P. 330] A & B
N.W.F.P. Local Government Ordinance, 2001--
----S. 30(3)--Civil servant--Transfer order--Without consulting District Government Rules of Business--Tenure of posting--Local Government Ordinance, has provided the tenure of posting of an officer or official of Government at maximum, as three years but he may be transferred earlier due to exigency of service or in the public interest. [P. 330] C
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Repeated transfer orders from one place of posting to another--Prior completion of period of three years--Question of law of public importance--Maintainability--Dispute raised in petition for leave to appeal relates to an individual grievance and no substantial question of law of public importance is involved to warrant by Supreme Court under Art. 212(3) of Constitution--Leave was refused. [P. 330] D
PLD 1995 SC 530, 2000 SCMR 925, 1991 SCMR 382 and
2000 PLC (C.S.) 312, ref.
Qazi Muhammad Anwar, Sr. ASC and Mr. Arshad Ali Ch. AOR for Petitioner.
Hafiz S.A Rehman, Sr. ASC, Mr. Haroon Rashid, ASC and Mr. Mehr Khan Malik, AOR for Respondent No. 3.
Nemo for Respondents.
Date of hearing: 16.10.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This petition for leave to appeal is directed against the judgment of the NWFP Service Tribunal, Peshawar dated 25.9.2008 passed in Appeal No. 806/2008.
No. 806/2008, which has been accepted, vide the impugned judgment dated 25.9.2008 and his transfer order dated 14.6.2008 and the order dismissing his departmental appeal dated 17.6.2008 have been set aside. Hence this petition.
Learned counsel for the petitioner contended that the respondent was transferred by the competent authority on complaint of `misconduct' in the public interest and the Tribunal illegally set aside his transfer order; that the respondent being a Government servant, under Section 10 of the NWFP Civil Servants Act, 1973, was bound to serve any where in the "Province" and the competent authority was empowered to transfer him any time, any where within its jurisdiction. On the other hand, the learned counsel appearing on behalf of the respondent supported the impugned judgment.
We have heard the arguments of the learned counsel for the parties, perused the record with their kind assistance. The petitioner had been posted as `Patwari' at Patwar Circle, Qazirpur, while the respondent at Patwar Circle, Sarai Saleh, vide order dated 23.10.2007. On 21.11.2007, the respondent was transferred from Patwar Circle, Sarai Saleh to Patwar Circle, Darvesh, from where he was again transferred to Patwar Circle, Qazipur, vide order dated 14.6.2008. The successive transfers of the respondent to three stations within a span of eight months are against the posting/transfer policy of the Provincial Government, which indicated that a Government servant should not be transferred, in ordinary circumstances, prior to completion of a period of three years at one place of posting. It has been observed by this Court in case of Zahid Akhtar Vs. Government of Punjab (PLD 1995 SC 530) that normal period of posting of three years, of a Government servant at a station, as per policy decision of the Government, is to be followed in ordinary circumstances unless for reasons of exigencies of service such policy had to be departed from. Government servant's repeated transfers from one place of posting to another in a span of few months by the orders of concerned Minister and carrying out of such orders by competent authority concerned, were highly unethical and undesirable.
The Tribunal after perusal of the available record has observed that the competent authority has passed the successive transfer orders without consulting the NWFP District Government Rules of Business, 2001. The impugned transfer order of the respondent (appellant before the Tribunal) had been passed during ban period, prematurely and under the political influence, as the copy of the same was sent to the Private Secretary to the Minister for Revenue, N.W.F.P. Sub-section (3) of Section 30 of the N.W.F.P. Local Government Ordinance, 2001 has provided the tenure of posting of an officer or official of the Government to a District Government, at the maximum, as three years, but he may be transferred earlier due to exigency of service or in the public interest.
As to the argument of the learned counsel for the petitioner that the respondent had been transferred by the competent authority on the basis of a complaint of misconduct, suffice it, to observe, that no document is available on the record of this Court to substantiate the same.
Even otherwise, the dispute raised in this petition for leave to appeal, relates to an individual grievance and no substantial question of law of public importance is involved to warrant interference by this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 as laid down by this Court in Muhammad Nasir Khan Vs. Secretary Education, Govt. of Punjab and others (2000 PLC (C.S.) 312), Abdul Haq Vs. G.M. SNGP Ltd. (2000 SCMR 925) and Muhammad Binyamin Vs. WAPDA (1991 SCMR 382), wherein it has very clearly been observed that the contention raised by the petitioner besides being in the nature of an individual grievance and raising no question of law of public importance, disentitled him for grant of leave to appeal.
There is a question of fact involved in the matter and the findings of the Tribunal being a findings of fact, would not call for interference by this Court. Reference in this regard can be made to Muhammad Azim Vs. Chief Engineer Irrigation (1991 SCMR 255), Muhammad Nawaz Vs. Divisional Forest Officer, Islamabad and 2 others (1982 SCMR 880), Arif Ghafoor Vs. Managing Director HMC Taxila and others (PLD 2002 SC 13), Saboor Ahmad Vs. Managing Director, Sui Southern Company Limited and another (2002 SCMR 953) and Faiz Ahmad Vs. Deputy Postmaster General, Lahore and others (1991 SCMR 368). After perusal of the record, we find no illegality, infirmity in the impugned judgment so as to justify interference by this Court under Article 212(3) of the Constitution.
For the foregoing reasons, this petition being devoid of any force is dismissed and leave to appeal refused.
(W.I.B.) Leave refused.
PLJ 2009 SC 331
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Syed Sakhi Hussain Bukhari & Muhammad Farrukh Mahmud, JJ.
DIN MUHAMMAD--Appellant
versus
ABRAR HUSSAIN & another--Respondents
Civil Appeal No. 391 of 2008, decided on 5.11.2008.
(On appeal from the judgment of the Lahore High Court Lahore
dated 14.5.2007 passed in C.R No. 1697/2006)
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Punjab Pre-emption Act, 1991, S. 13--Rejection of plaint--Talb-e-Ashhad--Transfer of property before making Talab--Appellant filed suit on 05-05-2003, whereas respondent has transferred suit land even before Talb-e-Ishad and before institution of suit--Held: Institution of pre-emption suit against a person who was no more vested with title would be nothing but an exercise in futility--Impugned judgment is just and proper. [P. 333] A
Mr. Ibad-ur-Rehman Lodhi, ASC for Appellant.
Kh. Saeed-ul-Zafar, ASC for Respondent No. 1.
Ex-parte for Respondent No. 2.
Date of hearing: 13.10.2008.
Judgment
Syed Sakhi Hussain Bukhari, J.--This appeal with leave of the Court is directed against the judgment dated 14.5.2007 passed by Lahore High Court, Lahore whereby revision petition brought by respondent was accepted.
Relevant facts for the disposal of this appeal are that Muhammad Jameel (Respondent No. 2) purchased suit land vide sale Mutation No. 4564, dated 31.1.2003. Din Muhammad, appellant, filed suit for possession through pre-emption on 5.5.2003 and stated that he had made Talb-e-Muwathibat' on 24.4.2003 andTalb-e-Ashhad' on 30.4.2003. The record shows that Muhammad Jameel (Respondent No. 2) had transferred suit land in favour of Abrar Hussain (Respondent No. l) through registered sale-deed dated 28.4.2003. During pendency of the case Abrar Hussain
(Respondent No. 1) filed application under Order VII, Rule 11 CPC for rejection of the plaint on the ground that he had purchased suit land before
`Talb-e-Ashhad', therefore, plaintiff has no cause of action. His application was accepted on 19.2.2004. The appellant challenged this order in appeal which was accepted on 7.6.2006. The respondent filed revision petition thereagainst which was accepted vide impugned judgment and order of trial Court was restored. Hence this appeal.
We have heard the arguments of learned counsel for the parties and perused the record.
Learned counsel for the appellant submits that appellant had made
Talb-e-Ashhad' on 25.4.2003. On the other hand learned counsel for the respondent submits that according to impugned judgment appellant had madeTalb-e-Ashhad' on 30.4.2003. He has also referred to the reply of application under Order VII, Rule 11 CPC filed by appellant wherein he (appellant) has admitted that Talb-e-Ashhad' was made on 30.4.2003. We have examined the said reply which shows that appellant has admitted that he had issued noticeTalb-e-Ashhad' on 30.4.2003. So it seems that plaintiff/appellant has given incorrect date (25.4.2003) in Para-4 of copy of plaint (Page 49 of the paper-book). Admittedly appellant filed suit on 5.5.2003 whereas Muhammad
Jameel (Respondent No. 2) had transferred suit land in favour of Abrar Hussain
(Respondent No. 1) on 28.4.2003. As such he had sold land even before
`Talb-e-lshhad' and before institution of the suit. So learned trial Court had rightly rejected the plaint. The impugned judgment shows that learned High
Court has decided the revision petition brought by respondents after consideration of each and every aspect of the case and appraisal of entire material available on record. It is a well reasoned judgment. Moreover according to the case of Abdul Yameen Khan v. Ashrat Ali Khan (2004 SCMR 1270), further sale in favour of Abrar Hussain (Respondent No. 1) prior to the institution of pre-emption suit could not be brought within four corners of the principle of lis pendens and since a further sale transaction had already taken place, it was the vendee of that further transaction against whom suit for pre-emption should have been filed. Thus institution of pre-emption suit against a person who was no more vested with title would be nothing but an exercise in futility. So we find that impugned judgment is just and proper. There is no illegality or infirmity in the same so as to warrant interference by this Court. This appeal has no force and the same is accordingly dismissed. No order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 333
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-Ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD AFZAL alias ABDULLAH and another--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 30 to 33 of 2004, decided on 22-04-2008.
(On appeal from the judgment dated 27-06-2004 of the Lahore High Court Lahore passed in Cr. A. No. 393-J and M.R No. 58-T/01)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 22--Identification parade--Evidentiary value--Absence of appearance and specific role in FIR--Held: Absence of such details in FIR militates against bonafides of the prosecution and greatly mars evidentiary value of the test identification parade--When description by appearance of the accused is not given in the report and specific role is not attributed to him, his identification in Court for the first time in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented. [P. 338] A & B
1988 SCMR 557, 2008 SCMR 1221, 1993 SCMR 585 and
1992 SCMR 2088, ref.
Identification Test--
----Evidentiary value--Test was delayed purposely in order to show the accused persons to the identifying witnesses, could not have been ruled out--Evidence of identification was of no help to the prosecution. [P. 339] C
Ocular Evidence--
----Medical evidence being in direct conflict with the ocular evidence, it was not safe to rely on statement of eye-witnesses. [P. 340] D
Ocular Evidence--
----Evidence of identification and medical evidence--Evidence of recovery only, which being purely corroboratory in nature--Alone is not capable to bring home charge against the appellant in the absence of any direct evidence. [P. 340] C
Administration of Justice--
----Principle--Unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be. [P. 340] E
Malik Amjad Parvez, ASC for Appellant (in Cr. A. No. 30/2004).
Mian Asif Mumtaz, DPG Punjab for State (in Cr. A. No. 30/2004).
Mian Asif Mumtaz, DPG Punjab for Appellant (in Cr. A. No. 31/2004).
Malik Amjad Pervez, ASC for Respondent No. 1 (in Cr. A. No. 31/2004).
Mr. M. Javed Sindhu, ASC for Respondent No. 2-3 (in Cr. A. No. 31/2004).
Nemo for Repsondents No. 4-7 (in Crl. A. No. 31/04).
Mr. M. Javed Sindhu, ASC for Appellants (in Cr. A. Nos. 32-33/2004).
Mian Asif Mumtaz, DPG Punjab for State (in Cr. A. No. 32-33/2004).
Date of hearing: 22.4.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals by way of leave are directed against the judgment dated 27.6.2002 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 393-J of 2001 filed by the appellants/accused persons was dismissed and Murder Reference No. 58-T of 2001 was answered in the affirmative.
Briefly stated, facts of the case are that on 24.10.2000 complaint Ex.PB was lodged by one Javed Ahmed with Zulfiqar Ali, ASI, of P.S. Nishatabad, District Faisalabad, wherein it was alleged that in the night between 23 & 24.10.2000, electricity supply line developed some fault whereupon the complainant along with Sagheer Ahmed, Driver and Muhammad Khalid, proceeded to Hajiabad Sub-division in Vehicle No. FDW 6471, to bring WAPDA employees. On their way back, at about 2.00 a.m., near Dhanola, they were intercepted by seven unknown dacoits who were equipped with fire-arms, hatchets and sotas. As the driver stopped the vehicle and tried to turn the same back, one of the culprits fired from driver's side hitting Sagheer Ahmed in his head. The bullet after injuring said Sagheer Ahmed also landed on the neck of the complainant, who at the relevant time "was sitting by the side of the driver. Resultantly, the vehicle went out of control and moved into the fields. All the accused persons then reached there and on gun point snatched away an amount of Rs. 300/- from the complainant and cash as well as documents from Irshad Hussain, Muhammad Shafique, Abdul Ghaffar and Mushtaq Ali and fled away. Sagheer Ahmed was immediately taken to Allied Hospital, Faisalabad, where he succumbed to the injuries. On the stated allegations formal FIR Bearing No. 659 was registered under Sections 302/396/324/249/148/149 and 412 PPC, at P.S. Nishatabad, Faisalabad and investigation was carried out in pursuance thereof. On the completion of the investigation accused persons were challaned to the Court for trial.
Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations leveled against the accused persons produced 12 witnesses in all, whereafter statements of the accused persons were recorded under Section 342 Cr.P.C. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C. On conclusion of the trial the learned trial Court convicted the accused persons and sentenced them to the punishments as under:--
Muhammad Afzal @ Abdullah @ Acchu son of Muhammad Sharif
U/S. 148 PPC 3 years R.I.
U/S. 302(b) 149 Death with direction to pay
PPC compensation of Rs. 1,00,000/-
to the legal heirs of deceased
U/S. 396 PPC Death and to pay fine of Rs.
1,00,000/- or in default to
undergo R.I. for 10 years
U/S. 395 PPC Life Imprisonment
U/S. 324/149 10 years R.I. and to pay fine of
PPC Rs. 50,000/- or in default to
further undergo R.I. for 2«
years.
U/S. 412 PPC 7 years R.I. and to pay fine of
Rs. 20,000/- or in default to
further undergo R.I. for 13/4
years.
u/S. 7-ATA, 97 Death and to pay fine of Rs.
1,00,000/- or in default to
undergo R.I. for 10 years
Muhammad Afzal s/o
Muhammad Aslam, Suhail Abbas, Muhammad Nadeem Muhammad Maajid Muhammad Fayyaz Muhammad Abrar
U/S. 148 PPC 3 years R.I., each
U/S. 302(b)/149 L.I. each and to pay
PPC compensation of Rs. 50,000/-
to the legal heirs of the
deceased, each.
U/S. 396 PPC L.I. each and to pay fine of Rs.
50,000/- or in default to
further undergo R.I. for 7
years, each
U/S. 395 PPC Life imprisonment, each
U/S. 324/149 10 years R.I. each and to pay
PPC fine of Rs. 50,000/- or in
default to further undergo R.I.
for 2« years, each
U/S. 412 PPC 7 years R.I. each (except
Muhammad Nadeem) and to
pay fine of Rs. 20,000/- or in
default to further undergo R.I.
for 13/4 years, each (except
Muhammad Nadeem)
U/S. 7-ATA, 97 L.I. each and to pay fine of Rs.
50,000/- or in default to
further undergo R.I. for 7
years, each
All the accused persons challenged their convictions and sentences by way of Cr.A. No. 393-J of 2001 which was accepted to the extent of accused persons, namely Muhammad Nadeem, Muhammad Maajid, Muhammad Fayyaz and Muhammad Ibrar, and they were acquitted of the charges. Convictions and sentences recorded against the appellants under Section 7 of the Anti Terrorism Act, 1997, and under Sections 302/149, 395 PPC, were also set-aside. Convictions recorded against Muhammad Afzal alias Abdullah son of Muhammad Sharif, Muhammad Afzal son of Muhammad Aslam and Sohail Abbas son of Shafaat Ali, under Sections 396/324/148/149 and 412 PPC were maintained, however, the sentences of life imprisonment inflicted on Muhammad Afzal son of Muhammad Aslam and Sohail Abbas son of Shafaat Ali, under Section 396 PPC were reduced to ten years R.I. with fine of Rs. 50,000/- or in default to further undergo R.I. for 2 years. Convictions and sentences inflicted on all the three above named accused persons under Section 412 PPC were reduced from 7 years R.I. each to that of 3 years R.I. each along with a fine of Rs. 20,000/- each or in default thereof to further undergo R.I. for one year each. Convictions and sentences recorded against all the afore named three accused persons under Sections 324/149 PPC were also maintained however, in case of default, in payment of fine, period of imprisonment was reduced from 2« years to that of 2 years. Sentence of death inflicted on Muhammad Afzal alias Abdullah son of Muhammad Sharif under Section 396 PPC, was also maintained.
It has been contended by the learned counsel for the appellants/accused that since the occurrence took place at night and neither description by appearance of any of the accused persons was given in the FIR nor specific roles were attributed to each of them therefore, identification of the appellants at the test was of no help to the prosecution; that as per evidence on record accused persons prior to the identification parade were shown to the PWs, therefore, their identification subsequently, at the test was of no legal significance; that occurrence took place at night whereas the identification test was conducted in day time; that since PW-7 Mr. Muhammad Kazim Awan, Magistrate, who had supervised the identification test, himself, at the trial, had admitted that the accused persons, prior to identification test had complained to him that they as well as their photographs were shown to the identifying witnesses therefore, identification of the appellants at the test was of no value; that the very fact that the accused persons were initially produced before the Magistrate on 3.11.2000 but the identification test was postponed to 6.11.2000, militates against bona fides of the prosecution; that the evidence of recoveries in the absence of any direct evidence was of no use for the prosecution. The learned counsel maintained that in the circumstances of the case, since identification of any of the culprits was not possible, therefore, the appellants were wrongly convicted for the offence.
Mian Asif Mumtaz, learned Deputy Prosecutor General, Punjab, while controverting the contentions raised by the learned counsel for the appellants has submitted that since charge against the appellants was fully brought home through independent and reliable evidence and ocular evidence was corroborated by the evidence of identification, recoveries and the medical evidence, therefore the appellants were rightly convicted for the offence.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case, minutely with their assistance.
In the instant case the prosecution evidence comprises of the ocular evidence account whereof, at the trial, was furnished by PW-2 Javed Ahmed, PW-4 Irshad Hussain and PW-5 Syed Muhammad Shafique, the evidence of recoveries i.e. .222 bore gun from the possession of appellant Muhammad Afzal son of Muhammad Sharif, along with other articles, i.e. writ watch P-4, Driving License P-5, and a .12 bore gun from the possession of Muhammad Afzal son
of Muhammad Aslam, the medical evidence, chemical examiner's
report, the report of Serologist and the Forensic Science Laboratory report.
In the case of Ghulam Rasul & others v. The State (1988 SCMR 557), Role of accused at the time of commission of the offence was not described by the witnesses, it has held that evidence of witnesses identifying accused in such identification parade had lost its efficacy and therefore could not have been relied upon. In a number of cases it has been laid down by this Court that identification test in the absence of description of the accused in the FIR is of no value. Reference in this regard may usefully be made to the cases reported as (i) Ghulam Qadir v. The State (2008 SCMR 1221), (ii) State/Government of Sindh v. Sobharo (1993 SCMR 585), and (iii) Ismail & another v. The State (1974 SCMR 175).
In the case of Asghar Ali alias Sabah & others v. The State & others (1992 SCMR 2088), it was held that identification of a person in Court produced as an accused months after the occurrence cannot satisfy the requirements of law for proving the identity of the culprit.
It is also explicit on record that prior to holding of the identification test accused persons had complained to PW-7, the Magistrate, who had supervised the identification test that they were shown to the identifying witnesses and the Magistrate in the course of his statement, at the trial, has in unequivocal terms admitted that he had received such complaint. Another fact which impairs evidentiary value to the identification test is that accused persons were produced before PW-7 initially on 3.11.2000 but the test was put off and was conducted on 7.11.2000 as a result of freshly made application dated 6.11.2000 and no reason whatsoever for the delay was shown. In the circumstances the possibility that the test was delayed purposely in order to show the accused persons to the identifying witnesses, could not have been ruled out. The evidence of identification, in the circumstances, was of no help to the prosecution.
Another fact which cannot be lost sight of is that though it is claimed by all the PWs that a single shot fired by one of the culprits killed the deceased besides injuring the complainant yet, the medical evidence belies the prosecution version. Dr. Muhammad Ishaque, who had conducted post-mortem examination on the dead body of deceased Saghir Ahmad, while appearing as PW 8 and opining that cause of death in the instant case was Injuries No. 1 and 3 individually as well as collectively has categorically pointed out that the dead body had the following "three entrance" wounds:--
A lacerated fire-arm entry wound measuring 2.5 cm x 1 cm on the right side of face at the outer angle of right eye with a fire-arm exit 0.25 cm x 0.25 cm roughly circular in shape in the left temporal region. It was about 2.5 cm in front of left ear.
A fire-arm lacerated entry wound 1.00 cm on the right ear lobule with exit on the inner aspect of the lobule with a fire-arm re-entry 0.25 cm x 0.25 cm, just at the angle of the mandible, on the right with no exit.
A lacerated fire-arm entry wound 4.00 cm x 3.00 cm on the right side of head with brain matter visible through the wound with no exit. The entry wound was situated 3.00 cm below and behind the middle third of pinna of right ear."
Thus the medical evidence being in direct conflict with the ocular evidence, in our view it was also not safe to rely on the statements of the eye-witnesses, in the circumstances of the instant case.
After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be.
For the facts and reasons mentioned above, we are satisfied that the occurrence in the instant case has not taken place in the manner as suggested by the prosecution. Prosecution has miserably failed to produce confirmatory evidence in this regard. In this case there is a room for doubt, benefit whereof must go to the appellants. Resultantly, Criminal Appeals No. 30, 32 and 33 of 2004 are allowed. The conviction and sentences of appellants, namely, Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif, Muhammad Afzal s/o Muhammad Aslam and Sohail Abbass s/o Shafaat Ali are set aside. They shall be released forthwith, if not required in any other case. Consequently, Criminal Appeal No. 31 of 2004 is dismissed.
These are the reasons for our short order of even date announced in open Court.
(W.I.B.) Order accordingly.
PLJ 2009 SC 341
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ.
AJMEEL KHAN--Petitioner
versus
ABDUR RAHIM and others--Respondents
Civil Petition No. 29-P of 2008, decided on 20-11-2008 .
(On appeal from the judgment dated 22-01-2008 of the Peshawar High Court, Peshawar passed in W.P No 1560/07)
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Quashment of FIR--Constitutional jurisdiction of High Court--Scope--Function of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function--If a criminal liability is spelt out from facts and circumstances of particular case, accused can be tried upon a criminal charge--Held: Quashment of FIR during investigation tantamount to throttling the investigation, which is not permissible in law--To quash the police investigation on the ground that the case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police. [Pp. 342 & 343] A & B
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Quashment of FIR--Jurisdiction of Court--Held: Investigation stage is outside the purview of the Court and High Court has no power of supervision or control over investigating agencies. [P. 343] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--Power of magistrate to acquit an accused--Validity--Magistrate is given power of acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded he considers that charge is groundless or that there is no probability of the accused being convicted of any offence. [P. 343] D
PLD 1965 SC 287 and 2006 SCMR 276, Ref.
Haji M. Zahir Shah, AOR for Petitioner.
Mr. Muhammad Asif ASC for Respondents No. 1-2.
Nemo for other Respondents.
Date of hearing: 20.11.2008.
Order
Ijaz-ul-Hassan, J.--Leave to appeal is sought against a judgment of the Peshawar High Court, Peshawar dated 22.1.2008, dismissing Writ Petition No. 1560 of 2007, filed on behalf of Ajmeel Khan petitioner, for quashment of FIR No. 336 dated 26.4.2007, registered at Police Station, Pabbi, at the instance of Abdur Rahim complainant for an offence under Section 489-F, PPC.
Briefly stated the facts are, that on 26.4.2007, Abdur Rahim and Qazi Rahman sons of Malik Sher Ahmad Khan, co-villagers of the petitioner, addressed an application to District Police Officer, Nowshera, stating therein that some blank cheques (two in number), issued on behalf of petitioner in favour of Respondent Nos. 1 and 2 have been dishonoured by Bank concerned due to insufficient fund in the account of Jan Muhammad and thus a case under Sections 419/420/421/422 PPC be registered. After due process, a case under Section 489-F PPC, was registered against the petitioner and others through the FIR in question. The petitioner was arrested and subsequently enlarged on bail. The petitioner preferred a writ petition in the Peshawar High Court, Peshawar, which was dismissed as stated and mentioned above, giving rise to the filing of instant petition.
Haji Muhammad Zahir Shah, Advocate for the petitioner, asks for leave to appeal against High Court's decision, contending that petitioner is neither the signatory nor he is the account-holder of the cheques and the registration of the case against the petitioner, is illegal, void and without lawful authority. Adds that the police officers have not acted in accordance with law and have substituted the petitioner for real culprit and FIR is liable to be quashed against him.
Mr. Muhammad Asif, Advocate, appearing on behalf of Respondent Nos. 1 and 2, on the contrary, supported the impugned judgment on all counts maintaining that learned High Court has declined to quash the FIR for valid and cogent reasons, which are not open to legitimate exception.
We have heard at length the arguments of learned counsel for the parties in the light of the material on record.
Needless to emphasise, that functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, If a criminal liability is spelt out from facts and circumstances of a particular case, accused can be tried upon a criminal charge. Quashment of FIR during investigation tantamounts to throttling the investigation which is not permissible in law. However, FIR can be quashed by High Court in its writ jurisdiction when its registration appears to be misuse of process of law or without any legal justification. The police are under a statutory duty under Section 154 of the Code of Criminal Procedure and have a statutory right under Section 156 of the Code of Criminal Procedure to investigate a cognizable offence whenever a report is made to it disclosing the commission of a cognizable offence. To quash the police investigation on the ground that the case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police.
The conduct and manner of investigation normally is not to be scrutinized under Constitutional jurisdiction which might amounts to interference in police investigation as the same could not be substituted by the Court.
There is no cavil about the proposition that if Investigating Officer, after investigation of a case comes to a conclusion that the evidence against the accused is deficient and the Magistrate who is competent to take the cognizance can order for the release of accused upon such report submitted by Investigating Officer.
Section 249-A, Cr. P.C. clearly shows that Magistrate is given power of acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused being convicted of any offence. It has been held by this Court on various occasions that the investigation stage is outside the purview of the Court and High Court has no power of supervision or control over investigating Agencies, which power is vested in it in respect of Courts subordinate to it. M.S. Khawaja v. The State, (PLD 1965 SC 287), Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another, (PLD 1971 SC 677). A similar proposition came up for hearing before this Court in Colonel Shah Sadiq versus Muhammad Ashiq and others, (2006 SCMR 276), in the which the following principle was laid down:
"It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules While exercising equitable jurisdiction which is not in consonance with the law laid down by this Court."
Having considered the matter from all angles, we find no infirmity, legal or otherwise or jurisdictional error, which could justify this Court to interfere in the matter in exercise of constitutional jurisdiction. Once an FIR is registered, the superior Courts, having constitutional, supervisory and inherent jurisdiction, have consistently refrained from directly interfering with police investigation of a criminal case as the Courts could not exercise its control over the investigation, which may be prejudicial to the accused as well as detrimental to the fairness of proceedings, apart from being without jurisdiction.
What emerges from the above discussion is that there is nothing wrong with the judgment of the learned Single Judge by which he had declined to exercise Constitutional jurisdiction at the instance of the petitioner qua the quashment of FIR. The judgment does not, in the aforementioned circumstances, call for interference by this Court.
In this view of the matter, finding no substance in this petition, we dismiss the same and decline to grant leave.
(W.I.B.) Leave refused.
PLJ 2009 SC 344
[Review Jurisdiction]
Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
ALI AHMAD--Petitioner
versus
MUHAMMAD IQBAL--Respondent
C.R.P No. 299 of 2001 in C.A. No. 1455 of 1995, decided on 07-11-2008.
(On review of this Court's judgment dated 31-05-2001, passed in Civil Appeal No. 1455/1995)
Constitution of Pakistan, 1973--
----Art. 188--Review--Scope--Review by its very nature was not an appeal or rehearing merely on the ground that one party or another conceived himself to be dissatisfied with the decision of the Court.
[P. 346] A
PLD 1979 SC 741 and PLD 1962 SC 335, ref.
Mr. Gul Zarin Kiani, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Nemo for Respondent.
Date of hearing: 7.11.2008.
Order
Muhammad Farrukh Mahmud, J.--This petition seeks review of the judgment of this Court dated 31.05.2001 whereby Civil Appeal No. 1455 of 1995 filed by Ali Ahmad petitioner was dismissed.
The petitioner filed a suit for possession through pre-emption of suit land on the basis of his superior right. The transaction on the basis of it, was through exchange mutations while the case of the petitioner was that the mutations were collusive and sham so as to defeat the right of pre-emption of the petitioner.
Keeping in view averments of the parties core issue was framed by the learned trial Court to the effect "whether the impugned transaction is sale and not exchange? OPD". The learned trial Court and the appellate Court concurred that the transaction was that of exchange while the learned High Court affirmed it.
After detailed scrutiny of the evidence on the record and appreciation of law cited at bar, this Court upheld the judgments passed by the learned Courts below.
The learned counsel for the petitioner has reiterated his arguments that the transaction of the suit land amounted to sale and not through exchange and that the mutations relating to exchange of the suit land were sham and were meant only to defeat the right of pre-emption of the petitioner. The learned counsel while relying on the case of Pakistan through Ministry of Finance Economic Affairs and another vs. Fecto Belarus Tractors Limited (PLD 2002 SC 208) submitted that the power of review could be exercised where the Court had over looked some material question of fact and law which would have a bearing on the decision of the case. The learned counsel also referred to the case of Mst. Miraj Bibi vs. Mst. Azim Khatoon and others (1997 SCMR 1892) wherein it was observed that when a transaction was sought to be declared as of sale which has been purportedly described to be otherwise than sale, the Courts were required to attend to the real nature of the transaction".
We have heard the learned counsel for the petitioner at some length and have also gone through the relevant record of the case. It has been noticed by us that the points raised by the learned counsel today have already been discussed and dealt with by this Court in the impugned judgment. As already noted above, the finding of learned Courts below that the transaction of suit land was through exchange mutations, was upheld by this Court. It was observed by this Court in the case of Lt. Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate duty, Government of Pakistan, Karachi etc (PLD 1962 SC 335) as follows:
"This Court is competent, no doubt, to reconsider a question of law previously decided in a subsequent case but this Court has no jurisdiction to sit on appeal over its own judgments".
It was further observed that "A review by its very nature was not an appeal or rehearing merely on the ground that one party or another conceived himself to be dissatisfied with the decision of the Court".
It would be advantageous to reproduce the observations of this Court recorded in the case of Zulfiqar Ali Bhutto vs. The State (PLD 1979 SC 741):
"It is also to be borne in mind that as finality attaches to the judgments delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of re-hearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contentions as were, advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record".
The case laws cited by the learned counsel does not help the petitioner as the case of Pakistan through Ministry of Finance Economic Affairs and another vs. Fecto Belarus Tractors Limited supra, deals with the scope of review while the circumstances of the case titled Mst. Miraj Bibi vs. Mst. Azim Khatoon and others, supra were different. We may add here that in the latter case titled Mst. Miraj Bibi vs. Mst. Azim Khatoon and others, supra it was held by this Court that in order to defend the right of pre-emption, genuine device was no doubt permissible.
The learned counsel has failed to point out any mistake or error apparent on the face of record. In the above noted circumstances we find no force in this review petition which is dismissed.
(W.I.B.) Review dismissed.
PLJ 2009 SC 347
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
Mst. SANOBAR SULTAN and others--Petitioners
versus
OBAIDULLAH KHAN and others--Respondents
Civil Petition No. 470-P of 2006, decided on 30-09-2008.
(On Appeal from the judgment dated 30-05-2006 of Peshawar High Court, Peshawar passed in W.P. No 1069 of 1998)
Inheritance--
----On the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. [P. 351] C
Punjab Urban Rent Restriction Ordinance, 1959--
----S. 13--Civil Procedure Code, (V of 1908), O.XXI, R. 95--Ejectment petition--Purchase of property by tenant--Status--Maintainability of ejectment application--Held: Co-owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share and he would, therefore, be liable to pay compensation to the other co owners for the excess occupied by him--Held: No question would arise of taking proceedings against him under the Rent Restriction Ordinance--As co-owner and judgment debtor, he is liable to be dealt with under Rule 95 Order XXI of CPC.
[P. 351] D
Co-sharer--
----Scope--A co-sharer is entitled to retain the possession of joint property till partition and cannot be ejected in execution of ejectment order which cannot be passed by Rent Controller. [P. 349] B
Co-owner--
----Purchaser of a share out of a joint property having become a co-owner, his statuts as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord.
[P. 349] A
PLD 1975 SC 9, 1971 SCMR 198, 1984 SCMR 741 and
PLD 1991 SC 242, ref.
Mr. M. Essa Khan, ASC for Petitioners.
Mr. Abdul Sattar Khan, ASC for Respondents.
Date of hearing: 30.9.2008.
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar, dated 30.5.2006, whereby Writ Petition No. 1069 of 1998 filed by Obaidullah Khan, Respondent No. 1, assailing the judgments/orders of the Courts below i.e. Rent Controller and Additional District Judge, Peshawar, dated 6.3.1997 and 4.7.1998, respectively, has been accepted.
Facts relevant for the decision of instant petition are, that Mst. Sanober Sultan and her two sisters, Mst. Iqbal Bano and Mst. Razia Bano, petitioners, moved a petition before the Rent Controller, Peshawar, seeking ejectment of Obaidullah Khan and Gulzar Muhammad, respondents, from suit premises on the ground of default in payment of rent, personal bona fide need and subletting. One of the respondents, Obaidullah, appeared in Court and resisted the petition, taking the plea that having purchased share of Amanullah and Rehmatullah, brothers of the petitioners, he had become co-sharer in suit property and ceased to be a tenant under the petitioners. After settlement of necessary issues and recording such evidence as the parties wished to adduce in support of their respective stances, learned Rent Controller, dismissed the petition vide order dated 17.11.1992. On appeal, the case was remanded for fresh decision after refraining issues and recording fresh evidence. On remand, the parties did not lead fresh evidence and relied upon the evidence on record. Resultantly, learned trial Court accepted the ejectment petition, vide order dated 15.6.1994 and directed the respondents to hand over vacant possession of the suit premises to the petitioners within two months. An appeal was preferred there-against before learned District Judge, Peshawar, which was accepted and the case was remanded to trial Court to implement the first remand order and decide the case afresh. The parties were permitted to produce fresh evidence. Petitioners relied on the evidence already recorded while respondent examined Ikhlaq Hussain, Registration Moharrir N.T.PDA, and Ali Akbar, Deed Writer. Learned Rent Controller decided all issues including additional issues in favour of petitioners and allowed the ejectment petition on 6.3.1997. The respondents were given two months time to vacate the premises in question. On appeal, learned Additional District Judge, Peshawar, up held the said findings vide judgment dated 4.7.1998. Feeling dissatisfied, Respondent No. 1, filed writ petition in the Peshawar High Court, Peshawar, which was accepted and concurrent findings of the Courts below were set aside, per the judgment impugned herein.
Mr. Muhammad Essa Khan, Advocate for the petitioners, attempted to argue that judgment of learned High Court, on the face of it, is against law and fact, hence unsustainable, that learned High Court has not properly appreciated the preliminary decree dated 31.10.1993 passed in favour of the petitioners, confirming the ownership and title of the petitioners; that Para 7 of the ejectment petition has not been taken into consideration and that merits of the case have not been discussed and matter has been dealt with in a cursory manner, resulting in complete failure of justice. To substantiate the contentions, reliance was placed on Nazir Ahmad versus Mst. Sardar Bibi (1989 SCMR 913) Syed Izharul Hassan Rizvi versus Mian Abdul Rehman and others (1992 SCMR 1352).
Mr. Abdul Sattar Khan, Advocate representing the respondents, controverted the arguments of learned counsel for the petitioners and supported the impugned judgment more or less on the same grounds incorporated in the judgment itself. To supplement the arguments, he placed reliance on Muhammad Hanif versus Mst. Ahmadi Begum and others, (1996 CLC 137). Muhammad Muzaffar Khan v. Muhammad Yusuf Khan, (PLD 1950 SC 9), Muhammad Nawaz v. Sh. Abdul Latif (1971 SCMR 198), Allah Yar v. Additional District Judge (1984 SCMR 741), Makhan Bano v. Haji Abdul Ghani (PLD 1984 SC 17), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC ???), Mir Salahuddin v. Qazi Zaheerud Din (PLD 1988 SC 221), and Iqbal v. Mst. Rabia Bibi (PLD 1991 SC 242).
It stands established from the material on record that Obaidullah, respondent, purchased the share in the property in suit from the brothers of the petitioners and became co-owner in the property and thus ceased to be a tenant under the petitioners. The submission of learned counsel for the petitioners that tenant cannot deny the relationship despite the purchase of property from one of the owners, is not sustainable. A purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition and cannot be ejected in execution of the ejectment order which cannot be passed by learned Rent Controller under the provisions of Urban Rent Restriction Ordinance. In case of Muhammad Muzaffar Khan v. Muhammad Yusauf Khan (PLD 1959 SC 9), it has been held as under:
"The vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner in an undivided khata, does not become a co-sharer in that khata."
In case of Muhammad Nawaz v. Sh. Abdul Latif (1971 SCMR 198), where a godown was jointly owned by four persons and one of them sold his share to an outsider and the godown was in possession of M as tenant who had sublet the same in favour of R who was a brother of L who had purchased the share referred to above and an ejectment was obtained by the three co-owners which was resisted to by the purchaser of a share in the said godown on the ground that the godown was occupied by his brother as his tenant and therefore, the order of ejectment cannot be executed inasmuch as the ejectment of R will in fact be the ejectment of a co-sharer. Their Lordships have held at page 199 of the report as under:
"In law, a co-sharer in possession of a joint property cannot be evicted without filing a suit for partition. In these circumstances, the High Court was perfectly justified in observing that the Courts below have failed to exercise the discretion vested in them..."
In case of Mirza Adam Khan v. Muhammad Sultan (PLD 1975 SC 9, where a dispute arose as to whether a co-owner who is in possession of the property in excess of his share and who is recorded as a tenant of excess could be ejected from the premises under the provisions of the Urban Rent Restriction Ordinance, 1959. The answer has been rendered in negative and it has been held at Page 14 of the report as under:--
"Relying on Muhammad Abdullah v. Abdul Jabbar, it is submitted by the learned counsel for the respondent that the status of the appellant is to be determined by the true nature of his tenure as a person who has inherited the property under the Muslim Law and not by the extraneous factors of paying rent to another co-owner or to the receiver, or the fact that the commissioner appointed in the partition suit determined the rental value of the portion of the property occupied by the appellant.
We are inclined to agree with this submission. We think that the High Court has rightly observed that on the death of a Muslim intestate his estate devolves upon his heirs who succeed to it in specific undivided shares in proportion to their inheritance, and each heir becomes the owner of a definite fraction of every part of the estate until partition takes place. A co-owner does not, therefore, become a tenant of the other owners, simply by being in possession of property in excess of his own share, and he would, therefore, be liable to pay compensation to the other co-owners for the excess occupied by him. In this view of the matter he does not become a tenant, and no question would arise of taking proceedings against him under the Rent Restriction Ordinance. In this position as co-owner and judgment-debtor, he is liable to be dealt with under Rule 95 of Order XXI."
The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. The petition does not involve any substantial question of law of public importance. Learned counsel for the petitioner has miserably failed to persuade this Court to interfere with the same.
The petition being devoid of merit is dismissed and leave refused.
(W.I.B.) Leave refused.
PLJ 2009 SC 351
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-Ul-Hassan &
Ch. Ejaz Yousaf, JJ.
TAUQEER AHMED KHAN--Appellant
versus
ZAHEER AHMAD and others--Respondents
Crl. A. No. 219 of 2004, decided on 6.11.2008.
(On appeal from the judgment dated 18-09-2003 in Cr. A. No. 357 of 2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 308--Charge of committing qatl-i-amd--Benefit of doubt to co-accused--Conviction and sentence--Respondent/accused to be less than 18 years of age--Reduced the sentence from life imprisonment to seven years rigorous imprisonment as tazir--Challenge to--Applicability and benefit of S. 308 of PPC--Principle--Section 308, PPC is attracted only in the cases liable to qisas in which by virtue of the provisions of Sections 306 & 307 of PPC--Punishment of qisas can not be imposed or enforced and not in the cases in which punishment is awarded as tazir. [P. 354] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 308--Age of 18 years--Entitlement of benefit under Section 308, PPC--Plea of minority--Validity--An inquiry was conducted by Session Judge, regarding age of accused and it was found that accused was not minor and he was 21/22 years of age ate the time of commission of offence--The inquiry as conducted by trial Court, culminating was not proper order which was not challenged--Onus to prove the plea of minority was heavily placed on the shoulder of accused but he had failed to discharge the same by producing cogent and convincing evidence--Held: Mere assertion of the accused that at the time of occurrence he was below the age of 18 years and thus entitled to the benefit under Section 308 P.P.C, without positive attempt on his part to substantiate the same. [P. 355] B, C & D
2003 SCMR 98, 2003 SCMR 855 and 2004 SCMR 4, ref.
Ch. Afrasiab Khan, ASC & Ch. Akhtar Ali, AOR for Appellant.
Syed Zafar Abbas Naqvi, ASC for Respondent No 1.
Ch. Munir Sadiq, D.P.G Punjab for State.
Date of hearing: 29.10.2008.
Judgment
Ijaz-ul-Hassan, J.--Zaheer Ahmed-respondent herein and his father Muhammad Rafique co-accused were tried by learned Sessions Judge, Jhelum for the charge of committing `Qatl-i-Amd' of Khalid Mehmud, sister's son of complainant Tauqeer Ahmed Khan. On the conclusion of trial, learned Trial Judge, vide judgment dated 12.6.2002 extended benefit of doubt to co-accused Muhammad Rafique and acquitted him, while Zaheer Ahmad was convicted under Section 302(b) PPC and sentenced to life imprisonment. He was also directed to pay an amount of Rs. 100000/- as compensation to legal heirs of the deceased in terms of Section 544-A Cr. P.C or in default whereof, to undergo further simple imprisonment for six months. Benefit of Section 382-B Cr. P.C, was also granted.
Zaheer Ahmed respondent, challenged his conviction and sentence in the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No. 357 of 2002. A learned Single Judge in Chambers, vide judgment dated 18.9.2003, while deciding the appeal, holding the respondent to be less than 18 years of age and by exercising powers under the provision of Section 308 PPC, reduced the sentence from life imprisonment to seven years rigorous imprisonment as `Tazir'.
Complainant Tauqeer Ahmed Khan, appellant herein, feeling aggrieved, has filed instant Appeal No. 219 of 2009 with leave of the Court, to call in question impugned judgment dated 18.9.2003 passed by learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi.
On 23.9.2004, this Court granted leave to appeal in the following terms:--
"After hearing the learned counsel for the petitioner at length and going through the record carefully, we grant leave to appeal only to ascertain as to whether the observation of the learned Single Judge to the effect that the respondent at the time of occurrence was less than 18 years of age and impugned judgment is sustainable".
Succinctly, the prosecution story, as disclosed by complainant Tauqeer Ahmed Khan in his statement (Ex.PG), is to the effect that on the fateful day i.e. 28.8.2001, Khalid Mehmood deceased was grazing cattle near a place known as "Neroly Fountain", when at about 9.00 a.m., accused Zaheer Ahmed armed with hatchet, appeared there and at the instigation of his father Muhammad Rafique, co-accused, inflicted hatchet blows on various parts of the body of Khalid Mehmood, resulting in his death. On raising hue and cry by complainant, PWs Faiz Ahmed and Amjad Farooq, grazing cattles near the place of occurrence, were attracted to the spot and witnessed the incident. After accomplishing the mission, respondent made good his escape. A dispute over street between Muhammad Sharif, father of deceased and his brother Muhammad Rafique co-accused, was stated to be the motive, leading to the incident.
ASI Amin Beg, (PW.12) recorded the statement (Ex.P.G/1) of Tauqeer Ahmed Khan complainant near Raja Hotel, Pind Dadan Khan, same day and HC Muhammad Khan (PW.3) recorded FIR No. 118 dated 28.8.2001 under Sections 302/109 PPC. After usual investigation, both the accused were challaned and sent up to the Court of Sessions to face trial. The prosecution in order to prove its case produced as many as 12 witnesses including the eye-witnesses namely complainant Tauqeer Ahmed Khan (PW.7) and Faiz Muhammad (PW.9), who reiterated the contents of FIR. Dr. Khalid Mehmud Farooqi, (PW. 1) Medical Officer, THQ Hospital, Pind Dadan Khan, conducted the postmortem examination of the deceased on 28.8.2001 and noted, number of injuries on the person of the deceased, caused by sharp edge weapon. Accused Zaheer Ahmed and co-accused Muhammad Rafique in their statements under Section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. Zaheer Ahmed produced his birth certificate (Ex.PB) showing his date of birth as 20.3.1984. However, no evidence was produced in defence. Upon consideration of material placed before him, learned trial Judge convicted and sentenced Zaheer Ahmed, as stated and mentioned above.
In support of the appeal, Ch. Afrasiab Khan, Advocate contended that impugned judgment is patently against law and the weight of evidence on record; that there was no cogent and convincing evidence on the file in proof of the fact that at the time of occurrence, respondent was below the age of 18 years and that in case of "Qatl-i-Amd" if the punishment of life imprisonment is awarded as `Tazir' under Section 302(b), PPC, Section 308, PPC is not attracted. Concluding the arguments, learned counsel submitted that respondent committed the murder of his real cousin, a young man of 21/22 years of age, in a brutal manner and he deserved major penalty of death.
Syed Zafar Abbas Naqvi, Advocate, for the respondent and Ch. Munir Sadiq, learned Deputy Prosecutor General for the State, on the other hand, while controverting the arguments of learned counsel for the appellant, supported the impugned judgment maintaining that at the time of occurrence respondent was minor and a juvenile offender, thus his case would be covered under Section 7 of the Juvenile Ordinance 2000 and plea of minority was rightly taken into consideration and believed by learned High Court for the purpose of giving him the benefit under Section 308 PPC. To reinforce the contention our attention was invited to the birth certificate (Ex.PB) of accused Zaheer Ahmed, Nikahnama of his parents and statement of Secretary Union Council, Bawaal.
We have heard at length the arguments of learned counsel for the parties in the light of the material on record.
A careful examination of the different provisions of law would show that Section 308, PPC is attracted only in the cases liable to qisas' in which by virtue of the provisions of Sections 306 and 307 PPC, the punishment ofqisas' cannot be imposed or enforced and not in the cases in which punishment is awarded as
tazir'. In the light of law laid down by this Court, we are of the view that in the facts of the present case, Section 308, PPC is not attracted as respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and liable to punish provided under Section 308 PPC, rather the true concept is that
Section 308, PPC will operate only in the cases which fall within the ambit of
Sections 306 and 307, PPC in which either offender is not liable toqisas' is not enforceable.
On the re-appraisal of evidence and circumstances of the case, we find that respondent having not taken the plea of minority through out cross-examination on the prosecution witnesses and taken up this position for the first time in the statement under Section 342 Cr.P.C, plea was liable to be rejected. According to identification slip appended with the record, which was prepared on 9.9.2001, the age of respondent was mentioned as 21/22 years. It may be pertinently mentioned here that an inquiry was conducted by learned Sessions Judge, Jhelum, regarding age of respondent and it was found vide order dated 18.5.2002 that respondent was not minor and he was 21/22 years of age at the time of commission of offence. The said inquiry as conducted by trial Court, culminating into a proper order which was not challenged during trial by respondent, was conclusive and final as to determination of age. An analysis of the evidence would lead to no other result except holding that at the time of occurrence respondent was not minor and the plea of minority was nothing but an after thought. The onus to prove the plea of minority was heavily placed on the shoulders of respondent but he has failed to discharge the same by producing cogent and convincing evidence. The evidence produced by the respondent in this regard is discrepant and falls short of the required standard. The mere assertion of the respondent that at the time of occurrence he was below the age of 18 years and thus entitled to the benefit under Section 308 PPC, without a positive attempt on his part to substantiate the same, is of no consequence. Jehanzeb and another versus The State and others, (2003 SCMR 98), Muhammad Akram versus The State, (2003 SCMR 855), Muhammad Ajmal versus The State, (PLD 2003 SC 1), Ziaullah versus Najeebullah and others, (PLD 2003 SC 656) Ghulam Murtaza versus The State, (2004 SCMR 4), Iftikhar-ul-Hassan versus Israr Bashir and another, (PLD 2007 SC 111).
In view of the above, this appeal is allowed, impugned judgment dated 18.9.2003 passed by learned Lahore High Court, Rawalpindi Bench, in Criminal Appeal No. 357/2002 is set-aside and judgment of the trial Court dated 12.6.2002, is restored. Benefit of Section 382-B Cr.P.C, shall remain available to respondent.
Above are the detailed reasons of our short order dated 29.10.2008 announced in open Court.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 356
[Appellate Jurisdiction]
Present: M. Javed Buttar & Nasir-Ul-Mulk, JJ.
WAZIR KHAN and others--Appellants
versus
QUTAB DIN and others--Respondents
Civil Appeal No. 1876 of 2001, decided on 15.10.2008.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 19-07-2001 passed in RSA No. 66 of 1985).
Limitation Act, 1908 (IX of 1908)--
----Arts. 142 & 144--Suit for declaration and possession--Applicability and distinction--Burden of proof--Forcibly dispossession by defendant after restoration of mutations by Commissioner--Mutations were fraudulently entered and attested--Validity of mutations--Suit for barred by time--Suit for possession could have been competently brought within twelve years from the date on which order of restoration was passed--First Appeal was dismissed while second appeal was allowed--Questions for determining before the Courts that of limitation and genuiness of the sale of land through mutations--A suit for possession of immovable property when the plaintiff has been dispossessed is covered by Art. 142 and the time is to be reckoned from the date of the plaintiffs dispossession--Art. 144 of Limitation Act, is a residuary article for the class of suits or possession, as it is applicable when special provisions for such a suit is otherwise not provided--Period of twelve years for a suit under Art. 144 of Limitation Act, is reckoned from the date when the defendant's possession becomes adverse to the plaintiff--Burden of proving dispossession within twelve years of filing of the suit under Art. 142 of Limitation Act, lies on the plaintiff whereas the onus under Art 144 lies on the defendant to establish that he remained in adverse possession for more than twelve years--Appeal was dismissed. [P. 360] A
Limitation Act, 1908 (IX of 1908)--
----Art. 42--Dispossessed within twelve years of the filing of suit--Onus to prove--Inconsistency regarding dispossession and documentary evidence--Appellant had failed to discharge the burden that he had been dispossessed within the period of 12 years from date of filing the suit is liable to be dismissed on such score alone. [P. 361] C
Limitation--
----Question of--Whether suit was time barred--Suit would be within time if it was filed within twelve years of the plaintiff's forcible dispossession had gone on to examine the date of dispossession.
[P. 360] B
1995 SCMR 522, ref.
Mian Allah Nawaz, ASC for Appellants.
Mr. Muhammad Anwar Bhaur, ASC and Mr. Shaukat Ali Mehr, ASC for Respondents.
Respondents No. 7, 19, 24 & 25, Exparte.
Date of hearing: 15.10.2008.
Judgment
Nasir-ul-Mulk, J.--The dispute between the parties is over a piece of land measuring 178 kanals situated in Mauza Adlana Dhuddi, Tehsil Minchinabad, District Bahawalnagar, originally owned by Wazir Khan and ostensibly transferred by him in favour of one, Qutab Din, through a Mutation No. 293 attested on 21.9.1959. By another Mutation No. 296, attested on 23.2.1960, the entire land was sold by the said, Qutab Din to Sardar Ali, Aswar Khan and Zulfiqar Khan, sons of Luqman. Subsequently the later effected two exchange Mutations No. 463 and 464. It was in the year 1971 that, Wazir Khan, applied to the District Collector for cancellation of the Mutations No. 293 and 296. The application was allowed and the said mutations were set aside by order of 12.5.1971. However, the said order was reversed by the Additional Commissioner on 30.6.1971 and the mutations in question were restored. A review petition filed by Wazir Khan, before the Additional Commissioner, failed on 22.3.1972. He then filed a civil suit on 28.10.1978 in the Court of Civil Judge, Bahawalnagar, alleging forcible dispossession by the defendants after restoration of the mutations by the Additional Commissioner on 30.6.1971. Wazir Khan averred that he had never sold the land, nor did he receive any sale consideration and that the mutations in question were fraudulently entered and attested. Qutab Din, Sardar Ali and others as well as the subsequent transferees through exchange mutations, were arrayed as defendants, all of whom contested the suit. Apart from defending the validity of the mutations, the defendants pleaded that the suit was barred by time. The Civil Judge held the suit to be within time on the ground that since it was suit for possession, the same could have been competently brought within twelve years from the date on which the Additional Commissioner passed the order of restoration which, according to the plaintiff, was followed by forcibly dispossession by the defendants. On merits, the trial Court held that the sale of the land by Wazir Khan, in favour of Qutab Din, defendant was not proved. The defendants' appealed against the judgment and decree which was dismissed on 8.6.1985 by the Additional District Judge wherefrom they filed a second appeal before the High Court. The appeal was allowed on 19.7.2001, the Court holding the suit to be barred by time in that the sale mutations, dated 21.9.1959 and 23.2.1960, were sought to be challenged by the plaintiff on 28.10.1978. Even on merits, the learned Judge-in-Chambers was of the opinion that the plaintiff had failed to substantiate the allegation of fraud by the defendants. Resultantly, the judgments and decrees of the two Courts were set aside and the suit of the plaintiff dismissed on 4.7.2001. Leave to appeal against the said judgment and decree was granted to the legal heirs of Wazir Khan, who by then had passed-away, on 28.8.2001 to consider the following contentions :--
"(a) Whether in view of the judgment of this Court reported as Abdul Majeed and 6 others versus Muhammad Subhan and 2 others (1999 SCMR 1245), the learned High Court has wrongly applied Article 120 of the Limitation Act instead of applying Article 142 thereof?
(b) Whether the learned High Court has disturbed the concurrent findings recorded by the trial Court and the First Appellate Court on Issues Nos. 6 and 7 without any material available on record to reverse these findings?
(c) Whether the learned High Court has accepted the evidence produced by the respondents illegally and without assigning any reason?"
Mr. Mian Allah Nawaz ASC appeared for the legal heirs of Wazir Khan, appellant, and Mr. Muhammad Anwar Bhaur, ASC represented the respondents.
The learned counsel for the appellants addressed arguments on the findings of the Courts on Issue Nos. 1, 6 and 7 being crucial for determination of the lis. On Issue No. 1, pertaining to the question of limitation, the learned counsel referred to the impugned judgment to point out that the learned Judge-in-Chamber without discussing the relevancy of Article 120 of the Limitation Act, which contains residuary provision, concluded that the said and not Article 142 of the Limitation Act was applicable to the case. Further that the impugned judgment on the issue of limitation is self contradictory in that the discussion on the issue proceeded on the premises that the time would run against the plaintiff from the order of the Additional Commissioner restoring the mutations, whereas in the conclusion, the time has been reckoned from the date of sale mutations of the years 1959 and 1960. The learned counsel further argued that the learned Judge-in-Chamber had erred in not following the principle laid down by this Court in the case of "Ali Muhammad v. Qaisar Mehmood Shah (1991 SCMR 1114), where it was held that in a suit for recovery of possession the relief regarding setting aside of mutation should be treated ancillary and thus, such a suit for the purpose of limitation would be considered as one for possession and thus fall under Article 144 of the Limitation Act.
On merits, the learned counsel argued that the learned Judge in the High Court reversed the concurrent findings of facts of the two Court without discussing the evidence on record. It was maintained that the defendants had failed to produce the original vendee, Qutab Din, from whom they drive title, in support of the Sale Mutation No. 293. That even otherwise, the defendants had not been able to produce sufficient evidence in support of the sale of land by Wazir Khan. The learned counsel placed further reliance upon "Noor Muhammad v Abdul Qadeem (1995 SCMR 522) and Muhammad Ali v Hassan Muhammad (PLD 1994 SC 245)".
For the respondents, the learned counsel referred to the Jammabandi and the Khasra Girdawari as well as the statement of DW3 Aswar Khan, defendant, in order to establish that the possession of the suit land was delivered to the defendants soon after the attestation of the mutations in the year 1959 and 1960, contrary to the allegation of dispossession of the plaintiff in the year 1971. The learned counsel pointed out that the trial as well as the First Appellate Court did not discuss the facts on record relevant to the issue of limitation, thus, warranting interference by the High Court.
The two questions for determination before the Courts below as well as before us are that of limitation and the genuiness of the sale of the land through Mutations No. 293 and 296. The first question being crucial and much discussed by the Courts as well at the bar before us, we would like to straightaway advert to the same.
The trial as well as the appellate Court had proceeded on the premises that since the suit was one for possession, the same could have been instituted within twelve years of the plaintiffs dispossession. On the other hand, the learned Judge in the High Court did not go into the question as to whether the time limitation prescribed for declaratory suit (Article 120 of the Limitation Act) or suit for possession (Article 142 of the Limitation Act) was applicable to the facts of the case but declared the suit time barred on the ground that the cause of action had accrued to the plaintiff from the dates of the Sale Mutations No. 293 dated 21.9.1959 and 296 dated 23.2.1960.
A controversy was raised at the bar, arising from the impugned judgment, as regards the nature of the suit. We perused the contents of the plaint and found that though the suit is titled simply as one for possession, however, in the relief sought at the end of the plaint in addition to prayer for possession, declaration for setting aside the two mutations has also been sought. Having said that, this controversy, as will be seen, is not relevant for the purpose of determining the issue of limitation. We intend to examine the question on the premises that it was a suit for possession and, therefore, could have been brought within twelve years of the plaintiff dispossession, which is also the case of the plaintiff/appellant.
The two relevant provisions in the Limitation Act for filing suit for possession are, Articles 142 and 144. The learned counsel for the appellant has pressed into service the later. A suit for possession of immovable property when the plaintiff has been dispossessed is covered by Article 142 and the time is to be reckoned from the date of the plaintiff's dispossession. Article 144 is a residuary article for the class of suits for possession, as it is applicable when special provision for such a suit is otherwise not provided. The period of twelve years for a suit under Article 144 of the Limitation Act is to be reckoned from the date when the defendants' possession becomes adverse to the plaintiff. The burden of proving dispossession within twelve years of filing of the suit under Article 142 lies on the plaintiff whereas the onus under Article 144 is on the defendant to establish that he remained in adverse possession for more than twelve years, (see "Noor Muhammad v Abdul Qadeem (1995 SCMR 522)" ibid.
The appellants had alleged dispossession by the respondents and had consequently prayed for possession of the suit land. Their case was therefore, squarely covered by Article 142 of the Limitation Act. In that view of the matter, the onus lay on the appellants to establish that they were dispossessed within twelve years of the filing of the suit.
The trial Court has while discussing Issue No. 1 as to whether the suit was time barred, after holding that the suit would be within time if it was filed within twelve years of the plaintiff's forcible dispossession, had gone on to examine the date of dispossession. However, the Court misdirected itself by examining the question on the premise that the burden was on the defendant to establish that possession was delivered to him at the time of Mutation No. 293. The Court then simply referred to the statements of PW1 and PW2 who had alleged forcible dispossession 9/10 years preceding the date of making their testimony. From this, it was concluded that the defendants had dispossessed the plaintiff from the suit property soon after 22.3.1972 when the mutations were restored by the Additional Commissioner. The Additional District Judge, in appeal, had hardly discussed this important question of the date of dispossession and assumed that dispossession had taken place after the order of the Additional Commissioner as is evident from the following remarks :--
"He, (the plaintiff) was actually dispossessed after the appeal of the defendants/appellants was accepted by the learned Additional Commissioner, Bahawalpur on 22.3.1972."
Thus, it will be seen that the trial Court had wrongfully placed the burden on the defendants as to the date of dispossession and the Appellate Court simply proceeded on unfounded assumption. Interestingly, the High Court also did not give much thought to this aspect and computed the time limitation from the date of attestation of the two mutations of 1959 and 1960.
Thus, we need to examine whether the plaintiff has discharged the burden of establishing that he was forcibly dispossessed from the suit property within twelve years of the filing of the suit as required by Article 142 of the Limitation Act. In his plaint, the plaintiff had alleged forcible dispossession of the suit land by the defendants upon restoration of the mutations in favour of the defendants by the Additional Commissioner on 30.6.1971. He has not given the exact date of dispossession. However, in his testimony on 30.1.1983 recorded as PW3 before the trial Court, the plaintiff, Wazir Khan, after stating that the defendants had forcibly dispossessed him 10/11 years earlier, averred that it was only after forcible dispossession that he learnt about the disputed mutations and, therefore, applied to the Additional Deputy Commissioner for their cancellation. This statement is in conflict with the averment in the plaint that the plaintiff was dispossessed after the restoration of the mutations by the Additional Commissioner, whose order was obviously made after the decision of the Additional Deputy Commissioner. Be that as it may, the plaintiff had not given any specific date either in the plaint or in evidence of his dispossession. One also fails to understand as to how the plaintiff could not give the exact date of such an eventful day of dislodging of the plaintiff by the defendants of a huge chunk of 178 kanals of land by force, which obviously would have required tremendous effort backed by considerable manpower. No details have been provided of the event resulting in loss of possession by the plaintiff.
Although, the burden was on the plaintiff to prove the date of his dispossession, the defendants had produced sufficient evidence in the shape of Khasra girdawari as well as jamabandi relating to the period prior to 1971, showing that the defendants and not the plaintiff remained in possession much before that year. In view of the inconsistency in the plaintiff's case regarding his dispossession and the documentary evidence produced by the defendants, we are constrained to hold that the plaintiff/appellant had failed to discharge the burden that he had been dispossessed within the period of 12 years from the date of filing the suit in the year 1978. The appellants' suit is, therefore, liable to be dismissed on this score alone.
True that the High Court did not comprehensively examine the findings of the two Courts on merits as to whether, Wazir Khan, plaintiff, had sold the property to the defendants but it will not be necessary for us to go into this question as we have already found that the plaintiff's suit was barred by time under Article 142 of the Limitation Act.
For the foregoing reasons, the appeal is dismissed with no order as to cost.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 362
[Appellate Jurisdiction]
Present: M. Javed Buttar, Zia Perwez & Mian Hamid Farooq, JJ.
SHAMS-UD-DIN--Appellant
versus
MUHAMMAD SHAHBAZ QAMMAR and 2 others--Respondents
Crl. A. No. 254 of 2005, decided on 29.5.2008.
(On appeal from the Judgment dated 3.10.2003 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 388/2001)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 308 & 34--Constitution of Pakistan, 1973, Art. 1852(2)--Leave to appeal--Conviction sentence awarded by the trial Court was set aside by High Court--Appeal against acquittal--Appreciation of evidence--Held: Case of the prosecution is duly supported by the dying declaration of deceased in which she narrated the entire story about the incident--Specific motive in the instant case as the husband of the deceased lady, as he contracted second marriage as a consequence whereof she was not enjoying cordial relations with him--Motive coupled with circumstantial evidence has been established--Deceased suffered severe burns, the question of holding a pen will not arise, therefore, her inability to sign the statement cannot be made a ground for acquittal--Consequential effect cannot be ignored so as to set aside the judgment based evidence on mere hypothetical assumptions as to her putting thumb mark on the complaint and failure to inscriber her signatures, indeed the accused are entitled to benefit of doubt but such doubt has to be reasonable and rational and not hypothetical and whisperical in utter disregard to the facts of the case, positive evidence available on record--Appeal was allowed.
[Pp. 364 & 365] A, B & C
Ch. Afrasiab Khan, ASC for Appellant.
Ch. M. Sadiq Warriach, ASC for Respondent No. 1.
Nemo for Respondent No. 2.
Mian Asif Mumtaz, DPG for State.
Date of hearing: 29.5.2008.
Judgment
Zia Perwez, J.--This Criminal Appeal is directed against the judgment dated 3.10.2003 of the learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No. 388/2001 preferred by Respondents Nos. 1 and 2 was allowed and they were acquitted.
Leave to appeal was granted by this Court on 5.8.2005 to examine as to whether learned High Court reversed the judgment dated 13.1.2001 passed by learned trial Court whereby respondents were convicted/sentenced under Section 308/34 PPC, without taking into consideration the incriminating evidence available on record, contrary to the principle laid down in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) Iftikhar Hussain and others v. The State (2004 SCMR 1185).
Deceased Shaheen Kosar lodged FIR No. 324 dated 6.8.1999 at Police Station Margallah, Islamabad under Sections 324/34 PPC. She alleged that Respondent No. 1 Muhammad Shahbaz Qammar husband of the deceased poured kerosene oil upon her and put her on fire with the help of his father Qammar-ud-Din and brother Iftikhar Ahmed (Iftikhar Qammar) co-accused. When she was on fire Muhammad Shahbaz Qammar accused made his father Qammar-ud-Din and Iftikhar ran away from there. Muhammad Shahbaz Qammar accused then took her to Capital Hospital Islamabad, where she was hospitalized for one week. She was threatened by the accused not to give any statement against him, therefore, she could not make any statement due to fear. On 3.8.1999 at about 2.00 a.m. Muhammad Shahbaz Qammar accused and his father moved her to village Chiti Sheikhan, District Sialkot at the house of Riaz Qammer elder brother of Muhammad Shahbaz Qammar accused. In the meantime, on information that his daughter was missing her father Shams-ud-Din and brother Ghulam Muhammad made inquiries to trace her. They went to said village and after locating brought the deceased from there. She was shifted to District Headquarters Jhelum for medical treatment where she died subsequently. Her statement was recorded by Mushtaq Ahmed SI/SHO. The statement of the deceased was sent to Police Station, Margallah, Islamabad and was treated as a complaint.
The Additional Sessions, Judge, Islamabad took cognizance in pursuance of the report under Section 173 Cr.P.C and framed charge under Sections 302/34 PPC against Muhammad Shahbaz Qammar, Iftikhar Qammar, Qammar-ud-Din & Mst. Alia Naheed wife of Shahbaz Qammar.
The prosecution examined Dr. Zulfiqar Hussain Shah DHO (PW-1), Muhammad Arshad LHC (PW-2), Dr. Ghulam Hussain DMS, DHQ, Jhelum (PW-3), Mushtaq Ahmed SI (PW-4), Shams Uddin (PW-5), Ghulam Muhammad (PW-6), Lady Dr. Sarwar Jan (PW-7), Mushtaq Ahmed (PW-8), Wahid Ahmed (PW-9), Muhammad Akram Draftsman (PW-10), Muhammad Akram ASI (PW-11), Muhammad Afzal SI (PW-12), Akhtar Niqash Draftsman (PW-13), and Muhammad Ashraf SI (PW-14). Dr. Kaleem Tariq was given up as having been won over by the accused while Naeem Akmal, Mst. Mumtaz Begum and Nasir Uddin PWs were given up as un-necessary. Dr. Kaleem Tariq was examined as Court Witness on the application of the accused. On conclusion of trial, the learned trial Court, found Muhammad Shahbaz Qammar and his father Qammar-ud-Din guilty under Section 308/34 PPC for Qatl-e-Amd of Mst. Shaheen Kosar and sentenced both of them to pay Rs. 300,000/- each as diyat in default be kept in jail till the realization of diyat amount. They also sentenced to undergo RI 10 years each. The benefit of Section 382-B Cr.P.C was also extended to them by the learned trial Court. The co-accused Iftikhar Qammar and Alia Naheed were acquitted by giving benefit of doubt. The respondents/co-accused being aggrieved of the judgment of learned trial Court filed Criminal Appeal No. 388/2001 before the learned High Court which was allowed and they were acquitted from the charge. Hence this appeal.
We have heard the learned counsel for the parties and have perused the record.
The case of the prosecution is duly supported by the dying declaration of Mst. Shaheen Kosar in which she narrated the entire story about the incident. The fact of burning is duly supported by medical evidence which is furnished by Dr. Sarwar Jan (PW-7). The deceased was kept in Capital Hospital Islamabad from 28.7.1999 to 3.8.1999. There is specific motive in the instant case as the husband of the deceased lady, the said respondent Muhammad Shahbaz Qamar had contracted second marriage as a consequence whereof she was not enjoying cordial relations with him. He took her deceitfully to his house and poured kerosene oil upon her and set her on fire due to which she died later on. In our opinion, the motive coupled with circumstantial evidence has been established. In the case of Ghulam Sikandar (supra) held that this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion.
In the case of Iftikhar Hussain (supra) this Court has held as follows:--
"It is well settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under Section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two view are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another versus Mamaraz Khan and others (PLD 1985 SC 11) that the Appellate Court seized with the acquittal appeal under Section 417, Cr.P.C. is competent to interference in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally. We have noted with concern that learned High Court in the impugned judgment has not applied these principles in the case in hand for the propose of making interference in acquittals order dated 25.7.1981 passed by learned trial Court."
To arrive at a judicious decision, it is necessary to consider and appreciate the evidence in its true perspective. The evidence available on record cannot be ignored and disregarded. The deceased suffered severe burns on her body including arms having suffered severe burns, the question of holding a pen will not arise, therefore, her inability to sign the statement cannot be made a ground for acquittal. The consequential effect cannot be ignored so as to set aside the judgment based evidence on mere hypothetical assumptions as to her putting thumb mark on the complaint and failure to inscribe her signatures. Indeed the accused are entitled to benefit of doubt but such doubt has to be reasonable and rational and not hypothetical and whisperical in utter disregard to the facts of the case, positive evidence available on record and the principles as laid down in the cases of Ghulam Sikandar & Iftikhar Hussain (supra), which resulted in serious miscarriage of criminal justice. Accordingly, we set aside the impugned judgment and restore the judgment of the learned trial Court.
For the foregoing reasons, this Criminal Appeal is allowed.
(W.I.B.) Crl. Appeal accepted.
PLJ 2009 SC 366
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J, Ijaz-Ul-Hassan & Ch. Ejaz Yousaf, JJ.
GUL DAST KHAN--Appellant
versus
STATE--Respondent
Criminal Appeal No. 307 of 2008, decided on 7.11.2008.
(On appeal from the judgment dated 21.5.2008 of the Lahore High Court, Multan Bench, Multan passed in Crl. A. No. 49 of 2007)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 353--Anti Terrorism Act, 1997, S. 7--Arms Ordinance, (XX of 1965), S. 13(2)--Criminal Procedure Code, (V of 1898), S. 382--Conviction and sentence recorded against accused by trial Court--Challenge to--Recovery of huge quantity of arms and ammunition from secret envities of motor car--Appreciation of evidence--Mere presence of the appellant in motor car is not sufficient to connect him with the offence unless the prosecution brings material that he had the knowledge of concealment of illicit arms and ammunitions in car--Omission on the part of investigation officer to find out the owner of the car, from which the alleged weapons have been recovered--No explanation for such omission has been furnished--Arms and ammunitions recovered, were not sent to Fire Arms Expert to ascertain as to whether they were in serviceable condition or--Vehicles have not been hit--No one sustained injuries from either side and no empty has been recovered from spot--Held: Prosecution has miserably failed to bring charges home to the appellant beyond any reasonable doubt, therefore, benefit of slightest doubt must be extended to the appellant without reservation--Appeal allowed.
[Pp. 368, 369 & 370] A, B, C, D & E
Mr. Nazir Ahmad Bhutta, ASC and Ch. Muhammad Akram, AOR for Appellant.
Mian Asif Mumtaz, Dy. P.G. for State.
Date of hearing: 7.11.2008.
Judgment
Ijaz-ul-Hassan, J.--Appellant Gul Dast Khan son of Abdul Muhammad, aged about 65 years, resident of Sher Kera, District Peshawar, was tried by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, on the allegations of having, on 14.2.2007, at about 11.30 p.m., made murderous assault on the members of police party and found in possession of arms and ammunitions. On completion of trial, learned trial Judge, vide judgment dated 19.7.2007, convicted the appellant under Section 353 PPC read with Section 7 of Anti-Terrorism Act, 1997 and sentenced him to suffer two years RI. The appellant was also convicted under Section 13(2) of the Arms Ordinance (XX of 1965) and sentenced to undergo seven years RI. Both the sentences were directed to run concurrently with benefit of Section 382 Cr. P.C. However, the appellant was extended benefit of doubt and acquitted of the charge under Section 324 PPC.
The appellant, challenged his convictions and sentences through Criminal Appeal No. 49 of 2007 in the Lahore High Court, Multan Bench, Multan, which was dismissed per judgment impugned herein, giving rise to the filing of instant appeal, with leave of the Court granted on 17.9.2008.
The prosecution story in brief is, that on 14.2.2007, a police party headed by ASI Muhammad Amjad Khalid and others, laid `Nakabandi' on Muzaffar Garh-Jhang road. In the meanwhile, a motorcar bearing Registration No. IDB-3743, was sighted coming. The driver of the car was given signal to stop but instead of slowing down the speed, he accelerated the same. The car was chased. The car riders resorted to firing. The police party also fired in retaliation. The motorcar was intercepted at some distance. The driver of the car later on, identified as Muhammad Javed son of Jan Muhammad resident of Dara Adam Khail, Peshawar, alighted from the car and made good his escape and disappeared in the nearby sugarcane fields. An old man of 65 years of age, was found sitting on front seat, on asking he disclosed his name as Gul Dast Khan. The search of the car led to the recovery of huge quantity of arms and ammunitions, detailed in the report. The investigating Officer seized the arms and ammunitions and the car through recovery memos Ex.PB and Ex.PC. The accused was arrested and a case was registered vide FIR No. 18/2007 dated 15.2.2007, at Police Station, Rungpur District Muzaffar Garah, under Sections 324/353/186 PPC, Section 13(2) of the Arms Ordinance, 1965 read with Section 7 of Anti-Terrorism Act, 1997. After finalization of the investigation, accused was challaned to Court to face trial. The accused denied the charges, professed innocence and claimed trial. The prosecution in order to prove its case, examined four witnesses namely S.I. Atta Hussain, (PW.1), ASI Muhammad Amjad Khalid, (PW.2), Constable Shehzad Nazir, (PW.3) and S.H.O. Ashiq Hussain, (PW.4). The accused in his statement under Section 342 Cr.P.C, denied the whole incriminating material put to him and maintained that he had no knowledge of arms and ammunitions being kept in the secret cavities of the motorcar. He also denied having fired at the police party. The accused did not appear in the witnesses-box in terms of Section 340 (2) Cr.P.C. and produced his pensinary papers etc. in defence.
Mr. Nazir Ahmad Bhutta, Advocate for the appellant, in support of the appeal, assailed the impugned judgment on the ground that the trial Court as well as High Court, have not properly appreciated the evidence and in consequence thereto, a wrong conclusion qua the guilt of the appellant was drawn; that there was no cogent or concrete evidence produced by the prosecution whereby the appellant could be convicted; that appellant had no nexus with the transportation of arms and ammunitions and took lift from Muhammad Javed, driver of car to reach his destination; that there is nothing on the file to sow that appellant being associate in the crime, had the knowledge of arms being kept in the secret cavities of the vehicle; that the provisions of Section 103 Cr. P.C, had been seriously violated and that in the light of facts and circumstances of the case, the prosecution has not been able to prove the case against the appellant beyond any reasonable doubt.
Mian Asif Mumtaz, learned Deputy Prosecutor General for the State, on the other hand, controverted the arguments of learned appellant's counsel, supported the impugned judgment on all counts maintaining that prosecution has brought sufficient material on file connecting the appellant with the commission of crime; that appellant has failed to show any ill-will or motive on the part of the police to falsely implicate him in the case and that keeping in view the huge quantity of arms and ammunitions from the car in question, it cannot be said that the same were planted by the police. The learned counsel also contended that the plea raised by the appellant, regarding taking lift, stands belied by host of circumstances and has been rightly disbelieved. Concluding the arguments, learned counsel submitted that both the Courts below have properly appreciated the evidence and came to the right conclusion, calling for no interference by this Court.
We have given due consideration to the arguments of learned counsel for the parties and have pursued the evidence with their able assistance.
No doubt it is true that apprehension of the appellant at the spot and recovery of huge quantity of arms and ammunitions from secret cavities of the motor-car in question has not been denied but it is equally true that mere presence of the appellant in motorcar is not sufficient to connect him with the offence unless the prosecution brings material that he had the knowledge of concealment of illicit arms and ammunitions in car. The possibility of the appellant having no hand in the affair and taken lift from Muhammad Javed, driver of the motorcar, cannot be excluded in the circumstances of the case. It may be noted here that driver of the motorcar is stated to have stepped down the car and succeeded to make good his escape and take refuge in the nearby sugarcane field. The raiding party surrounded the field for three days, but failed to apprehend the driver. This conduct on the part of the police is highly deplorable and not beyond approach. It leads to no other conclusion except holding that real culprit was let off by the police and the appellant was implicated in the case, for reasons not far to seek.
There is another element in the case, which creates even great difficulty namely omission on the part of the Investigating Officer to find out the owner of the car, from which the alleged weapons have been recovered. No explanation for such omission has been furnished. The Investigating Officer in law was required to find out the whereabouts of the owner of the car, which he has failed to do so for reasons best shown to him. It may not be out of place to mention here that case property has neither been exhibited nor produced at the trial, causing dent in the prosecution case.
Adverting to the objection regarding non-compliance of the provisions of Section 103, Cr. P.C., we find that violation of requirement of Section 103, Cr.P.C, would make recovery unreliable. Arms and ammunitions recovered, were not sent to Fire Arms expert to ascertain as to whether they were in serviceable condition or not. Such lapse on the part of Investigating Officer was also fatal to prosecution case and would nullify entire exercise. Truly, where circumstances of the case make it impossible to procure two private persons from public and the evidence of policemen does not suffer from any legal or factual infirmity the same can be accepted, but in the present case, situation is altogether is different. Despite prior information, independent and disinterested witnesses from locality have not been associated with recovery proceedings. Mst. Bakht Bano and another versus Allah Yar and others, (1986 SCMR 1483) and State through Advocate-General, Sindh versus Bashir and others, (PLD 1997 SC 408), and State through Advocate-General, Sindh versus Bashir and others, (PLD 1997 S.C. 408).
During chase of the motorcar, the occupants of the car are alleged to have fired at the police party in order to foil bid of the police to apprehend them. The police party also fired in self defence. Surprisingly, both the vehicles have not been hit. No one has sustained injuries from either side and no empty has been recovered from spot. It may be pertinently mentioned here that after apprehension, personal search of the appellant was made and nothing was recovered from his possession, however, subsequently a bullet was shown to have been recovered from the pocket of the appellant. This is a clear padding on the part of the prosecution, which cannot be lost sight of. This improvement has been made for not other reason, but to persuade the Court that appellant had joined hands with the principal accused Muhammad Javed in the firing at the police party.
Pursuant to the above discussion, the prosecution has miserably failed to bring charges home to the appellant beyond any reasonable doubt, therefore, benefit of slightest doubt must be extended to the appellant without any reservation. The impugned judgment is outcome of misreading and non-reading of evidence and learned trial Court as well as learned High Court have failed to appreciate the evidence in its true perspective. The appeal is allowed, as a result whereof the appellant is directed to be released forthwith, if not required or involved in any other criminal case.
Above are the detailed reasons of our short order dated 7.11.2008.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 370
[Review Jurisdiction]
Present: Abdul Hameed Dogar, C.J, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
AHMAD NAWAZ--Petitioner
versus
STATE--Respondent
Crl. M.A. No. 365 of 2007 & in Jail Petition No. 96 of 2005, decided on 12.11.2008.
(On review from the judgment dated 11-12-2006 passed by this Court in J.P. No. 96/2005)
Constitution of Pakistan, 1973--
----Art. 188--Pakistan Penal Code, (XLV of 1860), Ss. 302/109--Review--Plea of minority--Principle--Contention raised for the first time through the instant review petition regarding age of the petitioner as well as that the petitioner has acted under the influence of his father never raised earlier, before any Court--Held: Belated plea is irrelevant to the review petition. [Pp. 373 & 375] A & C
Criminal Trial--
----Plea of minor--Vanished--Petitioner was serving in army at the time of commission of the offence, hence the plea that he was minor stands vanished because a minor cannot render service in army--Held: Contention on its face appears to be devoid of force. [P. 374] B
2006 SCMR 652 & 1985 SCMR 165, ref.
Mr. Muhammad Anwar Khan, ASC for Petitioner.
Ch. Munir Sadiq, D.P.G Punjab for State.
Nemo for Complainant.
Date of hearing: 10.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--This review petition is directed against the judgment dated 11.12.2006 passed by this Court, whereby Jail Petition No. 96 of 2005 filed by the petitioner was dismissed and conviction and sentences recorded against the petitioner by the trial Court and upheld by the Lahore High Court, were maintained.
Facts of the case, in brief, are that on 30.11.1998 complaint was lodged by Fateh Sher, father-in-law of the petitioner at Police Station Chikrala, District Mianwali, wherein it was alleged that the complainant Fateh Sher along with Muhammad Javed and Muhammad Shafique, were on the said date coming back from a funeral. When they reached near Government Secondary School, suddenly the petitioner armed with .12 bore gun came there and raised lalkara that Muhammad Javed, deceased, would be taught a lesson for causing knife injury to Allah Nawaz, brother of the petitioner. The petitioner fired a shot which landed on forehead of the deceased causing his death instantly. He also fired at the complainant but he was narrowly escaped. It was also alleged that the PWs Khan Muhammad and Nasrullah went to the house of Gulbaz where, he was saying to his sons, Ahmad Nawaz, the petitioner and Allah Nawaz to take revenge from Muhammad Javed deceased for causing injury to Allah Nawaz.
On the stated allegations, formal FIR Bearing No. 67 of 1998 dated 30.11.1998 was registered against the petitioner and his father, namely, Gulbaz at the said police station under Sections 302/109 PPC and investigation was carried out in pursuance thereof. On completion of the investigation both the accused persons were challaned to the Court for trial. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused persons examined eleven witnesses in all, whereafter co-accused persons were examined under Section 342 Cr.P.C. The petitioner in his above statement took the plea of alibi and stated that he at the relevant time was on duty at Gujranwala Cantt. The accused persons failed to lead any evidence in their defence or to appear as their own witnesses in terms of Section 340(2) Cr.P.C. On conclusion of the trial, the Court convicted the petitioner under Section 302-B PPC and sentenced him to death vide judgment dated 21.10.2000. He was also directed to pay a sum of Rs. 100,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default thereof to further undergo six months R.I. Co-accused Gulbaz, father of the petitioner, was, however, acquitted of the charge under Section 109 PPC.
Against his conviction and sentence the petitioner preferred appeal Bearing No. Cr.A. No. 1637 of 2000 before the Lahore High Court, Lahore. Murder Reference Bearing No. 635 of 2000, for confirmation of the death sentence, was also sent by the trial Court. A Division Bench of the Lahore High Court, while maintaining conviction and sentence of the petitioner dismissed the appeal filed by him, answering the Murder Reference in the affirmative. Being aggrieved, the petitioner approached this Court through Jail Petition Bearing No. 96 of 2005 which was dismissed vide judgment dated 11.12.2006, hence this review petition.
It would be pertinent to mention here that the instant Review Petition was initially filed by Mr. M. Asghar Rokkhri, learned ASC through Mr. A.H. Masood, A.O.R. Along with this review petition an application bearing Cr. Misc. A. No. 365 of 2007 seeking permission to file and argue the review petition by Mr. M. Asghar Rokkhri, ASC, in place of Mr. Muhammad Anwar Khan, learned ASC who had appeared and argued the main petition, was also filed. Now since Mr. Muhammad Anwar Khan, learned ASC has himself appeared and argued this review petition, therefore, the said misc. application has become infructuous.
It has been mainly contended by the learned counsel for the petitioner that since the very fact that the petitioner, at the time of occurrence, was a minor and his age, as per certificate attached with the review petition, at the relevant time was just 17 years 3 months and 21 days, could not be brought into the notice of this Court at the time of hearing of the Jail Petition, therefore, the impugned judgment requires review. It is further his case that since the petitioner had acted under the influence of his father Gulbaz Khan, therefore, it being a strong mitigating circumstance, the petitioner deserves a lesser sentence. Reliance has been, placed on the cases reported as (i) Mahmood Rashid (2003 SCMR 581), (ii) Liaqat Shah (1985 SCMR 1415), (iii) Mst. Hafeezan (1995 SCMR 256), and (iv) Mst. Hayyat Bibi (1976 SCMR 128). Having been questioned as to why if the petitioner and his father were residents of Chikrala, District Mianwali, the birth certificate produced by him was issued by the Secretary Union Council, Chak No. 215, RB, Madina Town, District Faisalabad, learned counsel stated that perhaps father of the petitioner at the time of petitioner's birth was residing at Faisalabad, therefore, the certificate was obtained from Faisalabad.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, on the other hand, while controverting the contention raised by the learned counsel for the petitioner has submitted that since the plea regarding minor age of the petitioner was never raised before the trial, appellate or even before this Court at the time of hearing of the Jail Petition, therefore, the petitioner by his conduct is now estopped to raise the same at this belated stage which otherwise appears to be after thought. Likewise the plea that the petitioner, in committing murder, acted under the influence of his father too, was neither raised nor substantiated at the trial, therefore, it was devoid of substance.
We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also perused the record of the case with their assistance, minutely.
Admittedly, the contentions raised for the first time through the instant review petition regarding age of the petitioner as well as that the petitioner had acted under the influence of his father, were never raised earlier, before any Court. Though it has been objected to by the learned counsel for the State that at this belated stage the petitioner, by his conduct, is estopped to take a somersault yet, we, in the interest of justice and in order to find out as to whether there is substance in the contentions, are inclined to consider the same on merits.
It is explicit on record that petitioner at the time of occurrence was married because FIR Ex. PG was registered on the complaint of Fateh Sher, his father-in-law and he was also serving in the army, at the relevant time.
So far as the contention regarding age of the petitioner is concerned, though it has been pleaded that the petitioner, at the time of occurrence, was a minor and therefore death sentence could not have been inflicted on him, yet, we are afraid the argument cannot prevail for the reasons firstly, that the plea was never raised earlier and secondly that the plea of alibi was taken at the trial and it was specifically pleaded that since the petitioner at the relevant time i.e. commission of the offence, being an army personnel, was on duty in his regiment at Gujranwala Cantt, therefore, he was not involved in the offence, but the plea was not believed. Question No. 8 and answer thereto, which is reproduced herein blow, for ready reference is indicative of the stand taken by the petitioner:--
"Q.8. Have you to say anything else?
Ans: I am innocent. Prior to the registration of the case, I was on leave and I was seen by the complainant party in my village 4/5 days prior to the occurrence. Three days prior to the alleged occurrence, I had gone to my Company at Gujranwala Cantt. and there I met Soobedar Ashraf Khan for consulting him to get my remaining period of leave cancelled. Soobedar Muhammad Ashraf Khan told me there that it is not possible for the office to cancel your leave. I then went to Rawalpindi to see my friend there and on 5.1.1998, I joined my duty in my Regiment at Gujranwala Cantt. I was informed about the present case at Gujranwala. Prior to 21.12.1998, nobody approached my officers or myself for my arrest, I and my father have been involved by the complainant party due to suspicion and enmity because Muhammad Javed deceased was done to death in the darkness of the night near Abadi Kaluwal and the complainant party in collusion with the I.O. fabricated the story and involved me and my father in this case falsely."
From perusal of the above answer it stands established that the petitioner was serving in the army at the time of commission of the offence, hence the plea that he was a minor, stands vanished because a minor cannot render service in the army, hence the contention on its face appears to be devoid of force. Further in the statement of the petitioner recorded on 5.1.2000 under Section 342 Cr.P.C. his age has been mentioned as 30 years and it has also been written therein that he was an army personnel, therefore his age at the time of occurrence, on 30.11.1998, as per record was about 28 years. In the case of Ijaz Hussain v. The State (2002 SCMR 1455), it was held that if special plea of minority is taken by the accused then the burden shall be on him to establish that he was a minor at the time of commission of the offence. In the said judgment it was further held that if remains unrebutted, presumption of correctness would be attached to the age given in the said statement of the accused under Section 342 Cr.P.C. as it forms part of judicial record.
"Q.4 It is in the prosecution evidence that two days before this occurrence Gulbaz your co-accused instigated you to commit the murder of Muhammad Javed and that in prosecution of the said abetment you committed the murder of Muhammad Javed deceased.
Ans: It is incorrect."
Hence, he now is estopped to take a summersault and set up a new case in defence. It is well settled that belated plea is irrelevant to the review petition. Reference in this regard may usefully be made to the cases of (i) Major (Retd.) Barkat Ali & others v. Qaim Din and others (2006 SCMR 562), and (ii) Government of Punjab v. Munawar Sultana & others (1985 SCMR 165). Thus this contention too is without force.
(W.I.B.) Review dismissed.
PLJ 2009 SC 375
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabbir & Mian Hamid Farooq, JJ.
TAJ MUHAMMAD KHAN (deceased) through L.Rs. and another--Petitioners
versus
Mst. MUNAWAR JAN and others--Respondents
Civil Petitions No. 109 & 110 of 2009, decided on 2.2.2009.
(On appeal from the judgment of the Peshawar High Court, Abbottabad Bench dated 18.12.2008 passed in Civil Revisions No. 415 & 416/2006).
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Common impugned judgment--Identical questions of law and facts--Challenged the validity, legality, correctness of the mutations--Shari shares--Entitlement to inherit share out of ancestral property left by predecessor--Divergent pleadings--Revenue officers while attesting the mutations, have not fulfilled the requirements prescribed in S. 42 of Land Revenue Act, at the time of sanctioning the mutations--Donor/vendor had not been identified by lambardar of the village and mutations were not sanctioned in the estate. [P. 379] A
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42(7)--Scope--Requirement for attestation--Validity--Requirement for attestation of mutations as per provisions of S. 42 of Land Revenue Act, is only the presence of two respectable persons, preferably of these mentioned in S. 42(7) of Land Revenue Act.
[P. 379] B
Words and Phrases--
----`Estate'--Definition of the word estate as given in the Land Revenue Act, would mean an area for which a separate record of rights has been prepared, or which has been treated as a separate unit for purpose of assessment of land revenue. [P. 380] C
Words and Phrases--
----"Estate"--The word estate would mean not only a particular village but that village also which is included as a unit for purpose of assessment of land revenue. [P. 380] D
Mutations--
----Fraud and misrepresentation--Validity--Two mutations were the result of fraud and misrepresentation and donor did not appear before Revenue Officer for attestation of the mutations--Identification by two respectables of area. [P. 380] E
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 42(7)(8)--Signatures of witnesses--Mutations--Requirements--Identification of the person--At time of sanctioning of mutation, any lambardar or any member of the local council, can identify the vendor or donor, but not necessary lambardar or member of union council of that village or mauza--Held: Mutations had been sanctioned in accordance with required procedure provident in S. 42 of Land Revenue Act. [P. 380] F
Constitution of Pakistan, 1973--
----Art. 185(3)--West Pakistan Land Revenue Act, (XVII of 1967), S. 42--Leave to appeal--Mutation--Shari shares--Entitlement to inherit share out of ancestral property--Two separate civil suits--Challenging the validity, legality correctness of mutations--Suits were filed after about four years of death of predecessor who lived about 3/4 years after sanctioning of the mutation in favour of two daughters who had served him in old age--Mutation was not challenged during his life time--Defendants successfully proved their assertion and transfer of land in question by production of oral as well as documentary evidence--Held: Petitioners have failed to prove their cases--No illegality, infirmity, jurisdictional, defect, misreading or non-reading of evidence by Courts below which could persuade to inter with impugned judgment--Leave refused. [Pp. 380 & 382] G & N
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--West Pakistan Land Revenue Act, 1967--S. 42--Mutations--Challenge to--Transactions were based on fraud--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default or undue influence and in all other cases in which particulars may be necessary beyond such are exemplified in forms particulars with dates and item necessary shall be stated in the pleading. [P. 381] H
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--Particulars with dates and item necessary shall be stated in the pleading--Plaint had specifically taken the plea of fraud, misrepresentation, fabrication but have neither mentioned the ingredients of fraud nor led any evidence to prove as to how respondents committed fraud with them--Held: If a plea has not been taken in plaint, no amount of evidence can be looked into upon such pleadings not specifically taken up in plaint. [P. 381] I & J
Fraud--
----Ingredients--Legal partition--He who alleges a fact has to prove the same and ingredients of fraud have to be narrated and stated by the person alleging the same. [P. 381] K
Pleading--
----Allegations--In pleadings general allegations, however strong may be the words in which they are stated, are insufficient even to amount loan averment of fraud, meaning thereby vague allegations in the plaint are not enough. [P. 382] L
Leave to Appeal--
----Failed to discharge by producing sufficient convincing evidence--Where in plaint neither particulars of fraud had been mentioned nor evidence led in support--Onus to prove fraud--Suit was dismissed and Supreme Court refused leave to appeal--Held: Onus to prove fraud and misrepresentation was on plaintiffs who had miserably failed to discharge by producing sufficient convincing evidence. [P. 382] M
PLD 2003 SC 688, PLJ 2005 SC 390 & PLJ 2006 SC 458, rel.
Mr. Khalid Rehman Khan Qureshi, ASC and Ch. Akhtar Ali, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 2.2.2009.
Judgment
Muhammad Akhtar Shabbir, J.--This judgment will dispose of Civil Petitions No. 109 and 110 of 2009 as the same have arisen out of common impugned judgment and involve identical questions of law and facts.
The facts giving rise to the present petitions are to the effect that late Amir Bostan Khan, owner of immovable property, fully described in the plaint, transferred the Haveli through gift Mutation No. 1666 dated 9.7.1986 and a portion of agricultural land through sale Mutation No. 1749 dated 14.2.1987, in favour of his two daughters namely, Mst. Ashraf Jan and Mst. Munawar Jan. On his death, his third daughter, Mst. Zaiwar Jan and his nephew, Taj Muhammad Khan filed two separate civil suits challenging the validity, legality, correctness of the said mutations, claiming that they being Sharai sharers of late Amir Bostan Khan, were entitled to inherit their share out of this ancestral property left by their predecessor and the gift and sale mutations purportedly executed by late Amir Bostan Khan in favour of his two daughters/Respondents No. 1 and 2 were false, fake, fraudulent, fictitious and ineffective qua their rights. The suits were contested by the defendants/respondents. On the divergent pleadings of the parties, the learned trial Court framed various issues, recorded evidence of the parties, pro and contra, and vide two separate judgments dated 30.4.2005 decreed the suits. Feeling aggrieved, the defendants/ respondents preferred two separate appeals which came up for hearing before an Addl. District Judge, Haripur, who vide his two separate judgments dated 4.10.2006 and 26.9.2006, respectively, accepted the same, set aside the findings of the trial Court and dismissed the suits. The petitioners in both the petitions, assailed the validity of the said judgments of the appellate Court through Civil Revisions No. 415 and 416 of 2008 which were dismissed by a learned single Judge of the Peshawar High Court, Peshawar, vide the common impugned judgment.
Learned counsel for the petitioners contended that the suits filed by the petitioners had been validly decreed by the trial Court and the appellate Court while setting aside the said judgment had not assigned sufficient reasons; that the appellate Court and the High Court have not adverted to the provisions of Section 42 of the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Act); that Amir Bostan Khan was an old and sick person and was not identified by the lambardar of the deh and the mutations have not been attested in open assembly of the residents of the estate, where the property in dispute is situated; that the onus to prove the validity of the mutations (Exh. DW1/1 and DW1/2) was on the beneficiaries thereof/respondents and they have miserably failed to prove the same in accordance with the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Ordinance) and that the petitioners being daughter and nephew of the deceased, are entitled for inheritance of his property. He placed reliance on Muhammad Akram and another Vs. Altaf Ahmad (PLD 2003 SC 688), Arshad Khan Vs. Mst. Resham Jan (PLJ 2005 SC 390), Nasrullah Khan Vs. Rasul Bibi (2001 SCMR 1156) and Mst. Nusrat Zohra Vs. Mst. Azhara Bibi (PLJ 2006 SC 458).
We have heard the arguments of the learned counsel for the petitioners, perused the record with his kind assistance. As to the argument of. the learned counsel for the petitioners that the Revenue Officers while attesting the mutations, have not fulfilled the requirements prescribed in Section 42 of the Act and at the time of sanctioning the mutations, Amir Bostan Khan, the donor/vendor had not been identified by the lambardar of the village and the mutations were not sanctioned in the concerned estate. From perusal of the mutations in dispute, it reveals that the same had been attested in open assembly and at the time of sanctioning of gift mutation, Amir Bostan Khan, the owner of the property had been identified by two persons i.e. Pir Altaf Hussain, Chairman Zakat and Ushar Committee and Inayat Ullah Khan, both land owners in the deh. Sub-section (7) of Section 42 of the Act enshrines as under:--
"Except in case of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations."
Sub-section (8) of the said Section further envisages as under:--
"an inquiry or an order under sub-section (6) shall be made in the common assembly in the estate to which the mutation, which is the subject matter of the inquiry, relates."
Minute scrutiny of the documents reveals that Gift Mutation No. 1666 was sanctioned in presence of Pir Altaf Hussain, Chairman Zakat & Ushar Committee and Inayat Ullah Khan, both land owners in the concerned deh while Mutation No. 1749 had been sanctioned in presence of Malik Abdul Sattar, Lambardar village Nehang and Muhammad Yousaf son of Mahmood Khan, a resident of the concerned deh. He appeared in the Court as DW2 and admitted that the mutation was attested in the open assembly where about 300/400 people of the village were present. The requirement for attestation of mutations as per the provisions of Section 42 of the Act is only the presence of the two respectable persons, preferably of those mentioned in sub-section (7) of Section 42 of the Act. The mutations were sanctioned in open assembly in the estate. The word "estate" means any area--
(i) for which a separate record of rights has been made; or
(ii) Which has been separately assessed to land revenue; or
(iii) Which the Board of Revenue may, by general rule or special order, declare to be an estate;"
The definition of the word estate' as given in the Act would mean an area for which a separate record of rights has been prepared, or which has been treated as a separate unit for purpose of assessment of land revenue, or which the Government has by general rule or special order declare to beestate'. The word `estate' would mean not only a particular village but that village also which is included as a unit for the purpose of assessment of the land revenue. The learned counsel for the petitioners has not been able to rebut whether the place Mauza Nehang, where mutations were attested, was not part of the said estate.
Learned counsel for the petitioners made stress that the two mutations in dispute were the result of fraud and misrepresentation and donor/vendor, Amir Bostan Khan did not appear before the Revenue Officer for attestation of the mutations. The answer would be that at the time of sanctioning of mutation of Gift No. 1666, Amir Bostan Khan was identified by two respectables of the area, out of whom one was Chairman Ushar & Zakat Committee and the other was a resident of the concerned deh while at the time of sanctioning of mutation of Sale No. 1749, he was identified by Malik Abdul Sattar, lambardar of village Nehang and Muhammad Yousaf, a resident of the concerned deh. The Signatures of the witnesses and Amir Bostan Khan are appearing on the mutations which shows that Amir Bostan Khan himself appeared before the revenue officer. The provisions of Section 42 sub-sections (7) and (8) require the presence and identification of the person whose right has been acquired, by two respectable persons, preferably from lambardars or embers of Union Committee, Town Committee or Union Council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the Register of mutations. It means that at the time of sanctioning of mutation, any lambardar or any member of the concerned Local Council can identify the vendor or the donor, but not necessarily lambardar or member of the Union Council of that village or Mauza. Keeping in view, the above criteria, we have no hesitation to observe that the mutations had been sanctioned in accordance with the required procedure provided in Section 42 of the Act. The case referred to by the learned counsel, supra are not attracted to the present case. The mutations had been attested on 9.7.1986 and 14.2.1987, respectively, Amir Bostan Khan died in 1990 and the suits were filed on 21.4.1994 i.e. after about 4 years of the death of Amir Bostan Khan, who lived about three/four years after the sanctioning of the mutations in favour of the his two daughters, who had served him in the old age. Amir Bostan Khan did not challenge the said mutations during his life time, for the reason that he himself had transferred his property through gift and sale mutations in favour of his two daughters. During his life time, the petitioners also did not challenge these mutations. The learned counsel for the petitioners admitted that except the property in dispute, the mutation of inheritance of his remaining property had been attested on 11.4.1990, while the property in dispute was not transferred in favour of the petitioners as legal heirs of late Amir Bostan Khan, and the transfer of the said property through the said two mutations had come into their knowledge. It is noteworthy that the suits were filed after about 7/8 years of the attestation of Mutations No. 1666 and 1749 and after four years of the death of Amir Bostan Khan.
The petitioners had challenged the mutations taking a specific stance that the transactions were based on fraud, misrepresentation. Order VI Rule 4 of the Code of Civil Procedure provides that "in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleading." The plaintiffs/petitioners in Paragraph No. 6 of the plaint had specifically taken the plea of fraud, misrepresentation, fabrication but have neither mentioned the ingredients of fraud nor led any evidence to prove as to how the defendants/respondents committed fraud with them. They have produced only two witnesses namely Malik Sher Afzal Patwari PW who brought the revenue record to prove the issuance of the copies of the record of rights. The other PW, Riaz Khan s/o Taj Muhammad Khan, plaintiff, appeared as PW2, who has also not given the details and ingredients of the fraud allegedly committed by the respondents and as provided in Rule 4 of Order VI of C.P.C, if a plea has not been taken in the plaint, no amount of evidence can be looked into upon such pleadings not specifically taken up in the plaint. Reference in this context can be placed on the case of Siddik Mahomed Shah Vs. Mt. Saran and others (AIR 1930 PC 57). In Government of West Pakistan Vs. Haji Muhammad (PLD 1976 SC 469), it was held that a plea of fact not pleaded, no case can be founded thereon. In another case Abdul Karim Vs. Muhammad Akram (1995 CLC 130), a legal proposition has been laid down that he who alleges a fact has to prove the same and the ingredients of fraud have to be narrated and stated by the person alleging the same. Further reference can be made to the case of Tom Boevey Barrett Vs. African Products, Ltd. (AIR 1928 PC 261), wherein it was held that the fraud must be definitely alleged and its particulars unequivocally stated. In another case titled Ghulam Shabhir Vs. Nur Begum (PLJ 1977 SC 299), A Full Bench of this Court headed by Mr. Justice Muhammad Yaqub Ali, the then Chief Justice, laid down that in pleadings general allegations, however, strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud, meaning thereby vague allegations in the plaint are not enough. In Banwari Lal and others Vs. Shaikh Shukrullah and others (AIR 1940 Patna 204), it was observed that a litigant to prefer the charge of fraud should place specific details thereof. The same view was adopted in case of Mst. Sahib Noor Vs. Haji Ahmad (1988 SCMR 1703), observing that where charges of fraud are intended to be made full particulars thereof ought to be given in the pleadings, either as originally framed or as amended for that purpose. In Muhammad Umar Vs. Muqarab Khan and another (1968 SCMR 983), where in the plaint neither the particulars of fraud had been mentioned nor evidence led in support thereof, the suit was dismissed and this Court refused leave to appeal. The onus to prove fraud and misrepresentation was on the plaintiffs/petitioners who have miserably failed to discharge the same by producing sufficient convincing evidence. While, on the other hand, the defendants/respondents had produced oral as well as documentary evidence, mutations, gift and sale-deeds and to prove these documents, they also produced Inayat Ullah Khan DW4, who was one of the attesting witnesses of the gift deed. Aurangzeb DW2, a petition writer, also appeared in the Court, who was also the scribe of the gift deed (Ex-Dw1/1). The defendants/respondents have proved the gift deed by producing two attesting witnesses. To prove the sale Mutation No. 1749 (Exh.Dw1/2), Malik Abdul Sattar, lambardar Nehang (DW-2) and Muhammad Yousaf (DW-5), have been produced, they being respectables of the area, were present at the time of attestation of mutation of sale. Rustam Khan, Ex-Girdawar-Kanungo who has verified the entries of the mutations also appeared as DW3. The defendants successfully proved their assertion and transfer of land in dispute in their favour by production of oral as well as documentary evidence. The First Appellate Court and the revisional Court (High Court) concurrently observed to the effect that the petitioners have failed to prove their case. In view of the above, we do not find any illegality, infirmity, jurisdictional defect, misreading or non-reading of evidence by the Courts below which could persuade us to interfere with the impugned judgment.
For the foregoing reasons, this petition being devoid of any force is dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 383
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
Sardar AMJAD ALI KHAN--Petitioner
versus
STATE--Respondent
Crl. P. No. 346 of 2008, decided on 6.11.2008.
(On appeal from the order dated 8.9.2008 of the High Court of Sindh Bench at Sukkur passed in Cr. Bail Application No. S-119 of 2008).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail, grant of--Custody for more than four years--Involvement in the case on the statement of co-accused--Petitioner was suffering from chronic liver disease--Bail was dismissed by High Court on the ground that parties had lost interest in the matter--Held: Petitioner was in custody for more than four years and trial had not been concluded--Accused was suffering from chronic disease which cannot be treated while keeping him in custody--Bail was allowed. [P. ] A
Mr. Tariq Aziz, ASC for Petitioner.
Mr. Masood A. Noorani, Addl. AG Sindh and Raja Abdul Ghafoor, ASC/AOR on behalf of PG Sindh for State.
Date of hearing: 6.11.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition is directed against order dated 08.9.2008 passed by learned Single Judge of High Court of Sindh Bench at Sukkur whereby bail application of petitioner was dismissed on the ground that parties have lost interest in the matter.
It is contended by Mr. Tariq Aziz, learned counsel for the petitioner that petitioner was arrested in this case on 03.9.2004 from Rawalpindi and taken to Sukkur. He contended that petitioner is a clearing agent and has been involved in this case on the statement of co-accused, namely, Muhammad Saeed, Muhammad Ismail and Tahir Hussain who were apprehended during the search of the truck and charas weighing 6000 kilograms was recovered. He further contended that all the co-accused have been escaped from the police custody whereas petitioner is still in custody. According to learned counsel petitioner is suffering from chronic liver disease (HCV+ VE) with normal Ultrasound of abdomen, SGPT increase which the PCR HCV virus detected and can be treated with specific inter feron therapy (06 months), as disease has long chronic course, one cannot predict the course. He referred to the report of Chief Medical Officer, Central Prison-I, Sukkur wherein it is mentioned that treatment is only inter feron therapy and anti viral during which is not possible in jail due to lack of fund. He contended that learned High Court has not considered the health condition and medical report of petitioner though mentioned in the order of the learned trial Court.
On the other hand Mr. Masood A. Noorani, learned Addl. AG Sindh controverted above contentions and contended that petitioner is suffering from the disease which can be cured inside the jail.
We have given anxious thought to the contentions raised at the bar and are of the opinion that petitioner is in custody for more than four years and trial has not been concluded. The petitioner is suffering from a Chronic disease which cannot be treated while keeping him in custody. Accordingly, petition is converted into appeal and is allowed. Appellant Sardar Amjad Ali Khan is granted bail subject to furnishing surety in the sum of Rs. 200,000/- (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court.
(R.A.) Bail allowed.
PLJ 2009 SC 384
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
WAPDA, etc.--Petitioners
versus
Qari MUHAMMAD FEROZE, etc.--Respondents
Civil Petitions No. 1174 to 1177 of 2008, decided on 27.10.2008.
(On appeal against the judgment dated 26.6.2008 passed by Federal Service Tribunal, Islamabad, in Appeals No. 26 to 29(P)CE/2004).
Service Matter--
----Civil servant--Entitled to grant of selection grade--Combined seniority list--List was pending in the Court relating to terms and conditions of service--Civil servants were employees of WAPDA--Question of--Determination--Seniority be determined on basis of combined seniority list--Validity--In service matter when the lis is pending in the Court relating to terms and conditions of service, where the rights of the parties regarding seniority is under consideration and was still to be determined by the Court with resultant consequence of effecting further promotion and rights like the selection grade, the department should keep its hands off, unless there is specific order of the Court for further proceeding on the part of the department--Held: Service tribunal had very rightly and aptly observed that seniority was an invaluable term and condition of service and cannot be interfered without a valid and just cause--Combined seniority list on the directions of the Court was not a perfunctory ritual without consequential benefits--Rights which have accrued as a result of combined seniority list cannot be denied to the appellants--Civil servants were entitled to all the service benefits including selection grade and promotion on the basis of seniority so determined--Leave refused. [P. 386] A & B
Sheikh Zamir Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioners (in all cases).
Mr. M. Shoaib Shaheen, ASC for Respondent No. 1 (in all cases) a/w Tanveer Ahmed, in-person (proforma Respondent).
Date of hearing: 27.10.2008.
Judgment
Mian Shakirullah Jan, J.--The respondents, employees of the petitioner, WAPDA, are litigating for a long time since 1993 for their seniority on the plea that their seniority be determined on the basis of combined seniority list after the establishment of Tarbela Power Station No. 2 consisting of Units No. 11 to 14 in addition to the already existing Tarbela Power Station No. 1 consisting of Units No. 1 to 10. After several rounds of litigation, even up to this Court, the contesting respondents who are Respondent No. 1 in each case succeeded in getting an order from the Court with regard to the preparation of combined seniority list which was prepared and circulated on 10.03.2001. After the preparation of the new combined seniority list they again approached the Department for grant of Selection Grade as some of the employees who are junior to the said respondents had already been given Selection Grade but the petitioner/WAPDA did not agree to their said demand which ultimately gave rise to another round of litigation which resulted in the form of impugned judgment whereby they were held entitled to the grant of Selection Grade.
The petitioner, the WAPDA, being aggrieved of the said relief granted to the respondents approached this Court through instant petitions.
There is no controversy rather the parties are in agreement on final combined seniority list circulated on 10.03.2001, however, the petitioner's grievance about the impugned judgment is that the said respondents are not entitled to Selection Grade and the same had already been given to the employees on the basis of separate seniority list then in vogue at that time and on the ground that Selection Grade can be granted only to 33% of the total strength and which had already been granted and the Department is not in a position to give it to other employees over and above 33%.
Since the Selection Grade which had already been granted to other employees of the petitioner/Department was on the basis of separate seniority list of the two Power Stations which were under challenge since the very inception in the year 1993 well in time and which challenge of the respondent employees was accepted and which resulted in the combined seniority list dated 10.03.2001 in pursuance of the Court order and if the matter was delayed it was because of prolonged litigation in the Courts. The petitioner/Department and other departments and authority, particularly in a service matter when the lis is pending , in the Court relating to the terms and conditions of service, like the instant one, where the rights of the parties regarding seniority is under consideration and was still to be determined by the Court with a resultant consequence of effecting further promotion and other rights like the Selection Grade, the department should keep its hands off, unless there is specific order of the Court for further proceeding on the part of the department/authority, in order to avoid further complications and which ought to have been visualized by the Department. In the present case it is the Department which without visualizing such complications has shown its smartness by deciding the matter hurriedly without waiting for the decision of the Court and if any difficulty now arises at this stage it is for the Department to solve or to suffer for that. The Service Tribunal in the impugned judgment has very rightly and aptly observed that "...Seniority is an invaluable term and condition of service and cannot be interfered with without a valid and just cause. Circulation of the Final Combined Seniority List on the directions of the Apex Court was not a perfunctory ritual without consequential benefits. Rights which have accrued as a result of the Combined Seniority List cannot be denied to the appellants. The appellants are entitled to all the service benefits including Selection Grade and promotion on the basis of seniority so determined."
We see no good reason to justify interference in the well reasoned judgment of the Service Tribunal and resultantly we decline leave to appeal and these petitions are dismissed.
(R.A.) Leave refused.
PLJ 2009 SC 387
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
GOVERNMENT OF NWFP, through Secretary Eduction Department, Peshawar and others--Petitioners
versus
QASIM SHAH--Respondent
Civil Petition No. 248-P of 2007, decided on 18.11.2008.
(On appeal from the judgment dated 14.2.2007 of the Peshawar High Court, Abbottabad Bench passed in W.P. No. 369/06).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Consideration for appointment against first available vacancy--Validity--When some of selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against the posts--Held: Such post cannot be kept vacant till the next process of recruitment, if some of selected candidates were still available on the waiting list--Remaining persons were entitled to be considered for appointment--Leave was refused.
[P. 388] A
Mr. Zia-ur-Rehman, A.G. NWFP for Petitioners.
Nemo for Respondent.
Date of hearing: 18.11.2008.
Order
Ijaz-ul-Hassan, J.--Leave to appeal is sought against the judgment of the Peshawar High Court, Abbottabad Bench, Abbottabad dated 14.2.2007 whereby W.P. No. 369 of 2006, filed by Qasim Shah-respondent herein, was accepted and petitioner-department was directed to consider him for appointment against first available vacancy.
Facts of the case need not be reiterated, as the same have been comprehensively mentioned in the impugned judgment.
Learned Advocate General, NWFP, appearing on behalf of petitioner-department, contended that judgment of the learned High Court suffers from legal and factual infirmities; that once the selection is finally made from the merit list stands exhausted and for fresh appointments for fresh vacancies fresh advertisement shall have to be made; that there was no waiting list and no vacancy at that time and, therefore, the respondent could not have been considered and appointed. In the last limb of arguments, it was reiterated, that in the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the government should be to readvertise it. The waiting list is maintained in a qualifying examination all vacancies are filled up in one go. To augment the contentions, reliance was placed on Mian Fazal Din versus Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223, Dr. Habibur Rahman versus The West Pakistan Public Service Commission, Lahore and 4 others, (PLD 1973 SC 144) and Musa Wazir and 2 others versus N.W.F.P. Public Service Commission through its Chairman and others, (1993 SCMR 1124).
Having consider the matter from all angels, we are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said post. Such posts cannot be kept vacant till the next process of recruitment, if some of the selected candidates were still available on the waiting list. In this view of the matter i.e. four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of seats.
The authorities referred by learned Advocate General, are beyond the controversial issue and have nothing common to the facts of the present case.
The petition is bereft of merit. The same is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 401
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Muhammad Qaim Jan Khan & Mian Hamid Farooq, JJ.
AFZAL MOTORS COMPANY (Pvt.) LTD.--Petitioner
versus
PROVINCE OF SINDH & others--Respondents
Civil Petition No. 1232 of 2008, decided on 17.12.2008.
(Against the judgment dated 25-08-2008 of the High Court of Sindh at Karachi, passed in C.P.No. D-1142/2008)
Constitution of Pakistan, 1973--
----Arts. 18 & 185(3)--Freedom of trade and business--Awarding of contract--Allegation of malafide--Burden of proof--Simply to level vague and unsubstantiated allegation of malafide on the part of the public functionaries does not advance the case of the petitioners--It is very easy for a litigant to allege malafide but it is very difficult to prove it--Held: Allegation of malafides requires proof of a high order and the burden of proof lies on the person who makes it--Leave refused. [P. 403] A
PLD 2004 SC 191, 2005 SCMR 678 and PLD 1974 SC 151.
Mr. M. Afzal Siddiqui, ASC with Mr. Ejaz M. Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 17.12.2008.
Judgment
Mian Hamid Farooq, J.--Afzal Motors Company (Pvt.) Limited, the petitioners, seek leave to appeal against short order dated 12.08.2008, followed by the reasoned order dated 25.08.2008, whereby the learned Division Bench of the High Court of Sindh at Karachi dismissed their constitutional petition (C.P.No. D-1142 of 2008) in limine.
Respondent No. 3 invited sealed bids, through advertisement in the newspapers, inter-alia, for supply of 25 buses (Item No. 9) for the Sindh Police Department, to be entered by 15th of March, 2008 containing separately financial and technical proposals. Pursuant thereto, the petitioners and Respondents No. 4 to 6 submitted sealed bids, which were opened on 15.03.2008 and all the four technical bids were found to be correct, however, the date for opening of financial bids was to follow. According to the petitioners, they had offered lowest bid for the supply of buses and were the best bidder, but they subsequently learnt that the contract was awarded to Respondent No. 4, which had quoted the highest-rates. The petitioners, deeming that they being the lowest bidder had acquired a right for award of contract for supply of buses and that the award of contract to Respondent No. 4 is a mala fide and unjust, instituted a constitutional petition (C.P.No. D-1142 of 2008) in the High Court of Sindh at Karachi, which called for comments from the respondents. Respondents No. 2 & 3 also filed the counter-affidavit asserting that the contract was awarded to M/s. Hinopak after completion of all the formalities and the motor buses were also supplied by the said M/s. Hinopak. The learned Division Bench of the High Court of Sindh at Karachi after hearing the parties dismissed the said constitutional petition, vide short order dated 12.08.2008, which was followed by the reasoned order dated 25.08.2008, hence the present petition.
Learned counsel for the petitioners contented that the petitioners quoted lowest rates and were the best bidders, therefore, they acquired a right for the award of contract and award of contract to Respondent No. 4 was mala fide, unjust and unfair. He further submitted that this is a case of blatant mala fide on the part of the respondents and under the circumstances the learned High Court, by dismissing petitioner-Company's constitutional petition, refused to exercise its constitutional jurisdiction of judicial review. He added that the actions of the respondents offended Article 18 of the Constitution of Islamic Republic of Pakistan, which provides a fundamental right qua freedom of trade, business or profession. He relied upon "Muhammad Afzal v. Shahzad Asghar Dar (PLJ 2003 SC 241), Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi (PLD 2001 Supreme Court 116), Airport Support Service v. Airport Manager (1998 SCMR 2268), Pacific Multinational (Pvt.) Ltd. v. I.G. of Police (PLD 1992 Karachi 283), Riaz Ahmed v. Regional Transport Authority (1992 MLD 1882) and Petrosin Products Pak. (Pvt.) Ltd. v. Federation of Pakistan (2001 CLC 820)".
We have heard the learned counsel and examined the available record. Learned counsel has time and again stressed that the actions, including award of contract to Respondent No. 4, of Respondents No. 2 & 3 and other public functionaries, were mala fide and the entire process in the said direction was not transparent. However, he when asked to show from the record as to how the actions of the respondents were mala fide could not point out any document on record to demonstrate that in fact the public functionaries, while initiating, processing and awarding contract to the Respondent No. 4, acted in a mala fide manner. We also could not find out any document on record which could tend to show that the actions of the respondents were tainted with malice or the process starting from the invitation of tenders till award of contract was either mala fide or non-transparent. Simply to level vague and unsubstantiated allegation of mala fide on the part of the public functionaries does not advance the case of the petitioners. It is very easy for a litigant to allege mala fide but it is very difficult to prove it. It has now fairly been settled that the allegation of mala fides requires proof of a high order and the burden of proof lies on the person who makes it. Reference can be made to "Federation of Pakistan v. Saeed Ahmed (PLD 1974 Supreme Court 151), "Shabbir Hussain v. Registrar, Lahore High Court (PLD 2004 Supreme Court 191) and Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi (2005 SCMR 678). According to our assessment of the case mala fide on the part of the Respondents No. 2 & 3 and other public functionaries is not apparent on the face of the record. It appears appropriate to reproduce a relevant portion of the impugned judgment, which reads as under:
"It is further the case of the said respondents that all the bidders at all the material times were duly informed about the progress and regular meetings were held with their representatives and that even prior to the award of the contract in favour of M/s. Hinopak, the information regarding award of contract was duly displayed on the notice board at public place in the Central Police Office, which was visited by representatives of all participating firms and that the bid offered by M/s. Hinopak was found to be best evaluated one and no loss is caused to the public exchequer, as the quality and durability of buses of M/s. Hinopak is far superior that that of petitioners in terms of cost benefit ration and further that the technical evaluation and purchase committee had considered all the aspects of all the bidders and had come to the conclusion that M/s. Hinopak was best suited to the needs of the police department."
In this case, too the petitioners though levelled serious allegations of mala fides against Respondents No. 2 & 3 before the learned High Court and before this Court, but they miserably failed to place on record any document or to pinpoint any action which could even prima-facie prove mala fides on the part of Respondents No. 2 & 3.
Respondents No. 2 & 3 filed counter-affidavit before the learned High Court, inter-alia, pleading that the agreement with M/s. Hinopak (Respondent No. 4) was executed on 06.05.2008, motor buses were supplied to the Police Department, inasmuch as, the payment was made to the supplier. We find from the record that the contract was based on the recommendations of the purchase committee, which after evaluating the manufacturing facility, backup support and considering other allied matters came to the conclusion that the contract is to be awarded to M/s. Hinopak. According to the own showings of the petitioners, they filed constitutional petition on 02.06.2008, while contract was awarded to M/s. Hinopak on 06.05.2008, meaning thereby that at the time of filing the constitutional petition the entire process of award of contract stood accomplished. It is now an admitted fact that the requisite buses were supplied by M/s. Hinopak to the Police Department and the payment was made to the supplier. Since the entire process in this regard had already been finalized, therefore, we are not persuaded to reverse it and re-open the matter which has attained the status of a past and closed transaction. Under the circumstances, we have no reasons to topsyturvy the entire process, which has reached its climax and is now a closed chapter.
According to the petitioners, they offered the lowest rate and were declared qualified in technical round of tenders. Admittedly, the purchase committee did consider the said aspects of the case, however, after considering different pros and cons of the matter, inter-alia, concluded that buses to be supplied by M/s. Hinopak were ready to deliver and that spare parts thereof were available everywhere in the country. The purchase committee in its wisdom finally assessed that M/s. Hinopak is the best suited bidder to supply buses. We, under the circumstances, are not persuaded to sit on the findings of the purchase committee, which concluded the questions of fact after considering all relevant factors.
In the above perspective, we have examined the impugned judgment and feel that under the circumstances, the learned High Court did not commit any legal infirmity. No misreading or non-reading of the record of the case has been pointed out. We are not persuaded to upset the well reasoned judgment, which is hereby maintained.
In view of the above, the present petition, being devoid of any force, stands dismissed and leave to appeal is refused.
(W.I.B.) Leave refused.
PLJ 2009 SC 405
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali, JJ.
BADAR MUNIR--Appellant
versus
STATE--Respondent
Crl. A. No. 404 of 2002, decided on 2-12-2008.
(On appeal from the short order dated 04-07-2002 and detailed judgment dated 06-07-2002 passed by Peshawar High Court, Peshawar in Criminal Appeal No 91 of 1999)
Crime Property--
----If crime property was not produced or its destruction in accordance with law was not brought and proved on record, then an incriminating evidence of vital importance was missed by the prosecution from the chain of events constituting guilt, and such fact could not be lightly ignored. [P. 407] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 6, 7, 8 & 9--Suo moto action--Conviction of acquitted person by High Court--Jurisdiction and power--Validity--Held: High Court has been empowered to call for the record of any case by itself or to take an action upon any knowledge gained by it otherwise from any source, but the specific detraction of powers through S. 439 (4) has created prohibitory repercussions upon the suo motu powers of revision conferred upon High Court in respect of a case of acquittal.
[P. 409] D & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417(2-A)--Appeal against acquittal--Power of--Attention for--If an accused is acquitted in such an event Section 417 of Cr.P.C. has powered upon Provincial Government and has permitted it to direct the public prosecutor to file an appeal to High Court, from an original order of acquittal passed by any Court, other than High Court--
S. 417(2-A) Cr.P.C. has granted power to an aggrieved person to file an appeal within 30 days from order of acquittal. [P. 407] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 439(4)--Finding of acquittal--Validity--It has prohibited the High Court to convert a finding of acquittal into one of conviction--Held: Finding of acquittal cannot be converted into conviction. [P. 409] C
PLD 1954 Federal Court 141 & PLD 2005 Kar. 4, ref.
Mr. M. Zaman Bhatti, ASC for Appellant.
Nemo for Respondent.
Date of hearing: 2.12.2008.
Judgment
Sheikh Hakim Ali, J.--Badar Munir, by filing this direct appeal has complained against the judgment dated 4.7.2002 passed by a learned Division Bench of Peshawar High Court, Peshawar (detailed judgment was delivered on 6.7.2002) by which his acquittal from the Court of learned Special Judge, Kohat was converted into conviction by suo motu exercise of jurisdiction, and he was sentenced to suffer imprisonment for life along with imposition of a fine of Rs. 1,00,000/-, or in default to pay that amount, to undergo further period of one year simple imprisonment.
The history of the case as laid down by the learned counsel before us and obtained from the record is that Badar Munir was a cleaner of a Truck No. MRB-3731, while Syed Wajid Ali Shah was the driver of the aforementioned vehicle. On 24.4.1997, at about 10.00 a.m., near Kotal Check Post Kohat, the aforementioned vehicle was searched by A.N.F. Staff where from 286 Kilo-grams Charas and 92 kilo-grams opium was recovered from secret cavities of the aforementioned truck. FIR No. 7 of 1997 was registered on the aforementioned date, with Police Station ANF, Kohat. Appellant along with Syed Wajid Ali Shah was sent for to face the trial before the learned Sessions Judge/Judge, Special Court, Kohat. He was tried by the learned Sessions Judge/Judge, Special Court, Kohat under Sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997, along with Syed Wajid Ali Shah but appellant was acquitted through judgment dated 17.03.1999, passed by aforementioned learned Sessions Judge, while Syed Wajid Ali Shah was convicted.
Syed Wajid Ali Shah, the truck driver filed an appeal against his conviction before the Peshawar High Court, Peshawar being Criminal Appeal No. 91 of 1999. During the pendency of that appeal, a show cause notice dated 15.5.2002 was issued to the appellant, on the basis of which ultimately Badar Munir, appellant, was convicted by learned Division Bench of the High Court and ordered to suffer sentence as indicated above. Hence, this Criminal Appeal.
Learned counsel appearing on behalf of appellant submits that High Court was not empowered to issue Suo Motu notice, after a period of three years from the date of acquittal of the appellant as the judgment of acquittal passed against the appellant, by learned Sessions Judge had attained finality. He further submits that the High Court had got no power/jurisdiction to pass sentence of conviction when there were two views possible upon the evidence. As per learned counsel, the view in favour of the appellant was to be adopted than that of prosecution. Show cause notice was wrongly issued. Section under which the show cause notice was issued was not entered into it, therefore, the conviction and sentence passed by High Court was invalid, illegal and without jurisdiction. None has appeared on behalf of the State/A.G. NWFP.
We have perused the record and examined the case minutely. Before proceeding to discuss the law point, we have found that in para 11 of the impugned judgment, it was contended by the learned counsel for the accused/appellant that case property was neither produced before the learned trial Court nor its destruction certificate was brought on record, and to our thoughtful consideration, this lapse of the prosecution was itself sufficient for the acquittal of the appellant. We have noted with concern that this lacuna could not be treated, as held by learned High Court as an irregularity curable under the law. If crime property was not produced or its destruction in accordance with law was not brought and proved on record, then an incriminating evidence of vital importance was missed by the prosecution from the chain of events constituting guilt, and this fact could not be lightly ignored by the High Court.
There is another most salient feature of the case which has attracted our attention for the acquittal of the appellant. In law, if an accused is acquitted, in such an event, Section 417 of the Criminal Procedure Code, 1898 (hereinafter referred to as the "Cr.P.C".) has conferred power upon the Provincial Government and has permitted it to direct the Public Prosecutor to file an appeal to the High Court, from an original order of acquittal passed by any Court, other than the High Court. Sub-section (2-A) of Section 417 of the Cr.P.C. has also granted power to an aggrieved person to file such an appeal within 30 days from the order of acquittal. In other words, the Provincial Government as well as the aggrieved person are entitled to file an appeal against acquittal under Section 417 of the Cr.P.C. Question arises as to whether a High Court can convict any acquitted person by exercising presumed suo motu powers vested in it, if no appeal has been filed by the above mentioned parties? To search out such powers, we have to divert our attention to the provisions of Section 439, in conjunction with Section 423 of the Cr.P.C. which has granted to a High Court, the power of revision. To appreciate the scope and extent of the powers of revision, as conferred by the above mentioned section, Section 439 of the Cr.P.C. is copied as follows:--
High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by Magistrate, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.
[(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under Section 439-A.]
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
From the bare reading of sub-section (4) of Section 439 of the Cr.P.C. it is apparent in unequivocal terms that it has prohibited the High Court to convert a finding of acquittal into one of conviction. To dilate upon the intent of this sub-section (4) of Section 439 of the Cr.P.C., it is expressed that the finding of acquittal cannot be converted into conviction, although under this Section 439(1) of the Cr.P.C. a High Court has been empowered to call for the record of any case by itself or to take an action upon any knowledge gained by it otherwise from any source, but the specific detraction of powers through sub-section (4) of Section 439 of the Cr.P.C., for the above noted subject has created prohibitory repercussions upon the suo motu powers of revision conferred upon the High Court in respect of a case of acquittal.
It is interesting to note that although High Court has been conferred power of an appellate Court under Section 423 of the Cr.P.C. while exercising the powers of revision under Section 439 of the Cr.P.C., clause (a) of sub-section (1) of Section 423 of the Cr.P.C. if read minutely has not awarded the power to appellate/revisional Court to convict any acquitted person by taking suo motu action. The commencing words of clause (a) of sub-ection (1) of Section 423 of the Cr.P.C. have provided that the order of acquittal can be reversed but in such cases, the appellate Court has to remit the case for further probe or for its retrial. In a controversy, as to whether the power granted to an appellate Court under clause (b) of sub-section (1) of Section 423 of the Cr.P.C. a High Court can reverse the finding of acquittal into that of conviction, the Federal Court in PLD 1954 Federal Court 141 (Shera and 6 others v. The Crown) while interpreting provision of Section 423(1)(b)(2) and Section 439(4) of the Cr.P.C. had taken into consideration this provision and had authoritatively by majority held that both these sections were not available to the High Court to reverse the finding of acquittal into conviction in the cloak of merely altering it. This judgment, with great respect has decided the controversy that under the provision of Section 423 of the Cr.P.C. read with Section 439 of the Cr.P.C. the revisional Court can not convert the finding of acquittal into conviction. The above view was rightly followed by High Court of Sindh in the case titled (Karl John Joseph and another Vs. The State) reported in PLD 2005 Kar. 4.
Accordingly we are constrained to hold that the learned Judges of the Division Bench of the Peshawar High Court, Peshawar were not empowered to exercise the suo motu power of revision, in such a manner so as to convert the judgment of acquittal into a judgment of conviction. Resultantly, the instant appeal which is although barred by 31 days delay, yet in the interest of justice keeping in the view, the above facts and legal aspect, we condone and accept it, and we set aside the impugned judgment of the Peshawar High Court, Peshawar, and order the acquittal of the appellant forthwith, if not required in any other case.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 410
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir & Muhammad Farrukh Mahmud, JJ.
GHULAM SHABBIR, etc.--Appellants
versus
Mst. BAKHAT KHATOON, etc.--Respondents
Civil Appeal No. 82 of 2006, decided on 22-01-2009.
(On appeal from the judgment dated 12-10-2005 passed by the Lahore High Court, Lahore in C.R No 182/1996)
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Judgment at variance--Jurisdiction of revisional court--When there are contradictory findings by two Courts, revisional Court would interfere to examine that the judgment of which Court is correct. [P. 412] A
Muslim Law--
----Inheritance--Muslim when dies, the moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance. [P. 412] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--Jurisdiction of revisional Court--Held: Court would not interfere in such findings unless some infirmity, legal or principle, have been discovered and there is no justification to interfere in the concurrent findings recorded by Courts below.
[P. 416] C
1991 SCMR 2049, ref.
Syed Zulfiqar Ali Bukhari, ASC for Appellants.
Sh. Zamir Hussain, ASC for Respondent No 1 (ii)(iii).
Ex-parte for Respondent 1(i), (iv) (ac) & 2.
Date of hearing: 22.1.2009.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal by leave of the Court is directed against the judgment of a learned Single Judge of the Lahore High Court, Lahore dated 12.10.2005 passed in Civil Revision No. 182/1996.
The brief resume of the case is that Fateh Muhammad son of Muhammad Khan (deceased) owned land in Khata No. 38 Khatuni No. 78-89, Khata No. 48 Khatuni No,111, Khata No. 60 Khatuni No. 138-139, Khata No. 61 Khatuni No. 140, Khata No. 62 Khatuni Nos. 141, Khata No. 67 Khatuni No. 152, Khata No. 71 Khatuni No. 156 situated in village Tankey Wala Tehsil Shahpur, District Sargodha. After his death mutation of inheritance No. 272 dated 29.4.1987 was attested declaring him belonging to Shia sect, depriving his two widows Mst. Bakhat Khatoon and Mst. Sultan Bibi. One of the widows filed appeal before the Assistant Commissioner/Collector, Shahpur, claiming her share, who accepted the same vide order dated 15.12.1987. The said order had also been maintained by the Additional Commissioner, vide order dated on 6.8.1988. Plaintiffs/appellants herein filed a civil suit against the respondents/defendants, challenging sanctioning of the mutation on the orders passed by Assistant Commissioner/Collector and the Additional Commissioner, who contested the suit, filed their written statements, denying the averments of the plaint. On the divergent pleadings of the parties, the learned trial Court/Civil Judge Ist Class, Shahpur framed various issues, recorded evidence, pro and contra, and vide the judgment dated 15.10.1991 decreed the suit. The respondents feeling aggrieved preferred an appeal against the judgment and decree of the trial Court, which came up for hearing before an Additional District Judge, Sargodha who vide, his judgment and decree dated 11.12.1995 accepted the appeal reversing the findings of the trial Court and dismissed the suit. This judgment decree of the appellate Court had been assailed by the appellants before the Lahore High Court, Lahore through Civil Revision No. 182/1996, which has been dismissed, vide the impugned judgment.
Learned counsel for the appellants contended that the judgment of the High Court is non speaking as the learned Judge has not considered the evidence produced by the parties and failed to apply his independent judicial mind to the controversy involved in the matter. Further contended that the appellants had produced oral as well documentary evidence to prove their assertion that deceased Fateh
Muhammad was follower of Athna Asharias' sect and he wasShia' at the time of his death, his funeral ceremonies were performed according to Shia' school of thought. Added that while sanctioning the mutation, the Revenue Officer has recorded the statement of Mst. Sultan Bibi, second wife, of deceased Fateh
Muhammad, who supported the appellants' case. While on the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the appellants contending that the Revisional Court was not bound under the law to reappraise the evidence of the parties. The Revisional Court has to consider only the misreading or non-reading of evidence, jurisdictional defect or gross illegality in the judgment impugned before it. Further contended that there is ample evidence on the file of this Court that the deceased, predecessor-in-interest/husband of the respondents Mst. Bakhat Khatoon and Mst.
Sultan Bibi was aSunni' Muslim and his Nimaz-e-Jinaza was offered by a Sunni
Paish Imam. Lastly, contended that the documents produced by the appellants had not been considered in accordance with the provisions of Qanun-e-Shahadat
Order, 1984 and no sanctity was attached to the said documentary evidence, therefore, it was rightly ignored by the Appellate Court as well as the Revisional Court.
We have heard the learned counsel for the parties, perused the record with their kind assistance.
We find that the learned Judge of the High Court has not passed a well-reasoned judgment and has disposed of the Civil Revision by observing that the First Appellate Court has correctly given weight to the fact only that Fateh Muhammad (deceased) had been paying Zakat, Ushr of his crops. It was a contradictory judgment, the Revisional Court has rejected the judgment of the trial Court and accepted the judgment of the Appellate Court without assigning sufficient reasons in agreeing with the same. It is a settled proposition that when there are contradictory findings by two Courts, Revisional Court would interfere to examine that the judgment of which Court is correct. Learned counsel for the appellants has made stress to set aside the impugned judgment and remand the case to the High Court for re-writing the judgment. Though this Court cannot interfere in the concurrent findings of fact recorded by the Courts below but we, with assistance of the learned counsel for the parties have gone through the evidence produced by the parties and are inclined to decide this appeal after evaluation the evidence of the parties instead of remanding the case to the High Court for decision afresh, to save the precious time of the parties as well as the Court.
The question that requires consideration by this Court is whether the deceased Fateh
Muhammad son of Muhammad Khan was a Sunni' Muslim or belonged toShia' faith.
Both the parties have produced oral as well as documentary evidence in respect of their respective version. A Muslim when dies, the moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance. In Subcontinent, Indo-Pak the whole Muhammandan Community is divided into two sects namely, Sunnis and Shias.
The Sunnis are divided into four sects namely Hanafis, Malkis, Shafies, and
Hanbalis. The Sunni Muhammandans belong to Hanfi School of thought. The great majority of the Muslims of Indo Pak Sub-continent being
Sunni, the presumption is that the parties to a suit or proceedings are Sunnis unless it is shown that they belong to Shia sect.
The Shias are divided into three main sects, namely Athna-Ashrias', Ismailyas and Zaidyas.
Most Shias are Athna-Ashria, therefore, presumption is that the Shias are governed by Athna Ashria exposition of law. After death of Fateh Muhammad, Mutation No. 272 of his inheritance has been attested by the Revenue Officer in favour of his brothers, Sikandar Khan, Ata Muhammad and sister Mst. Alam
Khatoon who claimed before the Revenue Officer that deceased Fateh Muhamamd was a Shia. The mutation was challenged by Mst. Sultan Bibi, one widow of deceased, before the Collector who accepted the appeal directing the Revenue Officer to sanction the mutation of inheritance of the deceased in accordance with Hanafi law of inheritance. The appeal filed by the appellants before the Additional
Commissioner has been dismissed maintaining the order of the Collector. The appellants in support of their case, produced eight witnesses and some documents. Sarfraz Maikan, Naib Tehsildar PW-2, who had attested the mutation, produced before the Court Ex-P-1 and P-2, invitation cards issued in the name of deceased Fateh Muhammad pertaining to years 1977 and 1982. He admitted before the Court that the persons who had issued these invitation letters did not appear before him. He also admitted that ExP-1 and P-2 do not contain parentage, caste and place of residence of the invitee. He also admitted that the name of deceased is entered in the list of those persons who made payment ofUshr'. Syed Zakir Hussain, PW-3, appeared in the Court only to substantiate the factum that deceased has traveled with him for Ziaraats along with his wife
Mst. Sultan Bibi. Bagh Ali Shah, PW-4 who claimed to be a Zakir/Orator stated that Fateh Muhammad deceased had been seen by him joining the Majalas of Shia sect, but he admitted that Fateh Muhammad deceased never offered prayers with him. Ali Muhammad Patwari PW-5, deposed in line with PW-4 and admitted that
Maulvi Muhammad Din, a Sunni Alam, led the Nimaz-e-Jinaza' of the deceased. He frankly admitted that all the three plaintiffs, (brothers and sister of the deceased) and his two widows Mst. Bakhat Khatoon and Mst. Sultan Bibi, were belonging toSunni' school of thought. He also admitted that brothers of widows of the deceased attended the last ceremonies of the deceased. Gul Pir
Shah, PW-6, also admitted that Nimaz-e-Jinaza' of the deceased was led by aSunni' Maulvi. Atta Muhamamd, one of the plaintiffs appearing as PW-7, admitted that his two bothers are not Shias' rather areSunnis'. Widow of the deceased, Mst. Alam Khatoon is also Sunni. He also admitted that they have been jointly making payment of Ushr with the deceased. He also admitted that their father was a Sunni and the other widow of the deceased Mst. Sultan Bibi also belonged to Hanif school of thought. The statement of PW-7 was contradicted by
Ghulam Hussian Shall (PW-8), who categorically stated that father of Fateh
Muhammad deceased, Muhammad Khan and brothers (plaintiffs) and sister of the deceased all were Shias. He produced receipts of payments of subscription to
Anjaman Ghulaman-e-Aseeran Sham Ex-P/9-11 dated 17.6.1984, 15.1.1985, 11.1.1986.
On the other hand the plaintiffs/appellants produced Amir Khan, Chairman Ushr, Zakat
Committee, (DW-1) who stated that the deceased had been paying Ushr. The certified copies of register of receipts of Ushr had been placed on record without any objection of other side. Rab Nawaz, DW-2 brother-in-law, Abdur
Rauf, DW-3, brother-in-law (brother of Mst. Sultan Bibi) and Mst. Sultan Bibi one of the defendants DW-4 are close relatives of the deceased. They vehemently stated before the Court that the deceased was not follower of Shia sect, rather he was a Hanif Sunni Muslim. They have also proved that funeral ceremonies of the deceased were performed in accordance with Sunni' rites and Maulvi
Muhammad Din who isSunni' Alam performed his `Nimaz-e-Jinaza'. While examining the evidence and documents produced by the parties in juxtaposition, we find that the evidence of the respondents is straightforward, reliable and convincing. DWs-2 to 4 are the close relatives of the deceased including his wife. Their testimony cannot be discarded on the ground that the deceased had gone with one of the witness for Ziaraat and has been paying contribution to some Shia Anjamans for few times, he has attended religious meetings/Majalas of the Shia sect. The brothers and sister of the deceased namely, Sikandar Khan, Atta Muhammad, and Mst. Alam Khatoon, are Sunnis. Two widows of the deceased, Mst. Bakhat Khatoon, Mst. Sultan Bibi respondents herein are also Sunnis, as admitted by one of the plaintiffs/appellants, Atta Muhammad PW-7 and father of the deceased was also a Sunni Muslim. As enshrined in Article 28 of the
Mahomeden Law which deals with sects, sub sects of Mahomedens in the
Sub-continent. It is settled proposition of law as held by the superior Courts that majority of the Muslims belong to Hanfi school of thought and the Court may presume that a deceased person was Hanfi till contrary is proved and ordinarily it will raise such presumption. In case of Mst. Sardar Bibi v. Muhammad
Baksh (PLD 1954 Lahore 480), Mr. Justice Kaikaus and Mr. Justice M.A. Sufi, relying on Akbarally v. Mahomedally (AIR 1932 Bom. 356), observed that there will be no case so devoid of circumstances from which religions of parties may be inferred, that there should be a necessity for the application of the presumption even after evidence is led but held that the presumption is however one of fact and the Court may refuse to give effect to it in the circumstances of a particular case. In the absence of any required proof to the contrary, it must be presumed to be a Muhammandans and, therefore, governed by Hanfai Law.
In case of Pahatan v. Mst. Wasai and another (PLD 1965 SC 134), it has been observed by a larger Bench of this Court that in Indo Pak Subcontinent there is initial presumption that a Muslim is governed by Hanafi Law unless the contrary is established by good evidence. The same principle has been laid down by a
Division Bench of the Lahore High Court in Nur Ali and another v. Malik Sultan and others (PLD 1961 (WP) 431) and Syed Muhammad Noor Shah and others v. Amir
Hussain Shah and others (1999 CLC Lahore 1712). As the plaintiffs raised question of faith of deceased claiming that he died being a member of Shia community and as observed in preceding paragraph the initial presumption in
Pakistan is that a Muslim is a Sunni until the contrary is proved, the burden of proof was on the plaintiffs/appellants as laid down in the case of Mst.
Iqbal Begum v. Mst. Syed Begum and others (AIR 1933 Lahore 80) and Hussain v.
Mansoor and 5 otehrs (PLD 1977 Karachi 320) the burden to prove that the deceased was Shia is on the person alleging him to be not Sunni but Shia. We have considered and re-appraised the evidence produced by the parties, documents Ex.P-1, P-2 and P/9-P-10 i.e. the invitation cards/letters and receipts of payments, contribution to an Anjuman of Shia sect, respectively are not the conclusive proof of the faith of the deceased as these are the private documents and had been produced by the plaintiffs/appellants. These documents i.e. invitation cards and receipts of contribution had not been proved on record in accordance with the provisions of the Qanun-e-Shahdat Order, 1984.
The counterfoils of subscription of receipts had not been produced, so the same cannot be taken into judicial consideration. Another document Ex-P/8, Annual
Report of Jamia "Hadriya Bab-e-Hyder", Jhang Road, Sargodha has been placed on record and from minute scrutiny of file of the trial Court, we have no hesitation to observe that the report Ex-P/8 has not been exhibited on the file by the order of the Court, as per statement of the counsel for the plaintiffs/appellants dated 12.6.1990, he has produced passport of the deceased which is Ex-P/8. There is no evidence to prove the fact of production of alleged report Ex-P/8 on the record.
As provided in
Article 29 of Mohammandan Law the Shias are divided into three main sub sects but there is no evidence on record as to which sub sect of Shias the deceased belonged to, whether Athna-Ashria', Ismaila or Zaidiya. The whole evidence produced by the appellants is silent on this aspect. There is also no evidence on the file as to when the deceased denounced his faith. The appellants have not been able to produce evidence in this respect. Admittedly, his father, brothers, sister, close relatives and his two widows all were Sunnis and to their extent Hanfai law of inheritance is attracted. The respondents, two widows of the deceased claimed their share of inheritance out of the property left by their deceased husband. The evidence of DWs 2 to 4 and documents, certified copies of register Ushr pertaining to year 1985-1986, Ex-D/4 and D/5 is sufficient and convincing evidence to believe that the deceased was a Sunni Muslim and he died as such. The appellants have not been able to rebut the evidence produced by defendants/respondents. Plaintiffs/appellants suit had been decreed and findings were recorded that the deceased was a Shia but such findings were, however, reversed in appeal and the revision, wherein deceased was treated to be Sunni and his property was divided according to law of inheritance applicable to that sect. Findings of fact rendered against the plaintiffs/appellants by the two higher Courtsnotwithstanding' acceptance of their plea by the trial Court, were unexceptionable and this Court would not interfere in such findings unless some infirmity, legal or of principle, having been discovered and there is no justification to interferer in the concurrent findings recorded by the two Courts below. Reference in this context can be placed on Mst. Rukhsana Bibi and others v. Lal Hussain and others (1991 SCMR 2049). The initial presumption that a Muslim is Sunni, follower of Hanafi school of thought unless contrary is proved, has not been rebutted by the appellants. In view of the above discussion, we find that the judgment of the
First Appellate Court as well as that of the High Court is unexceptionable, the
Courts have rightly, validly observed that the deceased was a Sunni Muslim.
For the foregoing reasons, we do not find any substance in this appeal which is dismissed. No order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 416
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali, JJ.
LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHORITY, LAHORE and others--Appellants
versus
JAVED MALIK and others--Respondents
Civil Appeals No. 2057 and 2058 of 2006, decided on 23.11.2009.
(On Appeal from the judgment dated 05-09-2006, passed by the Lahore High Court, Lahore in R.F.A No. 495 of 2004).
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 9 & 25--Service of notice--Duty of collector--Validity--Collector is bound to cause public notice to be given at convenient places on or near the land to be taken and to serve notice on the occupier and on all such persons interested therein or to be entitled to act for persons so interested, as reside or have agents to accept service on their behalf within the revenue concerned district. [P. 421] A
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 9 & 25--Applicability--Mandatory compliance of Section 9, if has been made by the Land Acquisition Collector, then in that event the provisions of S. 25 of Land Acquisition Act, can be invoked by the Collector as well as by the persons for whom the land has been acquired. [P. 421] B
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 25 & 9--Awarding of compensation--Power of referee--Condition precedent--Restrictions--Referee Court is prohibited to grant compensation more than the amount claimed by the applicant or less the amount awarded by the collector, if the notices as enumerated were given u/S. 9 of the Land Acquisition Act, by the collector--Court was not prohibited to grant compensation, in accordance with the assessed price of the land acquired. [P. 421] C
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 9 & 25--Nature and scope--Provisions of S. 25 of Land Acquisition Act, are penal, stringent and restrictive in nature in respect of the fixation of compensation, therefore, its preceding essentialities have to be complied with otherwise provisions of S. 25 cannot be invoked or enforced to the hands of the referee. [P. 421] D
1983 CLC 1542, 1985 SCMR 45 and PLD 1965 Kar. 573, Ref.
Mr. Muhammad Rafiq Shad, ASC for Appellant (in C.A. No. 2057/2006).
Sh. Naveed Shahryar, ASC for Respondents (in C.A. No. 2057/2006).
Sh. Naveed Shahryar, ASC for Appellants (in C.A. No. 2058/2006).
Mr. Muhammad Rafiq Shad, ASC for Repsondents (in C.A. No. 2058/2006).
Date of hearing: 11.9.2008.
Judgment
Sheikh Hakim Ali, J.--Land Acquisition Collector, the acquiring agency, along with National Highway Authority, Lahore, for whom the land was acquired and Javed Malik & others, from whom the land was acquired, for the construction of Additional Carriageway in Lahore-Sahiwal Section are the aggrieved parties from the one and the only judgment dated 5.09.2006, delivered in R.F.A.No. 495 of 2004 by the Lahore High Court, Lahore. Both these parties have filed the above noted two Civil Appeals Bearing Nos. 2057 and 2058 of 2006 against the aforementioned judgment. Therefore, both these appeals are being disposed of through this single judgment.
To shorten the facts, it may be stated that for the construction of Additional Carriageway for Lahore-Sahiwal Section, a notification under Section 4 of the Land Acquisition Act, 1894 was issued by the Land Acquisition Collector on 20.10.1993. The owned land of Javed Malik and others, measuring 10 Kanals 3 Marlas was acquired through award dated 24.12.1994. The Land Acquisition Collector assessed the price of the land at the rate of Rs.301.83 per marla and also granted compensation for the superstructure built thereon, which was in the form and shape of Petrol Pump, Service Station, 20 Shops, Hotel and Mosque, which compensation for the whole was fixed to the extent of Rs.7,26,839.83 by the Land Acquisition Collector. Dissatisfied with the award dated 24.12.1994 the land owners namely, Javed Malik and others filed a reference under Section 18 of the Land Acquisition Act before the Land Acquisition Collector for its onward transmission to the learned Referee Court, which was filed before the Collector on 25.04.1995. Before the learned Referee Court both the parties produced their evidence. Muhammad Afzal, general attorney had appeared on behalf of land owners and got recorded his statement as AW-1, while the learned advocate of the land owners produced 12 mutations, which were received into evidence as Exh.A-1 to Exh.A-12. On behalf of respondents, Muhammad Usman Ghani, Land Acquisition Collector, National Highway Authority Lahore, appeared as RW-1, who produced a letter dated 21.07.1994 (Exh.R-1), the copy of the receipt of compensation Exh.R-2 and the copy of award as Exh.R-3 and closed the evidence. Learned Referee Judge, (Senior Civil Judge, Kasur) on 20.09.2004 accepted the reference partly by enhancing the price of land up-to Rs.1500/- per marla and granted them 15% compulsory acquisition charges and compound interest at the rate of 8% from date of possession. This judgment was appealed against before the learned Lahore High Court, Lahore, which was again partly accepted, as compensation from Rs.1500/- was increased to Rs.3000/- per marla through the impugned judgment dated 5.09.2006, passed by the learned Division Bench of the Lahore High Court, Lahore. Hence these two appeals.
The learned counsel appearing on behalf of the Land Acquisition Collector and another submits that price was wrongly enhanced by the learned Division Bench of the Lahore High Court, Lahore, as according to Section 25 of the Land Acquisition Act, 1894, it could not be increased due to the barring provision of that section as land owners had failed to file claim before the Land Acquisition Collector, under Section 9 of the Act. Further submits that mere production of copies of mutations were not sufficient to increase the price on the basis of these mutations. It was the duty of owners to prove these mutations by bringing into evidence the persons who had sold or purchased the land entered into these mutations. He has referred to a judgment of learned Peshawar Court published in 2003 YLR 3287 (Liyar Khan Vs. Land Acquisition Collector/AC. Swabi). Further submits that reference filed before the Collector was barred by limitation, and it should have been dismissed on this point, rather than to be accepted.
Learned counsel appearing on behalf of Javed Malik and others, the owners, submits that as no notice was served by the Collector, at the time when he had made the award, therefore, the filing of reference, within six months was quite within limitation, as provided by sub-section (2)(b) of Section 18 of the Land Acquisition Act, 1894. In this respect, when the learned counsel for the acquiring agency was asked to controvert and explain, it was admitted by him that no notice as required by the above noted section was served upon the owners, therefore, he has withdrawn his objection of limitation.
Learned counsel for the owners has also submitted that the land acquired was admittedly of commercial nature whereon Shops, Hotel, Petrol Pump, Service Station and Mosque were constructed and was also on the front of main National Highway running from Lahore to Karachi near Patoki, therefore, the assessment of compensation for the land was wrongly made by the Land Acquisition Collector (to be noted as Collector hereinafter). As the commercial nature of the land was admitted by RW-1, Muhammad Usman Ghani, the Land Acquisition Collector in his statement and no objection was raised at the time of bringing into evidence the mutations, it was not necessary for the land owners to produce any more evidence of purchasers or sellers of these mutations into witness box. No rebuttal evidence was brought by the Collector with reference to these mutations to rebut the price claimed by the land owners, as corroborated by the price mentioned in these mutations. Therefore, the land owners were entitled to compensation to the tune of Rs. 10,000/- per marla as price of land.
We have heard the learned counsel and have examined the available record. Before proceeding on the merits of the case, it would be necessary to deal with the legal objection raised by learned counsel for the Land Acquisition Collector, with regard to the applicability of Section 25 of the Land Acquisition Act to the facts and circumstances of the case. It has been admitted by the learned counsel that notices under Section 9 were not issued to the land owners and no such plea was ever raised before the learned Referee Court. Therefore, no such notices were ever produced before the learned Referee Judge in the case. From these admissions, the objection of Section 25 has lost its significance. However, to dilate upon these point of objection, it is necessary to have a look on the provisions of Sections 9 and 25 of the Land Acquisition Act, which are reproduced as under :--
"Section 9: Notice to persons interested.--(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue-district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1866.
Section 25: Rules as to amount of compensation.--(1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector."
According to Section 9 of the Land Acquisition Act, Collector is bound to cause public notice to be given at convenient places on or near the land to be taken and to serve notice on the occupier and on all such persons interested therein or to be entitled to act for persons so interested, as reside or have agents to accept service on their behalf within the revenue district concerned. He has also been directed by that Section to serve notice through post, if the persons so interested are not residents of the revenue district, in which the land is situated. This mandatory compliance of Section 9, if has been made by the Land Acquisition Collector, then in that event the provision of Section 25 of Land Acquisition Act can be invoked by the Collector as well as by the persons for whom the land has been acquired. The learned Referee Court is prohibited to grant compensation more than the amount claimed by the applicant/applicants or less than the amount awarded by the Collector, if the notices as enumerated above were given under Section 9 of the Land Acquisition Act by the Collector, otherwise the learned Court was not prohibited to grant compensation, in accordance with the assessed price of the land acquired. It may be noted here that provision of Section 25 are penal, stringent and restrictive in nature in respect of the fixation of compensation, therefore, its preceding essentialities have to be complied with, otherwise provision of Section 25 cannot be invoked or enforced to tie the hands of the learned Referee Court. For this purpose, AIR 1930 Calcutta 471 [Tara Prasad Chaliha Vs. Secy of State and another), AIR 1964 Patna 83 (State of Bihar Vs. Anant Singh and others), AIR 1974 Karnatak 74 (Special Land Acquisition Officer Vs. Sanaqouda Paraqouda Patil) PLD 1965 Karachi 573 (The Collector of Karachi Vs. Fida Hussain Muhammad Ali Lotia and others) 1983 CLC 1542 (Deputy Commissioner Vs. Abdul Karim Mossa and others) 1985 SCMR 45 (Hyderabad Development Authority and another Vs. Kamran Khan Shoro) PLD 1990 Peshawar 83 (Afzal Shah Vs. Land Acquisition Collector and others) are the judgments which are relevant and lay down the above noted law. It may also be stated that it was the duty of the respondent/Collector before the learned Referee Court to raise such a point of objection, get an issue framed from that learned Referee Court, and to produce the notices if transmitted to land owners, as required by Section 9 of the Land Acquisition Act into the evidence, otherwise it would be late in the day to make hue and cry or to construct an edifice on this basis, at this stage. As no such effort or exercise was made by the Collector, therefore, it is mere an objection, having no relevance with the case and requires no consideration from this Court. Therefore, this objection is held to be of no legal force.
As regard the fixation of price of the land in dispute, facts are admitted. The land in dispute was of a commercial nature having Hotel, Shops, Service Station, Petrol Pump and Mosque. The award of compensation for the superstructure by the Collector itself corroborates this fact and the admission of RW-1, Muhammad Usman Ghani supports the case of land owners, made in his statement, before the learned Referee Court. In these circumstances, when the Collector had failed to rebut the evidence of mutations produced by the owners in the Referee Court, through any other evidence, the mutations, which were exhibited in evidence without any objection could not be overlooked, discarded or thrown away from the record to assess the correct compensation. The assessment of compensation has to be made justly and fairly. Keeping in view the facts and circumstances of the given case, it has not to be excessive so as to burden the exchequer unfairly and illegally and not too lesser as to cut the pocket of the land owners from their legal right and due share. Balance has to be kept in between these two.
In these circumstances, when there is no controversial or rebuttal evidence on the record, there is no alternative but to accept the price mentioned in the mutations produced by the land owners in the case. Exh.A-1, A-3, A-6 and Exh.A-8, are those mutations which have contained no mention of price in it, therefore, these mutations are discarded from consideration. Mutation No. 1958 dated 23.12.1993 has been produced twice. Thereafter remains only 5 mutations whose numbers are as under :--
"Mutation No. 1958 Exh.A-2, sanctioned on 23.12.1993, Mutation No. 1962 Exh.A-4, attested on 18.12.1993, Mutation No. 1968 Exh.A-5, sanctioned on 23.12.1993, Mutation No. 1964 Exh.A-7, sanctioned on 22.12.1993, Mutation No. 1971 Exh.A-10, sanctioned on 16.01.1994."
After calculating the total price mentioned in these mutations and dividing it on the lands, alienated through these mutations, the average price of all these mutations have been calculated by us, which have become an average price of Rs.5527.60 paisa per marla. Therefore, according to this evidence and calculation of the price, the land owners are entitled for this price.
(W.I.B.) Order accordingly.
PLJ 2009 SC 423
[Appellate Jurisdiction]
Present: Nasir-ul Mulk & Mian Hamid Farooq, JJ.
Mst. NAGINA BEGUM--Appellant
versus
Mst. TAHZIM AKHTAR & others--Respondents
C.A. No. 1208 of 2007, decided on 22-1-2009.
(On appeal from the judgment dated 13-03-2007 of the Peshawar High Court, Peshawar, passed in R.F.A No. 48 of 2005)
Muhammadan Law--
----Gift--Ingredients--A gift by a Muslim would be completed, even if there is no writing and three ingredients i.e. (i) declaration of gift by the donor (ii) acceptance of gift expressly or impliedly by or on behalf of the donee; and (iii) delivery of possession of the subject matter by the donor to the donee are proved. [P. 427] D
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Applicability--Proof of execution of document--Death of marginal witness--Principle--A litigant in order to prove a document is required to produce two attesting witnesses, if they are alive--If two attesting witnesses are not alive, then execution of a document could be proved by producing other admissible evidence. [P. 427] E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Document to be attested by two witness--Validity--If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for for purpose of proving its execution. [P. 426] A
Gift-Deed--
----Document--Attested by two witnesses--Declaration of gift cannot be as gift-deed--Validity--Gift-deed is a document, which is compulsorily required by law to be attested by two witnesses, but it is equally true that declaration of gift cannot be termed as gift-deed. [P. 426] B
Muhammadan Law--
----Gift by a muslim--Ingredients--Under the Muhammaden Law a gift by a Muslim would be complete, if a person proved the three necessary and inseparable ingredients, (i) declaration by donor, (ii) acceptance of gift by donee and delivery of possession under gift.
[P. 426] C
Transfer of Property Act, 1882 (V of 1882)--
----Ss. 123 & 129--Registration Act, (XVI of 1908) S. 17--Held: Purpose of making a gift of an immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses, yet Section 129 of Transfer of Property Act, provides that sections relating to gifts shall not affect any rule of Muhammaden Law. [P. 428] F
Transfer of Property Act, 1882 (V of 1882)--
----Ss. 123 & 129--Registration Act, (XVI of 1908) S. 17--Gift--Applicability--A gift by a Muslim can be completed even without any writing and such gifts are expressly excluded from the operation of the Transfer of Property Act. [P. 428] G
Mr. Shakeel Ahmed, ASC and Mir Adnan Khan, AOR for Appellant.
Ms. Nahida Mehboob Elahi, ASC for Respondents No. 1-6.
Date of hearing: 22.1.2009.
Judgment
Mian Hamid Farooq, J.--Instant direct appeal, under Article 185 (2)(d) of the Constitution of Islamic Republic of Pakistan, proceeds against the judgment dated 13.03.2007, whereby the learned Peshawar High Court, Abbottabad Bench partially allowed the appeal (RFA No. 48 of 2005) filed by Tahzim Akhtar and others.
"2. The controversy relates to a house measuring 7 marlas and a piece of land adjacent thereto which also measures 7 marlas. This property being 14 marlas was owned by Abdur Razaq Defendant No. 1. The plaintiffs/appellants and the proforma Defendant/Respondent No. 3 are the legal heirs of the said Abdur Razaq. The plaintiffs instituted a suit on 5.9.2002 for the declaration that they were the owners in possession of the said house on the basis of a gift deed dated 2.9.1998 and that the registered Deed No. 596 whereby the said Abdur Razaq (Defendant No. 1) allegedly transferred the suit property to the Defendant No. 2 Mst. Nageena Bibi was wrong, fictitious, fraudulent, illegal and ineffective on the rights of plaintiffs. There was also a prayer for the cancellation of the said registered deed. In the alternative a prayer for possession of the house by the cancellation of the said deed dated 3.8.2002 was made, if during the pendency of the case the defendants dispossess the plaintiffs of the said house. This suit was contested by a written statement of the Defendant No. 2 dated 11.11.2002 and subsequently the said Defendant No. 2 (now Respondent No. 1) instituted a suit for restoration of the possession under Section 9 of the Specific Relief Act on 21.2.2003 and consequential thereto the suit for possession on the basis of the said registered documents and in the alternative the suit for recovery of the said transaction with damages was moved. In the body of the said plaint it was alleged that the Defendant No. 1 Abdur Razaq had sold the suit property by a registered deed attested on 6.8.2002 on receipt of the sale consideration of Rs.5,00,000/- and he inducted the plaintiff Mst. Nageena Bibi into possession of the house but the defendant allegedly took forceful possession by breaking the lock on 3.9.2002 and, therefore, a criminal case vide F.I.R. No. 144 dated 3.9.2002 has been registered against them. Hence it was prayed that the possession be restored.
If the dispossession was not made a decree for possession be granted and in the alternative the relief as stated hereinabove be granted. Both the suits were consolidated by the learned trial Court and consolidated issues were framed. After recording the evidence the learned Civil Judge passed the impugned decree on 16.4.2005."
The learned trial Court dismissed the suit (Suit No. 96/1 of 2002) filed by Mst. Tahzim Akhtar & others and decreed appellant's suit (Suit No. 17/1 of 2003) only to the extent of reliefs Alaf ( ) and Bai ( ), while rest of the claims of the appellant/plaintiff were rejected, vide consolidated judgment and decrees dated 16.04.2005. Mst. Tahzim Akhtar & others filed the appeal (RFA No. 48 of 2005) and the learned single Judge in Chambers decided it in the following manner:--
"12. Hence this appeal is partly allowed. The impugned judgment and decree of the learned trial Court is set aside and instead of decree for possession, the decree of the alternative prayer of recovery of sale consideration and cost of sale to the extent of Rs.5,32,500/- is granted in favour of Mst. Nageena Bibi respondent/plaintiff of Suit No. 17/1 of 2003 against Abdul Razaq Defendant-Respondent No. 2. No order as to costs.
Hence the present appeal.
Learned counsel for the appellant, while referring to Article 79 of the Qanun-e-Shahadat Order, 1984, stated that Respondents No. 1 to 6, in order to prove the gift deed, were required to produce two witnesses, but they only produced one of the marginal witnesses (Muhammad Manzoor) and failed to adduce in evidence the other marginal witness (Sadiq Shah) and the scribe. He, in view of Section 123 of the Transfer of Property Act, 1882, submitted that the gift deed was compulsorily registerable under Section 17 of the Registration Act, 1908 and as it was not registered, therefore, it did not confer any right and title upon the donees. He referred to "Allah Diwaya v. Ghulam Fatima (PLD 2008 Supreme Court 73). His next contention was that Mst. Tahzim Akhtar & others in their suit did not challenge the sale-deed dated 06.08.2002 in appellant's favour, which will go to show that the respondents acknowledged the correctness of the sale-deed. He added that the appellant, as an alternative relief, claimed the consideration price of the sale-deed, expenses and a sum of Rs.5,00,000/- as damages, but the learned High Court only awarded sale consideration and costs of sale to the extent of Rs.5,32,500/-, and the amount of damages was not granted to the appellant, for which she is entitled. Conversely, learned counsel representing Respondents No. 1 to 6, submitted that Section 79 of the Qanun-e-Shahadat Order, 1984 is not applicable in this case, as declaration of gift does not require to be attested by two witnesses and the respondents/plaintiffs proved execution of declaration of gift by producing one of the witnesses, which was supported by the statement of the plaintiff, and the other witness namely Sadiq Shah had already died. She, while relying upon "Maulvi Abdullah v. Abdul Aziz (1987 SCMR 1403)", contended that gift under the Islamic Law is recognized and the plaintiffs proved that Abdul Razaq validly gifted the property to Respondents No. 1 to 6. As regards the alternative claim of the appellant, her stance is that the claim of damages was neither pleaded, in detail, in the plaint by the appellant, nor substantiated by evidence, therefore, it was rightly declined by the learned High Court.
We have heard the learned counsel and examined the available record. Section 79 of the Qanun-e-Shahadat Order, 1984 prescribes that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witnesses alive. A bare examination of the contents and title of the said document (Exh:PW.3/1), amply manifests that the said document is not a gift deed but a declaration of gift evidencing the factum of gift. A declaration of gift cannot be equated with a gift deed, which has different dimensions and parameters as compared to the former. It is true that gift deed is a document, which is compulsorily required by law to be attested by two witnesses, but it is equally true that in the instant case the declaration of gift cannot be termed as gift deed. According to the showings of Respondents No. 1 to 6, Respondent No. 7 gifted the property to his wife, sons and daughters under the Muhammaden Law and the said declaration of gift only established that in fact the gift was made. There is no cavil to the proposition that under the Muhammaden Law a gift by a Muslim would be complete, if a person proved the three necessary and inseparable ingredients i.e. (i) declaration/offer by the donor; (ii) acceptance of gift by the donee; and (iii) delivery of possession under the gift. It has been held by this Court in the case of Maulvi Abdullah (ibid), relied upon by the learned counsel for the respondents, that a gift by a Muslim would be complete, even if there is no writing and three ingredients i.e. (i) declaration of gift by the donor; (ii) acceptance of gift expressly or impliedly by or on behalf of the donee; and (iii) delivery of possession of the subject-matter by the donor to the donee are proved. Declaration of gift (Ex.PW.3/1) shows that Respondent No. 7 out of love and affection offered his wife and children to gift the property to them, which offer was accepted by Respondents No. 1 to 6, inasmuch as, the possession was transferred under the gift. Not only this but all the donees also in token of acceptance of the offer of gift and taking over the possession of the questioned property affixed their signatures on the declaration of gift. Besides, the said document was witnessed by Sadiq Shah and Muhammad Manzoor. Thus, all the ingredients necessary for completion of a valid gift under the Muhammaden Law were fulfilled and it cannot be argued that no valid gift was made. In view whereof, the gift under the Muhammaden Law was complete in favour of Respondents No. 1 to 6. Assuming, as per the contention of the learned counsel, that declaration of gift (Ex.PW.3/1) was necessarily required to be attested by two witnesses, we have noticed that the said document is witnessed by two witnesses namely Sadiq Shah and Muhammad Manzoor, out of whom Muhammad Manzoor appeared as PW.4 and supported the claim of Respondents No. 1 to 6. The other witness Sadiq Shah could not be produced in evidence, as he was dead at the time of recording of the evidence. It has been proved on record, through the statements of Respondent No. 1 (PW.3) and Muhammad Manzoor (PW.4) that Sadiq Shah had already died, which fact was not disputed by the appellant, who failed to bring on record any evidence to rebut the statements of PW.3 & PW.4 on this material point. PW.4, who is one of the witnesses of the document, has fully supported the claim of Respondents No. 1 to 6. According to Section 79 of the Qanun-e-Shahadat Order, 1984, a litigant in order to prove a document is required to produce two attesting witnesses, if they are alive. It flows therefrom that if two attesting witnesses are not alive, then execution of a document could be proved by producing other admissible evidence. Even if it be taken that Section 79 of the Qanun-e-Shahadat Order, 1984 is applicable in the case in view of demise of Sadiq Shah, one of the witnesses of the document, it was not possible for the respondents to produce the second witness. Respondents No. 1 to 6 by producing one of the witnesses of the document coupled with the statement of Respondent No. 1, under the circumstances of the case in hand, have proved the execution of declaration of gift.
Now adverting to the next contention of the learned counsel. Although, Section 123 of the Transfer of Property Act, 1882, referred to by learned counsel for the appellant, does provide that for the purposes of making a gift of an immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses, yet Section 129 of the Act provides that this Chapter relating to gifts (Sections 122 to 128) shall not affect any rule of Muhammaden Law, which provision of law is a complete answer to the contention raised by learned counsel for the appellant. This Court in Maulvi Abdullah's case (ibid), while dealing with Sections 123 and 129 of the Transfer of Property Act, 1882 has held that a gift by a Muslim can be completed even without any writing and such gifts are expressly excluded from the operation of the Transfer of Property Act. It appears appropriate to reproduce the relevant portion of the judgment, which reads as under:--
"An objection based on Section 123 of the Transfer of Property Act to the effect that a gift of an immovable property cannot be made except through a registered instrument was raised but it was repelled with reference to Section 129 of the Act which provided that nothing in the chapter in which Section 123 fell would affect any rule of Muslim Law. It was held that according to Muslim Law an oral gift of an immovable property could be made provided other conditions for a Muslim gift were satisfied."
In view of Section 129 of the Transfer of Property Act, 1882, as interpreted by this Court in the case of Maulvi Abdullah (ibid), the contention of the learned counsel is devoid of any consideration.
As regards the case of Allah Diwaya (ibid) relied upon by the learned counsel for the appellant, to contend that gift deed was compulsorily registerable under Section 17 of the Registration Act, 1908, suffice it to say that in that case this Court has held that, "The dictum as laid down in Maulvi Abdullah's case (supra) cannot be made applicable in this case because the facts in both the cases are quite distinguishable". We have observed that in the case of Allah Diwaya (ibid) the gift could not be proved, while in the case in hand Respondents No. 1 to 6 proved the gift and execution of declaration of gift. In view whereof, the case of Allah Diwaya (ibid) is of no help to the appellant.
Now coming to the next contention of the learned counsel. It has been alleged that Respondents No. 1 to 6, the donees, in their suit did not challenge the sale-deed dated 06.08.2002 in appellant's favour. We have examined the contents of the plaint and find that Respondents No. 1 to 6/plaintiffs specifically sought declaration qua sale-deed dated 03.08.2002, labeling it as illegal, forged, fictitious and mala-fide. The said contention appears to have been raised without perusing the contents of the plaint.
As regards the claim of damages, although the appellant, as an alternative relief, claimed damages amounting to Rs.5,00,000/-, yet no details regarding the amount of damages were given in the plaint. We have examined the evidence on record and found that the appellant could not prove that she has sustained any sort of damages. No evidence was led by the appellant to prove the quantum of damages and thus her claim for damages was rightly rejected by both the Courts. It may be noted that the learned trial Court also disallowed appellant's claim of damages and the appellant did not file any appeal or cross-objection against the judgment dated 16.04.2005 or challenged the findings on the issues, which were decided against her. We noticed that no issue on the question of damages was framed by the learned trial Court.
In the above perspective, we have examined the impugned judgment and find that the same does not suffer from any legal infirmity. The learned single Judge in Chambers rightly reversed the findings of the learned trial Court and while striking a balance between the parties on the one hand decreed the suit filed by Respondents No. 1 to 6, and on the other hand granted the alternative relief to the appellant for refund of sale consideration of Rs.5,00,000/-, alongwith the amount incurred on transfer thereof amounting to Rs.32,500/-. No misreading or non-reading of evidence on record has been pointed out by the learned counsel for the appellant, which could persuade us to interfere in the impugned judgment, which is hereby maintained.
For the foregoing reasons, the present appeal, being devoid of merits, stands dismissed with no order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 429
[Appellate Jurisdiction]
Present: M. Javed Buttar & Zia Perwez, JJ.
CIVIL AVIATION AUTHORITY, QUAID-E-AZAM, INTERNATIONAL AIRPOT, KARACHI--Petitioner
versus
JAPAK INTERNATIONAL (PVT) LTD., LAHORE--Respondent
Civil Petition No. 1392 of 2008, decided on 20-01-2009.
(On appeal from the judgment dated 06-08-2008 of the High Court Sindh, Karachi in H.C.A No. 56/2005)
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, Rr. 6 & 7--Claim for recovery--Equitable set off & legal set off--Distinction--Equitable set off are when the claims of the two parties arise out of the same transactions which can be regarded as one transaction or the cross demands are so connected, in their nature and circumstances that they can be looked upon as part of one transaction or a final settlement of accounts and part payments against running bills for different items of works executed under a contract--Such a set off is called an equitable set-off, whereas legal set off, which was allowed by the Courts of common law in respect only of ascertained sum. [P. 433] C & D
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, R. 6--Scope--Equittable set off as a legal set-off--A claim for equitable set-off falls outside the provisions of Order VIII Rule 6, C.P.C.--It is permissible for a defendant to plead an equitable set off as effectively as a legal set off. [P. ] E
Set-off and Counter Claim--
----Distinction--Cross actions on the part of the defendant but a set off is essentially a weapon of defence--If the defendant succeeds in establishing it, it serves the purpose of answering to the plaintiffs claim either wholly or pro tanto, because set off is really an outstanding ascertained amount not required to be proved by leading evidence of fact constituting the claim as in a case of decree in the favour of the defendant or other such established claim--Such debt may be claimed by the defendant against the plaintiff to counter balance the debt claim of the plaintiff against the defendant--A counter claim on the other hand is essentially a weapon of offence and is not really relevant as a plea in defence to the claim of the plaintiff. [Pp. 433 & 434] F & G
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII, Rr. 6 & 7--Right to counter claim--Condition precedent--Right to make a counter claim is not admissible if it does not fall within the ambit of Order VIII Rule 6, C.P.C. or qualify as an equitable set off.
[P. 434] H
Civil Procedure Code, 1908 (V of 1908)--
----O.VIII, R. 9--Claim for set off--Bared from claiming--After filing of written statement without claiming any set off, the party is barred from raising such a defence which is not claimed in written statement--Claim for set off can be presented at a subsequent stage only after leave of Court under provisions of Order VIII, R. 9 of C.P.C.
[P. 432] A
Civil Procedure Code, 1908 (V of 1908)--
----O.XX, R. 19--Decree when set off is allowed--Plea of legal set off--Defence and counter claim--In essence of a counter claim of specific kind--Validity--Where it is for an ascertained amount exceeding the plaintiffs claim in his suit for recovery of money--Held: Doctrine of equitable set off permits on equitable considerations a defendant to raise a plea of set off even in respect of an unascertained sum of money on the principle--If there be connection between plaintiffs claim for a debt, the defendant's claim of set off, it will be in equitable to drive the defendant to separate suit. [P. 433] B
Civil Procedure Code, 1908 (V of 1908)--
----O.VIII, R. 9--No specific claim for set off or counter claim was set forth by petitioner in written statement--No application for leave to appeal of the Court--Court fees was not affixed--Validity--Petitioner cannot be encouraged to plead its own lapses and negligence as a ground for setting aside judgments which do not suffer from any legal infirmity. [P. 434] I
PLD 1983 SC 5, Ref.
Ms. Naheeda Mahboob Ellahi, ASC with Mr. Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 20.1.2009.
Judgment
Zia Perwez, J.--Petitioner seeks leave to appeal against the judgment dated 06.8.2008, whereby High Court Appeal No. 56 of 2005 was dismissed by a learned Division Bench of the High Court of Sindh, Karachi.
The learned Single Judge of the High Court of Sindh recorded the judgment in favour of the respondent for a sum of Rs. 30,12,092.00 with markup @ 10 % per annum from the date of institution of suit till realization. The judgment was upheld in appeal by the learned Division Bench of the High Court through the judgment impugned herein.
Ms. Naheeda Mehboob Ellahi, learned ASC for the petitioner, while stressing upon the documents placed reliance on the evidence brought on record as Exh.44/D-16, which is a statement showing the financial implication of the work i.e. Extension of terminal building (1« level scheme) at Lahore Airport executed by the contractor M/s. Japak International (Pvt) Ltd. This document reflected an amount of Rs.71,46,663.00 to be recoverable from the contractor. The main contention of the learned counsel for the petitioner is that as the amount stands admitted on the basis of record, the Courts below have erred in arriving at the conclusion to the effect that the respondent is entitled to recover the decreed amount. She lastly argued that as the amount due to the petitioner was not taken into consideration the petitioner may be allowed leave to appeal against the impugned judgment.
We have perused the record in the light of the arguments advanced by the learned counsel for the petitioner. The claim for recovery due to the respondent attracts the provisions of Order VIII, Rules 6 & 7 C.P.C., which read as follows :--
"6. Particulars of set-off to be given in written statement.--(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sough to be set-off."
(2) Effect of set-off.--The written statement shall have the same effect as a plaint in a cross-suit so as enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in answerer to a claim of set-off."
"7. Defence or set off founded on separate grounds.--Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far may be, separately and distinctly"
"9 Subsequent pleadings.--No pleading to the written statement of a defendant other than by way of defence to a set-off shall be presented excerpt by the leave of the Court and upon such terms as the Court think fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."
The above provisions of law permit a defendant to raise in his defence what is called a legal set-off. The essential conditions of legal set-off are as follows :--
"1. The suit must be one for the recovery of money.
II. As regards the amount claimed to be set-off.
(a) it must be an ascertained sum of money ;
(b) such sum must be legally recoverable;
(c) it must be recoverable by defendant or by all the defendants if more than one;
(d) it must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one;
(e) it must not exceed the pecuniary limits of the jurisdiction of the Court in which the suit is brought; and
(f) both parties must fill, in the defendant's claim to set-off, the same character as they fill in the plaintiffs' suit."
Thus a plea of legal set-off, in its essential character is a defence and a counterclaim combined, defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance. This rule read with Order XX, Rule 19, C. P. C. permits what is in essence a counter claim of a specific kind, namely, where it is for an ascertained amount exceeding the plaintiff's claim in his suit for recovery of money. The doctrine of equitable set-off permits on equitable considerations a defendant, to raise a plea of set-off even in respect of an unascertained sum of money on the principle that if there be some connection between the plaintiff's claim for a debt and; the defendant's claim to set off, it will be inequitable to drive the defendant to a separate suit. Instances of such equitable set-off are when the claims of the two parties arise out of the same transaction or transactions which can be regarded as one transaction or the cross demands are so connected, in their nature and circumstances that they can be looked upon as part of one transaction or a final settlement of accounts and part payments against running bills for different items of works executed under a contract. Such a set-off is called an equitable set-off, as it was allowed by the Courts of Equity in England, as distinguished from a legal set-off, which was allowed by the Courts of Common Law in respect only of an ascertained sum. In a number of decisions in the Sub-Continent, it has been held that although a claim for equitable set-off falls outside the provisions of Order VIII, Rule 6, C. P. C. it is permissible for a defendant to plead an equitable set-off as effectively as a legal set-off. This view finds support from the proposition that the provisions of the Code regulate procedure only, and they do not have the effect of taking away any right to set-off which a defendant may otherwise have independently of its provisions. Order XX, Rule 19 C.P.C. is a further statutory recognition of the right of a defendant to plead an equitable set-off and obtain relief thereon. However, there is well-recognized distinction between a set-off and a counter claim. Although in one sense both are identical inasmuch as they are cross actions on the part of the defendant but a set-off is essentially a weapon of defence. If the defendant succeeds in establishing it, it serves the purpose of answering to the plaintiff's claim either wholly or pro tanto because a set-off is really an outstanding ascertained amount not required to be proved by leading evidence of fact constituting the claim as in a case of decree in the favour of the defendant or other such established claim. Such debt may be claimed by the defendant against the plaintiff to counter-balance the debt claim of the plaintiff against the defendant. A counter claim, on the other hand, is essentially a weapon of offence and is not really relevant as a plea in defence to the claim of the plaintiff. It enables a defendant to have an issue framed and to establish and prove the claim by adducing evidence. On proof defendant may enforce a claim against the plaintiff as effectually as in an independent action. In such cases the defendant is also required to affix the prescribed ad valorem Court-Fees under Art. I of Sch. 1 of the Court-Fees Act, 1870 (as amended in 1908). Its essential nature is that of a cross suit pleaded through the written statement, but, in the same suit. Having regard to these essential ingredients of a counter claim, it is plain that a right to make a counterclaim is not admissible if it does not fall within the ambit of Order VIII, rule 6, C. P. C. or qualify as an equitable set-off. The right to make a counter claim has been always held to be a statutory right and as already observed there is nothing in the Code of Civil Procedure conferring the right, to plead such counter claim, upon a defendant without proper adjudication by a competent forum if the same is disputed by the plaintiff as in the instance case as observed by this Court in the case of Syed Niamat Ali and four others v. Dewan Jairamdass and another (PLD 1983 SC 5).
Perusal of the pleadings reflects that no specific claim for set-off or counter claim was set forth by the petitioner in their written statement filed before the learned Court. No application for leave to appeal of the Court under the provisions of Order VIII, Rule 9 C.P.C. nor the prescribed Court Fees was affixed as provided under Art. I of Sch. 1 of the Court-Fees Act, 1870 (as amended in 1908) nor any issue to his effect was framed. At this stage, the petitioner cannot be encouraged to plead its own lapses and negligence as a ground for setting aside judgments, which otherwise do not suffer from any legal infirmity. Under the circumstances, the judgment of the trial Court as well as findings in appeal based on issues duly proved by evidence on record do not call for any interference.
For the foregoing reasons, as no ground for grant of leave to appeal is made out, this petition is dismissed and leave to appeal is refused.
(W.I.B.) Petition dismissed.
PLJ 2009 SC 435
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
SECRETARY MINISTRY OF EDUCATION GOVERNMENT OF PAKISTAN, ISLAMABAD and another--Petitioners
versus
MUHAMMAD AZAM CH. and another--Respondents
C.P. No. 1124 of 2008, decided on 19-09-2008.
(On appeal from the order dated 07-06-2008 of the Federal Service Tribunal, Islamabad passed in Appeal No. 980(R)CS/2006)
Civil Servant, Appointment, promotion and Transfer Rules, 1973--
----R. 6(4)--Constitution of Pakistan, 1973, Art. 212(3)--Leave to appeal--Termination--Probationary period--Not extended beyond the period of one year--Terminated without any reasons--Validity--Held: Period of probation stood extended by one more year, where after the respondent became a permanent employee--Service of the respondent can be terminated without assigning any reason during his probationary period is not tenable. [P. 439] A
Civil Servant, Appointment, promotion and Transfer Rules, 1973--
----R. 6(4)--Constitution of Pakistan, 1973, Art. 212(3)--Termination--Show-cause notice was not issued--Probation period--Probation period was not extended--Absence of express extension legal status of employee-reversion and termination--Validity--If in the opinion of the government the work and conduct of civil servant during the probationary period was found unsatisfactory, Government may discharge/revert him forthwith or extend his probationary period for further one year as it may think fit--Work of the respondent was unsatisfactory or that probationary period was liable for extension for further one year--No specific extension in his probationary period is on the record--Order first of reversion and then of termination is without authority--Held: Services of the civil servant could not be terminated without assigning any reason/disciplinary action.
[Pp. 439 & 441] B, C & D
Mr. Niaz Ahmad Rathore, DAG with Mr. M.S Khattak, AOR for Petitioners.
Mr. M. Shoaib Shaheen, ASC with Mr. Arshed Ali Ch. AOR for Respondent 1.
Nemo for Respondent No. 2.
Date of hearing: 19.9.2008.
Judgment
Ijaz-ul-Hassan, J.--This petition for leave to appeal arises from the judgment dated 7.6.2008 rendered by learned Federal Service Tribunal, Islamabad accepting Appeal No. 980 of 2006 preferred by respondent Muhammad Azam Chaudhry, setting aside the impugned notifications dated 22.2.2006, 11.7.2006 and 23.8.2006 and treating the intervening period as the kind of leave due. The petitioner department was, however, allowed to proceed against the respondent, if so advised, in accordance with law.
The facts which we have been able to gather from the record of the case are, that in pursuance of advertisement dated 24.10.2003, appearing in daily Jang' Rawalpindi, respondent-Muhammad Azam Chaudhry serving as Deputy Librarian (BS-18) in the
Arid Agriculture University, Government of Punjab, Rawalpindi, applied and was appointed to the post of Director (BS-19) in the Department of Libraries, Ministry of Education, Islamabad through the Federal Public Service Commission with effect from 28.6.2004. The respondent was initially on probation for a period of one year. According to the respondent, the period of probation was not extended beyond the period of one year and as such respondent would be deemed to have been absorbed onregular basis' to the post of Director
(BS-19). The respondent' feeling aggrieved of being deprived of certain privileges, filed Appeal No. 154/2006 before the Tribunal, which was dismissed on 6.7.2006 on the ground that respondent had not filed the departmental appeal. During the pendency of the earlier appeal, respondent applied for the grant of temporary injunction against apprehended adverse action, regarding service which stay order was granted. During the subsistence of the stay order, respondent was ordered to be revered to the post of Deputy Librarian (BS-18) in the Arid Agriculture
University, Rawalpindi. The order of reversion was suspended by the Tribunal. Later, on the dismissal of the said appeal, petitioner-department passed the order vide Notification dated 11.7.2006 whereby respondent was reverted to his former post of Deputy Librarian (BS-18) and was ordered to be relieved from post of Director (BS-19). Vide further
Notification dated 23.8.2006, the services of the respondent as Director
(BS-19), Department of Libraries were terminated. Both the notifications were challenged in appeal.
Mr. Niaz Ahmed Rathore, learned Deputy Attorney General, representing the petitioner-department, challenged the impugned judgment on variety of grounds and contended, inter-alia, that Federal Service Tribunal in the facts, law and circumstances of the case had no justification to accept the appeal of the respondent; that Government servant on probation cannot be confirmed/absorbed on `regular basis' without express notification to the post, that the probationer is taken into service subject to the final approval of the employer, that on appointment of a Government servant on probation, his lien to his parent department/post before confirmation/absorption is not terminated/and that there are no statutory rules providing confirmation, absorption of a probationer in his present post. The learned counsel also contended that according to Rule 6(4) of the Civil Servants Appointment, Promotion and Transfer Rules 1973, in case no order is issued regarding termination of probation, on the expiry of one year, the period of probation shall be deemed to have been extended under sub-rule (2) of the said Rules and that while the respondent was still in the extended period of probation, he was lawfully reverted to his former post of Deputy Librarian (BS-18) in the Arid Agriculture University vide notification dated 22.2.2006 and by subsequent notifications, respondent was relieved of his post to his parent department. The learned counsel further contended that termination of services of the respondent during the period of probation is termination simplicitor and no show cause notice was necessary. Concluding the arguments, learned counsel submitted that the termination of respondent was on account of unsatisfactory performance and lack of interest in the work and no show-cause-notice or inquiry was necessary. The learned counsel reiterated that a probationer is a temporary employee and as such enjoys the protection which is given by the Constitution to Government servants. A probationer is taken into service subject to the final approval of the employer, and the question as to whether he is or he is not to be employed remains to be finally decided. There is an implied condition in such an employment that the employer should be satisfied with the employee after trying him. It is in a sense a tentative appointment. In such a case it is not necessary that there should be any direct or indirect rescission of the contract, because satisfaction of the employer after trying the employee is a condition precedent to the final admittance of an employee into service. To supplement the contentions, learned counsel placed reliance on Tasnim Ali Mir versus The Federation of Pakistan and others, (PLD 1959 (W.P.) Karachi 62), Muhammad Afzal Khan versus Superintendent of Police, District Montgomery and others, (PLD 1961 (W.P.) Lahore 808), Mazhar Ali versus Federation of Pakistan/President of Pakistan through the Secretary, Establishment Division, Cabinet Secretariat and 2 others, (1992 SCMR 435) and Dr. Muhammad Tahir Achakzai and others versus Government of Balochistan and others, (1999 SCMR 1680).
Mr. Shoaib Shaheen, learned Advocate, for respondent, on the contrary, repudiated the arguments of learned counsel for the petitioner-department and defended the impugned judgment more or less on the same grounds incorporated in the judgment itself. To substantiate the contentions, learned counsel placed reliance on Muhammad Siddiq Javaid versus The Government of West Pakistan and Abdul Rashid Abbasi versus Superintendent of Police, Muzaffargarh and 2 others and Mumtaz Hussain Malik versus The Government of West Pakistan, (PLD 1974 SC 393), Punjab Road Transport Board versus Muhammad Fazil Hussain and another, (PLD 1983 Lahore 531), Mazhar Ali versus Federation of Pakistan/President of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others, (1992 SCMR 435), Amir Ahmed versus Secretary, Finance Division, Islamabad and another, (1993 SCMR 114), Syed Sajjad Hussain versus Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others, (1996 SCMR 284), The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others versus Riaz-ul-Haq, (1997 SCMR 1552) and Ch. Muhammad Hussain Naqshbandi versus Government of the Punjab and others, (2003 PLC (C.S) 1421).
We have heard the arguments of learned counsel for the parties at considerable length in the light of the material on record and the case law cited at the bar.
The record of the case reveals that respondent was employed as Deputy Librarian (BS-18) in the Arid Agriculture, Rawalpindi. The Federal Public Service Commission advertised a permanent post of Director (BS-19) in the Department of Libraries, Ministry of Education, Islamabad. The respondent applied for the said post. He was selected/appointed vide letter of appointment dated 28.6.2004. The appointment was made upon the recommendation of the Federal Public Service Commission. In pursuance of the said offer of appointment, respondent joined the Department of Libraries, Ministry of Education, Islamabad on 12.7.2004.
According to para-1(iv) of the letter of appointment, respondent was to be on probation initially for a period of one year. In case, the respondent did not successfully complete the probationary period, he was liable to be reverted or the period of probation extended. Vide Notification dated 22.2.2006, respondent was reverted to his former post of Deputy Librarian (BS-18), University of Arid Agriculture, Rawalpindi with immediate effect. This was followed by the Notification dated 11.7.2006 whereby respondent was relieved from the post of Director (BS-19). Through further Notification dated 23.8.2006 the service of respondent were terminated with effect from 22.2.2006.
Having considered the matter from all angles with reference to the material on file, we find that no reason whatsoever has been assigned for the termination of service of respondent. The respondent admittedly assumed the charge of the post of Director (BS-19) with effect from 12.7.2004. Even assuming that the period of probation stood extended by one more year, the same came to an end on 11.7.2006, where-after, the respondent became a permanent employee. The contention that the service of the respondent can be terminated without assigning any reason during his probationary period, is not tenable.
Secondly, the assumption of the petitioner-department that the probationary period stood extended, is also not apparent from the record. According to para-1(iv) of the letter of appointment, the respondent was on probation for a period of one year. If, however, in the opinion of the government, the work and conduct of the respondent during the probationary period was found unsatisfactory, the government may discharge/revert him forthwith or extend his probationary period for further one year as it may think fit. However, there is nothing on the record to show that the competent authority did form the opinion that the work of the respondent was unsatisfactory or that his probationary period was liable for extension for further one year. No specific extension in his probationary period is on the record. In this view of the matter the order first of reversion and then of termination is without lawful authority. Needles to emphasise that the order of termination with retrospective effect is a nullity in the eye of law. There is no justification for termination of service of the respondent particularly with effect from 22.2.2006. It is also noticed that upon his appointment as Director (BS-19) Department of Libraries, Ministry of Education, Islamabad against which post he worked continuously, .his lien against the post of Deputy Librarian (BS-18) was terminated. The order of reversion was without legal efficacy on this ground as well. So far as objection raised on behalf of petitioner-department, regarding non filing of departmental appeal is concerned, para 18 of the impugned judgment furnishes complete answer to it. The said para is reproduced below for facility-sake.
"18. The learned counsel for the respondents have vehemently argued that as the appellant had not filed any departmental appeal against the Notification dated 23.8.2006, the present service appeal before the Tribunal was not competent. This stand of the respondents is completely devoid of force. As hereinbefore observed the grievance of the appellant is against the illegal act of the respondents of first reverting him and lastly substituting the reversion with termination of service through Notification dated 23.8.2006. Departmental appeals filed by the appellant against the said action are self contained and disclose in detail the nature of his grievance. When queried, the learned counsel for the respondents conceded that the departmental appeals filed by the appellant were not decided through a speaking order. Having not responded to the departmental appeals, it is idle for the respondents to contend that the appellant should have preferred a departmental appeal against the Notification dated 23.8.2006 before approaching this Tribunal. The object and purpose of the departmental appeal is to provide a tangible forum to the appellant for redressal of his grievance before he was obliged to approach the Tribunal for adjudication of his claim. Obviously the requirement of filing a departmental appeal prior to approaching the Tribunal is not to create a hurdle in the way of a bona fide litigant but to facilitate him to avoid unnecessary expense and effort in pursuing his appeal in a legal forum. We observed that while much furore is raised for filing of the mandatory departmental appeal, a vast majority of Government departments do not take the departmental appeal with any seriousness. More often than not the departmental appeals remain un-actioned. It can never be the intention of the legislature to make the filing of departmental appeal as a hurdle in the way of an appellant. Invariably the requirement of the departmental appeal is used as stumbling block for the appellant rather than facilitating him in the pursuit of his relief. As observed hereinbefore, the appellant did file departmental appeal(s) against the Notification dated 22.2.2006 and 11.7.2006. According to the showing of the respondents themselves, the Notification dated 23.8.2006 was a mere continuation of the earlier Notifications. The objection that non-filing of a departmental appeal against the last Notification, is fatal and thus without merit."
(W.I.B.) Leave refused.
PLJ 2009 SC 441
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
FUAD ASADULLAH KHAN--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Establishment
and others--Respondents
CPLA No. 1585 of 2000, decided on 10.11.2008.
(On appeal against the judgment of the Federal Service Tribunal Islamabad, dated 16-08-2000 passed in Appeal No 867-R/97)
Word and Phrases--
----Reversion--Meaning--Word reversion means is to return to previous state--In service laws when a person is directed to return to a lower post from a higher post, is said to be reverted--Reversion is always bound to bring about a reduction in rank. [P. 444] A & B
AIR 1974 SC 423 & AIR 1987 SC 1627, ref.
Reversion--
----A direct recruit to a post cannot be reverted to a lower post--Promotee who can be reverted from the promotion post to the lower post from which is he promoted. [P. 444] C
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--
----R. 6(2)--Constitution of Pakistan 1973--Art 212(3)--Termination from service--Illegal appointment--Illegality committed by department--Basic eligibility fulfilled by the appointee--Principle--Once the appointees are qualified to be appointed their services cannot subsequently be terminated on the basis of lapse and irregularities committed by the department itself--Such laxities and irregularities committed by the government can be ignored by the Courts only, when the appointees lacked the basic eligibilities otherwise not.
[P. 446] D
2006 SCMR 285 & 2007 PLC (CS) 179, ref.
Efficiency and Discipline Rules, 1973--
----R. 5--Charge of misconduct--Imposition of major penalty--Inquiry--Principle--Held: Awarding major penalty, a proper inquiry is to be conducted in accordance with law, where a full opportunity of defence is to be provided to the delinquent officer. [P. 446] E
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--
----R. 6(2)--Constitution of Pakistan 1973--Art 212(3)--Reverted from the post--Reversion of the petitioner from the post of Director to the post of Deputy Director--Challenge--Validity--Held: Neither petitioner was found to be lacking in qualification, experience or in any ineligibility in any manner, nor any fault has been attributed to petitioner, therefore he cannot be reverted from the post of Director--Further held: Not sustainable as petitioner was appointed legally and validly by the competent authority in accordance with the prescribed rules. [P. 447] F & G
Hafiz S.A. Rehman, Sr. ASC for Petitioner.
Sardar Muhammad Ghazi, D.A.G. for Respondents.
Date of hearing: 3.11.2008.
Judgment
Ijaz-ul-Hassan, J.--Petitioner, Fuad Asadullah Khan, through instant petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the judgment dated 23.08.2000 of Federal Service Tribunal, Islamabad, dismissing petitioner's appeal, challenging Notification dated 08-07-1997 issued by Intelligence Bureau, Respondent No. 2, whereby petitioner was reverted from the post of Director (B-19) to the post of Deputy Director (B-18).
Facts giving rise to the filing of instant petition are, that petitioner possessing Degree of B.E. (Electronics) was appointed as Deputy Assistant Director (B-17) on regular basis on 18-4-1990 by the respondent Bureau. Petitioner was promoted in due course as Deputy Director (B-18) with special pay of Rs. 330/- per month vide notification dated 27-9-1995. Thereafter, petitioner was given current charge of the post of Director (BPS-19) from September 28, 1995 to December, 1995 and also for another period of 3 months from December 31st 1995 to March 29, 1996.
On 13-3-1996, post of Director (B-19) was advertised by respondent Bureau, requiring the candidates having qualification of B.E. (Electronics) 1st Division with minimum experience of five years in the field of communication and security. The petitioner having the required qualification and experience applied through proper channel, for appointment against said post. Petitioner was called for interview on 25.3.1996 vide memo dated 21-3-1996 of the respondent Bureau. After interview by the Selection Board, petitioner was selected for appointment as Director (B-19). In pursuance of the orders contained in the Establishment Division Office Memorandum dated April 8, 1996, petitioner was appointed as Director (B-19) with special pay of Rs. 275 per month, vide Notification dated April 9, 1996, issued by respondent Bureau. It appears that on change of the Government and taking over by the new Director General in the respondent Bureau, a summary was initiated by the incumbent Director General on 28-12-1996 for the Secretary, Establishment Division, recommending termination of services of petitioner on the ground that appointment of petitioner as Director (B-19) was irregular. Secretary, Establishment Division, being competent authority under Rule 6(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 read with Serial No. 121 Estacode 1989 Edition, instead of dealing with the matter himself, on March 8, 1997 moved a summary for the Prime Minister with specific mention that termination of the services of the petitioner as Director (B-19) was not tenable as all the procedural formalities had been complied with. However, the Prime Minister ordered that petitioner be reverted to the post of Deputy Director (B-18) and be posted out of respondent Bureau to avoid any adverse reaction from him in a sensitive organization. Consequently, notification dated July 8, 1997 was issued by respondent Bureau as stated and mentioned above. Petitioner filed department appeal and after expiry of statutory period of 90 days, approached Federal Service Tribunal, Islamabad, by way of filing Appeal No. 867(R)/1997, which was dismissed vide judgment impugned herein.
We have heard in detail Hafiz S.A. Rehman, learned Senior Advocate for petitioner and Sardar Muhammad Ghazi, learned Deputy Attorney General for respondents and have also examined the material on record with their assistance.
Learned counsel for petitioner bitterly criticized the impugned judgment and contended with vehemence that learned Tribunal has not appreciated the matter in its true perspective and has proceeded on wrong premises to hold that petitioner's appointment/ selection as Director (B-19) was made with legal/procedural infirmities of substantial nature; that appointment of a civil servant made in accordance with the prescribed rules and procedure by a competent authority can not be declared irregular by other functionaries of the Government; that advice of the Establishment Division was binding on all concerned under Rule 11 (c) to (e) of the Rules of Business 1973 and as such appointment of petitioner could not be reversed/set aside being legally justified. Learned Counsel also submitted that there was no justification in referring the matter to the Prime Minister, when the same had been made final by the Establishment Secretary. Prime contention of learned Counsel was that notification of petitioner's reversion was bad in law and violative of the principles of Locus Ponitentiae and that reversion could only be made, had petitioner been promoted to a higher post whereas in this case petitioner was not promoted to the post of Director (B-19) but was directly appointed under the required procedure and rules. Further contention of learned Counsel was that reversion to lower post is a major punishment provided in Rule 4(1)(b) of the Government Servants (E&D) Rules 1973, which could not have been awarded without assigning any reason, issuing any charge sheet, holding of regular inquiry, issuance of show-cause notice and affording opportunity of hearing, which are lacking in petitioner's case.
Learned Deputy Attorney General representing the respondents, on the contrary, repelled the arguments of learned petitioner's counsel and attempted to argue that since petitioner was holding the post of Deputy Director (B-18) prior to his appointment as Director (B-19) in the same department, therefore, competent authority was fully justified to revert him to his substantive post and that reversion was the only option in petitioner's case.
Having examined the matter anxiously in the light of submissions made by both learned counsel and the material on the file, we find force in the submissions of learned counsel for petitioner. We feel it appropriate to examine term "reversion" used in service laws. Dictionary meaning of word "reversion" is return to previous state. In service laws when a person is directed to return to a lower post from a higher post, is said to be reverted. The return obviously implies that the incumbent must have held the lower post at some point of time and from which he has promoted in service. In its immediate effect the reversion is always bound to bring about a reduction in rank. It connotes a movement from a higher position already held by a civil servant. Reversion from higher to lower post of a civil servant may be made under certain circumstances. The question of reversion can only arise when a valid and proper promotion has been made. A direct recruit to a post cannot be reverted to a lower post. It is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted. For example, if promotion has been given by mistake, then a subsequent reversion made with a view to rectify such mistake, cannot, in the strict sense, be considered as reversion and a fortiori, as a punishment. State of UP vs. Sughar Singh (AIR 1974 SC 423), Hussain Sasansaheb Kaladgi vs State of Maharashtra (AIR 1987 SC 1627), Nyadar Singh vs. Union of India (AIR-1988-SC-1979).
In the present case, petitioner was never promoted but was directly appointed as Director (B-19) after fulfilling the prescribed procedure, therefore, petitioner's reversion to the post of Deputy Director (B-18) is not sustainable. Learned Tribunal dismissed the appeal of petitioner on the ground that his appointment selection as Director (B-19) was made with legal procedural infirmities of substantial nature. While mentioning procedural infirmities in petitioner's appointment, learned Tribunal has no where pointed out that petitioner was, in any way, at fault, or involved in getting the said appointment or was promoted as Director (B-19). The reversion has been made only after the change in the Government and the i departmental head. Prior to it, there is no material on record '. to substantiate that petitioner was lacking any qualification, experience or was found inefficient or unsuitable. Even in the summary moved by the incumbent Director General of respondent Bureau he had no where mentioned that petitioner was inefficient or unsuitable to the post of Director (B-19) or lacked in qualification, and experience, except pointing out the departmental lapses in said appointment.
Admittedly, rules for appointment to the post of Director
(B-19) in the respondent Bureau were duly approved by the competent authority; petitioner was called for interview and was selected on the recommendation of Selection Board, which recommendation was approved by the competent authority.
"Even otherwise, the respondent (employee) could not be punished for any action or omission of petitioner (department). They cannot be allowed to take benefits of their lapses in order to terminate the service of respondent merely because they had themselves committed irregularities by violating the procedure governing the appointment. On this aspect, it would be relevant to refer the case to Government of NWFP, Zakat/Ushr, Social Welfare Department (supra) wherein this Court has candidly held that the department having itself appointed Civil Servant on temporary basis in violation of rules could not be allowed to take benefits of its lapses in order to terminate services of civil servants, merely because it had itself committed irregularity in violating procedure giving such appointments. Similarly in the case of Water Development Authority referred (supra) it has been held by this Court that where authority itself was responsible for making such appointment, but subsequently took a turn and terminated their services on ground of same having been made in violation of rules, this Court did not appreciate this conduct, particularly when the appointees fulfilled requisite qualification."
In Muhammad Zahid Iqbal & others vs. DEO Mardan and others (2006-SCMR-285) this Court observed that "principle in nutshell and consistently declared by this Court is that once the appointees are qualified to be appointed their services cannot subsequently be terminated on the basis of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts only, when the appointees lacked the basic eligibilities, otherwise not".
On numerous occasions this Court has held that for the irregularities committed by the department itself qua the appointments of the candidate, the appointees cannot be condemned subsequently with the change of Heads of the Department or at other level. Government is an institution in perpetuity and its orders cannot be reversed simply because the Heads have changed. Such act of the departmental authority is all the more unjustified when the candidate is otherwise fully eligible and qualified to hold the job. Abdul Salim vs. Government of NWFP through Secretary, Department of Education Secondary, Peshawar and others 2007-PLC (CS) 179.
It is well settled principle of law that in case of awarding major penalty, a proper inquiry is to be conducted in accordance with law, where a full opportunity of defence is to be provided to the delinquent officer. Efficiency and Discipline Rules 1973 clearly stipulate that in case of charge of misconduct, a full fledged inquiry is to be conducted. This Court in the case of Pakistan International Airlines Corporation through Managing Director, PIAC Head Office, Karachi Airport, Karachi vs. Ms. Shaista Naheed (2004-SCMR-316) has held that "in case of award of major penalty, a full fledge inquiry is to be conducted in terms of Rule 5 of E & D Rules 1973 and an opportunity of defence and personal hearing is to be provided". Specific reference is made to latest decisions of this Court in cases of Secretary, Kashmir Affairs and Northern Areas Division, Islamabad vs. Saeed Akhtar and another (PLD 2008 SC 392) and Fazal Ahmad Naseem Gondal vs. Registrar, Lahore High Court (2008 SCMR 114).
In the facts and circumstances, we find that in this case, neither petitioner was found to be lacking in qualification, experience or in any ineligibility in any manner, nor any fault has been attributed to petitioner, therefore, he cannot be reverted from the post of Director
(B-19). Act of sending summary by the Establishment Secretary to the Prime Minister was not in accordance with Rule 6(2) of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 as the Establishment Secretary was himself the appointing authority. The departmental authorities at the time of appointment of the petitioner as Director (B-19) did not commit any irregularity or illegality as has been affirmed by the Establishment Secretary in the summary to the Prime Minister. The power vested in the competent authority should have been exercised by the competent authority itself, fairly and justly. Decision has to be made in the public interest based on policy. It must be exercised by the proper authority and not by some agent or delegate. It must be exercised without restraint as the public interest may, from time to time, require. It must not be fettered or hampered by contracts or other bargains or by self imposed rules of thumb. So a distinction must be made between following a consistent policy and blindly applying some rigid rule. Secondly discretion must not be abused. In the case of Zahid Akhtar vs. Govt. of Punjab (PLD 1995 SC 530) this Court observed that "we need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait of a bureaucrat. It hardly need to be mention that a Government servant is expected to comply on those orders/directions of superior which are legal and within his competence".
As a result of the analysis, we are of the opinion that reversion of the petitioner from the post of Director (B-19) to the post of Deputy Director (B-18) is not sustainable as petitioner was appointed legally and validly by the competent authority in accordance with the prescribed rules. Consequently, the petition is converted in to appeal and allowed. The impugned judgment dated 16-8-2000 passed by learned Tribunal in Appeal No. 867/1997 and Notification dated 8.7.1997 of respondents are accordingly set aside. Petitioner is restored to the post of Director (B-19) by maintaining Notification dated 9.4.1996 of his appointment as such with all consequential benefits.
Above are the detailed reasons of our short order dated 3.11.2008 announced in Court.
(W.I.B.) Appeal accepted.
PLJ 2009 SC 448
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
Miss AMINA RAFIQUE--Petitioner
versus
JOINT ADMISSION COMMITTEE KHYBER MEDICAL UNIVERSITY
and others--Respondents
CPLA No. 312 of 2008, decided on 5.5.2008.
(On appeal from the judgment dated 28-02-2008 passed by the Peshawar High Court, Peshawar in W.P. No 336/07)
Educational Institution--
----Admission on reserved seat--Admission in MBBS at Khyber Medical College--Denial of admission--Abolishment of reserved seat--No facility was available at the area--Restoration of reserved seat by High Court--Qualification of petitioner outside the area--Question of--Requirement of study in the area--Validity--Held: Petitioner possesses the domicile of village District Haripur, which is a declared backward area but due to no-availability of requisite education facilities in that area she had to get admission in the Army Burn Hall College for girls--It was mandatory for the candidates to have obtained their Matric with Science and F.S.C Pre-Medical from the district/Agency of their domicile, but the proviso tagged to the main provisions makes it abundantly clear that the requirement was subject to the availability of the facility in the area, meaning thereby that when no facility was available in the said area the candidate could not have been disqualified for not fulfilling/complying with the criteria. [P. 452] A & B
2005 SCMR 340, Ref.
Mr. Rashid-ul-Haq Qazi, ASC for Petitioners.
Mr. Rooh-ul-Amin, ASC for Respondents No. 1, 4, 5, 6.
Qari Abdul Rashid, ASC for Respondent No 3.
Mr. Sartaj Ali Shah, Admn. Officer for Respondent No. 2.
Mr. M Nasir Mahfooz, ASC for Respondent No. 9.
Date of hearing: 5.5.2008.
Judgment
Ch. Ejaz Yousaf, J.--This civil petition for leave to appeal is directed against the judgment dated 28.2.2008 passed by the Peshawar High Court, Peshawar whereby Writ Petition No. 336 of 2007 filed by the petitioner, along with other connected petitions, was allowed with the observation that eligibility for admission in MBBS would be subject to qualifying SSC and F.Sc. examination from the backward area of the domicile.
"10. In the light of above referred judgments, we are of the firm view that a candidate for one of the reserved seats of backward areas, having obtained education from a place outside the District/Agency of respective backward area, cannot be considered at par with those who receive education from within the backward area or concerned District in case of non-availability of requisite educational facility in the backward area. We are also of the view that the criteria of eligibility for admission against seats reserved for backward areas of NWFP as given in the Prospectus for the year, 2007-08, issued by the respondents, is in accordance with accumulative effect of judgments referred to herein above."
"18. Admittedly, Miss Amina Rafique, petitioner in W.P. 336/07 has cleared here SSC and F.Sc examinations from District Abbottabad while Muhammad Waqar Farooqi, petitioner in W.P. 1960/07 has obtained the requisite Intermediate Pre-Medical education from Peshawar. Miss Sania Akhtar, petitioner in W.P.1965/07, had been studying at Turbela, District Haripur. The cases of these petitioners, at the time of resettling the merit list as ordered above, shall be dealt with in the light of contents of Para 10 ibid in respect of eligibility for seats allocated to NWFP backward area."
Being dissatisfied with the above observation the petitioner has challenged the said judgment through this petition.
Mr. Rashid-ul-Haq Qazi, learned counsel for the petitioner has contended that the petitioner is eligible for admission in the first professional MBBS at Ayub Medical College, Abbottabad against the seat reserved for backward area of Amazai because there was no educational facility available for girls in village Kaya, Utmanzai, Tehsil Ghazi, District Haripur as such under compulsion she had to take admission in Army Burn Hall College for Girls, Abbottabad. In this regard he produced the certificate issued by the District Officer Schools and Literacy Haripur, countersigned by the D.C.O., Haripur certifying that no Girls Primary School/Middle School or High School exists in the Utmanzai area, District Haripur. He further contended that Respondents No. 7 to 9 are not eligible for admission against the said reserved seat for the reason that Respondent No. 7 does not belong to Amazai or Utmanzai areas, rather he belongs to village Galli, situated in Amb (former Amb State) which is a settled area. Further, the said Respondent has obtained fake domicile certificate from Amazai area, against which a complaint has already been filed by the petitioner before the District Co-ordination Officer, Haripur, for necessary action. Respondent No. 8 although belongs to Amazai backward area but failed to fulfill the requisite condition of having obtained the education of SSC and FSc from the backward area, when this facility was available in the backward area, particularly in his village Nara, Amazai. To supplement his contention he produced certificate issued by the D.O. (M) Schools and Literacy, Haripur countersigned by DCO, Haripur, stating that the Government High School, Nara Amazai, was established in 1962 and was upgraded in 1984. He also produced the list of students of Science Group appeared in SSC examination from Government High School, Nara Amazai, issued by Controller of Examination, Board of Intermediate and Secondary Education, Abbottabad. He further contended that Respondent No. 9 is also not eligible for admission on reserved seat because she does not belong to backward area of Amazai as she belongs to village Charbagh, District Swabi, which does not fall in either backward area of Amazai or District Haripur. In support of the contention he produced report of the D.O.R & E of Swabi stating therein that the Respondent No. 9 was born at Charbagh Chaknodeh, Tehsil and District Swabi, and her parents were residing at Charbagh since 50/60 years. Further, her domicile certificate of Amazai was also cancelled by the District Officer Revenue & Estate/Collector, Haripur, vide order dated 22.3.2008. He further contended that none of the Respondents No. 7 to 9 have challenged the corrigendum for abolishing one seat reserved for the backward area of Amazai for admission in MBBS, therefore, they are not entitled to contest the seat restored by the High Court through the impugned judgment. He maintained that the petitioner is fully eligible for one reserved seat of Amazai area on the basis of entry test merit and eligibility as she stands at a higher pedestal than Respondents No. 7 to 9 but she was illegally refused admission in MBBS first professional for the session 2007-2008. In support of his contentions he relied upon the cases of Arif-ur-Rehman v. Govt. of NWFP through Secretary Education (2005 SCMR 340); and an unreported case decided by this Court, titled Bilal Khan Tanoli v. Joint Admission Committee, Ayub Medical College (Civil Appeal No. 1422 of 2006).
Learned counsel for the respondents, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner have contended that the petitioner was not qualified for admission against any of the seats reserved for backward areas as she did not obtain requisite education from her respective backward area. He further contended that the spirit of the policy regarding the reserved seat for backward area was to accommodate the socially and economically disadvantaged sections of the society who were handicapped in competing with their rival candidates from developed areas, having obtained education from institution providing better facilities in all respect. In this behalf reliance was placed on an unreported judgment delivered in the case of Manzoor Ahmad Oureshi v. Chairman Joint Admission Committee KMC & others (C.A. No. 1596 of 2005).
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case, minutely, with their assistance.
It has not been controverted that the petitioner possesses the domicile of village Kaya, Utmanzai, Tehsil Ghazi District Haripur, which is a declared backward area but due to non-availability of requisite education facilities in that area she had to get admission in the Army Burn Hall College for Girls, Abbottabad. The very fact also stands proved from the certificate dated 18.10.2007, issued by DO, S&L and countersigned by DCO, Haripur. No doubt as per clause 2 of the Prospectus for the year 2007-2008 for NWFP Medical & Dental Colleges, Khyber Medical University, Peshawar, it was mandatory for the candidates to have obtained their Metric with Science and F.Sc. Pre-Medical, from the district/Agency of their domicile, but the proviso tagged to the main provision makes it abundantly clear that the above "requirement" was subject to the availability of the facility in the area, meaning thereby that when no facility was available in the said area, the candidate could not have been disqualified for not fulfilling/complying with the said criteria. Here it would be advantageous to have a glance at the relevant clause which reads as follows :--
"2. The candidates must have obtained their Secondary School Certificate (Metric with Science and F. SC. Pre-Medical, Part-I and Part-II) from the district/Agency of their domicile, provided such facilities exist in the area. The candidate will have to provide a solid proof of non existence of such educational opportunities in the district of domicile through a certificate duly verified by the EDO (Education) and counter signed by the DCO/Political Agent of the concerned district/agency." (Underlining is ours).
Although, above aspect of the case was not considered by this Court in the case of Mst. Attiyya Bibi Khan & others v. Federation of Pakistan through Secretary of Education (2001 SCMR 1161), relied upon by the Peshawar High Court in the impugned judgment, but in the case of Arifur Rehman v. Govt. of NWFP through Secretary Education (2005 SCMR 340) the petitioner, who belonged to backward area, i.e. village Besak, Gadoon, District Swabi, and could not obtain F.Sc. from the district of his domicile due to non-availability of requisite educational
facility and obtained Diploma of Associate Engineering in Electrical Technology from the Government Polytechnic Institute, Abbottabad, was granted admission on the seat reserved for backward area of Gadoon. In a recent judgment delivered in an unreported case, titled as Bilal Khan Tanoli v. Joint Admission Committee, Ayub Medical College (Civil Appeal No. 1422 of 2006), this Court, after considering the above referred judgments, has held that the condition of obtaining requisite qualification from the same backward area will only be operative in case the educational facility is available in the said backward area.
It would be pertinent to mention here that the other contesting candidates have not challenged the impugned judgment before this Court, which shows that they have accepted the findings of the learned High Court. The petitioner however, is entitled for admission due to the reason that she could not obtain the requisite qualification from the concerned backward area as no facility of education was available within the area of her domicile at the relevant time, as such, she cannot be made to suffer for no fault on her part.
Upshot of the above discussion is that this petition is converted into appeal and allowed, the impugned judgment of the Peshawar High Court is set-aside and the Respondent No. 1, i.e. Joint Admission Committee, Khyber Medical University, NWFP, is directed to accommodate the appellant, Miss Amina Rafique, and grant her admission in first year MBBS.
These are the reasons of our short order of even date announced in open Court.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 453
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Nasir-ul-Mulk &
Mian Hamid Farooq, JJ.
Mst. SALEEM AKHTAR--Appellant
versus
Chaudhry SHAUK AHMED--Respondent
C.A. No. 998 of 2001, decided on 20.1.2009.
(On appeal from the judgment dated 24-01-2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in R.F.A. No. 90 of 1996)
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(2)(3)--Talb-i-muwathibat--Ingredients--Non-mentioning of date, time, place--Effect--It would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of talb-i-muwathibat and date of issuing the notice of talb-i-ishad--Validity--Plaintiff suit deserved to be dismissed.
[P. 457] A
2008 SCMR 1682, PLD 2008 SC 559 & PLD 2007 SC 302, ref.
Hafiz S.A. Rehman, Sr. ASC for Appellant.
Ch. Mushtaq A. Khan, Sr. ASC and Mr. M.S. Khattak, AOR for Respondent.
Date of hearing: 20.01.2009.
Judgment
Mian Hamid Farooq, J.--This appeal by leave of the Court proceeds against the judgment dated 24.01.2000, whereby the learned Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed appellant's first appeal (RFA No. 90 of 1996).
"1. Whether the plaintiff has superior right of preemption qua the vendee-defendant? OPP
Whether the actual sale price of the suit property is Rs.3,50,000/- and fictitious sale price of Rs.5,50,000/- was fixed in the registered sale-deed in order to defeat the rights of the pre-emption? OPP
If Issue No. 2 is not proved, then what was the market price of the suit property at the time of sale? OPD
Whether the plaintiff has fulfilled all the requirements of talab? OPP
Whether the plaintiff is estopped by her words and conduct to bring this suit? OPD
Whether the suit property is situated within the limits of Municipal Committee? If so, for what effect? OPD
Whether the suit is not signed and verified by the plaintiff? If so, at what effect? OPD
Whether the suit is false and frivolous and the defendant is entitled to get special costs under Section 35-a of CPC? OPD
Whether the defendant is entitled to get the incidental charges in case of decree? OPD
Relief."
The learned trial Court recorded the evidence of the parties and after finding that the appellant could not prove Talb-i-Muwathibat dismissed the suit on the basis of findings on Issue No. 4, however, the issue regarding superior right of the appellant was decided in her favour, Rs.5,50,000/- was held to be the actual price of the suit land and it was also held that respondent had incurred additional expenses for a sum of Rs.1,01,750/-, vide judgment and decree dated 24.04.1996. Appellant's first appeal (RFA No. 90 of 1996) was dismissed by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, vide judgment and decree dated 24.01.2000. The appellant filed a petition (Civil Petition No. 613 of 2000) and this Court, vide order dated 02.02.2001, granted leave to appeal to the appellant, which reads as under :--
"Leave to appeal is granted to consider:--
(i) Whether the learned Judge in Chambers of the High Court was not justified to concur with the finding of the learned trial Judge that the appellant failed to prove the performance of `Talb-i-Muwathibat' strictly in accordance with Section 13(3) of the Punjab Pre-emption Act (I of 1991)?
(ii) Whether the learned Judge in Chambers of the High Court has rightly affirmed the finding of the learned trial Judge on the proof of `Talb-i-Muwathibat'?
(iii) Whether the learned High Court was not justified to have upheld the findings of the learned trial Judge on the question that `Talb-i-Ishhad' having not been made strictly in accordance with Section 13(I)(II) of the Punjab Pre-emption Act (I of 1991) with reference to the precedent from the Indian jurisdiction in Aliman Begum v. Ali Husan and another (AIR 1923 Allahabad 355(I) and Haji Raja Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1, relevant at page 20)?
Hence this appeal.
Learned counsel for the appellant submitted that judgments of both the Courts suffer from misreading and non-reading of the evidence on record and that although rest of the issues were decided in appellant's favour, yet she was non-suited on the issue that she failed to fulfill the requirements of Talbs, which were proved to be made in accordance with the law. He added that both the learned Courts though dismissed the suit but for different reasons. Learned counsel for the respondent, while supporting both the judgments, stated that in view of latest law on the subject the appellant's suit was rightly dismissed as she failed to make Talbs in accordance with the law. He relied upon "Bashiran Begum v. Nazar Hussain (PLD 2008 Supreme Court 559) and "Muhammad Iqbal v. Ali Sher (2008 SCMR 1682).
We have heard the learned counsel for the parties and examined the available record. Upon examination of the plaint (available at page 50 of the paper book), we find that appellant although in para 4 of the plaint pleaded that she came to know about the questioned sale in the 4th Week of February, 1994 and in the same meeting announced to exercise her right of pre-emption, yet failed to mention about the date, time and place of making Talb-i-Muwathibat. It appears appropriate to reproduce para 4 of the plaint, which reads as under:--
It is evident from the afore-noted para that appellant did not give the particulars about the date, time and place of making Talb-i-Muwathibat, which were held to be mandatory by this Court in the case reported as "Pir Muhammad v. Faqir Muhammad (PLD 2007 Supreme Court 302)". This Court in the case of Pir Muhammad (ibid) has held that in view of Section 13(2)&(3) of the Punjab Preemption Act, 1991, it would be mandatory for a plaintiff to mention in the plaint the date, time and place of performance of Talb-i-Muwathibat. Relevant portion of the judgment is reproduced below:--
"... therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint the date, time and place of performance of Talb-i-Muwathibat because from such date, the time provided by the statue i.e. 24 days under sub-section (3) of Section 13 of the Act shall be calculated. It is now a well settled law that performance of both these Talbs successfully is sine qua non for getting a decree in pre-emption suit."
Learned counsel, when confronted with the said latest law on the subject, read Para 5 of the judgment of Pir Muhammad (ibid), however, to our mind, even the said para does not help the appellant.
Learned counsel for the respondent is right in submitting that the law declared by this Court in the case of Pir Muhammad (ibid) was followed in the latest judgments of Muhammad Iqbal and Bashiran Begum (ibid). In view whereof, it is by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-i-Miauathibat and date of issuing the notice of Talb-i-Ishhad in terms of Section 13 of the Act, otherwise plaintiff's suit deserved to be dismissed. As the appellant failed to plead qua making of Talb-i-Muwathibat in the plaint according to the parameters of law laid down by this Court in the cases of "Muhammad Iqbal v. Ali Sher (2008 SCMR 1682), Bashiran Begum v. Nazar Hussain (PLD 2008 Supreme Court 559) and Pir Muhammad v. Faqir Muhammad (PLD 2007 Supreme Court 302)", therefore, her suit deserved to be dismissed on this short ground. Both the Courts did not commit any illegality in dismissing appellant's suit. Learned counsel for the appellant has not been able to refer to anything on record which could persuade us to interfere in the concurrent findings arrived at both the learned Courts.
For what has been discussed above, we do not find any merit in this appeal which is accordingly dismissed with no order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 458
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Muhammad Qaim Jan Khan & Ch. Ejaz Yousaf, JJ.
M.B. ABBASI and another--Petitioners
versus
STATE--Respondent
Crl. P.L.A. No. 293 of 2008, decided on 03-09-2008.
(On appeal from the order dated 20-11-2003 passed by the High Court of Balochistan, Quetta in Special Cr.A No. 04/2001)
Constitution of Pakistan, 1973--
----Arts. 9 & 10(i)--Maxim--Audi alteram partum--Proceeding in absentia--Violation of principle of natural justice--Held: Proceeding in absentia has lost its efficacy besides being violative of the principle of natural justice as maxim "audi alteram partum". [P. 464] A
2008 SCMR 951, Ref.
Constitution of Pakistan, 1973--
----Arts. 9 & 10(i)--Anti-Terrorism Act, 1997, Ss. 10(11-A)--Trial of accused in absentia--Violation of--Trial of accused in absentia was violative of Arts. 9 & 10(i) of Constitution, as well as S. 10(11-A) of Anti-Terrorism Act--Held: Accused were not offered opportunity of hearing and were condemned unheard--Judgment was not sustainable. [Pp. 464 & 465] B
Offences on Respect of Banks (Special Court) Ordinance, 1984 (IX of 1984)--
----S. 5(4)--Anti-Terrorism Act, 1997, S. 19(1)(a) & (b)--Conviction in absentia--Effect of the provisions of law--Every provisions entailing penal consequence has to be construed strictly, hence recourse to the provision of Section 5(4) of the Ordinance 1984, which is identical to S. 19(10)(a)&(b) of the Anti Terrorism Act, 1997 has to made rarely and in exceptional cases. [P. 465] C
PLD 2003 SC 262, Ref.
Absentia--
----Accused was convicted in absentia--Equal right of filing appeal--Option to surrender--Remedies--A person convicted in absentia has option either to surrender before the trial Court and seek fresh trial or file an appeal in the appellate Court if he feels that evidence recorded against him in absentia would not justify conviction, and such person has equal right of filing appeal who seeks its adjudication on merits. [P. 466] D
2006 SCMR 1432, Ref.
Malik Muhammad Qayyum, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioners.
Sardar Muhammad Latif Khan Khosa, A.G.P. and Raja Abdul Ghafoor, A.O.R. for State.
Date of hearing: 3.9.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the order dated 20.11.2003 passed by learned Division Bench of the High Court of Balochistan, Quetta whereby Special Cr.A. No. 04/2001 filed by the petitioners against their convictions and sentences recorded by the Special Judge (Offence in respect of Banks), Balochistan, Quetta, vide judgment dated 14.5.2001, was dismissed.
Facts of the case, in brief, are that the Petitioner No. 1 M.B. Abbasi, was the president of Nationalized Banks and Financial Institutions including the National Bench of Pakistan, whereas, Respondent No. 2 Nabi Bakhsh Soomro, was serving Regional Chief Executive of the National Bank of Pakistan, Quetta. On 27.5.1997, one Syed Akhlaq Ahmed Zaidi, the then Vice President & Zonal Chief of NBP, Quetta, lodged a complaint with Deputy Director, FIA, Quetta, against the petitioners on the allegations that on the direction of Petitioner No. 1 a guarantee for Rs.60.00 million was issued by NBP, Quetta, favouring PSO, Karachi, through M/s Taftan Oil Company (Private) Limited, (hereinafter referred to as "M/s TOC") with the intention to favour one of the politician of the area on the basis of mortgaged land highly over valued, in defiance of the conditions stipulated in the memorandum of Credit Division, without approval of the Executive Committee of the Bank, and also without CIB report and NOC from NCBs, which put the Bank to a great amount of risk. On the basis of said complaint, formal FIR Bearing No. 04/1997, dated 27.5.1997 was registered under Sections 409, 420, 467, 468, 471 PPC read with Section 5(2) of the Act-II, of 1947 against the petitioners and four Directors of M/s TOC. Petitioner No. 1 was arrested on 15.11.1996, under Maintenance of Public Peace Order, and remained in custody for 18 months, whereafter, he was released on payroll in April, 1998. He left the country in August, 1999 with permission of the Government. Petitioner No. 2 also left the county and remained in exile for about ten years. After investigation of the case interim challan/ charge sheet Bearing No. 6/97 dated 5.12.1997 was filed showing names of the petitioners in column-2 as absconders.
During pendency of the case M/s TOC immediately deposited the entire outstanding dues amounting to Rs.45.00 million along with misc. charges (as Rs.15 million had already paid being part payment of loan) in the High Court of Balochistan but the Government refused to receive the payment, therefore, they approached this Court through Cr.A. No. 146 of 1998. This Court vide order dated 1.7.1999 accepted the compromise/settlement between M/s TOC and PSO and directed the NBP to transfer the amount of Rs.45.00 million lying with them in the account of the Registrar of the High Court of Balochistan, Quetta, to the account of PSO towards their claim against M/s TOC. In pursuance of the said order, the NBP, Quetta, informed the FIA Quetta, vide letter dated 27.7.2000 that the amount due had been paid to PSO, Bank Guarantee had been duly discharged on the settlement of Claim and that nothing was outstanding against M/s TOC.
Despite settlement, the Special Judge, Banking Court, Balochistan, Quetta, continued proceeding against the petitioners, in absentia, and convicted them to undergo sentences as under, vide his judgment dated 14.5.2001:--
U/S. 409 PPC 7 years R.I., fine of Rs.50,000/- each and in default to further suffer R.I. for one year.
U/S. 420 PPC 3 years R.I., fine of Rs.50,000/- each and in default to further suffer R.I. for one year.
U/S. 5(2) Act-II, 1947 3 years R.I., fine of Rs.50,000/- each and in default to further suffer R.I. for one year.
Against their convictions and sentences, the petitioners filed special Criminal Appeals No. 4 & 5 of 2001 before the High Court of Balochistan, Quetta, which were dismissed, vide impugned judgment dated 20.11.2003, primarily on the ground that the appeals were filed by the proclaimed offenders (petitioners), through their appointed counsel, without surrendering to the process of law. The petitioners on their return to Pakistan, statedly, in April, 2008 moved an application, before the Federal Review Board, constituted under the National Reconciliation Ordinance, 2007. The Board, vide its order dated 26.7.2008 recommended withdrawal of the above case (FIR No. 4/1997) on the ground that the case was initiated against the petitioners for political reasons and they were implicated because of political victimization. The recommendations of the Review Board, however, could not bear fruit as the appeal filed by the petitioner against the judgment of the Special Judge, Banking Court, Quetta, had already been dismissed by the High Court of Balochistan and no case was pending against the petitioners, hence this petition.
It has been mainly contended by the learned counsel for the petitioners that trial in absentia as well as convictions and sentences recorded against the petitioners being violative of Articles 4 & 9 of the Constitution cannot sustain in view of the law laid down by this Court in the cases reported as (i) Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), (ii) Muhammad Fazil v. The State (2006 SCMR 1432), (iii) Muhammad Arif v. The State (2008 SCMR 829), (iii) Mir Ikhlag Ahmed v. The State (2008 SCMR 951) and an unreported case titled Gul Zaman Kasi v. The State (Cr.A. No. 269 of 2003). It is further his case that since the matter was settled between the parties in Criminal Appeal No. 146 of 1998 and it was, vide order dated 1.7.1999, held by this Court that controversy between the parties stood resolved amicably and entire amount was paid, therefore, there was no live issue left as such convictions and sentences recorded against the petitioners were unjustified.
Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan, while candidly conceding to the proposition that trial in absentia against the petitioner was void ab-initio, added that as is evident from order dated 1.7.1999, claim of the Bank was settled and the amount due having been paid to the Pakistan State Oil Company the bank guarantee was duly discharged. He produced copy of letter dated 27.6.2000 issued by the National Bank of Pakistan, Zonal Office Quetta (Admn. Deptt.) to the Deputy Director, F.I.A. Commercial Bank Circle, Quetta in this regard.
We have given our anxious consideration to the respective contentions of the learned counsel for the petitioners and have also gone through the record of the case, minutely.
Record reveals that both the petitioners were tried and convicted by the Special Judge (Offence in respect of Banks), Balochistan, Quetta, vide judgment dated 14.5.2001 on the charge that both were found to have managed the issuance of bank guarantee worth Rs.60 million favouring PSO without legal formalities and requirements against inadequate security thus dishonestly inducing the PSO to deliver the said amount on the basis of bank guarantee in question. During pendency of Criminal Appeal No. 146 of 1998 filed by co-accused Abdur Rashid Nasir and another, a compromise was arrived at between the parties and the outstanding amount allegedly covered by the guarantee was paid to the PSO. Resultantly, the bank guarantee issued by the NBP favouring PSO, in terms of the compromise, became infructuous. The said appeal was disposed of by this Court vide order dated 1.7.1999, operative part whereof reads as follows:--
"2. Criminal Miscellaneous Application No. 182 of 1999 has been instituted in this appeal under Order XXXIII Rule 6 read with Order V Rule 2(19) of Supreme Court Rules, 1980 for disposal of the appeal in terms of settlement arrived at between the parties. The application is marked-A. The terms of the compromise are as under:--
"1. That T.O.C. has agreed to surrender an amount of Rs.45 millions alongwith accrued interest thereon favouring P.S.O. towards their claim, and the P.S.O. has agreed to receive the said amount, presently lying in National Bank of Pakistan in the account of Registrar High Court, towards full and final adjustment.
That T.O.C. and P.S.O. respectively have withdrawn, abandoned and relinquished their claims, and counter claims against each other in view of the payment of Rs.45 Million alongwith accrued interest to P.S.O. Similarly N.B.P. would also withdraw its case against P.S.O. and T.O.C.
That the amount of Rs.45 million alongwith accrued interest lying deposited with the N.B.P as stated above shall be released in favour of P.S.O. and N.B.P. would transfer this amount in the account of P.S.O. being maintained by N.B.P. being maintained by N.B.P. at Karachi.
That all the parties have unconditionally withdrawn their cases pending before all the concerned Courts, detail whereof is given in deed of settlement account of P.S.O. being maintained by N.B.P. at Karachi, the bank guarantee issued by N.B.P. favouring P.S.O would become infructuous.
It is accordingly respectfully prayed that the compromise/settlement arrived at between the parties may kindly be accepted and the appeal may be disposed of in terms hereinabove mentioned. It is further prayed that this application may kindly be placed before the Hon'ble Judge in Chambers."
The above quoted settlement shows that the controversy between the parties has been resolved by them amicably. There is no live issue now left between the parties. The compromise/settlement is, accordingly, accepted to the extent of civil liability of the parties. The appeal is disposed of in the terms mentioned in the application."
Here it would also be beneficial to have a glance at the letter dated June 27, 2000 written by the National Bank of Pakistan to the Deputy Director Federal Investigation Agency, regarding the guarantee in question, which is reproduced herein below in extenso:--
"National Bank of Pakistan
Zonal Office Quetta (Admn. Deptt)
Ref: ZOQ(A(CA:Q.CITY:KDG(TOC)/
Dated: June 27, 2000
The Deputy Director
Federal Investigation Agency
Commercial Bank Circle, QUETTA.
QUETTA CITY BRANCH QUETTA
GUARANTEE NO.17/96 DATE:13/03A996 FOR
RS.60,000/- MILLION FAVOURING M/S. PAKISTAN
STATE OIL LIMITED ON BEHALF OF M/S. TAFTAN
OIL COMPANY PRIVATE LIMITED.
It is informed that on the Report/Letter No. ZOQ.ADMN/605 DATED-.26/03/1997 case FIR No. 4/97 dated 05/06/1997, presently the case is pending trial before the Court.
As the matter of recovery of Pakistan State Oil against Taftan Oil company which was guaranteed by the NBP was settled, and in persuasion of order dated:01/07/1999 of honourable Supreme Court, the amount due was paid to Pakistan State Oil Taftan Oil Company & on settlement of claim, bank guarantee has duly discharged and return to the bank.
The claim of the bank against this guarantee has been settled and nothing is outstanding against Taftan Oil Company Private Limited.
It is informed accordingly.
Yours Faithfully, SD/-
ZONAL CHIEF
ZONE-A (QUETTA)
CC To:
The Regional Chief Executive, NBP, Regional Headquarters' Quetta.
The Manager, NBP, Quetta City Branch, Quetta.
SD/-
ZONAL CHIEF"
The above letter is indicative of the fact that the bank guarantee in question was duly discharged and returned to the bank and claim of the petitioners against guarantee was accordingly settled. Thus, we see force in the contention raised by the learned counsel for the petitioners that no loss on account of the guarantee in question was caused to the bank or to any other person.
As to the next contention raised by the learned counsel for the petitioners that trial of the petitioners, in absentia and convictions and sentences recorded against them, were bad in law, it would be pertinent to mention here that though sub-section (4) of Section 5 of the Offences in respect of Banks (Special Court) Ordinance, 1984, provides that a Court may try an accused, if in his opinion, such absence is deliberate and brought about with a view to impeding the course of justice, or behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court, but in the instant case since it is not apparent on record that the requirements justifying exercise of power under the above provision were satisfied and efforts were made to get the service effected on the petitioner, who according to the learned counsel for the petitioner, at the relevant time was out of country, therefore, to our mind, the proceedings in absentia had lost its efficacy besides being violative of the principle of natural justice as per maxim "audi alterum partum" and Articles 9 &10(i) of the Constitution of the Islamic Republic of Pakistan. In the case of Mir Akhlaq Ahmad & another v. The State (2008 SCMR 951), the appellants along with other absconding accused were, in absentia, tried by Special Judge Anti-Terrorism Court, Khuzdar, convicted under Section 302(b) PPC and sentenced to death. Perpetual warrants of arrest of the accused were also issued. No appeal was filed by the convicts. Since a murder reference was sent for confirmation of their sentences to the High Court of Balochistan, Quetta, therefore, on receipt of reference publication for appearance of the absconding accused persons was made but at none of them turned up, therefore, a counsel was appointed for them at State expense. The High Court, after hearing the learned prosecutor and the Advocate General upheld the judgment passed by the learned trial Court and answered the murder reference in affirmative. The appellants were statedly arrested on 26.4.2006 and then they filed time barred petition before this Court seeking leave to appeal against the said judgment. Leave was granted and while deciding the appeal, it was held that since trial of the appellant, in absentia, was violative of Articles 9 and 10(i) of the Constitution as well as Section 10(11-A) of the Anti-Terrorism Act, 1997, the accused persons were not afforded opportunity of hearing and were condemned unheard, therefore, the judgment was not sustainable. In the case of Muhammad Arif v. The State (2008 SCMR 829), the appellant Muhammad Arif was convicted under Section 302(b)/34 PPC read with Section 6(2) (a) of the Anti-Terrorism Act, 1997, and sentenced to death vide judgment dated 2.5.2002, in absentia. He did not file any appeal against the said judgment. However, co-accused Attaullah, filed appeal. The learned High Court finding that the case of Attaullah should have been tried under Juvenile Justice System Ordinance, 2000, set-aside the judgment dated 2.5.2002 to his extent and remanded the case for trial under Juvenile Justice System Ordinance, 2000. Since the appellant was still absconding and despite publication of notices, in different newspapers for his service, not entered appearance, therefore, a counsel was appointed to defend him at State expense. The learned High Court, after believing the evidence, came to the conclusion that the petitioner was rightly found guilty by the trial Court and accordingly answered the reference in affirmative. Petition for leave to appeal was filed in this Court which was allowed. In appeal, while relying on the case of Mir Ikhlaq Ahmad (supra), it was held that as the trial of the appellant was held in absentia and without opportunity of hearing, therefore, conviction and sentence recorded by the Courts below, in absence of the appellant, to his extent, were being violative of the legal and Constitutional provisions, not sustainable. In addition to the cases cited above, the cases reported as The State through P.G. NAB v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), (ii) Mehram Ali & others v. Federation of Pakistan (PLD 1998 SC 1445), (iii) Zamarud Khan v. The State (1987 SCMR 569), may also be referred in this respect.
It is the legal requirement that at trial, not only case against the accused is fully and clearly explained to him but he should be told in express terms and made to understand the nature of offence for which he is being tried. Admittedly, in this case the petitioners were never served as according to the learned trial Court they could not be traced out. Observations made by the learned trial Court at page 3 of his judgment are explicit in this regard.
It is by now well settled that every provision entailing penal consequences has to be construed strictly, hence, recourse to the provision of Section 5(4) of the Ordinance, 1984, which is identical to Section 19(10)(a) & (b) of the Anti Terrorism Act, 1997, has to be made rarely and in exceptional circumstances. In the case of Haji Muhammad v. The State (PLD 2003 SC 262), conviction/sentence was recorded against the petitioner without providing him opportunity of hearing and believing the statement of the prosecution, it was held by this Court that where an accused is convicted/sentenced in absentia, Court is bound to follow relevant provision of law strictly. Reference in this behalf may also be usefully made to the case reported as Chairman Board of Intermediate & Secondary Education, Bahawalpur v. Rizwan Rashid (2005 SCMR 728), (ii) United Bank Ltd. v. Yousaf Haji Noor Muhammad Hadi (1988 SCMR 82), (iii) Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), (iv) Federal Land Commission v. Mian Ghulam Qadir and others (1983 SCMR 867), (v) Pakistan International Airlines Corporation v. Junior Labour Court, Karachi (PLD 1978 SC 239), (iv) F.B. Ali v. The State (PLD 1975 SC 506).
Needless to point out that a person convicted in absentia has option either to surrender before the trial Court and seek fresh trial or file an appeal in the appellate Court if he feels that evidence recorded against him in absentia would not justify conviction, and such person has equal right of filing appeal who seeks its adjudication on merits. Observations made in the case of Muhammad Fazil and others v. The State & others (2006 SCMR 1432) are relevant in this regard.
Sequel to the above normally we, while setting aside the impugned judgment and also of the Court of first instance, would have remanded the case for retrial but since as per statement made by the learned Attorney General for Pakistan, the Review Board in its decision dated 26.7.2008 has recommended for withdrawal of the case against the petitioners, therefore, retrial of the petitioners would be an exercise in futility. Here it would be instructive to have a glance at the order of the Review Board which is reproduced herein below in extenso:--
BEFORE THE CHAIRMAN, REVIEW BOARD (NRO) ACCOUNTABILITY
CASE NO. OF 2008-FRB -- M.B. Abbasi and another vs. State
26-07-2008:
This Board has gone through the petition and the material annexed with it carefully and minutely. The petitioners have been acquitted of all NAB cases except one FIR No. 4 of 1997-PS FIA/CBC, Quetta (Case No. 37 of 1997) pending in the Court of Special Judge, (Offences in Banks), Balochistan, Quetta wherein the Petitioner No. 1 in the capacity of President of National Bank of Pakistan issued guarantee of Rs.60 million in favour of Tafton Oil Company Quetta. Perusal of the record in the case shows that the above case was falsely initiated against the petitioners for political reasons and were implicated because of political victimization, as it would appear from the material produced on record as the petitioners refused to give statement against the leader of the political parties, hence the petitioners were involved in the false cases with political motivation.
This Board is firmly of the view after considering the material on record that this case was a result of political reasons for political victimizing the petitioners, therefore, we would recommend the withdrawal of the above case against the petitioners.
Sd/-
CHAIRMAN
Sd/-
Member
Sd/-
Member"
In view of the above findings of the Review Board, the case of the petitioners otherwise appears to be squarely covered by the provisions of sub-section (2) of Section 494 Cr.P.C., inserted through National Reconciliation Ordinance (Ordinance No. LX) of 2007, and on this account too, they cannot be proceeded against.
These are the reasons of our short order of even date announced in open Court.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 467
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari & Zia Perwez, JJ.
NAJAM AZIZ SETHI--Appellant
versus
MUHAMMAD AZEEM BUTT--Respondent
C.A. No. 399 of 2008, decided on 15-09-2008.
(On appeal from the judgment dated 03-10-2007 of the Lahore High Court, Lahore passed in FAO No. 384/2006)
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(8)--Income Tax Ordinance, 2001, S. 155--Transfer of Property Act, 1882--S-108(g)--Order for depositing of rent--Deduction of advance income tax--Applicability--Non compliance of--Striking of defence and passing of ejectment order--Held: Payment of monthly rent was the liability of the limited company, the deposit of same after deduction of income tax of the premises occupied by company carrying on it business only constitutes a technical default not calling for ejectment--Further held: Courts failed to exercise discretion vested to them--Order of the rent controller is required to be specific--Quantum of amount of increase in rent, ought to have been mentioned for deposit of increased amount of the rent, which is also not reflected in the order of Cantonment Rent Controller.
[Pp. 471 & 472] A & B
2004 YLR 1266, 2001 SCMR 130 and 1989 SCMR 1327, ref.
Mr. Ahmed Rauf, ASC for Appellant.
Mr. Muhammad Yasin Chughtai, ASC for Respondent.
Date of hearing: 15.9.2008.
Judgment
Zia Perwez, J.--This appeal by leave of this Court is directed against the impugned judgment dated 3.10.2007 of the learned Single Judge in Chambers, Lahore High Court, Lahore passed in FAO No. 384/2006.
The appellant claims to be the tenant of the respondent with respect to Commercial Property No. L-5; Ph-1, DHA, Lahore, hereinafter referred to as "the premises" in pursuance of an agreement dated 07.07.1999 further extended from time to time by subsequent agreements. The last agreement was executed between the parties on 6.7.2004 and the name of appellant was substituted for M/s. Vanguard Books (Pvt.) Ltd. at the monthly rent of Rs.55,000/- On 30.10.2004, respondent moved an Application No. ARC/W/1016/04 before the learned Additional Rent Controller, Walton Cantt, Lahore seeking ejectment of the appellant on the ground of bona fide personal requirement of the landlord. The appellant in his written reply refuted the ground of personal requirement. On 29.3.2006, the learned Additional Rent Controller passed the order in pursuance of provisions of Section 17(8) of the Cantonment Rent Restriction Act, 1963, hereinafter called to as "Act, 1963", directing the appellant to deposit monthly rent @ Rs.55,000/- with effect from March, 2006 in advance before the fifth day of each month. In compliance of the rent order, appellant deposited Rs.52,250/- per month after deduction of Rs.2750/- as advance income tax. The ejectment application and two applications under Section 17(9) of the Act, 1963 for striking off the defence on failure to comply with the rent order were allowed by the learned Rent Controller vide order dated 11.11.2006 ordered for ejectment of the appellant. Appeal preferred by the appellant was dismissed by the impugned judgment of the Lahore High Court, Lahore dated 30.10.2007 followed by the appeal before this Court.
Leave to appeal was granted on 31.3.2008 to consider the question, inter alia, whether the appellant being a tenant was entitled to deduct advance income tax @ 5% on the gross amount of rent fixed by the Rent Controller consistent with the past practice and in view of provisions of Section 155 of the Income Tax Ordinance, 2001, hereinafter called as "the Ordinance, 2001" and clause (g) of Section 108 of the Transfer of Property Act, 1882 and whether the defence of the appellant was liable to be struck off.
Mr. Abdul Rauf, learned ASC for the appellant has advanced elaborate arguments to show that there existed a regular past practice to deduct the amount in pursuance of the provisions of Section 155 of the Ordinance, 2001. Failure to deduct the tax from the amount of rent paid would have exposed the appellant to penal liability. The appellant also placed on record additional documents and payment receipts showing the amount of rent deposited in pursuance of the order of the Rent Controller at Rs.55,000/- out of which after deducting 5% advance income tax amounting to Rs.2750/-, the balance was deposited in the Court within time without any default. That the successive agreements entered into between the parties were in continuation of the earlier agreements, mere change of name of tenant to Najam Aziz Sethi from M/s. Vanguard Books (Pvt) Ltd would not change the nature of contract for carrying on the same business in the demised premises in view of clear terms and the purpose of occupancy by "M/s. Vanguard Books (Pvt) Ltd" as spelt out in the rent agreement, therefore, the deduction of income tax being obligatory in nature, did not constitute a willful default. The learned counsel further proceeded to argue that the initially ejectment was not sought on the ground of default in payment of rent but on the ground of bona fide personal use of the landlord. The ejectment application should have been adjudicated on its own merits. The ejectment order based on a mere technicality is, therefore, liable to be set aside. He further argued that the ejectment application moved before expiry of the agreed term under the agreement was not maintainable with respect to the premises used as per selling of books as provided under Section 17(4)(b)(iii) of the said Act. In support of his contentions, he placed reliance on the cases of Major Ferozdin Khan and others v. Sh. Muhammad Amin (PLD 1967 Lahore 966), Mehrban Ali v. Haji Muhammad Qasim (PLD 1976 Lahore 1052), Abdul Rehman v. Haji Mir Ahmed Khan and another (PLD 1982 Karachi 532), Muhammad Siddique v. Abdul Rasheed (1982 CLC 217), Mehboob Jewelers and others v. Nur Ahmed (1989 SCMR 1327), Noor Muhammad and another v. Mehdi (PLD 1991 SC 711), L. Hussain v. Muhammad Nawab and four others (PLD 1992 Karachi 307), Ashiq Ali and another v. Mehr Ilahi and 13 others (2001 SCMR 130) and Niaz Muhammad and another v. Waris Hussain and two others (2004 YLR 1266).
Mr. Muhammad Yaseen Chughtai, learned ASC for the respondent, while refuting the above contentions, placed reliance on the order of the Rent Controller dated 11.11.2005. He contended that after the clear direction of the Rent Controller for deposit of the rent at Rs. 55,000/- per month, the appellant was required to comply the rent order. Deduction of the amount of Rs.2750/- towards 5% advance income tax constituted the violation of the order of the Rent Controller, therefore, ejectment of the appellant was rightly ordered by the Rent Controller and upheld in appeal by the learned Single Judge in the High Court. The learned counsel further contended that the parties to the latest agreement dated 6.7.2004 are different. Earlier agreements were entered into with M/s. Vanguard Books, a private limited company, whereas the present agreement was executed with the appellant as tenant, therefore, the provisions of Section 155 of the Ordinance, 2001 are not attracted to the present case. In support of his contentions, he placed reliance on the cases of Sh. Hafizullah v. Capt. Muhammad Mansib Ali Ch. and two others (1971 SCMR 132), Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 557), Muhammad Ibrahim v. Rab Nawaz (1997 MLD 24), Zakir Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328), Khadim Hussain v. Nasir Ahmad (2003 SCMR 1580), Safeer Travels (Pvt) Ltd v. Muhammad Khan Shafi (PLD 2007 SC 504), Muhammad Saeed v. Muhammad Asqhar (2008 MLD 236), Muhammad Bisharat v. Mrs. Uzma Bhatti (PLD 2008 Lahore 414), and Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645).
We have heard the learned counsel for the parties and have perused the record.
The agreement dated 6.7.2004, while showing the appellant as tenant clearly refers to the specific business of selling of books being carried out at the demised premises. It is admitted that the business is carried out by M/s. Vanguard Books which is a private Limited Company. The premises is not sub-letted. It was obtained on rent for business of M/s. Vanguard Books. The Limited Company, never parted with the possession of the premises and continue to carry on the same business in the demised premises. Under the circumstances, the liability for payment of rent by M/s. Vanguard Books, which is a distinct legal entity, is undisputed. As a consequence, it is a duty cast upon the tenant tendering rent to deduct advance tax at the @ 5% in pursuance of the provisions of Section 155 of the Ordinance, 2001, which is attracted to payments made by the Company. Ejectment was sought on the ground of personal bona fide use of the landlord. No default in payment of rent was alleged to have been committed. The deposit receipts show the amount deposited in compliance of the order of the Rent Controller i.e. Rs. 55,000/- out of which a deduction towards income tax of Rs. 2750/- is clearly mentioned and balance deposited in Court within the prescribed period of each month. There is no allegation as to the non-deposit of amount deducted towards the income tax from the rent was not deposited by the tenant. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found as held in case of (Quinn v. Leathem (1901) AC 495, 506) as held by this Court in the case of Trustees of the Karachi Port of Karachi v. Muhammad Saleem (1994 SCMR 2213).
Under the circumstances, the Rent Controller and the appellate authority, while exercising jurisdiction to examine the case are required to adjudicate the matter on its own merits when the alleged default was neither willful nor deliberate as held in the case of Abdul Rehman (supra).
We are of the view that the payment of monthly rent was the liability of the limited company, the deposit of the same after deduction of income tax of the premises occupied by company carrying on its business only constitutes a technical default not calling for ejectment as held in the cases of Meharban Ali, Mehboob Jewelers, Noor Muhammad and L. Hussain (ibid).
As to the contention that the premises used for the purpose of selling books and, therefore, attract the provisions of Section 17(4)(b)(iii) of the Act, 1963. We are in respectful agreement with the earlier view of this Court as to the protection available which does not include a premise where only books are sold as held in the case of Sh. Hafiz Ullah (supra).
Ejectment was ordered where the Court came to conclusion that the default in payment of rent by the tenant was deliberate and willful as held in the cases of Muhammad Yousaf, Zikar Muhammad, Khadim Hussain and Muhammad Bisharat (supra). However the cited cases do not pertain to deduction of advance income tax as per Section 155 of the Ordinance, 2001 and are distinguishable.
In the light of above discussion, we are of the opinion that the Courts failed to exercise discretion vested to them. Before parting, we may observe that the order of the Rent Controller is required to be specific. Quantum of amount of increase in rent, ought to have been mentioned for deposit of increased amount of the rent, which is also not reflected in the order of the learned Cantonment Rent Controller.
Accordingly, by allowing this Appeal, we set aside the impugned orders of both the Courts below and remand the case to the learned Cantonment Rent Controller for disposal of the same on merits.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 472
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk, Muhammad Akhtar Shabbir &
Muhammad Farrukh Mahmud, JJ.
Sheikh ATTIQ-UR-REHMAN SARWAR--Appellant
versus
SAJJAD HUSSAIN--Respondent
C.A. No. 569 of 2008, decided on 16.12.2008.
(On appeal from the judgment of the Lahore High Court, Lahore
dated 13-05-2008 passed in FAO No. 67/2008)
Constitution of Pakistan, 1973--
----Art. 185(2)--Civil Procedure Code, (V of 1908), O. XXXVII & O. XXI R. 1--Suit for recovery--Non deposit of decretal amount beyond the time granted--Held: Order XXI of CPC would not help the appellant to make the payment of the decretal amount beyond the time granted by the appellate Court, as the executing Court cannot go beyond the decree and has to execute the same as it is, unless the same is a patent nullity--Further held: Even otherwise, in order of the Court the time being the essence of the agreement and the last date of the time so granted falling on the holiday, the payment mad thereafter would not comply with the terms of the compromise as directed.
[P. 475] A & B
1994 SCMR 349 and 1969 SCMR 640, ref.
Rana Muhammad Zahid, ASC for Appellant.
Mr. A.H. Masood, AOR for Respondent.
Date of hearing: 16.12.2008.
Order
Muhammad Akhtar Shabbir, J.--This appeal under Article 185(2) (d) of the Constitution of Islamic Republic of Pakistan is directed against the judgment of the Lahore High Court, Lahore dated 13.5.2008 passed in FAO No. 67/2008.
"It is stated by the appellant present in the Court that he does not want to press this appeal, provided some time is given to him for making the payment of the decretal amount to the respondent, he in this behalf, has asked for a year time, the respondent's counsel has only agreed to grant him about 4/6 months time, however considering the facts of the case and also that the present appeal has been admitted to regular hearing, we as now agreed by the appellant, grant him six months time to pay a sum of Rs.5,00,000/- out of the decretal amount within six months from today and balance decretal amount shall be paid within further three months. In case, the first instalment of the decretal amount is not made, the entire amount shall become due. As far as the decree for the amount of interest is concerned, that stands set aside, however, in case, the appellant does not make the payment of first instalment, the decree to the extent of interest shall remain in tact.
With the above settlement, this appeal stands disposed of and a decree is accordingly passed in favour of the respondent and against the appellant."
The appellant could not comply with the above order within the stipulated time, as such, the respondent moved an application before the Executing Court for restoration of his execution petition and issuance of warrant against the appellant, wherein the appellant was summoned, who appeared in Court on 25.3.2008 and moved an application for permission to deposit the amount of first instalment of Rs.5,00,000/- in the Government treasury as the respondent has refused to receive the same from him out of Court. Both the applications were heard together and the application filed by the respondent was dismissed while that of the appellant was allowed, vide order dated 31.3.2008. Dissatisfied with the said order, the respondent filed FAO No. 67/2008, which has been allowed by a learned Judge of the Lahore High Court, Lahore, vide the impugned order, observing that the executing Court was not bestowed with any authority to grant premium of the delay caused by the appellant/judgment-debtor and was bound to adhere to the terms and conditions as incorporated in the order dated 24.9.2007. Hence this petition.
Learned counsel for the appellant contended that the High Court has failed to appreciate the law and facts of the case in its true perspective and has not taken into consideration the bona fide explanation of the delay of one day in depositing the first instalment of the decretal amount; further contended that 23.3.2008, the last date of the six months' time granted by the Appellate Court being holiday/Sunday, the appellant has filed his application with a delay of one day on 24.3.2008 for permission to deposit the first instalment with the treasury as the respondent had refused to received the said amount out of Court; further contended that the appellant was not at fault in payment of the first instalment of the decretal amount but the respondent having refused to receive the same out of Court, the appellant was obliged to file the application before the executing Court for extension of time and permission to deposit the same in the treasury. While, on the other hand, the learned AOR appearing on behalf of the respondent supported the impugned judgment.
We have heard the arguments of the learned counsel for the parties, perused the record with their kind assistance. The suit against the appellant for the recovery of Rs.8,84,000/- has been decreed against him on 2.3.2007. The appeal filed by him was disposed of by the High Court on 24.9.2007 with the concurrence of the parties and he was granted six months time to pay a sum of Rs.5,00,000/- out of the decretal amount within six months from the date of the order.
The last date of the six months time so granted by the High Court expired on 23.3.2008 and the appellant neither paid the amount out of Court to the respondent nor deposited the same in the Court within the said period. He appeared in Court on 25.3.2008 with an application seeking permission to deposit the first instalment of the decretal amount in the treasury. As per the record, the application was filed by the appellant on 25.3.2008 though it bears the date as 24.3.2008. The time was the essence of the consent order passed by the High Court and the appellant did not comply with the terms of the compromise arrived at between him and the respondent before the High Court, as such, Order XXI, Rule 1 of the Code of Civil Procedure would not help the appellant to make the payment of the decretal amount beyond the time granted by the appellate Court. As the executing Court cannot go beyond the decree and has to execute the same as it is, unless the same is a patent nullity. Reference in this context can be made to Muhammad Ali Vs. Ghulam Sarwar (1989 SCMR 640) and Qasi Abdul Kader Vs. The East Pakistan Provincial Co-operative Bank Ltd. (1969 SCMR 275). Even otherwise, in the order of the Court the time being the essence of the agreement and the last date of the time so granted falling on the holiday, the payment made thereafter would not comply with the terms of the compromise as directed by the appellate Court. Reference, in this context, can be made to Indal Vs. Ram Nidh (AIR 1946 Oudh 156) and Ch. Muhammad Nawaz Vs. Ch. Rehmat Ali and another (1994 SCMR 349).
In view of the above, we do not find any illegality, infirmity in the impugned order passed by the High Court. This appeal being devoid of merits is dismissed with no order as to costs.
(W.I.B.) Appeal dismissed.
PLJ 2009 SC 475
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
IBRAHIM and others--Appellants
versus
STATE--Respondent
Crl. A. No. 101 of 2006, decided on 13.11.2008.
(Against the judgment dated 20.10.2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal
No. 455 of 2002).
Circumstantial Evidence--
----Circumstantial evidence should be like a well knit chain whose one end should point to the accused and the other to the deceased.
[P. 478] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 392 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--Challenge to--Appreciation of evidence--Evidence of last seen furnished by PW's and the evidence of identification test, were not of any credence--Statement of PW revealed only the cause of death and did not lead to the assailant--Recoveries from a hotel, none from the hotel staff was cited as a witness and no documentary evidence was collected by the I.O. in proof of stay of appellant--No statement of manager or any other members of the staff of the hotel was recorded on that context--Held: Prosecution had failed to prove its case against the appellant.
[P. 480] B & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 392 & 34--Conviction and sentence recorded against accused by trial Court--Challenge to--Last seen evidence--Value of--Evidence of last seen furnished by prosecution witnesses and evidence of identification test, were not worthy of any credence. [P. 480] B
Evidence of Recovery--
----Identification of dead body--Recovery of articles of deceased from the room of hotel--Validity--None from hotel staff was cited as witness and no documentary evidence was collected by investigation officer in proof of stay of accused in the hotel--No statement of manager or any other members of staff of hotel was recorded on that context--Prosecution has failed to prove its case against accused.
[P. 480] C & D
Br. Masood Kausar, ASC for Appellants.
Mr. M. Ilyas Siddiqui, ASC for Complainant.
Mr. M. Siddique Khan Baloch, D.P.G. for State.
Date of hearing: 13.11.2008.
Judgment
Muhammad Farrukh Mahmud, J.--This appeal, by leave of this Court, is directed against judgment dated 20.10.2003 handed down by the learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi in case FIR No. 57 registered at Police Station Saddar, Hasanabdal, on 10.3.2002 for offences under Sections 302, 392-34 PPC, for causing the murder of Hukam Dad, whereby the appeal was dismissed and the conviction and sentences recorded by the learned Judge Special Court for Juveniles, Attock for offences under Sections 308 PPC and 392 PPC, vide judgment dated 4.7.2002, were upheld.
According to prosecution case, Hukam Dad deceased, brother of the first informant Gul Zaman, lived alongwith his family in a separate house. He earned his living by plying Yellow Taxi Cab Registered No. 6676/ST. Hukam Dad left his house on 7.3.2002 and did not return till 8 p.m. which caused concern to the complainant party, after searching in vain for Hukam Dad till 8.3.2002, a report was lodged at Police Post Naseerabad Rawalpindi, about the disappearance of Hukam Dad on 9.3.2002 (Ex.P2). On 10.3.2002 Muhammad Aslam, SI Police Station Ghourghushti PW.5 received information about the presence of a dead body, which was lying under a pulli at Tarbela Road, PW.5 after recording the statement of Pervaiz Akhtar Ex.PE, took the dead body in possession, sent report to Police Station Hazro for Entry in Roznamcha. However, as the area of recovery of dead body fell within the territorial jurisdiction of Police Station Saddar Hasanabdal, the rupt and the dead body was sent there. PW. 12 Abdul Razzaq SHO, after identification of dead body, by his brother Gul Zaman, recorded his statement and registered the case.
The appellants who had been arrested by the police of Police Station Hazro in some other case, were arrested on 24.4.2002 in the instant case by PW.12 Abdul Razzaq SHO on information furnished by police, P.S. Hazro. On 25.4.2002 the appellants were sent to judicial lockup for the purposes of identification test, which was conducted by Ikram Ullah Niazi, Special Judicial Magistrate Attock (P.W.1), at District Jail Attock, on 6.5.2002. Allegedly PW.9 Ch. Mushtaq Ahmad and PW.10 Malik Sahib Khan correctly identified the appellants as accused, in whose company the deceased was last seen.
After the completion of identification test, PW.12 took physical remand of the accused on 9.5.2002. On 17.5.2002, Ibrahim appellant, allegedly led to the recovery of certain articles including I.D. Card of the deceased, and Pass Book of the account of the deceased of National Bank Rawalpindi, from a room of Lahore Hotel situated in Haripur. Recovery memo Ex.PG was attested by Muhammad Usman, ASI (PW.8) and Ashfaq Constable who was not produced.
PW.2 Dr. Ishtiaq Hussain conducted the postmortem examination on the dead body of Hukam Dad on 10.3.2002. According to his opinion the deceased lost his life due to shock, due to asphyxia due to throttling. The death was immediate and the postmortem was conducted within 10-14 hours of the death.
The appellants in their statement under Section 342 Cr.P.C. pleaded innocence and submitted that the identification test was false as they had already been shown to the PWs before the identification parade was held.
Leave was granted to examine in depth the evidentiary value of the identification test and the recoveries.
Learned counsel for the appellants has contended that the appellants were innocent and were roped in this case merely on the asking of the police; that the identification test was of no evidentiary value as appellants had already been shown to the PWs prior to the identification parade and this fact was recorded by the Magistrate who conducted identification test; that the story of the deceased, having been seen in the company of appellants put forward by PW.9 and PW.10, was not reliable; that the recoveries were planted by I.O. and that the taxi cab of the deceased was not recovered from the possession of the appellants. The learned counsel concluded his arguments by stating that the prosecution case was replete with doubts.
Conversely, the learned counsel for the complainant has submitted that PW.9 and PW.10 who had furnished the evidence of last seen had no enmity with the appellants so as to involve them in a false case; that both the PWs correctly identified the appellants out of dummies and that the PWs also identified the accused before the learned trial Court. The learned counsel further argued that non-compliance of provisions of Section 103 Cr.P.C. would not weaken the recovery evidence as police official were also held in many cases to be the good witnesses. Furthermore, Malik Sahib Khan (PW.10) and Usman Ali (PW.8) supported the last seen evidence before the learned trial Court; that the appellants had committed a heinous offence, therefore, were rightly convicted.
The learned counsel appearing for the State has adopted the line of argument of learned counsel for the complainant.
We have heard the learned counsel for the parties at length and have also scanned the entire record of the case. Undeniably, it was an un-witnessed occurrence and the prosecution case rested on circumstantial evidence. It is well settled that circumstantial evidence should be like a well knit chain whose one end should point to the accused and the other to the deceased. The learned Courts below have relied upon the statements of PW.9 and PW.10 who furnished the evidence that the deceased was last seen in the company of the appellants. Admittedly the appellants were not previously known to both the witnesses and they had a momentary glimpse of the appellants.
According to PW 9, he was driving taxi cab in Rawalpindi for the last 20/22 years and he usually picked up passengers from Pirwadhai More or from near Kohinoor Mills while Hukam Dad deceased usually remained present at Pirwadhai More. On 7.3.2002 at about 10/11 a.m., 3 persons contacted the witness at Pirwadhai More and asked him to take them to Islamabad. On refusal of the PW, they contacted Hukam Dad and left in his Taxi. According to this PW, at the time of contact, two of the accused were having beard while the third was clean shaven and that two of the accused were aged about 20/21 years while the third was aged about 16/17 years. The other witness Malik Sahib Khan PW 10 stated that on 10.3.2002 he left Rawalpindi for Peshwar on a Toyata Hiace. At about 4.30/5 a.m., the vehicle was stopped at a hotel at Sangwal More because the passenger wanted to take tea. While he was present at the hotel, Hukam Dad deceased alongwith three persons also reached there. On inquiry, Hukam Dad informed the witness that he had sold his taxi cab for Rs. 1,40,000/- to the accused and was accompying them to Ghazi to receive the sale proceeds of the taxi cab. The witness added that he returned to Pindi on 18.3.2002 and after knowing about the death of Hukam Dad, he joined the investigation and his statement was recorded on 19.3.2002. Malik Sahib Khan PW 10 did not give any description of the accused. He did not mention any thing about the age, height, complexion or the language being spoken by the persons who accompanied the deceased while PW 9 stated that two of the accused were having beard while the third was clean shaven and that two of them were aged about 20/21 years while the third was 16/17 years of age. He also did not describe any thing about the height, complexion, physique or the language being spoken by the accused. The description given by PW 9 would fit to thousands of citizens of Pakistan. No distinguishing marks whatsoever were given by any of the PWs. In the circumstance it would be highly difficult for a witness to identify the culprits and pick them during the identification test out of the dummies. Undeniably, prior to arrest of the appellants in the instant case they were arrested in some other case registered at Police Station Hazro and were in Police custody. PW. 1 who conducted the identification parade admitted that he had mentioned in his report that the accused has informed him that they remained in Police custody at Police Station Hazro for about 10 days. Perusal of his report Ex.PA relating to identification reveals that the accused also stated before him that they were shown to private witnesses at Police Station Hazro and there photographs were also taken. The perusal of the identification report further reveals that the appellants were mixed with 27 dummies but it has not been mentioned in the repot whether any of accused was keeping beard or not. Similarly it was not mentioned whether the dummies were keeping any beard or not. Neither the ages of the appellants nor the ages of the dummies have been mentioned in the report. It is also note worthy that according to investigating officer PW. 12, the appellants were arrested in this case on 24.4.2002 and were sent to judicial lockup on 25.4.2002 yet the identification test was conducted on 6.5.2002. Perusal of the record further reveals that the application for identification parade (Ex.PA) was submitted on 2.5.2002 after 8 days of the arrest of accused in the instant case. There is no plausible explanation for the delay in conducting of identification test which prima facie, strengthens the suspicion that the time was consumed for showing the accused to the PWs. The statement of PW.9 was recorded by the police on 12.3.2002 after two days of the registration of the case. PW.9 stated that he had seen the deceased in the company of accused on 7.3.2002 and came to know about the death of the deceased on 10.3.2002. There is no explanation as to why his statement was not recorded till 12.3.2002. Furthermore, Mushtaq Ahmed did not disclose the fact of having seen the deceased in the company of the accused till he came to know about the death of Hukam Dad. Ex.PL which is report lodged by Pervaiz real brother of Hukam Dad deceased at police post Naseerabad Rawalpindi about the disappearance of Hukam Dad and his taxi cab on 9.3.2002 reveals that prior to lodging the report, the relatives of the deceased had been searching for him and had been inquiring from fellow taxi drivers about the whereabouts of the deceased. In that case, PW.9 must have disclosed the hiring of taxi cab of the deceased by appellants for onward journey to Islamabad.
After considering the above noted facts, we are of the opinion that the evidence of last seen furnished by PW.9 and 10 and the evidence of identification test, were not worthy of any credence. The statement of Dr. Ishtiaq Hussain PW.2 reveals only the cause of death and does not lead to the assailants.
As far as evidence of recoveries from a room of Lahore Hotel situated at Haripur, is concerned, suffice it to say that none from the hotel staff was cited as a witness and no documentary evidence was collected by the I.O. in proof of stay of Ibrahim appellant in the hotel. Not only that, no statement of manager or any other members of the staff of the hotel was recorded on that context. It was most unlikely that the assailant who had taken care to hide his crime would keep the useless incriminating evidence intact. It appears that the learned Appellate Court knowing that the recovery evidence was of no value, did not mention it in its judgment whereby the appeal was dismissed.
The upshot of the whole discussion is that in our considered opinion, the prosecution has failed to prove its case against the appellants. Resultantly, this appeal is allowed and the judgments passed by the learned Courts below are set aside as a result whereof appellants are acquitted of all the charges and would be released forthwith if not required in any other criminal case.
(W.I.B.) Appeal allowed.
PLJ 2009 SC 481
[Appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari, Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
Mst. IFFAT NAZIR, DISTRICT POPULATION WELFARE
OFFICER, NAROWAL--Petitioner
versus
GOVT. OF PUNJAB through Secretary Population Welfare Department, Civil Secretariat, Lahore--Respondent
C.P. No. 1849 of 2008, decided on 13.1.2009.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20.10.2008, in Writ Petition No. 10780 of 2008).
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Leave to appeal--Civil servant--Writ jurisdiction--Maintainability--Distinguishable and contrary to facts and circumstances--Civil servant was recommended by departmental authority for promotion--Notification for promotion was withheld on the ground of pendency of disciplinary proceedings--Praying for direction to respondent for issuance of notification of promotion--Constitutional petition was dismissed--Challenge to--Indeed the writ jurisdiction was not meant to be exercised to compel the competent authority to promote a civil servant against whom prima facie evidence showing involvement of civil servant in serious charges of misconduct was available--Held: Any such direction would be disharmonious to principle of good governance and cannon of service discipline--Leave refused. [P. 483] A
PLJ 2008 Lah. 599.
Mr. M. Shoaib Shaheen, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 13.1.2009.
Judgment
Muhammad Moosa Khan Leghari, J.--The petitioner seeks leave to appeal against the order dated 20.10.2008 passed by learned Single Judge of the Lahore High Court, Lahore passed in Writ Petition No. 10780 of 2008 whereby the writ petition filed by the petitioner was dismissed.
Precisely, the case of the petitioner is that the petitioner alongwith seven other civil servants was recommended by the departmental authority for promotion to BS-19 but notification with regard to her promotion was withheld on the ground of pendency of disciplinary proceedings. It is pleaded that withholding of the notification of promotion was illegal. She therefore approached the Lahore High Court, Lahore by invoking the writ jurisdiction praying therein for directions to the respondent for issuance of the notification of her promotion.
It is contended by learned counsel for the petitioner that the promotion could not be withheld on account of pendency of disciplinary proceedings. Learned ASC for the petitioner has referred to the judgment reported as (Mrs. Sanjida Irshad, Director Nursing EDO (Health), Bahawalpur. Vs. Secretary to Govt. of the Punjab, Health Department, Lahore (PLJ 2008 Lahore 599) in support of the petition.
We have anxiously considered the submissions made on behalf of the petitioner and have also perused the above judgment.
The perusal of the record reveals that the recommendations of the departmental authorities vide memo dated 17.09.2007 in regard to promotion of the petitioner were not acted upon as the petitioner was allegedly involved in the acts of misappropriation. The prima-facie, evidence in respect of the allegations leveled against the petitioner was found to be available in a preliminary probe as such the decision was taken by the authorities to hold a regular inquiry. Resultantly competent authority appointed an enquiry officer to hold an enquiry against the petitioner under the Punjab Efficiency, Discipline and Accountability Act, 2006 vide order dated 26.04.2008 which contained details of the charges. The memo of the writ petition itself discloses that an F.I.R. under Section 409 PPC read with Section 5(2) 1947 of PCA was also registered against the petitioner. Apparently there is no evidence of any act of discrimination, malice and/or breach of law/rules, except bald accusation of malafide by the petitioner.
A perusal of the judgment of Lahore High Court, relied upon by learned ASC for the petitioner, reveals that the same was based on two judgments of this Court. The facts contained in the case of Deputy Inspector General of Police, Gujranwala and others. Vs. Anwar Saeed, Inspector Police and others (1998 SCMR 552) show that the petition of the Authorities was dismissed as the civil servant in the said case was not promoted even after being exonerated of the charges in the inquiry, which is not the case of the petitioner. In the case Maj. Ziaul Hassan, Home Secretary and others. Vs. Mrs. Naseem Chaudhry (2000 SCMR 645) this Court allowed the appeal of the petitioner on the ground that the order of the Supreme Court was not complied with for the mere reason that certain disciplinary proceedings were pending against the civil servant.
The facts of the cases as referred in the judgment of the Lahore High Court, Lahore are quite distinguishable and contrary to the facts and the circumstances of the case of the petitioner. The learned Lahore High Court, Lahore was quite justified in declining to issue a writ, under the circumstances of the case. Indeed the writ ¦jurisdiction was not meant to be exercised to compel the competent authority to promote a civil servant against whom prima-facie evidence showing her involvement in the serious charges of misconduct was available, for the reason that any such direction would be disharmonious to the principle of good governance and cannon of service discipline. Rather causing undue interference to hamper smooth functioning of the departmental authorities.
For the above reasons, the order passed by Lahore High Court, Lahore being unexceptionable, warrants no interference. The petition is accordingly dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 483
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
TALIB HUSSAIN and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 220 to 223 of 2002 and J.P. No. 34 of 2002, decided on 20.5.2008.
(On appeal from the judgment dated 18.7.2001 in Cr. A. No. 397 of 1993, Cr.A. No. 189 of 1995, Cr.A. 291 of 2001 passed by the Lahore
High Court, Lahore)
Interested witness--
----An interested witness is one who is partisan or inimical towards accused or has a motive previously or cause of his own to falsely implicate the accused in crime--Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution, would not dub him as an interested witness. [P. 489] C
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 148 & 149--Conviction & sentence--Challenge to--Appreciation of evidence--There was strong motive due to dispute of landed property between the parties--FIR was lodged with promptitude i.e. within 15 minutes wherein accused were named with attributed roles--Presence of all eye witnesses was proved by independent & reliable evidence--Ocular account was supported by medical as well as recovery evidence--There was nothing to doubt that the occurrence had not taken place in the suggested manner--It was a daytime occurrence and there was no possibility of substitution or mistaken identity--Conviction maintained but death sentence was converted into life imprisonment. [P. 491] D & E
Non-vital Part--
----Shot at knee of deceased--Not saddled with liability of murder--Contention--Only one shot at right knee of deceased was attributed to accused, hence the injury being on non-vital part, accused could not have been saddled with liability of murder. [P. 489] A
Ocular Evidence--
----Interested witness--No stretch of imagination--Since ocular evidence consists of interested witnesses, therefore, it could not have been believed--Held: No doubt eye-witnesses in the instant case are related to deceased but they by no stretch of imagination could be termed or regarded as interested witnesses. [P. 489] B
2007 SCMR 518, PLJ 2007 SC 226, PLJ 2004 SC 320, PLJ 1998 SC 1398 & AIR 1981 SC 697, ref.
Mr. Aftab Farrukh, Sr. ASC for Appellant (in Crl. A. No. 220/2002).
Sardar Muhammad Latif Khan Khosa, ASC for Appellant (in Crl. A. 221/2002) and for complainant in all case).
Raja M. Shafqat Abbasi, ASC for Respondent No. 1 (in Crl. A. No. 221/2002).
Mr. M. Saeed Ansari, ASC for Appellant (in Crl. A. No. 222/2002).
Ch. Naseer Ahmad, ASC for Appellant (in Crl. A. No. 223/2002).
Syed Ali Hussain Gillani, ASC for Petitioner (in J.P. No. 34/2002).
Ch. Munir Sadiq, D.P.G. Punjab & Mr. M. Siddique Khan, D.P.G. Punjab for State (in all cases).
Date of hearing: 20.5.2008.
Judgment
Ch. Ejaz Yousaf, J.--By this common judgment we intent to dispose of Criminal Appeals No. 220 to 222 of 2002 along with Jail Petition No. 34 of 2002, which are directed against a common judgment dated 18.7.2001 in Criminal Appeal No. 397 of 1993 and criminal revision No. 189 of 1995, whereas Criminal Appeal No. 223 of 2002 is directed against a separate judgment dated 18.7.2001 in Criminal Appeal No. 291 of 2001, passed by a learned Division Bench of the Lahore High Court, Lahore, whereby the said appeals and revision were dismissed.
Facts of the case, in brief, are that on 3.12.1992 complaint was lodged by one Muhammad Arshad with P.S. Girjakh, Gujranwala, wherein it was alleged that on the said date, at about 2.15 p.m., the complainant was present in the land of Muhammad Basharat located in Pippal Wali Gali, Mohallah Rehmanpura, District Gujranwala along-with Muhammad Basharat, his maternal uncle Muhammad Shafi and Sarfraz son of Haji Muhammad Shafi. All of a sudden, Shahid Mahmood and his brother Ghaffar armed with .222 bore automatic rifles, Tariq @ Heero son of Muhammad Hussain Ansari armed with mauser, Talib Dogar son of Ghulam Muhammad armed with pistol and Tariq @ Billa son of Muhammad Younis Ansari armed with mouser, emerged there and after raising lalkara, resorted to indiscriminate firing. The complainant and Sarfraz PW in order to save their lives, withdrew themselves to a distance of few paces whereas, Muhammad Basharat deceased and Muhammad Shafi asked Shahid Mahmood and his companions not to take law in their own hands, however, ignoring his request, Shahid Mahmood exhorted his co-accused to teach a lesson to the complainant party for purchasing the land and getting registered the criminal case. Resultantly, Ghaffar accused fired at Muhammad Basharat hitting his right thigh and left knee. Shahid Mahmood also fired a shot with his rifle at Muhammad Basharat, and the bullet landed on his head. Consequently, Muhammad Basharat fell down. In the meantime Tariq @ Heero fired two successive shots at Muhammad Shafi hitting his right shoulder and right knee. Then Talib Dogar fired with his pistol at Muhammad Shafi hitting his left knee. Tariq @ Billa accused also fired at Muhammad Shafi hitting his left arm and right leg, as a result whereof Muhammad Shafi too, fell down. The complainant and Sarfraz PW raised alarm and advanced for the rescue of the injured but since they were also fired at by the accused persons, they barely escaped by throwing themselves on the ground. Thereafter the accused persons fled away. Muhammad Basharat succumbed to the injuries at the spot whereas Muhammad Shafi was taken to hospital in injured condition by Sarfraz PW. On the stated allegation formal FIR Bearing No. 399/92 was registered at the said police station under Sections 302/ 324/148/149 PPC and investigation was carried out in pursuance thereof. On completion of the investigation the accused persons except Shahid Mehmood were challaned to the Court for trial.
Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations leveled against the accused persons, produced 18 witnesses in all, whereafter the accused persons were examined under Section 342 Cr.P.C. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C. On completion of the trial, the learned trial Court convicted the accused persons/appellants and sentenced them to the punishments as under:
Tariq Mahmood alias Billa, and Talib Dogar
(i) For murder of Muhammad Shafi, death each with compensation of Rs.25,000/-. u/S. 544-A Cr.P.C. each.
(ii) For murder of Muhammad Basharat, life imprisonment each with compensation of Rs.25,000/- u/S. 544-A Cr.P.C. each.
In default of payment of compensation, both accused to undergo two years R.I. in toto
Abdul Ghaffar
For murder of Muhammad Shafi and Muhammad Basharat, life imprisonment on two counts with compensation of Rs.50,000/- on two counts to the legal heirs of deceased.
In default of payment of compensation, to undergo R.I. for three years in toto.
The sentences of imprisonment of all the convicts were ordered to run concurrently.
Appeals filed by the accused/appellants against their convictions and the revision filed by the complainant for enhancement of the sentence of the appellant were dismissed by the High Court, hence, these appeals.
co-accused Tariq @ Billa; and since the injury attributed to appellant Talib Hussain was at non-vital part of the deceased, and death of Muhammad Shafi was the result of cumulative effect of all the injuries, therefore, to the extent of Talib Hussain, appellant, it was not a case of capital punishment by any standard. He has further contended that appellant Talib Hussain was charged under Section 302 read with Section 149 PPC and since Section 141 P.P.C. requires participation of more than five persons, to form unlawful assembly and due to acquittal of Tariq @ Heero the number of the accused person fell short of the required number, therefore Section 149 could not have been pressed into service. He maintained that in the circumstances, Section 34 PPC would have been applicable; that appellant/accused Talib Hussain had no concern with the motive i.e. dispute over the encroachment of land. In the end he stated that the occurrence in the instant case took place in the year 1992 and since then appellant Talib Hussain is in the death cell, in great agony, hence, he may be dealt with leniently.
Ch. Naseer Ahmad, learned ASC, appearing on behalf of appellant Shahid Mahmood, has urged that since the ocular evidence consists of interested witnesses therefore, their evidence could not have been believed; that abscondance of Shahid Mehmood was wrongly taken as an incriminating circumstance against him despite the fact that at the relevant time he was at Karachi. It is further his grievance that since complainant Muhammad Arshad had subsequent to earlier trial died and his statement was taken on record under Section 512 Cr.P.C. at the trial against appellant Shahid Mehmood and that too, without confronting him in the course of his statement under Section 342 Cr.P.C., therefore, it could not have been relied upon in recording conviction against appellant Shahid Mehmood.
Syed Ali Hassan Gillani, learned ASC appearing on behalf of petitioner/accused Tariq Mehmood @ Billa in J.P. No. 34/2002 has submitted that recovery of Ex.P-III was wrongly attributed to the appellant whereas, in the Forensic Science Laboratory's report Ex. PL, it was marked as Ex.P-II. He has also stated that since two injuries i.e. at the shoulder and knee of deceased Muhammad Shafi were attributed to Tariq alias Billa, whereas Talib Hussain had also allegedly fired at him and his death was the cumulative effect of all the injuries, therefore, to the extent of appellant Tariq Mehmood alias Billa too, it was not the case of capital punishment.
Sardar Muhammad Latif Khan Khosa, learned counsel appearing for the complainant, while vehemently controverting the contentions raised by the learned counsel for the appellants/accused, has submitted that so far as the case against Tariq @ Billa is concerned, it is not correct that recovery of pistol mark P-3 was wrongly attributed to him as in the FSL report, it was marked as P-2. He stated that actually weapons are marked by the laboratory staff as per their own convenience and it has nothing to do with the actual exhibits. He pointed out that in the statement of PW-8, the recovery witness, it has been categorically mentioned that mark P-3 was recovered from appellant/accused Tariq Mehmood @ Billa, therefore, it was rightly taken as incriminating piece of evidence against him. He added that it was a broad day light occurrence whereas FIR was promptly lodged by Muhammad Arshad, brother of the deceased, at the Police Station, situated at a distance of 2« furlong from the place of occurrence; roles to each of the accused persons were duly attributed and injuries mentioned in the post-mortem report correspond with the same; that absconsion of the accused further strengthens the prosecution case. Regarding acquittal of accused Tariq @ Heero, he stated that his acquittal was a laboured pretext as reason weighed with the learned trial Court in recording his acquittal was that since complainant Muhammad Arshad was not aware of the names of the opposing candidates who had contested election against his brother, therefore, his testimony was not believable. He maintained that for such a petty and fake idea the statement of the eye-witness could not have been disbelieved.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case minutely, with their assistance.
Admittedly a .30 bore pistol Bearing No. 3466 was recovered from the possession of appellant Talib Hussain vide Ex.P.J. the recovery memo. In the FSL report the said pistol was shown and marked as P-1 and as per report none of the empties recovered from the place of occurrence matched with the same, hence we see force in the contention raised by the learned counsel for the petitioner that due to change in the mark it was wrongly presumed by the Courts below that empties recovered from the place of occurrence wedded with the pistol Bearing No. 3466 allegedly recovered at the instance of petitioner Talib Hussain. It would be pertinent to mention here that as per said report crime empties of .30 bore marked as C-11 & C-12 were found to had been fired from the pistol but signed mark as P-II, which as per said report was allegedly recovered from the possession of Tariq Mahmood alias Billa.
As to the contention that only one shot at the right knee of deceased Muhammad Shafi was attributed to the appellant Talib Hussain, hence, the injury being on non-vital part, the appellant could not have been saddled with the liability of murder. It may be pointed out here that while conducting post-mortem examination, PW-2 Dr. Sardar Ahmad, had found a number of injuries i.e. 16 on the person of deceased Muhammad Shafi, out of which only one injury i.e. No. 5 at the right knee joint was attributed to appellant Talib Hussain by the witnesses. After examination it was found by the Doctor that death occurred due to secondary haemorrhage and shock consequent upon Injury No. 1, 3, 5, 7, 9, and 11, which were sufficient to cause death in the ordinary course of nature collectively. Thus we see force in this contention of the learned counsel for the appellant as well that since death was the cumulative effect of all the injuries and injury attributed to appellant Talib Hussain i.e. No. 5, was at the non-vital part, therefore, to his extent, instant was not the case of capital punishment.
Adverting to the next contention raised by the learned counsel for the appellant Talib Hussain that both the eye-witnesses i.e. Muhammad Arshad and Sarfraz were not present at the place of occurrence, it may be pointed out here that similar objection was raised before the learned trial Judge, who repelled the same by categorically observing that since as per prosecution version injured Muhammad Shafi was immediately taken to hospital by PW Sarfraz which fact was not disputed by the defence and FIR was got registered within fifty minutes of the occurrence by the other PW i.e. Muhammad Arshad, therefore, presence of both the eye-witnesses, at the place of occurrence could not have been doubted and for the stated reasons we are also unable to subscribe to the contention raised by the learned counsel for the appellant.
As regards the contention raised by the learned counsel for appellant Shahid Mahmood that since ocular evidence consists of interested witnesses, therefore, it could not have been believed, it may be pointed out here that no doubt eye-witnesses in the instant case are related to the deceased but they by no stretch of imagination could be termed or regarded as interested witnesses. It is well settled that an interested witness is one who is partisan or inimical towards the accused or has a motive previously or cause of his own to falsely implicate the accused in the crime. Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution of the accused on account of the occurrence, would not dub him as an interested witness. This view receives support from the following reported judgments:--
(i) Sheraz Tufail v. The State (2007 SCMR 518)
(ii) Khair Muhammad & another v. State (PLJ 2007 SC 226)
(iii) Amal Sherin & another v, State through A.G. NWFP (PLJ 2004 SC 320)
(iv) Dosa & others v. The State (2002 SCMR 1578)
(v) Mulla Riaz Ahmad v. The State (2002 SCMR 626)
(vi) Feroze Khan v. The State (2002 SCMR 99)
(vii) Farmanullah v. Qadeem Khan and another (2001 SCMR 1474)
(viii) Muhammad Amin v. The State (2000 SCMR 1784)
(ix) Saeed Akhtar & others v. The State (2000 SCMR 383)
(x) Mir Hassan and others v. State & others (PLJ 1999 SC 1702)
(xi) Sharafat Ali v. The State (1999 SCMR 329)
(xii) Sardar Khan & others v. State (PLJ 1998 SC 1398)
(xiii) Wahid Bukhsh & others v. The State (1997 SCMR 1424)
(xiv) Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639)
(xv) State of Rajasthan v. Hunaman (AIR 2001 SC 282)
(xvi) State of Punjab v. Wassan Singh & others (AIR 1981 SC 697)
In the instant case account of the occurrence has been given by the eye-witnesses in natural and convincing manner and their statements find ample corroboration from other evidence, hence, in our view they were rightly believed by the Courts below.
In order to supplement his next contention that abscondance of Shahid Mehmood was wrongly taken as incriminating piece of evidence against him despite the fact that at the relevant time he was at Karachi, the learned counsel for the said appellant stated that since, in the course of investigation appellant Shahid Mehmood was declared innocent by DW-1 Mr. Muhammad Anwar Virk, SSP, therefore, he could not have been convicted for the offence. Having been questioned, however, as to with whom the said appellant was at Karachi at the time of occurrence, the learned counsel stated that he was with his friend Wajid Ali but candidly conceded that said Wajid Ali was neither produced at the trial nor plea of alibi was substantiated through evidence. In the circumstances the contention, on its face is devoid of force.
As to the contention raised by the learned counsel for appellant Tariq @ Billa that recovery of Mauser P-3 was wrongly attributed to the said appellant because in the FSL report i.e. Ex.PL it was marked as P-2, it may be pointed out here that no doubt, at the trial, Mouser P-3 allegedly recovered from the possession of the appellant was marked as P-3 but in FSL report, Ex.PL was marked as P-2 and it was categorically noted therein that crime empties of .30 bore mark C-11 & C-12 were found to had been fired from .30 bore pistol marked as P-2, thus there is no discrepancy with regard to the allegedly recovered weapon from appellant Tariq Mehmood.
In the instant case the learned Judges in the High Court having found that there being strong motive with the accused who committed the crime and a dispute existed between the parties in respect of landed property, the FIR having been lodged with promptitude i.e. within fifty minutes of the occurrence wherein not only names of all the accused were mentioned but role to each of them was also attributed, the presence of all the eye-witnesses at the place of occurrence having been proved by independent and reliable evidence and ocular account of the occurrence having been supported by other evidence including the evidence of recoveries and the medical evidence, there was nothing to doubt that the occurrence had not taken place in the manner as suggested by the prosecution and we are also not inclined to take a different view because it was a day time occurrence and possibility of substitution of the accused or that it was a case of mistaken identity had to be ruled out.
We also see force in the contention raised by the learned counsel for the appellant Talib Hussain that since Section 141 PPC requires participation of more than five persons to form unlawful assembly and due to acquittal of Tariq alias Heero, the number of persons fell short the required number, therefore the case of each accused was to be dealt with as per Section 34 PPC.
Upshot of the above discussion is that:
Criminal Appeal No. 220 of 2002 filed by appellant Talib Hussain is partly allowed and while maintaining his conviction under Section 302(b) PPC, sentence of death thereunder is altered to that of life imprisonment with benefit of Section 382-B Cr.P.C.
Criminal Appeal No. 222 of 2002 & Jail Petition No. 34 of 2002 filed by appellant Tariq Mahmood alias Billa are partly allowed and while maintaining his conviction under Section 302(b) PPC, sentence of death is altered to that of life imprisonment.
Criminal Appeal No. 223 of 2002 filed by the appellant Shahid Mahmood is dismissed and his conviction under Section 302(b) PPC and sentence of death are maintained.
Criminal Appeal No. 221 of 2002 filed by the complainant against acquittal of respondent Tariq Mehmood alias Hero and for enhancement of sentence of respondent Abdul Ghaffar is also dismissed.
There are the reasons of our short order of even date announced in open Court.
(J.R.) Order accordingly.
PLJ 2009 SC 492
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
Haji PAIO KHAN--Petitioner
versus
SHER BIAZ and others--Respondents
Crl. Petition No. 138-P of 2004, decided on 2.1.2009.
(On appeal from the judgment dated 16.6.2004 of the Peshawar High Court, Peshawar passed in Crl. A. No. 538 of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Acquittal by H.C.--Challenge to--Appreciation of evidence--High Court had dilated upon all the relevant contentions--Absconsion of accused had not been established--Sufficient material was on record to prove that accused were not present in the village and were performing duty at the places of their respective posting for away from the scene of occurrence--No misreading or non-reading of material evidence was pointed out--Petition dismissed.
[Pp. 495 & 496] A, D & E
Acquittal--
----Presumption of double innocence--When an accused person is acquitted from the charge by a Court of competent jurisdiction, then the presumption of double innocence is attached to its order with which the superior Courts do not interfere unless the order is arbitrary capricious, fanciful and against record. [P. 495] B
Absconsion--
----Effect--Mere absconsion is not conclusive prove of guilt of an circumstance against him that he was found guilty of the offence.
[P. 496] C
Mr. M. Amin Khattak, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 2.1.2009.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition, Haji Paio Khan, petitioner, seeks leave to appeal against judgment dated 16.6.2004 passed by learned Peshawar High Court, Peshawar, accepting appeal filed by accused respondents Sher Biaz and Nasir Khan, setting aside their conviction and sentences recorded under Sections 302/324/34 PPC, by learned Additional Sessions Judge, Karak, vide judgment dated 7.8.2003 and dismissing revision filed by petitioner for enhancement of sentences awarded to accused-respondents.
Facts of the prosecution case as set out in F.I.R. lodged by complainant Haji Paio Khan, shortly stated are, that on the fateful day i.e. 9.4.2001 at 15.20 hours, complainant alongwith his son Rasool Ayaz (deceased) and others had gone to Session's Court, Karak for attending the case of his another son namely Zakirullah. On coming to know about his (Zakirullah) release, complainant and Rasool Ayaz were returning home in Pickup No. DNC-4454 driven by Khurshid Alam. On reaching the scene of occurrence, another Pickup chasing the complainant party went ahead and stopped on a `kacha road', Nasir Khan, Hidayatullah, sons of Aqibat Khan, Sher Biaz and Mir Paio sons of Ayaz Khan alighted from the pickup, duly armed with Kalashnikovs. The complainant and Khurshid Alam driver jumped from the Pickup while Rasool Ayaz remained there on its rear seat. All the four accused fired at Rasool Ayaz with which he was hit and died on the spot. The complainant was also fired at but he escaped un-heart. Motive leading to the incident was stated to be previous enmity between the parties. After completion of investigation, accused-respondents were sent for trial to the Court of learned Additional Sessions Judge, Karak, where they pleaded not guilty and claimed trial.
The prosecution in order to prove the charge and substantiate the allegations produced as many as ten witnesses. The ocular account of the occurrence was furnished by complainant Haji Paio Khan (PW-7) father of Rasool Ayaz deceased. Doctor Gul Sanat Shah, Medical Officer Civil Hospital, Karak conducted the post-mortem examination on the dead body of deceased on 9.4.2001 at about 5.00 p.m. and noted a number of fire-arm injuries on the person of the deceased.
The accused-respondents in their statements under Section 342 Cr. P.C. denied the charge and pleaded innocence but neither they made statements under Section 340(2) Cr.P.C. nor produced any evidence in defence. In answer to question, as to how you explain your abscondance from the date of occurrence, till your arrest, Nasir Khan, accused-respondent stated:
"I am serving in Railway police and during those days I was posted at Rawalpindi and was present on my duty on the day of the alleged occurrence, on return to my village, when I got the knowledge of the above alleged charge I appeared before the Court of learned Sessions Judge, Karak with the application for BBA as I had come to my village and thus secured ad interim bail on 25.4.2001 so I did not abscond."
"I did not abscond. In fact I was serving as Lance Niak at Shelabagh Pashin Scouts at Baluchistan and I was not knowing the above malicious charge. As soon as I got the knowledge of the above bogus charge I appeared before Ghulam Jan ASI at Baluchistan where I was posted."
The learned trial Judge, having come to the conclusion that prosecution has succeeded to establish its case against the accused-respondents beyond any reasonable doubt by virtue of his judgment dated 7.8.2003 convicted and sentenced them to suffer imprisonment for life and to pay compensation amounting to Rs. 100000/- (one lac) to the legal heirs of deceased under Section 544-A Cr. P.C. and in default thereof to further undergo R.I. for five years. Benefit of Section 382-B Cr.P.C. was also extended to the accused-respondents.
Criminal Appeal by the accused-respondents, challenging their conviction and sentences, filed before learned Peshawar High Court, Peshawar was accepted whereas Criminal Revision filed by complainant/petitioner, seeking enhancement of sentences awarded to respondents was dismissed through the impugned judgment, as mentioned in the opening paragraph of this judgment.
Mr. Muhammad Amin Khattak, Advocate appearing on behalf of the petitioner, after taking us through the evidence on record, contended with vehemence that overwhelming evidence, consisting of ocular account, medical evidence, motive, absconsion and recoveries was available on record to prove the guilt of the accused-respondents in the crime in question, which has not been examined and discussed thoroughly; that accused-respondents stand directly nominated in the promptly lodged FIR for the commission of crime; that the there is strong, trust worthy and unimpeachable evidence available against accused-respondents, which has not been appreciated in its true perspective; that the prosecution has succeeded in proving its case against accused-respondents beyond any shadow of doubt; that High Court has fallen into serious error by accepting the plea of `alibi' advanced by accused respondents; that judgment of the High Court is not according to law and that the reasons advanced for acquittal of accused-respondents are artificial, whimsical and perverse and cannot be allowed to remain intact.
Having heard the arguments of learned counsel for the petitioner and re-examining the record on file, we find that learned counsel for the petitioner has not been able to refer to any piece of evidence which could persuade us to hold that the conclusion arrived at by the High Court is against the weight of evidence on record. The judgment of the High Court while acquitting the accused-respondents cannot be said to be perverse and the reasons thereof are not fanciful, capricious, speculative and artificial and in the absence of holding the order of acquittal as such, it cannot be interfered with. The High Court has dilated upon all the contentions as agitated before us in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:
"9. From the facts and circumstances discussed above, from whatever angle we see, when the very presence of the appellants on the date/time of occurrence was not proved on the spot, rather their presence on their places of posting was duly established from the documentary evidence brought on record coupled with the fact that the medical evidence is not in line with the prosecution case which is further not supported by the recoveries and that the complainant has also not given a trustworthy account, we don't think that the prosecution had been able to prove its case against the appellants beyond any shadow of reasonable doubt."
It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.
It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
Insofar as the abscondence is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.
In the instant case, absconsion of the respondents has not been established. Sufficient material has been brought on record to prove that at the relevant time accused respondents were not present in the village and were performing duty at the place of their respective postings far away from the scene of occurrence.
In view of the above, no misreading or non-reading of evidence or any material piece of evidence having the effect of varying the impugned judgment having not been appraised in the true perspective, could be pointed out to warrant interference by this Court.
We are of the opinion that no case for grant of leave is made out. The petition is destitute of merit. The same is dismissed and leave refused, accordingly.
(J.R.) Leave refused.
PLJ 2009 SC 496
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
Mst. GULSHAN BIBI--Petitioner
versus
STATE--Respondent
Crl. Petition No. 42-P of 2007, decided on 21.1.2009.
(On appeal from the judgment dated 8.3.2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 738 of 2005).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recovery of 15Kg charas--Conviction & sentence recorded against accused by trial Court--Appeal was also dismissed--Assailed--Appreciation of evidence Huge quantity of 15 Kg charas had been recovered from lady accused--Prosecution successfully established its case--Recovery was satisfactorily proved--Mere fact that one witness to recovery memo was not produced was not fatal--Plea of acting as carrier was not taken at trial--Plea of substitution was also not substantiated--Leave refused. [P. 498] A & B
Haji M. Zahir Shah, AOR for Petitioner.
Nemo for Respondent.
Date of hearing: 21.1.2009.
Judgment
Ijaz-ul-Hassan, J.--Mst. Gulshan Bibi, petitioner, seeks leave to appeal from the judgment dated 8-3-2007 passed by learned Peshawar High Court, Peshawar, dismissing petitioner's Criminal Appeal No. 738/2005.
Briefly stated facts of the case are, that pursuant to spy information, stated to have been received by Assistant Director, ANF, Peshawar, on 21.4.2004 that on said day, a woman would smuggle from Shahkas' (Illaqa Ghair) a huge quantity of narcotics, a police party headed by Inspector Sameen Khan, SHO, Police Station ANF, Peshawar, laidnakabandi' near Itwar Bazzar', Hayatabad, Peshawar. In the meanwhile, a passenger bus bearing Registration No. Peshawar K-1289 arrived there. The bus was stopped. On personal search of a lady passenger, found sitting in the bus chars' tied around her body in 12 packets, was recovered.Chars' was weighed and found 15 K.Gs. A meager quantity from each packet was separated for chemical analysis and remaining was sealed. The woman was taken into custody and a case was registered against her under Section 9(c) CNSA, 1997 vide FIR No. 39 dated 21.11.2004, Police Station ANF, Peshawar.
The prosecution in order to prove its case examined three witnesses namely, P.W.1 Samin Jan, P.W.2 Mst. Saeeda Bano and P.W.3 Fida Ullah. The petitioner neither appeared in the witness-box as required under Section 340(2) Cr.P.C. nor examined herself in defence. In answer to a question as to "what is your statement and why are you charged?" she replied that "I am innocent and have been charged falsely. On the day of occurrence, I along with another lady was deboarded from the passenger bus on the spot of occurrence and thereafter during the way the said lady was left free due to certain ulterior motives of the I.O. while I came to know about the contraband pertaining to this case, which was falsely connected with me. Moreover, the occurrence has taken place on Sunday. I produce the calendar of 2004 in this regard which is Ex.D-I and so as it was holiday, therefore, the lady searcher Mst. Saeeda Bano was subsequently summoned to PS ANF where the entire story was concocted and she also signed the memo there at per the instance of the I.O. being his subordinate."
At the conclusion of trial, vide judgment dated 15.10.2005, learned Judge Special Court (CNSA), Peshawar, finding the petitioner guilty of the said charge convicted her under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced her to life imprisonment with fine of Rs. 100000/- (one lac) or in default whereof to undergo six months S.I. Benefit of Section 382 (B) Cr.P.C., was extended to the petitioner.
The petitioner, feeling aggrieved, filed Criminal Appeal
No. 738 of 2005 in the Peshawar High Court, Peshawar to challenge her conviction and sentence, which was dismissed vide judgment dated 8.3.2005, which has been impugned through instant petition for leave to appeal.
Mr. M. Zahir Shah, Advocate for the petitioner, at the very out set submitted that he will not argue the case on merit and would request for reduction of the sentence appropriately. Learned counsel reiterated that petitioner is an old woman of more than 50 years age and she acted as a `carrier'. Reliance in this regard was placed on a judgment of this Court reported as Muhammad Iqbal alias Bali vs. The State (2008 SCMR 1601).
Although learned counsel for the petitioner has confined his arguments to the quantum of sentence but we have re-appraised the entire evidence on the file to satisfy ourselves, whether or not, the evidence on record has been properly scrutinized in this case. We find that huge quantity of chars' weighing 15 kilograms has been recovered from the possession of the petitioner. The prosecution has successfully established its case. The recovery has been satisfactorily proved.
The mere fact that one of the witnesses to recovery memo was not produced is not fatal to the prosecution case. The plea of acting ascarrier' has not been taken at the trial nor spelt out from the material on record. The plea of substitution is also not substantiated.
In the circumstances, finding no force in this petition, the same is dismissed and leave to appeal refused.
(J.R.) Leave refused.
PLJ 2009 SC 499
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
SAEED AKHTAR--Petitioner
versus
STATE--Respondent
Crl. P. No. 44-P of 2007, decided on 21.1.2009.
(On appeal from the judgment dated 20.3.2007 of the Peshawar High Court, Abbottabad Bench, passed in Crl.A. No. 20/07).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514--Constitution of Pakistan, 1973, Art. 185(3)--Forfeiture of bail bond--Imposition of penalty--Challenge to--High Court while dismissing appeal had discussed all aspects of the matter in detail, leaving no room for further consideration--Neither any misreading or non-reading of record was pointed out--Trial Court had already taken a lenient view by burdening the accused with a penalty of only
Rs. 50,000/- inspite of the fact that surety amount was Rs. 1,00,000/- Leave refused. [Pp. 500 501] A, B & C
PLD 1997 SC 267, ref.
Mr. Muhammad Asif, ASC & Mr. Mir Adam Khan, AOR for Petitioner.
Mr. Ishtiaq Ibrahim, AAG NWFP for State.
Date of hearing: 21.1.2009.
Judgment
Ijaz-ul-Hassan, J.--This petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against a judgment dated 20.3.2007 of the Peshawar High Court, Circuit Bench, Abbottabad, partially allowing Criminal Appeal, preferred by Saeed Akhtar petitioner.
Facts of the case shortly narrated are, that Saeed Akhtar, petitioner, stood co-surety alongwith Raziq Shah for the release of accused Akbar Khan charged in case FIR No. 691 dated 15.9.2005 recorded at Police Station City Haripur for offences under Sections 324/ 353/411/201/109/34 PPC. After release on bail accused Akbar Khan disappeared and consequently proceedings under Section 512 Cr.P.C. were initiated against the accused and under Section 514 Cr.P.C. against the petitioner and another surety Razeeq Shah as well on 9.1.2007 and 31.1.2007, respectively. Notice under Section 514 Cr.P.C. was also served upon the petitioner, which was accordingly replied. After hearing the arguments, learned Additional Sessions Judge, Haripur vide his judgment dated 23.2.2007 burdened the petitioner to pay Rs.50,000/- as penalty for the forfeited bail money and in default of its payment to undergo 5 months S.I.
The petitioner, feeling aggrieved, approached the Peshawar High Court by filing Criminal Appeal No. 20 of 2007, which was dismissed as stated and mentioned above.
Mr. Muhammad Asif, Advocate, appearing on behalf of the petitioner, attempted to argue that the provisions of Section 514 Cr. P.C. have not been duly and lawfully complied with; that learned trial Court has failed to properly appreciate the record of the case; that petitioner stood surety in good faith on humanitarian grounds and not for any monetary gains and that the judgment of learned High Court as well as of learned Additional Sessions Judge, Haripur suffer from the vice of misreading and non-reading of record and cannot be allowed to remain intact.
Mr. Ishtiaq Ibrahim, Additional Advocate General NWFP, representing the State, controverted the arguments of learned counsel for the petitioner and supported the impugned judgment on all counts.
Learned High Court in the impugned judgment has discussed all aspects of the matter in detail, leaving no room for further consideration. Neither any misreading or non-reading of the record could be pointed out in the impugned judgment, justifying interference by this Court. Para 5 of the impugned judgment is reproduced here in below for facility sake:--
"5. Firstly taking the case of appellant Saeed Akhtar, it is observed that in response to the notice of proceedings u/S. 514 Cr.P.C. the appellant had categorically stated that he was not related to accused Akbar Khan nor he had obtained any monetary benefit from the said accused. On the other hand the record is depictive of the fact that accused Akbar Khan was a permanent resident of Nawangai, District Buner and was temporarily residing at Piranda Baffa, District Mansehra. It can, therefore, be conveniently gathered that in absence of any relationship between Saeed Akhtar and the absconding accused the act of the former entering as surety for the latter, was not without consideration. It is further noticed that while applying the provisions of Section 514 Cr.P.C. the learned Court had already taken a lenient view by burdening the appellant with a penalty of Rs. 50,000/- while the surety bond entered into by the appellant and subsequently forfeited, was for a sum of
Rs. 1,00,000/-. In the said regard reliance can be safely placed on judgment reported as 2004 SCMR 211. Further, the appellant could not lay forth any circumstance preventing the accused from appearing before the Court. This fact also weakened his case for extension of more leniency by this Court."
"It has now become common that the accused persons involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond.......................Keeping in view the above bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should the dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances............
(J.R.) Petition dismissed.
PLJ 2009 SC 501
[Original Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf &
Syed Zawwar Hussain Jaffery, JJ.
Syed SHARIFUDDIN PIRZADA etc.--Petitioner
versus
NAB Officials--Respondents
Crl. Misc. No. 296 of 2008 in Crl. Orig. Pet. No. 38 of 2008, decided on 30.7.2008.
(Suo moto action taken on the application filed by Syed Sharifuddin Pirzada, learned Senior Advocate of Supreme Court & others regarding manhandling of their client, Irfan Ali, in the Court Premises)
Constitution of Pakistan, 1973--
----Art. 204--Contempt of Court--Unconditional apology--Scope--Held: When a contemnor tenders unconditional apology at the first opportunity and the Court is satisfied that his regret and repentance are sincere, he is ordinarily pardoned by the Court--However, it is not a rule to be invariably followed in all cases and much would depend upon the circumstances of each case. [P. 504] A
Constitution of Pakistan, 1973--
----Art. 204--Contempt of Court--Arresting of accused person within Court premises--Unconditional apology--Held: No doubt the acts of dragging, man handling and beating the accused in bar room, situated in Court premises, misbehaving with advocates and the media personnel can by no such of imagination be regarded as innocent and bonafide acts rather it appears to be flagrant attempt to undermine and lowering authority of Court besides disturbing its decorum--Since they have admitted the allegations and tendered unconditional apology by stating to remain careful in future, contempt proceedings dropped and contemnors were ordered to be released. [P. 505] B, C & D
Dr. Babar Awan, Sr. ASC, Mr. Wasim Sajjad, Sr. ASC & Ch. Arshad Ali, AOR for Applicants.
Dr. Danishwar Malik, PG/NAB, Dr. M. Asghar Rana, D.P.G. Sardar M. Ghazi, DAG & Raja Niaz Ahmed Rathore, DAG on Court Call.
Ranja M. Ibrahim Satti, Sr. ASC, Ch. Muhammad Akram, AOR Mr. Altaf Aziz Khattak, SHO, P.S. Secretariat, Mr. Muhammad Rashid, ASI, PS, Secretariat, Mr. Abrar, ASI, P.S. Secretariat alongwith contemnors Col. (R) Tariq, I.O. NAB, and Mr. M. Aslam, Member, FCIW, NAB for Contemnors.
Date of hearing: 30.7.2008.
Order
Abdul Hameed Dogar, CJ.--This Criminal Original Petition has been registered on the application filed by Syed Sharifuddin Pirzada, learned Senior ASC & others regarding manhandling of their client, namely, Irfan Ali, in the Court Premises.
Briefly stating facts of the case are that a case was registered against Sheikh Muhammad Munir, Chief Executive of the Haris Steel Industries (Pvt.) Ltd. on the complaint filed by the Acting President of the Bank of Punjab, Lahore, in pursuance of report of audit team mentioning that loans of billions of rupees were sanctioned to fake and unidentified borrowers against inflated/unreal value of collaterals and non-existent business places. It was alleged that the National Accountability Bureau started making efforts to force the administration of M/s. Haris Steel Industries to enter into plea bargain with NAB. Feeling aggrieved, M/s. Haris Steel Industries filed Writ Petition No. 7104 of 2008 before the Lahore High Court, Lahore. A learned Division Bench of the Lahore High Court, vide order dated 18.6.2008, directed the NAB authorities that no uncalled for harassment shall be caused to the petitioners. On 1.7.2008, the matter again came up for hearing before the High Court when the petitioners counsel complained that the NAB authorities were harassing the petitioners by conducting raids one after the other and removed their vehicles, office equipments, cash amount and other valuable items. The High Court, on the said date, again directed the NAB authorities that no further coercive measures should be applied against the petitioners, till the next date of hearing. C.M. No. 4 of 2008 was also filed in the said writ petition wherein vide order dated 8.7.2008 the High Court deputed the bailiff to visit the site and prepare a detailed report to be placed before the Court on the next date of hearing. After submission of the report by the bailiff, the case was fixed for 15.7.2008, when one of the learned Judges showed his inability to hear the petition, hence, the office was directed to place the matter before some other Bench. Thereafter M/s. Haris Steel Industries filed Constitution Petitions bearing No. 4 to 7 of 2008, under Article 186-A of the Constitution of the Islamic Republic of Pakistan, 1973, for transfer of the writ petitions with the prayer that the same may be withdrawn from the file of Lahore High Court and be heard and decided by this Court.
The matter came up for hearing before this Court on 24.7.2008 when the following order was passed:
"By consent adjourned to 06.08.2008. Notice be repeated to Respondents No. 7 & 10. Respondent No. 1 is directed to file concise statement disclosing the entire facts and maintain the position which was subsisting prior to restraining order dated 18.6.2008 passed by the learned High Court."
On the same day at about 12.30 p.m. Syed Sharifuddin Pirzada, learned Sr. ASC along with Mr. Wasim Sajjad, Dr. Babar Awan, Mr. Arshad Ali Chaudhry and other senior Advocates appeared before this Court and complained that after passing of the above order, in the morning, accountant of M/s. Haris Steel, namely, Irfan Ali, while sitting with Mr. Arshad Ali Chaudhry, learned AOR, in the cafeteria of the Bar Room inside the premises of this Court, was mercilessly beaten up by Nab officials, namely, Col. (R) Tariq, Investigating Officer and M. Aslam, Member FCIW, along with three other persons, in presence of the Advocates as well as media personals. The written complaint, filed by the learned Senior Advocates of this Court, was registered as Criminal Original Petition No. 38 of 2008. In this regard four affidavits were also filed before this Court by (i) Syed Muzammal Hussain, President Press Association of Supreme Court, (ii) Mr. Wasim Akhtar, Reporter, Aaj TV, (iii) Mr. Arshad Ali Chaudhry, AOR and (iv) Irfan Ali, the victim, wherein they unanimously stated that the victim Irfan Ali, was taken into custody from the Court premises (Bar Room), dragged, severely beaten, thrown in a car and was taken away by some persons in civil dress and that when asked by the deponents as to why the victim was being beaten in the Court premises, the said officials not only refused to disclose their names but misbehaved with the deponents and other journalists, who were present at the spot. They also tried to snatch cameras from media personals, footage whereof was available with them.
The learned Attorney General for Pakistan, the Chairman NAB and the Prosecutor General NAB were, in pursuance of the complaint, summoned and were directed to produce the detenue as well as the above named NAB officials before the Court. On the same day, at about 2.00 p.m. the Chairman NAB along with NAB officials and the detenue appeared before this Court. The NAB officials admitted that the detenue was arrested from the premises of this Court, however, pleaded that it was done in order to execute warrants of arrest issued against him. This Court considering that prima-facie, the NAB officials, namely, Col (R) Tariq and M. Aslam were guilty of committing gross contempt of this Court ordered that they be remanded to police custody to initiate proceedings under Article 204 of the Constitution. The detenue Irfan Ali was ordered to be set at liberty, forthwith, and the matter was adjourned to 30.7.2008 for further proceedings. On 30.7.2008, the above contemnors, while placing themselves at the mercy of the Court, filed Unconditional Apology in writing vide CMA No. 296 of 2008.
Moot question in the instant case is as to whether the tendering of unconditional written apology by the contemnors and placing themselves at the mercy of the Court would be sufficient to let them off unpunished, and if not, what should be the quantum of punishment that they deserve to suffer. The trend of case law on the subject, would suggest that when a contemnor tenders unconditional apology at the first opportunity and the Court is satisfied that his regret and repentance are sincere, ordinarily, he is pardoned. However, it is also well-settled that it is not a rule, to be invariably followed in all cases and much would depend upon the circumstances of each case.
No doubt the law enforcement agencies are duty bound to cause arrest of the persons required, but it should be done in a decent and proper manner with decorum. Had the instant been a simple case of arrest in the Court premises, the contemnors could have been excused on the ground that they were not aware of the decorum of the Court but the acts of dragging, manhandling and beating the accused in the bar room situated in the Court premises, misbehaving with the advocates and the media personals can by no stretch of imagination be regarded as innocent and bona fide acts rather it appears to be a flagrant attempt to undermine and lowering authority of the Court besides disturbing its decorum. In such like cases the Courts, in order to safeguard the dignity and honour of the Courts are not reluctant to initiate contempt proceedings against the contemnors. The contemnors, in this case, who are the custodian of law, were not supposed to act in such a disgusting manner, particularly when this Court had issued specific directions for maintaining the position subsisting prior to 18.6.2008 in accordance with the order passed by the learned High Court.
Normally, the contemnors would have been proceeded against, on account of the aforesaid acts had they not placed themselves at the mercy of the Court by submitting unconditional apology, but since they have admitted the allegations and tendered unconditional apology at the very out set, by stating that they would remain careful in future, therefore, following the ratio decidendi of the cases reported as Zulfiqar Ali v. The State (1999 SCMR 2810) and (ii) Raja Munawwar & others v. The State (1990 SCMR 215), we feel it appropriate to accept the unconditional apology submitted by the applicants.
For the foregoing reasons the proceedings in pursuance of order dated 24.7.2008 passed by this Court are dropped and the contemnors are ordered to be released forthwith.
These are the reasons for our short order of even dated, announced in open Court.
(J.R.) Proceedings dropped.
PLJ 2009 SC 505
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Muhammad Qaim Jan Khan &
Syed Zawwar Hussain Jaffery, JJ.
MUHAMMAD SULEMAN--Appellant
versus
SHAUKAT ALI--Respondent
Civil Appeal No. 770 of 2006, decided on 10.2.2009.
(On appeal from the judgment dated 8.12.2003 of the Lahore High Court Multan Bench, Multan in C.R. No. 345-D of 2002).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(1)--Talb-e-Muwathibat--Ingredients--Held: Mere general assertion in plaint of talb-e-muwathibat would not be sufficient compliance of S. 13(1)--Where talb was not made according to established requirements, the same could be fatal for pre-emption right--Its being a feeble right, formalities required for its exercise and enforcement must be strictly observed & there must be a clear proof of it on record. [P. 508] A
Constitution of Pakistan, 1973--
----Art. 185(2)--Appeal before S.C.--Appreciation of evidence--Interference in findings of lower Courts--Held: Supreme Court does not interfere with the findings of facts recorded by primary Courts or High Court when they are on the whole reasonable and having not arrived at by disregarding any provision of law or any accepted principle of appreciation of evidence. [P. 508] B
NLR 2006 Lab. 1, 2006 SCMR 504, 2008 SCMR 756, PLD 2007 SC 460, 2007 SCMR 198, 2007 SCMR 368, 2007 SCMR 437 & 2007 SCMR 687, ref.
Mr. Abdul Rashid Awan, ASC for Appellant.
Mr. Muhammad Ozair Chughtai, ASC for Respondent.
Date of hearing: 10.2.2009.
Judgment
Ijaz-ul-Hassan, J.--This appeal preferred on behalf of Muhammad Suleman, appellant, arises out of a judgment passed by a learned Single Judge of the Lahore High Court, Multan Bench, Multan, accepting Civil Revision No. 345-D of 2002 filed by Shaukat Ali respondent, setting aside judgment of First Appellate Court dated 5.3.2002 and restoring judgment of trial Court dated 31.3.2001.
Rs. 2,75,000/-, vide Sale Mutation No. 604 dated 25.1.1995. Muhammad Suleman, plaintiff instituted suit on 8.2.1995 in the Court of Senior Civil Judge, Khanewal, against Shaukat Ali, defendant to enforce his right of pre-emption in respect of suit land on the ground of being Shafi
Khaleet' andShafi Jar' in suit khata. The plaintiff claimed to have come to know of suit transaction on 31.12.1994 at his dera' whereupon he spontaneously madeTalb-e-Muwathibat' in the presence of Muhammad Akram and Muhammad Arshad
PWs.
The suit was resisted on all grounds legal as well as factual. After framing issues, both the parties produced their respective oral as well as documentary evidence. After hearing the learned counsel for both the parties and perusing the record learned Trial Judge non-suited the plaintiff on Issue No. 2 pertaining to `talabs'. An appeal was preferred there-against in the Court of District Judge, Khanewal, which was accepted on 5.3.2002. Judgment of the trial Court was set-aside and suit was decreed on payment of Rs. 2,75,000/- plus transfer charges of Rs. 27,772 as sale price of suit land. A Civil Revision was filed by respondent in the Lahore High Court, Multan Bench, Multan, which was accepted on 8.12.2003, judgment of the Appellate Court dated 5.3.2002, was set-aside and judgment of the trial Court dated 31.3.2001 was restored, as mentioned in the opening paragraph of this judgment.
We have given patient hearing to Mr. Abdul Rashid Awan, Advocate for the appellant and Mr. Muhammad Ozair Chughtai, Advocate, for the respondent. We have also perused the available record as well as the impugned judgment minutely.
Learned counsel for the appellant, after taking us through the material on record, contended with vehemence that evidence produced at the trial from the appellant side has not been appreciated in right direction; that impugned judgment is the outcome of misreading and non-consideration of the material evidence; that the impugned judgment is in conflict with the rule laid down by this Court in the matter of admissibility, entertainment and acceptance of the evidence and interpretation thereof and that minor discrepancies and contradictions appearing in the statements of Muhammad Akram and Muhammad Arshad (PWs) could not be considered sufficient for not relying on their testimony. Concluding the arguments, learned counsel reiterated that a detailed and well reasoned judgment delivered by the Appellate Court, based on proper appreciations of evidence and application of law, has been set-aside by learned High Court, without any justifiable reason, resulting in manifest injustice. In reply to objection raised by learned counsel for the respondent, regarding filing of appeal with delay, learned counsel for the appellant submitted, on the strength of a case reported as Taza Gul and others versus Haji Fazal Subhan, (2006 SCMR 504). that it is borne out from the record of C.P.L.A. that office of this Court had entertained the same without any objection or protest in the normal course of business. It was never pointed out by the office that petition for leave to appeal would not lie or that direct appeal was barred by time. The learned counsel added that silence on the part of the office clearly tends to show that office bona fide believed that C.P.L.A. would lie before this Court from the judgment of the High Court even though it has reversed the judgment of the Appellate Court. Learned counsel added that no person shall suffer for the mistake of the Court. Appellant does not appear to be guilty of negligence or recklessness in the matter of prosecuting his remedy before this Court. Instant case being of a bona fide error, sufficient cause has been made out for the exercise of discretion in favour of the appellant.
Learned counsel for the respondent, on the other side, opposed the arguments of learned counsel for the appellant and supported the impugned judgment on all counts, maintaining that appeal has been filed with delay and merits dismissal on this score alone.
We have noted that High Court on the reappraisal of evidence came to the conclusion that evidence of the appellant on the question of Talab-e-Ishhad' was discrepant, therefore, the same could not be held to have provedTalab-e-Ishhad' having been made in accordance with law. Needles to add that mere general assertion in plaint that as soon as plaintiff learnt about sale transaction, he made the declaration of his intention to pre-empt the sale would not be sufficient compliance of Section 13(1) of the Pre-emption Act, 1991. In cases where `Talb' was not made according to the established requirements, then the same could also be fatal to pre-emptors right of pre-emption. Pre-emption being a feeble right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record.
Needles to emphasize that this Court does not normally go beyond concurrent findings of facts recorded by the Courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice. It is also well settled that this Court does not interfere with the findings of facts recorded by primary Courts or High Court when it is established that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. In this regard, reference can be made to the cases of Amir Abdullah Khan v. Kafaitullah Khan, (2008 SCMR 756), Sheikh Fateh Muhammad v. Muhammad Adil, (PLD 2007 SC 460), Shaukat Ali v. Allied Bank of Pakistan Ltd. (2007 SCMR 198), Shafi Muhammad v. Khanzada Gull, (2007 SCMR 368), Muhammad Zubair v. The State, (2007 SCMR 437) and Muhammad Sharif versus Muhammad Anwar, (2007 SCMR 687).
Adverting to the objection regarding limitation, we find that appellant was grossly negligent in prosecuting his remedy. The conduct of the appellant reflects gross negligence on his part in prosecuting the remedy before this Court. There is no material practice to the effect that this Court had been entertaining C.P.L.As in cases arising out of pre-emption suits decided by the High Court irrespective of valuation of the subject-matter of the dispute in the Court of first instance. It is well-settled that ignorance of law is no excuse. Moreover, as by passage of time beyond the period fixed under the Supreme Court Rules, 1980 for filing of appeal, a valuable right has accrued in favour of the respondent, which cannot be lightly disturbed or destroyed at the behest of the appellant, as held by this Court in Allied Bank Limited versus Mujeebur Rehman Qazi & others, (NLR 2006 Labour 1), wherein it was observed:
"In law the parties and the counsel are supposed to be fully conversant with the legal position and no premium can be claimed on the premise that the proceeding was filed beyond the period prescribed by law on account of bona fide mistake. In our considered opinion, this circumstance per se does not constitute a sufficient cause within the meaning of the termenabling this Court to exercise its discretion in favour of the petitioner".
Having considered the matter from all corners, we find that learned counsel has not been able to point out any infirmity factual or legal warranting interference by this Court. The learned High Court in the impugned judgment has exhaustively discussed all aspect of the matter leaving no room for further consideration. No instance of misreading or omission to consider the important evidence has been pointed in the impugned judgment, justifying interference by this Court. The mere assertion of learned counsel for the appellant that evidence has not been appreciated in its true perspective, without a positive attempt on his part to substantiate the same is of no consequence.
In the facts and circumstances of the case, we do not find any substance in this appeal, consequently, the same is dismissed on limitation as well as on merits. We make no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2009 SC 509
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Muhammad Qaim Jan Khan &
Syed Zawwar Hussain Jaffery, JJ.
CONTRACTOR HAJI MUHAMMAD ALAM (deceased)
through L.Rs.--Petitioners
versus
SHAUKAT SULTAN and others--Respondents
CMA No. 2889 of 2008 in Civil Petition No. 1167 of 2008, decided on 11.2.2009.
(On appeal from the judgment dated 28.4.2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in W.P. No. 1542 of 2000).
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Constitution of Pakistan 1973 Art. 185(3)--Leave to appeal--Limitation--Dispossession by co-owner--Suit for recovery of possession--Appreciation of evidence--Petitioners were in possession and then dispossessed--Possession was not taken with consent--Suit was filed only after 10 days--All the ingredients of S. 9 were established--J & D of H.C. was not open to legitimate exception--Moreover, a owner in exclusive possession, if dispossessed by other co-owner, within 6 months can sue under S. 9 of Specific Relief Act--Petition dismissed. [P. 513] A & B
Condonation of Delay--
----No plausible ground for condonation of delay in filing the petition has been shown--Held: Petitioner due to lack of proper instructions by the counsel regarding limitation for filing the petition, failed to file petition in time by itself not constitute a valid ground for condonation of delay. [P. 513] C
NLR 1980 AC 243; PLD 1955 Pesh. 26; PLD 1956 W.P. (Pesh.) 96 and PLD 1961 Dacca 259 ref.
Mr. Tariq Mehmood, ASC for Petitioners.
Mr. Abdul Rashid Awan, ASC for Respondents.
Date of hearing: 11.2.2009.
Judgment
Ijaz-ul-Hassan, J.--This petition, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal, has been filed by petitioners, against judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 28.4.2008, whereby Writ Petition No. 1542 of 2000 preferred by the respondents was allowed, judgment of Additional District Judge, Jehlum, dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996 was restored.
The petition was dismissed for want of prosecution by this Court vide order dated 10.10.2008. C.M.A. No. 2889 of 2008 has been moved on behalf of the petitioners on 11.10.2008, for restoration of the petition. The C.M.A. is accepted for the reasons mentioned therein and the petition is restored.
The facts of the case necessary for adjudication of this petition are, that respondents instituted suit on 14.5.1989 in the Court of Senior Civil Judge, Jhelum, against the petitioners, under Section 9 of the Specific Relief Act, (1 of 1877), seeking possession of suit land, detailed in the plaint, alleging that respondents were continuing in possession of suit land since 1995. The predecessor-in-interest of Petitioner Nos. 1-A to 1-H has taken forcible possession of suit land on 4.5.1989 and constructed a boundary wall and `khothari', thereon, claiming to be a purchaser from Petitioner No. 2, who has never been in possession of it.
The suit was resisted on all grounds legal as well as factual. The contesting respondents denied the claim of the petitioners and asserted their own. In view of the divergent pleadings of the parties, following issues were adopted for trial:--
(i) Whether the suit has been filed with malafide intention, if so, its effect? OPD.
(ii) Whether the plaintiffs are estopped by their words and conduct to institute the present suit based on Preliminary Objection No. 2? OPD.
(iii) Whether the suit is bad for non-joinder of necessary parties? OPD
(iv) Whether the suit is barred by time? OPD
(v) Whether the Plaintiff No. 3 is not in a position to file this suit based on Preliminary Objection No. 6, if so, its effect? OPD
(vi) Whether the plaintiffs being the owner of the suit property are entitled to the decree claimed for in the main suit? OPP
(vii) Relief.
At the conclusion of trial, upon consideration of the material available on record and hearing arguments of learned counsel for the parties, learned Trial Judge, vide judgment dated 7.1.1996, decreed the suit. The petitioners, feeling aggrieved thereby, filed a revision petition in the Court of District Judge, Jhelum, which was assigned to Additional District Judge, Jhelum, for adjudication. The revision petition was accepted, vide judgment dated 19.6.2000. Judgment and decree of the trial Court was set aside and suit was dismissed. A Writ Petition was filed by respondents in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was accepted vide judgment dated 28.4.2008, judgment of the Additional District Judge, Jhelum dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996, decreeing the suit was restored. Hence instant petition for leave to appeal.
We have given patient hearing to the arguments of Mr. Tariq Mehmood, Advocate for the petitioners and Mr. Abdul Rashid Awan, Advocate for the respondents. We have also gone through the material on record with their assistance.
Learned counsel for the petitioners, attempted to argue that evidence adduced at the trial from the petitioners side, has not been appreciated in its true perspective; that impugned judgment is contrary to the weight of evidence on record and that it is in conflict with the rule laid down by this Court in the matter of admissibility, entertainment and acceptance of the evidence and interpretation thereof. The learned counsel invited our attention to `Khasra Girdawari' and contended that suit land remained vacant on the spot for a long period in the past and the same was not under cultivation of respondents/plaintiffs. The learned counsel also submitted that according to the registered sale-deed (Ex.P9), suit land was sold in favour of the petitioners by Habib-ur-Rehman and Muhammad Alam vendee attained status of co-owner therefore, he can retain the possession of the suit land till it is partitioned amongst the co-sharer by meets and bound. This aspect of the case, learned counsel added has escaped notice of the learned Judge in the High Court, resulting in complete failure of justice.
Learned counsel for the respondents, on the other side, controverted the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly, maintaining that only suit for participation was competent.
We have considered the matter from all angles in the light of the material on file. We find that learned Judge in the High Court has recorded a detailed and well reasoned judgment based on proper appreciation of evidence, before arriving at the conclusion and rightly placing reliance on the case of Muhammad Shafi, etc.
v. Collector, etc. (NLR 1980 AC 243). The learned counsel for the petitioners despite his best efforts, failed to persue us to hold that impugned judgment is tainted with infirmity, legal or factual or suffers from the vice of misreading and non-reading of evidence. It is borne out from the record that suit land comprises in Khasra No. 262 min and 262, measuring 1 kanal 4 marlas. Ex. P.4 is register haqdaran zamin' for the year 1986-87. According to this document, Shaukat Sultan is recorded in possession alongwith Mst. Balqees in Khasra No.
262 min measuring 12 marlas while Kalsoom Begum is recorded to be in possession of 262 min measuring 12 marlas. Habib-ur-Rehman and Muhammad Alam are not recorded in possession of any portion of the land Ex.P2 is thekhasra
Girdawri' from Kharif 1987 to Rabi 1989, Nazar Muhammad and Kalsoom Begum are recorded in possession and later Shaukat Sultan, Balqees Begum and Kalsoom
Begum are recorded in possession. The said Nazar Muhammad had transferred the land to Respondent Nos. 1 and 2 vide registered sale-deed dated 2.12.1985
Ex.P1. It is well settled proposition that where co-sharer in possession is dispossessed by another co-sharer, then he has two remedies to avail. He can either file suit for partition or a suit under Section 9 of the Specific Relief Act, (1 of 1877). Record reveals that petitioners were in possession when they were dispossessed on 4.5.1989. It is not even the case of the respondents that the possession was taken over with consent of the petitioners. The suit was filed after 10 days i.e. 14.5.1989. All the ingredients of Section 9 of the Act (ibid) having been established, the learned trial Court had lawfully decreed the suit for reasons, not open to legitimate exception.
Section 9 of the Specific Relief Act, (1 of 1877), has four ingredients:
(i) person suing must have been dispossessed, (ii) such dispossession must be from immovable property, (iii) dispossession should be without consent and (iv) dispossession should be otherwise than in due course of law. Under this provision the Court is not competent to decide the title of the property. It only relates to possession of immovable property, if the plaintiff had been illegally disposed then Section 9 could be invoked. The plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent. The plaintiff must allege and prove actual physical possession either personal or constructive. If a co-sharer has been in excusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed there-from by another co-sharer except by bringing a suit for partition of the joint property. A co-owner in exclusive possession, if dispossessed by other co-owners within 6 months, can sue under the Section. A person in joint possession of immovable property is as much in possession of that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, he can sue to be restored to that possession which he enjoyed before he was dispossessed. Sayed Jamal Shah versus Abdul Qadir Shah and others, (PLD 1955 Peshawar 26), Haji Khan Muhammad and others versus Yaqub Khan and others, (PLD 1956 (W.P.) Peshawar 96 Ahmed Mian and others versus Eakub Ali Munshi and others, (PLD 1961 Dacca 259), and Muhammad Muzaffar Khan versus Muhammad Yusuf Khan, (PLD 1959 S.C. (Pak).
Office has reported that this petition is barred by 50 days. No plausible ground for condonation of delay in filing the petition has been shown. The mere fact that petitioners due to lack of proper instructions by their counsel regarding the limitation for filing the petition, failed to file petition in time, by itself, does not constitute a valid ground for condonation of delay. The conduct of the petitioners reflects gross negligence in prosecuting the remedy before this Court. No indulgence can be shown to them.
In view of the above, finding no substance in this petition, we dismiss the same, being barred by time as well as bereft of merit and decline to grant leave. We make no order as to costs.
(J.R.) Petition dismissed.
PLJ 2009 SC 514
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Mian Hamid Farooq, JJ.
Mst. FATIMA BIBI (deceased) through her Legal Heirs
and others--Appellants
versus
ALTAF AHMED & others--Respondents
Civil Appeal No. 940 of 2004, decided on 4.12.2008.
(On appeal from the judgment dated 29.5.2001 of the Lahore High Court, Lahore passed in Civil Revision No. 1062/1084).
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration on the basis of inheritence and challenging the consent decree--Appreciation of evidence--Held: No independent source of income of minors was proved--Borrowing from minors & adjustment thereof as sale consideration was also not physically proved--There was no evidence of transfering possession by the father through attornment--Factum of sale was also not proved--High Cout had no jurisdiction to set aside and of lower Courts restored.
[Pp. 516 & 517] A & B
Ch. Muhammad Ashraf, ASC for Appellants.
Malik Noor M. Awan, ASC for Respondents.
Date of hearing: 4.12.2008.
Judgment
Sardar Muhammad Raza Khan, J.--Mst. Fatima Bibi and others, plaintiffs in the original suit, have been granted leave to appeal from the judgment dated 29.5.2001 of a learned Judge in Chambers of Lahore High Court whereby, while exercising revisional jurisdiction the concurrent decrees granted to the appellants by the trial Court as well as by the First Appellate Court were set aside and the appellants/plaintiffs were non-suited.
The following pedigreetable would help comprehending the background of litigation:--
Muhammad Din, being the owner of the property in dispute died on 18.6.1976. His Inheritance Mutation No. 194 was attested on 26.7.1976, whereby, all the legal heirs mentioned in the pedigreetable were given their sharai shares. Despite the attestation of inheritance mutation, Said Bibi (second wife) and her children started claiming title to the entire land on the ground that the minors had purchased the property from their father Muhammad Din through a consent decree dated 25.7.1973. When Said Bibi the (first wife) and her two daughters came to know about the existence of the decree aforesaid, they filed the instant suit which was decreed by trial Court as well as by the First Appellate Court. It was set aside by the learned High Court in its revisional jurisdiction and hence this appeal.
The pleadings at different stages, the record and the evidence is indicative of quite an intriguing background. Prior to the compromise decree dated 25.7.1973 of sale, Muhammad Din had gifted away the property to the children of Said Bibi (second wife), also, through a consent decree dated 28.2.1973. The gift transaction could not be materialized and hence the transfer was made in the shape of sale through subsequent consent decree dated 25.7.1973. The appellants/plaintiffs challenged these decrees dated 25.7.1973 through the instant civil suit.
In the pleadings of consent decree of sale it was alleged that the donor resiled from gift which could not be materialized due, also, to the non-transfer of possession. One should keep in mind that the donor is the real father while the donees are his real children. In the circumstances, no transfer of physical possession was required except for establishing a bona fide intention to gift away the property. Thus a baseless and unreasonable excuse was raised to justify another transaction of sale. By saying so, we do not mean and conclude that the earlier gift was a genuine transaction. It comes merely by way of discussion because the gift transaction is already negated by the parties thereto in their subsequent pleadings of suit based on sale. What we intend bringing home is that both the transactions of gift and subsequent sale are sham transactions, destructive of each other. If the father really intended to transfer the property, it could have been done through gift, which presently stands rescinded by the parties thereto.
Coming to the question of sale, one should keep in mind at the very outset that the decree dated 25.7.1973 is a consent decree. It carries no value other than being an agreement between the parties irrespective of the judicial seal that it bears and the judicial impression that it carries. Thus the burden to prove the genuine existence of sale rests upon the party that supports the sale.
We have gone through the evidence on record together with the pleadings of every stage and have observed that the independent source of income of the minors has not been proved. The borrowing of Rs. 80,000/- from minors and adjustment thereof as sale consideration has not been physically proved. There is no evidence to the effect that the father transferred the possession, of course, through attornment. In these circumstances, the learned trial Court as well as the learned First Appellate Court were perfectly justified in holding that the factum of sale has not been proved, being most important question of fact. The learned Judge of the High Court had no justification to set aside such question of fact while exercising revisional jurisdiction.
The learned High Court non-suited the plaintiffs/appellants on point of limitation. In that behalf the statement of Said Bibi plaintiff was relied upon where she happened to express that the factum of gift was in her knowledge. This was the only point seriously stressed before us by the learned counsel for the respondents as well. We are constrained to observe that the learned High Court has resorted to a far fetched aspect in order to attract the application of limitation to the determent of the appellants who, according to Shariah, natural justice and fair play were the legal heirs of Muhammad Din.
The admitted knowledge about gift as admitted by Said Bibi plaintiff is altogether immaterial on two counts. Firstly, the gift stood negated by the parties thereto and secondly, it was never a subject matter of dispute in the instant case. Moreover, any admission about the knowledge of gift is not at all damaging because it was against material facts in existence. When the parties to the gift resiled therefrom, the knowledge thereabout by the plaintiffs cannot be detrimental at all.
Coming to the limitation in relation to consent decree of sale dated 25.7.1973, the learned High Court, with reference to para-9 of the plaint computed the period of limitation from 25.7.1973. Again it is not well founded. Article 95 provides a time of three years for filing a suit to set aside a decree obtained by fraud. The limitation starts from the point when the fraud becomes known to the party wronged. In para-9 of the plaint the plaintiffs referred to the accrual of cause of action from the date of the impugned decree as well as the death of Muhammad Din. Though the factum of knowledge is not mentioned in such paragraph but the same is clearly and specifically mentioned in para-4 of the plaint. The effect of pleadings is to be taken from the general and overall reading thereof and it is not at all fatal if some assertion is omitted to be taken in the relevant paragraph. The ear marking of specific paragraphs in the law of pleadings and conveyancing is only for the purpose that some material aspects are not omitted to be mentioned.
In Para-4 of the plaint, the plaintiffs have specifically alleged that after the death of Muhammad Din they considered themselves to be a lawful owner of the property to the extent of their sharai share but they became alert only when the defendants claimed title to the entire property. The impugned decree being a consent decree could never have come to the knowledge of the plaintiffs who had the Inheritance Mutation No. 194 in their favour attested on 26.6.1976. The same was challenged by the defendants on Revenue side and the plaintiffs obtained knowledge when they were to appear before the Assistant Commissioner on 16.10.1976. The instant civil suit was filed there and then on 6.10.1976. In this background and in the wake of the assertions in the pleadings, the instant suit was well within time. The learned High Court was not justified in setting aside the concurrent findings of two Courts below on pure question of fact.
Consequently, the appeal is accepted, the impugned judgment dated 29.5.2001 is set aside. The decree dated 16.3.1980 maintained by the First Appellate Court vide judgment and decree dated 16.2.1984 is hereby restored.
(J.R.) Appeal accepted.
PLJ 2009 SC 517
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf &
Muhammad Farrukh Mahmud, JJ.
Brig. (R) SAKHI MARJAN, CEO, PESCO Peshawar--Petitioner
versus
MANAGING DIRECTOR PEPCO, LAHORE and others--Respondents
C.P.L.A. No. 574 of 2008, decided on 23.2.2009.
(On appeal from the judgment dated 11.3.2008 passed by the Peshawar High Court, Peshawar in W.P. No. 238 of 2008).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Service matter--Inquiry must be held in each and every case--Petitioner while holding rank of Brigadier in Army was posted on secondment basis or a period of three years--Order for reversion--Relinquished the charge from CEO, PESCO--Charge was assumed the charge as Brigadier and retired from army--Prime Minister was pleased to approve the re-employment for period of one year, assumed the charge--Petitioner was transferred from CEO, PESCO to CEO, TESCO--Petitioner was directed to hand over charge to respondent but he refused to do the same--Contract for conditional re-employment was to be terminated--Order was challenged through civil suit which was later on withdrawn--Challenged through writ petition which was dismissed--Assailed--Misconduct--Regular inquiry was inevitable for the reason that instant was simply a case of insubordination and hardly any controversial fact justifying a thorough probe, was involved--Petitioner could not substantiate his refusal to comply with transfer order and to handover charge of the post, amounting to misconduct--Held: Service of an employee can be terminated without holding regular inquiry for the reason that competent authority can dispense with holding of such inquiry especially when allegation levelled against employee has had been proved on basis of documentary evidence--Leave refused. [P. 522] A & B
2004 PLC (CS) 675 & 2004 SCMR 290, ref.
Constitutional Jurisdiction--
----Redressal of grievances--Could not be invoked the Constitutional jurisdiction--Relief of reinstatement in service--Validity--An employee of a corporation, in absence of violation of law or any statutory rule, cannot press into service the constitutional or civil jurisdiction for seeking relief of reinstatement in service. [P. 523] C
PLD 2005 SC 806, ref.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Enforcement of contractual obligation--Constitutional jurisdiction as conferred upon High Court under Art. 199 of Constitution could not have been invoked by petitioner for the enforcement of contractual obligation. [P. 524] D
Raja M. Ibrahim Satti, Sr. ASC and Mr. Arshad Ali Ch., AOR for Petitioner.
Sh. Riazul Haque, ASC for Respondents No. 1, 2 & 5.
Hafiz S.A. Rehman, Sr. ASC and Mr. M.S. Khattak, AOR for Respondents No. 3 & 7.
Sh. Zamir Hussain, Sr. ASC for Respondent No. 6.
Mr. Khan Muhammad Azad, DAG on Court notice.
Date of hearing: 20.11.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 11.3.2008 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby, Writ Petition No. 238 of 2008 filed by the petitioner was dismissed.
Briefly stated, facts of the case, are that the petitioner, while holding rank of Brigadier in Pakistan Army, was posted as Chief Executive Officer, Peshawar Electric Supply Company (PESCO), Peshawar, under the Ministry of Water & Power on secondment basis for a period of three years, vide Notification dated 20th September, 2005. The appointment was made on the basis of letter dated 1.9.2005 issued by GHQ, Military Secretary Branch, Rawalpindi, on standard terms and conditions contained in Joint Services Instruction No. 4/85. On 30.11.2002, the GHQ, Military Secretary Branch issued order for reversion of various Army Officers and the petitioner's name was mentioned at Sl.No. B. The GHQ, Military Secretary Branch, vide letter dated 17.1.2008 informed PESCO that the Chief of Army Staff was pleased to order the posting and appointment of the petitioner from CEO, PESCO to Brigadier Trial, 11 Corps for pre-retirement formalities w.e.f. 1.2.2008. The petitioner relinquished the charge from CEO, PESCO on 1.2.2008, assumed the charge as Brigadier Trial, 11 Corps on 2.2.2008 and was retired/struck of from Army w.e.f. 4.2.2008. Meanwhile, the Prime Minister was pleased to approve the re-employment of the petitioner as CEO, PESCO, Peshawar, for a period of one year, after his superannuation, on contract basis on standard terms and conditions, which was communicated to Secretary Water and Power by the P.M. Secretariat vide letter dated 31.1.2008. The Ministry of Water and Power was also required to take further necessary action in coordination with the Ministry of Defence in this regard. The Ministry of Water and Power vide letter dated 7.2.2008 informed Ministry of Defence regarding the re-employment of the petitioner and also requested to convey the NOC for re-employment, which was issued on 29.3.2008. The petitioner was re-employed as CEO, PESCO for a period of one year vide notification dated 9.2.2008 and assumed the charge w.e.f. 4.2.2008 vide charge assumption report dated 11.2.2008. Later on, on 21.2.2008 the petitioner was transferred from CEO, PESCO Peshawar to CEO, TESCO, and the Respondent No. 6 Muhammad Qasim Khan was transferred from Principal, WAPDA Staff College, Islamabad, and posted as CEO, PESCO, Peshawar on current charge basis who, vide Notification No. 262-99/11/47 dated 22.2.2008, assumed the charge as CEO, PESCO, Peshawar. The petitioner did not assume the charge as CEO, TESCO and himself cancelled the above said notification dated 22.2.2008 vide Notification No. 42-53/Ch.Ex./ PESCO dated 22.2.2008. The controversy was brought to the notice of M.D., PEPCO who vide Letter No. 1086-11 MD(PEPCO)/DDA dated 23.2.2008 directed the petitioner to withdraw the said notification dated 22.2.2008 issued by him, hand over the charge of CEO, PESCO to the Respondent No. 6 and assume charge of the post of CEO TESCO. On petitioner's refusal the M.D. PEPCO vide office Order No. 1620-35 MD (PEPCO)/DDA dated 23.2.2008 cancelled the Notification No. 42-53/Ch.Ex./PESCO dated 22.2.2008 being issued without lawful authority in contravention of the service discipline and also relieved the petitioner from the post of CEO, PESCO w.e.f. 21.2.2008, with the direction to assume the charge of CEO, TESCO, immediately. The petitioner was again directed on telephone to hand over the charge to the Respondent No. 6 but he refused to do the same, resultantly, vide Letter No. 1640-42 MD (PEPCO)/DDA dated 23.2.2008 the M.D., PEPCO once again directed the petitioner to hand over the charge to the Respondent No. 6, failing which his contract for conditional re-employment was to be terminated. The petitioner challenged the order dated 21.2.2008 and 23.2.2008 through a civil suit before Civil Judge, Peshawar, which was later on withdrawn by the petitioner on 27.2.2008 and instead Writ Petition No. 238 of 2008 was filed before the Peshawar High Court, Peshawar challenging the same orders, which was dismissed vide the impugned judgment, hence this petition.
Mr. Muhammad Ibrahim Satti, learned Sr. ASC for the petitioner has submitted that the petitioner was posted and performing his duties as CEO, PESCO, Peshawar, in pursuance of his appointment letter dated 31.1.2008 issued by the P.M. Secretariat, Islamabad and the notification dated 9.2.2008 issued by Ministry of Water and Power, therefore, the contract of his re-employment could not have been terminated without issuing him show-cause notice, opportunity of being heard and detailed inquiry in view of the dictum laid down by this Court in various judgments. Reliance was placed on the cases (i) The Secretary, Govt. of Punjab v. Riaz-ul-Haq (1997 SCMR 1552), and an unreported case titled Asim Rizwan v. Secretary Information & Broadcasting, P.Tv.C. & others, (C.P.No. 549 of 2008). He has further submitted that while working as CEO, PESCO, Peshawar, the petitioner was transferred to CEO, TESCO, vide office order dated 21.2.2008, which clearly indicates that the re-employment of the petitioner was lawful and was admitted by PESCO. It is further his case that termination of petitioner was made in the context of transfer from CEO, PESCO to CEO, TESCO, which was an illegal order on the ground that the petitioner was actually working under WAPDA and not in PEPCO; that the petitioner being an Army Officer could not have been transferred to a city other than the city of his posting; the Respondent No. 6 could not have been appointed as CEO, PESCO on current charge basis as under the relevant instructions only the senior most person at the station can be appointed on current charge basis, for which only the petitioner was entitled. He has further contended that though the services of the petitioner was on contract basis even then the judicial review was possible in view of the law laid down by this Court in cases reported as 1998 SCMR 2268, 1999 SCMR 467, Messrs Ramna Pipe & General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. (2004 SCMR 1274), Allied Bank Ltd. v. Syed Nasir Abbas Naqvi & others (2007 SCMR 1143), Collector of Customs (Valuation) & another v. Karachi Bulk Storage & Terminal Ltd. (2007 SCMR 1357).
Sh. Riaz-ul-Haq, ASC appeared on behalf of official respondents/PEPCO stated that the instant petition is liable to be dismissed on the ground that the petitioner was withdrawn from the post of CEO PESCO vide letter dated 17.1.2008 and was directed by GHQ, Military Secretary Branch to report 11 Corps on 1.2.2008. The petitioner relinquished the charge of the CEO, PESCO, through illegal MOV order dated 1.2.2008 issued under his own signature and also got issued last pay certificate from PESCO, on the contrary he continued working as CEO, PESCO in papers. The petitioner managed his joining report at 11 Corps on 2.2.2008 in a mysterious manner and remained on duty till 4.2.2008 on the same day when he was present in 11 Corps, in uniform, he also worked as CEO, PESCO, and signed various files; that the petitioner under his own signature issued notification dated 11.2.2008; that he has assumed the charge as CEO PESCO, Peshawar, w.e.f. 4.2.2008 which is not possible because he was retired from Army on the forenoon of 4.2.2008; that the Ministry of Water and Power, vide letter dated 7.2.2008, requested the Ministry of Defence for providing NOC for re-employment which was issued by the Ministry of Defence vide O.M. dated 29.3.2008 but the petitioner was re-employed prior to the issuance of NOC vide notification dated 9.2.2008. The petitioner without lawful authority and in contravention to service discipline cancelled the notification dated 22.2.2008 whereby the Respondent No. 6 took over the charge of CEO, PESCO in pursuance to transfer order dated 21.2.2008; that the petitioner did not abide by the order of the competent authority and refused to hand over the charge of CEO, PESCO to the Respondent No. 6 and assumed the charge of CEO, PESCO which tantamount to insubordination and non-observance of official procedure; that the matter involved the controversial fact which could not be adjudicated upon by the learned High Court in extraordinary constitutional jurisdiction.
Hafiz S.A.Rehman, learned Sr. ASC appeared on behalf of official respondents of PESCO, Peshawar and Sh. Zamir Hussain, ASC appeared on behalf of Respondent No. 6 while adopting the arguments of Sh. Riaz-ul-Haq, ASC further contended that petitioner relinquished the charge as CEO, PESCO vide movement order dated 1.2.2008 issued under his own signature which had to be issued by General Manager, Human Resource, PESCO and the petitioner was not competent to issue his own movement order; that after resuming the charge as CEO, PESCO, he assumed the charge vide notification dated 11.2.2008 under his own signatures, without the consent and approval of the competent authorities; that neither any notification was issued nor any formal agreement was executed by the PESCO or PEPCO authorities; that the petitioner was a contract employee and his services could have been terminated on one month's notice or payment of one months pay in lieu thereof, under the agreement; that no charge has been leveled against the petitioner and no stigma is attached to his person except the word "tantamount to insubordination" used in the letter dated 23.2.2008, but by no stretch of imagination it could be said that the petitioner was charged for insubordination.
We have carefully examined the contentions agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case, besides perusing the judgment impugned. We are not persuaded to agree with the prime contention of the learned counsel for the petitioner that regular inquiry in the case was inevitable for the reason that instant was simply a case of insubordination and hardly any controversial fact, justifying a thorough probe, was involved. The petitioner could not substantiate his refusal to comply with the transfer order and to handover charge of the post, amounting to misconduct. In this view, we are fortified by the observations made in the case reported as Muhammad Aslam v. Inspector General of Police Punjab (2004 PLC (CS) 675). It is not necessary that inquiry must be held in each and every case as it depends upon the circumstances of the case. It is well settled that services of an employee can be terminated without holding regular inquiry for the reason that the Competent Authority can dispense with holding of such inquiry especially when the allegation leveled against the employee had been proved on the basis of documentary evidence. Reference in this regard may usefully be made to the case of Mst. Samina Nazeer v. District Education Officer (W), Khanewal and others (2004 SCMR 290).
As regards the plea raised by the learned counsel for the respondents that the petitioner could not have invoked the Constitutional jurisdiction for the redressal of his grievances, it may be pointed out here that by now it is also well settled that an employee of a corporation, in the absence of violation of law or any statutory rule, cannot press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service. He can only claim damages against his wrongful dismissal or termination. This Court in the case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806), has held as under:--
"11. We have also adverted to the question as to whether the respondent could have invoked the Constitutional jurisdiction for the redressal of his grievances or otherwise? It is well settled law that an employee of a corporation in the absence of violation of law or any statutory rule could not press into service the Constitution jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal or termination is to claim damages. In this regard we are fortified by the dictum laid down in the following authorities:--
Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612, Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531: Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566, R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146, The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275."
(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848);
(ii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210);
(iii) Shahid Khalil v. P.I.A. Karachi (1971 SCMR 568);
(iv) A. Ceorge v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748)
(v) Muhammad Umar Malik v. The Muslim Commercial, Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453);
(vi) Habib Bank Limited v. Zia-ul-Hassan Kazmi (1998 SCMR 60);
(vii) Raziuddin v. Chairman, P.I.A.C (PLD 1992 SC 531);
(viii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836)
(ix) Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404)
(x) Agricultural Development Bank v, Muhammad Sharif (1988 SCMR 597)
(xi) Zeba Mumtaz v. First Women Bank Ltd (PLD 1999 SC 1106)"
In the circumstances, we are of the view that learned Division Bench of the Peshawar High Court has rightly held that the Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the petitioner for the enforcement of contractual obligation.
Upshot of the above discussion is that this petition has no merit, which is hereby dismissed and leave refused. The respondent may approach the forum concerned for redressal of his grievance, if desired.
(R.A.) Petition dismissed.
PLJ 2009 SC 525
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk &
Sheikh Hakim Ali, JJ.
REGIONAL DEVELOPMENT FINANCE CORPORATION--Appellant
versus
Haji GUL HASSAN and another--Respondents
Civil Appeal No. 1859 of 2000, decided on 26.11.2008.
(On appeal from the judgment dated 3.10.2000 of the Peshawar High Court, Peshawar passed in FAB No. 57/1998).
Civil Procedure Code, 1908 (V of 1908)--
----S. 20(c) & O. XXXVII, R. 2--Territorial jurisdiction--Cause of action--Suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain--Objection qua jurisdiction of Court--Not only mistaken but mala fide in order to prolong the matter--Validity--Court within territorial jurisdiction of which the cause of action had arisen would have jurisdiction to adjudicate upon the matter yet equally confer jurisdiction in the Court within local limits of whose jurisdiction, the defendant resides--Held: Plaintiff has chosen the first option which was not at all illegal--Appeal accepted. [P. 526] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 21--Object to territorial jurisdiction--Held: Objection qua territorial jurisdiction can be allowed to be taken before the appellate or revisional Court unless such objection is taken in the Court of instance i.e. the trial Court. [P. 526] B
Mian Abdul Rauf, ASC for Appellant.
Mr. Hidayatullah Khan, ASC for Respondent No. 1.
Mr. Tariq Jehangiri, ASC with Ch. M. Akram, AOR for Respondent No. 2.
Date of hearing: 26.11.2008.
Judgment
Sardar Muhammad Raza Khan, J.--Regional Development Finance Corporation Islamabad filed a suit against Haji Gul Hassan for the recovery of Rs. 27,103,92.40 before Judge Banking Court No. II NWFP Peshawar. Leave to defend having been refused to the defendant, the suit of Finance Corporation was decreed vide judgment and decree dated 20.7.1998.
Haji Gul Hassan filed an appeal before Peshawar High Court. A learned Division Bench vide judgment dated 3.10.2000 accepted the appeal and set aside the decree aforesaid, on the ground mainly that the learned Judge Banking Court No. II lacked territorial jurisdiction because all the documents of loan facility had been prepared, executed and finalized at Islamabad.
It is a matter of common knowledge that the suits of the nature in question are filed under Order XXXVII, Rule 2 of the Code of Civil Procedure and so the provisions of the Code squarely apply thereto. Section 20 CPC categorically lays down that such suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Admittedly, the defendant resides within the local limits of the Banking Court where the suit was instituted. The objection qua jurisdiction of the Court at such belated stage was not only mistaken but mala fide in order only to prolong the matter. Whereas, the fact is that the Court at Peshawar was perfectly suited to the defendant as compared to any Court at Islamabad.
No doubt, under sub-clause (c) of Section 20, the Court within the territorial jurisdiction of which the cause of action had arisen also would have the jurisdiction to adjudicate upon the matter yet sub clause (a) and (b) equally confer jurisdiction in the Court within the local limits of whose jurisdiction, the defendant resides. The plaintiff has chosen the first option which was not at all illegal.
The objection in the instant case is with regard to the territorial jurisdiction of the Court. Under Section 21 CPC no such objection qua territorial jurisdiction can be allowed to be taken before the appellate or revisional Court unless such objection is taken in the Court of first instance i.e. the trial Court. The application for leave to defend would clearly indicate that no such objection about territorial jurisdiction was ever taken by the defendant at the earliest possible opportunity. Such draw back was pointed out by Mr. Fasi-ul-Mulk learned counsel for the Corporation before the High Court but the stance taken with reference to Section 21 CPC was repelled. We hold that it was wrongly repelled and the provisions of Section 21 CPC could not be so conveniently avoided.
Consequently, the appeal is accepted, the impugned judgment dated 3.10.2000 is set aside and the case is remanded to the learned High Court for decision on merits. FAB No. 57 of 1998 stands revived. The learned High Court shall decide the matter as early as possible.
(R.A.) Appeal accepted.
PLJ 2009 SC 527
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & M. Javed Buttar, JJ.
MUHAMMAD NASEER--Petitioner
versus
SAJID HUSSAIN--Respondent
C.P.L.A. No. 32 of 2009, decided on 16.2.2009.
(On appeal from judgment dated 12.12.2008 of Lahore High Court, Rawalpindi Bench, Rawalpindi passed in FAO No. 61 of 2008).
Cantonments Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(8)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Direction to deposit as specified arrears of rent--Order was not complied--Deposit of rent by tenant on and not before fixed date was a bona fide mistake in interpreting of controller--Plea--Bonafide in interpreting the order--Correct and genuine interpretation--Validity--Correct and genuine interpretation would be that if an order specifically lays down that rent is to be deposited before specific date, no party has a right to interpret that the rent is to be deposited before the specific date, no party has right to interpret that rent is to be deposited by such date--Leave was refused. [P. 528] A
PLD 1969 Kar. 176, rel.
Malik Shahzad Ahmed Khan, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 16.2.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Naseer, the ejected tenant, seeks leave to appeal from the judgment dated 12.12.2008 of a learned Judge in the Chambers of Lahore High Court, Rawalpindi Bench whereby the petitioner's appeal was dismissed.
During ejectment petition filed by the respondent, the Additional Cantonment Rent Controller Rawalpindi, on 23.10.2007, passed an order under Section 17(8) of Cantonment Rent Restriction Act, 1963, directing the petitioner to deposit Rs. 2,25,000/- as specified arrears of rent before 30.10.2007. The order was not complied with accordingly and hence the tenant stood ejected.
The tenant deposited Rs. 65,500/- on 29.10.2007. Before that he had already deposited Rs. 59,500/- on different dates. Keeping in view the exact date of deposits, the tenant had only deposited Rs. 1,24,500/- before the specified date 30.10.2007. A sum of Rs. 100,000/- was deposited on 30.10.2007 and a sum of Rs. 500 is still outstanding. This was a clear violation of order dated 23.10.2007 and hence the petitioner was rightly ejected.
Learned counsel for the petitioner placed reliance on a single Bench judgment of Karachi High Court Sarfraz Khan v. Muhammad Abdul Rauf, (PLD 1969 Karachi 176) where it was held that the deposit of rent by a tenant on and not before the fixed date was a bona fide mistake in interpreting order of Controller and hence could not be considered a default.
We have gone through the above ruling and do not subscribe to the given interpretation because it would be extremely convenient for every defaulting tenant to take the plea that he had fallen into a bona fide mistake in interpreting the order of the Controller.
The correct and genuine interpretation would be that if an order specifically lays down that the rent is to be deposited before the specific date, no party has a right to interpret that the rent is to be deposited by such date. The petitioner has not filed the order dated 23.10.2007, yet from the ejectment order dated 12.8.2008 (PP:21) and the impugned order of the learned High Court, it is manifestly clear that petitioner was directed to deposit the rent before 30.10.2007. There being no ambiguity, it could not be interpreted otherwise. the petitioner has rightly been ejected. There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 529
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
Mst. NOOR HABIB--Petitioner
versus
SALEEM RAZA and others--Respondents
Crl. Petition Nos. 224 and 375 of 2008, decided on 28.1.2009.
(On appeal from the orders dated 18.6.2008 and 19.9.2008 of Lahore High Court, Lahore passed in Crl. Misc. Nos. 4132-B and
6169-B of 2008).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 148, 149 & 109--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Cancellation of bail--Nominated in FIR--Double murders--Crimes empties were recovered--Question of--Whether order granting bail was patently illegal, erroneous, factually incorrect and resulted in miscarriage of justice--Consideration for cancellation of bail--Validity--Considerations for grant of bail are quite distinct from considerations for cancellation of bail--Once bail has been granted by competent Court of law strong and exceptional grounds are required for cancelling the same--Held: High Court was not at all justified in extending benefit of grant of bail to accused--Accused had been specifically named in FIR for firing effectively alongwith others culminating in murders of two young brothers--Fifty two crimes empties had been recovered from place of occurrence and large number of firearms injuries were found on the persons of deceased--No justification for grant of bail to any of them--Leave was accepted.
[P. 531] A & B
1987 SCMR 1556 & 2007 SCMR 482, rel.
Constitution of Pakistan, 1973--
----Art. 185(3)--Criminal Procedure Code, (V of 1898), S. 497(5)--Leave to appeal--Cancellation of bail--Main role of firing was assigned to co-accused--Validity--Though accused was one of the accused persons directly nominated in FIR but a role of conspirator to co-accused--Bail had been granted to him for reasons which were not open to legitimate exception--Leave was refused. [P. 531] C
Mr. Mazhar Iqbal Sidhu, ASC for Petitioner.
Mr. Masood Chishti, ASC and Ch. Muhammad Akram, AOR for Respondents.
Mian Asif Mumtaz, DPG, Punjab for State.
Date of hearing: 5.1.2009.
Judgment
Ijaz-ul-Hassan, J.--Both these petitions Bearing Nos. 224 and 375 of 2008 have been moved on behalf of Mst. Noor Habib, petitioner, for grant of leave to appeal from the orders dated 18.6.2008 and 19.9.2008 passed by a learned Single Judge of the Lahore High Court, Lahore, in Criminal Misc. Nos. 4132-B and 6169-B of 2008 whereby bail has been granted to Saleem Raza, Akhtar Islam and Aman-Ullah, respondents, in case FIR No. 02/2008 dated 2.1.2008, registered at Police Station Saddar Sheikhupura, at the instance of Mst. Noor Habib, sister of the deceased, in respect of offences under Sections 302/148/149/109 PPC.
Facts of the case need not be reiterated as the same have been mentioned comprehensively in the bail granting order of Additional Sessions Judge, Sheikhupura, as well in the memos of petitions.
Mr. Mazhar Iqbal Sidhu, Advocate, appearing for petitioner, bitterly criticised the impugned orders of learned High Court and attempted to argue that learned Judge in the High Court having discussed the merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondents in complete departure to the principals governing for grant of bail in non-bailable cases and also in the cases which fall within prohibitory clause of Section 497, Cr. P.C.; that there was sufficient material on the file consisting of ocular account, medical evidence, recoveries, abscontion and motive, connecting the respondents with commission of offence; that Saleem Raza and Akhtar Islam respondents stand directly nominated in the FIR lodged without loss of time for firing indiscriminately alongwith others, resulting in the murders of Saif-Ullah and Shujat-Ullah, sons of Habib-Ullah; that in such circumstances, if Saleem Raza and Akhtar Islam, respondents had raised the plea of `alibi' they should not have been granted bail when it was open to the trial Court to make necessary probe into that plea and to come to its own conclusion at the time of the trial; that opinion of the police, finding Saleem Raza and Akhtar Islam respondents as innocent, is not based upon any cogent, tangible and reliable material; that the incident took place on 2.1.2008, Saleem Raza and Akhtar Islam, respondents were arrested on 9.2.2008 and the Investigating Officer declared their non-participations in the occurrence on 21.2.2008 which indicates that the investigation has not been carried out honestly; that in a pre-concert and pre-meditated joint attack specification of injuries to the accused, do not matter particularly at bail stage and that prima facie sufficient evidence and material was available on the file connecting the respondents with commission of the crime.
Adverting to the case of Aman-Ullah respondent in Criminal Petition No. 375 of 2008, learned counsel for the petitioner contended that though effective role of firing in the occurrence is attributed to Saleem Raza and Akhtar Islam respondents but Amanullah respondent is a mastermind behind the entire incident and he has hatched the conspiracy against the deceased, thus the concession of bail should not have been extended to him.
Mr. Masood Chishti, Advocate, for the respondents and Mian Asif Mumtaz, Deputy Prosecutor General, Punjab representing the State, on the contrary, refuted the arguments of learned counsel for the petitioner and supported the impugned orders on all counts, maintaining that the High Court made a tentative assessment of the evidence and formed an opinion that in the given facts the question of guilt or innocence of the respondents would need further probe and having found it a case falling within the ambit of sub-section (2) of Section 497 Cr. P.C granted bail to the respondents rightly.
We have considered the arguments of learned counsel for the parties at considerable length. We have also seen the record with their able assistance.
It needs no reiteration that the considerations for the grant of bail are quite distinct from the considerations for the cancellation of bail. Once bail has been granted by a competent Court of law strong and exceptional grounds are required for cancelling the same as held by this Court on a number of occasions. . It is to be seen as to whether order granting bail is patently, illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. Considering the case of respondents for grant of bail on the above touchstone, we are of the view that learned High Court was not at all justified in extending benefit of grant of bail to Saleem Raza and Akhtar Islam respondents. Both the respondents have been specifically named in the FIR for firing effectively alongwith others, culminating in the murders of two young brothers, aged 35 years and 32 years respectively. Fifty-two crimes empties have been recovered from the place of occurrence and large number of fire-arms injuries are found on the persons of the deceased. In such circumstances when they all had been prima facie implicated, there was no justification for the grant of bail to any of them. Learned counsel for the petitioner rightly contended that whatever pleas they desire to raise in their defence, could be raised at the trial stage. Abdul Ghaffar versus Sakhi Sultan and 3 others, (1987 SCMR 1556) and Ehsan Akbar versus The State and others, (2007 SCMR 482).
The result is that we convert Criminal Petition No. 224 of 2008 into appeal, accept the same and cancel the bail granted to Saleem Raza and Akhtar Islam, respondents by the learned Single Judge of the Lahore High Court, Lahore. So far as the case of Amanullah respondent is concerned, we find that though he is one of the accused persons directly nominated in the FIR but a role of conspirator is attributed to him. The main role of firing is assigned to Saleem Raza and Akhtar Islam respondents and others. Bail has been granted to him for reasons which are not open to legitimate exception. Resultantly, Criminal Petition No. 375 of 2008 to the extent of Aman Ullah respondent, is dismissed and leave to appeal refused.
Needles to add here that observations made above, are tentative in nature and relate to the order in hand only.
(R.A.) Leave refused.
PLJ 2009 SC 532
[Appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari, Syed Sakhi Hussain Bukhari and Sheikh Hakim Ali, JJ.
FEDERATION OF PAKISTAN and others--Petitioners
versus
MIAN MUHAMMAD NAWAZ SHARIF and others--Respondents
C.P. Nos. 778-779 of 2008, CMAs No. 63 & 1674 of 2008 in
CP No. Nil of 2008 and CMAs No. 63 & 1675/2008 in
CP No. Nil of 2008, decided on 25.2.2009.
(On appeal from the judgment/order dated 23.6.2008 of the Lahore High Court, Lahore, passed in W.P. Nos. 6468 and 6469 of 2008)
Adjudicate--
----Undistinguishably maligned--Question to innersolves--Disqualification to contest the election of National Assembly--Validity--Other Judges were to be imputed and would be facing with the allegations and situation as they were also sailing in the same boat and the petitioners had undistinguishably maligned all the judges in the same fashion and no one was left with any exception to it--Supreme Court decided to adjudicate the instant case. [P. 570] V
Adjudication--
----Contemptuous act of a litigant--Belief of independence--Right to ask the judge to recuse himself is lost by litigant because he has already accepted his authority, valid appointment, competency to administer justice and with belief of his independence. [P. 559] C
Administration of Justice--
----Judge to perform his duties of adjudication--Validity--To restrain a judge to perform his duties of adjudication of cases, which cannot be allowed to hamper the administration of justice. [P. 574] II
Administrative Law--
----Justice should not only be done but should manifestly and undoubtedly be seen to be done. [P. 573] FF
Aggrieved party--
----Ambit of--Action of the authority--An aggrieved party can be termed a person who was party to a law suit or to any proceeding--If a person natural or legal was not a party to the proceedings and personal, pecuniary interest or property rights were not adversely affected by action of authority, tribunal Court, order or judgment, that person natural or judicial would not fall within the ambit of aggrieved party.
[P. 586] JJJ
Bias--
----Accused having a right of fair trial by judicial minded person, not functioning under an influence which might paralyze mind to result in absence of a fair trial--Bias is in fact based on principle of Latin maxim "Nemo Debet Esse Judex in propria sua causa, meaning thereby that no one can be judge in his own cause. [P. 571] Y
Bias--
----Allegation of--Applicability of principle--Whether the party was not resorting to a device with an ulterior motive--Decision of allegation of bias was the prerogative of the judges to decide it in their judicial sagacity and wisdom as to set or not to sit on the Bench. [P. 567] M
Bias--
----Bias must be differentiated and distinction must be kept in mind between the following situations--"One of a judge who is predetermined to decide the lis in favor of one party before the hearing of case due to extraneous reasons and the other arriving to a conclusion during the hearing of a case. [P. 571] Z
Bias--
----Existence of--Creative of bias in mind of a judge--Question of--Determination of--Ulterior motives-Being no likelihood of bias, or there being no real danger of unfair trial which cannot be exhaustively encompassed--To procrastinate its prompt decision and to get transfer of it to judges of their own choice--A hypothical danger of bias has been invented, otherwise, no likelihood of bias to prevail in decision. [P. 575] KK & LL
Biased Adjudication--
----Magistrates were not biased in their decision when they had got no pecuniary interest and circumstances were not suggesting that there could be likelihood of any bias or there was any biased adjudication.
[P. 573] GG
Civil Procedure Code, 1908 (V of 1908)--
----O.I, R. 10--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Locus standi--Disqualified to contest the election--Proposer and seconder filed application in writ petition--Claiming an independent right vesting to defend the candidature--Applications were rejected by High Court--Holding having no right to be impleaded in writ petition--Question of--Whether both petitioners had the right to file these applications under Order 1, Rule 10 of CPC or under Art. 199 of Constitution in writ petition and then to file civil petitions in Supreme Court--Held: When candidate himself not coming forward to defend his qualifications and disqualifications, which are personal and inherent with that person, how the proposer and seconder can claim an independent right to appear and to defend such a candidate--Further held: Proposer and seconder cannot act against the will and wish of a candidate with regard to his acceptance of qualification and disqualification. [Pp. 575, 577 & 578] NN, QQ & TT
Civil Procedure Code, 1908 (V of 1908)--
----O.I, R. 10--Disqualification to contest election--Candidate himself had opted not to defend himself before Election Tribunal--Due to lapse--Proposer and seconder had not filed any application before election tribunal against acceptance of nomination paper--Validity--Proposer and seconder filed applications in writ petition filed against Mian Muhammad Nawaz Sharif--Proposer and seconder had not filed any application before Election Tribunal in Election appeal filed against the acceptance of nomination by Returning Officer for making the defence--No explanation as to why they had not come forward to claim their right of proposing and seconding to defend the candidature--Held: Candidate had opted not to contest the election, otherwise, he would have come forward to defend the election petition which was going to result into passing of an order of disqualifying him to participate in election--Whether the candidate who does not want to contest election by defending his personal right of qualification and disqualification--Question of--Party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the proceedings. [P. 589] RRR, SSS & TTT
Concept of ineligibility--
----In competency of a judge to dispense justice--Judge is considered competent and no question of validity or constitutionality of his appointment is in dispute. [P. 559] E
Conflict of Interest--
----Free and fair delivery of justice--Recusal is being sought--Validity--No prudent man can ask a person to decide the validity and constitutionality of his own appointment to an office, post or on a seat occupied by him, as it shall be a decision not appealing to reason and acceptable to the person seeking such decision. [P. 559] F
Constitution of Pakistan, 1973--
----Art. 178 & Sched.--Oath under Constitution--Judges--Highest reverence under oath prescribed by Art. 178 of Constitution--Present judges cannot called as PCO Judges--After having taken oath under the Constitution, they are Constitutional Judges. [P. 568] P
Constitution of Pakistan, 1973--
----Art. 178--Purpose of oath--Qualifications and disqualifications of the judges are not involvement--Crux of oath was not to allow any personal interest to influence the official duty and conduct or decisions--If bias is alleged against the judges, then perception can arise in the mind of respondents against the judges who are being selected by petitioners. [P. 568] N
Constitution of Pakistan, 1973--
----Art. 185(3)--Representation of the People Act, 1976, S. 14(5-A)--Representation of the People (Conduct of Election) Rules, 1977, R. 5--Leave to appeal--Disqualification to contest election--Seat of National Assembly--Nomination paper filed by Mian Muhammad Nawaz Sharif was accepted--Objection to acceptance of nomination paper on the ground i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President, yet conviction was still intact and effective and having not been set aside by any competent appellate Court--Conviction and disqualification would remains in existence--Not a sagacious, righteous and non-profligate and honest and ameen person--All applications were dismissed--No locus standi to file the applications--Respondent did not appear to defend his qualification and disqualifications alleging and incriminating attributions levelled against him by contesting candidate--Proposer and seconder filed separate petitions for leave to appeal while federation filed two independent petitions for leave to appeal--Praying for entertainment of civil petitions--Conspiracy of highest and gravest nature--Vested interests to destroy the whole judicial fabric of highest judicial institutions of Pakistan--Exalted legal profession and to legal fraternity in general--Remarks to be careful in future and not to deviate from the path of augmenting--Validity--Remarks which are creative of an atmosphere of distrust upon the judges or on judicial institution, whether these may be false or true are bound to tumble down sanctified image of the institution, of requiring highest regard--Held: Filing of civil petitions by the petitioners, proposer and seconder without any petition being filed by candidate himself, in the case was only an overdoing with a prior knowledge that their candidate was not prepared to approach Supreme Court--Such strategy and design was manifested with clarity--One can easily judge the intention of the petitioners, who approached Supreme Court for creation of division, bifurcation, disunity amongst the judges of Supreme Court, attribution of dishonesty and arousing of feelings of abhorrence against Supreme Court--Further held: Judges of Supreme Court cannot yield to any temptation and allurement--They are final adjudicators of law of the land and their wrong interpretation of law has got far-reaching repercussions on the whole set up and judicial system--Judges of Supreme Court cannot be an easy prey to pressures of any political party or any other highest authority--To play with their independence, with unfounded perceptions is nothing but the distortion of real facts, which must not be allowed to prevail and to preoccupy the mind of any person, otherwise such trend would destroy the whole image of independence of judiciary--Decision on recusal petitions which gave way to impression that petitioners were not serious to obtain decision on merits but had come to Supreme Court to achieve some ulterior motive and objectives best known to them--Absence of the candidate in whole of the proceedings was supportive in raising presumption of truth--Right to appeal against the order of acceptance or rejection of nomination paper by Returning Officer has been conferred upon the candidate and not upon any proposer or seconder or any other person--Proposer and seconder and other applicants have not been able to establish that they were aggrieved party as expounded, because it is the right of the candidate to contest or not to contest--If the candidate wishes to contest the election and any order, act by any authority comes in his way, it is the candidate who can be called the aggrieved party and not other person--If a candidate refuses to contest, the proposer, seconder and other applicants cannot file a petition in High Court to force the candidate to contest the election or to defend him in any proceedings before any Court or tribunal--All the applicants including the proposer and seconder, cannot be called aggrieved party giving them a right to file a petition--Impugned order has been passed correctly in legal term by holding them not an aggrieved party--Petitions for leave to appeal cannot be entertained in Supreme Court--Proposer, seconder Federation of Pakistan and all the intervenors have got no right to defend the qualification and disqualification of Mian Muhammad Nawaz Sharif, who had failed to defend such qualities and disabilities of election--Petitioners cannot be considered aggrieved party and to have a right to be impleaded in writs, or to file civil petitions for leave to appeal in Supreme Court--Leave to appeal refused. [Pp. 558, 569, 570, 578, 587, 588 &
612] A, Q, R, S, T, U, W, UU, NNN, QQQ & VVVV
Constitution of Pakistan, 1973--
----Art. 199(1)(a)(b)(c)--Jurisdiction of High Court--Writs of certiorari, mandamus and prohibition, habeas corpus and writ of quo warranto--Fundamental rights--Any aggrieved party--Art. 199(1) of Constitution have got important meanings and connotations--Power and jurisdiction of certiorari, mandamus and prohibition can be initiated and commenced on the application of any aggrieved party.
[Pp. 585 & 586] HHH & III
Constitution of Pakistan, 1973--
----Art. 199(1)(a)--Material for obtaining writ of prohibition, mandamus and certiorari--Seeking the relief must be an aggrieved party--No right to file the application--No grievance to file or defend the writ petition--Affairs of the Federation, Province or Local Authority--Act done was without lawful authority and of no legal effect--Validity--If party applying is not interested in performance of any act which may be in the nature of declaring, prohibiting or issuing direction, in that case that party would have no right to file the application under Art. 199(1)(a) of Constitution--If a person was party to the proceedings before any authority, tribunal, officer or Court, but afterward, he had got no grievance to file or defend the writ petition, it would not be competent to file audit of certiorari, mandamus or prohibition, as the case may be, by any other person, than the person who was party to that proceedings--A declaration can be sought by a party who is aggrieved by an act or proceeding taken by a person performing functions in connection with affairs of Federation, Province or Local Authority, if that act done was without lawful authority and of no legal effect. [Pp. 587 & 588] KKK, LLL & MMM
Constitution of Pakistan, 1973--
----Art. 45--Representation of the People Act, 1976, S. 14(5-A)--Disqualification to contest the election--Nomination papers were accepted--Objected to acceptance of nomination papers on the grounds i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President yet conviction was still intact and effective and having not been set aside by any competent Appellate Court--Conviction and disqualification would remain in existence--Validity--To understand the extent of pardon, reprieve and respite and to remit, suspend or commute any sentence passed u/Art. 45 of the Constitution--Question of--Whether President u/Art. 45 of Constitution could grant pardon in respect of conviction or only for the sentence--Difference between conviction and sentence in legal phraseology is evident--Conviction is declaration of a person found guilty, while sentence may be in different form as prescribed by the law--Held: President has got power to grant pardon only with regard to sentence but has got no power to set aside the declaration of guilt as recorded by a competent Court, authority or tribunals.
[P. 593] YYY
Constitution of Pakistan, 1973--
----Art. 63(1)(g)--Propagating opinion against judiciary--Disqualified to contest election--Mian brothers have been propagating opinion with regarding to integrity, independence of judiciary and are also ridiculing and defaming the judiciary--According to Art. 63(1)(g) of Constitution, they may be declared disqualified to contest election.
[Pp. 599 & 600] DDDD
Constitution of Pakistan, 1973--
----Art. 63(1)(h)(i)--Code of Conduct of General Election Order, 2002, Art. 8(3d)(1)--Legal Frame Work Order--Mian Muhammad Nawaz Sharif was not qualified to contest election--Opinion from the Chief Election Commissioner--Amendment in Art. 63 of Constitution as made by Legal Frame Work Order as well as in S. 99(1)(a)(i) of Act, alongwith amendment of Art. 8(3d)(i) of the Code of Conduct of General Election Order, its effect would be retrospective in effect--Mian Muhammad Nawaz Sharif was not qualified to contest election as amendment brought of the Constitution. [P. 595] AAAA
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Constitutional petition--Election disputes--High Court lacks power to interfere--Bar--Applicability--In election disputes, High Court lacks power to interfere, due to provision of Art. 225 of Constitution--Power and jurisdiction under Art. 199 of Constitution can be invoked when whole election process is complete--Election petition would be maintainable by process is complete--Election petition would be maintainable by opposing candidate and if it is not maintainable a writ of quo warranto can be instituted by any person--Held: A person who is not qualified can be debarred through invocation of writ jurisdiction under Art. 199 of Constitution.
[P. 609] MMMM, NNNN & OOOO
Constitution of Pakistan, 1973--
----Arts. 199(1)(b) & 185(3)--Aggrieved can file an application--Demonstrate his right to move the Court--Violation of--Fundamental rights--Invocation of--Any person who may or may not be aggrieved can file an application--He is not required to demonstrate his right to move the Court for purpose of Art. 199(1)(b) of Constitution--If he is aggrieved by any action, order or proceedings, having been done, performed or made in violation of Fundamental Rights can file an application--Leave to appeal cannot be entertained in Supreme Court. [Pp. 588] OOO, PPP & QQQ
Criminal Procedure Code, 1898 (V of 1898)--
----S. 401(5-A)--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Arts. 45 & 185(3)--Leave to appeal--Disqualification to contest election on the ground of conviction and sentence by Anti-Terrorism Court--Pardon was conditional and be fulfilled by the candidate--Scope of--Validity--Pardon was conditional and such condition was to be fulfilled by the candidate as such condition was to be considered to have been imposed by a competent Court and was enforceable--Held: Mian Muhammad Nawaz Sharif was not qualified to contest the election unless a period of 10 years as undertaken had expired in accordance with provision of S. 401(5-A) of Cr.P.C.--Leave refused. [P. 597] CCCC
Doctrine of Locus Standi--
----Sufficient interest--Judicial review of public actions--Reserved the right to be satisfied--Genuine locus standi--Courts are considered as judicial arm of Government and do not act on their own initiative--They have always reserved the right to be satisfied that the applicant had genuine locus standi to appear before it. [P. 584] FFF & GGG
Judicial Function--
----Extra Constitutional steps--Vacuum was created in the working of judicial functions alongwith judiciary--Some of the judges were invited to take oath--Number of judges had declined to take oath--Enigma as to take or to refuse the oath--Validity--In case of refusal, the judicial institution was to suffer greatest harm and its fabric which was woven in a period of more than 150 years, was to collapse completely--Judicial institution might be occupied by such person who had no knowledge and expertise of delivering justice. [P. 561] J
Judicial Institution--
----Offer of oath--Better interest of institution--To prevent the spreading of choose in the country for the betterment of the citizen--Held: Offer of oath might not be declined. [P. 561] K
Locus Standi--
----Proposer and second--Prove of--Necessary for a candidate--Validity--Proposer and the seconder are not bound to prove their locus standi because they are defending the case as a shield and not filing instituting or using it as a sword, which does not require the same rights as are necessary for a candidate--Held: Law has given proposer and seconder an integral role in the election process by rendering as disqualified a candidate, if his proposer or seconder is disqualified. [Pp. 579 & 580] VV & WW
1991 SCMR 2883 ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 15--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Arts. 45 & 185(3)--Leave to appeal--Power of Accountability Court to disqualify a person--No power to President to condone disqualification order, by grant of pardon--Disqualification to contest election--Although sentences were pardoned by President yet conviction was still intact and effective and having not been set aside by any competent authority--Conviction and disqualification would remain in existence--Validity--Accountability Court was granted power to disqualify a person convicted for the offence of corrupt and corrupt practices--Mian M. Nawaz Sharif was disqualified for 21 years to become member of Assmebly--Held: There was no power granted by Constitution to President, to condone such disqualification order, by grant of pardon--If it be presumed for the sake of consideration, that conviction and sentence recorded were set aside by President, even them pardoning of the disqualification power was never granted or conferred upon the President by Constitution--Disqualification had remained in the field--Further held: Mian Muhammad Nawaz Sharif having been held guilty of corrupt practices and corruption was disqualified to contest the election or being elected, chosen, appointed or nominated to any public office or local authority of Government for 21 years u/S. 15 NAB Ordinance, which disqualifying order was never pardoned from the legal character of the candidate--Leave refused.
[Pp. 594 & 596] ZZZ & BBBB
PCO Judges--
----Bias--All judges of Supreme Court are constitutional judges and issue of PCO has become a past and closed transaction. [Pp. 572 & 573] EE
PCO Judges--
----Interestingly and astonishingly--No application for bias or recusal--In case of Mian Muhammad Shahbaz Sharif, the brother of the candidate and also a prominent leader of PML (N) with similar view point, not to get hearing of the case from PCO Judges, no such application for bias or recusal was filed in his case--Prayer was dismissed. [P. 575] MM
PCO Judges--
----Proclamation of emergency--Enforcement of Provisional Constitution Order I of 2007 and issuance of an order in the form of Oath of Office (Judges) Order, 2007 were not enforced upon the advice of PCO Judges--Held: No advice was delivered the PCO Judges and no assistance was provided by these judges to military forces to do such acts. [P. 561] I
Pecuniary Interest of a Judge--
----Relationship, intimacy towards and party--Member of political party--Where judge has got fiduciary relationship with any party in the case--Where a judge might have been remained an advocate of any party the lis, he might have been an arbitrator, referee, or conciliator in the subject matter for any party to the case--All the reasons and kinds cannot be completely encompassed. [P. 572] AA
Pecuniary Interest--
----Sufficient to cause disqualification--Applicability--Judges have got no pecuniary interest in the matter or related to any party. [P. 573] HH
Preconceived Opinion--
----Strong grounds for holding bias against the judicial or quasi-judicial officer though it is unfortunate that a judge should have any do not constitute such a bias nor even the expression of such opinions, for it does not follow that the evidence will be disregarded. [P. 574] JJ
Prejudice--
----Supreme Court being the apex Court of judicial hierarchy of the country, there being no other Court except the Court of Almighty Allah, how in such situation, a litigant can ask the Supreme Court to avoid the delivery of judgment after having offered his lis, for doing the justice to it. [P. 560] H
Proposer and Seconder--
----Not figure thereafter in the whole election process--After nomination papers are accepted or rejected--Held: Proposer and seconder cannot force the candidate to contest the election by or through any legal proceedings. [P. 577] SS
Proposer and Seconder--
----Recommendation of--Consent of candidate becomes necessary for contest of election--Validity--If candidate does not give his consent, the recommendations of the proposer and seconder become a futile exercise--Held: After recommendation are made, dependent right is merged into an independent right vested in candidate. [P. 577] RR
Qualifications and Disqualifications--
----To contest election--Personal, capabilities, abilities, qualities and disabilities of a person which are best known to that person.
[P. 576] PP
Question of Bias--
----No end to chaos--No appeal or revision can be filed before any other Court--Judgment of Supreme Court are the final decisions of the judiciary--If the judges of Supreme Court cannot be swayed by cheep and petty slogans and attributions of frivolous nature. [P. 568] O
Real Likelihood of Bias--
----Non pecuniary bias--Extent and nature of interest--Determination--Real likelihood depended on the impression which the Court would get from the circumstances in which the justice were sitting--Bias should be based on reasonable suspicion. [P. 565] L
Recusal--
----Constitutional judges and having taken oath under Constitution--Bound to administer and deliver justice in accordance with Constitution and law of the land--Their faculty of approach cannot be considered to be effected by any stretch of imagination to be in favour of anyone due to the stance taken by any political party in Pakistan.
[P. 572] BB & CC
Recusal--
----Option of the judge--Litgant has not been granted a right to ask the judge to recuse himself--Validity--If a litigant does not feel justice to be done from a judge, he must not place his case before the judge--When the case is placed before a judge by a litigant, therefore, the litigant cannot ask the judge to recuse himself. [P. 559] B
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Constitution of Pakistan, 1973, Art. 185(3)--Disqualification to contest the election--Nomination papers were accepted--Objected to acceptance of nomination paper on the ground i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President, yet conviction was still intact and effective and having not been set aside by any competent appellate Court--Order passed accepting or rejecting the nomination paper can be challenged only by the candidate--Right having extinguished by rule of merger in right of candidate--Proposer and seconder would become non-existent giving no legal right to defend their candidate--Validity--After proposing and seconding is made and consent is given by candidate to his nomination papers by declaring his eligibility to Returning Officer--Order passed accepting or rejecting the nomination paper can be challenged only by candidate according to Section 14(5) of Representation of the People Act--Law having restrained the proposer and the seconder after passing of order of Returning Officer from taking any action in the shape of filing of appeal before election tribunal--Intervenors cannot come forward to defend their candidate because their right having extinguished by rule of merger in the right of the candidate, which become non-existent giving no legal right to defend their candidate in any further proceedings. [P. 590] UUU
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14--Rejection of nomination papers--Order attained finality--Appeal being competent was not filed--Disqualification had disappeared in by-election--Validity--Order of rejection of nomination papers and appeal u/S. 14 of Act, 1976 being competent was not filed by Mian Muhammad Nawaz Sharif and that order had attained finality--Proposer and seconder could not propose and second Mian Nawaz Sharif who could not also give consent for filing the nomination papers before the Returning Officer for the seat in by-election and nothing was brought on record to prove that the previous order was set aside by any competent Court or forum or disqualification and disappeared in by-election--Petitioners have got no legal right to obtain declaration for purging his disqualification to his status--Leave refused. [P. 603] EEEE & FFFF
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5-A)--Right of appeal to a candidate--Scope and power of election tribunal--Rejection of nomination papers--S. 14(5-A) of Act, 1976 which had provided the right of appeal to a candidate before election tribunal, against the acceptance or rejection of nomination papers--During the process of election of nomination papers--During the process of election burden of invocation of writ of quo warranto has been relaxed upon a common man who was to wait and see till finalization of election process--Held: Purpose of insertion of the provision was to prohibit a disqualified person to enter into scared Hall of Parliament wherein a seat was prescribed by the Constitution to a qualified person who is pious, sagacious, righteous and non-prefligate, honest and Ameen, not of unsound mind, not on undischarged insolvent not defaulter of loans, taxes, Government dues, utility charges, not guilty of corrupt or illegal practices, not to these persons who were removed or compulsorily retired from service nor to those who were convicted by a Court of competent jurisdiction, not to persons or defamers who were propagating any opinion or acting in any manner prejudicial to ideology of Pakistan, sovereignty, integrity or security, or morality, or maintenance of public order or integrity or independence of judiciary or not to those who brings into ridicule the judiciary or Armed Forces. [P. 607] JJJJ
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14(3)(1) & 14(5-A)--Disqualification to contest election--Returning officer was granted power to conduct summary inquiry--Rejection of nomination papers on ground of default in payment of loan or utility charges--Power of tribunal--Objections of disqualifications of a candidate--Validity--Returning Officer shall not reject the papers of the candidate in case he deposits any amount of loan, taxes or utility charges--Granting power to Election Tribunal to consider all the objections, of disqualifications brought by any person, natural or legal who lays information, or brings material before tribunal--By providing a separate provision, wider net was supplied of disqualifications, persons bringing information and to empower and to give jurisdiction to tribunal. [Pp. 606 & 607] GGGG, HHHH & IIII
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14(5-A) & (6)--Period for disposal of petition--Principle and rule--Indefinite period has been provided for decision of the petitions.
[P. 609] LLLL
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 52(i) & 14(5-A)--Constitution of Pakistan, 1973, Arts. 185(3) & 225--Election petition can be filed by a candidate--Question of--Whether can be allowed to contest the election, if he has got clear disqualification of unrebutable and undeniable nature, having been proved--Whether such person may be ordered to remain mum and to wait till the election process becomes complete and disqualified person enters the Hall of Parliament, mocking the purety of election process when the election laws are not providing any remedial steps, High Court has got inherent and Constitutional powers to remedy the wrong being done or having been done by election tribunal--Not only a person was allowed to lay information but election tribunal was itself conferred more powers and jurisdiction to entertain such information and material--Held: When such power has been granted to election tribunal, then it was the duty of the election commission to examine and decide the petition--In action of Tribunal High Court has got power under Art. 199 of Constitution to decide that petition--Qualifications and disqualifications of a candidate, being matter of personal rights of candidate--Jurisdiction of High Court would be there, to correct legal errors or apparent defects having been crept into order of election tribunal--Person aggrieved cannot be left without any remedy at a later stage of the close election, because a tribunal having jurisdiction can not do it wrongly, but is bound to do it rightly--Leave refused.
[Pp. 610 & 611] PPPP, QQQQ, RRRR, SSSS, TTTT & UUUU
Supreme Court Rules, 1980--
----R. 6--Representation of the People Act, 1976, Ss. 14(5-A)(6)--Question of constitution of the larger Bench--Conflict of view between two Benches--Interpretation of provisions of--Contentions of larger Bench--Neither an objection can be raised nor any party is entitled to ask for Constitution of a Bench of its own choice--Question of--Principle--Judges selected for Constitution of larger Bench would not be accepted by the petitioners--It was sole prerogative of Chief Justice to Constitute a Bench of any number of Judges to hear a particular case--Neither an objection can be raised nor any party is entitled to ask for Constitution of a Bench of its own choice--When the petitioners, are not accepting acknowledging the authority and status of all the Judges of Supreme and Chief Justice, then how they can pray for Constitution of a larger Bench of their own choice to be made available to them. [Pp. 591 & 592] VVV, WWW & XXX
Supreme Judicial Council--
----To protect and guard the interest of Judges--Not to be removed--To impart justice without fear--A Judge once appointed in Superior Court has got sufficient security guarantee in the Constitution, not to be removed or dismissed unless through the decision of Supreme Judicial Council--Democratic set up, are sufficient to protect and guard the interest of judges of superior Courts to impart justice without fear and favour, and without being influenced by the parties stand in the streets. [P. 572] DD
Trust Act, 1882 (II of 1882)--
----S. 3--Nomenclature of--Codified law--Applicability--Supreme Court does not desire to load our land laws by the import of concept of others, who are not based on any codified law as are ours--Our attention towards law enacted and applicable to the Pakistan.
[P. 581] YY
Trust--
----Essential ingredient of trust--Beneficiary of--Trustee must be a qualified person and disqualified to contest the election--Trustee of public office--Validity--First of all there must be an electorate who shall elect, which may be called the beneficiary of the trust and the person must be elected or chosen by that electorate, to become a trustee and then creation of trust would be completed when public office is occupied by that trustee--Candidate must be ready to contest the objections raised against him, by opposing candidate before Returning Officer, he must not withdraw or retire from the election--After successful completion of all other steps of election process, on the date of holding of election he may withdraw, retire or loose the election in the contest--Proposer and seconder are not the sole beneficiaries of the trust but after a candidate occupies the seat in the shape of a returned candidate, due to majority choice will of electorate, that he would become a trustee of public office--Right of beneficiaries comes to light when a person is elected, declared returned and is notified as such and occupies the seat in consequence of that there is no presupposed right to be claimed by any voter before the returned candidate holds the office--Held: During the completion of election process, no case can be filed or defended for qualifications and disqualifications of candidate by any alleged voter proposer and second before any Court of law--If candidate is not prepared to defend himself before any tribunal and a Court of law, then no one including proposer and seconder can compel the candidate to contest election by defending his qualification and disqualifications. [Pp. 582 & 583] ZZ, AAA, BBB, CCC, DDD & EEE
Words & Phrases--
----Recusal--Recusal has been defined in Black's Law Dictionary, (Seventh Edition) in column IInd at page 1281. [P. 559] D
Words & Phrases--
----What is bias and what are its determinative factors--It is defined in Black's Law Dictionary, 7th Edition by Brayan A. Garner with others. [P. 570] X
Words and Phrases--
----Derivative "action" has been defined in Black's Law Dictionary Seventh Edition by Bryan A. Garner. [P. 581] XX
Words and Phrases--
----It is the decision of the judge to recuse himself when he feels that there is possibility of conflict of interest or prejudice which would be caused to a party of the case in his participation or in decision of that case. [P. 559] G
Black's Law Dictionary
Words and Phrases--
----Qualification and disqualification--Determination--Advert to the definition of qualification and disqualification as defined in Black's Law Dictionary, 7th Edition. [P. 576] OO
Words and Phrases--
----Source--Comprehensive meaning of source has been found in words and phrases (permanent edition) by West Publishing Company, Blacks' Law Dictionary (7th Edition) & New English Dictionary and Thesaurus by Geedes & Grosset (New Edition of 2000) at page 557 Col. II. [P. 608] KKKK
Agha Tariq Mehmood, DAG a/w Ch. Arshad Ali, AOR for Petitioners (in C.P. Nos. 778-779 of 2008).
Sardar Latif Khan Khosa, Attorney General for Pakistan on Court Call (in C.P. Nos. 778-779 of 2008).
Nemo for Respondents No. 1-5 (in C.P. Nos. 778-779 of 2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC for Respondent No. 6 (in C.P. Nos. 778-779 of 2008).
Mr. A.K. Dogar, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC for Respondent No. 1 (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008).
Nemo for Respondents No. 2 to 5 (in CMAs 63 and 1674/2008 in CP No. Nil of 2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008).
Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No. 1 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008).
Nemo for Respondents No. 2 to 5 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008).
Dates of hearing: 6, 14, 15, 19 to 22, 27 to 30.1.2009, 2 to 4, 9 to 12, 16 to 20, 23 to 25.2.2009.
Judgment
Sheikh Hakim Ali, J.--To contest a seat of National Assembly, in the By-election for the constituency of NA 123, Lahore-VI, to be held on 26.6.2008, Mian Muhammad Nawaz Sharif had filed Nomination Papers, out of which one was proposed by Mehr Zafar Iqbal and it was seconded by Shakeel Baig. Noor Ellahi, Respondent No. 6 and Mian Ikhlaq Ahmed alias Guddu, were the contestants of that election from that constituency. Nomination papers were submitted before the Returning Officer, who took up the task of scrutiny of these nomination papers. Nomination paper of Mian Muhammad Nawaz Sharif, the candidate was accepted on 15.5.2008, although Noor Ellahi and Mian Ikhlaq Ahmed alias Guddu, the opposing candidates had objected to the acceptance of this nomination paper of Mian Muhammad Nawaz Sharif. The grounds pleaded for rejection of nomination papers of Mian Muhammad Nawaz Sharif can be summarized in the following form:--
(i) Mian Muhammad Nawaz Sharif was convicted by Anti-Terrorism Court No. I, Karachi, on 30.10.2000 in Special Case No. 385 of 1999 under Section 402-B of the PPC read with Section 7 of the Anti Terrorism Act, 1997, which conviction was also upheld by the learned appellate Court (High Court of Sindh vide judgment reported in PLD 2002 Karachi 152 (Muhammad Nawaz Sharif v. The State). In the aforesaid case Mian Muhammad Nawaz Sharif was sentenced to life imprisonment and was imposed a fine of Rs. 5,00,000/-, in default whereof he was to further undergo 5 years imprisonment, on the first count and similar sentence on the second;
(ii) Mian Muhammad Nawaz Sharif was also convicted and sentenced by learned Accountability Court, Attock Fort, in Reference No. 2 of 2000 on 22.7.2000, under Section 10 read with Section 9-A(V) of the NAB Ordinance. He was sentenced to 14 years R.I. and fine of Rs. 20 million. In case of non-payment of fine, he was to suffer R.I. for further imprisonment of three years. He was also declared disqualified for 21 years seeking from being elected, chosen, appointed as member or representative of any public office or any authority of the Local Government of Pakistan;
(iii) Under Article 45 of the Constitution of the Islamic Republic of Pakistan,1973, (which would be noted as the Constitution hereinafter in the judgment) although sentences were pardoned by the President of Pakistan yet conviction was still intact and effective and having not been set aside by any competent higher/appellate Court, conviction and disqualification would remain in existence.
(iv) Respondent No. 1, Mian Muhammad Nawaz Sharif was not a sagacious, righteous and non-profligate and honest and ameen person, because he was convicted by the learned Accountability Court, Attock Fort under Section 9-A(V) in Reference No. 2 of 2000 dated 22.7.2000 and under Section 10 of the NAB Ordinance, 1999 for dishonesty, corruption and corrupt practices, misappropriation of public funds and misuse/abuse of authority, etc.
(v) Respondent No. 1 is publicly propagating his biased opinion, and acting in a manner, prejudicial to the integrity of the Judiciary of Pakistan and defaming and bringing into ridicule the judiciary as well as the Armed Forces of Pakistan.
(vi) In his application addressed to the Chief Election Commissioner of Pakistan dated 7.12.2007, against the rejection of his nomination papers from NA-120, in the General Election, held on 18.2.2008, he had clearly mentioned in that application that the Judges of the High Court who had taken oath under the PCO, and whose status as such was seriously flawed, he was not acknowledging the appointment of aforesaid judges. He was also maligning the Hon'ble Judges, who had taken oath under the Constitution and undermining their authority and integrity, and thereby trying to divide the judiciary.
(vii) Respondent No. 1 after conviction, in order to avoid criminal liabilities for his misdeeds and heinous crimes, malafidely and through deceitful means entered into a compromise, for agreeing to 10 years exile in exchange of his release, which agreement was firstly kept on denying with regard to its period of 10 years but when the document was placed before the Hon'ble Supreme Court of Pakistan and a public press conference was held by Mr. Saad Al-Hariri, a son of former Lebanese Prime Minister Rafique Hariri and the Saudi Intelligence Chief, Mian Muhammad Nawaz Sharif admitted the execution and the exile deal, thus he was disqualified from being elected, as he had committed non-fulfillment of obligation, in breach of that agreement, which act of his was against the Injunctions of Islam which required a person to fulfill all his obligations.
(viii) Mian Muhammad Nawaz Sharif was a defaulter of consortium of National Bank of Pakistan, Habib Bank Limited, United Bank Limited, Agricultural Development Bank of Pakistan, Muslim Commercial Bank, PICIC, Bank of Punjab and the first Punjab Mudarba and cases for recovery of loans were pending before the Lahore High Court, Lahore. It was further alleged that he was disqualified for having embezzled millions of valuable public money belonging to the poor citizens of Pakistan. He had committed the breach of contract and was not entitled to reap the fruits of his deceitful means and retain ill-gotten gains.
(ix) Nomination papers of Respondent No. 1 were even otherwise liable to be rejected as having been filed in complete disregard of law and containing incorrect declaration.
(x) Earlier nomination papers filed by Mian Muhammad Nawaz Sharif for the seat of NA-120 in the present General Elections were rejected by the Returning Officer, against which no appeal was filed by him, so, it had attained finality and Respondent No. 1 could not contest the same election in its by-election, on the principle of constructive resjudicata and estoppel.
(xi) By-election being in continuation of General Elections, rejection of nomination paper in the General Elections having attained finality, the present nomination in this by-election was liable to be rejected.
Noor Ellahi had submitted a hand-written application in the shape of objections, against the nomination papers of Mian Muhammad Nawaz Sharif before the Returning Officer on 13.5.2008 alongwith affidavit.
Many other grounds were allegedly, as per learned counsel raised before the Returning Officer. But the Returning Officer had accepted the nomination papers of Mian Muhammad Nawaz Sharif. So, Mian Muhammad Ikhlaq Ahmed alias Guddu filed Election Appeal N. 6-A of 2008, before the learned Election Tribunal, Lahore consisting of two learned judges of High Court on 24.5.2008. When notices were issued to respondent in that appeal for 27.5.2008, an application under Order I Rule 10 of the CPC was filed by Noor Ellahi seeking his impleadment in aforementioned appeal but on that date, Mian Muhammad Ikhlaq Ahmed alias Guddu, withdrew his appeal allegedly due to political pressure. In these circumstances the learned Election Tribunal directed Noor Ellahi to file an independent appeal, if so desired, which was filed by him and notices were issued to respondents for appearance in that appeal. Syed Khurrum Shah filed a petition under Section 14 sub-section (5-A) of the Representation of the People Act, 1976 (hereinafter referred to as the "Act"), against Mian Muhammad Nawaz Sharif in respect of his disqualifications, before the learned Election Tribunal. It is noteworthy that Mian Muhammad Nawaz Sharif did not appear in the aforesaid Election Appeal and petition and so was proceeded exparte. On 30.5.2008, Mr. Justice Muhammad Akram Qureshi, one of the learned Member of the Election Tribunal, accepted election Appeal N. 26-A of 2008 and Mian Muhammad Nawaz Sharif was declared to be disqualified to contest the election as his nomination papers were rejected. But the other learned member, Mr. Justice Hafiz Tariq Naseem, however, dismissed the appeal against Mian Muhammad Nawaz Sharif upholding the order of Returning Officer.
It is material to mention that Noor Ellahi had filed appeal/application under Section 14(5) read with sub-section (5-A) of the Act read with Rule 5 of Representation of the People (Conduct of Election) Rules, 1977 against the order dated 15.5.2008 passed by Returning Officer-Respondent No. 2.
As there was a split decision between the learned members of the Election Tribunal, so the matter was referred to Chief Election Commissioner of Pakistan, upon which the Chief Election Commissioner passed the following order on 1.6.2008, which is reproduced hereinbelow:
"The proposal highlighted in para-18/ante is approved as it is squarely in line with the mandatory provision of Section 14(6) of the Representation of the People Act, 1976 that an appeal not disposed of within the period specified in the Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to the Election Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or rejection of Nomination Papers by the appellate Tribunal was 31st May, 2008."
Aggrieved from this order, and all the other orders, Writ Petition No. 6468 of 2008 was filed by Noor Ellahi, the candidate, while Writ Petition No. 6469 of 2008 was filed by Syed Khurrum Shah, against Mian Muhammad Nawaz Sharif in the Lahore High Court, Lahore as his application under Section 14(5-A) of the Act, was not decided by the learned Election Tribunal.
During the pendency of both these writ petitions, a flood of applications under Order I Rule 10 of the CPC were filed before the Lahore High Court, Lahore, the details of which are as under:--
In Writ Petition No. 6468 of 2008:
C.M. No. 1305 of 2008 by Shakeel Baig, C.M. No. 1306 of 2008 by Mr. A.K. Dogar, learned Advocate, on his own account.
C.M. No. 1307 of 2008 by Mujtaba Shaju-ur-Rehman, Secretary General, City Lahore PML (N), C.M. No. 1308 of 2008 by Marghoob Ahmed, President, PML (N), Lahore, C.M. No. 1309 of 2008 by Mehr Zafar Iqbal, the proposer, C.M. No. 1310 of 2008 by Khawaja Mehmood, President, PML (N), Lawyers Forum.
C.M. No. 1317 of 2008 by Judicial Activist Penal of Pakistan.
While in Writ Petition No. 6469 of 2008:
C.M. No. 1311 of 2008 by Shakeel Baig, C.M. No. 1312 of 2008 by Mr. A.K. Dogar, learned Advocate on his own, C.M. No. 1318 of 2008 by Marghoob Ahmed, President PML (N), Lahore, C.M. No. 1314 of 2008 by Mujtaba Shuja-ur-Rehman, Secretary General, City Lahore, PML (N).
C.M. 1315 of 2008 by Khawaja Mehmood President PML (N) Lawyers Wing.
Upon all these applications, learned Full Bench of Lahore High Court, Lahore, passed orders dismissing all applications holding that the applicants had no locus standi to file these applications. This order was announced on 20.6.2008.
Aggrieved from that order dated 20.6.2008, Mehr Zafar Iqbal had filed Civil Petition for Leave to Appeal No. Nil of 2008 in this Court alongwith a CM for grant of a period, to produce the impugned order, but on 25.6.2008 the C.M. was got dismissed as not pressed.
Before the learned Full Bench which was seized of main writ petitions and which were still not decided finally, C.M. Nos.1379 of 2008, CM 1380, 1382 to 1385 of 2008 (review petitions against order dated 20.6.2008) were filed and C.M. No. 1381 of 2008 by one Wali Muhammad seeking permission to be impleaded as party to the writ petition was filed. All the CMs alongwith C.M. Nos.1305 to 1310 and 1317 of 2008 were dismissed. Learned Full Bench of the Lahore High Court vide its judgment/order dated 23.6.2008 disqualified Respondent No. 1 (Mian Muhammad Nawaz Sharif) for 21 years on the basis of judgment dated 22.7.2000 of the Accountability Court; for scandalizing, abusing, disobeying and ridiculing the judiciary of Pakistan, and having sworn a false affidavit attached with the nomination papers. Consequently, order of Returning Officer dated 15.5.2008, order dated 31.5.2008 of the learned Election Tribunal and observation/order dated 1.6.2008 of the learned Chief Election Commissioner were set aside.
Aggrieved from that judgment/order dated 23.6.2008, passed by learned Full Bench of Lahore High Court, Lahore, Federation of Pakistan filed two CPLAs No. 778 of 2008 and 779 of 2008 in this Court. During the pendency of these petitions C.M. No. 1914 of 2008 by Manzoor Ahmed Bhatti, and C.M. No. 408 of 2009, by Shahid Orakzai, were filed for impleadment.
It is noteworthy that both learned counsel, Mr. A.K. Dogar, and Mr. Muhammad Akram Sheikh had filed applications on their own account, for impleadment before the learned Full Bench of Lahore High Court but those were dismissed by that Court. At present, they are appearing as counsel for Mehr Zafar Iqbal and Shakeel Baig, in this Court.
The gist of arguments addressed by all the learned counsel, requiring verdict from this Court is being formulated in the following form:
(1) Recusal;
(2) PCO Judges;
(3) Bias;
(4) Locus standi of petitioners;
(5) Application under Order I Rule 10 CPC
(6) Constitution of Larger Bench and hearing from Selective Judges;
(7) Qualification and Disqualification:-
(i) Convictions;
(ii) Twenty One Years Disqualification;
(iii) Breached covenants;
(iv) Unpaid Loans;
(v) Bank suits;
(vi) Propagating opinion against judiciary;
(vii) Pending contempt case – false declaration
(viii) Miscellaneous Application to C.E.C.
(ix) Unrefuted allegations.
(8) Interpretation of Section 14(5) and (5-A) of the Act;
(9) Subsection (6) of Section 14 of the Act.
(10) Jurisdiction of the High Court;
(1) RECUSAL
Before embarking upon the discussion of factual and legal plane of the case, it is essential to note that this highest Court had made multifarious efforts to inform and serve Mian Muhammad Nawaz Sharif, the candidate, with regard to the filing of this case. Inspite of being apprised of the case, he has opted not to appear and defend, apparently, perhaps due to reasons best known to him towards this Court, which would be later discussed in detail in this judgment at its appropriate place.
It is interesting to note that Mian Muhammad Nawaz Sharif, in whole of the proceedings during the hearing of election petitions, petition filed under Section 14(5-A) of the Act, Writ Petitions in the High Court and CPLAs, thereafter in this Court has not appeared to defend his qualifications and disqualifications, allegations and incriminating attributions, levelled against him by his contesting candidates in the election. From the above noted narration, an inference is easily deducible that Mian Muhammad Nawaz Sharif has either got nothing to say in his defence or is shy of and nervous to face the case and its consequence or does not want to become a candidate, after the submission of nomination papers in the by-election, otherwise he would have contested the stigma of disqualification ascribed and attributed to him.
After the above narration of facts and arguments, we have found that Shakeel Baig, the proposer and Mehr Zafar Iqbal, the seconder have filed separate civil petitions for leave to appeal while Federation of Pakistan has also filed two independent civil petitions for leave to appeal against the impugned judgment dated 23.6.2008 passed by the Lahore High Court, Lahore. The Registrar office of this Court has not registered and allocated any number to both these civil petitions of the proposer and seconder. Meaning thereby that these civil petitions of Shakeel Baig and Mehr Zafar Iqbal were not yet registered when two separate applications by these petitioners were filed, one, praying for entertainment of these civil petitions and the other for Recusal. Instead of pressing for order to be passed by this Court, for registration of their Civil Petitions, Shakeel Baig and Mehr Zafar Iqbal, petitioners have much insisted upon the acceptance of their applications for recusal. CMA No. 63 of 2009 was filed by Mehr Zafar Iqbal while CMA No. 64/2009 was presented in the office by Shakeel Baig. In both these petitions which are verbatim copy of each other’s petition, it was asserted that on 3rd of November 2007, Martial Law, in the shape of emergency was imposed by General Pervez Musharraf (now retired) who had suspended the Constitution and the Judges sitting in the present Bench had taken oath under the Oath of Office (Judges) Order 2007, while many other Hon'ble Judges of this Court refused to take oath under the said Order, due to which they had ceased to hold their said respective offices, with the consequence that new appointments to fill in the vacancies were made. It was further asserted that petitioner as well as Respondent No. 1 (Mian Muhammad Nawaz Sharif) who was a Quaid of a major political party of the country Pakistan Muslim League (Nawaz Group) had strong reservations to that act of General Pervez Musharraf. The Judges, who have been appointed aftermath of the constitutional deviation are required an adjudication regarding their holding of the office as of Judge in the present proceedings, therefore, necessity of constitution of a larger Bench of this Court was essential. It was further alleged that there was possibility that some prejudice might be occasioned in the case from the present Judges, who had taken oath under the PCO. Founding their case, upon legal Maxim, Nemo debet esse judex in propria sua causa (no man can be a judge in his own cause) it has been argued that bias was consequently to flow and result in their decision. In the last, it was prayed that the present sitting Judges might recuse themselves from these proceedings, by transmitting the case to the Chief Justice for Constitution of the Appropriate Bench (words were notable). When asked as to how the present sitting Judges would feel prejudice against the present petitioners or their leader when all the present sitting Judges of this apex Court have already taken oath under the present Constitution of the Islamic Republic of Pakistan, 1973, and they are constitutional judges, and more so, particularly after the full Court judgment of this Court by seven judges, as reported in PLD 2008 S.C. 178 (Tikka Iqbal Muhammad v. Pervez Musharraf) and affirmed by 17 judges in review, how then the present Judges can be called PCO Judges? Mr. A.K. Dogar, learned counsel was also put a query from the Bench as to whom these petitioners were considering the judges of "Appropriate Bench", learned counsel replied that four Judges who were deposed in consequence of Proclamation of Emergency and they were deposed thereafter but had taken oath under the present Constitution might be considered the Judges appropriate for the Bench.
This argument of petitioners’ learned counsel has been found by us to be malicious and vicious, having no legs to stand in the eye of law of the land. The petitioners and their counsel have in fact tried to create division amongst the Hon'ble Judges of this apex Court into two factions of PCO and non-PCO Judges, although at present, all the sitting Judges are those Judges who have taken oath under the present Constitution, and no discrimination or distinction on this account can be made or created amongst them by these petitioners.
In fact, it is a conspiracy of highest and gravest nature which has been hatched up by some vested interests, to destroy the whole judicial fabric of this highest judicial institution of this country, for their own interest and purpose. It is being bred so as to get appointed judges of their own choice and interest, in the offices of judges of superior Courts, by eliminating out the present judges even whose impartiality and honesty might be above board. This rule of politics, to divide and rule is being played and brought into this realm of judicial institution, so as to cause disturbance into peaceful, harmonious working and smooth running of this Institution, by raising prejudices and differences amongst the Judges, by procreating two factions in the judiciary, which is most harmful and sinful act, plea, stand and stance of the petitioners. All the Judges sitting in this Court are equal, respectful and revered and brother Judges, amongst whom no distinction and discrimination of belonging to one or the other group can be allowed and permitted by any of the Judges of this Court to be made and raised at this stage and thereafter. All the Judges having taken oath under the present Constitution, a few of them cannot be given preference by the petitioners or their counsel over or against the others. On this basis, unity amongst the Judges has been attempted to be tarnished and torn into pieces through these baseless, frivolous and unfounded premises particularly when it has already been ruled out by the Seven Hon'ble Judges of this Court in Tikka Iqbal Muhammad Khan’s case (PLD 2008 S.C. 178) and thereafter by 17 Judges of this Court in review jurisdiction, and the actions taken against the judiciary are to be considered a past and closed transaction. It is worth-mentioning that judgment in Tikka Iqbal Muhammad Khan's case was never disputed or challenged by these petitioners, through any review petition. It does not now lie in their mouth through these petitions to criticize the above noted judgment of Tikka Iqbal Muhammad Khan case, in collateral proceedings, which have got no nexus to the merits of this case, in respect of question of qualification and disqualification of Mian Muhammad Nawaz Sharif. Having lost the proper opportunity of disputing the validity and vires of that judgment of Tikka Iqbal Muhammad case (ibid), now the petitioners cannot be permitted to dispute or impugn the vires of that judgment, especially through these applications. The petitioners and their learned counsel have attempted to destroy the safe sailing of the ship of this great judicial institution. They have tried to make a hole in the ship so as to let it sink. The obnoxious plea raised and stand taken requires to be deprecated by all the prudent men, women including all stake holders interested to uphold the dignity and independence of this judicial institution and by all the citizens of Pakistan. It is the contempt of serious nature which cannot be forgiven/pardoned by this Court. The petitioners who have sworn affidavits by instructing their learned counsel through the above arguments, addressed by their counsel, do not deserve any leniency shown in the matter of this contumacious and destructive arguments and the stand taken of bifurcating this institution into two water tight compartments.
Resultantly the petitioners, namely, Mehr Zafar Iqbal and Shakeel Baig, both are mulcted with cost of Rs. 1,00,000/- each to be paid/deposited in the office of this Court, within 15 days or to suffer simple imprisonment of three months.
While the learned counsel who have addressed these arguments without considering the repercussions on the judicial system and institution, on the basis of instructions although imparted to them by their clients, yet they cannot be excused on this plea because it is their primary and prime duty to uphold the dignity, unity and highest respectful image of this judicial institution. This art of advocacy also cannot be approved and appreciated. This Court has noticed with dismay the manner and method of arguments addressed to this Court. As we have got highest regard to the exalted legal profession and to the legal fraternity in general, so we have restricted ourselves to the extent of warning, considering it to be sufficient for them with remarks to be careful in future and not to deviate from the path of augmenting the respect of the judges and the institution, and not to be entrapped, upon the direction of a client, to address the Court in an abusive language or with the pleas and position harmful to the judicial institutions although that may satisfy the ego of their clientele. It is the cardinal principle that the remarks which are creative of an atmosphere of distrust upon the judges or on the judicial institution, whether these may be false or true are bound to tumble down the sanctified image of this institution, of requiring highest regard and respect. The mutilation of the face of this institution would loosen the faith, trust and confidence in the mind of the litigants which would be harmful not for this institution but for the legal fraternity as well, as a whole and the destructive consequences would be borne by all the important segments, of the society in future.
Before taking into consideration the law of land and judgments of foreign jurisdiction, we feel dignified to refer and rely upon the Quranic Verses. In Surah Al-Ma’idah (6th Para) Verse No. 42, which has very beautifully laid down the rule of recusal. The text is:
The English translation of above Verse of Surah Al-Maidah by Muhammad Farooq-i-Azam Malik, of the Institute of Islamic Knowledge Houston, Texus, U.S.A and translation by M. Asad published by Daral Andaulus, Gibraltar is as under:
"Therefore, if they come to you with their cases, you may judge between them or refuse to do so. Even if you refuse, they will not be able to harm you the least, but if you do act as a judge, judge between them with fairness, for Allah loves those who judge with fairness."
"Hence, if they come to thee (for judgment), thou mayest either judge between them or leave them alone; for, if thou leave them alone, they cannot harm thee in any way. But if thou dost judge, judge between them with equity: verily, God knows those who act equitably."
From the above Quranic Verse, it is the will, wish and choice of the judge to accept the case for imparting justice between the parties or to recuse himself from adjudicating the dispute.
From this verse, a litigant has not been granted a right to ask the judge to recuse himself. In a given case, it is the option of the judge to entertain it or to decline its admission with himself to administer justice between the parties of that case. If a litigant does not feel justice to be done from a judge, he must not place his case before the Judge. When the case is placed before a judge by a litigant, thereafter the litigant cannot ask the judge to recuse himself. The presentation of a case for decision before a judge presupposes that he believes the judge able in all respect to deliver justice. It would be contemptuous act of a litigant to present his case for adjudication and then ask the judge to decline to decide it. When a case is proffered before a judge, in that event, the right to ask the judge to recuse himself is lost by the litigant because he has already accepted his authority, valid appointment, competency to administer justice, and with the belief of his independence. He is presupposed to have believed the judge to be a judge a person of integrity.
Before any finding is rendered upon this subject, it is necessary to consider the definition of Recusal and its applicability to the facts of this case. The Recusal has been defined in Black's Law Dictionary, (Seventh Edition) in column IInd at page 1281 as:--
"Removal of oneself as judge or policy-maker in a particular manner, esp. because of a conflict of interest."
While precusation has been given the meaning of:-
"1. Civil Law. An objection, exception, or appeal; esp., an objection alleging a judge's prejudice or conflict of interest.
Recusal."
It is important to note that recusal has not been defined with the concept of ineligibility or in-competency of a judge to dispense justice. In other words, the Judge is considered competent and no question of validity or constitutionality of his appointment is in dispute. It is only the conflict of interest or prejudices, which may arise and hamper the free and fair delivery of justice for which recusal is being sought.
Seen from another angle, no prudent man can ask a person to decide the validity and constitutionality of his own appointment to an office, post or on a seat occupied by him, as it shall be a decision not appealing to reason and acceptable to the person seeking such decision, in case it is decided by that incumbent in his own favour. Accordingly, recusal being prayed on the ground of PCO Judges being invalidly and unconstitutionally appointed, is not maintainable and is a fallacious and vicious prayer itself.
From the definition, even taken from the Black's Law Dictionary, it is apparent that it is the decision of the judge to recuse himself, when he feels that there is possibility of conflict of interest or prejudice which would be caused to a party of the case in his participation or in the decision of that case. It is the decision of the judge to gauge as to there is conflict of interest or not, and that by making decision in a lis, his inclination or bent of mind would not take him to such an extent, as to be on one side and that it would be creative of such a mind, so as to cause imbalance in the scale of justice, thereby prejudicing the case of a party without giving fair decision on it.
Supreme Court being the apex Court of the judicial hierarchy of the country, there being no other Court except the Court of Almighty Allah, how in such a situation, a litigant can ask the Supreme Court to avoid the delivery of judgment after having offered his lis, for doing the justice to it?
CASE LAW FROM PAKISTAN
In PLD 1989 S.C. 689 at page 741(w) (Federation of Pakistan v. Muhammad Akram Sheikh) it was held, "It is for the Judges concerned (and not the rest of the Judges in the Bench) to decide in their judicious sagacity and wisdom whether they may participate in the proceedings in question".
CASE LAW FROM FOREIGN JURISDICTION
In Public Utilities Commission v. Pollak (343 us 451 + 95 L ed 1068), "it was held that when the judges believed that some unconscious feelings might operate in the ultimate judgment, the judges might recuse themselves".
In R v. Gough (1993) 2 All ER it was observed:
"it is the feeling of the judge to judge as to whether his feelings would be so strongly engaged as to victimize the party in making unfairly in the decision of the controversy due to some prejudice. In such a situation, the judge may recuse himself and not to participate in the judicial judgments."
(2) PCO JUDGES
This term has been invented when a Provisional Constitution Order was enforced by a brutal force, by deviating from constitutional provisions and taking extra constitutional steps. We are not concerned at this stage as to the reasons, grounds and causes, which had taken place on 3rd of November 2007, particularly in the presence of Tikka Muhammad Iqbal Khan’s case. This case has now closed the chapter of this unhappy event of past history and has made an attempt to save the judicial institutions of the country to take steps forward, instead of beating about the bush. But we have taken this aspect with another angle in this case, which has necessitated this discourse and is required to be noted by all the concerned stakeholders. The proclamation of emergency, enforcement of Provisional Constitution Order I of 2007 and the issuance of an order in the form of the Oath of Office (Judges) Order, 2007, were not enforced upon the advice of the PCO Judges. No advice was delivered by the PCO Judges and no assistance was provided by these Judges to the military force to do such acts. The above noted steps were admittedly taken by a military General which were extra constitutional. Due to these extra constitutional steps, a vacuum was created in the working of judicial functions alongwith judiciary itself. After these steps were taken, some of the Judges were invited to take oath, out of whom a small negligible number of Judges had declined to take oath, while the other Judges were not invited and offered the oath. The Judges who were offered and invited to take oath were in an enigma as to take or to refuse the oath. In case of refusal, the judicial institution was to suffer greatest harm and its fabric which was woven in a period of more than 150 years, was to collapse completely. In the event of refusal to take the oath, it was expected that this judicial institution might be occupied by such persons who had no knowledge and expertise of delivering justice. There were many other considerations also in their mind. To save the judicial institution, to create hindrance and to prevent the spreading of chaos in the country, for the better interest of this institution and for the whole betterment of the citizens of Pakistan, it was decided that the offer of oath might not be declined. With this aim and purpose, and to put the derailed wagons on the track of the rails (as stated by Mr. Ahmed Raza Khan Kasuri), sincere, innocent and serious thoughts were given to the problem by majority of judges, who had thereafter decided to take oath so as to save the interest of country and the Constitution from being destroyed further. These actions and the others were to be appreciated rather than to be deprecated. As pointed out by Mr. Ahmed Raza Kasuri, it were the efforts of these PCO Judges who had tamed the jungle loin by their wisdom. The judges, who are now being named as PCO Judges are in fact, the saviour of judicial institution and system, the main organ of the State and the interest of the litigant public at large. The citizen of Pakistan have been rescued from being pushed into chaotic environmental situation where law of jungle was to prevail in case these judges had not used their gumption of accepting the offer. It may be noted that when the guns are roaring, force of pen is silent, when guns are silent, voice of pen is brightened. The use of pen in given circumstances, without wisdom is nothing but destruction.
Let it be noted that these P.C.O. Judges had never been a hurdle or obstacle in the campaign launched for the restoration of those brother judges who either declined to take oath or were not administered the same.
The example has been set up by these PCO Judges, when they had welcomed those Hon'ble judges to take their previous positions in the judicial system. It was, therefore, a matter of two different thoughts to achieve the same goal of saving the judicial institution and system, for which no one can be blamed. It is a very sorrowful state of affair that a learned counsel of such a stature, namely Mr. A.K. Dogar has uttered these words of "faithless, law breakers and dishonest" persons. Before arguing the case on this premises, Mr. A.K. Dogar must have given thought, time and again to this aspect of the case and should not have been swayed by the street slogans and should have avoided to utter these words even upon the instructions of his cliental, particularly when the transitional period was got immediately wrapped up by the efforts of these P.C.O. Judges from General Pervaiz Musharraf. If one set of judges had stood up for upholding the flag of independence of judiciary, the other was defending the fort of judiciary from being intruded from the aliens to this complexity of judicial system, although task was different but the goal was one.
The stand and the plea taken by Mr. A.K. Dogar although upon the instructions of his clientele, was destructive of the sanctity of this judicial institution. He was unmindful that this plea was being raised when the judiciary and its judicial institutions were working in a complete harmony, unity and delivering justice with its purity of thoughts, without bias and without prejudice to any one. The smooth working of the judicial functions of the judiciary was also disturbed by Mr. A.K. Dogar upon raising this plea of enormously destructive nature regarding this judicial institution. It may be remembered that this magnificent building of justice is constructed upon the belief of its honesty and sanctity. If this image is damaged, then no one will be ready to accept the judgments which are delivered by these judicial institutions. Anarchy and chaos would prevail within the citizens of the country. When judgments of Courts are not accepted, submission and surrender to it is not performed, in that event, street and mob justice is invited, to become the rule of the day. Judgments require yielding of one’s will and wish, without murmuring and grumbling. If any party is grouched, it may approach to the higher Court in accordance with law, and not to become judge himself so as to drag the judgment in the street for mob and street justice. Judicial institutions, judges and their judgments, require veneration and obeisance. If a judge is corrupt, his removal can be attempted through lawful means and manners as prescribed by law. But to malign judges, to impute dishonesty and to utter allegation of their being faithless, and law breakers are the words of gravest contempt. The use of derogatory language for the judiciary is a conspiracy to destroy the sacred temple of justice, which would tumble down its structure and there would be none in that event, to reconstruct it.
Learned Advocates and the legal fraternity in general is, in fact, the custodian and preserver of the dignity, independence and sanctity of this judicial institution. It must be remembered that their own respect and reverence is attached with the sanctity and reverence of this judicial institution. If a fraction of the legal fraternity is out to disfigure the face of this scared institution or to annihilate its image of impartiality, sacredness, sanctity and independence, none would be there to save them and this institution.
With these words and sentences, we desire and expect that the learned Advocates appearing in the cases, would observe this direction in future, because they are officers of the Court and are saddled with the duty of upholding its dignity and independence.
(3) BIASS
"by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine" is doubtless beyond achievement."
"Common law (and sometimes statute) disqualifies a decision-maker from adjudicating whenever circumstances point to a real possibility that his decision may be predetermined in favour of one of the parties)"
"The principle expressed in the maxim nemo iudex in sua causa (no one should be a judge in his own cause) refers not only to the fact that no one shall adjudicate his own cause; it also refers to the fact that no one should adjudicate a matter in which he has a conflicting interest."
"first, where an adjudicator has either a direct pecuniary or proprietary interest in the outcome of the matter, or can otherwise by reason of a direct personal interest be regarded as being a party to the action, and second, where either by reason of a different form of interest or by reason of his conduct or behaviour there is a `real danger’ of bias on his part. In the former category an automatic, and irrebuttable, presumption of bias is raised, in the latter category the test for apparent bias is satisfied."
[2005] UKPC 12; (vi) AWG Group v. Morrison [2006] 1 All ER 967; [2006] EWCA Civ 6; and (vii) Gillies (AP) Secretary of State for Work and Pensions [2006] UKHL 2.
Learned counsel also has referred American Law on the subject from U.S. Code Collection 455 regarding Disqualification of justice, judge or magistrate judge, The relevant para of which is reproduced through the following passage:
"where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; in private practice he has served as lawyer in the matter in controversy; he has served in governmental employment or in such capacity participated as counsel, adviser or material witness; has financial interest individually or fiduciary; has got third degree relationship with such a person; was a party to the proceedings; was acting as lawyer; a material witness in the proceedings; or known by the judge to have an interest that could be substantially affected by the outcome of the proceedings."
These were the qualifications enumerated by the aforementioned U.S. Code Collection for disqualifying a judge, justice or judge magistrate.
He has also relied upon two cases from Indian jurisdiction reported in AIR 1959 S.C.1376 (Gullapalli Negeswararao etc. v. The State of Andhra Pradesh and others) and AIR 1987 S.C. 2386 (Ranjit Thakur v. Union of India and others. In the former judgment, it was held that “no man shall be a judge in his own cause; justice should not only be done but manifestly and undoubtedly seem to be done; if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias be assumed to exist, he ought not take part in the decision or sit on the tribunal”. While in the latter judgment test of likelihood of bias was noted as follows:
"tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “am I biased?"; but to look at the mind of the party before him. (underlining is provided by us)
Two more judgments on which the learned counsel has placed reliance are as follows:
(i) Bhajan Lal v. Jindal Strips Ltd. (1994 SCC (6) 19 JT 1994 (5) 254;
(ii) 1994 SCALE (3) 703
It was held in those judgments that in the case of non-pecuniary bias, regard was to be had to the extent and nature of interest. It was observed in those cases that the judge had to satisfy himself to this fact that there was a real likelihood of bias. `Real likelihood of bias' is how to be determined, the test was also provided in those judgments. It was found that "real likelihood" depended on the impression which the Court would get from the circumstances in which the justices were sitting. Bias should be based on reasonable suspicion.
Learned counsel has also placed reliance upon the judgments pronounced by Pakistani Courts. In Ghulam Rasul and others v. Crown (PLD 1951 F.C. 62) Federal Court observed as under:
"Nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial. It is essential that justice must not only be done but must manifestly be seen to be done."
And so the case of Federation of Pakistan vs. Muhammad Akram Sheikh (PLD 1989 S.C. 689), which judgment is a landmark judgment on the subject of principles, applicability and exceptions of Bias.
We have also found some observations in para 31 of that judgment which are beautifully worded and demonstrate the present scenario of our passions and feelings which are reproduced as follows:
"31. Courts are indeed a storm centre facing the panoply of human problems, crowded dockets and unrelenting work schedules. Justice Oliver Wendell Holmes said: “We are quiet here but it is the quiet of a storm centre."
In Justice Benjamin Cardozo's memorable words, "the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by". We should only add that the judges must remain unruffled and calm in the midst of contending forces. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak16; "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. With this we leave." (emphasis supplied by us)".
"... the proper test is whether fair minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case ......" (Underling provided by us).
Although the whole judgment of PLD 1989 S.C. 689 has beautifully assimilated the case law and principle governing bias and the guidance was provided in it as to when a judge was not to take part in the adjudication of a case, yet in the same judgment the circumstances for applicability of principle that no man can be judge in his own cause” were also noted. In it, rule of exception due to necessity was also narrated. In that judgment, in the exception part, it was held that the judge was to decide as to whether the party was not resorting to a device with an ulterior motive, so as to prevent him (the judge) from sitting on the Bench while dealing in a particular case. It was also ruled that the decision of allegation of bias was the prerogative of the judges concerned to decide it in their judicial sagacity and wisdom as to sit or not to sit on the Bench.
Judgment in the case of Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 S.C. 161) has also been cited by Mr. Muhammad Akram Sheikh, in which objection raised against some of the judges sitting on the Bench was that they had previously participated in other legal proceedings against the same person. But in the aforementioned judgment, it was also held as under:-
"Mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follow necessarily therefrom. On no weak ground can any person be permitted to attack the impartiality of the superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt". (underlining is ours)
But in the same judgment in para 25, the following exception has been found:
In other words, the principle is well settled that a judge of the superior Court is blessed with a judicial conscience. It is for him to decide to hear or not to hear a matter before him." (underlining is ours)
Upon the strength of above noted authorities and the principles laid down in those judgments, learned counsel Mr. Muhammad Akram Sheikh has prayed that the present Bench may not hear the case.
In reply to the arguments, Mr. Ahmed Raza Qasuri, has stated that the present Judges were not privy to the action of deposing of the judges. Qualifications and disqualifications of the judges are not involved in the present case, so the rule that no one can be Judge in his own cause”, cannot be applied to the present case. As regards the purpose of oath as provided by Article 178 of the Constitution, the crux of the oath is not to allow any personal interest to influence the official duty and conduct or the decisions. Judges come from this environmental set up. They should not be disturbed with contemptuous language. If bias is alleged against the present Judges, then the perception can arise in the mind of the respondents against those judges who are being selected by the petitioners. Frivolous petitions have been filed so as to malign the Judges. Cases of political nature must not be brought before this Court and must be resolved in the Parliament.
We have examined the question of bias in detail in accordance with the facts of the case as well as the case law on the subject. This is an apex Court of the country, against the decision of which no appeal or revision can be filed before any other Court. The judgments of this Court are the final decisions of the judiciary. If the judges of this Court are imputed bias, there will be no end to chaos. Judges of this Court cannot be swayed by cheap and petty slogans and attributions of frivolous nature. They are assessors of their own conscience, as they knew that they are answerable to the Allah Almighty. Why they should feel bias in favour of any one? When they are not involved in any referred to incident, which has already become a past and closed transaction. There are no reasons and grounds to possess the bias against petitioners and their candidate. As earlier pointed out, the present Judges cannot be called as PCO Judges because they are holding this office of highest reverence under the oath prescribed by Article 178 of the Constitution through Sixth Schedule of the present Constitution. After having taken oath under the Constitution, they are constitutional Judges. They are working as such. Their work itself display the smooth working of the judiciary under the Constitution. Therefore, there is nothing in their mind to feel prejudice and bias against the petitioners or their candidate on this basis.
It is very strange and amazing argument, not appealing to reason that 16 judges out of 20 are biased according to the version of the petitioners. Ex-facie this is a frivolous version adopted by the petitioners because if the above mentioned number of judges were biased as against them, why then civil petitions for leave to appeal were filed by them on 25.6.2008, when all the Judges at that time were holding the office of Judges of the Supreme Court as such? Why the application of bias was not moved alongwith the civil petitions? It may be pointed out here that the reference to our four respectful brother judges, by these petitioners is, in fact, politically motivated and generated version with ulterior purposes, which trend has to be curbed by this highest Court of this country. It may be noted that in the application for recusal, petitioners have iterated the version of their leader. In the text of the petition, it was alleged by them, that their leader was not acknowledging the status and valid appointment of these Judges, if it was so, then why the petitioners had come to this Court and had filed these petitions? It appears, and is evident from the above noted filing of the petitions and the adopted version that the aim and object of the petitioner was not to obtain decision on the merits of the case, as they were fully aware regarding the weaknesses of their case. Their desire and design was only to malign the character of judges and to defame this highest judicial institution with the imputation of partiality. It was, therefore, that the present petitioners, when the case was commenced for hearing, had filed the petition for recusal, which was presented by them after passage of near about 5 months and much stress was laid by them to decide this application first, so that they might be able to create fuss, upon the rejection of their petitions. They had not come to argue the cases to this Court for obtaining the decision of their cases on merits. The filing of CPLAs by these petitioners, the proposer and seconder, without any petition being filed by the candidate himself, in the case was only an overdoing with a prior knowledge that their candidate was not prepared to approach this Court, and that he was not acknowledging the status and was not ready to accept the decision of this Court. In any case, with the filing of these petitions of recusal, this stratagem and design was manifested with much clarity. From this narration, one can easily judge the intention of these petitioners, who had approached this Court for creation of division, bifurcation, disunity amongst the judges of this Court, attribution of dishonesty and arousing of feelings of abhorrence against this institution. Their purpose was only to abuse the judges and the Court by filing these petitions through far-fledged past events, having no nexus or any link with the making of decision of their cases.
It must be kept in mind that the Judges of this Court cannot yield to any temptation and allurement. They are the final adjudicators of the law of the land and their wrong interpretation of law has got far-reaching repercussions on the whole set up and judicial system, as they are minarets of law for the subordinate judiciary to follow it in their judicial cases. Their age, judicial experience and training does not allow them to decide the case without keeping its merits in mind.
To impute bias is an easy task but to prove its truth is most difficult job. Judges of the highest, and apex Court cannot be an easy prey to the pressures of any political party or any other highest authority. Their impartiality and independence lies in their encouragement to dispense fearless, temptless and pressure less justice. They are cognizant of their stature and status. To play with their independence, with unfounded perceptions is nothing but the distortion of real facts, which must not be allowed to prevail and to preoccupy the mind of any person, otherwise this trend would destroy the whole image of independence of judiciary.
Before deciding this case, we have been continuously posing questions to our innerselves as to whether we feel prejudice against a party to the case or have got any leaning in favour of the other. The answer in our mind and from our conscience was in the negative. By giving a thought to it, we felt that the other judges were to be imputed and would be facing with the same allegations and situation as they were also sailing in the same boat and the petitioners and their learned counsel had undistinguishably maligned all the judges in the same fashion and no one was left with any exception to it. Therefore, we decided to adjudicate this case.
It is interesting that still the civil petitions were not registered by the Registrar office. Instead of pressing the application containing prayer for registration, much stress was laid down upon the decision on the recusal petitions which gave way to the impression that petitioners were not serious to obtain decision on merits but had come to this Court to achieve some ulterior motive and objectives best known to them. When the petitioners were cognizant that their candidate was not acknowledging the status of this Court as a Court and they were also adopting and toeing the same line, then what was the fun to approach this Court? The answer was visible when arguments were addressed and merits of the case were adjudged. The absence of the candidate in whole of the proceedings was also supportive in raising this presumption of fact.
What is bias, and what are its determinative factors? It is defined in Black's Law Dictionary, 7th Edition, by Brayan A. Garner with others; as"--
`Bias' "inclination; prejudice < the juror's bias prompted a challenge for cause>. - bias, vb. - biased, adj. judicial bias. Bias that a judge develops during a trial. Judicial bias is usu. Insufficient to justify disqualifying a judge from presiding over a case. To justify disqualification or recusal, the judge's bias usu. Must be personal or based on some extrajudicial reason."
In PLD 2001 S.C. 568 (Asif Ali Zardari and another v. The State) description, kinds and test of bias have been exhaustively dealt with, and with clarity expounded. It has been noted in the aforesaid judgment at page 587 that "bias" is synonymous with "partiality" and strictly to be distinguished from "prejudice". Under particular circumstances, the word has been described as a condition of mind; and has been held to refer not to views entertained regarding a particular subject matter, but to the mental attitude or disposition toward or disposition towards a particular person and to cover all varieties of personal hostility or prejudice against him.
While providing description of bias in that, it was held:- "accused having a right of fair trial by a judicial minded person, not functioning under an influence which might paralyze mind to result in absence of a fair trial. The bias is in fact based on the principle of Latin maxim "Nemo Debet Esse Judex in propria sua causa" meaning thereby that no one can be judge in his own cause.
Bias in our estimation is:--
"A state of mind of an adjudicator, having predetermined feeling, inclination, passion or leaning, liking or disliking, prejudicial or adverse to any party or to the subject matter involved in a lis, due to pecuniary or any other interest, based on relationship, friendship or having any intimacy with any party of the case, so as to make decision of the lis in favour of any party or particular person, without adjudging the merits of the case in a fair and balanced manner."
"One of a judge/arbitrator/juror, who is predetermined to decide the lis in favour of one party before the hearing of the case due to extraneous reasons; and
The other arriving to a conclusion during the hearing of a case.
The former can be called bias, while the latter would be assessment process of the merits, culminating into a decision of the case.
To our mind, causes may be manifold. It may be based on the pecuniary interest of a judge involved in the case, the inclination of a judge in favour of a party; may be based on the ground of relationship, intimacy towards any party, there may be a close relative or an intimate friend. There may be a case where judge has got fiduciary relationship with any party in the case. There may be a case of a judge who had been a member of a political party. There may be a case where a judge might have remained an advocate of any party to the lis, he might have been an arbitrator, referee, or conciliator in the subject matter for any party to the case. He might have developed hatred to a party due to the acts and demeanor of a party before filing of the petition. All the reasons and kinds cannot be completely encompassed through this narration which may give rise to bias and be the example in procreation of bias in the mind of a judge. But it is hard and real fact that we all the judges of this Bench have got no such feelings, links or relations with any party to the proceedings as noted above. There is no apparent or latent reason to lean in favour of one or to be against the other. If one political party has got its own stand or stance, it has nothing to do with the working of this Court and upon its decision. As noted under the heading of "recusal", all the present judges are constitutional judges and having taken oath under the Constitution are bound to administer and deliver justice in accordance with the Constitution and the law of the land. Their faculty of approach cannot be considered to be effected by any stretch of imagination to be in favour of anyone due to the stand/stance taken by any political party in this country.
It is worth mentioning that a judge once appointed in the superior Court has got sufficient security/guarantee in the Constitution, not to be removed or dismissed unless through the decision of Supreme Judicial Council constituted under the Constitution. Therefore, these guarantees and safety measures particularly in a democratic step up, are sufficient to protect and guard the interests of judges of the superior Courts to impart justice without fear and favour, and without being influenced by the parties stand in the streets.
In 2003 SCMR 104 (Government of NWFP through its Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others) at page 110, test was provided by the Hon'ble Judges of this Court, "where a litigant could reasonably apprehend that a bias might have operated against him" (emphasis through underlining has been provided by us). In PLD 2001 S.C. 568 (Asif Ali Zardari and another v. The State) the word "real likelihood is the apprehension of a reasonable man, apprise of the facts and not suspicion of fools or "capricious persons". It has also been noted in that judgment that judges of superior Courts are blessed with judicious conscience". Accordingly, the real test to adjudge bias is to examine and analyse the facts narrated and stand taken by a party as to whether in the given circumstances a reasonable and prudent man would feel that the "Bias" in the mind of judge was available or not? In the present case, it is evident and established that all judges of this Court are constitutional judges and the issue of P.C.O. has become a past and closed transaction. There is, therefore, no reason to feel "Bias" by a reasonable prudent man in such circumstances.
According to Administrative Law by HWR Wade - Third Edition - published by Clarenda Press Oxford, at page 176, it has been noted that "justice should not only be done but should manifestly and undoubtedly be seen to be done. Nevertheless, a line has to be drawn between genuine and fanciful cases." (emphasis is provided by us). It was further provided at another place, where the words are material to be noted which are:-
"A Court of appeal has protested against the tendency to impeach judicial decisions upon the flimsiest pretext bias, and against the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done". (Underling is provided by us).
In the case reported as The Queen v. Burton ex parte Young [1897] QBD 468 it was argued that if any pecuniary interest was in existence, it would be sufficient to cause disqualification. A pecuniary loss or interest might be small one.
But the above noted case is not applicable to the present case because admittedly in the present case, judges have got no pecuniary interest in the matter or related to any party.
The case of Locabail (UK) Ltd. V. Bayfield Properties (2000 1 All ER 65) relied upon by both the parties, had laid down the principles and guidelines with regard to judicial bias. It was held that when there was a real danger of possibility of bias on the part of a judicial decision maker, the judge might recuse himself from the case. It was held that the circumstances were to be considered of each case but in the aforesaid case, it was also held that where the objection was wrongly made, the judge was not to yield to a tenuous or frivolous objection. (Underlining is ours).
The crux which has been deduced from the above referred judgments, is that there must be a real danger of possibility of bias. It may be due to conflict of interest, pecuniary or of any other kind. But the judge would not recuse himself on the basis of alleged bias upon the frivolous objections, having no substance, having no possibility of bias to happen, having no likelihood of real danger of bias to strike in the mind of a party and having no reasonable cause to exist. The remonstration against the judge in any of the above mentioned situations hearing the case is nothing but a frivolous attempt to restrain a judge to perform his duties of adjudication of cases, which can not be allowed to hamper the administration of justice. Emphasis was, therefore, laid on the word "real danger" in the cases.
In the case of The Queen v. Australian Stevedoring (88 CLR 100 from the High Court of Australia, it was held that there must be strong grounds for holding bias against the judicial or quasi judicial officer. The bias must be “real” with the result that a substantial distrust must result and exist in the minds of the reasonable persons. It was also held that "preconceived opinions" though it is unfortunate that a judge should have any "do not constitute such a bias nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.
In this case also, it was held that there must be "real bias".
In the case of Public Utilities Commission of the District of Columbia v. Franklin S. Pollak and Guy Martin (343 US 451 + 95 L ed 1068) it was would that a judge would not participate in a decision when there was a ground for believing that such unconscious feelings might operate in the ultimate judgment or might fairly lead others to believe that they were operating in the judgments, in such case judges might recuse themselves.
In R v. Gough (1993) 2 All ER 724 the test provided for real danger of bias on the part of concerned member of the Tribunal in question was in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration by him.
In the recent case of 2001 from the Supreme Court of United States in Richard B. Cheney, Vice President of the United States, ET. AL. v. United States District Court for the District of Columbia ET AL., it was held “the decision whether a judge/judges impartiality can "reasonably be questioned" is to be made in the light of the facts as they existed, and not as they were surmised or reported. Mr. Justice Scalia refused to recuse because he held that in the Courts below, a judge could recuse to be replaced by another judge and the case would proceed normally. But in the Supreme Court he considered it in a different consequence by holding that in case of recusal for the remaining eight justices, in case of any division, a tie would not be there. Therefore, in the Supreme Court the case was to be held differently. (underlining is ours).
It may be noted, that the present case is akin to the above noted case, where all the judges have been considered by the petitioners to be biased against their case. When such is the case, who would then hear and decide the case of the petitioners. Is it not an interesting prayer, and is it not the case wherein no decision is being wished by the party to be made by any judge of this Bench and by this Court.
What is the test to determine the existence of bias? To our mind and from the analysis of the above noted authorities, and facts, the test of bias is, the thought of a prudent/reasonable man in the given circumstances of a case. If a prudent man considers the facts and circumstances of a case demonstrating and to be creative of bias in the mind of a judge and the real danger of having no fair trial at the hands of the aforesaid judge is apparent and existing, then the question would be relevant, otherwise it would not be allowed to work, when a person having mere apprehension on the basis of flimsy grounds, suppositional thoughts, surmises not in reality, with ulterior motives and making pretences so as not to get justice from a particular judge, with a view that he might be able to get the case transferred on that basis to the judge of his own choice or to the selective judges, there being no likelihood of bias, or there being no real danger of unfair trial and so many other reasons which cannot be exhaustively encompassed.
In the present case after hearing all the parties, we have found that in fact, there is no question of bias to take place in the hearing of the instant case. Actually, the petitioners do not possess locus standi to pursue this case, therefore, to procrastinate its prompt decision and to get transfer of it to the "judges of their own choice", a hypothical danger of bias has been invented and presented, otherwise there is no likelihood of bias to prevail in the decision.
Interestingly and astonishingly, it has been noticed that in the case of Mian Muhammad Shahbaz Sharif, the brother of the candidate and also a prominent leader of PML (N) with similar view point, not to get hearing of the case from PCO Judges, no such application for bias or recusal was filed in his case. Accordingly, this prayer of petitioners is dismissed.
(4) LOCUS STANDI
"Qualification" The possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or to perform a public duty or function."
Disqualification:- The act of making ineligible; the fact or condition of being ineligible."
From the above noted definition, it is evident that qualifications and disqualifications are the inherent, personal, capabilities, abilities, qualities and disabilities of a person which are best known to that person. The keys of gate of this secret room lie with that person. Other person cannot gauge it or disclose those secrets other than the person himself or unless instructed properly and completely by him to his representatives and agents. All these are the personal rights, inherent and possessed by that person himself. Dispute regarding the right of the person concerned from being a member of Assembly is in the nature of private rights of two persons to the same office vide PLD 1970 S.C. 98 at page 113 (Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore) which judgment was affirmed by this Court in the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 S.C. 52) at page 62.
It is an admitted fact that proposer and seconder are not claiming their status as agents or representatives of Mian Muhammad Nawaz Sharif in the case in hand. They had not filed applications under Order I Rule 10 CPC before the Lahore High Court, Lahore in such capacity. They are claiming an independent right vesting in them to defend the candidature of Mian Muhammad Nawaz Sharif. In such a situation, when the candidate himself is not coming forward to defend his qualifications and disqualifications, which are personal and inherent with that person, how the proposer and seconder can claim an independent right to appear and to defend such a candidate when the candidate himself is not prepared and ready to safeguard his qualifications and to oppose his alleged disqualifications, who has got a legal right to assert, dispute and defend? The proposer and seconder cannot claim an independent right to defend him, when they are not agent or representatives of the candidate, because due to failure of Mian Muhammad Nawaz Sharif to dispute and challenge those findings, those are considered to have been correctly and rightly been possessed by him. Proposer and Seconder cannot act against the will and wish of a candidate with regard to his acceptance of qualifications and disqualifications, as those proceedings shall be antagonist to his interest.
After the proposer and seconder recommend a candidate, consent of the candidate becomes necessary for the contest of the seat of the assembly. If the candidate does not give his consent, the recommendations of the proposer and seconder become a futile exercise. They can not compel a person, to whom they have recommended, to become a candidate unless the consent of that candidate is given. In other words, proposer and seconder are only recommendees and their recommendations would ripen into a tasteful fruit when the candidate gives consent. To amplify it, one can state that their recommendations are dependent upon the choice and will of candidate, which right of candidate is an independent right who may or may not exercise it by giving consent or by declining to accept those recommendations to become a candidate. After the recommendations are made, this dependent right is merged into an independent right vested in the candidate. The dependent right looses its significance and existence thereafter and the independent right of candidate comes and appears on the surface.
It is material to note that the proposer and the seconder does not figure thereafter in the whole election process. After the nomination papers are accepted or rejected, it is for the candidate to withdraw or to retire from the election. In such an event, the proposer and seconder can not force the candidate to contest the election by or through any legal proceedings. This logic itself shows that after the recommendations are made by the proposer and seconder, they have got no right to ask the candidate legally to remain in the contest. In the present case, the decision of candidate not to defend his qualifications and disqualifications, and not to contest the election, goes a long way to establish this fact that the candidate is not interested to remain in the field of contest or be a candidate for the proposed seat any more, otherwise he would have appeared at least before this Court. In such a situation, the proposer and seconder have no independent right to file this petition for impleadment in the writ petition and through civil petition in this Court. In 1994 CLC (AJ&K) 1108 (Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others), elector was declared not to be an aggrieved person, therefore, not competent to file writ petition on behalf of a deseated candidate.
It is important to have a cursory look at the provision of sub-section (5) of Section 14 of the Act, by which the right to appeal against the order of acceptance or rejection of nomination paper, by the Returning Officer has been conferred upon the candidate and not upon any proposer or seconder or on any other person. This shows the imposition of limitation and restraint upon the right of proposer and seconder, after the recommendations and scrutiny, by not permitting them thereafter, to pursue the election proceedings any further.
Mr. Muhammad Akram Sheikh, has brought a novel concept of trust to be made applicable to the facts and circumstances of the case, to support the locus standi of Mehr Zafar Iqbal and Shakeel Baig, the proposer and seconder. The following arguments have been addressed by the learned counsel with his assistants:--
(i) The nature of public office is like a trust. In the words of Mr. Muhammad Akram Sheikh “public office has been held since long to be in the nature of a public trust. The beneficiary of this trust is the electorate and the holder of public office is a trustee”. He has placed reliance on the case of Yaselli v. Goof et al. reported in 12 F.2D 396 from volume 35 of Words and Phrases, Permanent Edition. According to the learned counsel this definition has been found therein:-
"Every public office is created in the interest and for the benefit of the people."
Referring to American Jurisprudence, Second Edition, published by Lawyers Cooperative Publishing Aqueduct Building Rochester, New York, learned counsel has submitted as follows:
"Every public office is created in the interest and for the benefit of the people and belongs to them, thus a public office is a public agency or trust created in the interest and for the benefit of the people. Such trust extends to all matters within the range of the duties pertaining to the office."
He has also referred to page 331, Words and Phrases, Permanent Edition, Volume 42-A of the above referred book, wherein public office has been defined as under:
"Public office is a public "trust" and the performance of the trust may not be farmed out or delegated to one, not chosen directly or indirectly by the citizens, and delegation, if any, can be only on the permission of the legislative body which established the trust."
"... it is not strictly speaking a Holder of office (not yet) and is a nominee for holder of office. It has even been held that a nominee is also a quasi-public office."
He has also referred to the case of Supreme Court of Alabama, (State of Alabama ex rel. W.E. Norrell, Jr. v. Fred KEY. 4 Div. 185 (276 Ala.524, 165 So.2d 76) wherein it was observed that "The holder of a certificate of nomination has the status of a quasi-officer."
In fact, the learned counsel has attempted to display that the holder of certificate of nomination, attains the status of a quasi officer. To say in different manner, learned counsel wants to impress upon us that after the nomination papers of Mian Muhammad Nawaz Sharif were accepted by the Returning Officer, he had become a quasi public officer. Referring to page 24 para 16 of the case of Chairman RTA v. Mutual Insurance (PLD 1991 S.C.14), learned counsel has relied upon this sentence "A public office is a public agency or trust created in the interest and for the benefit of the people and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people."
He has referred to judgment in the case of Maqbool Ahmed Qureshi v. Pakistan (PLD 1991 S.C. 484 from page 501) in which it was held that "Offices which are regarded as sacred trust are to be passed on to those who are entitled thereto Amanat (Trusts) includes the offices of the Government.
As per learned counsel, the proposer and the seconder are not bound to prove their locus standi because they are defending the case as a shield and not filing, instituting or using it as a sword, which does not require the same rights as are necessary for a candidate. Referring to 1991 SCMR 2883 (Ardeshir Cowasjee v. KBCA), learned counsel submits that "the concept of locus standi has been whittled down inasmuch as the expression `sufficient interest', inter alia, includes civic or (community) environmental and cultural interests”. The meaning of a person aggrieved "may vary according to the context" to which liberal approach must be made. This concept has been presented before us by him on the basis of Halsbury's Laws of England/Administrative Law (Volume 1(1) (2001 Reissue)/4, Judicial Control/(1) The Ambit of Judicial Review/(iv). Further relies upon [1981] 2 AllER 92, Inland Revenue Comr v. National Federation and [1994] 4 All ER 329, R. v. Inspectorate of Pollution and another exparte Greenpeace.
Beneficiary has got right to defend trust. For that purpose he relies on Halsbury's Laws, Vol. 48 at page 1082 (2007 Reissue) to submit that "if no trustee is willing to institute a proper claim, the beneficiary may take proceedings for the administration of the trust by the Court and obtain an order for liberty to use the trustee's name, or for a receiver who will use the trustee's name, in the institution of a proper claim". Touche v. Metropolitan Railway Warehousing Company, (1871) L.R. 6 Ch. App.671; Parker & Mellows: The Modern Law of Trusts, AJ Oakley page 716; Fletcher v. Fletcher (1844) 4 Hare 67 and American Jurisprudence Volume 76, page 670, 671.
The candidate represents the right, obligations and aspirations of electors of a constituency. Refers to PLD 2007 S.C. 277 at page 283 A, 284 (Rana Shaukat Mahmood case) Any defect in proposer’s credentials is fatal to the candidacy of the aspirant. Rana Shaukat Mahmood's case (PLD 2007 S.C.277), Muhammad Abbas v. Returning Officer (1993 MLD 2509), Qaiser Iqbal v. Ch. Asad Raza (2002 YLR 2401), Asif Khan v. Returning Officer (2003 MLD 230), Mudassar Qayyum Nahra v. Election Tribunal (2003 MLD 1089).
The law has given proposer and seconder an integral role in the election process by rendering as disqualified a candidate, if his proposer or seconder is disqualified.
He has also given the history of nomination of candidate in the election which is not so much relevant so as to reproduce it.
Referring to H. M. Saya’s case reported in PLD 1969 S.C. 65, learned counsel submits that a person can file an appeal against an order which adversely affects a person’s an independent and well recognized right.
Right to choose is more fundamental right than any other right. Cites, American Constitutional Rights by William Carroll & Norman Smith, 1991 University Press of America at pages 705-706.
With regard to provisions of Order I Rule 10 CPC learned counsel has referred to PLD 1975 SC 463 (Islamic Republic of Pakistan v. Abdul Wali Khan), PLD 2002 SC 615 (Ghulam Ahmed Chaudhary v. Akbar Hussain) and Civil Petition 1269 of 2008 (A.H. International (Private) Ltd. V. Federation of Pakistan.).
On the basis of above addressed arguments learned counsel has tried to justify the locus standi of proposer and seconder to file an appeal, application under Order I Rule 10 CPC in Writ Petition before the Lahore High Court and Civil Petitions in this Court.
Learned counsel has also argued that in case the trustee of a trust does not file a suit with regard to the trust property, the beneficiaries can enforce the right belonging to them which action is called a derivative action.
According to Black's Law Dictionary Seventh Edition by Bryan A. Garner `derivative action' has been defined as under:
"A suit by a beneficiary of a fiduciary to enforce a right belonging to the fiduciary, a suit asserted by a shareholder on the corporation's behalf against a third party because of the corporation’s failure to take some action against the third party. Also termed derivative suit, shareholder derivative suit; stockholder derivative suit, representative action. A law suit arising from an injury to another person, such as a husband's action for loss of consortium arising from an injury to his wife caused by a third person."
But the arguments of the learned counsel have failed to convince us when it is found that still trust was not created by the occupation of that alleged seat of trust. Unless trust is completed in all respect, no beneficiary can claim any benefit from an incomplete and inchoate alleged trust.
In the case of Yaselli v. Goff et. al reported in 12 F.2D 396 it was held that a Special Assistant to Attorney General of the United States in the performance of duties was immuned from malicious prosecution, therefore, the above referred case was not applicable to the present case. It may be remembered and noted that in Pakistan, we have got codified law with the nomenclature of the Trust Act, 1882 (II of 1882), therefore, in the presence of codified law, we do not desire to load our land laws by the import of concept of others, who are not based on any codified law as are ours. We must divert our attention towards the law enacted and applicable to this Country. Section 3 of the Trust Act, 1882 has been framed in the following sentences:
"3. Interpretation clause - Expressions defined in Act IX of 1872: A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him for the benefit of another, or of another and the owner:
The person who reposes or declares the confidence is called the "author of the trust"; the person who accepts the confidence is called the "trustee" the person for whose benefit the confidence is accepted is called the "beneficiary"; the subject-matter of the trust is called "trust-property" or "trust-money"; the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the "instrument of trust";
A breach of any duty imposed on a trustee, as such by any law for the time being in force, is called a "breach of trust".
There is another provision of Section 6 which can be found in the Trust Act, 1882, which is relevant and is reproduced as under:
Creation of trust : Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee."
From the above provision of Section 6 of Trust Act, 1882, the following conditions are necessary for the creation of trust:
"A trust is created when
(a) the author of the trust indicates with reasonable certainty, by words or acts, an intention on his part to create thereby a trust;
(b) the beneficiary or beneficiaries are nominated specifically;
(c) the trust property is indicated with reasonable certainty;
(d) except in the case of a trust declared by will or when the author of the trust is himself to be the trustee, the trust property is transferred to the trustee."
Keeping in view the above definition and even the concept/definition submitted by the learned counsel, an essential ingredient of the trust is the transfer of trust property to the trustee, which would be in the instant case the "public office".
So from the above analysis, we have found that first of all there must be an electorate who shall elect, which may be called the beneficiary of the trust and the person (the candidate) must be elected or chosen by that electorate, to become a trustee and then creation of trust would be completed when public office is occupied by that trustee (the returned candidate). In whole of that process from the proposal, seconding, filing of the nomination paper, the consent of the candidate (to become a trustee) is necessary. The aforesaid candidate, "the trustee (in future) must be a qualified person and not disqualified to contest the election, and he must be prepared to give his consent for the nomination, and by filing of those nomination papers with that Returning Officer, he must be ready to contest the objections raised against him, by the opposing candidate before the Returning Officer, he must not withdraw or retire from the election, after having successfully gone this process of scrutiny from the Returning Officer, he must be prepared to contest the election and all the proceedings, to reach to the post of trust to occupy it. If he successfully completes all this process, he would become a returned candidate in consequence of election and would occupy the concerned seat of public office. He would become a public office holder (the trustee) after this exercise is complete. It can also happen that after the successful completion of all other steps of election process, on the date of holding of election, he may withdraw, retire or loose the election in the contest. In case of his defeat, he would not become a trustee, to occupy the seat. The emphasis being provided is the completion of all other steps for the creation of trust, which is a long process and which has to be successfully completed by the candidate to become a trustee of a public office. It may also be kept in view that the proposer and seconder are not the sole beneficiaries of the trust but after a candidate occupies the seat in the shape of a returned candidate, due to majority choice/will of the electorate, it is then that he would become a trustee of public office. This also shows that all the voters of the area concerned/constituency become beneficiaries collectively. No one can claim this right solely or lonely by ignoring and excluding the others, because the elected member becomes a representative of the voters/persons of the constituency, a public property.
Right of beneficiaries comes to light when a person is elected, declared returned and is notified as such and occupies the seat in consequence of that, otherwise there is no presupposed right to be claimed by any voter before the returned candidate holds the office. During the completion of election process, no case can be filed or defended for the qualifications and disqualifications of the candidate by any alleged voter, proposer and seconder before any Court of law, as it would be an amorphous right to have any recognition by any Court of law.
It may be remembered that by proposing and seconding, a candidate does not become a trustee. It is only a step towards election and during that election, the candidate is the person who has to defend his personal, inherent qualities, qualifications and disqualifications. If the candidate is not prepared to defend himself before any Tribunal and a Court of law, then no one including the proposer and the seconder can compel the candidate to contest election by defending his qualifications and disqualifications.
Mr. Justice (Retd.) Fazal Karim former Judge Supreme Court of Pakistan in his treatise on "Judicial Review of Public Actions" Volume 2, through his hard work, has beautifully quoted and explained the doctrine of locus standi, as being followed in England, doctrine of standing in America and from law of our own land under Article 199 of the Constitution. To summarize all those doctrines in America and England, we have gained impression that in England under the English Legal System, the Courts are considered as judicial arm of the Government and do not act on their own initiative. They have always reserved the right to be satisfied that the applicant had some genuine locus standi to appear before it. With the passage of time, it has now moved forward from the test of "legal right" to one of "sufficient interest" and now it has been considered in the light of right of access to justice and has become remarkably liberal particularly in public interest litigation.
In America the doctrine of standing has been found with these words:
"that cases and controversies, adverse, substantial interest and real questions are no more than trees behind which the Judges hide when they wish either to throw stones at Congress or the President or to escape from those who are urging them to do so"
"Whether a party has sufficient stake in an otherwise justifiable (that is fit for adjudication) controversy to obtain judicial resolution of that controversy is that has traditionally been referred to as the question of standing to sue."
"To satisfy the case' orcontroversy' requirement of Article III, which is the irreducible constitutional minimum' of sanding, "a plaintiff must, generally speaking, demonstrate that he has sufferedinjury in fact', that the injury is `fairly traceable' to the action of the defendant, and the injury will likely be redressed by a favourable decision."
Now we advert to our law of land, essential for filing of a petition under Article 199 of the Constitution. Analytical study of sub-article (1) can be better understood when it is kept in front. So, it is reproduced as under:--
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) On the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything his is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) On the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
From the simple reading of the above provision, it is evident that there are three main parts noted in Sub-Article (1) of Article 199 of the Constitution. Clause (a) of Sub-Article (1) of Article 199 of the Constitution has conferred jurisdiction upon the High Court with regard to writs of certiorari, mandamus and prohibition, in clause (b) habeas corpus and writ of quo warranto are provided, while in clause (c) jurisdiction to enforce the fundamental rights conferred by Chapter I of Part II of the Constitution has been invested with the High Court. All these three main divisions have got interesting commencement with the words "on the application of any aggrieved party" in clause (a), "on the application of any person" in clause (b) and in case of clause (c) the words are "on the application of any aggrieved person". According to our own view, all these words noted in clauses (a) (b) and (c) of sub-Article (1) of Article 199 of the Constitution, have got important meanings and connotations. The use of different words "any aggrieved party", "any person" and "any aggrieved person" have not been used in oblivion of their meanings and implications.
It is also interesting to note that word
"aggrieved" is noted in clauses (a) and (c) in a prefix form to the words "party" and "person" but in clause (b) word
"aggrieved" has been omitted knowingly. The use of words
"party" in clause(a) and "person" in clause (c) have been differently used. Why these different words are occurring, in all these (a), (b) and (c) divisions, there is philosophy behind it. The power and jurisdiction of certiorari, mandamus and prohibition can be initiated and commenced on the application of any aggrieved party'. Wordsaggrieved' and
`party' are significant, the meaning of which are to be unearthed from the Black's
Law Dictionary, an authentic Dictionary providing the definitions of legal words and terms. "Aggrieved party" at page 1144 is defined as:-
"A party whose personal pecuniary, or property rights have been adversely affected by another person’s actions or by a Court's decree or judgment."
While word "party" has been noted with the following meanings:
"Party. 1. One who takes part in a transaction ."
"2. One by or against or against whom a lawsuit is brought ."
Vide 1970 SCMR 681 (Yousuf Ali V. Fazal M. Malik and 3 others), it was held that a person who was not party before the Tribunals below could not claim right to be impleaded as party in the writ proceedings.
1994 CLC (AJ&K) 1108 (Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others), is the case wherein elector was not permitted to maintain constitutional petition on behalf of deseated member who had not filed that petition himself.
In 1994 CLC (Lahore) 2318 (Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others) it was observed as under:
"Constitutional petition can be filed only by a person aggrieved--Relief granted must be in relation to grievance of said aggrieved person and not the grievance of any third person---)."
Vide also PLD 1998 Karachi 189 (Percy Robinson and others v. Reverend Bashir Jiwan and others) and PLD 2008 S.C. 30 (Jamat-e-Islami through Amir and others v. Federation of Pakistan and others)
It is material for obtaining writ of prohibition, mandamus and certiorari that the party which is seeking the relief under clause (a) of sub-article (1) of Article 199 of the Constitution must be an "aggrieved party". If party applying is not interested in the performance of any act which may be in the nature of declaring, prohibiting or issuing direction, in that case that party would have no right to file the application under clause (a) of sub-article (1) of Article 199 of the Constitution. The word "aggrieved" has presupposed grievance to the party concerned. Therefore, if a person was party to the proceedings before any authority, tribunal, officer or Court, but afterward, he had got no grievance to file or defend the writ petition, it would not be competent to file writ of certiorari, mandamus or prohibition, as the case may be, by any other person, than the person who was party to that proceedings. To say in other words, a party must establish that he was aggrieved from the proceedings taken by the person performing functions in connection with the affairs of the Federation, Province or Local Authority or was refraining from doing anything which he was required by law to do and doing a thing which was not permitted by law to be done.
In sub-clause (ii) of clause (a) of sub-article (1) of Article 199 of the Constitution, a declaration can be sought by a party who is aggrieved by an act or proceeding taken by a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority, if that act done was without lawful authority and of no legal effect. This declaration also requires the party applying under Article 199 of the Constitution to satisfy the Court that he was aggrieved by that act or proceeding referred to above, otherwise he would not be granted any relief of writ of mandamus, prohibition or certiorari. In the present case, the proposer and seconder and other applicants have not been able to establish that they were aggrieved party as expounded above, because it is the right of the candidate himself to contest or not to contest. If the candidate wishes to contest the election and any order, act, by any authority referred to in the above noted provision, comes in his way, it is the candidate who can be called the aggrieved party and not any other person. If a candidate refuses to contest, the proposer, seconder and all other applicants can not file a petition in the High Court to force the candidate to contest the election or to defend him in any such proceedings before any Court or tribunal. If these intervenors have got no right to compel a candidate for the above noted purposes, then how they can be allowed and permitted to file a petition, may be in defence or it may be in the shape of filing of the writ petition. Accordingly, we do not consider and cannot hold all these applicants to be aggrieved party and having right to invoke the jurisdiction of the High Court. The impugned order dated 20.6.2008 has, therefore, been rightly passed.
In Part (b) of sub-article (1) of Article 199, the word `any person' has been used and condition of "aggrieved" has not been attached to such person, therefore, for the invocation of those reliefs mentioned in sub-clauses (i) and (ii) of clause (b) of sub-article (1) of Article 199 of the Constitution, any person who may or may not be aggrieved can file an application. He is not required to demonstrate his right to move the Court for the purposes noted in sub-clauses (i) & (ii) of clause (b) of sub-article (1) of Article 199 of the Constitution.
The word "aggrieved" in clause (c) of sub-article (1) of Article 199 of the Constitution has got the same meaning as noted above for clauses (a) of sub-Article (1) of Article 199 of the Constitution but the word "person" with the affixing word "any aggrieved" has declared that for filing of application under clause (c) of sub-article (1) of Article 199 of the Constitution, it is not necessary that there must be prior or previous law suit or proceeding for the person invoking the jurisdiction of High Court. Any person who has got complaint with regard to the matters noted above in clause (c) can file an application, if he is aggrieved by any action, order or proceedings, having been done, performed or made in violation of Fundamental Rights, for the enforcement of it as conferred by Chapter I of Part II of the Constitution.
From the above discussion we have found that all these applicants including the proposer and seconder, cannot be called "aggrieved party" giving them a right to file a writ petition or to be impleaded in the writ petitions, filed before the Lahore High Court, Lahore. As the impugned order has been passed correctly in legal term by holding them not "an aggrieved party", these civil petitions for leave to appeal cannot be entertained in this Court also.
(5) APPLICATIONS UNDER ORDER I RULE 10 OF THE C.P.C.
Mehr Zafar Iqbal and Shakeel Baig, the proposer and the seconder and other applicants, had filed applications under Order I Rule 10 CPC in Writ Petition No. 6468 of 2008 filed by Noor Ellahi against Mian Muhammad Nawaz Sharif etc. and in Writ Petition No. 6469 of 2008 filed Syed Khurrum Shah against Mian Muhammad Nawaz Sharif and others.
Before the discussion is made with regard to the status of the applicants to move such applications in the writ petitions indicated above, it is necessary to mention that both these petitioners, Mehr Zafar Iqbal and Shakeel Baig, the proposer and the seconder had not filed any application before the learned Election Tribunal in the Election Appeal filed by Noor Ellahi against the acceptance of nomination papers of Mian Muhammad Nawaz Sharif by the Returning Officer for making the defence of Mian Muhammad Nawaz Sharif. There is no explanation as to why they had not come forward to claim their right of proposing and seconding at that stage, to defend the candidature of Mian Muhammad Nawaz Sharif. It was for the first time that they and other applicants had filed applications in both the above mentioned writ petitions for their impleadment.
There is another important fact to be noted, that in the election appeal, Mian Muhammad Nawaz Sharif, the candidate himself had opted not to defend himself before the Election Tribunal. Due to this lapse, it can easily be inferred that Mian Muhammad Nawaz Sharif, the candidate had opted not to contest the election, otherwise he would have come forward to defend the election petition which was going to result into the passing of an order of disqualifying him to participate in the election. The same attitude was adopted and maintained by him even in the above mentioned writ petitions although he was made a party to the writ petitions but due to his non-appearance the exparte proceedings were ordered by the learned Full Bench of the Lahore High Court, Lahore.
Question arises as to whether the candidate who does not want to contest the election by defending his personal right of qualification and disqualification, the applicants can be allowed to defend that candidate? Answer would be in the negative because the aggrieved party is candidate and not the proposer and the seconder, or any other voter.
According to the provision of Order I Rule 10 CPC, the proper party is that party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the proceedings. In other words, the following circumstances are the essentialities for a person to be impleaded as a proper party in any Court:-
(i) the Court considers that presence of that party is necessary for the purpose of complete and effectual adjudication. Thus, it is the satisfaction of the Court itself not of the party. It is the Court who feels inability without the presence of that party, whereas in the present case, no such feeling was expressed by the Court;
(ii) the presence of that party must be for the purposes of adjudication and settlement of all the questions involved in the proceedings. In the writ petitions, admittedly the qualifications and disqualifications of the candidate were involved , which questions had got intimate relations with the personal inherent rights of the candidate. The presence or absence of intervenors could not have any repercussion upon the effectual and complete adjudication of those questions involved in the writ petitions. The candidate himself could defend by asserting or refuting the objections, raised to his personal qualifications and disqualifications. The intervenors are not concerned with those personal inherent abilities and disabilities of the Election.
(iii) Noor Ellahi and Khurrum Shah had filed writ petitions and they can be considered to have the role of plaintiff of a law suit. In the suits filed before any Court, a plaintiff has got right of "dominus litus" meaning thereby that a plaintiff can not be compelled to sue a person against whom he does not claim any relief in that suit. This principle of "dominus litus" can be availed of by the writ petitioners and they can not be compelled to array the intervenors in their writ petitions against their wish because the writ petitioners do not want to claim any relief against them. Question arises at this juncture as to whether these intervenors can file writ petitions independently defending their candidate before the Lahore High Court, Lahore. The reply would be in clear terms "no because these intervenors, as noted above cannot be considered "an aggrieved party" to obtain declaration with regard to qualification and disqualification of other, as provided by clause (a) of sub-article (1) of Article 199 of the Constitution. In these circumstances dismissal of applications under Order I Rule 10 CPC of these intervenors was rightly made.
(6) CONSTITUTION OF LARGER BENCH AND HEARING FROM SELECTIVE JUDGES.
Petitioners have prayed for the constitution of larger Bench to decide the questions raised in the instant case. One of the reasons adduced by these petitioners is that there was conflict of views between two Benches consisting of 4 judges versus a Bench of 5 Judges and the other reason was involvement of interpretation of provisions of Section 14 (5-A) and (6) of the Act.
We have found that both these contentions are not sound to be accepted because to constitute a larger Bench Hon'ble Chief Justice has got the prerogative, the status of whom the petitioners do not acknowledge. In such an event, the judges selected for constitution of larger Bench would not be accepted by the petitioners. The question of constitution of larger Bench is the prerogative of the Hon'ble Chief Justice of the Court as was held in PLD 2002 S.C. 939 (Supreme Court Bar Association v. Federation of Pakistan wherein it was clearly laid down as a principle that it was the sole prerogative of the Hon'ble Chief Justice to constitute a Bench of any number of Judges to hear a particular case. Neither an objection can be raised nor any party is entitled to ask for constitution of a Bench of its own choice.
While considering the provision of Order XI and Order XXXIII Rule 6 of the Supreme Court Rules, 1980, it was laid down in PLD 1997 S.C. 80 (In re: M.A. No. 657 of 1996 in References Nos.1 and 2 of 1996) that no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice, for it is the duty and privilege of the Chief Justice of the Supreme Court to constitute Benches for the hearing and disposal of cases coming before the Court. In Malik Hamid Sarfaraz V. Federation of Pakistan and another (PLD 1979 S.C. 991) it was held that no litigant or the lawyer can be permitted to ask that a case be heard by a Bench of his choice. In Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 S.C. 161) it was held that "the qualification to hold the office of the Judge is indeed discretion and has nothing to do with his performance as a Court or a Member of the Court.
In PLD 2005 S.C. 186 (Ch. Muhammad Siddique and 2 others v. Government of Pakistan, through Secretary, Ministry of Law and Justice Division, Islamabad and others) it was held:-
"... it was not the right of petitioner/appellant to select the Judges of their own choice---To constitute a Bench was a prerogative of the Chief Justice and the parties could not ask for a Bench of their choice."
Moreover it has been admitted by the petitioners that the latest view has been delivered by five Hon'ble judges of this Court. In these circumstances, how the Bench of three Judges can take different view as against the judgment of five Hon'ble Judges. PLD 2004 S.C. 600 (All Pakistan Newspapers Society and others v. Federation of Pakistan and others) is the answer to it, wherein it was held that a Bench of three judges could not take different view from the Bench of five Judges.
It is notable that the plea of bias, and desirability of constitution of a larger Bench are based on flimsy grounds, particularly when the petitioners, as noted earlier, are not accepting/acknowledging the authority and status of all the Judges of the Supreme and of the Hon'ble Chief Justice, then how they can pray for the constitution of a larger Bench of their own choice to be made available to them.
(7) QUALIFICATIONS AND DISQUALIFICATIONS.
(i) CONVICTIONS
The definition with regard to qualification and disqualification has already been given under the heading of Locus Standi, therefore, it is not being reiterated herein.
The objections which have been raised against Mian Muhammad Nawaz Sharif, with regard to his disqualifications, by contesting candidates/the applicant by filing application under Section 14(5-A) of the Act, Shahid Orakzai, the applicant and the other source as narrated by learned counsel and gleaned from the records are:-
(i) Mian Muhammad Nawaz Sharif was convicted in aeroplane hijacking case, special case No. 385/1999, registered under Section 402-B PPC read with section 7 of the Anti Terrorism Act, 1997. The conviction and sentence was announced by Anti Terrorism Court I, Karachi on 30.10.2000. Mian Muhammad Nawaz Sharif was sentenced to life imprisonment and was imposed a fine of Rs. 5, 00,000/-, in default whereof he has to suffer further imprisonment for 5 years on the first, and similar sentence on the second count. This conviction sentence was upheld by the learned appellate Court and Special Criminal ATA Appeal No. 43 of 2002, which judgment was published in PLD 2002 Karachi 152 (Muhammad Nawaz Sharif v. State).
(ii) He was also convicted by learned Accountability Court Attock Fort, in Reference No. 2 of 2000 decided on 27.7.2000, under Section 10 read with Section 9(a)(5) of the National Accountability Bureau Ordinance and was sentenced to R.I. for 14 years with fine of Rs. 20 millions. In case of non-payment, he was ordered to undergo further R.I. for three years. He was further declared to be disqualified for 21 years for seeking or being elected, chosen, appointed as member or representative of any public office or any authority of the Local Government of Pakistan.
It has been argued by the learned counsel that under Article 45 of the Constitution, sentence and convictions were pardoned by the President of Pakistan, therefore, these judgments could not impede the way of Mian Muhammad Nawaz Sharif to file the nomination papers as this disqualification had disappeared with the above noted pardon.
We have considered the arguments of the learned counsel. To understand the extent of pardon, reprieve and respite, and to remit, suspend or commute any sentence passed under Article 45 of the Constitution, the provision of Article 45 of the Constitution is necessary to be reproduced in this judgment which is as under:
"45. The President shall have power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority."
If we consider and presume, the argument of the learned counsel to be factually correct, question arises as to whether President of Pakistan under Article 45 of the Constitution could grant pardon in respect of the conviction or only for the sentence. The words in Article 45 of the Constitution after the words power to grant pardon ....... and "any sentence" are indicative of remarkable worth and consequence. The framer of the Constitution had used the word "sentence" only and not the conviction. Difference between “conviction” and "sentence" in legal phraseology is evident. The conviction is declaration of a person found guilty, while the sentence follows after a person is declared convict, which sentence may be in different forms as prescribed by the relevant laws. To dilate upon it, the President has got power to grant pardon etc. only with regard to the sentence but has got no power to set aside the declaration of guilt (conviction) as recorded by a competent Court, authority or Tribunal. The conviction can only be set aside by the Court, Tribunal or authority, concerned or the competent or superior Court to that Court or forum, as provided by law against that conviction. The concept of conviction and sentence having two different connotations, can be found in AIR 1995 HP 130 (Vikram Anand v. Rakesh Singha) in which case after a convict was sentenced and appeal was filed by him before the learned appellate Court, the execution of sentence was suspended, but the Court had declared the conviction and disqualification still remaining in existence, as conviction being a different concept, so it was still continuing in operation.
In PLD 1990 S.C. 823 (Abdul Kabir v. The State) the following was held:-
"Pendency of the appeal for decision does not ipso facto mean that the conviction is wiped out. The appellate Court has no authority under Section 426 to suspend the conviction. Conviction and sentence connote two different terms: Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under Section 426, Cr.P.C. but it does not mean that the conviction is erased."
It may be noted that under Section 15 of the NAB Ordinance, 1999 as stood at the time of pronouncement of sentence, the Accountability Court was granted power to disqualify a person convicted for the offence of corruption and corrupt practices. In that judgment of Accountability Court, Mian Muhammad Nawaz Sharif was disqualified for 21 years to become member of the Assembly. There was no power granted by the Constitution to the President, to condone this disqualification order, by grant of pardon. Therefore, even if it be presumed for the sake of consideration, that conviction and sentence recorded in both these cases, were set aside by the President under Article 45 of the Constitution, even then pardoning of this disqualifying power was never granted or conferred upon the President by the Constitution, hence this disqualification had remained in the field.
Mr. Muhammad Akram Sheikh, learned counsel has made an attempt to defend the convictions by stating that assuming the convictions were there, even then those convictions were not creative of bar as against the candidate because clauses (h) and (l) of sub-article (1) of Article 63 of the Constitution, as it stood at the time of conviction had provided that after a period of five years from the release, the conviction would not be applicable, if in the opinion of C.E.C., the offence committed had involved offence of moral turpitude and it would not be considered as a disqualification. He has further explained clause (l) of sub-article (1) of Article 63 of the Constitution. According to him, even in the case of corrupt or illegal practices, if a period of five years has elapsed from the date on which that order of guilt had taken effect, it would not be a disqualification restraining the candidate to contest the election.
From the above argument, it has been established that Mian Muhammad Nawaz Sharif was convicted in both the above noted cases. The plea being raised is that those convictions cannot be considered as disqualification after the lapse of 5 years from the release in cases involving moral turpitude and for the guilt of corrupt or illegal practice from the date of order of conviction. Whether this stance taken by the learned counsel is legally correct, we have to examine the law on this aspect. Dr. Mohyuddin Qazi, learned ASC has replied that Article 63 of the Constitution was amended by Legal Framework Order 2002 (Chief Executive Order 24 of 2002) and it was clearly held in PLD 2002 S.C. 369 (Imtiaz Ahmed Lali v. Ghulam Muhammad Lali) that the amendment in Article 63 of the Constitution as made by Legal Frame Work Order as well as in Section 99(1)(a)(i) of the Act, alongwith amendment of Article 8(3d)(1) of the Code of Conduct of General Election Order, 2002, its effect would be retrospective in effect. Therefore, Mian Muhammad Nawaz Sharif was not qualified to contest the election, as the amendment brought in clause (h) and (l) of sub-article (1) of Article 63 of the Constitution had erased the time limit from these clauses and also the seeking of opinion from the Chief Election Commissioner. To have the benefit of these provisions, both clauses (h) and (l) in the year 1985 introduced through substitution by Revival of the Constitution of 1973 Order, 1985(P.O.No. 14 of 1985) were as under:
(h) He has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or
(i)
(j)
(k)
(l) He is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(h) He has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or
(i)
(j)
(k)
(l) He is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(q) He has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(ii) TWENTY ONE YEAR DISQUALIFICATION
(iii) BREACHED COVENANT
(iv) UNPAID LOANS.
(v) BANK SUITS
(i) Suit bearing No. C.O.S. 40 of 1998 was instituted in the year 1994, for the recovery of 6.8 million as on 30.9.1994 vide UBL v. Itifaq Group and others, (ii) Suit COS No. 37 of 1998 for recovery of Rs. 1072.227 millions alongwith other charges etc. as stood on 31.10.1994 (NBP v. Itifaq Foundries and others). In both the above suits, Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif were also defendants
(iii) Suit COS No. 42 of 1998 (NBP V. Itifaq Brothers (Pvt.) Limited and three others) for recovery of 355.463 million alongwith other charges etc, and;
(iv) Suit COS No. 129 of 1998 (HBL v. Ittifaq Foundries and others) for recovery of Rs. 34,72,33,046.83 alongwith other charges etc., as stood on 31.10.1994 were filed. In the last two suits, only Mian Muhammad Shahbaz Sharif was one of the defendants.
All these suits have been found pending from 1994, without any material progress. From the perusal of plaints of those suits, it has revealed that the loan facilities were in fact obtained from these creditor banks earlier to the year 1994, yet the amount was not paid even after the passage of more than 15 years from the filing of the suits. It has further revealed from the contents of plaints that to gain these loans personal guarantees were executed by both these brothers also.
This allegation of unpaid loans, if is further dug out, we have found its nexus and link with the judgment, reported in PLD 2000 S.C. 869 (Zafar Ali Shah v. Pervez Musharraf, Chief Executive) (a judgment delivered by 12 Hon'ble judges) alongwith some other allegations, but at page 1133 the following passage is relevant, which is reproduced as under:-
ILLEGAL EXTRACTION OF HEAVY AMOUNT BY MIAN NAWAZ SHARIF, SHEHBAZ SHARIF AND HIS FAMILY MEMBERS FOR THE FOLLOWING UNITS OWNED BY THEM.
Sr. Name of Unit Outstanding
No. Liability
(In Million)
Ittefaq Foundries Ltd. 1,556
Ramzan Sugar Mills Ltd. 623
Haseeb Waqas Sugar Mill Ltd. 543
Mehran Ramzan Textile Mill 455
Ramzan Bukhsh Textile Mill 373
Brothers Sugar Mills Ltd. 351
CH. Sugar Mills Ltd. 339
Ittefaq Sugar Mills Ltd. 313
Ittefaq Brothers Ltd. 226
Sandalbar Textile Mills Ltd. 205
Khalid Siraj Textile Mills Ltd. 191
Hudabiya Engineering Co. Ltd. 182
Brothers Textile Mills Ltd. 174
Ittefaq Textile Mills Ltd. 164
Brothers Steel Ltd. 159
Hamza Board Mulls Ltd. 153
Hudabiya Paper Mills Ltd. 134
Ilyas Enterprises Ltd. 3
Ittefaq Hospital Trust 2
Total: 6,146
"A poor is hauled up for a penny only.
A rich is allowed let off for billions.
We can't be contributory to this injustice.
As it is injustice to this poor nation."
(vi) PROPAGATING OPINION AGAINST JUDICIARY
It has been argued that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif, both brothers have been propagating opinion with regarding to integrity, independence of judiciary and are also ridiculing and defaming the judiciary. According to clause (g) of sub-article (1) of Article 63 of the Constitution, they may be declared disqualified to contest election.
Mr. Ahmed Raza Qasuri, has referred to news items attributed to both these brothers published in various newspapers:-
(1) Daily Express dated 24.6.2008:-
(2) A clipping from Daily Khabrain dated 13th June 2008 is in the following terms:-
(3) In clipping of 28.6.2008 Daily Jang, Rawalpindi following was allegedly uttered by Mian Muhammad Nawaz Sharif:-
(4) According to clipping of Daily Khabrain Islamabad/Rawalpindi dated 12.12.2008 the following words were uttered by Mian Muhammad Nawaz Sharif:-
(5) In clipping dated 13.12.2008 published in Daily Jinnah Islamabad/Rawalpindi Mian Muhammad Nawaz Sharif uttered the following words:
(6) Clipping of Daily Express dated 29th Jaunary 2009 reads as under:-
(7) Clipping from Nawa-i-Waqqat, Lahore dated 29th January 2009 reads as under:-
(8) Clipping from The Nation dated 29th January, 2009:-
"Nawaz says PCO judges ineligible"
(vii) PENDING CONTEMPT CASE – FALSE DECLARATION
"We find that without substantial compliance of Section 7 of the Contempt of Court Act, 1976 no proceedings for contempt can be initiated against PML (N) or Mian Muhammad Nawaz Sharif or their other leaders allegedly involved in the act of rowdyism. The matter requires a thorough probe which course of action was not resorted to earlier. The ends of justice would be fully met, if further proceedings against Respondent No. 1 are also deferred till a thorough investigation is made by the Investigating Agency concerned as to the culpability or otherwise of Respondent No. 1 as also any other person who may be found so involved. The Registrar of this Court shall supply a print of video film prepared by B.B.C. and of the film prepared by the Closed Circuit System installed in the Supreme Court premises to the Inspector General of Police, Islamabad, who shall entrust the investigation to a senior police officer, not below the rank of Superintendent of Police. The Investigating Agency shall complete the investigation within a period of four months from the receipt of the copy of this order so as to identify the miscreants involved in the incident and thereafter proceed in accordance with law."
As per Shahid Orakzai, the investigation was conducted by Mr. Taimur Ali Khan, PSP with regard to the culpability or otherwise of Mian Muhammad Nawaz Sharif, his brother Mian Muhammad Shahbaz Sharif and others, and a report was submitted in this Court. In that report dated 23.2.2001, it was found that Mian Muhammad Nawaz Sharif, President PML (N) and the then Chief Minister Shahbaz Sharif had facilitated 100 to 150 persons to attack on this Court and the bill of their meals etc. were paid by the Chief Minister House, Lahore on 10.12.1997. This report was submitted in the office of the Supreme Court but it was not unveiled due to an earlier high Official of the office, who was in league with these brothers. As per Shahid Orakzai, the aforementioned Criminal Appeal No. 162 of 1999 was still pending on the basis of that report and it was never finally decided as the action/proceedings were still to be commenced on the basis of that report. Without discussing the authenticity or otherwise of the arguments of Shahid Orakzai, it is quite certain that this criminal appeal being a pending case, against Mian Muhammad Nawaz Sharif, It was to be mentioned in his declaration filed with the nomination paper but it was omitted, therefore, Mian Muhammad Nawaz Sharif was disqualified for filing of incorrect declaration.
The fact of earlier order of rejection of Nomination Papers of Mian Muhammad Nawaz Sharif in the General Election which order had attained finality was suppressed and false declaration was submitted.
(viii) MISCELLANEOUS APPLICATION TO C.E.C.
It has further been submitted by the learned counsel that against the rejection of nomination papers dated 3.12.2007, during the General Elections, Mian Muhammad Nawaz Sharif had transmitted a miscellaneous application dated 7.12.2007, maligning the judges of the superior Courts, which miscellaneous application was rejected by the Chief Election Commissioner on 17.12.2007, holding that appeal against the rejection order was competent.
In fact, the Returning Officer who accepted the nomination papers of Mian Muhammad Nawaz Sharif had acted in such a manner which order could not be termed as having been passed with impartiality. It is not presumable that the Returning Officer who was judicial officer was unaware of the above noted judgments, one of which was reported in the law journal also as noted above. According to learned counsel, all these above mentioned facts were brought to the notice of Returning Officer but the Returning Officer kept it aside while deciding the Nomination Papers of Mian Muhammad Nawaz Sharif.
It has also been submitted by the learned counsel that the present election was a continuation of the general elections. In the general election which were held on 18.2.2008, Mian Muhammad Nawaz Sharif had filed nomination papers for NA 120 Lahore-III which were rejected vide order dated 3.12.2007 by the Returning Officer, in the presence of the counsel of Mian Muhammad Nawaz Sharif after hearing both the parties. Against that order of rejection of nomination papers passed on 3.12.2007, appeal under Section 14 of the Act being competent was not filed by Mian Muhammad Nawaz Sharif and that order dated 3.12.2007 had attained finality. The proposer and seconder could not propose and second Mian Muhammad Nawaz Sharif who could not also give consent for filing the nomination papers before the Returning Officer for the seat in the by-election to be held on 26.6.2008, and nothing was brought on record to prove that this previous order was set aside by any competent Court or forum or disqualification had disappeared in the by-election.
(ix) UN-REFUTED ALLEGATIONS
It is clarified that Mian Muhammad Nawaz Sharif, the candidate, having opted not to appear and having chosen not to file any proceeding, petition/appeal/revision or review before the competent Court of law, under the prescribed provision of law, no other person can obtain declaration in respect of his qualifications or disqualification by arguing that these provisions were not applicable to his case. The person legally competent to get such declaration is and was Mian Muhammad Nawaz Sharif the candidate/convict/himself, therefore, in his absence, the petitioners have got no legal right to obtain declaration for purging his disqualification with regard to his status.
As there is no rebuttal from the candidate himself on this factual aspect, therefore, we have to accept all these disqualifications considering these uncontroverted by the candidate himself and having no counter affidavit and arguments.
(8) INTERPRETATION OF SUBSECTION (5), (5-A) OF SECTION 14 OF THE ACT.
"14. Scrutiny--(1) The candidates, their election agents, the proposers and seconders and one other person authorized in this behalf by each candidate and an elector who has filed an objection to the nomination of a candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give the reasonable opportunity for examining all nomination papers delivered to him under Section 12:
Provided that an elector who has filed an objection to the nomination of candidate shall only attend the scrutiny of the nomination paper of that candidate.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-section (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) the Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in sub-section (1), conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of Section 12 or Section 13 has not been complied with 3[ or submits any false or incorrect declaration or statement in any material particular]; or
(d) the signature of the proposer or the seconder is not genuine:
Provided that:--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(1a) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or secornder so as to bring them in conformity with the corresponding entries in the electoral roll; and
a the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.
(3A) Notwithstanding anything contained in sub-section (3), where a candidate deposits any amount of loan, tax or utility charges payable by him before rejection of his nomination paper on the ground of default in payment of such loan, taxes or utility charges, such nomination paper shall not be rejected for default thereof.]
(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record brief reason therefore.
(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.
(5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers.
(6) An appeal not disposed of within the period specified in sub-section (5) shall be deemed to have been rejected.
(7) Announcement of the day and time appointed for the hearing of an appeal under sub-section (5) over the radio or television or by publication in the press shall be deemed to be sufficient notice of the day and time so appointed.
According to this section, it has to be noted that in sub-section (3) of Section 14 of the Act, the Returning Officer has been granted power to conduct such summary inquiry either of his own motion or upon any objection raised either by an elector or by any person referred to in sub-section (1) and may pass order of rejection. In that sub-section, a few kinds of disqualifications have also been enumerated. There is another provision of sub-section (3-A) of Section 14 in which it has been provided that the Returning Officer shall not reject the papers of the candidate in case he deposits any amount of loan, tax or utility charges payable by him before rejection of his nomination papers on the ground of default in payment of such loan, taxes or utility charges. Seen from this angle, the loan, tax or utility charges were noted in sub-section (3) of Section 14, therefore, there was no need to insert through amendment in 2002, this provision of sub-section (5-A) in Section 14 of the Act. In fact, sub-section (5-A) was investing power to the Tribunal, who had to examine all kinds of objections of disqualifications of a candidate, upon the basis of any information or material brought to its knowledge by "any source". The use of words, "or suffers from any disqualification" was in actuality granting power to the Election Tribunal to consider all the objections, of disqualifications brought by any person, natural or legal (any source) who lays information, or brings material before the Tribunal, it may be with regard to default of dues or utility charges etc. or it may be any other disqualifications of the candidate against whom such information or material were not brought by his opposing candidate due to any reason before the Returning Officer or the Election Tribunal. The aim decipherable from this provision appears to further filter the qualifications and disqualifications of a candidate through "any source" other than the opposing candidate. By bringing this provision, persons from general public have also been invited to apprise of the tribunal, if any, disqualification which has been suppressed or concealed or could not be brought by candidates due to collusion or for any other reason.
It is important that in sub-section (5-A) of Section 14 of the Act, at one place the words "or suffers from any other disqualification from being elected as a member of assembly" and at another place "or suffers from any disqualification" clearly import that words "any other" has not been used as `ejusdem generis' to the default of loans. The word "other" cannot be ignored from the provision which is occurring immediately after the category of default of loan, taxes etc. if the plain words of "any other disqualification" are kept in view then these are sufficient to dispel the impression that these words were "ejusdem generis" to the preceding class of default.
We have also noted that the provision of sub-section (5-A) was inserted into Section 14 of the Act when sub-section (3A) of the Act was also being brought into it. The legislature could provide all that which is being argued in that sub-section (3-A) easily. But by providing a separate provision, wider net was supplied in respect of disqualifications, persons bringing information, and to empower and to give jurisdiction to the Tribunal. Accordingly, the scope cannot be limited by applying rule of "ejusdum generis".
In fact, this provision is a second filter provided to the Election Tribunal, in case a candidate maneuvers the acceptance of his nomination papers through deceitful means or in collaboration or with the conspiracy of the other candidate, by making efforts of withdrawal or by manipulating the retirement of other from the contest although he was patently disqualified to contest election due to any of his disqualifications as conditioned by law. This provision has broadened the scope and power of election tribunal as earlier to this provision sub-section (5) only was there, which had provided the right of appeal to a candidate before the Election Tribunal, against the acceptance or rejection of nomination papers. But with the advent of this provision of section (5-A) of Section 14 during the process of Election, burden of invocation of writ of Quo warranto has been relaxed upon a common man/voter, source, etc. who was to wait and see till the finalization of election process. It is, therefore, that Election Tribunal has been conferred power to act on the basis of any information or material brought to its knowledge. The purpose of insertion of this provision was to prohibit a disqualified person to enter into the scared Hall of Parliament wherein a seat was prescribed by the Constitution to a qualified person who is pious, sagacious, righteous and non-profligate, honest and Ameen, not of unsound mind, not an undischarged insolvent, not defaulter of loans, taxes, government dues, utility charges, not guilty of corrupt or illegal practices, not to those persons who were removed or compulsorily retired from the Service of Pakistan etc., nor to those who were convicted by a Court of competent jurisdiction, not to persons or defamers who were propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order or the integrity or independence of the judiciary of Pakistan or not to those who brings into ridicule the judiciary or the Armed Forces of Pakistan, as provided by Articles 62 and 63 of the Constitution, Section 12, sub-sections (3) (3-A) and (5-A) of Section 14 and Section 99 of the Act.
If the words "suffer from any other disqualification" were used as ejusdem generis, then there was no need to insert the word "any other" in the aforesaid sub-section. The use of words "any other" in its clear meanings are referring to other disqualifications, which have been enumerated preceding to this para, otherwise there was no fun to use the words "any other".
The interpretation of the word "any source" as put by the learned counsel for the petitioner that it is confined only to juridical person is also not restricted only to legal, juridical or artificial person, it also covers in its encompass, the natural person. See the word "source" as to how it has been defined in Black's Laws Dictionary (7th Edition):-
"Source-The originator or primary agent of an act, circumstance, or result < she was the source of the information>
"The word "source" conveys idea of origin, and is that from which any act, movement, or effect proceeds; a person or thing that originates, sets in motion, or is a primary agency in producing any course of action or result; an originator; creator; origin."
In the "New English Dictionary and Thesaurus" by Geddes & Grosset (New Edition of 2000) it is given at page 557 Col II, which is as under:
"source n a spring forming the head of a stream; an origin or cause; a person, book, etc, that provides information "vti (inf) to find a supplier; to identify a source."
From the above definitions, it is transparent and free from doubt that the word "source" includes in it the legal, juridical as well as natural person also. Moreover, this word "any source" cannot be limited for loans, taxes, dues or utility charges.
In our opinion this provision has provided a remedy which was lacking and deficit in the election process to electors, voters, or any other person who was in the knowledge of disqualification of a candidate but was unable to object against the candidate, who had manipulated the concealment/suppression of those disqualifications from the returning officer, so as to empower him to inform or place the material before the election tribunal, so that a disqualified person might not contest the election freely, with all his patent disqualifications which were requiring no detailed inquiry, or proof, and the information or material supplied was sufficient to restrain that candidate to participate in the election. Because after the election process was complete only a candidate was allowed to file election petition with regard to election disputes under Section 52 of the Act and no other person was allowed to file an election petition with regard to the qualifications or disqualifications after the end of election. By providing this provision of sub-section (5-A) in section 14 of the Act, in fact, the qualifications and disqualifications disputes to a great extent were allowed to be settled uptill the stage of the forum of Election Tribunal, in the election process.
(9) SUBSECTION (6) OF SECTION 14 OF THE ACT
petition', therefore, this sub-section (6) of Section 14 of the Act cannot be applied to the above mentioned petition. However, it cannot be held that indefinite period has been provided for decision of such petitions. The principle and rulereasonableness' has to supply answer to it.(10) JURISDICTION OF THE HIGH COURT
It has been contended that in election disputes, High Court lacks power to interfere, due to provision of Article 225 of the Constitution. Further has been submitted that power and jurisdiction under Article 199 of the Constitution can be invoked when whole election process is complete. Elaborating his argument, learned counsel states that after a candidate is chosen by the electorate and takes oath of the office, in that event, election petition would be maintainable by the opposing candidate and if it is not maintainable, in such a case, a writ of quo warranto under Article 199 of the Constitution can be instituted by any person.
While the learned counsel for respondents has opposed the arguments by stating that power and jurisdiction conferred by Article 199 of the Constitution upon the High Court is unfettered. The bar contained under Article 225 of the Constitution is applicable when the matter relates to election disputes. A person who is not qualified can be debarred through invocation of writ jurisdiction under Article 199 of the Constitution, if the Returning Officer and the Election Tribunal have failed to decide the matter in dispute or it has been decided against the apparent admitted facts, documents and record, as is the case of Mian Muhammad Nawaz Sharif, against whom there were two major convictions and many other disqualifications in existence, which were not controverted even by the candidate himself. In such a case, it was not necessary to wait and allow a disqualified person to enter into the gates of Parliament, which is a sacred place of peoples chosen representatives.
To appreciate the arguments of both the learned counsel, copying of Article 225 of the Constitution is necessary which is as under:
Election Dispute. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament)].
Firstly, this Article has used the word "no election" and secondly, except by an election petition" and the word "in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The Representation of the People Act, 1976 has provided Chapter VII for election disputes. According to Section 52 of the Act, an election petition can be filed by a candidate. Subsection (1) of Section 52 is as follows:
Election Petition-(i) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner).
From reading of the above noted sub-section (1) of Section 52 of the Act, it has transparently been provided that a candidate can file an election petition and not any other person. But after the insertion of sub-section (5-A) in Section 14 of the Act, which has allowed "any source" (a person legal or natural) to communicate any information or place material before the Election Tribunal with regard to the disqualification of a candidate, a situation, may arise which has arisen in this case, that the petition filed under sub-section (5-A) of Section 14 of the Act has not been decided by the Election Tribunal, then what should be the fate of that petition. If a petition is filed under the above indicated sub-section, and it is not decided for one reason or the other, and the candidate against whom information has been placed before the Election Tribunal, whether can be allowed to contest the election, even if he has got clear disqualifications of unrebutable and undeniable nature, having been proved through admitted documentary proof, whose authenticity can not be disputed even, by the candidate himself? The remedy provided to convey information and to place the material before the Election Tribunal through an application would become nugatory, if the Election Tribunal does not decide it in either way. In these circumstances, question arises as to whether such person (“source”) may be ordered to remain mum and to wait till the whole election process becomes complete and a disqualified person enters the Hall of Parliament, mocking the purity of election process and the actions of election authorities, who have failed to perform their legal duty by allowing such disqualified person to enter the Hall of Parliament. The answer is provided by a legal maxim "Ubi Jus Ibi Remedium" (where there is right, there is remedy). By granting right to a "source" to file petition before an Election Tribunal with regard to the disqualification of a candidate, the remedy has also to be provided to such "source" when his application is thrown away in a cold storage, without even examining it. In these circumstances, when the election laws are not providing any remedial steps, the High Court has got inherent and constitutional powers to remedy the wrong being done or having been done by the Election Tribunal.
Accordingly, the High Court has got power and jurisdiction in these circumstances to invoke its power to do justice.
Law is not a static object. It has to cope with the modern ideas and concepts, and the disputes coming before the Court for resolution, as the society with its environmental set up is continuously progressing. Laws as well as its remedies are also changing with the passage of time. Before insertion of sub-section (5-A) of Section 14 on 31.7.2002, appeal before the Election Tribunal was competent by the candidate only but with the introduction of sub-section (5-A) of Section 14 into the Act, scope has been widened so to prohibit and restrain a disqualified person to contest and participate in the election. This new concept was introduced by section (5-A) of Section 14 of the Act. Not only a person (source) was allowed to lay information but the Election Tribunal was itself conferred more powers and jurisdiction to entertain such information and material, in respect of disqualification of a candidate. When such power has been granted to the Election Tribunal, then it was the duty of the Election Tribunal to examine and decide the petition in either way. But the petition could not be thrown away without any order being passed on it. In case of inaction of the Tribunal, the High Court has got power under Article 199 of the Constitution to decide that petition.
The latest trend developed by the Judge made law is that qualifications and disqualifications of a candidate, being matter of personal rights of the candidate, its decision, if it needs no factual enquiry and the dispute can be decided on the basis of admitted facts and authentic documentary proof, in that event, the jurisdiction of the High Court would be there, to correct legal errors or apparent defects having been crept into the order of the learned Election Tribunal. In PLD 2008 S.C. 313 (Intesar Hussain Bhatti v. Vice Chancellor, University of Punjab, Lahore and others) it was held “when validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person of a candidate in the election, the bar contained in Article 255 would not be attracted and it would also not apply when the Tribunal having jurisdiction has failed to exercise the same". It is important that the person aggrieved cannot be left without any remedy at a later stage of the close of Election, because a Tribunal having jurisdiction cannot do it wrongly, but is bound to do it rightly".
In PLD 2008 S.C.735 (Lt. Gen. (R) Salahuddin Tirmizi V. Election Commission of Pakistan, many judgments were referred with regard to scope of judicial review of the High Court under Article 199 of the Constitution which were noted as under:-
(1994 SCMR 1299) Ghulam Mustafa Jatoi Vs Additional District and Sessions Judge, Election Commission of Pakistan vs. Javed Hashmi (PLD 1989 Supreme Court 396) and in Rao Sikandar Iqbal’s case (C.P.No. 1 of 2008)
".... The High Court also in its constitution jurisdiction can entertain the question of rejection or acceptance off nomination papers, in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry.... "
"...... The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also included qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matter at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan ....."
Accordingly, the impugned order passed by High Court is just and proper and is not liable to be set aside. Resultantly, we hold that proposer, seconder, Federation of Pakistan and all the intervenors have got no right to defend the qualifications and disqualifications of Mian Muhammad Nawaz Sharif, who has failed to defend those qualities and disabilities of election himself. These persons/petitioners cannot be considered "aggrieved party" and to have a right to be impleaded in the writs or to file civil petitions for leave to appeal in this Court.
Consequently, the impugned judgment dated 23.6.2008 passed by learned Full Bench of Lahore High Court, Lahore is upheld by refusing leave to appeal.
The above are the detailed reasons for the short order announced on 25.2.2009.
(R.A.) Leave refused.
PLJ 2009 SC 613
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
SHAHID HAYAT--Petitioner
versus
FEDERATION OF PAKISTAN and others--Respondents
CPLA No. 662 of 2008, decided on 12.6.2008.
(On appeal from the judgment dated 6.6.2008 in Appeal No. 549(R)CS/2008 passed by the Federal Service Tribunal, Islamabad).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil Servants Act, 1973, Ss. 13 & 14--Leave to appeal--Civil servant--Right to actively serve without any fault on his part--Qualified the Central Superior Services Examination and joined the police service--Entitlement to continue in service--Validity--Denial to petitioner of his right to actively serve without any fault on his part is established, which brought humiliation and suffering to the civil servant--Held: Civil servant should be allowed to serve for a period of two years and three months equivalent to interrupted period of his service--Respondents were directed to take appropriate measures in such regard--Benefit of the judgment shall be available to other police officers, who were implicated along side the petition in criminal case.
[P. 615] A
Raja M. Ibrahim Satti, Sr. ASC for Petitioner.
Malik Muhammad Qayyum, Attorney General Assisted by Raja Abdul Rehman, DAG for Respondent No. 1.
Mr. Masood A. Noorani, Additional A.G. Sindh for Respondent No. 2.
Dates of hearing: 11 & 12.6.2008.
Judgment
Ch. Ijaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 6.6.2008 passed by the Federal Service Tribunal, Islamabad, whereby appeal filed by the petitioner was dismissed in limine.
Facts of the case, in brief, are that the petitioner qualified the Central Superior Services examination and joined the Police Service of Pakistan in 1991. In November 1996, he was posted as Sub-Divisional Police Officer (SDPO) Saddar, Karachi. FIR No.4433/1996 was registered at Police Station Clifton, Karachi in pursuance whereof he was arrested in December 1996. The trial of the case did not conclude and he remained confined in prison till February 1999. He was released on bail only after the expiry of the statutory period provided under Section 497 of the Code of Criminal Procedure. Nearly 12 years have passed, but the trial of the case has not concluded so far. According to the petitioner, he is not responsible for the delay in the trial of the case.
The petitioner filed an appeal before the Federal Service Tribunal praying therein that he may be held entitled to continue in service for 2 years and 3 months beyond the date of his superannuation, i.e., the period for which he was not allowed to perform his duties and Sections 13 and 14 of the Civil Servants Act, 1973, in so far as they do not allow a civil servant to continue his service beyond the period of superannuation may be held ultra vires the Fundamental Rights guaranteed under Articles 9, 18, 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973. The Tribunal held that the jurisdiction of the Tribunal was restricted to adjudication upon matters relating to the terms and conditions of service under the Civil Servants Act, and did not extend to striking down or declaring as ultra vires any provisions of the said Act. It was further held that the petitioner had not fulfilled the mandatory requirement of filing departmental appeal/representation. Consequently, the appeal of the petitioner was dismissed. Hence this petition for leave to appeal.
The learned counsel for the petitioner has reiterated the contentions urged before the learned Federal Service Tribunal. He submitted that the petitioner and several other police officers were falsely implicated in a biased and prejudiced setting in the aforesaid FIR, which was the third FIR regarding the same incident. He, therefore, prayed that the impugned judgment may be set aside, the provisions of Sections 13 & 14 of the Civil Servants Act, 1973, insofar as they do not allow for continuation of service after the age of superannuation may be declared ultra vires the Fundamental Rights guaranteed under Articles 9 and 14 of the Constitution and the petitioner may be allowed to serve the department for a period of two years and three months beyond the date of his superannuation.
Malik Muhammad Qayyum, learned Attorney General for Pakistan appeared for the Federation of Pakistan while Mr. Masood A. Noorani, Additional Advocate General, Sindh appeared for the Government of Sindh. Both the learned law officers candidly conceded that the petitioner was deprived of his right by his employer (State) to actively serve the department for a period of two years and three months without any fault of his in violation of the Fundamental Rights guaranteed under Articles 9 and 14 of the Constitution, as also the Objectives Resolution, which is now part of the Constitution by virtue of Article 2-A. They stated that this Court is competent to pass any order to do complete justice in any pending case and that there is nothing in law, which prevents this Court from passing an order that the petitioner should be allowed to serve the department for the interrupted period of his service with a view to rectifying the wrong done to him.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance.
We find that the denial to the petitioner of his right to actively serve the department without any fault on his part is established in the present case, which brought humiliation and suffering to the petitioner. Therefore, we are inclined to hold that the petitioner should be allowed to serve for a period of two years and three months-equivalent to the interrupted period of his service from November, 1996 till February 1999. The respondents are directed to take appropriate measures in this regard. The benefit of this judgment shall also be available to other police officers, who were implicated along side the petitioner in the aforesaid criminal case.
The impugned judgment of the Federal Service Tribunal is set aside. The petition is converted into appeal and is disposed of in the above terms.
(R.A.) Appeal disposed of.
PLJ 2009 SC 615
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan, Zia Perwez & Syed Zawwar Hussain Jaffery, JJ.
IRSHAD ULLAH--Petitioner
versus
MUHAMMAD NAWAZ and others--Respondents
Crl. Petition No. 472 of 2008, decided on 23.2.2009.
(Against the judgment dated 6.11.2008 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 1617/2004 a/w Murder Reference No. 18-T/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 201, 148 & 149--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Acquitted by appellate Court--Challenge to--Appreciation of evidence--Incident took place at fag end of the day and the witness seen the occurrence from a distance of 70 feet--Solitary statement of prosecution witness cannot be believed--Empties recovered from place of occurrence were sent to FSL before arrest of the accused and recovery of pistols and other material was found positive from Forensic Science Laboratory which was quite unbelievable--Held: Appellate Court had rightly disbelieved the ocular testimony, recovery of the weapons alongwith report of FSL--No illegality or infirmity in impugned judgment and accused were rightly acquitted from charge and there was no miscarriage of justice--Leave refused. [Pp. 619 & 620] A & D
Contradiction of Evidence--
----Medical evidence contradicted the contents of FIR--Accused nominated in FIR were attributed the role of firearm injuries--Opinion of medical officer, there were only 5 fire-arm injuries which were caused by pistol--Validity--Alleged eye witnesses did not see the occurrence, therefore, sharp edged injuries sustained by deceased could not be explained at the time of lodging FIR--There was a glaring and irreconcilable contradiction between the ocular testimony and medical evidence. [Pp. 619 & 620] B & C
Sardar Muhammad Ishaq, Sr. ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 23.2.2009.
Judgment
Syed Zawwar Hussain Jaffery, J.--The petitioner through this Criminal Petition filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, seeks leave to appeal against the impugned judgment dated 6-11-2008 delivered by the learned Lahore High Court, Lahore, whereby Criminal Appeal No. 1617/2004 filed by Respondent Nos. 1 and 2 was allowed and they were acquitted of the charge and Murder Reference was answered in negative.
The brief facts are that Respondents Muhammad Nawaz and Habibullah alias Pomi alongwith co-accused Muhammad Iqbal, Allah Ditta and Muhammad Nazir were tried by the learned Judge, Anti Terrorism Court-I, Gujranwala, in the case FIR No. 195/2002 dated 2.7.2002, registered at Police Station Ali Pur Chatha, District Gujranwala in respect of the offences under Sections 302/148/109 and 201 PPC vide judgment dated 28-9-2004. Respondent Nos. 1 and 2 were found guilty of killing Saifullah (deceased) and were convicted and sentenced to death under Section 302(b) PPC read with Section 7(a) of the Anti Terrorism Act, 1997 with a direction to pay a sum of Rs. 10,0000/- as compensation to the legal heirs of the deceased or in default of payment thereof they were directed to undergo 6 months S.I. However, three co-accused namely Muhammad Iqbal, Allah Ditta and Muhammad Nazir were acquitted of the charge through the same judgment by extending benefit of doubt to them. Respondents No. 1 and 2 being aggrieved by the judgment of the trial Court challenged their conviction and sentence through Criminal Appeal No. 1617/2004 whereas the petitioner/complainant Irshadullah challenged the same judgment to the extent of acquittal of Muhammad Iqbal, Allah Ditta and Muhammad Nazir vide Criminal Appeal No. 465/2004. The trial Court also sent reference (M.R. No. 18-T/2004) for the confirmation of death sentence awarded to Respondent Nos. 1 and 2. The appellate Court by consolidated judgment disposed of both the matters vide judgment dated 6-11-2008. The petitioner has only challenged the acquittal of Respondent Nos. 1 & 2 through this Petition. The appellate Court while delivering the judgment observed that the prosecution has failed to prove its case beyond any shadow of doubt and acquitted Respondent Nos. 1 & 2. Murder Reference was not confirmed and it was answered in negative. Criminal Appeal No. 465/2004 was not pressed by the complainant, therefore, it was also dismissed. Hence this petition for seeking leave to appeal.
Sardar Muhamamd Ishaq, Sr.ASC, appearing on behalf of the petitioner has contended that the learned appellate Court was not legally justified in acquitting Respondent Nos. 1 and 2 and the judgment dated 6-11-2008 is not sustainable under the law. The impugned judgment is unjust, illegal and arbitrary which has resulted in grave miscarriage of justice. He submitted that all the accused nominated in the FIR made Aerial firing at the place of occurrence at the deceased. The incident was witnessed by Complainant Irshadullah (PW-11) on 2-7-2002 at 7-45 p.m. when all of a sudden Habibullah alias Pomi armed with 30 bore pistol, Muhammad Nawaz armed with 30 bore pistol, Muhammad Boota armed with 30 bore pistol, Muhammad Iqbal armed with repeater Nazir Ahmed armed with 12 bore gun and Allah Ditta armed with pump action turned up on the place of incident. Muhammad Iqbal (acquitted co-accused) raised a slogan that Saifullah be killed in order to take revenge of the murder of his brother. All the accused fired simultaneously on Saifullah which hit on the different parts of his body and fell down and died on the spot. Thereafter Nazir Ahmed sprinkled kerosene oil on the body of Saifullah and Muhammad Iqbal set the same ablaze. The motive behind the occurrence was regarding killing of the brother of the accused which was compromised by Saifullah (deceased) and the complainant by giving 4 acres of land the dispute was compromised. The learned counsel further contended that Irshadullah and Attaullah entered into witness box as PW-11 and PW-12 respectively being eye-witnesses of the incident and deposed about the occurrence and certain recoveries. The appellate Court had wrongly disbelieved PW-12 Attaullah being witness of the incident and extended the benefit to Respondent Nos. 1 and 2 by allowing their appeal. As per postmortem report, there had 10 injuries on the person of the deceased. Five injuries were caused as incised wounds whereas rest were fire arm injuries. As per opinion of the Medical Officer all the injuries were anti-mortem in nature and Injuries Nos. 4, 5 and 7 were fatal and death occurred due to shock. The prosecution examined 13 witnesses in support of their case. Respondent Nos. 1 & 2 made their statements under Section 342 Cr.P.C. wherein they have denied the prosecution version and advanced their own version regarding their false implication. It was a blind murder committed in the darkness and they have been implicated falsely to fill in the blank of untraceable murder. However, they denied to appear as their own witnesses under Section 340(2) Cr.P.C. While analyzing and appreciating the ocular evidence it was stated in the FIR that the occurrence was witnessed by Irshadullah (Complainant)/ Petitioner and PW-12 Attaullah and Azhar Zaman PW who was given up by the prosecution on the ground that he has been won over by the accused party. Complainant Irshadullah is real brother of Saifullah whereas PW-12 Attaullah is maternal uncle of the deceased. The appellate Court appraised the evidence and extended the acquittal to Respondent Nos. 1 & 2 without any justification and there was no contradiction between ocular testimony and medical evidence. The appellate Court has wrongly disbelieved the eye-witness Attaullah (PW-12), therefore acquittal of Respondent Nos. 1 and 2 may be set aside and the judgment of the trial Court may be maintained. In support of his arguments, he has relied upon The State v. Rab Nawaz and another (PLD 1974 SC 87) and The State through A.G. Sindh v. Shankar (1997 SCMR 1000).
We have heard the arguments of the learned counsel for the petitioner, examined the judgment of the trial Court and the appellate Court and gone through the case law cited at the Bar. As per available record, Respondent Nos. 1 & 2 were arrested on 30-7-2007. Then on 11.8.2002 the Investigating Officer recovered pistol 30 bore P4 and blood-stained chhurri P5 from Habibullah vide recovery memo Exh.PG and also prepared a complaint under Section 13 of the Arms Ordinance, 1965. He also recovered 12 bore gun P6 from Muhammad Nawaz Respondent No. 1 vide recovery memo Exh. PE and recorded statement of the witnesses and submitted the report under Section 173 Cr.P.C. Learned counsel had read the deposition of PW-12 Attaullah in Court where the said witness has stated that Habibullah inflicted blows of chhurri on the deceased when he was lying on the ground but in the cross examination he has admitted as under:--
"I do not know where the complainant was at the time of recording of my deposition. After 1/2/10 minutes of the occurrence my son took the complainant inside my house. He remained inside my house till the arrival of the police. Police came at the spot after 1-1/2/1-3/4 hour of the occurrence.
He further admitted in the cross examination as under:--
"After the occurrence my conversation about the occurrence took place with the complainant after 4/5 days of occurrence. The complainant did not meet me 4/5 days after leaving the place of occurrence. 1 do not know when he had got registered the case. After 4/5 days of occurrence I came to know that the case regarding this occurrence stands registered."
The occurrence took place in front of the shop of Naveed who is milk seller. The other shop keepers left their shops open and escaped from thereafter seeing the occurrence. Twelve persons were present at the time of occurrence who fled away from the scene. The incident had taken place at the fag end of the day and the witness had alleged that he has seen the occurrence from a distance of 70 feet. Therefore the solitary statement of PW Attaullah cannot be believed. The empties recovered from the place of occurrence were sent to the Forensic Science Laboratory before the arrest of the accused and recovery of the pistols and other material was found positive from the Forensic Science Laboratory which itself is quite un-believable. The evidence of Irshadullah (Complainant) is not matching with the evidence of Attaullah (PW-12). As per evidence of Irshadullah complainant and PW Attaullah the occurrence was seen by them from behind the plank of the door. The trial Court on the basis of prosecution evidence extended acquittal to Muhammad Iqbal, Allah Ditta and Muhammad Nazir. The trial Court came to the conclusion that both the parties are not giving true account of occurrence. PW Azhar Zaman was also stated as witness but he was given up by the prosecution as being won over. There is another circumstance that as per FIR the petitioners were armed with weapons but it is now where alleged that they were armed with sharp edged weapon. The medical evidence straightaway contradicted the contents of the FIR. All the accused nominated in the FIR were attributed the role of fire arm injuries to the deceased whereas as per opinion of the Medical Officer there were only 5 fire arm injuries which were caused by pistol/gun weapon. This is obvious that alleged eye-witnesses did not see the occurrence therefore sharp edged injuries sustained by the deceased could not be explained at the time of lodging FIR. It is apparent that after receipt of the postmortem report the eye-witnesses including the complainant took another plea and a different view before the trial Court. Therefore the matter itself suggests that complainant makes his testimony doubtful. As per cross examination the complainant did not own any house in the area of place of occurrence. He may be a chance witness but he did not disclose his presence at the house of Attaullah PW-12. The deceased was sitting in front of the shop of Naveed and there were several shops but no independent witness has been cited by the prosecution. The appellate Court while delivering acquittal judgment has observed that the complainant and PW-12 Attaullah did not see the occurrence at all and their statements were excluded from the consideration. There was a glaring and irreconcilable contradiction between the ocular testimony and medical evidence. The I.O while preparing inquest report has admitted that he had mentioned in the said report that the deceased was injured by fire arm. PW Attaullah and complainant Irshadullah are close relatives of the deceased and the respondents had a background of enmity of previous murder which closed on the basis of compromise. PW Azhar Zaman being eye-witness who is maternal uncle of the complainant was dropped by the prosecution as being won over witness. The place of occurrence was located in a populated area but no independent witness was cited to support the prosecution case. The appellate Court has rightly disbelieved the prosecution evidence and observed that incident was un-witnessed other than the alleged witnesses examined by the prosecution. We have minutely examined the ocular evidence of the complainant and PW-12 Attaullah. The appellate Court had rightly disbelieved the ocular testimony, recovery of the weapons alongwith report of Forensic Science Laboratory. There is no illegality or infirmity in the impugned judgment and Respondent Nos. 1 and 2 were rightly acquitted from the charge and there is no miscarriage of justice. On the contrary the appeal was accepted as prosecution had failed to prove its case beyond any reasonable shadow of doubt.
(R.A.) Leave refused.
PLJ 2009 SC 620
[Appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari & Sheikh Hakim Ali, JJ.
MUHAMMAD UMAR @ UMRI--Petitioner
versus
STATE--Respondent
Jail Petition No. 196 of 2005, decided on 25.3.2009.
(On appeal from the judgment and order of the Lahore Court, Lahore, dated 1.4.2005 passed in Crl. A. Nos. 235, 240 and 249 of 2003).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 382-B--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 337-A(ii), 377-F(i), 337-L(ii), 452, 148 & 149--Conviction and sentence recorded against accused by trial Court, upheld by appellate Court--Challenge to--Benefit of--Neither accused was granted the benefit admissible u/S. 382-B, Cr.P.C. nor reasons were recorded for denial--Held: Supreme Court has not discovered any exceptional circumstance in the case warranting denial of benefit of S. 382-B, Cr.P.C. to the accused--Granting leave convert it into appeal and direct that the petitioner was entitled to the benefit of S. 382-B, Cr.P.C.
[P. 622] A & B
Mr. M. Zaman Bhatti, ASC for Petitioner.
Mr. M. Siddique Khan Baloch, Dy. P.G. Pb. for State.
Date of hearing: 25.3.2009.
Order
Muhammad Moosa Khan Leghari, J.--This jail petition arises out of judgment dated 1.4.2005 delivered by learned Lahore High Court, Lahore whereby the conviction and sentences awarded to the petitioner in the following terms were upheld:
"Under Section 302 (b) 149 PPC, Life imprisonment and compensation of Rs.50,000/- or in default 6 months S.I. each.
Under Section 324/149 PPC, 10 years R.I. and fine of Rs.5,000/- or in default 3 months S.I. each.
Under Section 452/149 PPC, four years R.I. and fine of Rs.1,000/- or in default one month S.I. each.
Under Section 452/149 PPC, one year R.I. with a fine of Rs.1000/- or in default one month S.I. each.
Under Section 149 PPC, one year R.I. with a fine of Rs.1000/- or in default one month S.I. each".
Consequent upon registration of F.I.R. No. 76 of 2000, Police Station, Qabula, District, Pakpattan Sharif under Sections 302/324/337-A(ii)/337-F(i)/337-L(ii)/452/148/149 PPC, the petitioner alongwith ten other accused persons were tried for committing Qatl-e-Amd of Mst. Rehmat Bibi and attempting to commit Qatl-e-Amd of Ghulam Farid and Rashid Ali. He was convicted and sentenced by the Trial Court as reproduced above. The appeal filed by the petitioner was dismissed by the learned High Court.
Learned counsel for the petitioner relying upon the case of "Ghulam Murtaza. Vs. The State" (PLD 1998 S.C. 152) has raised a grievance that the trial Court as well as Appellate Court has denied the benefit of Section 382-B Cr.P.C. to the petitioner without recording any reasons. Learned Deputy Prosecutor General was unable to controvert the above position.
Having heard learned counsel for the petitioner and learned Deputy Prosecutor General, Punjab and examining the judgments passed by the trial Court and the learned High Court, we find that neither the petitioner has been granted the benefit admissible under Section 382-B Cr.P.C. nor reasons have been recorded for denial thereof. In case of Ghulam Murtaza Vs. The State (Supra), this Court has held as under:--
"In the case of Liaquat Ali. v. The State PLD 1995 S.C. 485 the Shariat Appellate Bench of this Court considered the effect of Section 382-B Cr.P.C. and came to the conclusion that where the Courts below have omitted to consider grant of concession of Section 382-B Cr.P.C. to the accused, the same benefit can be extended by this Court.
From the preceding precedent it appears that unless there are any exceptional circumstances in a case which the Court considers sufficient for the purpose of denying the benefit of Section 382-B Cr.P.C. to the accused, the Court in all other cases while awarding sentence, will take into consideration the period during which the accused remained in detention during his trial, and this period will normally be adjusted in the sentence awarded to the accused by allowing him the benefit of Section 382-B Cr.P.C".
(R.A.) Leave accepted.
PLJ 2009 SC 623
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Sarmad Jalal Osmany, JJ.
SAIF-UR-REHMAN--Petitioner
versus
STATE--Respondent
Jail P. No. 212 of 2007, decided on 25.3.2009.
(Against the judgment dated 31.7.2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 508 of 2005).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recovery of 259 kgs of charas pukhta, 20 Kgs of charas garda and 5.500, kgs of opium quantity of narcotics from different cavities of the jeep--Guilty of the charge--Conviction and sentence recorded against accused by trial Court--Challenge to--Reduction in quantum of punishment--A person who commits a crime not for any personal motive or reasons but agrees to the same only on hire and for monetary reward, would always be entitled to compensation, sympathy, mercy and could demand leniency in matter of quantum of punishment--Held: Supreme Court cannot be a party to creating such a law which would amount to encouraging and licensing the practice of hired assassins, hired dacoits, hired robbers and hired criminals of other sorts--Further held: A hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such are the people who deserved to be dealt with an cross hand and deserved same kind of treatment which would be warranted in the case of any criminal, if not stricter and harsher treatment--Leave refused. [P. 624] A, B & C
Mr. Muhammad Aslam Uns, ASC for Petitioner.
Nemo for State.
Date of hearing: 25.3.2009.
Judgment
Khalil-ur-Rehman Ramday, J.--Saif-ur-Rehman petitioner was tried for having been found in possession of 259 kgs of CHARAS PUKHTA; 20 kgs of CHARAS GARDA and 5.500 kgs of OPIUM which quantity of narcotics had been recovered from different cavities of the Jeep being driven by him which cavities had been especially created for the purpose. As a result of the trial which ensued, a Special Court at Peshawar found him guilty of the charge; convicted him under Section 9(c) of the Control of Narcotic Substances Act, 1997 and punished him with sentence of imprisonment for life and a fine of Rs.5,00,000/- or five years S.I. in default of payment of fine. His appeal before the Peshawar High Court failed which has brought him to this Court through Jail Petition No.212 of 2007.
The learned ASC for the petitioner, submitted at the very outset that in view of the confession made by Saif-ur-Rehman petitioner which confession had been recorded by the competent Magistrate at Peshawar under Section 164 of the Cr.P.C., he would not contest the conviction recorded against him and consequently prayed only for reduction in the quantum of punishment awarded to the petitioner on the ground that the petitioner was only a carrier who had accepted to transport the said huge quantity of narcotics for some monetary compensation.
Having examined the record, we find that the choice exercised by the learned ASC for not contesting the conviction recorded against the petitioner was not un-founded as, in addition to the said confessional statement made by him, sufficient evidence existed on the record to sustain the said conviction recorded against him.
We have pondered over the prayer of the learned ASC vis-a-vis the reduction in quantum of punishment but find it difficult to grant the same. Acceding to such a request would amount to laying down a law that a person who commits a crime not for any personal motive or reasons but agrees to the same only on hire and for some monetary reward, would always be entitled to compassion, sympathy, mercy and could consequently demand leniency in the matter of quantum of punishment. We are afraid, we cannot be a party to creating such a law which would amount to encouraging and in fact licensing the practice of hired assassins, hired dacoits, hired robbers and hired criminals of other sorts. In fact, we would, on the contrary, declare that a hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such are the people who deserved to be dealt with an iron hand and deserved the same kind of treatment which would be warranted in the case of any other criminal, if not stricter and harsher treatment.
Having thus examined all aspects of the matter, we find no merit in this petition which is accordingly dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 625
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk &
Zia Perwez, JJ.
ABID HUSSAIN--Petitioner
versus
CHAIRMAN, NESCOM, ISLAMABAD and another--Respondents
C.P.L.A. No. 33 of 2009, decided on 26.1.2009.
(On appeal from judgment dated 16.12.2008 of Federal Service Tribunal, Islamabad passed in Appeal No. 1107(R)CW of 2004).
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Civil servant--Removal from service--Maintained by Service Tribunal--Charge against civil servant was that he attempted to rape--Charge proved during regular inquiry conducted by the committee--Action taken against civil servant cannot be taken an exception to--Inquiry officer recommended the stoppage of promotion for a period of 14 years--Authority did not agree with quantum of punishment--No show-cause notice was issued to civil servant--Contentions--Validity--It was served after the submission of inquiry report and it was clarified to the civil servant that punishment involved could include dismissal from service--Civil servant, therefore, was not condemned unheard--Leave refused.
[P. 626] A
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 26.1.2009.
Judgment
Sardar Muhammad Raza, J.--Abid Hussain, a former Technical Helper, Project Management Organization (PMO), National Engineering and Scientific Commission (NESCOM), having been removed from service vide order dated 27.5.2004 of the competent authority and the same having been maintained by the learned Federal Service Tribunal, Islamabad vide judgment dated 16.12.2008, seeks leave to appeal therefrom.
The charge against the petitioner was that on 9.7.2003, in PMO Colony, he attempted to rape Mrs. Surila, wife of Nazakat Khan, who had visited Medical Centre to meet Senior Nurse, Aziz-un-Nisa, after having learnt that the latter required a maid servant. The above charge is fully proved during regular inquiry conducted by the Committee. He had fully associated with the proceedings; the witnesses were examined in his presence; he cross-examined them according to his choice; was given show-cause notice and above all, he had confessed his guilt in writing. The charge is proved and hence the action taken against him cannot be taken an exception to.
The inquiry officer had recommended the stoppage of promotion for a period of 14 years, but the competent authority, not agreeing with the quantum of punishment, ordered the removal from service. Learned counsel challenged this conduct, believing, that the competent authority had no jurisdiction to disagree with the recommendation of the inquiry committee. We do not agree with the argument because the competent authority has every jurisdiction and power to disagree with the inquiry officer, especially on the quantum of punishment.
The authority 2008 SCMR 1174 relied upon by the learned counsel has rightly been distinguished by the learned Tribunal, observing that in the aforementioned ruling, the official was charged of inefficiency and misconduct, while in case in hand, the charge relates to the moral turpitude, which, in a sensitive institution like that of respondent, must be seriously dealt with.
The learned counsel for the petitioner further assailed the action of the competent authority, that before disagreeing with the inquiry officer, no show-cause notice was issued to the petitioner. In this connection, we would look into the show-cause notice dated 10.3.2004 (P:39), the contents whereof would clearly suggest that it was served after the submission of inquiry report and it was clarified to the petitioner that the punishment involved could include dismissal from service. The petitioner, therefore, was not condemned unheard.
Consequently, we see no merit in the petition, which is accordingly dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 626
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali, JJ.
EJAZ NASEEM--Petitioner
versus
FAREEHA AHMAD and others--Respondents
C.P. No. 1490 of 2008, decided on 3.12.2008.
(On appeal from the order/judgment dated 31.10.2008 passed by Islamabad High Court, Islamabad in Writ Petition No. 2938 of 2006).
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Suit for dissolution of marriage on bases of khula--Jurisdiction--Section 5 of Family Courts Act has conferred exclusive jurisdiction upon a Family Court to entertain, hear and adjudicate upon matters specified in Part I of Schedule Family Court was passed of the jurisdiction by the Family Courts Act, to adjudicate upon all those matter, pleaded as counter claim in the written statement--Not only dissolution of marriage yet dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, dowery, personal property and belongings of wife are entered and included in the schedule. [P. 629] A
Estoppel--
----Consent decree on basis of compromise--When particularly the consent decree was allowed to be passed by the petitioner himself on the basis of compromise entered into by him, without any objection to it--An estoppel as against the petitioner who had through his own representation allowed the defendant to accept the compromise and had let the compromise become a concent decree of the Court.
[P. 630] B
Consent Decree--
----Delay of 390 days--Not be condoned--Consent decree passed against him at the stage of execution petition, and through an appeal which was barred by inordinate delay of 390 days, which could not reasonably be condoned on any sound reasoning. [P. 630] C
Mr. Ibad-ur-Rehman Lodhi, ASC and Mr. Ejaz Muhammad Khan, AOR (absent) for Petitioner.
Khawaja Muhammad Farooq, ASC for Respondent No. 1.
Nemo for Respondents Nos. 2 & 3.
Date of hearing: 3.12.2008.
Order
Sheikh Hakim Ali, J.--Dr. Ejaz Naseem, the present petitioner of the instant civil petition had contracted marriage with Mst. Fareeha Ahmad on 31st October 1992. From this wedlock, two daughters namely Laiba Ejaz and Rahima Ejaz were born. According to petitioner, in the month of May 2002, cordial and friendly relations became strained and uncongenial atmosphere prevailed which resulted in the institution of a suit for restitution of conjugal rights by the petitioner, against Mst. Fareeha Ahmad, defendant/Respondent No.1. After appearing in the suit, Mst. Fareeha Ahmed, defendant filed a written statement claiming therein dissolution of marriage on the basis of khula, recovery of cash to the tune of Rs.2,90,000/- and personal belongings i.e. jewelry and house hold goods, etc. as per list appended in the form of Annexure A and payment of maintenance for herself at the rate of Rs.20,000/- per month, while for minor daughters at the rate of Rs. 15,000/- per month each with effect from January 2002. She also claimed Rs. 1,75,000/- as maternity expenses for the above noted two children, and Rs.438,428/- as educational expenses, incurred on the schooling of both these minor daughters with effect from 2001 to 2004. Issues were framed but before the evidence could be produced, parties entered into a compromise, which was produced by the learned counsel for the plaintiff in the shape of an Affidavit, and was brought on the case file as Mark "A" through the statement of the learned counsel for the plaintiff. The compromise was accepted by the learned counsel for the defendant, and on 7.5.2005, the learned Judge Family Court, Islamabad, decreed the counter claim of the defendant in accordance with the affidavit Mark "A", while the dissolution of marriage was decreed when the petitioner had consented to it. On 2.12.2005, an execution petition was filed by Mst. Fareeha Ahmad, Respondent No. 1, in which an objection petition was filed by Dr. Ejaz Naseem, which was dismissed on 21.4.2006. Revision was filed against that order but it was withdrawn on 6.9.2006. Thereafter, an appeal under Section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as the "Act") along with an application for condonation of delay of 390 days, was filed. Learned District Judge, Islamabad, accepted the appeal on 22.9.2006 and remanded the case to the learned Family Court for trial afresh. This judgment was challenged by Mst. Fareeha Ahmed before the Islamabad High Court, Islamabad, through Writ Petition No. 2938 of 2006 which was accepted through the impugned judgment dated 31.10.2008 by setting aside the judgment of learned District Judge, Islamabad, and upholding the judgment and decree dated 7.5.2005 of the learned Judge Family Court, in favour of Mst. Fareeha Ejaz, Respondent No. 1. Hence, this civil petition for leave to appeal by Dr. Ejaz Naseem.
(1) Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 S.C. 314);
(2) Ali Muhammad and others v. Muhammad Shafi and others (PLD 1996 S.C. 292); and
(3) Islamic Republic of Pakistan v. Messrs Conforce Limited and others (2001 CLC 1741).
On the other learned counsel appearing on behalf of Respondent No. 1 submits that there was no prohibition to make such claims in the written statement, if the learned Judge Family Court was empowered by law to have the exclusive jurisdiction to adjudicate all those claims, claimed by Respondent No. 1 in her written statement. Petitioner had not raised any objection with regard to the jurisdiction of the learned Judge Family Court at the time of passing of the decree or at any time after the filing of written statement by Respondent No. 1 in that Court. Even issues framed had not contained any such issue with regard to the jurisdiction of the learned Judge Family Court. When such was the case and the compromise was entered into by plaintiff himself voluntarily, in such an event, plaintiff was estopped to plead question of jurisdiction particularly in the execution petition which was filed before the concerned executing Court. Appeal filed under Section 14 of the Act was badly barred by time and was rightly dismissed by the learned Judge in Chamber of the High Court.
After giving anxious thoughts to the points raised, facts noted and to the judgments quoted, we are not inclined to grant leave in this civil petition, because Section 5 of the Act has conferred exclusive jurisdiction upon a Family Court to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule to the Act. We have noted that Part I of the Schedule contains all those subjects for which claims/prayers were made by Respondent No. 1 before the Family Court in her written statement. In other words, the Family Court was possessed of the jurisdiction by the aforementioned Act to adjudicate upon all those matters, pleaded as counter claim in the written statement. Not only dissolution of marriage yet dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, dowry, personal property and belongings of wife are entered and included in the Schedule. To explain it more, the jurisdiction of the learned Judge Family Court extends to decide all those disputes which arise with regard to the items noted in Part I of the Schedule. To examine it from another angle, the learned Judge Family Court had got the jurisdiction to entertain, hear and adjudicate upon all those disputed items, which were pleaded, claimed and raised by respondent Fareeha Ahmad in her written statement. There was not a single item noted in the written statement which could be disputed and deemed to be falling outside the ambit of the jurisdiction of the learned Judge Family Court. Therefore, the most vehemently raised objection by the learned counsel for the petitioner that the learned Judge Family Court had got no jurisdiction could not be proved a sound and valid argument. At the most, the plaintiff could have raised that the counter claims were containing multifarious prayers and reliefs, for which the defendant could be ordered to bring out separate suits for those prayers/reliefs/claims if the Court had considered it appropriate in the circumstances of the case. The failure to raise such objection by the plaintiff/petitioner, at the opportune moment, he can not now be permitted to plead it at this stage, when particularly the consent decree was allowed to be passed by the petitioner himself on the basis of compromise entered into by him, without any objection to it. It has now created an estoppel as against the petitioner who had through his own representation allowed the Defendant/Respondent No.1 to accept the compromise and had let the compromise become a consent decree of the Court. It does not now lie in the mouth of petitioner to challenge that consent decree passed against him especially at the stage of execution petition, and through an appeal which was barred by inordinate delay of 390 days, which could not reasonably be condoned on any sound reasoning.
Accordingly, we have not found any illegality in the impugned judgment of the Islamabad High Court. The Civil Petition is dismissed and the leave is refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 630
[Appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali, JJ.
ABDUL RASHID NASIR, etc.--Appellants
versus
STATE--Respondent
Crl. Appeal No. 361 of 2005, decided on 4.12.2008.
(On appeal from the judgment and order of the High Court of Balochistan, Quetta, dated 5.9.2005, passed in Crl. A. No. 3 of 2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 409--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against appellants by the trial Court which was maintained by High Court--Assailed--Leave was granted to consider the question whether the alleged transaction of misuse of bank guarantee constituted an offence u/S. 409, PPC and the conviction and sentence awarded to the appellants has the sanction of law--Held: To constitute an offence u/S. 409, PPC there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender--Such ingredients are absolutely lacking in the present case--There is no evidence to conclude that the bank guarantee was encashed by the appellants, or by some one else acting on their behalf and the cash was misappropriated--Even there is no material to established that the bank sustained any loss attributable to the appellants on account of alleged transaction--Appeal allowed.
[Pp. 634 & 635] A
Mr. Waseem Sajjad, Sr. ASC and Mr. Tariq Mehmood, for Appellants.
Sardar M. Ghazi, D.A.G. for State.
Date of hearing: 4.12.2008.
Judgment
Muhammad Moosa Khan Leghari, J.--The judgment dated 05.09.2005 passed by High Court of Balochistan, Quetta in Special Criminal Appeal No. 03 of 2001 has been assailed through this petition for leave to appeal. By the said judgment the conviction of the appellants and sentence awarded to them under Section 409 PPC by Special Judge Banking Court of Balochistan, Quetta was maintained.
The proceedings against the appellants and the co-accused were initiated on the written complaint submitted by Syed Ikhlaq Ahmed Zedi, Zonal Chief National Bank of Pakistan, Quetta vide letter dated 26.05.1996, alleging therein that on the instructions of co-accused, Mr. M.B.Abbasi the then President of National Bank of Pakistan, a bank guarantee worth Rs.60 million was issued in favour of Pakistan State Oil, on behalf of M/s. Taftan Oil Company (Pvt.) Ltd., and in the name of the appellants as the Directors of the said Company. Allegedly the said bank guarantee was issued without obtaining the certificate of the legal advisor, without obtaining CIB report and NOC from NCBS thus in defiance of the conditions stipulated in the memo of Credit Division. It was alleged that the land mortgaged by way of collateral security was also highly over-valued. As such the bank was exposed to a great risk/loss. It was further alleged that the transaction was made with mala fide intention whereby the offence of cheating and breach of trust was committed. On the basis of such complaint, FIR was registered for the offences punishable under Sections 409, 420, 467, 468, 471 and 109 PPC read with Section 5(2) of Act II of 1947, against M.B.Abbasi the then President of National Bank of Pakistan and the appellants being the Directors of M/s. Taftan Oil Company (Pvt.) Ltd.
The appellants were sent up to face trial before the Special Court (Offences in Respect of Bank) Balochistan, Quetta, whereas co-accused M.B. Abbasi and Jehangir Ansari the then Managing Director Pakistan State Oil were declared proclaimed offenders. The appellants having refused to plead guilty were put to trial.
The prosecution in order to substantiate the accusation examined as many as 17 witnesses and tendered number of documents in evidence. In their statements recorded under Section 342 Cr.P.C. the appellants denied the charges and claimed to be innocent.
On conclusion of trial the appellants were convicted under Sections 403, 409 and 420 PPC and Section 5(2) of Act-II of 1947 for various terms to the extent of 7 years R.I. However, on appeal, learned High Court of Balochistan set aside the sentence awarded to the appellants under Sections 403, 420 PPC and Section 5(2) of Act-II of 1947 while the conviction and sentence awarded to them under Section 409 PPC was maintained.
Vide judgment dated 27.10.2005 leave was granted to consider the question whether the alleged transaction of misuse of bank guarantee constituted an offence under Section 409 PPC and the conviction and sentence awarded to the appellants has the sanction of law.
We have heard Mr. Waseem Sajjad, Sr. ASC for the appellants and Sardar Muhammad Ghazi, learned Deputy Attorney General for the State.
It is contended on behalf of the appellants that the appellants were the Directors of a private Company on whose behalf the bank guarantee was allegedly issued by National Bank of Pakistan in favour of Pakistan State Oil. Learned ASC submitted that the accusation even if presumed to have been proved would not fall within the ambit of Section 409 PPC to constitute an offence of criminal breach of trust as the essential ingredients of the offence were conspicuously missing. Learned ASC argued that the appellants were neither entrusted with the property nor had any domain over property and that there was no proof that any money was actually converted by the appellants to their own use. He further submitted that the banks guarantee was not encashed and that no monetary loss was caused to the bank.
Notwithstanding the above arguments learned ASC contended that the Review Board (NRO) Accountability on the petition moved by MB. Abbasi and another vide order dated 26.07.2008 has recommended the withdrawal of the above case against the appellants M.B.Abbasi and another observing that the above case was falsely initiated against the appellants for political reasons and were implicated because of political victimization. Learned counsel pleaded that consequent thereto the State decided to withdraw from prosecution of the appellants (M.B.Abbasi and another) under sub-section (2) of Section 494 of Cr.P.C. Learned ASC has placed on record a copy of the order dated 03.09.2008 passed by this Court in Criminal Petition No. 293 of 2008 to demonstrate that the co-accused namely M.B.Abbasi and Nabi Bakhsh Soomro convicted by the Special Court vide judgment dated 14.05.2001 were acquitted. Learned ASC submitted that as the two Officers of the Bank who were the principal accused stood acquitted as the case was withdrawn by the prosecution, the judgment of conviction recorded against the appellants was rendered unsustainable and invalid, as the appellants were also entitled to the same treatment and benefit by adhering to the rule of consistency. Learned Sr.ASC for the appellants in support of the above propositions relied upon the citations reported in National Accountability Bureau through Chairman. Vs. Aamir Lodhi and another (PLD 2008 Supreme Court 697) and (Muhammad Iqbal Chatha Vs. The State (NLR 1988 Criminal 217).
Learned Deputy Attorney General for Pakistan though vigorously supported the judgment and emphatically opposed the plea of acquittal yet he was at great pain to controvert the legal and factual position, having emerged out of the case of National Accountability Bureau (supra) referred by learned Sr.ASC for the appellants.
We have considered the submissions and have examined the material placed on the record.
It will be appropriate to reproduce hereunder the order dated 26.07.2008 passed by Chairman, Review Board (NRO) Accountability on the petition submitted by co-accused M.B.Abbasi and others:
"This Board has gone through the petition and the material annexed with it carefully and minutely. The petitioners have been acquitted of all NAB cases except one FIR No.4 of 1997-PS FIA/CBC, Quetta (Case No.37 of 1997) pending in the Court of Special Judge, (Offences in Banks), Balochistan, Quetta Wherein the Petitioner No. 1 in the capacity of President of National Bank of Pakistan issued guarantee of Rs.60 million in favour of Tafton Oil Company, Quetta. Perusal of the record in the case shows that the above case was falsely initiated against the petitioners for political reasons and were implicated because of political victimization, as it would appear from the material produced on record the petitioners refused to give statement against the leader of the political parties, hence the petitioners were involved in the false cases with political motivation.
This Board is firmly of the view after considering the material on record that this case was a result of political reasons for political victimizing the petitioners, therefore, we would recommend the withdrawal of the above case against the petitioners".
"For the reasons to be recorded later, this petition is converted into appeal and is allowed. Since as per statement made by the learned Attorney General for Pakistan, the State, on the recommendations made by the Federal Review Board contained in Letter No. 06/2008/FRB, dated 31st July, 2008, has decided to withdraw from prosecution of the appellants, under sub-section (2) of Section 494 Cr.P.C, inserted through National Reconciliation Ordinance (Ordinance No. LX of 2007) therefore, the conviction and sentences recorded against the appellants, namely, M.B.Abbasi and Nabi Bakhsh Soomro, under Sections 409, 420 PPC read with Section 5(2) of the Act-II of 1947, by the Special Judge, (Offence in Respect of Banks), Balochistan, Quetta, vide judgment dated 14.05.2001, are set-aside and they are acquitted of the charges. The appellants are already on bail therefore, their bail bonds are discharged".
From the perusal of the order passed by a Full Bench of this Court which has been reproduced hereinabove, it is evidently clear that the proceedings against the principal offender viz. M.B. Abbasi the President National Bank of Pakistan had come to an end, as the prosecution was withdrawn. The case reported in National Accountability Bureau through Chairman. Vs. Aamir Lodhi and another (PLD 2008 Supreme Court 697) is fully applicable to the facts and circumstances of the instant case, wherein it has been observed "that if an abettor or any other person could be charged, tried or convicted alongwith holder of a public office, then if the principle offender was acquitted or proceedings against him were dropped under the National Reconciliation Ordinance, 2007, then as to why benefit thereof would not be extended to the ordinary person, because both sailed in the same boat". There being no legal justification to deviate from the above rule, the appellants are entitled to be acquitted in the instant case.
In addition to above, it may be observed that to constitute an offence under Section 409 PPC there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender. As clearly obvious from the scrutiny of evidence, such ingredients are absolutely lacking in the present case. There is no evidence to conclude that the bank guarantee was encashed by the appellants, or by some one else acting on their behalf and the cash was misappropriated. Even there is no material to establish that the bank sustained any loss attributable to the appellants on account of alleged transaction.
The facts and the circumstances discussed hereinabove have led us to an irresistible conclusion that the conviction and sentence awarded to the appellants is unsustainable in law. We are, therefore, persuaded to allow this appeal, which is accordingly allowed. The judgment of conviction and sentence recorded against appellants is set-aside. Consequently the appellants stand acquitted.
(M.A.K.Z.) Accused acquitted.
PLJ 2009 SC 635
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, M. Javed Buttar & Ch. Ejaz Yousaf, JJ.
COMMODORE (R) SHAMSHAD--Petitioner
versus
FEDERAL BOARD OF INTERMEDIATE & SECONDARY EDUCATION & others--Respondents
Civil Petition No. 1512 of 2008, decided on 19.12.2008.
Constitution of Pakistan, 1973--
----Arts. 63, 66 & 68--Freedom of speech in parliament--Immunities and privileges of the parliament and its members including the power to punish for contempt by making a law which may empower a Court to punish a person who refuses to give evidence or produce documents--While exercising powers pursuant to Art. 66 or the Rules of Procedure of the National Assembly there can be no violation or transgression of other provisions of the Constitution--Art. 63(g) of Constitution provides for disqualification of a candidate or a member of parliament if he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of judiciary of Pakistan, or which defames or springs into ridicule the judiciary or the Armed Forces of Pakistan--Art. 68 of the Constitution also states that no discussion shall take place in the parliament with respect to the conduct of a Judge of the Supreme Court or a High Court in discharge of his duties. [P. 638] A
Powers of Judicial Review--
----Legislature, executive and judiciary are enjoined by Constitution to perform their functions and discharge their duties within the limits set by the Constitution and law--Existence and extent of a privilege of a House are matters which can only be judicially determined by a Court of law by exercise of powers of judicial review--It has certain privilege is not conclusive and the same has to be established before the Court of law--Proceedings, by a Court or the parliament or its committee, are not to be taken in a manner which may lead to un-necessary confrontation and choas--Provisions of Rule 201(5) of the Rules of Procedure & Conduct of Business in the National Assembly seem to have been wisely introduced with a view to avoid any conflict or encroachment with the exercise of judicial power which cannot be taken away or abridged in any manner. [P. 639] B
Raja Abdul Rehman, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Agha Tariq Mahmood, ASC/Legal Advisor, FBISE Islamabad for Respondent Nos. 1 & 2.
Mr. Muhammad Azam Sultanpuri, Advocate in person for Respondent Nos. 4 & 5.
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan for Respondent No. 3 & on Court Notice.
Nemo for Respondent No. 6.
Date of hearing: 19.12.2008.
Judgment
Faqir Muhammad Khokhar, J.--The Respondents No. 4 and 5 filed Writ Petition No. 1576 of 2008 before the Islamabad High Court, stating therein that certain news items had appeared in the newspapers to the effect that the petitioner, ex-Chairman of the Federal Board of Intermediate & Secondary Education, Islamabad had awarded 21 additional marks to the daughter of the Hon'ble Chief Justice of Pakistan in the F. Sc. (Pre-medical) Examination, 2008, by re-evaluating her answer-books, against the rules and regulations of the Board. It was prayed that the additional marks so awarded to her be struck down. The writ petitioners also filed Civil Miscellaneous No. 3448 of 2008 for procurement of the record of the candidate through the bailiff of the High Court. The matter came up for hearing on 3.12.2008 and 4.12.2008. Then the case was adjourned to 5.12.2008 on which date the record of the candidate produced by the Legal Advisor of the Board was sealed by the High Court and handed over to the Deputy Registrar (Judicial) for safe custody in order to avoid apprehension of being tampered with. On 4.12.2008 the petitioner, being a former Chairman of the Federal Board of Intermediate & Secondary Education, Islamabad allegedly appeared and presented two applications in the Office of High Court which were orally refused to be registered.
On the same day he filed this petition for leave to appeal without there being any formal order of the High Court. A learned Single Judge of this Court, by order dated 4.12.2008 restrained the Standing Committee of National Assembly & its Members or any other forum to initiate any proceedings or to hold any inquiry against the petitioner and other officials of the Board till final decision of the Islamabad High Court. Notice to the respondents as well as to the Attorney General for Pakistan were directed to be issued.
The learned counsel for the petitioner submitted that he wanted to file two applications in the High Court, one under Order I, Rule 10 CPC for impleading the Standing Committee of the National Assembly on Education as a party and the other seeking an injunctive order against the Standing Committee as the matter was subjudice before the High Court. However, the office of the High Court refused to entertain both the applications without passing any formal written order. He further argued that in view of the provisions of Articles 66 and 68 of the Constitution of Islamic Republic of Pakistan and Rule 201(5) of the Rules of Procedure & Conduct of Business in the National Assembly, the Standing Committee was not empowered to hold an inquiry into the matter which was subjudice before the High Court nor it could issue any process to discuss the conduct of a Judge of the Supreme Court in any manner on the principles of trichotomy of power. He further submitted that the Chairman of the Committee was biased and was conducting the proceedings mala fide.
The learned Attorney General for Pakistan, appearing on Court's call, frankly stated that neither the applications of the petitioners were on the record of the High Court nor the High Court had passed any order. Therefore, the petitioner was required to approach the High Court in the first instance.
The learned counsel for the Respondents No. 1 and 2 submitted that he was not in a position to state full facts of the case as the record had already been sealed and taken into custody by the High Court.
The Respondent No. 5, an Advocate of the High Court, appearing in person and also for the Respondent No. 4, stated that the matter was already subjudice before the High Court which was to be decided on its merits and the next date of hearing of the writ petition was fixed for 13.1.2009.
We have heard the learned counsel for the parties and the learned Attorney General for Pakistan at length and have also perused the available record. It is highly doubtful that any applications were formally presented to the learned Bench of the High Court which was seized with the case. Even no such applications were annexed with this petition. We are certain that had the applications been duly filed the same would have been dealt with in accordance with law. The petitioner acted with unholy haste in rushing to this Court without any formal order of the High Court. In the absence of any material on record, it is not possible or desirable for us to go into the questions of bias or mala fides of the Chairman of the Committee.
As regards the other plea of the learned counsel for the petitioner, we may observe that Article 66 of the Constitution provides for the freedom of speech in Parliament and Committees thereof and also the immunities and privileges of the Parliament and its Members including the power to punish for contempt by making a law which may empower a Court to punish a person who refuses to give evidence or produce documents. However, Article 66 itself has been made subject to the other provisions of Constitution and the Rules of Procedure of the Parliament. This obviously means that while exercising powers pursuant to Article 66 or the Rules of Procedure of the National Assembly there can be no violation or transgression of other provisions of the Constitution. For instance, Article 63 Clause (g) of the Constitution provides for disqualification of a candidate or a Member of Parliament if he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan. Article 68 of the Constitution also states that no discussion shall take place in the Parliament with respect to the conduct of a Judge of the Supreme Court or a High Court in discharge of his duties. Not only that Article 204 of the Constitution empowers the Supreme Court or a High Court to punish any person who :--
(a) Abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) Scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitute contempt of the Court.
We do not claim supremacy but at the same time it is our constitutional duty to uphold the independence of judiciary and rule of law. The legislature, executive and judiciary are enjoined by the Constitution to perform their functions and discharge their duties within the limits set by the Constitution and the law. The existence and extent of a privilege of a House are matters which can only be judicially determined by a Court of law by exercise of power of judicial review. The mere assertion by the House or its Committee that it has certain privilege is not conclusive and the same has to be established before the Court of law. But once the same is established, the Courts are required to stay their hands off ungrudgingly. The proceedings, by a Court or the Parliament or its Committee, are not to be taken in a manner which may lead to un-necessary confrontation and chaos. The provisions of sub-rule (5) of Rule 201 of the Rules of Procedure & Conduct of Business in the National Assembly seem to have been wisely introduced with a view to avoid any conflict or encroachment with the exercise of judicial power which can not be taken away or abridged in any manner. In the absence of any material on record, it is neither possible nor desirable for us at this stage to go into the questions of bias or mala fides of the Chairman of the Standing Committee.
We do not find any merit in this petition which is hereby dismissed and leave to appeal is refused but with the above observations.
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 639
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ijaz-ul-Hassan, JJ.
GHULAM SHABBIR SHEIKH--Petitioner
versus
CHIEF EXECUTIVE OFFICER, QUETTA (QESCO) and another--Respondents
Civil Petition No. 1341 of 2008, decided on 16.12.2008.
(On appeal against the judgment dated 9.8.2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 2240 (R)CE/2005).
Removal from Service (Special Powers) Ordinance, 2000 (XVII of 2000)--
----S. 5(4)--Constitution of Pakistan, Art. 212(2)--Compulsory retirement--Major penalty of compulsory retirement imposed by departmental authority maintained by Services Tribunal--Challenge to--Held: Except in the extra ordinary and exceptional circumstances, the dispensation of the regular inquiry in a case involving factual controversy would amount to withhold the right of fair opportunity of a person to rebut the charges, but the fact cannot be lost sight of that the petitioner was proceeded against departmentally and he was duly informed of the charges leveled against him--A high power committee was constituted to probe into the matter--Civil servant was afforded reasonable opportunity of personal hearing before the imposition of penalty, which were considered enough to provide the opportunity of defence--It was for the competent authority to decide whether the formal inquiry was required or not in terms of provisions of Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000--Leave refused.
[Pp. 641 & 643] A & B
Mr. Haider Hussain, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 16.12.2008.
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against the judgment dated 9.8.2008 passed by learned Federal Service Tribunal, Islamabad, (herein-after referred to as the Tribunal) whereby appeal filed by petitioner Ghulam Shabbir Sheikh, challenging the order of his compulsorily retirement from service, has been dismissed.
Facts of the case are, that during incumbency as Revenue Officer, Operation Division QESCO, Loralai, from 2.6.2001 to 8.11.2001, petitioner was proceeded against for `misconduct' on the allegations of having, in collaboration with other officials, by misusing and ignoring the instructions/rules, facilitated the change of tariff from Single Phase Domestic (01) to Agricultural tariff (52) and extension of load of 538 consumers of Kohlu Sub-Division in computer records without recovery of security deposit amounting to Rs.41,84,000/- before feeding the data to computer center. An inquiry committee was constituted to probe into the allegations and in pursuance of recommendations of the committee, petitioner was issued show-cause-notice and ultimately he was retired from service. The petitioner, filed departmental appeal which remained unactioned. The petitioner preferred appeal before learned Tribunal, which has been dismissed through the judgment impugned herein, as stated and mentioned above.
Mr. Haider Hussain, Advocate for the petitioner, bitterly criticised the impugned judgment and attempted to argue that the allegations leveled against the petitioner imputing acts of corruption necessarily called for a regular inquiry which was dispensed with at the time of issuing of first show-cause-notice without recording any reasons and disclosing any justification for adopting a summary procedure; that petitioner was not confronted with the evidence in support of allegations and thus was not provided proper opportunity to defend his case despite of his repeated requests; that petitioner was not involved in the alleged loss of Rs.4.148 million and even otherwise, the irregularity was curable. Concluding the arguments, learned counsel contended that another employee with the same allegations was imposed a lesser penalty of one step down in time scale for a period of two years without effect which was discriminatory. To substantiate the contentions, reliance was placed on Secretary to Government of NWFP Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan, (1996 SCMR 413), Abdul Samad and others versus Federation of Pakistan and others, (2002 SCMR 71), Engineer Naraindas and another versus Federation of Pakistan and others, (2002 SCMR 82), Inspector-General of Police, Police Headquarter Office, Karachi and 2 others versus Shafqat Mehmood, (2003 SCMR 207), Syed Yaqoob Shah versus XEN PESCO (WAPDA), Peshawar and another, (NLR 2003 Service 1), Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer, (2004 SCMR 294), Executive Engineer and others versus Zahid Sharif, (2005 SCMR 824).
No doubt it is true that except in the extra-ordinary and exceptional circumstances, the dispensation of the regular inquiry in a case involving factual controversy would amount to withhold the right of fair opportunity of a person to rebut the charges, but the fact cannot be lost sight of that the petitioner was proceeded against departmentally and he was duly informed of the charges leveled against him. A high power committee was constituted to probe into the matter. The petitioner was afforded reasonable opportunity of defending his position. He was also granted opportunity of personal hearing before the imposition of penalty, which were considered enough to provide the opportunity of defence. The statement of petitioner that even otherwise the irregularity, if any, is curable because as a usual policy of the Authority, the amount was required to be re-debited by the field formations for the recovery through electricity bills or demand notices against the consumers, cannot reduce the gravity of misconduct and causing loss of Rs.4.148 million to the exchequer. It was for the competent, authority to decide whether the formal inquiry was required or not in terms of provisions of Section 5(4) of the Removal from Service (Special Powers) Ordinance (XVII of 2000), which reads as under:--
"5. Power to appoint an Inquiry Officer or Inquiry Committee: (1) Subject to the provisions of sub-section (2), the competent authority shall before passing an order under Section 3, appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person in Government service or a person in corporation service, who is alleged to have committed any of the facts or omissions specified in Section 3.
The Inquiry Officer, or, as the case may be, the Inquiry Committee shall--
(a) communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority;
(b) require the accused within seven days from the day the charge is communicated to him to put in a written defence.
(c) enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him; and
(d) hear the case from day-to-day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.
(2)------------------------------------------------
(3)------------------------------------------------
(4) The competent authority may dispense with the inquiry under sub-section (1) if it is in possession of sufficient documentary evidence against the accused, or for reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry.
(5)-------------------------------------------------
So far as the question of discrimination is concerned, record reveals that one Executive and two Sub-Divisional officers, found collaborated with the petitioner had also been awarded major penalty of compulsorily retirement from service.
In the circumstances, we find that learned Tribunal has dismissed the appeal of the petitioner, assigning sound and cogent reasons, which are not open to legitimate exception. Despite his best efforts, learned counsel for the petitioner could not point out any misreading or non-reading of material on the file or any infirmity, legal or factual, calling interference by this Court. The case law cited is distinguishable and proceeds on different facts. It is of no help to the petitioner. Even otherwise, no substantial question of law of public importance could be raised within the meanings of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, finding no substance in this petition, we dismiss the same and decline to grant leave.
(M.A.K.Z.) Leave declined.
PLJ 2009 SC 643
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ. Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
GULRAIZ AKHTAR & others--Appellants
versus
STATE--Respondent
Crl. Appeal Nos. 41, 42 & 261 of 2008, decided on 6.1.2009.
(On appeal from the judgment dated 6.12.2007 in Cr.A. Nos. 316/2003, 184-J/2003, Cr. Rev. Nos. 238-239/2003 & M.R. No. 142/2003 passed
by the Lahore High Court, Lahore)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302, 34 & 109--Conviction and sentence of death to two accused awarded by trial Court--High Court modification of death sentence into to life imprisonment to the extent of one accused--Assailed--Broad-day light occurrence--Promptly lodged FIR--Accused nominated with specific role--PWs fully supported prosecution version in unequivocal terms--Ocular evidence was corroborated by medical evidence--Empties recovered from place of occurrence wedded with the weapons recovered on the pointation of appellants report of forensic science laboratory explicit in such regard.
[Pp. 648 & 649] A, B, C & D
Conspiracy of Murder--
----Evidence regarding conspiracy having been received 37 days prior to the occurrence by PWs and not conveyed to the complainant party, well in time enabling them to protect themselves--Held: It was also not believable that the `conspiracy' was being hatched at night in a baithak on the road side with an open window, thereby affording opportunity to both the witnesses not only to hear the conversion but also peep through the same and identify and recognize the participants in the electric light without being detected themselves--Order accordingly. [P. 650] E
Sardar Khurram Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Appellants (in Cr. A. 41/2008).
Sardar Muhammad Siddique Khan, ASC and Mr. Arshad Ali Chaudhry, AOR for Appellants (in Cr. A. Nos. 42 & 261/2008).
Dr. Babar Awan, Sr. ASC for Complainant.
Mr. Siddique Khan Baloch, DPG Punjab for State.
Date of hearing: 11.9.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals by way of leave are directed against common judgment dated 06.12.2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeals filed by the appellants against their convictions and sentences recorded by the Additional Sessions Judge, Kharian as well as revisions filed by the complainant for enhancement of sentences were dismissed and Murder Reference sent by the trial Court was answered in the affirmative to the extent of Naseer Ahmad and Muhammad Younas Shah, appellants, whereas to the extent of Gulraiz Akhtar, appellant, it was answered in the negative.
Naseer Ahmad and u/S. 302/34 PPC, Death each with
Younas Shah direction to pay compensation of
Rs.50,000/- each to the legal heirs of
deceased under Section 544-A Cr.P.C. or
in default thereof to suffer 6 months R.I.
and to pay Rs.50,000/- each to the
complainant or in default thereof to
suffer 6 months R.I
Gulraiz Akhtar u/S. 109 read with Section 302/34 PPC
Death as Ta'zir with direction to pay
compensation of Rs.50,000/- to the legal
heirs of deceased under Section 544-A
Cr.P.C. or in default thereof to suffer 6
months R.I. and to pay Rs.50,000/- to the
complainant or in default thereof to
suffer 6 months R.I
Mst. Mehr un Nisa u/S. 109 read with Section 302/34 PPC, life imprisonment with direction to pay
compensation of Rs.50,000/- to the legal
heirs of deceased under Section 544-A
Cr.P.C. or in default thereof to suffer 6
months R.I. and to pay Rs.50,000/- to the
complainant or in default thereof to
suffer 6 months R.I
Benefit of Section 382-B Cr.P.C. was, however, extended to all the accused persons.
Gulraiz Akhtar and Mst. Mehr un Nisa filed Criminal Appeal No. 316/2003, whereas Naseer Ahmad & Muhammad Younas Shah filed Criminal Appeal No. 184-J/2003 before the Lahore High Court, Lahore. Murder Reference No. 142 of 2003 was also sent by the trial Court for confirmation of the death sentences. The complainant Raja Shamshad Hussain also filed Criminal Revision Petitions No. 238 & 239 of 2003 for enhancement of the sentences and also the compensation. All the appeals and revisions were heard together and dismissed by the High Court, vide the impugned judgment. The convictions and sentences recorded against all the accused persons were maintained with the exception that the sentence of death inflicted on Gulraiz Akhtar was reduced to imprisonment for life with benefit of Section 382-B Cr.P.C.
Learned counsel for the appellants has contended; that since witnesses were closely related to the deceased, therefore, their testimony could not have been believed; that in the absence of any plausible explanation presence of the eye-witnesses at the place of occurrence was doubtful; that medical evidence was in conflict with the ocular evidence inasmuch as only one shot was attributed to Naseer Ahmed appellant, whereas three firearm injuries were found on the dead body and that the alleged motive was also not proved.
Sardar Khurram Latif Khan Khosa, learned ASC while appearing on behalf of the appellants in Cr.A.41/2008 contended that the accused persons, namely, Gulraiz Akhtar and Mst. Mehr un Nisa were not named in the FIR; that PW-7 & PW-8 were related interse hence their testimony was of no value; that the alleged conspiracy regarding murder of the deceased was though hatched 47 days prior to the occurrence yet, neither any information with regard thereto was passed on to the complainant or any other member of the family, nor any attempt in this regard was made which leads to the conclusion that the story was concocted later on in order to falsely implicate the afore-named appellants. He maintained that in the absence of any corroboratory evidence the appellants could not have been convicted for the offence.
Dr. Babar Awan, learned counsel appearing for the complainant, on the other hand while controverting the contentions raised by the learned counsel for the appellants has submitted that presence of both the eye-witnesses at the place of occurrence could not have been doubted as they were related to the deceased; that testimony of both the eye-witnesses could not have been discarded on the basis of mere relationship as they were not inimical towards the accused persons; that FIR was lodged promptly wherein not only specific roles were attributed to each of the accused persons but names of the witnesses were also mentioned and it was clarified that they had seen the occurrence as they were at the relevant time working in their respective lands; that the statements of eye-witnesses were duly corroborated by the recovery of weapons as well as the medical evidence. Further, the evidence of conspiracy was credible hence, the accused persons were rightly convicted for the offence.
Mr. M. Saddique Khan Baloch, learned Deputy Prosecutor General Punjab, while adopting the arguments made by Dr. Babar Awan learned counsel for the complainant added that since guilt of the appellants was fully brought home at the trial, through independent and reliable evidence, therefore, the impugned judgement was unexceptionable. In answer to the question as to why the information regarding conspiracy allegedly hatched with regard to murder was not conveyed to the complainant party by PWs 7 & 8, he submitted that since the deceased and the complainant both, at the relevant time, were away to Islamabad, therefore needful could not be done. He, however, not denied that the statements of PWs 7 & 8 under Section 161 Cr.P.C. were recorded with a delay of 47 days.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone also through the record of the case, minutely.
The prosecution case rests on the ocular evidence, account whereof, at the trial, was furnished by PW-17 Manzoor Hussain and PW-18 Raja Shamshad Hussain, who is also complainant of the case, and brother of the deceased Raja Riaz. The evidence of conspiracy rendered by PW-7 Muhammad Ishaque and PW-8 Qamar Zaman, recovery of empties, the medical evidence, the recovery i.e. .7mm rifle P-9, vide Ex.PJ at the instance of appellant Naseer Ahmad license whereof was in the name of co-accused Younas Shah; the recovery of another .7mm rifle at the instance of Younas Shah, vide Ex.PH; the report of the Forensic Science Laboratory, i.e. Ex.PZ and the evidence of motive.
Learned Judges in the High Court having found that it was a broad day light murder and FIR Ex.P1/1 was lodged promptly wherein both Muhammad Younas Shah and Naseer Ahmed appellants were duly nominated for committing murder of the deceased excluded the possibility of any fabrication or false implication. It was held that testimony of both the eye-witnesses i.e. PWs 17 & 18 being coherent and corroboratory interse on all material points could not have been disbelieved merely because of relationship with the deceased. It was also found that there was no discrepancy between the ocular and the medical evidence. The evidence regarding conspiracy was also disbelieved, however, the learned Judges felt that Gulraiz Akhtar appellant having not participated in the main offence and charged for abetment only, the sentence of death inflicted on him was on the higher side and thus required reduction. Accordingly his sentence of death was reduced to life imprisonment.
In order to ascertain as to whether or not there is substance in the contentions raised by the learned counsel for the appellant we have ourselves carefully gone through the record of the case. In the instant case, the occurrence took place at 8.00 a.m. on 7.3.2002 whereas FIR was lodged at 9.05 a.m. on the same day with Police Station Kharian Saddar at the distance of 8« miles from the place of occurrence, hence there was hardly any delay. In the FIR names of both the accused persons, namely, Muhammad Younas Shah and Naseer Ahmed were mentioned and it was disclosed that both the appellants armed with .7mm rifles directly fired at the deceased. Initially, while raising lalkara that deceased would be taught a lesson for litigation, Younas Shah fired at the deceased but it missed the target. Later on Naseer Ahmad fired which landed at the back of the deceased on the left side. It was also stated in the FIR that in addition to the complainant, the occurrence was also witnessed by Raja Manzoor Hussain and Raja Ghazanfar Ali, who were working in their respective lands, at the relevant time and had also seen the accused persons fleeing. Both the complainant as well as PW-17 Raja Mansoor Hussain while appearing in the witness box not only supported the prosecution version but confirmed in unequivocal terms that it were the aforementioned accused persons who were responsible for murder. Both the aforenamed PWs were subjected to lengthy cross examination but nothing damaging to the prosecution and favourable to the defence was elicited from them, hence their testimony was rightly believed by both the Courts below and since both the parties were previously known to the aforenamed eye-witnesses, therefore, possibility of mistaken identity of the accused persons has to be ruled out.
It has been contended by the learned counsel for the appellants that ocular evidence was at variance with the medical evidence inasmuch as a single effective shot was attributed to the accused persons by the eye-witnesses whereas as per postmortem report at least three injuries were found on the person of the deceased. PW-16 Dr. Muhammad Iqbal Alvi, while appearing before the Court in his testimony had described the following three injuries:--
Fire arm wound of entry 4 x 1 cm on left lower chest with inverted edges (posteriorly).
Fire arm wound of exit 2 x 2 cm 4 cm below left nipple.
Fire arm wound of entry 2 x 1 cm on left upper forearm interior aspect.
It would be pertinent to mention here that the Injury No. 1 which was declared as sufficient to cause death of the deceased in the ordinary course of nature, is an "entrance" wound whereas Injury No. 2 is corresponding exit wound and the Injury No. 3 is at the arm of the deceased which was caused by a fragment of the bullet. Pictorial diagram which was exhibited at the trial Court as Ex.PK/1 shows that Injury No. 3 was the corollary of Injury No. 1 as the bullet after passing through and through the body cavity struck in the arm. PW-16 in his testimony has specifically stated that he had recovered the bullet from the posterior aspect of left forearm lying subcutaneously, thus to us, there was no conflict between the ocular account and the medical evidence, rather ocular evidence was corroborated by the medical evidence, inasmuch as both the eye-witnesses are unanimous on the point that only one fire made by Naseer Ahmad remained effective whereas, the other fire made by Muhammad Younas Shah missed the target.
Another fact which cannot be lost sight of is that empties recovered from the place of occurrence wedded with the weapons recovered on the pointation of both Naseer Ahmad and Muhammad Younas Shah appellants. Report of Forensic Science Laboratory Ex.PZ is explicit in this regard. It may be mentioned here that the crime weapons were sent to the Laboratory after the empties recovered from the spot had already been dispatched to the Laboratory which fact, at the trial, was confirmed by PW-2 Safeer Afzal and PW-4 Muhammad Afzal, thus ample support was lent to the prosecution version of the evidence of recoveries as well. Further, recovery of empties as alleged, at the very outset, too, was not challenged by the defence, hence it further, strengthens the prosecution case. Findings in the impugned judgement, therefore, to the extent of Naseer Ahmad and Muhammad Younas Shah, appellants, in our view, are unexceptionable.
However, in our view, evidence regarding conspiracy allegedly hatched between Naseer Ahmad, Gulraiz Akhtar, Shams Tabraiz alias Shebi, Mehr un Nisa and Younas Shah, having been received 47 days prior to the occurrence by both PWs 7 & 8 and not conveyed to the complainant party, well in time enabling them to protect themselves, requires careful scrutiny. As per prosecution version, the complainant on the day of occurrence had met PW Muhammad Ishaque, who in turn, had disclosed to him that on 20.1.2002, he i.e. Muhammad Ishaque, had to go along with PW-8 Qamar Zaman to Thotha Rai Bahadar in connection with domestic affairs. While passing through the street wherein Mst. Mehr-un-Nisa's bhaitak was situated, he heard some conversation wherein name of the deceased was mentioned whereupon, they became curious and on peeping through the window of the said bhaitak, which according to the PWs was partly opened, they saw in the electric light that Naseer Ahmad, Gulraiz Akhtar, Shams Tabraiz alias Shebi, Mehr un Nisa and Younas Shah were hatching conspiracy to murder Haji Riaz. Though PW-7, at the trial, has stated that he had planned to inform Muhammad Riaz, yet since he, i.e. the deceased, at the relevant time, was at Islamabad, therefore, the information could not be conveyed. Although the above information received from PW 7 was conveyed to the police by the complainant through supplementary statement on the same day but the question arise if the information in question was received by the PWs so early, as to why it was not conveyed to the deceased party prior to the occurrence? The explanation offered by the prosecution in this regard that since the deceased was away to Islamabad at the relevant time, therefore, the information so received could not have been passed on to him, is far from satisfactory. It has not been explained by the prosecution that if the deceased himself was not available as to why the information in question was not conveyed to any other member of his family or relatives or any friend. It does not appeal to reason that in these days when numerous sources of communication are available, the PWs were incapacitated to do the needful. Thus the only logical inference possible to be drawn from the "omission" so made is that the plea of conspiracy was introduced as an afterthought. It is also not believable that the "conspiracy" was being hatched at night in a baithak on the road side with an open window, thereby affording opportunity to both the witnesses not only to hear the conversation but also peep through the same and identify and recognize the participants in the electric light without being detected themselves. All these factors heavily militate against the bonafides of the prosecution qua the plea of conspiracy.
Upshot of the above discussion is that Criminal Appeals No. 42 & 261 of 2008 are dismissed. Convictions and sentences recorded against the appellants, namely, Naseer Ahmed and Muhammad Younas Shah, vide the impugned judgment, are maintained. However, Criminal Appeal No. 41 of 2008 is allowed and the appellants, namely, Gulraiz Akhtar and Mst. Mehr-un-Nisa are acquitted of the charges, they shall be released forthwith, if not required in any other case.
(M.S.A.) Order accordingly.
PLJ 2009 SC 651
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan & Ijaz-ul-Hassan, JJ.
KHADIM HUSSAIN--Petitioner
versus
GHULAM EISSA and others--Respondents
Civil Petition No. 359-P of 2005, decided on 12.12.2008.
(On appeal from the order dated 5.5.2005 of the Peshawar High Court, D.I. Khan Bench, passed in C.R. No. 3 of 2002).
NWFP Pre-emption Act, 1991--
----S. 13--Necessary requirements of talabs--Held:
Petitioner could not state the name of the informer and date, time and place of
talab-e-muthibat' in the notice oftalab-e-ishhad' and denial of one of the witnesses, to be present at the time of talab-e-ishhad' and other several defects, which have been suffered in the impugned judgment by High
Court--Disclosure of the name of the informer after five years of the impugned transaction attracts the possibility of after thought--Even in the statement recorded after five years of the transaction after sufficient development in the law on the subject, petitioner could not disclose the place and time when the information was conveyed to him and the assembly in whichtalab-e-muwathibat' was made. [P.
653] A
PLD 2007 SC 302, PLD 2001 SC 13, 1983 CC 2441, 2000 SCMR 329 & 2000 SCMR 314, ref.
Mr. Riaz Ahmed Khan, ASC with Haji M. Zahir Shah, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 12.12.2008.
Judgment
Ijaz-ul-Hassan. J.--Leave to appeal is sought against the judgment dated 5.5.2002 of learned Peshawar High Court, D.I.Khan Bench, whereby Civil Revision No. 3 of 2002 filed by petitioner Khadim Hussain was dismissed, upholding concurrent judgments and decrees dated 6.5.1999 and 17.11.2001 recorded by learned Senior Civil Judge and learned Additional District Judge, Dera Ismail Khan, respectively.
Briefly narrated facts of the case are, that petitioner/plaintiff filed a suit in the Court of Senior Civil Judge, Dera Ismail Khan, against Ghulam Eissa and others, respondents/defendants, alleging that suit property measuring 42 kanals 10 marlas was purchased by respondents/defendants through Mutation No. 2387 attested on 20.9.1989 for a sum of Rs.21500/- and an inflated amount of Rs.42500/- was entered as a sale price in the mutation in order to defeat the superior right of pre-emption of petitioner/plaintiff. The suit was contested and following issues were framed by the trial Court for disposal of the matter:--
Whether the pre-emptor/rival pre-emptor has a cause of action?
Whether the rival pre-emptors have got superior right of pre-emption?
Whether the pre-emptor/rival pre-emptor have failed to make demand of talabs etc, if so, its effect?
Whether the suit is partial?
Whether the suit is incompetent in its present form?
Whether the pre-emptor/rival pre-emptor are estopped to sue?
Whether the defendants have made any improvements, if so, to what extent and with what effect?
Whether the suit of the plaintiff is liable to dismissal because his another suit has been dismissed, if so, its effect?
Whether the sum of Rs.42500/- has been fixed in good faith and paid actually?
Market value?
Relief?
On the basis of the pleadings of the parties and the evidence adduced during the trial, learned Senior Civil Judge, D.I. Khan, vide judgment and decree dated 6.5.1999, dismissed the suit. There-against appeal and civil revision preferred by the petitioner were also dismissed by learned Additional District Judge, D.I.Khan and learned High Court, respectively as stated and mentioned above.
Mr. Riaz Ahmed
Khan, Advocate, seeking leave of this Court bitterly criticised the impugned judgment and attempted to argue that learned High Court has not appreciated the evidence in its true perspective and has proceeded on wrong premises while upholding the concurrent findings recorded by learned trial Court and maintained by learned appellate Court and submitted that petitioner having the knowledge of suit transaction did talab-e-muwathibat' and also issued notice undertalab-e-ishhad' asking the respondents to transfer the suit land in his name against Rs:8500/- which they refused to do and that petitioner, being co-owner in the suit land possessed superior right of pre-emption qua respondents who were bereft of this qualification.
Scrutiny of the evidence reveals that petitioner could not state the name of the informer and date, time and place of tabl-e-muwthibat' in the noticetalb-e-ishhad' and denial of one of the witnesses, to be present at the time of talb-e-ishhad' and other several defects, which have been referred in the impugned judgment by learned High Court. Further, the name of informer i.e. Ghulam Qasim was disclosed for the first time on 12.3.1994 during examination. The disclosure of the name of the informer after five years of the impugned transaction attracts the possibility of afterthought. Even in the statement recorded after five years of the transaction in 1994, after sufficient development in the law on the subject, petitioner could not disclose the place and time when the information was conveyed to him and the assembly in whichtalb-e-muwthibat' was made. In this regard reference can be made to the judgment of this Court titled Mian Pir
Muhammad and another vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), wherein it was observed:--
"that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat' and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing
Talb-i-Muwathibat', in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making ofTalb-i-Ishhad' as soon as possible after making Talb-i-Muwathibat' but not later that two weeks from the date of knowledge of performingTalb-i-Muwathibat', therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of
Talb-i-Muwathibat' because from such date, the time provided by the statute i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time ofTalb-i-Miwathibat' then it would be very difficult to give effect fully to sub-section
(3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat' in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance ofTalb-i-Ishhad'. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat' in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making theTalb-i-Muwathibat' from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam
Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1-1/2 hour in making `Talb-i-Muwathibat' to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser/respondent was residing on the ground floor of the same building. In another case of Mst.
Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed.
Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000
SCMR 329) decided on 27.10.1999 and Altaf Hussain v. Abdul Hameed alias Abdul
Majeed through Legal Heirs and another (2000 SCMR 314) decided on 15.11.1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibat'. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in
Explanation I to Section 13 of Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case.
However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad
Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst.
Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance ofTalb-i-Muwathibat'. Therefore, we endorse the view taken in the judgments and approve that a pliant wherein the date, place and time of
`Talb-i-Muwathibat' and date of issuing the notice of performance of
Talb-i-Ishhad' in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit."
In the circumstances, learned High Court has dismissed the revision of petitioner assigning sound and cogent reasons and upheld the findings of fact recorded by learned trial Court and maintained by learned appellate Court with detailed reasons. No infirmity legal or factual has been pointed out in the impugned judgments and decrees calling interference by this Court. Resultantly, finding this petition without substance, the same is dismissed and leave refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 655
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, M. Javed Buttar & Muhammad Qaim Jan Khan, JJ.
SARDAR MASIH (Late) thr. L.Rs and others--Petitioners
versus
JHON ANDERIAS SARDAR and others--Respondents
Civil Petition No. 1461 of 2008, decided on 2.12.2008.
(On appeal against the judgment dated 16.9.2008 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No. 272 of 2006).
Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 122 & 123--Gift--Both parties christian by faith, the Muslim Personal Law not applicable--Provisions of Section 122 and 123 of the Transfer of Property Act, 1882 governing gift of an immovable property in such a case--Requirements of making a gift or its revocation by a non-Muslim of immovable property has been examined in a number of cases on the touchstone of the provisions of Sec. 122 and 123 of Act, 1882--Delivery of possession is not necessary, where a registered instrument of gift was properly executed and attested--Leave refused. [Pp. 657 & 658] A & B
AIR 1927 Privy Council 42, AIR 1928 Privy Council 86, 11 Indian Appeals 218, AIR 1922 Allahabad 467, AIR 1958 Rajasthan 199, AIR 1960 Mysore 97, ref.
Mr. Muhammad Amin K. Jan, ASC and Mr. Arshad Ali Ch. AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 2.12.2008.
Order
Faqir Muhammad Khokhar, J.--Late Sardar Masih, predecessor-in-interest of the parties, instituted a suit for declaration and permanent injunction against his son, the Respondent No. 1 to the effect that the registered gift-deed dated 17.7.1997 (Exb.P1) purportedly made by him in favour of Respondent No. 1 was illegal, as a result of fraud and forgery. After framing of issues and recording evidence of the parties, the Civil Judge, Murree, District Rawalpindi, dismissed the suit vide judgment dated 13.8.2003. The appeal preferred by the petitioners before the Additional District Judge, Camp at Murree, District, Rawalpindi, also met the same fate and was dismissed by order dated 1.4.2006. Therefore, they filed Civil Revision No. 272 of 2006 which was dismissed by a learned single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned judgment dated 16.9.2008.
The learned counsel for the petitioners submitted that the delivery of physical possession of immovable property being an essential ingredient of gift had not taken place in this case. Therefore, the so-called gift was invalid. Moreover, the Respondent No. 1 was not found to be residing with his father late Sardar Masih at the relevant time.
We have heard the learned counsel at length and have also perused the available record with his able assistance. Undoubtedly, both the parties are Christians. The High Court and both the Courts below recorded concurred findings of fact that the gift-deed dated 17.7.1997 (Exb.P1/D-10) was duly executed by Sardar Masih in favour of the Respondent No. 1 for the suit property, attested by two witnesses which was registered. The Trial Court as well as the Appellate Court also found that the respondent was already in possession of the suit property.
Admittedly, both the parties are Christian by faith. The Muslim Personal Law is not applicable to them. The provisions of Sections 122 and 123 of the Transfer of Property Act, 1882, governing gift of an immovable property in such a case, read as under:--
"122. "Gift" defined.--"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as good sold may be delivered."
The requirements of making of a gift or its revocation by a non-Muslim of immovable property has been examined in a number of cases on the touchstone of the provisions of Sections 122 and 123 of the Act. In Kalyanasunbaram vs. Karuppa (AIR 1927 Privy Council 42), it was held that where the donor of immovable property had handed over to the donee an instrument of gift duly executed and attested, and the gift had been accepted by the donee, the donor had no power to revoke the gift even prior to the registration of the instrument. The same view was reiterated in Venkat Subba vs. Subba Rama Hegde (AIR 1928 Privy Council 86). In Kali Das Mullick vs. Kanhya Lal Pundit (11 Indian Appeals 218) it was held that where a donor had done all it could to complete the gift, such a gift could not be set aside as utterly void, because the donor was out of possession, and no possession was ever given to the donee". The full Bench of Allahabad High Court took the view in Lallu Singh vs. Gur Narain (AIR 1922 Allahabad 467) that "Section 123 did away with the necessity of delivery of possession even if it was required by the strict Hindu Law, where a registered instrument of gift was properly executed and attested". In Jaidayal vs. Umrao Harchand (AIR 1958 Rajasthan 199), while examining the provisions of Section 123 of the Act it was held that "where the donor and the donee lived in the same house and the gift of the house has made subsequently by a registered deed, it was not necessary that the donor should have left the house in order to complete the gift. In Revappa vs. Madhava Rao (AIR 1960 Mysore 97) it was observed that under Section 123 of the Transfer of Property Act the emphasis was on the execution of an instrument but not so much on the actual delivery of the property and thus, the delivery of possession of the property gifted was not an essential ingredient for validating the gift under the law.
The learned counsel was not in a position to cite law to the contrary. In our opinion, the impugned judgment is plainly correct to which no exception can be taken.
For the forgoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(M.A.K.Z.) Leave refused.
PLJ 2009 SC 658
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ejaz Yousaf & Muhammad Farrukh Mahmud, JJ.
ABDUL ADEEL & others--Appellants
versus
STATE--Respondent
Crl. Appeal No. 346, 347 & 348 of 2005, decided on 27.11.2008.
(Against the judgment dated 28.8.2003 of the High Court of Sindh, Karachi, passed in Spl. A.T. Appeal No. 12 of 2003 and Confirmation Case No. 3 of 2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365(A) & 34--Conviction and sentence of death awarded by trial Court and confirmed by High Court--Assailed--Motive of abduction for ransom--Held: How much ransom was to be arranged, was not mentioned in the FIR at all, neither any ransom was paid for the release of the abductee--Though two cell phones were shown to have been recovered from the possession of the appellants but there is no evidence on record that they were used by the appellants for demanding ransom--Statement of PW is not supported by any other corroboratory evidence--Held: Benefit of all doubts is to be given to the accused--Prosecution failed to prove the motive behind the occurrence--Supreme Court alter conviction of the appellants from offence u/S. 365-A/34, PPC to offence u/S. 365/34, PPC--Appeal partly allowed. [P. 663] A, B, C & D
Sardar Muhammad Ishaq Khan, Sr. ASC for the Appellant (in Crl. A. No. 346 of 2005).
Sardar Muhammad Siddique Khan, ASC and Mr. I.A. Hashmi, ASC for Appellants (in Crl. As. 347 & 348 of 2005).
Raja Abdul Ghafoor, ASC/AOR for State.
Date of hearing: 27.11.2008.
Judgment
Muhammad Farrukh Mahmud, J.--Criminal Appeal No. 346 of 2005, Criminal Appeal No. 347 of 2005 and Criminal Appeal No. 348 of 2005, all by leave of this Court, are directed against judgment dated 28.8.2003 handed down by learned Division Bench of Sindh High Court, Karachi, in case FIR No. 181 dated 30.10.2002, registered at Police Station Taimuria Karachi, where by the conviction of the appellants under Section 365A/34 PPC recorded by the learned Trial Court was upheld; death sentences inflicted upon Abdul Adeel and Sohail Ahmed @ Commando alias Ehsan Ali Shah appellants were maintained and confirmed, however, the death sentence inflicted upon Mst. Masoom Bono alias Huma Jafri was not confirmed and was reduced to imprisonment of life. The appeal of the convicts was dismissed. These appeals are being decided by this consolidated judgment.
Appellants Abdul Adeel, Sohail Ahmed, Mst. Masoom Bano and Noman Iqbal faced trial in the instant case, while co-accused Khalid @ Gudo, Waqar alias Wiki and Abdul Faheem absconder were declared proclaimed offenders. The case of Noman Iqbal was later-on separated, as he was Juvenile, being 17 years old. He was convicted and sentenced to imprisonment for life through a separate judgment by the learned trial Court, however, his appeal was allowed and he was acquitted by the learned High Court.
The relevant facts are that Raees Ahmed (PW.1) father of abductee Saeed Ahmed-PW-5, lived alongwith his family in M. Block of North Naziamabad, Karachi. He was employed as Printing Master in Mustaqeem Dying and Printing Mill S.I.T.E. Karachi. On 28.10.2002, at about 4 pm, while he was on duty, he was informed by his wife over telephone that their son, Saeed who was 13 years old, left the house at 1:30 pm, did not return. Raees left for his house immediately and started searching for his son, without any clue. On 29.10.2002 at about 5:15 p.m., he received a telephone call, at his residence, that his son was being detained by the un-identified caller and if he wanted release of his son, he should arrange for a huge amount, and wait for the next call. Thereafter, at about 12:15 a.m. during night on 30.10.2002, Raees went to the Police Station and reported the matter.
During Trial, Raees Ahmed made certain improvements and also narrated details after the recovery of his son. As against FIR, he added that his wife had received telephone call, at 2:30 p.m., on 28.10.2002 by an unknown person who talked about abduction of their son and had threatened her that she should not inform the police. He further stated that he went to Police Station Taimuria in the evening, informed the police about missing of his son but did not lodge FIR. He was referred to Mr. Murad Soni, Incharge CPLC, Police Station Gulberg, the later equipped the telephone of Raees Ahmed with the facility of CLI forthwith and put the telephone under surveillance. So the call made on 29.10.2002 was traced to have been made from cell Phone No. 0097-142621363. According to him, during investigation on 30.10.2002, it transpired that abduction of Saeed was witnessed by one Shahab Siddiqui not produced. On 30.10.2002 at about 2:15 a.m. the complainant received another call which was made through cell Phone No. 0097-142628331, the caller was the same person who had earlier called. The caller enquired about arrangement of ransom and threatened to kill Saeed if the ransom amount was not paid. On the same day i.e. 30.10.2002 at about 11 p.m. Murad Soni, Incharge CPLC Police Station Gulberg called the complainant and informed him that his son had been secured and was with him. The complainant alongwith two others rushed to the Police Station and brought his son back. The statement of the abductee was recorded on the next date i.e. 31.10.2002 in the evening, at his house, by S.I.P. Azam Rana (PW.7). Saeed Ahmed (PW. 5)-abductee stated that he left his house on the fateful day at about 1:30 p.m. and met Noman accused who asked Saeed to accompany him to purchase fire crackers. While Noman and Saeed were on the road leading to the last Bus Stop of 2K Route, a white corolla car arrived, its rear door was opened, the accused pulled Saeed inside the car, while Noman pushed the abductee inside the car. The accused who were inside the car and were duly identified by the abductee, removed the abductee to a house, where he was detained. On the asking of the accused, the abductee gave his Telephone No. 6649444. The hands and feet of the abductee were tied and the tape was put on the mouth of the abductee. During the course of captivity, the accused subjected to torture. It was specifically mentioned by Saeed abductee that Adeel appellant gave a blow on his nose which caused swelling. The witness further stated that he was kept in custody for two days and Noman accused was also detained for that period in a different room. After two days at about 10:30 or 11:00 p.m. the appellants forced the abductee and Noman to board a Hi-Roof Van. Thereafter they were taken to a deserted place and were directed to leave the van. At that time, the hands of the abductee as well as the hands of Noman Iqbal were tied with electric wire. After the appellants left the abductee and Noman Iqbal got their hands un-tied by a passerby, they took a rickshaw and went to the house of Noman Iqbal after sometime the police party reached the house of Noman Iqbal and brought the abductee at police station where he was joined by his father and other relatives. Then Saeed abductee accompanied his father to his house and his statement was recorded on the following day at the evening time. The appellants were arrested on 8.11.2002.
On 16.11.2002, Abdul Adeel and Sohail appellants were duly identified by the abductee during the identification test conducted by Magistrate Jahangir PW-3. However, no identification test qua Masoom Bono appellant was held. PW-2 Umar Hayat ASI stated about the registration of the case. PW-4 Ghulam Hussain Korai Inspector stated about partial investigation of the case. He also stated about the arrest of the appellants on the basis of information furnished by Noman Iqbal who was in custody. He also identified the appellants while they were present in Court. Dr. Farasat Khan appeared as PW-6 and stated that he examined Saeed abductee on 31.10.2002 at about 11:15 p.m. He observed following injuries on the person of Saeed Ahmed:--
"1. Multiple contusions ranging from 3 cm X 0.25 cm to 15 cm X 1 cm over the right and left fore-arm and arms at the back in the lumbo-sacral region and right and left buttocks.
Diffus swelling over the nasal bridge.
Abrasion 4 cm X 0.5 cm over the left arm."
The injuries were fresh and were caused by blunt substance. Thereafter he examined Noman Iqbal and observed one injury consisting of multiple contusion on right and left fore-arms and back at lumbosacral region. This injury was also caused by a hard and blunt substance. Muhammad Azam Rana SIP PW-7 stated about the recovery of a mobile telephone set and visiting card of Tehrik-e-Insaf Party and cash
Rs. 400/- from the possession of Mst. Masoom Bano and recovery of mobile telephone set from the possession of Sohail appellant. He further stated about the recovery of Suzuki Hi-Roof at the time of apprehension of Abdul Adeel appellant. He further stated that Saleem Iqbal father of Noman Iqbal informed Murad Soni Incharge of CPLC about the presence of Saeed Ahmad and Noman Iqbal in his house who later on passed the information to Ghulam Hussain Korai and thereafter PW-7 and Ghulam Hussain Korai went to the house of Saleem Iqbal and recovered Saeed Ahmed.
After the completion of prosecution evidence, the statements of appellants were recorded who pleaded innocence. Sohail appellant stated that he was involved in the case as he was active member of MQM while Adeel appellant stated that he was involved in the case falsely by the police as his father refused to pay bribe to the police. Mst. Masoom Bano appellant stated that she was roped in a false case by Ghulam Hussain Korai Inspector who was annoyed with her.
Learned counsel for the appellants have argued that Shahab Ahmed Siddiqui sole eye-witness of the case was not produced during trial; that the identification parade was of no value as the appellants were arrested on 8.11.2002 and were kept at Police Station till 11.11.2002 and were not produced before any Magistrate during that period. Thus (i) their detention during that period was illegal and (ii) they were shown to the abductee during their detention at police station. The learned counsel further argued that complainant of the case made deliberate and dishonest improvements before the learned trial Court and the statement of Saeed Ahmed was not reliable; that there were material discrepancies in the statements of abductee and the complainant. According to the learned counsel, Noman Iqbal and Saeed abductee had left their house due to their own and subsequently the appellants were roped in a false case. Lastly it was argued that abduction for ransom was not proved at all.
Conversely, the learned counsel appearing for the State has argued that the witnesses were independent and had no previous enmity or ill-will against the appellants so as to depose against them falsely and that the detention of the appellants at Police Station after arrest was explained by the fact that 9th and 10th of November were holidays being Iqbal day and Sunday; that the appellants except Mst. Masoom Bano were identified during the identification test and that Mst. Masoom Bano was also identified by the PWs and that all the PWs were corroborated by the recovery evidence.
We have heard the learned counsel for the parties and have also gone through the relevant record of the case. Saeed Ahmed-abductee (PW.5) is star witness of the case. At the time of abduction, he was a boy of 13 years of age and was student of class 5. He has given very candid and trustworthy statement. He had no previous ill-will or grievance against the appellants so as to depose falsely against them. As far as identification of the appellants is concerned, he remained in the custody of the appellants for two days. It is not the case of the appellants that during the captivity of the abductee the appellants had muffled their faces, so the abductee could easily identify the culprits on seeing them later. During trial, abductee identified each of the appellants and also stated about the specific role played by the appellants, so no doubt is left as far as identification of the appellants is concerned. The statement of Saeed Ahmed is also supported by medical evidence and circumstances of the case. As far as abduction of Saeed Ahmed is concerned, the same is also corroborated by the statement of Raees Ahmed (PW.1). He has duly explained, why the case was not registered on the day of abduction.
In the above-noted circumstances, the abduction and detention of Saeed Ahmed at secret place is proved to the hilt. Having coming to that conclusion, we have given our serious thought to the motive narrated by PW.1. According to PW.1, he received two telephone calls by un-identified person for arranging ransom. However, how much ransom was to be arranged, was not mentioned in the FIR at all, neither any ransom was paid for the release of the abductee. Saeed Ahmed abductee has not stated before the trial Court that the appellants demanded ransom from his father. According to him, he and Noman Iqbal accused were released and dropped at a deserted place after two days of captivity. He further stated that after the release he accompanied Noman Iqbal to his house and it was the father of Noman Iqbal who informed the police about the presence of abductee in his house. There is no hint in the statement of Saeed Ahmed that the appellants had demanded ransom. Though two cell phones were shown to have been recovered from the possession of the appellants but there is no evidence on record that they were used by the appellants for demanding ransom. The statement of Raees Ahmed (PW.1) is not supported by any other corroboratory evidence. It is settled law that benefit of all doubts is to be given to the accused.
In the above-noted circumstances, in our considered view, the prosecution failed to prove the motive behind the occurrence. However, as noted above, it stood proved that Saeed Ahmed was abducted and was kept under detention at secret place.
For all what has been said above, we alter the conviction of the appellants from offence under Section 365-A/34 PPC to offence under Section 365/34 PPC. The appellants are in jail for more than six years, so their sentences are reduced to the period already served out by them in jail. This appeal is partly allowed and the impugned judgments are modified accordingly. These are the reasons of our short order of even dated.
(M.A.K.Z.) Appeal partly allowed.
PLJ 2009 SC 664
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
QAISAR KHAN & others--Petitioners
versus
STATE & others--Respondents
Crl. P. Nos. 56-P and 77-P of 2008, decided on 24.12.2008.
(On appeal from the judgment dated 6.10.2008 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 603 of 2006).
Mistaken Identity--
----No chance of mistaken of identity of accused, as the parties were known to each other prior to occurrence. [P. 667] A
Indiscriminate Firing--
----No empty was recovered--No crime empty was recovered from the site of occurrence indicative of the fact that place of incident has not been established--Held: Non-recovery of crime empties of the case was not fatal to the prosecution case and nothing turns on it.
[P. 668] C
Abscondence--
----Appreciation of evidence--No doubt abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case--When an accused person remains fugitive from law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence. [P. 668] B
1992 SCMR 1036, ref.
Mr. Imtiaz Ali, ASC and Mr. Tasleem Hussain, AOR for Petitioners (in Crl. P. No. 56-P/2008).
Mr. Mehmood Shah, ASC for Petitioner (in Crl. P. No. 77-P/08).
Nemo for Respondents (in both cases).
Date of hearing: 24.12.2008.
Judgment
Ijaz-ul-Hassan, J.--The petitioners namely Qaisar Khan, Jamil and Nawaz, were tired by learned Additional Sessions Judge, Peshawar in case FIR No. 170 dated 1.3.2001, registered at Police Station Pishtakhara' for offences under Sections 302/324//427/148/149 PPC, at the instance of complainant Raz Muhammad, for an occurrence which allegedly took place on the same day atmaghrib' Azan wela', in front of the house of one Arbab Lakhkar
Khan, situated atSufaid Dehri', Peshawar.
"that on 1.3.2001 Faqir Muhammad ASI of Police Post Sufaid Dheri on learning about firing in village Sufaid Dheri and bringing of injured persons to Khyber Teaching Hospital, Peshawar, he rushed to the hospital where he recorded report of Raz Muhammad s/o Saif-ur-Rehman resident of Ahmed Khel. He in injured condition reported that his cousin Hyas had purchased for him a motorcar and there was some dispute over the bargain, therefore, he in a taxi motorcar No. PRM/2248 driven by driver Ali Rehman s/o Saeedur Rehman alongwith his cousin Hyas and Shoaib left for settlement of dispute, that on their return when they reached near village Sufaid Dheri Khalwat Road near Banglow of Arbab Lashkar Khan a motorcycle and a Suzuki appeared in front of them. Qaisar and Khair Ullah s/o Waris got down from the motorcycle while Nawaz, Tilawat, Jamil, Baswar sons of Waris from the Suzuki and started firing at them. As a result, Ilyas, taxi driver Ali Rehman and Shoaib were wounded while he (complainant) himself was injured with the broken pieces of wind screen of motorcar; that on reaching to the hospital out of them Hyas and Ali Rehman succumbed to the injuries. The motive for the crime was old enmity".
(a) U/S. 302(B), PPC
the accused petitioners were sentenced to life imprisonment each (on two counts) with compensation amount of
Rs. 1,00,000/- to be paid to the legal heirs of both the deceased, within the meaning of Section 544-A, Cr. P.C. or in default, each of them shall have to suffer six months simple imprisonment.
(b) U/S. 324, PPC.
the accused petitioners were sentenced to three years R.I. each with a fine of Rs. 10,000/- each (on two counts) or in default, shall have to suffer three months simple imprisonment.
(c) U/S. 337-A(l), PPC.
The accused petitioners were sentenced to six months R.I. with payment of Rs. 5000/-each as "Daman" to the victim or in default, shall have to be dealt with under the provisions of Section 337-Y(2), PPC.
(d) U/S. 337-F(II), PPC.
the accused petitioners were sentenced to one year R.I. with payment of Rs.10,000/- each as "Daman" to the victim or in default, shall have to be dealt with under the provisions of Section 337-Y(2), PPC.
(e) U/S. 337-A(III), PPC.
the accused petitioner were sentenced to three years R.I. with payment of Rs.30,000/- each as "Arsh" to the victim or in default, shall have to be dealt with under the provision of Section 337-X, PPC.
(f) U/S. 148/149, PPC.
the accused petitioner were sentenced, to one year R.I with a fine of Rs. 1000/- each or in default, each of them shall have to suffer one month simple imprisonment.
(g) U/S. 427, PPC.
The accused petitioner were sentenced to six months R.I. each with a fine of Rs. 1000/- each or in default, each of them shall have to suffer one month simple imprisonment.
All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C, was also extended to each of the accused-petitioners.
The petitioners, feeling aggrieved, filed Criminal Appeal No. 603 of 2006, challenging their convictions and sentences whereas Gul Rehman, father of Ilyas deceased filed Criminal Revision No. 39 of 2007 for enhancement of sentences. Both were dismissed by the Peshawar High Court, Peshawar vide judgment dated 6.10.2008, by upholding the impugned judgment and order of the trial Court. Hence instant petitions, for leave to appeal.
Learned counsel for the petitioners in Criminal Petition No. 56-P of 2008, bitterly criticised the impugned judgment and attempted to argue that medical evidence and circumstantial evidence in the shape of recoveries does not support the case of prosecution; that reasonable care and caution was not exercised by the Courts below before placing reliance on the statement of the complainant recorded under Section 512, Cr.P.C. in absence of accused petitioner, more-so, when there was no strong independent corroboratory evidence sufficient enough to enhance its evidentiary value; that the involvement of three absconders demonstrates the mixing of true and false; that the medical evidence of the injured witnesses establishes their presence on the spot but is no gurantee for their credibility; that though the petitioners and absconding co-accused are alleged to have fired indiscriminately on the complainant party but no crime empty has been recovered from the spot; that there are material contradictions in the statements of complainant and other eye-witnesses of the occurrence; that they have made material improvements in their respective statements to bring the case in line with the medical and other circumstantial evidence and that the version put forth by the said witnesses is contrary to the allegations made in the FIR.
We have heard at length Mr. Imtiaz Ali, Advocate for petitioners in Criminal Petition No. 56-P of 2008 and Mr. Mehmood Shah, Advocate for Gul Rehman petitioner, in Criminal Petition No. 77-P of 2008. We have also gone through the record of the case with their assistance.
The crime in question is alleged to have taken place on 1.3.2001, at `maghrib azan wela', in the limits of village Sufaid Dheri, whereas the matter was reported to the police, the same night at 19.40 hours at Khyber Teaching Hospital, Peshawar, where victims were removed for treatment. The report has been lodged promptly, without loss of time, eliminating all chances of consultations and deliberations. Complainant Raz Muhammad and Muhammad Shoaib PW-24 have fully supported the prosecution case. Medical evidence and other circumstantial evidence collected by the Investigating Officer and brought on record at the trial further support and corroborate them, therefore, there is absolutely no reason to discard the evidence furnished by the said witnesses. Both the witnesses i.e. complainant Raz Muhammad and PW-24 Muhammad Shoaib are natural and they sustained injuries during the incident which fact confirms their presence on the spot. There is no chance of mistaken identity of the petitioners, as the parties were known to each other prior to the occurrence.
The medical evidence produced by the prosecution fully corroborates the ocular account furnished by the prosecution witnesses. Report Ex.PA/1 would show that both the deceased and PW-24 Muhammad Shoaib sustained firearms injuries, whereas the complainant received injuries due to broken pieces of windscreen/glasses of the motorcar. This fact gets support from the postmortem reports of both the deceased and the injured witnesses. Both these witnesses had given consistent statements and they have corroborated each other on material points. The minor contradictions pointed out in prosecution case are negligible and could be safely ignored.
It may not be out of place to mention here that petitioners after the commission of the offence avoided their arrest and remained fugitive from the law for a considerable long period without any explanation. They were arrested on 5.7.2004, 29.12.2004 and 26.10.2004; respectively.
No doubt abscondence by itself is not sufficient to convict an accused person but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. When an accused person remains fugitive from the law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence, as held by this Court in Mst. Roheeda versus Khan Bahadur and another (1992 SCMR 1036).
Much emphasis has been laid on the fact that despite indiscriminate firing alleged to have been made by the petitioners and absconding co-accused, at the complainant party, no crime empty has been recovered from the site of occurrence indicative of the fact that the place of incident has not been established. The submission is misconceived. The spot is near the village abadi and the Investigating Officer reached their after some time of the occurrence. The possibility of the crime empties, having been taken away by the passersby, cannot be excluded. The non-recovery of crime empties; in the circumstances of the case, is not fatal to the prosecution case and nothing turns on it. Similar objection has been taken, regarding non-recovery of blood from the spot. This objection is also without force. Blood has been recovered from inside the motorcar in-question.
Having considered the matter from all angles in the light of the material on file, we see no illegality committed by the learned High Court, while convicting the petitioners with cogent reasons, as mentioned in Paragraphs No. 13, 14 and 15 of the impugned judgment. There is no ground for indepth reappraisal of evidence and the grant of leave. The High Court on having examined the case concurred with the judgment of the trial Court for reasons not open to legitimate exception.
Neither any misreading or non-reading of the evidence on record nor any infirmity legal or factual, has been pointed out in the impugned judgment, calling interference by this Court.
Adverting to connected Criminal Petition No. 77-P of 2008, filed by Gul Rehman, for enhancement of sentence, we find that the petitioners have been involved for constructive liability, fatal injuries to the deceased and PWs have not been attributed with certainty to any one of them. We are of the opinion that lenient view has been taken by the Courts below for valid reasons. Learned counsel for Gul Rehman petitioner also felt content and did not press the criminal petition.
In view of the above discussion, the petitions, having been found bereft of merit, are dismissed and leave to appeal is declined.
(M.S.A.) Leave refused.
PLJ 2009 SC 669
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ. and Ch. Ejaz Yousaf, J.
TAHIR JAVED & another--Appellants
versus
STATE--Respondent
Crl. Appeals No. 770 & 771 of 2006, decided on 5.9.2008.
(On appeal from the judgment dated 3.5.2005 in Cr.A.No. 339-J of 2002 passed by the Lahore High Court, Lahore).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b) & 34--Conviction and sentence recorded against accused by trial Court--Challenge to--Extra judicial confession--Appreciation of evidence--Extra judicial confession is easy to procure as it can be cultivated at any time, therefore, normally it is considered as a weak type of evidence and Court would expect sufficient and reliable corroboration for such type of evidence--Extra judicial confession, therefore, must be considered with overall context of the prosecution case and the evidence on record--Extra judicial confession was made by the accused persons in presence of a number of other persons which appears to be quite improbable because confession of such a heinous offence like murder is not normally made in the public--Order accordingly. [P. 673] B & C
Extra Judicial Confession--
----Evidence of--Joint confession--Challenge to--Confession being joint by all the accused persons was not admissible in evidence--Validity--Though all the accused persons come and asked to get them pardoned from the complainant yet prosecution witnesses were unanimous on the point that it was only the accused who had conferred to commit murder of the deceased and rest of the accused persons uttered not a single word, hence by no stretch of imagination--Held: It was a joint confession by all the accused person.
[P. 672] A
Extra Judicial Confession--
----Extra judicial confession did not find corroboration from any independent source as in pursuance of confession even the place of occurrence--Deceased was murdered, was not pointed out by any of the accused person--Held: In absence of any corroboratory evidence, it was not safe for the trial Court to rely on the evidence of extra judicial confession. [Pp. 673 & 674] D
2006 SCMR 231, 2001 SCMR 1405, 2000 SCMR 683 &
1996 SCMR 188, rel.
Mr. S. M. Nazim, ASC for Appellant (in Crl. A. 770/2006).
Hafiz S.A. Rehman, Sr. ASC for Appellants (in Cr. A. 771/2006).
Mian Asif Mumtaz, DPG Punjab for State.
Date of hearing: 5.9.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals by way of leave are directed against the judgment dated 3.5.2005 passed by a learned Single Bench of the Lahore High Court, Lahore, whereby appeal filed by the convicts/accused persons against their convictions and sentences recorded by the Additional Sessions Judge, Gujranwala, was dismissed.
Facts of the case, in brief, are that on 13.9.2001 at 10.00 a.m. written report Ex.PA was lodged by one Rana Muhammad Sarwar with P.S. Gakhar Mandi, District Gujranwala, wherein it was alleged that on 12.9.2001 at about 3.00 p.m. the complainant was present at his Dera, when Rana Farooq Ahmad along with appellant Tahir Javed came there on a bicycle and took his son, namely, Rafaqat Ali with them towards Ojla Pul. Since his son did not come back at night, therefore, in the morning on the next day he enquired from Rana Farooq Ahmad about the whereabouts of his son but he showed ignorance. On the same day Muhammad Mushtaq disclosed to him that he, i.e. said Muhammad Mushtaq had seen Rana Farooq, Rafaqat Ali (deceased) and Muhammad Tahir, appellant, on a bicycle going towards Ojla Pul. It was further stated in the complaint that on the same day at about 10.00 a.m dead body of his son was recovered from the bank of canal in the condition that he was slaughtered and had also a deep inside wound in the abdomen. It was mentioned in the complaint that his son was murdered by unknown persons. On the stated allegations formal FIR Bearing No. 295 was registered, at the said Police Station, under Sections 302/34 PPC and investigation was carried out in pursuance thereof. On the completion of investigation, accused persons, four in number, were challaned to the Court for trial. The accused persons denied the charge and pleaded innocence. At the trial, the prosecution in order to prove the charge and substantiate the allegation leveled against the accused persons produced 15 witnesses in all, whereafter the accused persons were examined under Section 342 Cr.P.C. In their above statements all the accused persons except Muhammad Arif pleaded that they were falsely implicated in the case. Muhammad Arif in his statement, however, in reply to Question No. 14 stated that in fact Ghulam Yaseen and Farooq, had committed murder of the deceased and he, i.e Muhammad Arif was left behind as he had stayed back in order to answer the call of nature. He pleaded that he had not snatched any thing from the deceased. The accused persons however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C. After hearing arguments of the learned counsel for the parties the learned trial Court convicted all the four accused persons including the appellants under Section 302(b)/34 PPC and sentenced them to life imprisonment each with the direction to pay a sum of Rs. One lac, each to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.C. Benefit of Section 382-B Cr.P.C. was, however, not extended to the convicts/accused persons. Judgment of the trial Court was assailed before the High Court by way of Criminal Appeal No. 339/J/2002, which was dismissed vide the impugned judgment, hence these appeals.
It would be pertinent to mention here that convict Muhammad Arif, during pendency of the appeal was acquitted of the charge as a result of compromise between him and the complainant party, whereas Rana Farooq Ahmed did not opt to appeal.
Mr. S.M. Nazim, learned counsel for the appellant Tahir Javed has contended that in the FIR neither any of the accused persons were nominated nor any suspicion was shown against them, nor it was alleged that they had any motive to commit murder of the deceased. It is further his case that extra judicial confession was not true. Even otherwise the confession allegedly made by all the accused persons jointly was not admissible in evidence; that evidence of recoveries of daggers, especially at the instance of appellant Tahir Javed, was of no help because it was got effected from the canal bank which is a public thoroughfare and that evidence of last seen too, was not believable because if the deceased was seen in the company of the accused persons in the night of occurrence by the witnesses, then there was no justification for not disclosing it to the complainant party by the witnesses at the very outset, particularly when as per PWs 12 & 13 accused persons were available in the village and had asked for grant of pardon and he submitted that since important links in the chain of circumstantial evidence were missing, therefore, the appellants could not have been convicted for the offence.
In Cr.A. No. 771/2006 Mr. Javed Aziz Sindhu, ASC was appointed as counsel on state expense but today he is not present, therefore in his place Hafiz S. A. Rehman, learned Senior ASC, is appointed as counsel. He, while adopting the arguments of the learned counsel for the appellant Tahir Javed, added that since extra judicial confession was made jointly by all the accused persons, therefore it was not admissible in evidence; that the evidence of recoveries i.e. wrist watch and a diary allegedly made at the instance of appellant Ghulam Yaseen, were of no help to the prosecution as it has not come on record that the recovered articles actually belonged to the deceased. He pleaded that though it was alleged that appellant Hafiz Ghulam Yaseen had suspicion that the deceased had illicit relations with his wife but the alleged motive was also not proved. He added that since the evidence furnished by the prosecution was scanty and shaky and important links in the chain of circumstantial evidence were missing, therefore, the appellant could not have been convicted for the offence.
Mian Asif Mumtaz, learned Deputy Prosecutor General, Punjab, on the other hand while controverting the contentions raised by the learned counsel for the appellants submitted that FIR was lodged promptly and it was correctly mentioned therein that two of the accused persons, namely, Rana Farooq and Tahir Javed had taken away the deceased; that the deceased was seen in the company of accused persons at Ojla Pul in the evening; that the prosecution witnesses were independent and that they had no motive or enmity to falsely implicate the accused persons in the offence; that extra judicial confession, recoveries of daggers as well as the articles belonging to the deceased from the possession of the accused persons and other circumstantial evidence including the evidence of last seen was sufficient to bring home charge against the appellants.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
In the instant case the occurrence is unseen. The prosecution case rests on the evidence of extra judicial confession furnished by PW-12 Muhammad Nazir and PW-13 Zafar Iqbal, the last seen evidence furnished by PW-8 Muhammad Mushtaq, PW-9 Nasir Mahmood and PW-10 Riasat Ali, the evidence of recovery of daggers at the instance of appellant Tahir Javed and acquitted accused Muhammad Arif, and the recovery of articles belonging to the deceased i.e. watch and note book, from the possession of Ghulam Yaseen and recovery of purse along with a sum of Rs.500/- at the instance of Rana Farooq, and the medical evidence.
In order to determine evidentiary value of these pieces of evidence, we would like to take the same one by one.
So far the evidence of extra judicial confession is concerned, it has been challenged mainly on the ground that the confession being joint by all the four accused persons was not admissible in evidence, but we are afraid the contention on its face is devoid of force because both PWs 12 & 13 have stated that though all the accused persons came to the Wahla Rice Mills near Ojla Pul and asked PWs 12 Muhammad Nazir to get them pardoned from the complainant yet, both the PWs are unanimous on the point that it was only Ghulam Yaseen, who had confessed to commit murder of the deceased and rest of the accused persons uttered not a single word, hence by no stretch of imagination, it could have been concluded that it was a joint confession by all the accused persons. In the circumstances the confession made by Ghulam Yaseen, in our view, would not bind the other accused persons and it would be effective against Ghulam Yasin only. It may be noted here that since extra judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown (PLD 1951 FC 107) it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:--
Sajid Mumtaz & others v. Basharat and others (2006 SCMR 231)
Ziaul Rehman v. The State (2001 SCMR 1405)
Tayyab Hussain Shah v. The State (2000 SCMR 683)
Sarfraz Khan v. The State & others (1996 SCMR 188)
In the instant case, the evidence of extra judicial confession suffers from patent infirmities inasmuch as though it has come on record that PW-12 was a councillor and was Chairman of local Zakat and Ushar Committee and could have been termed as a man of authority yet, according to his statement, extra judicial confession was made by the accused persons in presence of a number of other persons including Zafar, Javed and Ansar which appears to be quite improbable because confession of such a heinous offence like murder is not normally made in the public. Had Hafiz Ghulam Yaseen or the other accused persons taken said Muhammad Nazir aside and sought help from him then it could have been thought that the prosecution version was true but it does not appeal to reason that in presence of so many persons the accused had confessed their guilt. There is yet, another improbability in the prosecution version qua the confession. It is stated by both PWs 12 & 13 that accused persons had confessed their guilt before them on 19.9.2001, but it has come on record that all the accused persons were arrested on 25.9.2001 after six days. Sequence of the events suggests that had the accused persons confessed their guilt, then both the witnesses would have certainly apprised the complainant party about the same and in such an eventuality the accused persons would have been certainly apprehended much earlier then 25.9.2001, particularly when, as per prosecution version, they were neither at large nor missing and were present in the village. Further the extra judicial confession does not find corroboration from any independent source inasmuch as in pursuance of the confession even the place of occurrence i.e. where the deceased was allegedly murdered, was not pointed out by any of the accused persons. Hence, in the absence of any corroboratory evidence, in our view, it was not safe for the trial Court to rely on the evidence of extra judicial confession.
After taking out from consideration the evidence of extra judicial confession, we are left with the evidence of recoveries and the last seen. So far as the recovery of daggers is concerned, admittedly it was effected at the instance of appellant Tahir Javed and acquitted accused Arif. Since Arif accused was acquitted at the appellate stage as a result of compromise therefore dagger recovered on his pointation is of no help to the prosecution. So far the recovery of dagger from the appellant is concerned though as per I.O., i.e. PW-15, recovery of dagger was effected on 27.9.2001 vide recovery memo Ex.PE and it was dispatched to the Laboratory on 4.09.2001 yet, it reached in the Laboratory on 8.10.2001. Report dated 15.10.2001 of the Chemical Examiner is explicit in this regard. No explanation whatsoever was offered at the trial as to why, the dagger dispatched on 4th September, 2001 reached in the Laboratory on 8th October, 2001 after a period of one month and four days, hence evidentiary value of the chemical examiners report was greatly marred. Further, as per report in question the blood scrapings taken out from the dagger were sent to the Serologist for determination of origin of blood but no such report was tendered in evidence, hence it could not have been concluded that the dagger was stained with human blood. In the circumstances, the evidence of the recovery of dagger too, was of no use for the prosecution.
Taking the next piece of evidence, i.e. the last seen, it may be pointed out here that it has two parts, firstly, when as per the complainant, the deceased was taken away by Rana Farooq and Tahir Javed and secondly when the deceased was seen by PWs 8, 9 and 10 in the company of the accused persons at the bank of canal near Ojla Pul in the night on 12.9.2001. According to PW-8 all the accused persons were known to him earlier. PW-8 had, at the trial, stated that on 12.09.2001 at 3.30 p.m., he was going from Pul Ojla to Roop Chand and saw Hafiz Ghulam Yaseen and Arif accused sitting near Pul Ojla and when he reached at Sangowali Bangla he saw Rafaqat deceased, Farooq and Tahir, on a bicycle going towards Pul Ojla. Both PWs 9 & 10 have stated that on 12.9.2001 they were present on bus stop as they were going to Kharian to meet Ibrahim, Head Clerk. Bus of Kohistan Company came there, out of which Rafaqat Ali, Muhammad Farooq, Tahir Javed and Qari Ghulam Yaseen, who all were previously known to them, deboarded. On the inquiry made, Rafaqat deceased told that they were going to village. They went to Kharian and returned on the next morning. On deboarding at Ojla Pul they saw crowd/rush of people who were saying that Rafaqat had been murdered. The dead body of deceased was lying on the bank of canal. Both the afore-named witnesses stated, at the trial, that on coming to know about death of deceased Rafaqat they rushed to the complainant's house and told him that they had seen Rafaqat deceased in the company of the accused persons, in the previous night. They further stated that it was talk of the town that Rafaqat was murdered by the accused persons. Statements of above witnesses indicate that by 11 or 12'O clock on 13.9.2001 the complainant gained knowledge about the factum of deceased being seen in the company of accused persons at night because as per PWs-9 & 10 they returned to Ojla Pul at 10.00 a.m., and thereafter straight away went to the complainant's house. Despite that no attempt was made by the complainant to inform the police regarding involvement of the appellants in the case. The omission so made in our view, was fatal towards the prosecution case.
Upshot of the above discussion is that the occurrence has not taken place in the manner as stated by the prosecution. In this case there is room for doubt benefit whereof must go to the appellants. We, therefore, are inclined to allow these appeals. Order accordingly. Consequently, the impugned judgments dated 21.11.2002 passed by learned Additional Sessions Judge, Gujranwala, as well as of the Lahore High Court, Lahore, dated 3.5.2005 are set-aside and the appellants, namely, Tahir Javed s/o Muhammad Maalik and Hafiz Ghulam Yaseen s/o Maulvi Shah Muhammad are acquitted of the charges. They shall be released forthwith if not required in any other case.
These are the reasons of our short order of even date announced in open Court.
(M.A.K.Z.) Order accordingly.
PLJ 2009 SC 675
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
AHMAD JAN & others--Petitioners
versus
QAZI AZIZUL HAQ & others--Respondents
Civil Petition No. 38-P of 2008, decided on 6.11.2008.
(On appeal from the order dated 7.2.2008 of the Peshawar High Court, Peshawar passed in Review Petition No. 42/06).
Civil Procedure Code, 1908 (V of 1908)--
----S. 11 & O. XI, R. 2--Limitation Act, (IX of 1908), Art. 162--Condonation of delay in filing of review petition--Review can be filed within 20 days from the date of order--Order of election tribunal was challenged through writ petition which was dismissed--Second writ petition was withdrawn with permission to file a review petition against the judgment passed in writ petition--Respondent did not file ICA or petition for leave to appeal against the judgment which attained finality--Question of maintainability--Review petition was filed after laps of more than 8 months--Validity--When a petition is dismissed by High Court is exercise of its original jurisdiction the application for review is governed by Art. 162 of Limitation Act, which provides that review application can be filed within 20 days from the date of order or judgment--Review application was filed beyond the period of limitation, hence the same was hopelessly barred by time. [P. 678] A
PLD 1991 SC 197, PLD 2007 Kar. 374 and PLD 2005 Kar. 161 ref.
Limitation Act, 1908 (IX of 1908)--
----S. 5--Condonation of delay in filing of review petition--Petition was withdrawn with permission to file review petition is previous writ petition--Review petition was filed after lapse of more than 8 months from the judgment--Validity--At the time of dismissal of writ petition the respondent neither requested for condonation of delay in filing of review petition nor the Court condone the delay--Held: Simple permission to file the review petition cannot condone the delay.
[P. 678] B
Barrister Masood Kausar, ASC for Petitioners.
Mr. Tasleem Hussain, ASC for Respondent No. 1.
Nemo for Respondent Nos. 2 to 9.
Date of hearing: 6.11.2008.
Judgment
Abdul Hameed Dogar, CJ.--This petition has been filed against the judgment dated 07.02.2008 passed by learned Division Bench of Peshawar High Court, Peshawar passed in Review Petition No. 42 of 2006, filed by Respondents No. 1 & 2 was allowed and re-election was ordered.
Briefly stating, facts of the case are that the petitioners alongwith-Respondents No. 1, 2, 8 and 9 contested elections for the seat of Nazim and Naib-Nazim of Union Council Darangal whereby the Respondents No. 1 and 2 were declared returned candidates having obtained highest number of votes. However, the election was declared as null and void by the Election Tribunal on the ground that the Deeni Sanad of Respondent No. 1 was not equivalent to matric certificate and consequently, the petitioners were declared returned candidate on the ground that although the Petitioners No. 8 and 9 were runners-up but the matric certificate of Respondent No. 8 was also found fake and bogus. The Respondent No. 1 and 2 challenged the said order through Writ Petition No. 2075/2005 before the learned Peshawar High Court, Peshawar which was dismissed vide judgment dated 23.02.2006. The Respondents No. 8 and 9 filed another Writ Petition No. 544 of 06 before the Peshawar High Court challenging the same order for obtaining orders for re-election. The said writ petition was dismissed as withdrawn on 12.10.2006 with permission to file a review petition against the judgment passed in the Writ Petition No. 2075 of 2005. The Respondents No. 8 and 9 filed review petition against the judgment dated 23.02.2006 which was accepted vide impugned judgment as stated above.
Learned counsel for the petitioners vehemently contended that admittedly the review application was filed after the period of limitation, therefore, the same could not have been entertained being barred by time and was liable to be dismissed. According to him review petition was not maintainable against the judgment dated 23.02.2006, as the Intra Court Appeal was competent against the same. He further contended that disqualification of Respondent No. 1 was notorious as at the time of poling it was publicly known that he lacked requisite qualification for contesting the election in view of the case reported as "Sanaullah vs. District Returning Officer" (PLD 2005 SC 858) whereby, it was declared that the persons holding the Sanads of Deeni Madrasa without having equivalent certificate are disqualified to contest the election, therefore, the disqualification of Respondent No. 1 was notorious. The judgment of this Court has binding force and ignorance about the same is not a valid grounds towards its applicability; that the general public despite having the knowledge that the Respondent No. 1 did not qualify to contest elections, cast their votes in his favour, thus they themselves threw away their votes.
On the other hand, learned counsel for the respondents controverted the contentions raised by learned counsel for the petitioner and submitted that the review petition was filed after obtaining permission from the learned High Court vide judgment dated 12.10.2006, therefore, the same was not barred by limitation as the limitation starts from the said date. The disqualification of the Respondent No. 1 was not notorious on the ground that he possess the Sanad of Deeni Madrasa, therefore, the principle of through away votes cannot be made applicable in the instant case. In this behalf, he relied upon the judgment reported as "Shaukat Ali vs. District Returning Officer" (PLD 2006 SC 78).
We have heard learned counsel for the parties at length and have gone through the record of the case minutely. Admittedly, Writ Petition No. 2075 of 2005 was dismissed on 23.2.2006 but the respondents did not file any Intra Court Appeal or petition for leave to appeal before this Court against the said judgment which attained finality. Afterwards, they filed another Writ Petition No. 544 of 2006 challanging the same order which was not maintainable in view of the explanation IV to Section 11 read with Order II Rule 2 of CPC, therefore, the same was dismissed as withdrawn, on 12.10.2006, with permission to file review petition in the previous Writ Petition No. 2075 of 2005. The respondents filed the review petition in the month of October, 2006 after lapse of more than 08 months from the judgment dated 23.02.2006. It is settled by now that when a petition is dismissed by the High Court in the exercise of its original jurisdiction, the application for review is governed by the provisions of Article 162 of the Limitation Act, which provides that a review application can be filed within 20 days from the date of the order or judgment. Apparently the review application has been filed beyond the period of limitation; hence, the same was hopelessly barred by time. In this behalf, reference can be made to the case reported as Nigar Bibi v. Salahuddin Khan (PLD 1991 SC 197), Hafiz Abdul Khalique v. Govt. of Sindh (PLD 2007 Karachi 374) and Desmond Vas v. KBCA (PLD 2005 Karachi 161). Even otherwise, at the time of dismissal of Writ Petition No. 544 of 2006 the Respondent No. 1 neither requested for condonation of delay in filing of review petition nor the Court condone the delay, therefore, simple permission to file the review petition cannot condoned the delay. Moreover, the respondent did not file application under Section 5 of the Limitation Act for the condonation of delay in filing of review petition thus the learned High Court has erred in entertaining the review petition.
In view of the above discussion, the petition is converted into appeal and allowed, resultantly, the impugned order of the learned Peshawar High Court passed in Review Petition No. 42 of 2006 is set-aside. The order dated 23.02.2006 passed in Writ Petition No. 2075 of 2005 of learned Peshawar High Court, Peshawar is restored.
These are the reasons of our short order of the even date.
(R.A.) Appeal allowed.
PLJ 2009 SC 678
[Appellate Jurisdiction]
Present: Khalil-ur-Rehman Ramday & Sarmad Jalal Osmany, JJ.
MAMARAS--Petitioner
versus
STATE & others--Respondents
Crl. Petition No. 388 of 2008, decided on 25.3.2009.
(On appeal from the order judgment dated 9.10.2008 of the Peshawar High Court, Abbottabad Bench passed in Crl. Misc. No. 186/08).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 109--Indiscriminate firing--Murders of nine persons--Abetting the commission of an offence--Punishable--An offence u/S. 109, PPC, is a rather serious affair as the person abetting the commission of an offence is liable to the punishment which is prescribed for person committing i.e. sentence of death in present case. [P. 680] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 109--Commission of offence punishable u/S. 109, P.P.C.--Further inquiry--Entitlement to grant of bail--Grounds of--Satisfaction of conditions prescribed--Abetting the commission--Held: Law permits grant of bail only on satisfaction of the conditions of S. 497(2) of Cr.P.C.--If there were reasonable grounds for believing that the person seeking bail was not guilty of offence alleged against him and instead there were grounds warranting further inquiry into his guilt. [P. 680] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860)--S. 109--Abetting the commission of an offence--Entitlement to grant of bail--Further inquiry--Every person accused of the commission of an offence punishable u/S. 109, PPC was entitled to grant of bail irrespectivable of merits of the case without demanding satisfaction of the conditions prescribed by S. 497(2) of Cr.P.C. and only because the allegation against him was one of abetting the commission of an offence.
[P. 681] E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 143--Appreciation of evidence--Judicial confession--Valid piece of evidence--Judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Art. 148 of Qanun-e-Shahadat Order, a judicial confession made by a co-accused person was perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co-accused of such a confessing accused. [P. 681] C
Judicial Confession--
----Nominating as abettor--Judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why co-accused would have falsely and maliciously implicated in such heinous crime by specifically nominating him as one of abettors of the same--Leave refused. [P. 681] D
Sardar Khurram Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Zulfiqar Khalid Malooka, ASC for Respondent No. 2.
Date of hearing: 25.3.2009.
Judgment
Khalil-ur-Rehman Ramday, J.--In an occurrence which had taken place on 21.9.2006 at about 8.00 a.m. in the area of Police Station Kot Najibullah of Haripur, a Suzuki pick-up carrying some passengers was ambushed by the then unknown assailants who had come in a motor car and as a result of the indiscriminate firing made by whom, nine persons had lost their lives while five others had received serious injuries. Pursuant to the investigation, it transpired that two real brothers, namely, Ahmed Nawaz and Akhtar Nawaz were facing trial on a murder charge; that they had asked their third brother, namely, Haq Nawaz, who was an absconding accused of that very case, to eliminate the witnesses of the said murder case who were to come to the Court for giving evidence on 21.9.2006. The said Haq Nawaz collected some of his friends and relatives and launched the above-mentioned attack on the said Suzuki pick-up which, however, turned out to be a case of mistaken identity as the passengers of this vehicle, including the above-mentioned poor victims of the said assault, had nothing to do with the said murder case. Mamaras petitioner is one of the accused persons of the said crime.
(a) that Mamaras petitioner was not amongst those accused persons who had made the fatal indiscriminate firing but was burdened with liability only account of Section 109 of the Pakistan Penal Code; and
(b) that the only material available against him were the judicial confessions made by some of his co-accused persons which had been recorded under Section 164 of the Cr.P.C.
We have considered the matter at some length and do not find it possible for us to take an offence punishable under Section 109 P.P.C. as lightly as the learned A.S.C. expects us to take. The said is a rather serious affair as the person abetting the commission of an offence is liable to the same punishment which is prescribed for person committing the same i.e. a sentence of death in the present case. Needless to add that in such-like cases, the law permits grant of bail only on satisfaction of the conditions laid down in sub-section (2) of Section 497 of the Cr.P.C. i.e. if there were reasonable grounds for believing that the person seeking bail was not guilty of the offence alleged against him and instead there were grounds warranting further inquiry into his guilt.
Even if it be presumed, for the benefit of Mamaras petitioner, that the above-noticed judicial confessions were the only evidence available against him, he would still not qualify for his release on bail as according to the provisions of Article 143 of the Qanun-e-Shahadat Order of 1984, a judicial confession made by a co-accused person was a perfectly valid piece of evidence which could be taken into consideration and which could be used as circumstantial evidence against a co-accused of such a confessing accused. Needless to say that circumstantial evidence, even by itself, has never ever been considered not to be a valid basis for founding a conviction thereon. It was of course open to the petitioner to show that the said judicial confessions did not deserve any reliance but not even an attempt was made to indicate any reason why the said co-accused persons would have falsely and maliciously implicated Mamaras petitioner in such a heinous crime by specifically nominating him as one of the abettors of the same.
Thus, nothing exists on record which could permit us to hold that the case of the petitioner was one of further inquiry. Nor is it possible for us to declare that every person accused of the commission of an offence punishable under Section 109 P.P.C. was entitled to the grant of bail irrespective of the merits of the case; without demanding satisfaction of the conditions prescribed by Section 497(2) of the Cr.P.C. and only because the allegation against him was one of abetting the commission of an offence.
Consequently, this petition is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 681
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
LAND ACQUISITION COLLECTOR, ABBOTTABAD
and others--Appellants
versus
GOHAR-UR-REHMAN ABBASI--Respondent
Civil Appeal No. 1193 of 2007, decided on 13.10.2008.
(On appeal from the judgment dated 12.1.2007 of the Peshawar High Court, Abbottabad Bench, passed in RFA No. 50 of 2003).
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Award--Assessment of price--Reference u/S. 18 for enhancement of price--Regular first appeal was preferred for further enhancement--Acceptance of--Challenge to--Direct appeal under appellate jurisdiction of Supreme Court--Dismissal of--Before the passing of award, Assistant Commissioner was appointed as local commission by the Land Acquisition Collector for the determination of market value of the suit land, that the price agreed through private negotiations was much higher than that of one year average price--Local commission stated that the revenue record had showed sharp increase in the prices of land and the agreed price was justified as the required land was situated in the best and most suitable locality--Held: Time of passing of award, the potential value of the property has to be considered in addition to the market value of the land--Appeal dismissed. [P. 684] A & B
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Award--Assessment of price--Potential value--Relevancy of--Average of sales of last one year is not conclusive for the determination of the market value of land and while assessing the market value of the land, its location and potentiality has also to be considered. [P. 684] C
Mr. Zia-ur-Rehman, A.G. NWFP for Appellants.
Respondent in person.
Date of hearing: 13.10.2008.
Judgment
Abdul Hameed Dogar, CJ.--This direct appeal has been filed against the judgment dated 12.01.2007 passed by learned Single Judge in Chambers of Peshawar High Court, Abbottabad Bench whereby RFA No. 50 of 2003 filed by respondent was allowed and order of the learned referee judge was partially set-aside and the amount of market value was enhanced to Rs. 1,00,000/- per kanal with 15% compulsorily acquisition charges alongwith 6% annual interest from the date of taking over the possession till payment.
Brief facts of the case are that the respondent was the owner of land measuring 3 kanal 15 marlas bearing Khasra Nos.2315, 2316, 2318 to 2321 and 5265 situated in Mauza Dalola, Tehsil & District Abbottabad. The said land was acquired by the Land Acquisition Collector on the request of DE(M), Abbottabad for the construction of play ground for Government High School, Dalola vide notification dated 09.02.2002. The Collector fixed compensation of the land for Rs. 94,151/- alongwith 15% acquisition charges through Award No. 140 dated 25.01.1995. The respondent filed reference under Section 18 of the Land Acquisition Act, 1894 before the Referee/Senior Civil Judge, Abbottabad, which was partly decreed and the compensation was enhanced to Rs.30,000/- per kanal. Being aggrieved, the respondent filed RFA No. 50 of 2003 before the Peshawar High Court, Abbottabad Bench which was allowed vide impugned order as stated above, hence this appeal.
Learned Advocate General, NWFP vehemently contended that learned High Court has erred while enhancing the compensation amount and much higher price has been fixed without any cogent ground. The learned High Court has wrongly fixed the market value of the acquired land on the basis of agreement agreed between the respondent and the Headmaster of GHS, Dalola whereby the price of land was fixed at Rs. 1,00,000/- per kanal. He further contended that although after the private negotiations between the respondent and the Headmaster of GHS, Dalola, the price of land was agreed as Rs.1,00,000/- per kanal, on which the department had expressed its willingness and the document was forwarded to the higher-ups for approval but the same was not approved and the department opted to obtain the land through Acquisition, therefore, the said agreement cannot be relied upon. He further stated that the claim of respondent about the nature of land being "Bari" land was not true. He contended that the local commissioner after spot inspection and local investigation, wrongly determined the market value of "Bari" land at Rs. 1,03,572/- per kanal, "Maira" land at Rs.47,346/- and "Ghair Mumkin" land as Rs.2959/20 per kanal which is much higher than the actual market value. He further stated that learned Peshawar High Court has not considered the average price of the last one year which was much less than that of price fixed by the High Court.
On the other hand, respondent present in person stated that the acquired land was a "Bari" land which has high potential value and the learned High Court has rightly enhanced the market value. He further stated that the Headmaster of GHS, Dalola, was ready to purchase the acquired land at the rate of Rs. 1,00,000/- per kanal and an agreement was also executed in this regard but later on the department with malafide and dishonest intention, in order to grab the respondent's land opted for acquiring the land through acquisition proceedings. He relied upon the report of the Hifzur-Rehman, Assistant to Commissioner (Political) Abbottabad, as Local Commissioner whereby the price of "Bari" land was fixed at Rs. 1,03,572/. He further stated that the land was acquired and the possession was taken over in the year 1995 and since than the price of the properties has been increased many fold, therefore, even the price fixed by the learned Peshawar High Court is much less then the actual market value.
We have heard the parties at length, have gone through the impugned judgment and available record minutely. It is admitted by the appellant that before the acquisition proceedings, the Headmaster of GHS, Dalola, through private negotiations, was willing to purchase the acquired land at the rate of Rs. 1,00,000/- per kanal and in this regard the document was also executed and the same was forwarded to high-ups of the education department but the department opted to acquire the land through acquisition proceedings. It is evident from the record that before the passing of Award No. 140 dated 25.01.1995, Mr. Hifzur-Rehman, Assistant to Commissioner (Political) Abbottabad was duly appointed as Local Commission by the Land Acquisition Collector, for the determination of the market value of the suit land, vide letter dated 26.03.1994, on the ground that the price agreed through private negotiations was much higher than that of one year average price. The said local commission vide its report dated 17.05.1994, stating that the revenue record for the period 13.05.1993 to 06.04.1994 had showed a sharp increase in the prices of lands and the agreed price of Rs.3,00,000/- was justified, as the acquired land was situated in the best and most suitable locality. It is well settled principle that at the time of passing of award, the potential value of the property has to be considered in addition to the market value of the land. In this behalf reference can be made to the cases of Province of Sindh v. Ramzan and others (PLD 2004 SC 512. The question as to how the price of acquired land is to be determined, has been examined and answered by this Court in various cases in a comprehensive manner and guideline has been provided in case Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870, which is reproduced hereinbelow for ready reference:
"(10) The cardinal principle for ascertaining the value of the land under acquisition is to find out the price acceptable to a willing seller from a willing purchaser. Attending this principle, we notice that the rate of compensation given by the Referee Court being muchless to that of the claim made by the owners was not exorbitant arid, therefore, taking the relevant factors into consideration, the rate of compensation awarded by the Referee Court was fair."
"(6) We are not persuaded to strike off the award on the rectitude of these submissions, Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the Notification under Section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of Notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the Notification under Section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment."
"(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date, of publication of the Notification under Section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc.
(N.I.) Appeal dismissed.
PLJ 2009 SC 686
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Sarmad Jalal Osmany, JJ.
BASHIR AHMED--Appellant
versus
ABDUL AZIZ and others--Respondents
Civil Appeal No. 372 of 2005, decided on 12.3.2009.
(On appeal from judgment of Lahore High Court Multan Bench Multan dated 1.3.2005 passed in Civil Revision No. 963/2001).
Inheritance--
----Claim of--Appellant claims inheritance on basis of `Sharia' which is denied by defendant on basis of custom, where daughters were deprived of inheritance in presence of sons--Validity--Whenever a muslim claims inheritance, the rule of law shall be the Muslim Personal law (Sharia) and party placing reliance upon custom shall have to prove the existence. [P. 688] A
Principle of Law--
----Onus to prove custom--Defendant who was a minor at the time of inheritance--Disputed mutations of inheritance were attested on the verification of grandfather of petitioner--Held: Strong inference would, therefore, go in favour of defendant who was a minor at the time of inheritance and in whose favour the mutation was attested on the verification of plaintiff's real grandfather. [P. 688] B
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)--
----S. 2-A--Rule of inheritance--Land was acquired prior to enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948--Validity--Rule of inheritance at the time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land devolved on him under Muslim Personal Law (Shariat) Application Act, provided such acquisition had occurred prior to enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948--Such devolution has been declared absolute by S. 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962--Appeal was dismissed. [P. 689] C
Syed Ishtiaq Haider, ASC with Mr. M. S. Khattak, AOR for Appellant.
Sh. Zamir Hussain, Sr. ASC for Respondent Nos. 1-2.
Ex-parte for other Respondents.
Date of hearing: 12.3.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Bashir Ahmed has filed this appeal from the judgment dated 1.3.2005 of a learned Judge in Chambers of Lahore High Court, Multan Bench, whereby, the concurrent findings dated 17.9.1998 of Senior Civil Judge Muzaffargarh and dated 27.9.2001 of Additional District Judge Muzaffargarh, decreeing the appellants' suit, were set aside and he was non-suited on acceptance of revision petition filed by the respondents.
Brief facts of the case are that 146 kanals 19 marlas of land belonged jointly to one Mehmood son of Karim Bakhsh and his wife Mst. Hayat Khatoon. They were Baloch by Caste. Mehmood died in 1934 whose inheritance, vide Mutation No. 135 of 9.6.1934, devolved upon his son Abdul Aziz. About 10 years later Mst. Hayat Khatoon also died in the year 1945 whose inheritance devolved again on her son Abdul Aziz vide Mutation No. 237 dated 19.5.1944. The peculiarity to be noted is that the legacy of Mehmood did not devolve upon either his wife Mst. Hayat Khatoon or his daughter Mst. Ghulam Zohran, the latter having died in the year 1945. So is the case of the inheritance of Mst. Hayat Khatoon in whose inheritance mutation, the daughter Mst. Ghulam Zohran again stood excluded.
Present appellant Bashir Ahmed is the son of Mst. Ghulam Zohran. In the year 1992 Bashir Ahmed brought a civil suit, challenging mutations aforementioned and claiming 1/3rd share of her mother which she ought to have inherited from her parents. The suit was decreed by the learned trial Court on 17.9.1998, against which, the appeal before the learned Additional District Judge also failed on 27.9.2001. The learned High Court, while exercising revisional jurisdiction observed that the learned two Courts below had fallen into error of misreading and non-reading of evidence that led to mis-appreciation of law and mis-carriage of justice. The concurrent findings were set aside. The appellant Bashir Ahmed was non-suited through judgment dated 1.3.2005. Hence this appeal.
The appellant claims inheritance on the basis of `Sharia' which is denied by the defendant on the basis of custom, where daughters were deprived of inheritance in the presence of sons. We would proceed to appreciate the evidence as well as the law on the subject with settled principle in mind that whenever a Muslim claims inheritance, the rule of law shall be the Muslim Personal Law (Sharia) and the party placing reliance upon custom shall have to prove the existence thereof.
Keeping in view this basic principle of law and the onus to prove custom, we would now advert to the evidence on record. The disputed mutations of inheritance were attested on the verification of one Ghulam Rasool who admittedly was the grandfather of Bashir Ahmed plaintiff. The question of collusion of Abdul Aziz with any other person cannot be accepted at all because at the time of such attestation he was only a minor, six years old. The strong inference would, therefore, go in favour of the defendant who was a minor at the time of inheritance and in whose favour the mutation was attested on the verification of plaintiff real grandfather named Ghulam Rasool.
At the first instance, one gets impression that `Sharia' prevailed at the relevant time because Mst. Hayat Khatoon, being a lady was owner of the property. This presumption is shattered by the plaintiff himself when he says in the cross-examination that his grand-mother (Mst. Hayat Khatoon) had inherited the property from her father because her father had no male issue. The plaintiff admits that right from 1934 upto the institution of the present suit, neither his mother Mst. Ghulam Zohran nor his father claimed any share of inheritance.
His witness Ghulam Nabi (PW-2) who is aged 95 has categorically alleged that previously they used to follow custom but now `Sharia' is applicable. He explained that during British regime his mother and maternal aunt had no doubt received share of inheritance but it was only because they had no brother. The plaintiffs own witness admits the existence of custom. The evidence of defendants is also on the same line where Allah Wasaya (DW-1) reiterates the prevalence of custom at the time of the opening of disputed inheritance. Ghulam Qadir (DW-2) not only proved the alleged existence of custom but gave numerous examples where the females were disinherited in the presence of males and that this custom prevailed among Baloch Tribe. Abdul Aziz defendant (DW-3) reiterated the same claim regarding the existence of custom. He alleged that at the time of attestation of disputed mutations he was a minor of about six years and that the mutations were attested on the verification of one Ghulam Rasool, the real grand-father of the plaintiff/appellant. He further explained that no doubt his mother Mst. Hayat Khatoon inherited the property but it so happened only because the two sisters had no brother.
From the evidence on record, it clearly transpires that at the time of devolution, the rule of inheritance that prevailed among Baloch Tribe was custom and not (Sharia). This is fortified by Riwaj-e-Aam, Ex.D-9 and Ex.D-10 (PP:117 to 122) on record which categorically lays down that in the presence of male children, the female were excluded from inheritance. The learned High Court, with reference to oral evidence on record as well as the aforesaid Riwaj-e-Aam, has very rightly observed that the learned Courts below had fallen into error of mis-reading and non-reading of evidence.
Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948. Such devolution has been declared absolute by Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the relevant portion of which is reproduced as under:--
"[2-A. Succession prior to Act IX of 1948.--Notwithstanding anything to the contrary contained in Section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Law (Shariat);
(b) .........................
(c) ........................."
(R.A.) Appeal dismissed.
PLJ 2009 SC 690
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk &
Sh. Hakim Ali, JJ.
DR. NIGHAT BIBI PHYSICIAN, GENERAL MEDICINE, PIMS ISLAMABAD--Petitioner
versus
SECRETARY, MINISTRY OF HEALTH, GOVT. OF PAKISTAN, ISLAMABAD and others--Respondents
C.P.L.A. No. 595 of 2008, decided on 28.11.2008.
(On appeal from judgment of Islamabad High Court, Islamabad dated 30.4.2008 passed in ICA No. 2/2003).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Civil servant--Dispute of seniority related to appointment--Question of absorption as well as promotion of a civil servant--Challenge exercising appellate jurisdiction in Intra Court Appeal--Absorption in Federal Government was illegal or void ab-initio--Validity--Federal Govt. had authority to order such absorption not being a matter alien to Governments involved--Keeping in view the past service record and qualifications of petitioner the order was rightly passed being within discretion of Federal Govt. and hence there was no reason to record--Held: Valuable right had accrued to civil servant which she had exercised for a period of three years right under the nose of Federal Govt. and hence it cannot be taken away through a unilateral action--If competent authority was of the view that some higher authority had no jurisdiction it would have show the courage to disobey the order--Appeal accepted. [Pp. 693 & 694] A & C
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Original absorption--Question of absorption as well as promotion of civil servant is matter strictly related with Government--Original absorption of civil servant had been confirmed by Superior Courts during litigation in which Federal Govt. was a party--No right or power to record--Petitioner had attained absorption through back door and that P.M. had no jurisdiction to order absorption and hence Federal Govt. had authority to undo the same--Appeal accepted. [P. 694] B
Promotion--
----Post service record--Nobody can doubt the eligibility of petitioner keeping in view the post service record and qualification. [P. 694] D
Mr. Wasim Sajjad, Sr. ASC with Ch. Akhtar Ali, AOR for Petitioner.
Mrs. Naheeda Mehboob Elahi, D.A.G. with Raja Abdul Ghafoor, AOR for Respondents No. 1-2.
Hafiz S.A. Rehman, Sr. ASC for Respondent No. 3.
Date of hearing: 28.11.2008.
Judgment
Sardar Muhammad Raza Khan, J.--Dr. Nighat Bilal seeks leave to appeal from the judgment dated 30.4.2008 of a learned Division Bench of Islamabad High Court, Islamabad exercising appellate jurisdiction in Intra Court Appeal against the judgment dated 30.10.2002 passed by a learned Judge in Chambers, whereby, the notifications dated 3.5.2001 and 25.5.2001 were declared to have been issued without lawful authority and Dr. Nighat Bilal (respondent therein) was declared to be a permanent employee of Federal Government in BPS-19. The above declaration was set aside by the learned Division Bench by accepting ICA filed by Dr. Jamal Zafar, Respondent No. 3.
Brief service record of the petitioner is that after doing her bachelors in Medicine and Surgery in the year 1975 she joined Ganga Ram Hospital, Lahore in 1977. After attaining the membership of college of Physicians and Surgeons (MCPS) in 1979 she acquired the fellowship of (FCPS) in 1986. During this time in the year 1980 Ganga Ram Hospital was taken over by Punjab Government and the petitioner, by then having attained BPS-18, became a civil servant.
With one or two transfers, she was ultimately sent to Pakistan Institute of Medical Sciences, Islamabad on deputation in BPS-18 with effect from 19.11.1992. Government of Pakistan, Ministry of Health through gazette notification dated 3rd May, 2001 absorbed her as Associate Physician in BPS-19 with her right of seniority to be reckoned with effect from 24.11.1994. With such absorption she was posted at PIMS. The right of seniority was reckoned with effect from 24.11.1994 because through earlier issued gazette notification dated 24.11.1994, she was absorbed in PIMS on the post of Physician General Medicines in BPS-19 with immediate effect. In short, she stood permanently absorbed in Federal Government and was also promoted to BPS-19.
Against the aforesaid promotion of the petitioner, Dr. Jamal Zafar (Respondent No. 3) filed an appeal before Federal Service Tribunal. Such appeal was pending when on 25.6.1996 the learned counsel for PIMS informed the Tribunal that one post in BPS-19 being vacant, was available for promotion quota. Hafiz S. A. Rehman, learned counsel for Dr. Jamal Zafar submitted for a direction to the Institute to consider the case of the petitioner against the available post in promotion quota. The learned Tribunal disposed of the appeal in the following terms:--
"Since one post of Physician (B-19) is lying vacant and the appellant is eligible against promotion quota, we direct that his case be considered for promotion according to law, and the appeal stands disposed of in the above terms.
Dated: Sd/-
25.6.1996" CHAIRMAN
Neither the petitioner Dr. Nighat Bilal nor the respondent Dr. Jamal Zafar further challenged the above order and hence the order dated 25.6.1996 became final. As the dispute of seniority related to the appointment of Dr. Nighat Bilal in BPS-19, her such appointment became final through the above order so far as the contesting Doctors were concerned. Dr. Jamal Zafar is, therefore, estopped to challenge the appointment in BPS-19 of Dr. Nighat Bilal. The seniority would of course follow therefrom.
Despite the fact that the petitioner was absorbed in the Federal Government and despite the fact that she stood promoted to BPS-19 with effect from 24.11.1994, the Government of Pakistan vide notification dated 25.9,1997 repatriated her to Health Department Government of Punjab with immediate effect. She challenged such repatriation through Writ Petition No. 2153/1997 which was dismissed on 30.10.1997. Intra Court Appeal No. 79/1997 filed by the petitioner was accepted on 8.11.1999 (PP:121 to 125). It was never further appealed against by anyone and it stood finally determined that the petitioner shall be deemed to be a permanent employee of the Federal Government.
Through notification dated 3.5.2001 (P:114), the Government of Pakistan passed an order which was almost a repatriation of the petitioner. In pursuance whereof PIMS issued another notification dated 25.5.2001 (P:19). She filed a Writ Petition No. 2334/2001 against the aforesaid action of the Federal Government whereby she was brought again to zero point. It was never contested by the Federal Government and instead Dr. Zafar Jamal was the only contestant. The learned Court observed that "from 24.11.1994 upto 3.5.2001, the status of the petitioner in Grade-19 has been recognized and continuously acted upon. Even after the judgment dated 8.11.1999 passed in ICA No. 79/1997 no action was taken until 3.5.2001 when the impugned notification was issued. The respondents have also not placed on the record any proceedings which justifiably led to the passing of the impugned notification dated 3.5.2001. For almost one and an half years after the judgment in ICA the petitioner performed her function in Grade-19". The writ petition was accepted on 2.12.2002 against which ICA was filed neither by the Government nor by PIMS but by Dr. Jamal Zafar. This was again dismissed. The opposite party (Dr. Jamal Zafar) came to the Supreme Court that the ICA was not maintainable. The case was remanded and ultimately Islamabad High Court rendered the judgment, now impugned before us.
Before entering into discussion one may recall that against the single Bench judgment dated 2.12.2002, the Government had filed direct appeal before the Supreme Court which was withdrawn on 7.2.2005. The past legal as well as factual history of the case boils down to un-escapable conclusion, firstly, that the petitioner stood permanently absorbed in the Federal Government; secondly, that she attained BPS-19 with effect from 24.11.1994 and lost all her connections with the Government of Punjab and hence could not be repatriated through the notifications dated 25.7.1997, 3.5.2001 and 25.5.2001. The Federal Government was not only estopped by its own acts but such acts were subsequently confirmed expressly through judgments of the High Court and also that of the Federal Service Tribunal wherein Dr. Jamal Zafar by accepting consideration for BPS-19 had himself brought an end to the matter.
The question of absorption as well as promotion of a civil servant is a matter strictly related with the Government concerned. The narration of past history would indicate that the Government, as such, never contested the issue which instead was contested by Dr. Jamal Zafar who is totally estopped to re-agitate the same after the decision dated 25.6.1996 of the learned Tribunal.
Hafiz S. Rehman, learned counsel for the respondents has taken the only stance that the theory of locus poenitentiae was not applicable to the Federal Government and hence it could repatriate the petitioner even after the passage of three years, if absorption was considered unlawful. The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207) and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh, and others (2005 SCMR 1814) were relied upon in this context. We have gone through the rulings above but could not be convinced on the point that the petitioner's first absorption in the Federal Government was illegal or void ab initio. The Federal Government had the authority to order such absorption not being a matter alien to the Governments involved. Keeping in view the past service record and qualifications of the petitioner, the order was rightly passed being within the discretion of the Federal Government and hence there was no reason to recede. A valuable right had accrued to the petitioner which she had exercised for a period of three years right under the nose of Federal Government and hence it cannot be taken away through a unilateral action.
The second most important aspect of the case is that the original absorption in BPS-19 of the petitioner had finally been confirmed by the superior Courts during litigation in which the Federal Government was a party. Thus, it had no right or power to recede.
It is mentioned in dispatches, though not seriously argued before us, that the petitioner had attained first absorption through back door and that the Prime Minister had no jurisdiction to order absorption in BPS-19 and hence the Federal Government had the authority to undo the same. The matter can be negated for twofold reason. Firstly, that such absorption has been confirmed and declared valid by the superior Courts in the past litigation reproduced in the earlier part of the judgment and thus had become a past and close transaction, not to be challenged and re-agitated. Secondly, this Court has held in numerous verdicts that the Government cannot take benefit of its own illegalities. If the competent authority was of the view that some higher authority had no jurisdiction, it would have shown the courage to disobey the order. Once it is not done, the step so taken cannot be subsequently retraced by the Government if the incumbent otherwise was eligible for the benefit so granted. Nobody can doubt the eligibility of the petitioner keeping in view her past service record and qualifications.
Consequent upon what has been discussed above, the instant petition after conversion into appeal is accepted, the impugned judgment dated 30.4.2008 is set aside and that dated 2.12.2002 is restored, holding that the petitioner shall be deemed to be permanent employee of the Federal Government.
(R.A.) Leave accepted.
PLJ 2009 SC 694
[Appellate Jurisdiction]
Present: Mian Hamid Farooq, Syed Zawwar Hussain Jaffery & Sarmad Jalal Osmany, JJ.
STATE--Petitioner
versus
ABDALI SHAH--Respondent
Crl. Petition No. 3K of 2008, decided on 30.10.2008.
(On appeal against the order dated 16.11.2007 passed by High Court of Sindh in Crl. Bail Application No. 902/2007).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 21--Criminal Procedure Code, (V of 1898)--S. 537--Constitution of Pakistan, 1973--Art. 185(3)--Appellate jurisdiction--Arrested by unauthorized person--Irregularity--It could not be expected that upon apprehension of the accused the police party would go in search of the officer, who was entitled to arrest the accused being an ASI--Such was an irregularity which was curable u/S. 537, Cr.P.C.
[Pp. 696 & 697] A
Control of Narcotic Substances, 1977 (XXV of 1997)--
----S. 21--Criminal Procedure Code, (V of 1898)--S. 537--Constitution of Pakistan, 1973--Art. 185(3)--Appellate jurisdiction--Investigation by authorized person--Investigation by an officer not authorized to do so was merely an irregularity which was curable u/S. 537, Cr.P.C.
[P. 697] B
Mr. Shahadat Awan, Prosecution General Sindh and Mr. A.A. Siddiqui, AOR for Petitioner.
Nemo for the Respondent through Served.
Date of hearing: 30.10.2008.
Judgment
Sarmad Jalal Osmany, J.--This Petition for Leave to Appeal impugns the order dated 16.11.2007, passed by the Learned Sindh High Court, whereby Cr. Bail Application No. 902/2007 was allowed and the Respondent enlarged on bail.
As per the report of the Learned Special Judge (CNS), Karachi dated 24.10.2008, the Respondent was served on 23.10.2008 to appear before us on 27.10.2008 when the matter was earlier fixed. Today there is no representation on his behalf.
Briefly stated the facts of the matter are that while a Police party was on patrol duty on 23.1.2007 at about 5:00 p.m. in the SITE Area Karachi, they saw two persons closing the Dickey of a taxi who tried to escape upon observing the Police personnel. One of them was taken into custody and when the taxi was searched two cartons with 18/15 packets each and one carton of 12 packets in all weighing 52 Kgs. of Charas were recovered. Upon the inquiry, the apprehended person, disclosed his name as Abdali Shah and the person who made his escape good as Abdullah by name. The Accused alongwith the taxi and Charas was brought to the Police Station, where SI Bakht Jamal prepared the Memo of arrest and recovery as well as registered the FIR.
According to Learned Prosecutor General, the merits of the case have not been discussed at all by the learned High Court and bail granted on technicalities which again does not find support per settled case law. In this regard, Learned Prosecutor General has submitted that the first ground which prevailed with the learned High Court was that the Seizing Officer was below the rank of ASI and hence the entire process was in violation of Section 21 of the CNS Act. In this regard, he has submitted that Section 21 of the CNS Act only pertains to a raid and not to recovery made during normal patrol duty as in the present case. Learned Prosecutor General has also submitted that at the most the arrest of the Respondent/Accused by an Officer below the rank of ASI was only an irregularity and can be cured under Section 537 Cr.P.C. as it had not caused any prejudice to the Accused. For this proposition, he has referred to Muhammad Hanif v. The State (2003 SCMR 1237).
Secondly, per Learned Prosecutor General the other factor which prevailed with the learned High Court was that there was a violation of Proviso (4) of Section 18 of the Police Order, 2002, according to which all registered cases should be investigated by the investigating staff in the District, whereas, in the present case, the investigation was conducted by a Police official posted at P.S. SITE. In this regard, Learned Prosecutor General has again submitted that where the investigation has not caused any prejudice to the Accused, then the same carried out by an official who was not competent to investigate the matter would at most amount to an irregularity which was again curable under Section 537 Cr.P.C. In the present case, the Respondent/ Accused was apprehended beside the taxi from which a huge quantity of Charas viz. 52 Kgs. was recovered and hence the investigation carried out by the Police officials of P.S. SITE by whom recovery was made could hardly prejudice the Respondent. Learned Prosecutor General has further submitted that per Section 156(2) Cr.P.C. investigation carried out by an unauthorized Police Officer is curable under Section 537 Cr.P.C being an irregularity at the most. In support of his proposition, he has relied upon Muhammad Idrees v. The State (PLD 2006 Lahore 780) as well as State through A.G v. Bashir (PLD 1997 SC 408).
We have heard learned Prosecutor General.
It would be seen that a huge quantity of 52 Kgs. Of Charas was allegedly recovered from the taxi beside which the Respondent was standing while closing its Dickey. It is not possible that the Police would foist such a huge quantity of Charas upon him. It appears that the learned High Court has relied heavily upon the technical aspect of the seizure and arrest which in our opinion are misconceived as in the first place no raid was carried out by the Police personnel but the Respondent apprehended during normal patrol duty. As such the provisions of Section 21 are not applicable. Even otherwise it cannot be expected that upon apprehension of the Accused the Police party would go in search of the Officer, who is entitled to arrest the accused being an ASI. At the most, this was an irregularity which was curable under Section 537 Cr.P.C. as held by this Court in the case of Muhammad Hanif (supra).
Similarly, the second ground which weighed with the Learned High Court that the investigation was not carried out by an official authorized to do so, also is devoid of substance, since no prejudice has been caused to the Respondent by such investigation. The case of Muhammad Farooq Khan v. The State (2007 P.Cr.L.J. 1103) relied upon in the impugned order is distinguishable from the facts of the present case as therein mala fides were alleged against the investigative agency in which event a Learned Division Bench of the Sindh High Court came to the conclusion that the investigation should been entrusted to another agency. In this regard, the reference can be made to the case of State through A.G v. Bashir (supra), wherein it was held that investigation by an officer not authorized to do so was merely an irregularity which is curable under Section 537 Cr.P.C.
For all the foregoing reasons, we would convert this Petition into an Appeal and allow the same. The impugned order is set aside and the bail given to the Respondent/Accused is cancelled.
(R.A.) Bail cancelled.
PLJ 2009 SC 697
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
QADIR SHAH & others--Appellants
versus
STATE--Respondent
Crl. Appeal No. 594 of 2005, decided on 3.11.2008.
(On appeal from the judgment dated 13.5.2004 of the Lahore High Court, Lahore passed in Cr. A. No. 960/03).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 354-A, 337-A(iii), 148 & 149--Criminal Procedure Code, (V of 1898), S. 200--Private complaint--Conditions must co-exist to bring the case within ambit of S. 354-A, PPC--Unexplained delay of 16 days in FIR--No explanation of any sort was furnished--Case found false and report of cancellation of FIR--No independent witness was produced to support the version--Injury on right eye brow of lady victim which was alleged to have been caused by a pistol shot fired by accused--Injury was declared not to have been caused by fire-arm weapon--Question of--Whether S. 354-A of PPC is attracted or not--Held: To attract the provisions, two conditions must be fulfilled, firstly, there should be stripping of clothes and secondly the victim in that condition be exposed to public view--Both conditions must co-exist to bring the case within ambit of S. 354-A, PPC, which fact is missing in the instant case, as the occurrence took place in field, the clothes of victim were just torn and not stripped of--Exposure of victim to the public at large was also missing as no one from general public was present at scene of incident--Provisions of S. 354-A, PPC are not attracted rather the case fall u/S. 354, PPC. [P. 700] A
Mr. Munir Ahmed Bhatti, ASC for Appellants.
Mr. Siddique Khan Baloch, DPG Punjab for State.
Date of hearing: 3.11.2008.
Order
Abdul Hameed Dogar, CJ.--This appeal with leave of this Court is filed against judgment dated 13.5.2004 passed by learned Single Judge of Lahore High Court, Lahore whereby Criminal Appeal No. 960 of 2003 filed by appellants was dismissed.
Briefly, stated facts leading to the filing of FIR No. 344/220 dated 09.8.2000 at Police Station Khanqah Dogran under Sections 354, 337-A(iii), 148/149 PPC are that on 26.7.2000 at 4.30 PM. Complainant Abdul Ghafoor along with his wife Mst. Bashiran Bibi were working in their fields when suddenly appellants, Qadir Shah armed with pistol, Bilal Shah armed with hatchet, Muhammad Ashraf Shah armed with lathi and Munawar and Rashid armed with dandas whereas acquitted accused Ajmal Shah armed with hatchet, Muzammal Shah armed with danda and Ehsan Shah armed with hatchet emerged there. Appellant Qadir Shah raised lalkara that Mst. Bashiran and Abdul Ghafoor be taught a lesson for cultivating their land. On which Ashraf Shah and Abdul Rashid caught hold of Abdul Ghafoor and Qadir Shah inflicted pistol blows on the person of Mst. Bashiran which hit on her eye brow. Munawar also caught hold of Mst. Bashiran from her throat and got her down on the ground and gave fist blows. Upon which Mst. Bashiran made hue and cry on which Ajmal Shah and Bilal Shah gave blows with wrong side of the hatchets on her left arm and shoulder. It was also alleged that Munawar and Muzammal Shah gave kicks blows to her which hit on her private parts. Then Qadir Shah and Munawar caught hold of her legs from one field to another as a result of which her clothes were torn and she was made naked. On hue and cry PWs Fiaz Hussain and Abdul Shakoor got attracted and went at the place of incident while the accused fled away.
The matter was investigated by the local police, as a result of which the case was found false and report of cancellation of FIR was prepared. Feeling aggrieved, complainant filed private complaint upon which the cognizance was taken by learned Additional Sessions Judge, Sheikhupura.
Prosecution in order to prove its case produced four witnesses whereas CW-1 Dr. Tausif Ahmed Qureshi, Medical Officer, Civil Dispensary, Jhabran District Sheikhupura and CW-2 Ghulam Mehdi, SI (Investigation Centre), Sheikhupura were called by the Court.
The statements of appellants were recorded under Section 342 Cr.P.C. wherein they denied the case of prosecution and pleaded false implication. However, they neither examined themselves on Oath as required under Section 340 (2) Cr.P.C. nor produced evidence in their defence.
Learned counsel for the appellant vehemently contended that FIR was lodged after unexplained delay of 16 days. He further contended that the matter was investigated by the police as a result of which the same was found false and report of cancellation of FIR was prepared. According to him, prior to the registration of case there exist civil as well as criminal litigation in between the parties. He further contended that Mst. Bashiran was admitted in the hospital but the medical officer did not observe any injury on her person. Furthermore, there was no mention of any blood on her person as well as her clothes in the police record. He contended that provision of Section 354-A PPC are not attracted as the pre-requisite are that firstly the occurrence should have been taken place at thorough fare and secondly the clothes are completely removed and that the lady is exposed to public view. He further contended that no independent witnesses have been examined as such it cannot be held that it was witnesses by public. He lastly contended if the version of complainant is presumed to be correct even then the case would fall under Section 354 PPC and not under Section 354-A PPC.
On the other hand, learned DPG controverted above contentions and supported impugned judgment. He contended that prosecution has successfully proved its case beyond any shadow of doubt.
We have considered the contentions raised at the bar and have gone through the record and proceedings of the case in minute particulars. Admittedly the FIR was lodged after a delay of 16 for which no explanation of any sort is furnished. The police investigated the case and found it false and report of cancellation of FIR was prepared which fact was affirmed by CW-2 Ghulam Mehdi, Investigation Officer of this case. No independent witness has been produced to support the version. The injury on the right eye brow of Mst. Bashiran Bibi which was alleged to have been caused by a pistol shot fired by appellant Qadir Shah, the said injury was declared not to have been caused by a fire arm weapon.
Now coming to the question as to whether Section 354-A PPC is attracted in the present case or not, it would be advantageous to reproduce 354-A PPC as under:
"354-A. Assault or use of criminal force to woman and stripping her of her clothes.--Whoever, assaults or uses criminal force to any woman and stripes her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."
The plain reading of above provision of law would reveal that to attract the said penal provisions, two conditions must be fulfilled, firstly, there should be stripping of the clothes and secondly the victim in that condition be exposed to the public view. Both the conditions must co-exist to bring the case within the ambit of Section 354-A PPC, which fact is missing in the instant case, as the occurrence took place in the fields, the clothes of the victim were just torn and not stripped of. Similarly exposure of the victim to the public-at-large is also missing as no one from general public was present at the scene of incident.
"For the reasons to be recorded later, this appeal is partly allowed. The conviction of the appellants, namely, Qadir Shah, Munawar and Rashid is altered from 354-A to 354 PPC and sentenced to two years R.I. each, however, sentence of fine is maintained. They shall be released forthwith, if not required in any other case.".
(R.A.) Appeal allowed.
PLJ 2009 SC 701
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
MUSHTAQ AHMAD KIANI--Petitioner
versus
BILAL UMAIR etc.--Respondents
Civil Petition No. 18 of 2009, decided on 3.2.2009.
(On appeal from judgment of Islamabad High Court, Islamabad dated 6.11.2008 passed in Writ Petition No. 1177/2008).
Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----Ss. 17(8) & (9)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Non-deposit or non-compliance of order of Rent Controller--Ejectment petition--Tenant was directed to deposit the rent or produce receipts of payment of rent--Tenant sought the extension of time for production of receipts for payment of disputed rent--Extension was sought--Appeal was dismissed by Addl. D.J--Validity--Tenant was directed to deposit the rent consequences of non-deposit or non-compliance of the order of Rent Controller are given in S. 17(9) where no discretion is left with Rent Controller except to order the ejectment of tenant without further proceeding--Held: Rent Controller instead of passing an order u/S. 17(9) of Rent Restriction Ordinance, extended the period of deposit--Although extension could not have been granted yet, to the good luck of landlord, the rent could not be deposited--Rent Controller was under obligation to pass the ejectment order of tenant without further proceedings--Order passed u/S. 17(9) of Ordinance was rightly upheld by Appellate Courts exercising constitutional jurisdiction--Leave refused.
[Pp. 702 & 703] A & B
Raja Muhammad Bashir, ASC with Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 3.2.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Mushtaq Ahmad Kiani, seeks leave to appeal from the judgment dated 6.11.2008 of a learned Judge in Chambers of Islamabad High Court, whereby, the petitioner stood ejected from the premises for violating order under Section 17(8) of Islamabad Rent Restriction Ordinance, 2001 passed by the learned Rent Controller.
During ejectment petition filed by Bilal Omair and another, the petitioner filed written reply. As the required relationship was not denied, the Rent Controller, vide order dated 1.11.2007, under Section 17(8) of Islamabad Rent Restriction Ordinance, 2001, directed the tenant either to produce receipts of payment of rent from January, 2006 to October, 2007 or to deposit such arrears of rent at the rate of Rs.28,750/- per month on or before 14.12.2007. Learned counsel for the tenant sought the extension of time for production of receipts for the payment of disputed rent. The learned Rent Controller extended the time to 6.2.2008. On the said date, once again the extension was sought but the Rent Controller directed the straightway ejectment of the tenant under Section 17(9) of the Ordinance. Tenant went in appeal before the learned Additional District Judge Islamabad which was also dismissed on 12.9.2008. This order was further challenged through writ petition which met the same fate and hence this petition.
For facility of reference, sub-sections (8) and (9) of the Islamabad Rent Restriction Ordinance, 2001 are reproduced below:--
"(8). In proceedings under this section on the first date of hearing, or as soon thereafter as may be but before the issues are framed, the Controller shall directed the tenant to deposit in his office before a specified date all the rent due from him and also to deposit regularly till the final decision of the case before the fifteenth day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately.
(9). If the tenant fails to deposit the amount of rent before the specified date or, as the case may be, before the fifteenth day of the month, his application, if he is an applicant shall be dismissed or his defence, if he is a respondents, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings".
In the instant case, the tenant was directed under Section 17 (8) of the Ordinance to deposit the rent on or before 14.12.2007. The consequences of non-deposit or non-compliance of the order of the Rent Controller are given in sub-section (9) where no discretion is left with the Rent Controller except to order the ejectment of the tenant without further proceedings. The language of sub-section (9) makes the order mandatory.
One cannot avoid taking notice of the fact that the learned Rent Controller, instead of passing an order under Section 17(9) of the Ordinance on 14.12.2007, extended the period of deposit to 6.2.2008. Although the extension could not have been granted yet, to the good luck of the landlord, the rent could not be deposited even on 6.2.2008. The Rent Controller was under obligation to pass the ejectment order of tenant without further proceedings. The order so passed under Section 17(9) of the Ordinance was rightly upheld by the learned First Appellate Court as well as by the learned High Court exercising constitutional jurisdiction. The petition being meritless is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 703
[Constitutional Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Mian Shakirullah Jan & Raja Fayyaz Ahmed, JJ.
ENGINEER ZAFAR IQBAL JHAGRA and another--Petitioners
versus
FEDERATION OF PAKISTAN etc.--Respondents
Constitution Petitions No. 33-34 of 2005, decided on 30.3.2009.
Constitution of Pakistan, 1973--
----Art. 184(3)--Original jurisdiction of Supreme Court--Appointment of judicial commission headed by retired judge of Supreme Court who after consulting all stake holders shall submit a comprehensive report qua to Oil and Gas--Question of--Whether procedure adopted by OCAC was transparent to fix the prices of petroleum products, if prices are to be fixed on higher side, the price of oil products in international market, then why consumers were not allowed to enjoy benefits of prices, whether taxes levied by Government whether Government can earn profit from the prices of oil besides receiving taxes and profit should not be passed on to consumers--Whether reduced prices of oil products in international market in Gulf countries, whether increase in price of Kerosene Oil, consumed by those who have no facility of natural gas, whether government is not required to revise the policy of fixing the prices in a transparent manner for purpose of extending benefit, whether benefit was passed on to consumers out of oil gifted by friendly countries and whether recommendations of the commission for fixing prices of oil gas, CNG and LPC in a transparent manner to international market prices of oil--Determination--Held: Federal Government, Ministry of Oil Gas shall make arrangements for boarding and lodging and travelling of commission according to statutes of a judge of Supreme Court in performing of its function--Secretary, Ministry of Petroleum to act as Secretary of Commission for effective discharge of its functions and shall place all relevant documents before the commission for achieving the objects. [Pp. 704, 705 & 706] A & B
Mr. Muhammad Ikram Chaudhry, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioners.
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan, a/w Khan Dil Muhammad Alizai, DAG on Court Notice.
Mr. Khalid Anwar, Sr. ASC for Oil Companies.
Kh. Saeed-ul-Zafar, ASC on behalf of OGRA.
Mr. Ali Sitain Fazli, ASC on behalf of OCAC.
Mr. Abdul Majeeb Pirzada, Sr. ASC and Mr. M.S. Khattak, AOR for PSO.
Mr. Saleem Akhtar, Dy. Director (F&P) for M/o Petroleum.
Date of hearing: 30.3.2009.
Order
We have heard learned counsel for the petitioner in Const. P. No. 33/2005. He has put forward his view points elaborately. After hearing him, we consulted Mr. Khalid Anwar, Sr. ASC and other learned advocates appearing for respective respondents and suggested that in order to resolve the controversy in a befitting manner an exercise has to be undertaken starting from the date when OCAC was authorized to fix prices of oil and gas i.e. from 29th June, 2001 to 1st April, 2006 when its authority was given to OGRA, it would be appropriate to appoint a Judicial Commission headed by a Retired Judge of this Court, who after consulting all stake-holders including the consumers shall submit a comprehensive report in respect of the points referred to it and any other point which comes in its notice. They agreed for the appointment of Commission to do the needful.
(i) Whether procedure adopted by OCAC was transparent to fix the prices of petroleum products for period commencing from 29th June, 2001 to 1st April, 2006 in pursuance of Section 8 of the Petroleum Products (Petroleum Development Levy) Ordinance, 1961 as amended on 29th June, 2001 by Ordinance No. XXVI of 2001, without joining consumers/stake-holders, if so, who had benefitted from it and what is the quantum of money/profit earned by them?
(ii) If the prices are to be fixed on higher side, in view of the price of the oil products in international market, then as to why the consumers were not allowed to enjoy the benefits of prices when it reduced in international market from June, 2001 to onward?
(iii) Whether taxes levied by the Government of Pakistan during the period commencing from 29th June, 2001 to 1st April, 2006 and subsequent thereto, are reasonable?
(iv) Whether Government can earn profit from the prices of oil besides receiving taxes and profit should not be passed on to consumers, who are major stake-holders?
(v) Whether in view of present reduced prices of oil products in the international market particularly in Gulf countries from where Pakistan is purchasing oil, the consumers are not entitled for its benefit?
(vi) Whether the prices of gas products like CNG, LPG being local products have been arbitrarily increased from 29th June, 2001 and uptill now and what is its reason and effect?
(vii) As to why Ministry of Oil & Gas has not corrected error when it announced increase of Rs.9/- per kg gas but it was increased to Rs.13/-?
(viii) Whether increase in prices of Kerosene oil, consumed by those who have no facility of natural gas in the rural areas, has not affected their lives and what means are to be adopted to accommodate them?
(ix) Whether the Government i.e. Ministry of Petroleum and Ministry of Finance are not required to revise the policy of fixing the prices in a transparent manner for purpose of extending benefit to the commoner as prices of oil products have decreased in international market at a considerable rate.
(x) Whether benefit was passed on to the consumers out of oil gifted by friendly countries during the last few years.
(xi) What are the recommendations of the Commission for fixing prices of oil, gas, CNG and LPG in a transparent manner according to international market prices of oil etc., enabling general public/consumers/stake-holders to enjoy maximum benefits out of the same?
Mr. Justice (R) Rana Bhagwandas is appointed as a Commission. The Commission shall be free to have the services of M/s. A.F. Ferguson & Co. Charted Accountants for purpose of accounting etc. Similarly the Commission shall be free to hire services of an expert on the subject in matters relating to oil and gas. Respective parties shall give a panel of experts enabling the Commission to select the expert as fore noted. All the parties, present in the Court, shall attend the proceedings before the Commission and Commission would also invite the consumers and to other stake holders including transporters to appear before it for rendering assistance.
The commission shall give findings on the above referred points, as well as on any other relating matter, if put up before it, within 30 days from the date when the Commission shall start functioning on receipt of this Reference.
Learned counsel for Oil companies, agreed that fee of the Commission be fixed as Rs. ten lacs, which shall be paid by the oil companies/respondents. Mr. Khalid Anwar, Sr. ASC shall make arrangements for making payment to Mr. Justice (R) Rana Bhagwandas, as early as could be possible. So far as the fee of the Chartered Accountants and the Oil Expert is concerned, the Commission shall itself fix the same, which shall also be paid by the oil companies.
The Federal Government, Ministry of Oil and Gas shall make arrangements for boarding & lodging and travelling of the Commission according to the status of a Judge of Supreme Court from Karachi to Islamabad or to any other place in performing of its function. An officer shall also be appointed by it to facilitate the Commission including to provide venue for holding the proceedings of the Commission etc.
The Secretary, Ministry of Petroleum, Government of Pakistan to act as Secretary of the Commission for effective discharge of its functions and shall place all relevant documents before the Commission for achieving the objects. Similarly Ministry of Finance and Chairman FBR shall co-operate with the Commission.
Adjourned to a date in office, to be fixed after receipt of the report from the Commission.
(R.A.) Order accordingly.
PLJ 2009 SC 707
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ULLAH--Petitioner
versus
STATE--Respondent
Crl. Petition No. 352 of 2008, decided on 14.11.2008.
(On appeal from the judgment dated 22.9.2008 of the Peshawar High Court, D.I.Khan Bench passed in Crl. M. No. 119/08).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Constitution of Pakistan, 1973--Art. 185(3)--Bail, grant of--Further inquiry--Leave to appeal--Recovery of nine Kgs opium from beneath bed in driver's cabin--Factual controversy cannot be resolved in bail petition--Held: Contrabands were not recovered directly from the possession of petitioner rather it was recovered from cabin made on the roof--Question whether cabin on the roof of bus was in exclusive use of driver or for passengers cannot be decided here as it is a factual controversy which cannot be resolved in a bail petition--Case of accused is of further inquiry--Petition was allowed.
[P. 708] A
Mian Muhibullah Kakakhel, Sr. ASC and Mrs. Tehmina Muhibullah, ASC for Petitioner.
Ms. Naheeda Mehboob Ellahi, DAG and Sh. Riazul Haque, Prosecutor General, ANF for State.
Date of hearing: 14.11.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition for leave to appeal is filed against judgment dated 22.9.2008 passed by learned Judge in Chambers of Peshawar High Court, Peshawar whereby Crl. Misc. No. 119 of 2008 filed by petitioner was dismissed and he was declined concession of bail.
Briefly stated facts are that on spy information that narcotics is being smuggled in Bus No. DR-9711 from Mardan to Karachi complainant Rahat Ali Shah, SHO Police Station ANF D.I.Khan blocked Dera-Bannu Road near CRBC. When the above mentioned bus reached there it was stopped and from its roof, beneath the bed in the driver's cabin a red coloured plastic bag was recovered in which five plastic envelopes wrapped in yellow colour solution tape containing opium weighing nine kilograms were found. Ten grams from each packet were separated for chemical analysis while the remaining were sealed. On inquiry the driver disclosed his name as Muhammadullah while the person sitting rear him as Ehsanullah and the person sitting on the cleaner's seat as Adnan. After usual investigation all the above named three were arrested and sent up to face trial.
Feeling aggrieved all the accused filed application for bail before learned Peshawar High Court, D.I.Khan Bench which was allowed to the extent of co-accused Adnan and Ihsanullah on the ground of being juvenile whereas application for petitioner was dismissed as stated above.
It is vehemently contended by learned counsel for the petitioner that petitioner was driver of the bus and the contrabands were not recovered directly from his possession rather it was recovered from the cabin made on the roof. According to him, though there were so many passengers in the bus but none was cited as witness. He further contended that bus was coming from Mardan whereas petitioner boarded in it from Nowshera and occupied driving seat and had no knowledge about the contrabands lying in the cabin. He contended that petitioner has been involved in this case only on suspicious and surmises which makes it a case of further inquiry.
On the other hand Sh.Riazul Haq, learned Special Prosecutor ANF supported impugned judgment and contended that the cabin from where the contrabands were recovered was in the exclusive use of petitioner as such it cannot be held that he has no knowledge about it.
We have considered the arguments learned counsel for the parties and have gone through the material produced on record. Admittedly the contrabands were not recovered directly from the possession of the petitioner rather it was recovered from the cabin made on the roof. The question whether the cabin on the roof of the bus was in the exclusive use of driver or for the passengers cannot be decided here as it is a factual controversy which cannot be resolved in a bail petition. Therefore, we are of considered view that case of the petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed.
These are the reasons of our short order of even date.
(R.A.) Appeal allowed.
PLJ 2009 SC 709
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Qaim Jan Khan & Ch. Ejaz Yousaf, JJ.
Syed NAGHMAN HAIDER ZAIDI & another--Appellants
versus
ZAHID MEHMOOD & others--Respondents
Crl. Appeal No. 111 of 2008, decided on 1.9.2008.
(On appeal from the judgment dated 30.1.2008 of the Lahore High Court, Lahore passed in Crl.O.P. No. 76/C/07).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, R. 2(3)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Contempt petition--Not party in transaction--No locus standi--Violation of injunction granted by High Court--Maintainability of--Order was restrained from alienating the suit property in any manner--Status quo order was recalled--Identical contempt petition was also filed against the same parties--Validity--Appellants were not party in transaction as contempt petition could not have been filed against them and High Court has erred in issuing notices to them and lawyers who remained associated with transaction of sale--Held: Respondent has no locus standi to file contempt petition as he has no order in his favor--Under Order 39, Rule 2(3) of CPC, no one can be held guilt of disobedience of an order except the person to whom the order is directed and Court has no jurisdiction to initiate contempt of Court proceeding against whom no order is made--Contempt petition against appellants was not maintainable--Appeal was allowed. [P. 711] A
Raja Muhammad Ibrahim Satti, Sr. ASC and Mr. Arshad Ali Ch., AOR for Appellants.
Respondent No. 1 in person.
Mian Muhammad Hanif, ASC and Mr.G.N. Gohar, AOR for Respondent No. 2.
Mr. M. Siddiq Baloch, DPG Punjab for State.
Date of hearing: 1.9.2008.
Order
Abdul Hameed Dogar, HCJ.--This appeal with leave of this Court is directed against order dated 30.1.2008 passed by learned Division Bench of Lahore High Court, Lahore whereby contempt notices were issued to appellants.
Briefly stated facts are that suit for specific performance titled "Malik Muhammad Zulfiqar vs. Sheikh Muhammad Ayub etc." was dismissed by the learned trial Court vide order dated 15.9.2006 against which RFA No. 583 of 2006 was filed before learned Lahore High Court, Lahore wherein vide order dated 30.11.2006 respondents were restrained from alienating the suit property in any manner whatsoever and transferring the possession through any means. However, the said RFA same was withdrawn on 14.6.2007. Similarly another suit for specific performance titled "Muhammad Riaz etc. vs. Sheikh Muhammad Ayub etc." was filed in which status quo order was passed on 23.11.2006 which order was recalled on 15.12.2006. Subsequently a sale-deed dated 16.12.2006 was executed by Respondents No. 2, 6-14 in favour of Respondent No. 3. Respondent No. 1 Zahid Mahmood who allegedly purchased the property filed Criminal Original No. 76/C of 2007 before learned Lahore High Court, Lahore in which not only the appellants but also the law firm was involved alleging that the same had played active role in the sale of disputed property and execution of sale-deed, in gross violation of the injunction granted by the Hon'ble Court. The contempt petition came up for hearing on 05.12.2007 when notices were issued to petitioners. That an application for dismissal of the criminal original was moved by petitioners wherein notices were issued to the Respondent No. 1. In order to prolong the matter, an almost identical contempt Petitioner No. 2/C of 2008 titled Shaikh Ijaz Ahmad, vs. Mst. Shaheed Khan was also filed against the same parties. The matters came up for hearing on 30.1.2008 when fresh notices were issued to the un-served respondents.
It is contended by learned counsel for the petitioner that suit titled Malik Muhammad Zulfiqar v. Sheikh Muhammad Ayub etc. was dismissed on 15.9.2006 which order was assailed through RFA No. 583 of 2006 before learned Lahore High Court wherein on 30.11.2006 an order was passed whereby respondents were restrained from alienating the property in any manner. It is further contended that the above RFA was withdrawn on 14.6.2007. According to him, Respondent No. 1 filed contempt petition in which Appellant No. 2 Malik Ahmad Qayyum and Justice (R) Malik Muhammad Qayyum were arrayed as respondents alleging that they have violated status quo order dated 30.11.2006. He further contended that they have been maliciously impleaded as respondents with ulterior motive. Learned counsel for the appellants contended that learned High Court was not supposed to issue notice in contempt petition to the appellants. He further contended that Respondent No. 1 namely, Zahid Mahmood was not party in the suit in which status quo order was passed, as such has no locus standi to file contempt petition.
On the other hand learned counsel for Respondent No. 1 controverted above contentions and contended Respondent No. 1 was aggrieved by the alleged sale in violation of the interim injunction granted by learned Lahore High Court as he has interest in the subject property and suffered irreparable loss. He further contended that suit of Respondent No. 1 with regard of same property is pending before learned Civil Court and the appellants had the knowledge about the pendency of the suit, as such the contempt petition was competently filed. He further contended that appellants had filed similar application before learned High Court which is pending adjudication and under such circumstances the matter cannot be agitated before this Court.
We have considered the contentions raised at the bar and have also gone through the material brought on record in minute particulars. Admittedly, the sale-deed was executed on 16.12.2006 in favour of Respondent No. 3 M/s Asian Gas (Pvt.) Ltd. by Respondents No. 2, 6 to 14 when no stay order was in the field. Moreover, appellants were not party in the transaction as such contempt petition could not have been filed against them and learned High Court has erred in issuing notices to them and the lawyers who remained associated with the transaction of sale. Even otherwise Respondent No. 1 has no locus standi to file contempt petition as he has no order in his favour. Under sub rule (3) of Rule 2 of Order XXXIX no one can be held guilty of the disobedience of an order except the person to whom the order is directed and the Court has no jurisdiction to initiate contempt of Court proceedings against whom no order is made. Therefore, we of the view that contempt petition against appellants was not maintainable.
In view of above, the impugned order dated 30.1.2008 passed by learned Lahore High Court in Criminal Original No. 76-C of 2007 is set aside. Accordingly, this appeal is allowed with costs.
(R.A.) Appeal allowed.
PLJ 2009 SC 711
[appellate Jurisdiction]
Present: Muhammad Moosa Khan Leghari, Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
FEDERATION OF PAKISTAN through Secretary Cabinet Division, Islamabad--Petitioner
versus
Mian MUHAMMAD SHAHBAZ SHARIF and others--Respondents
Civil Petition No. 878 of 2008, CMA 95 of 2009, decided on 25.2.2009.
(On appeal from the judgment/order dated 23.6.2008 of the Lahore High Court Lahore, passed in W.P. No. 6470/2008).
Representation of People Act, 1976 (LXXXV of 1976)--
----Ss. 11, 11-A, 12, 14(5), 14(5-A) 15, 99 & 103-AA--Constitution of Pakistan, 1973, Arts. 185, 199, 187, 224, 225, 62 & 63--Appellate jurisdiction of the Supreme Court--Verdict of the election tribunal and order of election commission, challenge to in constitutional jurisdiction--Writ petition was accepted but the matter was kept pending before the Election Tribunal--Remanded order was challenged in Supreme Court--After withdrawal of objections that he propagated and acted in the manner prejudicial to the integrity and independence of judiciary, and that he submitted an incorrect declaration within the terms of Arts. 62 and 63 of the Constitution--Nomination papers of candidate were accepted by the Returning Officer--In capacity of an elector and a citizen of Pakistan submitted an application u/S. 14(5-A) of the Act, thereby bringing to the knowledge of Appellate Tribunal information/material regarding disqualification of candidate, and praying therein to issue show cause as to why his nomination papers might not be rejected--Candidate did not respond to the notices hence was proceeded exparte--Matter was referred to Election Commission--Appeal was not decided by tribunal within the period specified in the election schedule the same stood rejected--Challenged through writ petition--High Court directed to constitute an other bench comprising three judges of HC and respondent was allowed to perform his functions as Chief Minister--Federation as well as Province and Speaker Punjab Assembly filed CPLAs against the judgment of High Court--Distinction between the provisions of Ss. 14(5) & 14 (5-A) of the Act--Held: Distinction had ben provided between sub-sections (5) and (5-A) of S. 14 of the Act--Right of an appeal before the tribunal has been given to a candidate to challenge the rejection of his nomination papers, or to call in-question the acceptance of nomination papers of his rival candidate on the grounds of disqualifications whereas the scope of scrutiny under sub-section (5-A) is wide enough--Tribunal can reject the nomination papers of a candidate on the basis of any "information" received by it or any "material" brought to its knowledge by any source, after forming an opinion regarding his disqualification, and after considering such view point of the candidate--Words "appeal shall be summarily decided within such time as may be notified by commission are consciously missing from S. 14--Time limit specified under sub-section (6) for deciding the appeal, should also be made applicable to sub-section (5-A) was patently misconceived--Intention of the legislature is abundly clear that neither the decision of the tribunal has to be made "summarily" nor it has to be made within time period specified by the Election Commission--The phrase "on its own motion" even authorises and empowers the tribunal to gather the information from electronic or print media, and that the decision of a tribunal could not be made subject to time limit prescribed in the notification issued by the election commission as time limit had been only provided for appeals--Intention of the law-makers is quite clear and there is no ambiguity in the provisions to show that the general public has been given a right to question the qualifications of their representatives in order to ensure the transparency in the election and to prevent the persons otherwise disqualified to reach the law-making bodies--A right given to all the electors of the constituency u/S. 12 of the Act to propose and second the name of a person is not an unfettered right, and can only be exercised by an elector in respect of a duly qualified person--Election tribunal is vested with the powers to call upon a candidate on the basis of any information or material brought to its knowledge by any source viz. a body corporate, juristic or natural person, to show cause as to why his nomination papers may not be rejected on account of disqualifications enumerated in the Act and as contained in the Constitution, and that decision in such matter shall not be governed by sub-section (6) of the Act; but the tribunal shall take effective steps to adjudicate in election dispute in an expeditious manner within a reasonable time--Chief election commissioner erroneously treating the information place before election tribunal--Therefore, deemed to have been rejected, was legally untenable and against the provisions of law; the view taken by High Court in this regard was legally valid and thus unexceptionable.
[Pp. 740, 742, 743 & 744] A, B, F, G, H, I & J
PLD 2007 SC 52; 1994 SCMR 1299; 2004 SCMR 1602; PLD 2005 SC 52; 2006 SCMR 1356; 2006 SCMR 1713; PLD 2008 SC 85; PLD 2008 SC 429; PLD 2008 SC 313; PLD 2008 SC 487; PLD 2008 SC 779; PLD 2008 SC 735; PLD 2008 SC 730.
Representation of People Act, 1976 (LXXXV of 1976)--
----S. 14 (15-A)--Term "source" appearing in Section 14(5-A)--Contention that the term "source" is limited to a body corporate a juristic person and does not include a natural person, was turned down--Held: Argument was manifestly erroneous having no force with reference to different dictionaries, it was concluded that the term "source" had a very wide meaning and it included a person, a book or any other document that could be used to provide information evidence.
[Pp. 740, 741 & 742] C & D
New Webster's Dictionary; Oxford English Dictionary; Words and Phrases by West Publishing Co.; Dictionary/Theasurus; Chambers 21st Century Dictionary & Black Law Dictionary ref.
General Clauses Act, 1897 (X of 1897)--
----S. 3(39)--Pakistan Penal Code, (XLV of 1860), S. 11--Words and phrases--Word `person' with reference to dictionary meaning--an individual human being the living body of a human being--A human being an entity, the living body of a human being--Definition of "person" would include artificial person or legal entity the definition of "person" would include artificial person or legal entity and natural persons viz. human being men or women, hence, the information or material could be brought to the knowledge of the tribunal by any juristic or natural person to question the qualifications of a candidate whose nomination papers had been accepted. [P. 742] E
Press Clippings--
----Press clippings were valid documents and could be taken into consideration--Validity--Press statements were not only considered but also reproduced in the judgments in order to glance over the language and tenor expressed therein--There was no denial on the part of the speaking respondent so far as continuously making outrageous remarks against the judiciary in newspapers were concerned. [P. 756] U
PLD 1976 SC 57; PLD 1993 SC 473 & PLD 1998 SC 388, ref.
Constitution of Pakistan, 1973--
----Arts. 185, 199 & 225--Representation of the People Act, 1976, Ss. 11, 11-A, 12, 14(5) (5-A), 15, 99 & 103-AA--Constitutional jurisdiction--Pre-election disqualification of a candidate--No alternate remedy--Maintainability of writ petition against orders of Returning Officer, election tribunal as well as election commission--Contention that the petitioner was neither a candidate nor a voter of the constituency, and thus being a stranger to the proceedings, was not an aggrieved person within the contemplation of Art. 199 of the Constitution to maintain the writ petition, was repelled--Held: Writ petition challenging the pre-election disqualification of a candidate before the completion of election process was maintainable in law--When the aggrieved person had no alternate remedy and being not a candidate, could not challenge the pre-election disqualification by way of election petition under Art. 225 of the Constitution against a candidate respondent who opted not to appear and defend his case before respondent election tribunal or even before High Court to controvert the averments made in the petition, thereby causing the facts unrebutted and undisputed, High Court certainly would have the jurisdiction to adjudicate the matter in its Constitutional jurisdiction available under Art. 199 of the Constitution.
[Pp. 744 & 746] K, L, M & N
PLD 2008 SC 313 & PLD 2008 SC 735, ref.
Legal Maxim--
----Semper Proesumitur Pronegante--The doctrine "Semper Proesumitur Pronegante" (Presumption is always in favour of one who denies or in favour of the negative) pressed into service by Advocate General would not be attracted in the case for the simple reason that there was no denial, even otherwise the facts were borne out from the record. [P. 746] O
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5-A)--Constitution of Pakistan, 1973, Art. 199 (1)(b)(ii)--Writ of quo warranto, maintainability thereof--Multiplicity of litigation--Contention suggesting the filing of a writ of quo warranto would amount to negate the provisions of S. 14(5-A) of the Act, regarding inherent disqualification of respondent before the election tribunal prior to completion of the election process; the suggestion being unreasonable and contrary to the rule of advancement of cause of justice, if accepted, was bound to encourage multiplicity of litigation which is a way tantamounted to denial of justice. [P. 746] P
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Constitution of Pakistan, 1973, Art. 225--Rejection of nomination papers in general election--Remedy of appeal, not availed of--Principle of acquiescence--Attainment of finality available to the orders of Returning Officer--Respondent submitted an application before election commission thereby raising a grievance that the returning officer rendered a dishonest decision and committed a grave error of law by rejecting his nomination papers, the ECP informed respondent that order of Returning Officer was appealable u/S. 14(5) of the Act, 1976; as such CEC lacked jurisdiction in the matter--Nomination papers of the respondent were rejected in general elections on the grounds:
(i) That he remained fugitive from law.
(ii) That the loans obtained by the candidate and his family members remained unpaid.
(iii) That he deemed and ridiculed the judiciary.
(iv) That respondent could not be considered righteous.
Respondent did not file appeal and obviously acquiesced is, meaning thereby that the order disqualifying the respondent attained finality--No plausible or convincing arguments were advanced to justify the subsequent acceptance of nomination papers of the respondent in the bye-elections while there was a clear cut acquiescence on the part of respondent to his disqualification in the general elections.
[Pp. 748, 750, 752 & 753] Q, R & S
PLD 2000 SC 869; 2000 SCMR 1969 & PLD 2003 646, ref.
Constitution of Pakistan, 1973--
----Art. 63(1)(g)--Representation of the People Act, 1976, Ss. 12, 14, & 99(g)--Humilitation and ridiculing of judiciary--Distinction between fair comments/bona fide criticism and purposeful, outrageously and deliberate defamation/ridiculousness coupled with malicious persecution--Remarks against the judiciary were made in respect of the judiciary and not against the judiciary as a whole, was neither convincing nor legally justified, hence not acceptable--Material reproduced in the shape of press clippings would by itself speak of derogatory and offensive language demonstrating humilitation, persecution and ridicule tainted with malice for the achievement of ulterior purpose--Such wicked and insulting statements in the press were sufficient to bring such mischief within clause (1)(g) of Art. 199 of the Constitution and S. 99(g) Act, 1976 as the respondent not only propagated to bring into ridicule the judiciary in the past but was till then continuing to do so unabatingly--Respondent convicted in contempt of Court case, was undeniably appointed to occupy a responsible judicial/quasi judicial position by respondent--It was observed that the respondent was continuously making well determined and decisively resolute efforts to ridicule, defame, harass, down grade and humiliate the judiciary and the loans obtained by him exceeding the amount of two million rupees had remained unpaid besides a pending case had not been declared in the statement submitted alongwith nomination form; as such, he was disqualified to be elected or chosen as a member provincial assembly.
[Pp. 753, 756, 757, 758] T, V, W, X & Y
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of Pakistan, 1973, Arts. 199 & 185--Representation of the People Act, 1976, S. 14--Locus standi for impleadment in writ petition or to maintain a civil petition in Supreme Court regarding election dispute--Election dispute is purely a matter and private cause between the electors and candidate--Provincial Government functions in continuity and perpetuity, and its functioning cannot hampered on account of functioning cannot be hampered on account of change of personalities, may it be governor chief minister, a provincial minister or a secretary to Govt. in no case perpetuity is disturbed--Chief secretary acted in a overzealous manner, overstepped his authority, and pushed the Province of Punjab to defend the case of the sitting Chief Minister; and there was a plea for initiating contempt proceeding for the presumption that he also shared the views of respondent so far as maligning and humiliating the judiciary was concerned--Contempt proceedings against Chief Secretary were withheld--Act of Chief Secretary, Punjab was apparently subversive of discipline constituting misconduct, but the matter was left open to the competent authority--Held: High Court was absolutely justified in rejecting the application moved under Order I, Rule 10, CPC, similarly the province had no locus standi to invoke the jurisdiction of Supreme Court; therefore, application as well as civil petition being not maintainable, were dismissed. [Pp. 758 & 759] Z & BB
Civil Procedure Code, 1908 (V of 1908)--
----O. I, R. 10--Constitution of Pakistan, 1973, Arts. 199 & 185--Representation of the People Act, 1976--S. 14--Locus standi of the speaker of assembly to be impleaded in writ petition and CPLA filed under Arts. 199 and 185 respectively, and to maintain civil petition--Held: Speaker assembly would not be entitled to espouse the individual cause of a member or leader of the House regarding his personal disqualification to be elected as a member. [P. 759] AA
PLD 1955 Sindh 56; PLD 1955 FC 240; PLD 1969 L 602; 1999 SCMR 2883 & PLD 1988 SC 416, distinguished.
2003 SCMR 181; 2003 SCMR 29; 2003 SCMR 1524; PLD 2002 S.C. 491; PLD 2002 S.C. 1113; 2000 SCMR 440; 2000 SCMR 556; 1999 SCMR 105; PLD 1997 S.C.823; 1994 SCMR 1555; 1991 SCMR 2114;
PLD 1993 S.C. 791.
Constitution of Pakistan, 1973--
----Arts. 185(3) & 199--Leave to appeal against the judgment on behalf of Federation--Maintainability of--Federation was a pro-forma party in writ petition wherein neither any relief was granted against the federation nor any direction was issued to it so as to maintain the instant civil petition--Federation was neither aggrieved party nor had any cause of action to challenge the judgment--Held: Respondent was disqualified to be elected or chosen as member provincial assembly as he had suffered from an inherent disqualification--Order of the Returning Officer was legally unsustainable, therefore, was set aside the judgment of High Court remanding the case to chief election commissioner for constituting a three members tribunal, in the circumstances of the case, was untenable and of no legal effect, as it would serve no purpose except to protect the proceedings, when especially the respondent had taken determinative decision not to appear before any forum--Respondent despite service did not appear before election tribunal and in High Court and he even opted not to appear before the Supreme Court--Notification issued by Election Commission declaring respondent to be returned candidate was also set aside--Leave accepted. [Pp. 759, 760 & 761] CC, DD & EE
PLD 1994 SC 512, ref.
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan on Court call (in CMA 95 of 2009).
Agha Tariq Mahmood, DAG and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMA 95 of 2009).
Nemo for Repsondents No. 1-4 (in CMA 95 of 2009).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC For Respondent No. 5 (in CMA 95 of 2009).
Mr. Shahid Orakzai (In person) for the Applicant (in CMA 95 of 2009).
Khawaja Haris Ahmad, A.G. Punjab for Petitioner (in C.P. No. 657-L/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC Respondent No. 1 (in C.P. No. 657-L/2008).
Nemo for Respondents No. 2-5 (in C.P. No. 657-L/2008).
Agha Tariq Mahmood, DAG Respondent No. 6 (in C.P. No. 657-L/2008).
Mr. Ashtar Ausaf Ali, ASC; Mr. Muhammad Raza Farooq, ASC & Mr. Arshad Ali Chaudhry, AOR for Petitioner (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No. 1 (in C.P. No. 803/2008).
Nemo for Respondents No. 2 to 5 (in C.P. No. 803/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. 803/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Petitioner (in C.P. No. 905 of 2008).
Nemo for Respondents No. 1-4 (in C.P. No. 905 of 2008).
Agha Tariq Mahmood, DAG for Respondent No. 5 (in C.P. No. 905 of 2008).
Khawaja Haris Ahmad, ASC for Petitioner (in C.P. No. Nil/2008).
Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No 1 (in C.P. No. Nil/2008).
Nemo for Respondents 2 to 5 (in C.P. No. Nil/2008).
Agha Tariq Mahmood, DAG for Respondent No. 6 (in C.P. No. Nil/2008).
Dates of hearing: 6.1.2009, 14.1.2009, 15.1.2009, 19.1.2009 to 22.1.2009, 27.1.2009 to 30.1.2009, 2.2.2009 to 4.2.2009, 9.2.2009 to 12.2.2009, 16.2.2009 to 20.2.2009, 23.2.2009 to 25.2.2009.
Judgment
Mohammad Moosa Khan Leghari, J.--The above titled petitions are directed against the judgment dated 23.6.2008 passed by the Lahore High Court, Lahore in Writ Petition No. 6470/2008. By the aforesaid judgment, the verdict of the Election Tribunal dated 31.5.2008 and the order of the Election Commission of Pakistan dated 1.6.2008 were declared to be without lawful authority.
Precisely stated, facts forming background of filing of the petition are that consequent upon notifying the election schedule by Election Commission of Pakistan (Respondent No. 4) for holding the bye-elections of National Assembly and Provincial Assemblies on 26.6.2008, Respondent No. 1, Mian Muhammad Shahbaz Sharif submitted his nomination papers for the seat of PP-48 Bhakkar-II. It appears that one Malik Nazar Abbas, a candidate from the same constituency, filed an objection petition alleging therein that Respondent No. 1 propagated and acted in the manner prejudicial to the integrity and independence of judiciary, he defamed and brought judiciary of Pakistan into the ridicule and that he has submitted an incorrect declaration claiming therein that he fulfills the qualifications laid down in Article 62 of the Constitution of Pakistan and is not subject to any of the disqualifications as specified in Article 63 of the Constitution of the Islamic Republic of Pakistan. The nomination papers of Respondent No. 1 were however, accepted by the Returning Officer of the said constituency (Respondent No. 2) vide his order dated 16.5.2008 on the ground that the objections raised by Malik Nazar Abbas were withdrawn by him through his statement dated 16.05.2008.
Respondent No. 5 Syed Khurram Shah (petitioner in CPLA 905/2005) in capacity of an elector and citizen of Pakistan and claiming to be a firm believer in independence and integrity of the judiciary as well as the armed forces, submitted an application under Section 14(5-A) of the Representation of People Act, 1976, thereby bringing to the knowledge of the Election Appellate Tribunal information/material regarding disqualification of Respondent No. 1 from being elected as a Member, praying therein to call upon Respondent No. 1 to show cause as to why his nomination papers may not be rejected and consequently for rejection of his nomination papers. It seems that the notices of the Tribunal, issued against Respondent No. 1 were not responded to, hence Respondent No. 1 was proceeded ex-parte.
Learned Election Appellate Tribunal comprising of two learned Judges of the Lahore High Court, Lahore delivered a divergent decision. One of the Members of the Tribunal Muhammad Akram Qureshi J. declared the respondent to be disqualified while the other Member of the Tribunal Hafiz Tariq Naseem J. upheld the order passed by the Returning Officer, whereby Respondent No. 1 was declared qualified. The matter was then referred to Election Commission of Pakistan, Respondent No. 4. The Election Commission of Pakistan vide Memo dated 1st June, 2008 communicated the observations of the Chief Election Commissioner revealing therein that in view of the mandatory provisions of Section 14(6) of the Representation of People Act, 1976, an appeal not disposed of within the period specified in the election schedule, shall be deemed to have been rejected. It was stated that since according to the schedule notified on 7th May, 2008, the last date for deciding the appeals against the acceptance or rejection of nomination papers by the Appellate Tribunal in the instant case was 31st May, 2008, which date having already expired, the appeal stood rejected.
The orders of Respondents No. 2,3 and the Notification dated 03.06.2008 issued by Respondent No. 4 were challenged before the Lahore High Court, Lahore through Writ Petition No. 6470/2008 by Respondent No. 5, Syed Khurram Shah (the petitioner in CPLA 905/2008).
During the pendency of the petition, C.M. No. 1260/2008 was moved on behalf of the Province of Punjab under Order 1 Rule 10 CPC for impleadment as a respondent party, while C.M. No. 1276/2008 was moved on behalf of the Speaker Punjab Assembly for the same purpose. It was pleaded in the said applications that the petitioner was neither a candidate nor a voter of the constituency, and as a stranger was not entitled to maintain the petition. That Respondent No. 1 after having been elected as Member was elected as Chief Minister of the Province, as such the governance and functioning of the Province and House was likely to be affected by any order passed in the said Petition.
However, after hearing the parties a full Bench of Lahore High Court, Lahore vide order dated18.06.2008, announced on 20.06.2008 dismissed the applications moved under Order 1 Rule 10 CPC, holding that the applicants were neither necessary nor proper parties.
As far as the main petition is concerned, the Respondent No. 1 despite service opted not to appear/be represented and remained ex-parte. A full Bench of the Lahore High Court, Lahore, which was seized of the matter, after hearing the learned counsel for the petitioner (Respondent No. 5) and Deputy Attorney General, came to the conclusion that the learned Election Appellate Tribunal and the Chief Election Commissioner/Election Commission of Pakistan fell into error by treating the application of the petitioner viz. Syed Khurram Shah as an appeal and tagged the same with an other appeal, subject matter of the impugned order. Consequently learned Full Bench of the High Court vide judgment dated 23.06.2008 set aside the orders of the Chief Election Commissioner/Election Commission of Pakistan dated 1.6.2008 and that of the Election Appellate Tribunal dated 31.5.2008 by declaring the same to be unlawful. Accordingly the learned Chief Election Commissioner was required to constitute another Bench comprising three Judges of the High Court to decide the application of the petitioner viz. Syed Khurram Shah (Respondent No. 5). Respondent No. 1 was, however, allowed to continue performing his function as a Chief Minister and Member Provincial Assembly of Punjab.
The above judgment of the Full Bench of Lahore High Court is the subject matter of the instant petitions. The Federation has prayed for grant of leave and setting aside the judgment.
Besides that, leave to appeal has been sought by Speaker Provincial Assembly, Province of Punjab vide CPSLA No. 803 of 2008 to impugn the said judgment. Similar prayers have been made by the Province of Punjab through CMAs for the purpose of setting aside the order dated 18.06.2008 passed in C.M.A. No. 1260 of 2008 and the judgment dated 23.06.2008 passed in Writ Petition No. 6470 of 2008. Respondent No. 5, however, through a separate petition has prayed for declaring the notification dated 3.6.2008 of the Election Commission of Pakistan to be illegal and without lawful authority, whereby Respondent No. 1 was declared as a returned candidate from PP-48 Bhakkar-II.
We have heard Agha Tariq Mehmood, learned DAG appearing for the Federation, Khawaja Haris Ahmad, learned Advocate General, for Province of Punjab, Mr. Muhammad Raza Farooq, ASC appearing for Speaker Provincial Assembly, Punjab and Sahibzada Ahmad Raza Khan Qasoori, Sr. ASC who represented Respondent No. 5, Syed Khurram Shah. Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan was called upon to address the Court and to assist on the points of law involved in the controversy.
Learned Deputy Attorney General contended that as per mandatory provisions contained in sub-section (6) of Section 14 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) after expiry of the period stipulated for deciding the appeals under Section 14(5) of the Representation of People Act, 1976, the application filed by Respondent No. 5 before the Election Appellate Tribunal stood rejected. In the circumstances, he argued that the observation given by the learned Chief Election Commissioner was proper and the direction of the High Court for re-constitution of the Election Appellate Tribunal, after the changed situation was beyond jurisdiction, as such was unsustainable. With regard to locus-standi of the Federation to maintain the instant petition learned DAG argued that Respondent No. 5 himself impleaded the Federation in his writ petition before the High Court, as such the present petition by the Federation was legally competent.
Khawaja Haris Ahmad, learned Advocate General, Punjab contended that the judgment of the full Bench was biased due to inclusion of one of the learned Judges on the Bench, the same was non-speaking judgment and was delivered without hearing and considering the view point of Respondent No.
In any case he argued that the Tribunal, upon receipt of the information in the nature as enumerated in the above sub-section, was under the obligation to issue show-cause notice to the candidate concerned, containing explicit allegations, which course was missing in the present case. He argued that writ petition was filed by Respondent No. 5 in the High Court on 4.6.2008, while the notification declaring Respondent No. 1 as a returned candidate, was already issued by the Election Commission of Pakistan on 3.6.2008 who was subsequently sworn in as a Chief Minister of the Province of Punjab.
Learned Advocate General pressing into service the rule of Ejusdem Generis and referring to certain paragraphs from the book "Understanding Statute" authored by Mr. S.M. Zafar, "Principle of Statutory Interpretation" by Guru Prasanna Singh (Pages 280-281), a passage from "Interpretation of Statutes" by N.S. Bindra's book, strenuously argued that the rule of Ejusdem Generis was attracted to the provisions of sub-section (5-A) of Section 14 of the Act, and by extending harmonious construction, the time limit prescribed for deciding the appeals under sub-section (5) of the Act will be fully applicable to the applications filed under sub-section (5-A) of Section 14, as any interpretation to the contrary was bound to negate the provisions of the Statute and would lead to the absurdities, which had to be avoided. The cases titled: (i) Ameer Khatoon Vs. Faiz Ahmad and others (PLD 1991 SC 787) (ii) Abdul Qayyum and another Vs. Niaz Muhammad and another (1992 SCMR 613) (iii) Khalid Qureshi and 5 others Vs. United Bank Ltd. (2001 SCMR 103) were referred to advance the above arguments.
Relying upon the legal maxim "Semper Proesumitur Pronegante" (Presumption is always in the favour of the one denying or in favour of the negative), learned Advocate General, Punjab added that the judgment of the High Court was against the intention of law-makers as the process of the election has already been completed, as such there was no legal justification for constituting a three Members' Tribunal to hear the appeal. He submitted that though the Chief Election Commissioner was vested with the powers to extend the schedule of election as provided under Section 11-A of the Act, yet such power had to be exercised in exceptionally rare circumstances, which was manifestly lacking in the present case. Learned Advocate General strenuously emphasized that the intention of the law-makers was to complete the election process in most expeditious manner, for which time limit for every major step was stipulated in the Statute itself. To supplement the above arguments beside referring to the election schedule notified by the Election Commission, he also referred to Article 224 of the Constitution and the provisions of Section 103-AA of the Act to stress that a period of 60 days has specifically been provided in sub-section (2) of the said section to the Election Commission for declaring a poll void by reasons of grave illegalities or violation of the provisions of law, on being satisfied after a summary inquiry as deemed necessary. Learned Advocate General argued that there was no intention on the part of the law-makers to provide unfettered right to the general public to challenge the candidature of a person and, that it could not be assumed that there would be no time limit to decide such kind of applications. If it is so considered, it would otherwise be unreasonable and illogical besides adding and advancing absurdities and anomalies to the statutory provisions. It was contended that there being no provision in the Representation of People Act for constituting a fresh Election Tribunal, at the most what the Lahore High Court could have done, was to have referred the matter to the Election Commission for further action by treating the application of Respondent No. 5 as an application under sub-section (5-A) and not an appeal under Section (5) of Section 14 of the Act. He further submitted that after the election process having been completed and Respondent No. 1 having been elected as a Chief Minister, remedy of Respondent No. 5 was to file a writ of quo-warranto but in any case could not maintain the present proceedings. In support of the above contentions and to arrive at correct conclusion learned Advocate General referred the following case laws:-
i) Hafiz Hamdullah Vs. Saifullah Khan and others (PLD 2007 SC 52)
ii) Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer, NA 158, Naushero Feroze and others (1994 SCMR 1299)
iii) Muhammad Safdar Abbasi Vs. Aamir Yar Malik and 3 other (2004 SCMR 1602)
iv) Ayatullah Dr. Imran Liaqat Hussain Vs. Election Commission of Pakistan and others (PLD 2005 SC 52)
v) Ahad Sharif @ Muhammad Ahad and another Vs. Javed Tariq and others, (2006 SCMR 1356)
vi) Faqir Abdul Majeed Khan Vs. District Returning Officer and others (2006 SCMR 1713)
vii) Rana Muhammad Hayat Khan Vs. Rana Imtiaz Ahmad Khan (PLD 2008 SC 85)
viii) Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429)
ix) Intesar Hussain Bhatti Vs. Vice Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 313)
x) Syed Nayyar Hussain Bukhari Vs. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487)
xi) Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 SC 779)
xii) Let. Gen. (R) Salahuddin Tirmizi Vs. Election Commission of Pakistan (PLD 2008 SC 735)
xiii) Syed Fakhar Imam Vs. Chief Election Commission of Pakistan and others (PLD 2008 SC 730)
To explain the factum of the rejection of nomination forms of Respondent No. 1 in the general election learned Advocate General submitted that rejection of nomination papers of Respondent No. 1 in the general election would create no bar or estoppel so far as the acceptance of nomination papers in the bye election is concerned. He explained that allegations with regard to criticizing the judiciary were against the person of a specific judge and not against the judiciary as mentioned in the order of rejection dated 01.12.2007 passed by the Returning Officer in the general elections. He further submitted that the criminal case referred to in the rejection order stood decided wherein Respondent No. 1 was acquitted. He argued that the perusal of Lahore High Court’s judgment PLD 2003 Lahore, 646 did not disclose that Respondent No. 1 was a defaulter of loans. Referring to the judgment reported in PLD 2000 Supreme Court 869, he submitted that there was no verdict of guilt of corruption against Respondent No. 1 in the said judgment. On querry of the Court, learned Advocate General, Punjab did not deny the appointment of one Khalid Mehmood who was convicted for contempt of this Court as reported in 2000 SCMR 1969 on the post of judicial/quasi-judicial nature by the Provincial Government headed by Respondent No. 1 but stated that the incumbent was being removed from such official position. So far as the question of un-paid loans on the part of Respondent No. 1 was concerned learned Advocate General submitted that there had been mutual settlement/compromise between the respondent's project i.e. the debtors, and the creditor Banks, yet he candidly conceded that he was not in a position to take conclusive stand with regard to fulfillment of the obligations or the repayments of loans by Respondent No. 1.
As regards to the locus-standi of the Province of Punjab to become a party or to maintain a petition learned Advocate General, Punjab argued that after being declared as a returned candidate by Election Commission of Pakistan vide notification dated 03.06.2008, Respondent No. 1 was elected as Chief Minister of Punjab and was functioning as such. He submitted that the governance and functioning of Government of Punjab was likely to be affected by any adverse decision of the High Court, therefore Province of Punjab was a necessary party, which conferred a right upon the government and prompted the Province of Punjab to move an application under Order 1 Rule 10 CPC before the Lahore High Court seeking impleadment as a respondent party. Learned Advocate General, Punjab submitted that a distinction has to be drawn with regard to the election dispute arising during the election process and the post-election process whereby the election is held and notification of a validly elected person is published in the gazette by the Election Commission of Pakistan. Learned Advocate General, Punjab during the arguments candidly conceded that the election dispute with regard to qualification or otherwise concerning a candidate was a personal dispute yet he argued that after having been validly elected, such elected person can be defended by any one, even by any Member of public as it would turn into a public interest litigation. He argued that the Chief Secretary being the official head of Secretariat of the Government of Punjab, and according to the Rules of Business of the Government of Punjab being a coordinator of all the Government Departments and at the helm of affairs was quite competent to file the application for impleadment and also to maintain the Civil Petition before this Court. Learned Advocate General in support of his above contentions has referred to various Rules of Business of the Government of Punjab. However, at the end of his argument was at pains to satisfactorily reply as to how the Province of Punjab was going to be adversely affected by the judgment of the Lahore High Court and/or the dispute relating to qualification and disqualification of Respondent No. 1 Mian Muhammad Shahbaz Sharif was likely to hamper and/or disrupt the functioning of governance of the Province.
Arguing the point of locus-standi he contended that it was responsibility of the Speaker to protect and preserve the rights of a Member as he is the custodian/guardian of the entire house. Enumerating the duties of the Speaker learned counsel submitted that the Speaker maintains the order and decorum of the house as per Rule 14 of the Rules of Business of the Provincial Assembly, Punjab. He being representative of the rights of the Members, has to safeguard their interest and has duty and powers to conduct the proceedings of the house. The Speaker is the spokesman of the house in relation to the Crown, the House of the Lords and other authorities and persons out side the Parliament. Relying upon Eskine May's Treatise on the law, privileges, proceedings and usages of Parliament (22nd Edition page 188) states that the Speaker holds and enjoys place and status of prominence. He has also referred to the duties of the Speaker from Mr. A.K. Brohi's book "Fundamental Rights of Pakistan". Referring to Rule 90 of the Rules of Procedure and Conduct of business in the National Assembly 1992 learned counsel submited that the Speaker has got power to summon a Member in custody arrested on the charge of non-bail able offence to attend a sitting or sittings of Assembly or meeting if he considers his presence necessary. In view of the above, learned counsel states that same powers shall be deemed to have been conferred upon Speaker of Provincial Assembly. He submits that for this reason Speaker has right to challenge the act of dissolution of Assembly. For the said purpose he relied upon Moulvi Tamizuddin Khan Vs. Federation of Pakistan (PLD 1955 Sindh 56), Federation of Pakistan and others. Vs. Moulvi Tamizuddin (PLD 1955 F.C 240). Learned ASC argued that the Speaker in the instant case is acting as a shield to protect the rights of a Member as he has the obligations to exercise parental jurisdiction for his Members even outside the House. Referring to Article 63(2) of the Constitution, learned ASC contended that Speaker has got the power to take a decision as to whether a Member has been rendered disqualified. Reference is made to Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan and others (PLD 1969 Lahore 602). It is contended that the Speaker had "sufficient interest" in the matter to become a necessary party. In order to determine the sufficient interest learned counsel submits that even a civic or community environmental and cultural interest has been held to be "sufficient interest" as laid down by this Court in Ardeshir Cowasjee’s case reported in 1999 SCMR 2883. The same principle can be deduced from Ms. Benazir Bhutto's case reported in PLD 1988 SC. 416. Learned counsel vehemently argued that in the given circumstances Speaker was a necessary party, however, in any event the Speaker could be deemed to be a proper party, thus had a right to be impleaded as such, as it was necessary for just decision of the case. Besides others, the learned ASC has referred to the following judgments of this Court, which in his view would strengthen the case of his party and could help arriving at a just decision.
Riaz Hussan and others vs. Muhammad Akbar and others 2003 SCMR 181, Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29, Jamila Pir Buksh and others v. Appellate Authority and others 2003 SCMR 1524, Muhammad Anwar Khan and five others v. Chaudhry Riaz Ahmed and five others PLD 2002 S.C. 491, Rauf Qadri v. State Bank of Pakistan, PLD 2002 S.C. 1113, Nazir Ahmed and another v. Mohammad Din and another 2000 SCMR 440, Barkat Ali v. Mohammad Ihsan Irshad 2000 SCMR 556, Zahoor Ahmed vs. Mehra through legal heirs and others 1999 SCMR 105, Mahmood Ali Butt v. Inspector General of Police Punjab and 10 others PLD 1997 S.C.823, Jane Margaret William vs. Abdul Hamid Mian 1994 SCMR 1555, Chaudhry Akbar Ali vs. Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2114, Asla vs. Abdur Rehman, 1994 CLC 1388, Sh. Rashid Ahmed vs. The Election Tribunal, Lahore High Court and another, PLD 1993 S.C. 791.
Mr.Shahid Orakzai after advancing his arguments on the subject of recusal at length has referred to the judgment reported in Shahid Orakzai Vs. Pakistan Muslim League (Nawaz) (2000 SCMR 1969) and submitted that the respondent and his party was found to be involved in the acts of vandalism and hooliganism having been committed in and around the premises of the Supreme Court of Pakistan on 28.11.1997. Referring to sub-para 17 of the aforementioned judgment appearing at page 1988 the applicant argued that though certain persons belonging to the said party were convicted for contempt of this Court yet the case was still pending, and the proceedings against the remaining respondents were deferred till the thorough investigation is made as to the culpability of any person found so involved. Inspector General of Police, Islamabad was accordingly directed to get the investigation completed within a period of 4 months so as to identify the miscreants involved in the incident and thereafter proceed in accordance with law. Mr.Shahid Orakzai submitted that in compliance of the said inve stigation report dated 23.2.2001 was prepared by Tamoor Ali Khan, PSP Commandant Islamabad Reserve Police and was submitted in this Court as far back in the year, 2001, but that inquiry report revealing the respondent’s culpability in the offence was suppressed by way of maneuvering. He submitted that despite best efforts he could not get a certified true copy of report. In any event, Mr.Shahid Orakzai submitted that though the above case was pending yet it did not find mention in the statement/declaration sworn by Respondent No. 1 which tantamount to filing a false declaration rendering the Respondent No. 1 disqualified to contest the election. He accordingly submits that such inherent disqualification was incurable.
Mr. Ahmed Raza Khan Qasuri, learned Sr.ASC addressed his argument in reply to the arguments rendered on behalf of the petitioner Federation; the Province of Punjab and Speaker Provincial Assembly and so also in support of the CPLA.No. 905 of 2008 filed by Respondent No. 5 Syed Khurram Shah. Besides dilating upon the constitutional history of Pakistan by making references from different Articles contained in the Government of India Act, 1935, Constitution of Pakistan 1956, Constitution of Pakistan 1962, the interim Constitution 1972 and present Constitution of Pakistan 1973. The learned ASC submitted that nomination papers of Mian Muhammad Shahbaz Sharif in the general election of 2002 from the constituency NA-119, PPP-148 and 142 were accepted on 27.7.2002, 28.7.2002 and 31.8.2002 respectively, against which Election Appeals No. 171-A, 173-A and 174-A of 2002 were filed before the Election Appellate Tribunal. The said appeals were accepted on 12.9.2002 and nomination papers of Respondent No. 1 Mian Muhammad Shahbaz Sharif were rejected. The writ petition Nos. 17268 to 17273 of 2002 filed by Respondent No. 1 Mian Muhammad Shahbaz Sharif against the orders of the Election Appellate Tribunal were also rejected on 27.9.2003, thus confirming rejection of nomination papers of Mian Muhammad Shahbaz Sharif. He has referred to the case of Mian Muhammad Shahbaz Sharif. Vs. Election Commission of Pakistan and 15 others (PLD 2003 Lahore 646) to support his viewpoint. Learned counsel submitted that nomination papers of Mian Muhammad Shahbaz Sharif Respondent No. 1 filed for PP-141, 142 and NA-119 Lahore XI in the general election, held on 18.2.2008, were rejected by the Returning Officer vide order dated 1.12.2007. Learned ASC submitted that instead of filing appeal before the Election Appellate Tribunal Respondent No. 1 Mian Muhammad Shahbaz Sharif submitted three applications to the Election Commission of Pakistan on 7.12.2007 whereupon Respondent No. 1 was replied that the order of the Returning Officer was appealable under Section 14 (5) of the Representation of People Act, 1976 before the Election Appellate Tribunal constituted for that purpose. Respondent No. 1 was therefore, informed to approach appropriate forum provided under the law, if so advised, as the Chief Election Commissioner lacks jurisdiction in the matter. Learned ASC submitted that bye election was continuity of the process of general elections and the acceptance of the nomination papers of Respondent No. 1 in the bye-elections, after the rejection of his nomination papers in the general elections, which act attained finality, was without lawful authority. He strenuously argued that order of the Returning officer accepting the forms of the Respondent No. 1 in the bye election was violative of law as the disqualification was still existing. He further argued that even after withdrawal of the objections by the rival candidate Malik Nazar Abbas the Returning officer was under legal obligation to conduct a summary inquiry to satisfy himself that the candidate did not suffer from inherent disqualification. Learned counsel submitted that sub-section (5-A) was inserted vide Ordinance dated 31.7.2002 with the purpose of blocking the way of such candidates who were defaulter of loans, taxes, government dues or utility charges or those who have had, any loan written off or otherwise suffer from any other disqualification from being elected as a Member of Assembly. He argued that insertion of words "suffer from any other disqualification" had a purpose and that such term has a very wide scope. He argued that the Tribunal was, therefore, given very wide powers so that it can call upon such candidate on the basis of any information or material brought to its knowledge by any source or even on its own motion, to show cause as to why his nomination papers be not rejected. Learned counsel contended that the term "source" as contained in sub-section (5-A) would not be limited to a body corporate or a juristic or artificial entity but it would include natural person also. He argued that if the intention of law makers was to prohibit a person having unclean or dubious character from being elected as a Member, then limiting the scope of term "person" would be contrary to the intent of law makers and thus tantamounts to defeating the very purpose of enactment. He further submitted that sub-section (6) of Section 14 of the Act provides for a limitation for the disposal of appeals and such stipulation could not be extended to the information received by the Tribunal from any source or even gathered from its own motion. On the above premises learned ASC contended that the order of the Election Commission treating the proceedings, to be an appeal and deeming the same to have been rejected, was patently illegal.
Learned ASC argued that Respondent No. 1 knowingly did not challenge the order of Returning Officer dated 1.12.2007 with the result that it attained finality and as a result thereof the disqualification of Respondent No. 1 became final and conclusive. He argued that subsequent acceptance of the nomination papers by Returning Officer was absolutely illegal. Learned ASC contended that respondent No. 1, despite service of notices, opted not to appear before the Election Appellate Tribunal as well as the High Court. The allegations against the respondent as contained in the appeal and the petition were with regard to his involvement in corruption, default, concealment of facts and ridiculing the judiciary. Learned counsel submitted that on 14.4.2008 Respondent No. 1 in a press conference addressed at Sharif Medical Complex defamed and brought into ridicule the judiciary after rejection of his nomination forms. He submitted that observations of this Court in Zafar Ali Shah’s case reported as PLD 2000 SC 869 were adequate enough to demonstrate the financial follies committed by Respondent No. 1 and the companies mainly owned by the family. Learned counsel submitted that factum regarding non-payment of loan by Respondent No. 1 is abundantly evident from the judgment of the Lahore High Court reported in Mian Muhammad Shahbaz Sharif through Attorney Vs. Election Commission of Pakistan, Islamabad and others (PLD 2003 Lahore 646). Learned counsel submitted that Respondent No. 1 is a defaulter of consortium of banks lead by National Bank of Pakistan and the Civil Original bearing Nos. 63, 64 and 65of 1998 are still pending before the High Court. The properties and assets handed over by the petitioner and other stakeholders in consequence of settlement are still with them having not been disposed of on account of collusive litigation, initiated by their Directors at the behest of the respondent. For the said purpose learned counsel has referred to Project Brief dated 22.5.2008 containing the details duly authenticated by the Representative of National Bank of Pakistan who happens to be one of the members of the Committee constituted by the Lahore High Court Lahore, which is available at page 106 of the paper book in CP. No. 905 of 2008. Learned counsel has placed on record photostat copies of press clippings to show that Respondent No. 1 is still propagating and acting in a manner inter-alia prejudicial to independence of judiciary of Pakistan and is defaming and bringing into ridcule the judiciary. Learned counsel submits that press clippings were valid documents and could be taken into consideration. In this regard learned counsel placed reliance upon Islamic Republic of Pakistan. Vs. Abdul Wali Khan (PLD 1976 SC 57), Mian Muhammad Nawaz Sharif. Vs. President of Pakistan (PLD 1993 SC 743), Mohtarama Benazir Bhutto. Vs. President of Pakistan (PLD 1998 SC 388). Learned counsel contended that since the very act of acceptance of nomination papers of respondent was patently illegal, all the subsequent acts and notification therefore will be rendered invalid and of no legal effect. To substantiate the above plea learned ASC has placed reliance on Yousaf Ali Vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) and Abdul Razak Vs. Karachi Building Control Authority and other (PLD 1994 SC 512). Learned ASC submitted that it is by now well settled that question of inherent and pre-election disqualification could be questioned by way of a petition before the High Court.
Referring to the powers of this Court under Article 187 of the Constitution of Islamic Republic of Pakistan learned counsel submitted that this Court was vested with inherent powers to do complete justice under the Constitution and the law.
Learned counsel strenuously argued that the Federation has unnecessarily filed the present petition. Admittedly the controversy involves the election dispute questioning the qualification of an individual viz. Respondent No. 1 which has no concern with the Federation. Even no directions of any kind have been passed against the Federation, hence it has no locus-standi to maintain the petition. Learned Sr. ASC accordingly prayed for summary dismissal of the petition filed by the Federation of Pakistan.
Dilating upon the role of Speaker and Province of Punjab in the proceedings learned counsel submited that both of them have no locus-standi, contending that election dispute is essentially and purely a dispute between the parties concerned. He vehemently contended that the Speaker Provincial Assembly has exceeded his authority to defend Respondent No. 1 who is the leader of his party, for which the Speaker neither took the matter to the Finance Committee of the House or for that matter to any other Committee nor even in the House. He argued that the Speaker demonstrated a partisan role, resultantly a big question mark has appeared on his conduct. He contended that there could be no precedent in the Parliamentary history, whereby a Member who continuously ridiculed the Judiciary and knowingly and purposely refused to defend his case, would have been defended by the Speaker by spending huge sum of money from State exchequer without approval of the House.
Regarding the role of the Province of Punjab, learned ASC argued that the Chief Secretary Punjab blatantly acted against the rules of Business, he flouted the service discipline and committed the acts of gross misconduct. Learned counsel argued that by violating the verdict of this Court whereby the parameters were set for bureaucrats, the Chief Secretary committed contempt of Court by unnecessarily jumping into the election dispute of Respondent No. 1 as a Chief Minster, who refused to appear before the Courts and openly defamed and ridiculed the Superior Judiciary. Learned counsel emphasized that a candidate who seeks his election must have guts and courage to defend his position himself. Even otherwise the allegations of ridiculing the judiciary and loan default could not be satisfactorily refuted by anyone else except the respondent candidate himself. Neither the Province of Punjab nor the Speaker of the Provincial Assembly could be in a position to make any statement on behalf of Respondent No. 1, more particularly when he was available and not prevented by law to appear and approach the Court. Learned counsel vehemently submitted that the election dispute, which required to be decided summarily, has been lingering on since June, 2008 and no useful purpose will be served even if the case is heard by the Tribunal except that the proceeding will be protracted in view of the fact Respondent No. 1, whose election is in dispute has stated in categorical term that he has no intention to defend himself, as obvious from the press statement attributed to Respondent No. 1. He therefore, prayed for setting aside the orders of the Returning Officer and the Lahore High Court and nullifying the notification of Election Commission of Pakistan notifying the respondent to be a Member of Provincial Assembly.
Learned Attorney General for Pakistan who was called upon to assist this Court on the points of law, submitted that no “sufficient interest” of either the Province of Punjab or Speaker Provincial Assembly was involved to grant them a right of locus-standi as the matter involved the personal rights of the parties. He submitted that Province of Punjab could agitate interest of the Province and that Speaker of Provincial Assembl y can agitate for the collective cause of the House and not to defend the individual act of a Member. So far as the jurisdiction of Election Appellate Tribunal under sub-section (5-A) of Section 14 is concerned, it was submitted by learned Attorney General that words "may on its own motion" give the Tribunal ample powers so that it can take notice even if a matter comes to his knowledge through newspapers or media reports or by any person, company, bank, department etc. He clarified that the term “any source” has been used to include all sources i.e. even other electors and candidates also e.g. any person juristic/artificial or natural. He stated that the Tribunal can even take cognizance on anonymous application if for any reasons, someone is not in a position to come forward to raise objection against a candidate. Learned Attorney General went on to argue that sub-section (5-A) of Section 14 of Representation of People Act has been inserted to prevent a candidate from entering into the arena of election who survives the scrutiny before the Returning Officer due to malafide connivance of the candidates or electors or due to any threat, fear or favour to the electors. Learned Attorney General submitted that had there been any intention to restrict the term "source' to institutionalized category i.e. bank, department etc. only then there was no need of mentioning "any other disqualification" because of institutions, specific categories have already been mentioned whereas other categories of disqualifications provided under article 62, 63 of the Constitution and Section 99 of the Representation of People Act are not mentioned.
Learned Attorney General argued that the words "any other disqualification" have been used to extend the Suo Motu powers of the Election Tribunal to examine the disqualification defined under article 62, 63 of the Constitution and Section 99 of the Representation of the People Act. He argued that after forming the opinion "on its own motion" the Tribunal is duty bound to proceed whereas the act Suo Motu binds the Tribunal to decide and follow the matter to ensure that disqualified candidates should be kept outside the contest. He submitted that time limit for decision of application under Section 14 (5-A) of the Act would be deemed to remain intact till the decision, as is adequately evident from the provision itself. He further argued that if the statute has given a right to a person to place any material or move an application as a source then that person has inherent right under the principle of natural justice to have a decision on it as well, as evidently in the instant case no final decision was given by the Tribunal.
"11. Notification for election.--(1) As soon as (may be necessary and practicable) the President makes an announcement of the date or dates on which the polls shall be taken, the Election Commission (not later than thirty days of such announcement) shall, by notification in the official Gazette, call upon a constituency to elect a representative or representatives and appoint------
a) the last date for making nominations, which shall be the sixth day after the date of publication of the notification or, if that day is a public holiday, the next succeeding day which is not public holiday.
b) (The dates for the scrutiny of nominations, which shall be the (seven) days immediately following the last date of making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday).
c)
d) the last date for filing of appeals against acceptance or rejection of nominations, which shall be the (fourth) day following the (last) date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
e) the last date for decision of appeals, which shall be the (seventh) day following the last date for filing of appeals or, if that day is a public holiday, the next succeeding day which is not a public holiday;
ee) the last date for the withdrawal of candidature, which shall be the day following the last date for decision of appeals or, if that day is a public holiday, the next succeeding day which is not a public holiday;
f) the last date for publication of the revised list of candidates, which shall be the second day following the last date for decision of appeals, and
g) the date or dates on which a poll shall, if necessary be taken, which or the first of which shall be a date not earlier than the twenty second day after the publication of the revised list of candidates.
3) A returning Officer shall, as soon as may be after the publication of a notification under sub-section (1), give public notice of the dates specified by the Commission in respect of the constituency or constituencies of which he is the Returning Officer; and the public notice shall be published at some prominent place or places within the constituency to which it relates.
4) A Returning Officer shall, by the public notice given under sub-section (3) invite nominations specifying the time by which and the place which nomination papers shall be received by him.
11-A. Alteration in election programme.--Notwithstanding anything contained in Section 11, the Commission may at any time after the issue of a notification under sub-section (1) of that Section, make such alterations in the programme announced in that notification for the different stages of the election as may, in its opinion, be necessary).
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany,--
a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member.
b) Omitted.
c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his departments, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;
e)
f)
(3)
4)
5) (Omitted)
6)
7) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidates as shown in the nomination paper.
8) The nomination form and accompanying declarations and statements shall be open to inspection by the public, and copies thereof may be made available by the Commission in such manner and on payment of such fee as may be prescribed).
a) a sum of rupees--
i) (four thousand) for election to a seat in the National Assembly; and
ii) (two thousand) for election to a seat in the Provincial Assembly, is deposited in cash by the candidate or by any person on his behalf at the time of its delivery; or
b) it is accompanied by a bank draft for a sum as aforesaid drawn in favour of the Returning Officer or a receipt showing that s sum as aforesaid has been deposited by the candidate or by any person on his behalf at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury.
2) Not more than one deposit under sub-section (1) shall be required in the case of a person who has been nominated as a candidate for the same seat by more than one nomination paper.
2) ……..
3) The Returning Officer may, either of his own motion or upon any objection, (either by an elector or) (by any person referred to in sub section (1),) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that,--
a) the candidate is not qualified to be elected as a member;
b) (the proposer or the seconder is not qualified to subscribe to the nomination paper;)
c) any provision of Section 12 or Section 13 has not been complied with (or submits any false or incorrect declaration or statement in any material particular); or
d) (the signature of the proposer or the seconder is not genuine;)
(3-A)
(4)
(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.)
(5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers.)
6) An appeal not disposed of within the period specified in sub section (5) shall be deemed to have been rejected.
7)
14A.
2) In case an appeal against the decision of the Returning Officer is accepted by the (Tribunal referred to in sub section (5) of Section 14) the Returning Officer shall revise the list of validly nominated candidates accordingly.
3) The Returning Officer shall, on the (second day following the last date for decision of appeal) under sub section (5) of Section 14, prepare and publish in the prescribed manner the revised list of validly nominated candidates."
(a) the candidate is not qualified to be elected as a Member;
(b) the proposer or seconder are not qualified to subscribe the nomination papers;
(c) any provision of Sections 12 or 13 has not been complied with or "submits any false or incorrect declaration, statement or any material particular" (added vide Ordinance No. XXXVI of 2002 dated 31.7.2002);
(d) the scrutiny of the proposer or seconder is not genuine.
Sub-section (5) of Section 14 provides that a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination papers of a candidate to the Tribunal constituted for the said purpose, consisting of not less than two Judges of the High Court, nominated by the Commissioner with the approval of the President and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.
As against that sub-section (5-A), which was inserted in Section 14 of the Act, vide Ordinance XXXVI of 2002 dated 31.7.2002 provides that if on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted, is defaulter of loan, taxes, government dues, or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a Member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter, as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers. Sub-section (6) of the said section provides that an appeal not disposed of within the period specified in subsection (5) shall be deemed to have been rejected.
So far as sub-section (5-A) of Section 14 of the Act is concerned, it would essentially mean that the stipulation for deciding the appeal, as laid down in subsection (6) of the said section, was not made applicable to the scrutiny, to be made under sub-section (5-A). The arguments that time limit specified under subsection (6) for deciding the appeal should also be made applicable to sub-section (5-A) is patently misconceived. The intention of the legislature is abundantly clear whereby neither the decision of the Tribunal under sub-section (5-A) has to be made "summarily" nor it has to be made within time period, specified by the Election Commission of Pakistan in the Schedule. Evidently the purpose seems to be blocking the way of those candidates from contesting the elections who are either defaulters of loan, taxes, dues, charges or suffer from any other disqualifications. The term "any other disqualification" would cover the disqualifications as mentioned in Section 14 (3)(b)(c) and(d) of the Act, beside the qualifications and disqualification as contained in Section 99 of the Act and Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan.
New Webster's Dictionary "The place from which anything comes or is obtained; anything from which something proceeds or arises; the beginning or the place of origin of a stream or river; a spring or issue of water from the earth, or the place of issue; a fountain or fountainhead; an originating cause or ground; an origin; that from which news, information, or evidence, esp. of an original character, is obtained; a book or other publication supplying such information; the business or person making payments of interest, dividends, or the like."
Oxford English Dictionary: "A work, etc. supplying information or evidence as to some fact, event, or series of these".
Words and Phrases by West Publishing Co. "A source is that which anything comes forth, regarded as its cause or origin.
Dictionary/thesaurus: "The point at which something springs into being or from which it derives or is obtained. 2. the point of origin, such as a spring, of a stream or river. 3. One that causes, creates or initiates a maker. 4. One, such as a person or document, that supplies information.
The place where something begins, where it springs into being; "the Italian beginning of the Renaissance"; "Jupiter wias the origin of the radiation"; Pittsburgh is the source of the Ohio river"; cummunism's Russian root"
a document (or organization) from which information is obtained; "the reporter had two sources for the story".
a person who supplies information
Chambers 21st Century Dictionary: "the word source interalia means a person, a book or other documents that can be used to provide information/evidence."
Black's Law Dictionary:- "The originator or primary agent of an act, circumstance, or result."
From perusal of the above definition, it will become manifestly clear that the term "Source" has a very wide meaning. It includes a person, a book or any other document that can be used to provide information/evidence.
The meaning of word "person" as contained in the Chambers 21st Century Dictionary is as follows:-
"an individual human being. 2. the body, often including clothes."
Word "Person" according to Black’s Law Dictionary means:
"A human being. 2. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being 3.The living body of a human being.
"So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives le gal recognition" John Salmond, Jurisprudence 318.
Word "Person" has been defined in the General Clauses Act, 1897 in Section 3(39) in the following manner:
Word "person" includes any company or association, or body or person whether incorporated or not Term "Person" has been defined in the similar meaning contained in Section 11 of the Pakistan Penal Code 1860.
Thus it will be concluded that the definition of "Person" would include artificial person or legal entity and natural persons viz. human being - men or women. It would be seen that the information or material can be brought to the knowledge of the Tribunal by any juristic or natural person to question the qualifications of a candidate whose nomination papers have been accepted. The phrase “on its own motion” even authorizes and empowers the Tribunal to gather the information from electronic or print media, and that the decision of a Tribunal could not be made subject to the time limit prescribed in the notification issued by the Election Commission of Pakistan, as it would only cover the appeals. There appears a logic behind that, as if some candidate who is not qualified and is elected or chosen, his election can be called in question by his rival candidate through an election petition. But the ordinary citizens or the electors will have no locus-standi to maintain such an election petition. Moreover, the addition of sub-section (8) in Section 12 of the Act, providing therein that the nomination papers and acccompanying declaration and statements of a candidate shall be open to inspection by the public and copies thereof may be made available by the Commission to the public could not be without purpose, whereby general public has been provided access to inspect the documents filed by a candi date and obtain copies thereof also. The intention of the law-makers is quite clear and there is no ambiguity in the provisions to show that the general public has been given a right to question the qualifications of their representatives. This is an act to ensure the transparency in the election and to prevent the persons otherwise disqualified to reach the law-making bodies.
Section 12 of the Act has given a right to all the electors of the constituency to propose and second the name of any person, however, such right can only be exercised by an elector in respect of a duly qualified person. The electors have not been given unfettered rights to propose and second a person who is not duly qualified. Besides, the candidate himself has been made responsible to swear a declaration interalia that he fulfills the qualifications specified in Article 62 of the Constitution and is not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force.
From the above discussion, it becomes crystal clear that the Election Tribunal is vested with the powers to call upon a candidate on the basis of any information or material brought to its knowledge, to show cause as to why his nomination papers may not be rejected on account of disqualifications enumerated in sub-section (5-A) and disqualification as contained in Article 63 of the Constitution of Pakistan and Section 99 of the Representation of People Act, 1976 and that decision in such matter shall not be governed by sub-section (6) of the Act, meaning thereby that the Tribunal has to arrive at a definite conclusion after it has taken notice of the matter, and that such information or material can be brought to its knowledge by any source viz. a body corporate, juristic or natural person. However, the Tribunal shall take effective steps to adjudicate the election dispute in an expeditious manner within a reasonable time
The above discussion will lead to the conclusion that the observation of learned Chief Election Commissioner erroneously treating the information laid down before the Appellate Tribunal by respondent No. 5 as an appeal was legally untenable, further observing the same as deemed to have been rejected was against the provisions of law. The view taken by the Lahore High Court, Lahore in this regard is legally valid and thus unexceptionable.
As regards to the maintainability of a Writ Petition challenging the pre-election disqualification of a candidate before the completion of election process has now been well settled. After serveying the entire case law on the subject, this Court in the case of Intesar Hussain Bhatti. Vs. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 Supreme Court 313) has held as under:-
"The contentions of the learned counsel for the petitioner that petitioner appeared in 2003 Examination and qualified but the degree was issued in 2005, on the face of it, seems to be invalid. In the case of Tariq Mahmood. Vs. District Returning Officer, Faisalabad and others 2001 SCMR 1991 this Court disqualified the candidate on the ground that he tried to mislead the authorities as he did not possess the basic qualification which could qualify him to contest the election. The contention of learned counsel for the petitioner that under Article 199 of the Constitution High Court has no jurisdiction to interfere in the election matter in view of bar of jurisdiction under Article 225 of the Constitution has no force as it was held by a larger Bench of this Court in the case of Ghulam Mustafa Jatoi. Vs. Additional District and Sessions Judge-Returning Officer and others 1994 SCMR 1299 that High Court generally cannot interfere in the election process in the exercise of its Constitutional Jurisdiction in view of bar of jurisdiction contained in Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can invoke constitutional jurisdiction of the High Court. The view taken in the case of Javed Hashmi (supra) is not applicable in the present case. In the case of Ayatullah Dr.Imran Liaquat Hussain (supra) it ws also held that legislature expects every statutory authority to act within the limits of the law ad if any such authority steps out of these limits or refused to function as the law requires him to function and he proceeds to make an order not within the limits of law; such order can be declared as without lawful authority and no legal effect under Article 199. Therefore, orders passed even by election authorities which are outside the ambit of law, are not, immune from challenge before and correction by the High Court under Article 199. In the case of Lt.-Col. Farzand Ali and others. Vs. Province of West Pakistan PLD 1970 SC 98 the issue related to pre-election disqualification of the candidate. It was held, inter alia that since the dispute raised was not a dispute relating to or arising in connection with an election but related to the right of the person concerned from being a member of assembly and disqualification of a candidate which was overlooked by the Authorities who were responsible for properly scrutinizing a person’ right to be enrolled as a voter or his right to be validly nominated for election, the High Court was not debarred from exercising its jurisdiction. In the case of Hafiz Hamdullah Vs. Saifullah Khan and others PLD 2007 SC 52, too the appellant was suffering from a pre-election disqualification which was challenged before the High Court through Constitutional Petition under Article 199. It was contended that since the matter was required to be decided only by way of election petition under Section 52 of the Act, in view of the provision of Article 225 of the Constitution, therefore the writ petition was not maintainable. The contention was repelled and while relying on the case of Lt.-Col. Farzand Ali (supra) it was held that since respondent was not a candidate in the lection, therefore, he could not have had a recourse to Sections 14 and 52 of the Representation of People Act, 1976, nor any other remedy was available to him under any law except by way of filing a Constitution Petition. It was also held in the case of Ahad Sharif alias Muhammad Ahad. Vs. Tariq Javed 2006 SCMR 1356 that if a statute prescribes a remedy, normally the same should be adhered to but it does not mean that in a case where the order of the election functionary is patently illegal, the High Court would be debarred to exercise its constitutional jurisdiction which is much higher than the jurisdiction available to a Tribunal under a subordinate legislation. In the wake of above it thus follows that when validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person to be a candidate in the election, the bar contained in Article 225 would not be attracted and it would also not apply when the Tribunal having jurisdiction has failed to exercise the same or it is improperly exercised and the person aggrieved is left without remedy at a later stage of the proceedings because a Tribunal having jurisdiction cannot do it rightly or wrongly but is bound to do rightly as has been held by this Court in the cases of (i) Naik Muhammad Vs. Mazhar Ali and others 2007 SCMR 112 (ii) Riaz Hussain and others. Vs. Board of Revenue and others 1991 SCMR 2307 (iii) Utility Store Corporation of Pakistan. Vs. Punjab Labour Appellate Tribunal PLD 1987 SC 447 (iv) Zulfikar Khan Awan. Vs. The Secretary Industries and Mineral Development Government of Punjab 1974 SCMR 530 (v) Muhammad Hussain Vs. Sikandar PLD 1974 SC 139, (vi) Bardul Haque Khan. Vs. The Election Tribunal, Dacca PLD 1963 SC 704. The case-law cited by learned counsel for the petitioner is distinguishable."
Such view of the full Bench was further affirmed by a larger Bench of this Court in the case titled Let.-Gen.(R) Salahuddin Tirmizi. Vs. Election Commission of Pakistan (PLD 2008 Supreme Court 735). More particularly when the aggrieved party has no alternate remedy under Article 225 and when the facts are undisputed, the High Court certainly will have the jurisdiction to adjudicate the matter in its Constitutional jurisdiction available under Article 199 of the Constitution of Islamic Republic of Pakistan.
As in the instant case Respondent No. 5 being not a candidate could not challenge the pre-election disqualification of Respondent No. 1 by way of election petition under Article 225 of the Constitution, thus petition was rightly entertained by the High Court. Indeed Respondent No. 1 opted not to appear and defend his case before the Election Tribunal or even before the High Court to controvert the averments made in the petition, and on the basis of the available record, the facts remained unrebutted.
In such circumstances we are of the considered view that the writ petition before the Lahore High Court, Lahore filed by respondent No. 5 was maintainable in law. The contentions raised by learned Advocate General, Punjab being without substance are therefore repelled. Even the doctrine "Semper Proesumitur Pronegante" (Presumption is always in the favour of the one denying or in favour of the negative) pressed into service by learned Advocate general, Punjab would not be attracted in the present case for the simple reason that there was no denial. Even otherwise the facts wee borne out from the record. The contentions raised on behalf of learned Advocate General, Punjab suggesting the filing of a writ of quo warranto by Respondent No. 5 would amount to negate the provisions of sub-section (5-A) of Section 14 of the Representation of the People Act, 1976 as Respondent No. 5 has placed the information regarding inherent disqualification of Respondent No. 1 before the Election Tribunal prior to completion of the election process. Besides the suggestion being unreasonable and contrary to the rule of advancement of cause of justice if accepted, was bound to encourage multiplicity of litigation which in a way tantamounts to denial of justice.
It is an admitted position that the nomination forms of Respondent No. 1 in the general elections were also rejected by the Returning Officer vide his order dated 01.12.2007. It is also an admitted fact that Respondent No. 1 did not challenge the orders of the Returning Officer before the Election Appellate Tribunal. Instead Respondent No. 1 submitted an application dated 07.12.2007 (Pp 124-126) raising his grievance against the order of the Returning Officer that he has rendered a dishonest decision and committed a grave error of law by rejecting his nomination papers. Such application moved by Respondent No. 1 was responded to with the following orders stated to have been communicated to Respondent No. 1 as appearing in the office order dated 17.12.2007 (page 127 of the paper book of CPLA 878/2008) reproduced hereunder:-
"ELECTION COMMISION OF PAKISTAN
In re: APPLICATION BY MIAN SHAHBAZ SHARIF AGAINST REJECTION OF HIS NOMIANTION PAPERS FOR CONSTITUENCY NO. NA-119 LAHORE-II & PP-141-V.
A copy of this petition was received in the office through fax on 7.12.2007 and in view of the short time left for filing of the appeal before the notified Appellate Tribunal it was disposed of promptly and the decision was conveyed to the petitioner in the following terms:
"I have been directed by the Hon'ble Chief election Commissioner to inform you that the Order of the Returning Officer rejecting or, as the case may be accepting the nomination paper of a candidate is appealable under Section 14(5) of the Representation of the People Act, 1976 before the Appellate Tribunal constituted for the purpose. As such, the Chief Election Commissioner lacks jurisdiction in the matter.
"You may, therefore, approach the appropriate forum provided under law for the redressal of your grievances, if so advised."
In the case of the above Order and the comments of the learned Members Election Commission, the matter does not require any further action. The petitioner may seek remedy, if any, available to him under the law. The petition be filed and the learned counsel for the petitioner be informed."
Respondent No. 1 after receipt of such order did not agitate the matter any more, and obviously acquiesced in. Thus afore-said order disqualifying Respondent No. 1 attained finality. No plausible or convincing arguments were advanced to justify the subsequent acceptance of the nomination papers of Respondent No. 1, in the bye-elections while there was a clear cut acquiescence on the part of the respondent to his disqualification in the general elections.
Be that as it may, the nomination papers of Respondent No. 1 were rejected in the general elections on the following grounds:
The he remained fugitive from law.
That the loans obtained by the candidate and his family members remained unpaid.
That he defamed and ridicule the judiciary;
That the respondent could not be considered righteous;
Learned Advocate General, Punjab has only been able to satisfactorily explain that the criminal case in which Respondent No. 1 was declared absconder was in the meantime disposed of and resulted in his acquittal. However, he was absolutely unable to explain the repayment of borrowed loans and fulfillment of the obligations with the creditor Bank by the companies/projects mainly owned by Respondent No. 1 in accord with the settlement as reflected in the judgment of the Lahore High Court, Lahore in Mian Muhammad Shahbaz Sharif through Attorney. Vs. Election Commission of Pakistan, Islamabad and 15 others (PLD 2003 Lahore 646). In this regard it will be appropriate to reproduce here under para 30 of the above judgment to understand the factual position :-
"As far as the question of default is concerned, the contention of the leaned counsel for the petitioner, Mian Muhammad Shahbaz Sharif has merit. It is not disputed that National Bank of Pakistan has filed C.O.Nos. 63 of 1998 and 64 of 1998, under Section 284 of te Companies Ordinance, 1984 based on the arrangement dated 30.6.1998 between the aforesaid Bank and the two companies, namely, Ittefaq Foundary (Pvt.) Ltd and Ittefaq Brothers (Pvt.) Ltd. The Order dated 8.7.1998 passed in aforesaid cases clearly recites that the learned counsel for the respondent-companies in the said cases, accepted the aforesaid arrangement. Perusal of the order dated 8.7.1998 shows that the learned Company Judge appointed a Committee, inter alia, comprising the Regional Chief Executive, National Bank of Pakistan, amongst others, to assume and take over the possession and preserve the properties of the companies and make arrangements for the disposal of the same, for the discharge of the liabilities. Various orders placed before us show that one of the parties had objected to the maintainability of the said petitions under Section 284 of the Companies Ordinance and the position taken by the learned counsel for the National Bank was that in the circumstances it was the most appropriate remedy. The aforesaid petitions are, however, pending. The undisputed fact however, remains that the two companies i.e. the principal debtor, have placed all the assets and properties at the disposal of the Court at the initiative of the creditor-Bank. The bank itself wants to realize its dues by the disposal of the properties of the two companies which has already been accepted by the said companies. It is, therefore, a case in which the creditor has taken over the assets and properties of the principal debtor. The effect to our mind, of this new arrangement is that all previous agreements including the agreements of guarantee stand superseded. The change in the circumstances i.e. enforcement of a compromise by the creditor Bank under Section 284 of the Companies Ordinance, 1984 is so fundamental in character that it strikes at the very root of the original contract. It may be added that with the taking over of the assets and properties of the company by the creditor Bank, the remedy of the surety to proceed against the principal debtor at least stands suspended. Reference may be made to Begum Zia Farhat Awan and two others. Vs. Islamic Republic of Pakistan and three others (1993 CLC 365) in which this Court, after examining various provisions of the Contract Act, observed that when the creditor takes over the principal debtor i.e. the company, the surety cannot be held to be liable any more. We will, however, like to add that these observations are being made in the limited context of the question whether Mian Muhammad Shahbaz Sharif could be said to be a defaulter, and are not to be construed to prejudice the parties in the said recovery suits."
From perusal of the above paragraph it will transpire that the two companies i.e. principal debtor placed all assets and properties at disposal of the Court at the initiative of creditor bank. It was observed in the judgment that with the taking over of assets and properties of the companies by the creditor bank, remedy of surety to proceed against principal debtor at least stands suspended.
The above judgment reflects that vide order dated 08.07.1998 learned Company Judge of the Lahore High Court appointed a Committee, inter alia, comprising of the Regional Chief Executive, National Bank of Pakistan amongst others, to takeover possession and preserve the properties of the companies and make arrangements for disposal of the same, for the discharge of the liabilities. However, the Project Brief dated 22.05.2008 of Ittefaq Group comprising Ittefaq Foundary (Pvt.) Ltd, Ittefaq Brothers (Pvt.) Ltd and Ilyas Enterprises showing Respondent No. 1 and his other family members including Mian Muhammad Nawaz Sharif and Mrs. Nusrat Shahbaz as director of those companies reveals that since 1998 when the directors offered to surrender the assets of these units to settle the claim of all the banks which included National Bank of Pakistan, HBL, UBL, MCB, 1st Punjab Mudarba, Bank of Punjab, ADBP, PICIC and ICB, no progress has since been made on account of objection petitions filed by the directors of Ittefaq Group inspite of the fact that a bid of Rs. 2.48 billion was received which was submitted to the Court as far back as in 2005. It will be appropriate to reproduce herein the said Project Brief appearing at page 106 of the paper book of C.P.L.A.No. 905 of 2008 which has duly been signed by Saleem Ansar, Executive Vice-President National Bank of Pakistan a Member of the Committee as representative of the Banks:--
PROJECT BRIEF
Dt.22.05.2008
ITTEFAQ GROUP
Ittefaq Foundries (Pvt) Limited.
Brother Steels (Pvt) Limited
Ittefaq Brothers (Pvt) Limited
Ilyas Enterprises
Exposure of Banks:
Bank Ittefaq Brother Ittefaq Total (%) NBP/ (%)
Foundry Steel Brothers other
Banks
NBP 1.072 118 355 1,545 49.94%
HBL 716 0 0 716 23.14% NBP
UBL 340 0 0 340 10.99% 1.545 49.94%
MCB 239 0 0 230 7.72%
1st Punjab 87 87 23 0 110 3.56%
Mudarba
Bank of 61 0 0 61 1.97% Other
Punjab Banks
ADBP 58 0 0 58 1.87 1,549
PICIC 17 0 0 17 0.55%
ICP 0 8 0 8 0.26%
TOTAL 2,590 149 355 3,094 100.00%
In 1998 the directors offered to surrender the assets of these units to settle the claims of all the banks. Upon this offer, all the banks unanimously agreed to get a court order on this deal, and as per legal advice of Joint Legal Council of all the banks (Raja Muhammad Akram) an application under Section 284 (Compromise) was filed by the banks at Lahore High Court.
While hearing this application under Section 284 the Lahore High Court ordered to constitute a Committee comprising 3 members: a representative of banks: a chartered accountant and an advocate being the Court representative. The mandate of the Committee is to take possession of the said units of Ittefaq Group to protect and preserve their assets and to auction them through Court Procedure.
Under the said Committee a bid of Rs.2.48 billion was received for assets of all the said units, which was submitted to the Court in 2005, however the final Court Order for auction has not yet been issued due to Objection Petitions filed by some of the directors of Ittefaq Group. Subsequently, in 2006, Committee member Mr.Iqbal Hamidur Rehman, after his appointment as Additional Judge Lahore High Court, was replaced by Mr.Pervaiz Akhtar Malik, Advocate and Mr.Kamran Amin (EVP-NBP) due to change of his assignment in the Bank was replaced by Mr.Salim Ansar (EVP-SAMG-North, NBP). The Committee presently comprises the following members:
Mr. Salim Ansar, EVP-SAMG-North, NBP (representative of banks)
Khawaja Abdul Qadir (Chartered Accountant)
Mr. Pervaiz Akhtar Malik (Advocate, representative of the Court).
Since filing of the bid of Rs.2.48 billion with the Court in 2005, duly accepted by all the banks and recommended by the committee, the matter is still stuck up at Court for an Order, and despite all out efforts of the Committee no progress could so far be made. Several meetings of Creditors banks were convened by NBP at SAMG-North Office, Lahore. Where legal experts other than the dealing councils of the banks were also invited to consider alternate course of action to expedite this matter, however, the legal complications have been arisen to such an extent that no concrete solution of the problem could so far been unanimously adopted and the progress at the court has come to almost a stand still."
Companies Profile:
Companies Ittefaq Brother Steels Ittefaq Brothers
Location Kot Lakhpat, Kot Lakhpat, 8-KM GT Road, Lahore Lahore. SHahdarah, Lahore.
Capacity Not specified 100,000 Tons p.a. 150 Tons p.a. steel
steel products products
Operation Closed Closed Closed
Status
Land 67 Acres 20 Acres 6 Acres
Directors Mian Tariq Shafi Mian Yousaf Aziz Mian Shahbaz Sharif
Mian Javed Shafi Mian Yahya Siraj Mian Muhammad
Mian Abbas Sharif Mrs. Nusrat Shahbaz Idrees
Mian Riaz Meraj Mian Naseem Tariq Mian Pervaiz Shafi
Mian Shahbaz Sharif Mian Memoona Idrees
Mian Yousaf Aziz Mr. Hussain Barkat
Mian Nawaz Sharif
Sd/-
(SALIM ANSAR)
Executive Vice President
National Bank of Pakistan
SAMG-LAHORE CANTT.
38 Regarding defaming the judiciary Kh.Haris Ahmad, learned Advocate General, Punjab was not in a position to categorically deny the allegations but made a faint-hearted and feeble attempt to justify the action saying that the remarks were made in respect of the person of a Judge and not against the judiciary as a whole. Certainly the above justification is neither convincing nor legally justified, hence unacceptable. To say the least such an argument on behalf of the Principle Law Officer of a Province was not only dismaying, rather saddening. It will be appropriate to reproduce hereunder the remarks made by Respondent No. 1 verbatim available at page 41 of the paper book.
Apart from above, Mr.Ahmed Raza Khan Qasoori, learned Sr.ASC appearing for Respondent No. 5, Syed Khurram Shah has placed on record the DVDs, containing the above remarks made by the petitioner in proof. So far as plea of continuously ridiculing the judiciary is concerned, Mr.Ahmed Raza Khan Qasoori has placed on record certain press clippings to prove his point, which have also been taken on record. It appears appropriate to reproduce a few of them to have a glance over language and tenor expressed therein.
There is no denial so far as continuously making outrageous remarks against the judiciary in newspapers are concerned. The arguments could be advanced that the functioning of the judiciary and the laxnesses thereof could be commented upon by the Political Leaders which must not only be absorbed by the judiciary but to be appreciated to overcome the shortcomings so pointed out. There can be no two opinions that in a democratic society fair comments must be encouraged as freedom of speech and expressing of viewpoint is a fundamental and inviolable right enshrined in the Constitution. However, there is vast difference between a fair comment and/or bonafide criticism and purposeful and outrageously, unconscionable defamation deliberate ridiculousness, coupled with malicious persecution. The material reproduced hereinabove would by itself speak of derogatory and offensive language demonstrating humiliation, persecution and ridicule tainted with malice for the achievement of ulterior purposes. Such iniquitously wicked and insulting statements in the press were sufficient enough to bring the mischief within clause (1)(g) of Article 63 of the Constitution of Islamic Republic of Pakistan and sub-section (g) of the Section 99 of the Representation of People Act, 1976 as Respondent No. 1 not only propagated to bring into the ridicule the judiciary in the past but is still continuing to do so unabatingly.
It was argued before us that the Leaders and workers of Pakistan Muslim League (Nawaz) of which Respondent No. 1 is the President committed the acts of rowdism in the Supreme Court premises on 28.11.1997. Referring to the judgment reported as Shahid Orakzai Vs. Pakistan Muslim League (Nawaz) and 8 others (2000 SCMR 1969) it was argued that the said attack on the Supreme Court was made during the government of Pakistan Muslim League (Nawaz) and at the behest of Respondent No. 1 while Mian Muhammad Nawaz Sharif was Prime Minister and Respondent No. 1 was the Chief Minister of Punjab. Certain members of the Provincial Assembly and National Assembly and proactive workers of the party were found involved and were convicted for contempt of the Court. It was pointed out that according to para 17 of the said judgment, an order was passed for conducting thorough investigation and submission of report within four months to proceed against the miscreants to be identified in the investigation. Though such report was submitted to this Court but was subsequently suppressed and was not placed before the Court.
As a matter of fact, such order is available at para 17 of the reported judgment(supra) but since the certified copy of the said report is not available before us therefore, we do not deem it appropriate to dilate upon the same. Yet certain facts are obviously clear and need no further proof. It is quite certain that the persons who were convicted for the contempt of this Court not only belonged but occupied prominent positions in the party of which Respondent No. 1 is the President. The culpability of Respondent No. 1's party is further affirmed by the fact that one Akhtar Mehmood who was convicted in contempt of the Court case was undeniably appointed to occupy a responsible judicial/quasi judicial position by Respondent No. 1 in his capacity as a Chief Executive of the Province. Having conceeded the above factum of appointment of the said convict, Kh. Haris Ahmed, learned Advocate General, Punjab made a candid statement before us that the steps were being taken to revoke the appointment of Mr.Akhtar Mehmood, which may not be enough to reduce the culpability. Nonetheless the aforesaid contempt case is still pending, but it has not been mentioned in the declaration submitted by Respondent No. 1 alongwith his nomination form.
From the above factual position it will be observed that Respondent No. 1 had been and is continuously making well determined and decisively resolute efforts to ridicule, defame, harrass, downgrade and humiliate the judiciary since 1997 till date.
Though it may not be said with certainty that the judgment in Zafar Ali Shah's case (PLD 2000 SC 869) does affirm the financial bunglings made by Respondent No. 1 but the subsequent events were adequate enough to show that the allegations were not without substance to be outrightly rejected.
Article 63 of the Constitution of Islamic Republic of Pakistan interalia provides that a person shall be disqualified from being elected or chosen as, and from being, a Member of Majlis-e-Shora (parliament), if:-
"(i) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Paksitan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the judiciary or the Armed forces of Pakistan; or
(ii) he has obtained a loan for an amount of tow million rupees or more, from any bank, financial institutions, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(iii) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers."
Apart from the above, sub-section (1-A) of Section 99 of the Representation of People Act, 1976 also speaks of the above-mentioned disqualifications.
LOCUS-STANDI:
Adverting to the plea of locus-standi of the Province of Punjab, it will suffice to say that the election dispute is purely a personal matter and private cause between the electors and the candidate for the simple reason that to contest the election is a personal right, which can be brought only by the person concerned. It is an action which will essentially die with the death of the candidate. The law palpably and unambiguously requires that “duly qualified” candidate could be proposed and seconded. If a person suffers from inherent disqualification, he cannot be elected or chosen as a member of the Assembly. If a person is not qualified to become a member of Provincial Assembly, as a natural consequence he cannot be chosen or elected as a Leader of the House i.e. in the present case as a Chief Minister. In such an event either Mr. X remains Chief Minister or looses his seat and Mr. Y is chosen in his place, it will make hardly any difference so far as the continuity in the functioning of the Provincial Government is concerned. The Provincial Government functions in continuity and perpetuity and its functioning could not be hampered on account of change of personalities; may it be a Governor of Province, Chief Minister of the Province, a Provincial Minister or a Secretary to Government, in no case perpetuity is disturbed. In such circumstances, we are of the view that the Chief Secretary of the Provincial Government acted in a overzealous manner, overstepped his authority and pushed the Province of Punjab to defend the case of the sitting Chief Minister, who himself intentionally opted to remain out of the Court and decided not to defend his case instead remained busy in humiliating the judiciary. There is a plea of initiating contempt proceedings against Mr.Javed Mehmood, Chief Secretary Province of Punjab as prima facie, it may be presumed that he also shared the views of Respondent No. 1 so far as maligning of the judiciary is concerned. However, at this juncture we consider it proper to withhold the commencement of contempt proceedings against Mr. Javed Mehmood. In any case the act of Mr.Javed Mehmood, Chief Secretary, Punjab on the face of it appears to be subversive of discipline constituting misconduct under the Service Laws. Be that as it may we leave the matter open to be dealt with by the Competent Authority.
Regarding the locus-standi of the Speaker of Punjab Assembly, the arguments of Mr.Raza Farooq, learned ASC to the extent of role of Speaker so far as regulating and conducting the business of the House is concerned, his duties obligations and privileges including the status of prominence are not disputed. It is also not disputed that the Speaker is under obligation to refer the case of a member for disqualification on the ground of defection as provided under Article 63-A of the Constitution, however the point which needs to be considered is, as to whether the Speaker of the Provincial Assembly shall be entitled to espouse the individual cause of a Member or for that matter that of the Leader of the House in regard to his personal disqualification to be elected or chosen as a member, the reply will be definitively in negagive. The Speaker is the custodian/guardian of the entire House, and not an individual member. The case of Moulvi Tameez-ud-Din Khan as relied upon by learned ASC is evidently in relation to challenging the Act of Governor of dissolution of the Assembly and does not concern the individual act of a member. The said case and the subsequent precedents in this regard will be of no help to advance the case of the Speaker of Punjab Assembly. Of course the Speaker may agitate the collective cause of the House but could not provide a shield to defend an individual member, more particularly when the member himself is neither handicapped, incapacitated or prevented by an act of God nor prohibited by the circumstances beyond his control but is resolutely and determinably unwilling to defend himself.
In the given circumstances, neither the Province of Punjab nor Speaker Punjab Assembly has a right to intervene and seek impleadment in an election dispute revolving around the question of personal qualification and or disqualification of an individual member. The Lahore High Court, Lahore was absolutely justified in rejecting their applications moved under Order 1 Rule 10 CPC, both the parties having no locus-standi to invoke the jurisdiction of this Court. Their applications bearing Nos. CMA No. 471-L/2008 and CMA No. 1715/2008 are accordingly dismissed.
As regards the locus-standi of the Federation of Pakistan to impugn the judgment of the Lahore High Court, it will be noted that the Federation was a proforma party/respondent in the petitions before the Lahore High Court. The perusal of the impugned judgment manifestly reveals that neither any relief was granted against the Federation nor any direction was issued to them, so as to give rise to the cause of action to the Federation to file the instant petition. It was candidly conceded by learned Deputy Attorney General that no direction or order was passed against the Federation. In the circumstances, neither the Federation was aggrieved party nor had any cause of action to provide them a locus-standi to challenge the judgment of the Lahore High Court. Even learned Attorney General has not been able to cite any precedent to demonstrate that at any point of time, the Federation has ventured to step into an election dispute of a certain individual. We have no slightest doubt in holding that the Federation, not being an aggrieved party, was not competent to maintain the petition. Accordingly the petition filed by the Federation is equally liable to be dismissed, which stands dismissed.
For what has been discussed above, we have arrived at an irresistible conclusion that Respondent No. 1, Mian Muhammad Shahbaz Sharif was disqualified from being elected or chosen as a member of Provincial Assembly of Punjab as he suffered from an inherent disqualification. The order of the Returning Officer dated 16.5.2008 of acceptance of nomination papers of Respondent No. 1 was legally unsustainable which is set aside. The judgment dated 23.6.2008 passed by Lahore High Court, Lahore remanding the case to the Chief Election Commissioner for constituting a three members' Tribunal, in the given circumstances of the case, is untenable and of no legal effect, as it will serve no purpose except protracting the proceedings, especially when Respondent No. 1 has taken determinative decision not to appear before any forum, which is evident from the record and proceedings. Respondent No. 1 despite service did not appear before the Election Appellate Tribunal. He elected not to appear before the High Court despite service. instead futile attempts were made through proxies to drag the proceedings of the High Court and to cause harassment and humiliation to the learned Judges of the Lahore High Court. Despite serious and relentless efforts made by this Court, more particularly having got Respondent No. 1 served through Advocate General, Punjab he opted not to appear before this Court.
As a result of foregoing reasons, the notification issued by Election Commission of Pakistan dated 03.06.2008 declaring respondent No. 1 to be Returned Candidate, is set aside.
These are the detailed reasons for the short order passed on 25.2.2009 which is reproduced herein below:-
"Arguments concluded.
(i) CPLA No. 657-L/2008
(ii) CPLA No. 803/2008
(iii) CPLA No. 878/2008
CPLA No. 905/2008 (Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and others) is converted into appeal and allowed.
Resultantly, Respondent No. 1 (Mian Muhammad Shahbaz Sharif) is declared not qualified to be elected or chosen as a Member of an Assembly. The order dated 16.5.2008 of the Returning Officer PP-48 Bhakkar-II (Respondent No. 2) accepting the nomination papers of Mian Muhammad Shahbaz Sharif and the judgment dated 23.6.2008 of the Lahore High Court, Lahore passed in W.P. No. 6470/2008 are set aside.
In consequence thereof, the notification issued by the Election Commission of Pakistan dated 3.6.2008 thereby publishing the name of Mian Muhammad Shahbaz Sharif and notifying him as returned candidate is declared to be null and void. Consequently, Respondent No. 1 (Mian Muhammad Shahbaz Sharif) ceases to be Member of the Provincial Assembly of Punjab from the said constituency. Election Commission of Pakistan is directed to issue a Notification thereby de-notifying Mian Muhammad Shahbaz Sharif.
(M.A.) C.M.A. dismissed.
PLJ 2009 SC 761
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD HANIF--Petitioner
versus
SECRETARY TO THE GOVT. OF PAKISTAN, MINISTRY OF INTERIOR and another--Respondents
Civil Petition No. 964 of 2008, decided on 14.1.2009.
(On appeal from the judgment dated 13.5.2008 of the Federal Service Tribunal, Islamabad passed in Appeal No. 907 (R) CS/2002)
Constitution of Pakistan, 1973--
----Art. 212(3)--Removal From Service (Special Powers) Ordinance, 2000, S. 3(2)--Leave to appeal--Tribunal upholding penalty of compulsory retirement from service and setting aside penalty of dismissal--Civil servant was on ex-Pakistan leave of 90 days--Request for further leave was not sanctioned--Disciplinary action--Confirmation of bogusness of medical certificates--Complaint from Embassy of France that visit visas were granted to family members of civil servant--None of intending visitors to France would stay beyond authorized visa limits--Proceeded under Removal from Service Ordinance--Major penalty of compulsory retirement from service was inflicted upon civil servant--Demand of justice--Validity--Authorities should have waited the return of the civil servant from abroad who could not come back to Pakistan for reasons beyond his control--No urgency to proceed against civil servant--Held: Authority was not justified in refusing to grant the leave on EOL (Leave without pay)--Civil servant has 26 years of service to his credit and as per Revised Leave Rules, 1980 the civil servant was entitled for EOL without pay for a maximum period of 5 years, if he had rendered more than 10 years of service--No justification as rightly contended for refusing EOL when the petitioner requested for that medical grounds--Appeal was allowed. [Pp. 767 & 768] A & E
Natural Justice--
----Principle of--Civil servant--Inquiry could not conducted--Essential in interest of justice--Inquiry should be conducted in presence of civil servant on other hand, inquiry could not be conducted in haste causing substantial prejudice to the principles of natural justice by depriving the civil servant of his defence. [P. 768] B
Removal From Service (Special Powers) Ordinance, 2000 (XVIII of 2000)--
----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 212(3)--Leave to appeal--Major penalty of compulsory retirement from service was upheld by Tribunal--Findings of inquiry officer were not based on any evidence produced by any witness--Inquiry officer formed opinion without any authentication of document--Charge of misconduct--Validity--Inquiry officer proposed a major penalty without having regard to facts and circumstances of the case--Such findings and recommendations based on such findings on conjectures and surmises based on the opinion of inquiry officer could not be made base for imposing any penalty what to talk of a major penalty--In case of charge of misconduct as stipulated in S. 3 of Ordinance, a full fledged enquiry is to be conducted in order to give an opportunity to civil servant to clarify his position. [P. 768] C
Natural Justice--
----Principle of--Elementary--In order to act justicely and to reach just ends by just means the Courts insist that authority should adopt elementary principles of natural justice unless the same have been expressly excluded. [P. 768] D
2001 PLC (CS) 81.
Mr. Azid Nafees, ASC for Petitioner.
Mr. Shah Khawar, DAG and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 14.1.2009.
Judgment
Ijaz-ul-Hassan, J.--Muhammad Hanif, petitioner, through instant petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal from judgment dated 13.5.2008 passed by learned Federal Service Tribunal at Islamabad, (hereinafter, referred to as the Tribunal), upholding penalty of compulsory retirement from service imposed upon the petitioner vide notification dated 15.7.2002 and setting-aside penalty of dismissal from service imposed upon him vide notification dated 20.3.2003, deeming the petitioner to have been compulsorily retired from service with effect from 15.7.2002.
"(i) In June 2000, he with official Passport (No.S-029592) appeared before the French Consulate with a Notification No.a/778/Admn-I, dated 25.05.2000, issued from FIA Hqrs regarding sanction of 90 days Ex-Pakistan leave to him. He applied for a visa for himself and his family. He pretended to visit France and USA to see family and friends during holidays. Moreover, he was also interviewed for issuance of visa to other eight people, introducing them as members of his family. In this regard, he presented the following undertaking to assure French Embassy that they would come back to Pakistan:--
`I, Muhammad Hanif, Asstt. Director, FIA, G-9/4, Islamabad, hereby undertake and assure that none of the above intending visitors to France would stay beyond the authorized visa limit and on their return, they would certainly present their passports in the French Embassy, Islamabad personally. The favour being extended is highly appreciated 06.6.2000.'
(ii) None of these people came back to Pakistan and it has been confirmed by the French Embassy that Mr. Muhammad Akbar and his family, whose assurance of coming back was given by him (Mr. Muhammad Hanif) has applied for political asylum on 18.12.2000.
(iii) He was granted 90 days ex-Pakistan leave on full pay w.e.f. 10.6.2000 vide Notification No.A/778/Admn-I dated 29.5.2000. On his request, the ex-Pakistan leave was extended for further 90 days on medical grounds from 7.9.2000 to 24.12.2000 vide FIA HQ Notification No.A/788/Admn-I, dated 23.9.2000, then, he requested for further extension in ex-Pakistan leave for 180 days vide his faced letter dated 3.12.2000 which was not granted and he was informed vide FIA HQrs Letter No.A/778/Admn-l/2001, dated 12.1.2001 to report for duty immediately, failing which departmental action against him will be recommended to the competent authority under Removal from Service (Special Powers) Ordinance, 2000, but he has not reported back and is absent since 5.12.2000.
(iv) The medical Certificates sent by him from USA for extension in ex-Pakistan leave were not got verified from the concerned authorities. In this regard, Mount Sinai Medical Centre, Miami, USA, sent the following report which confirms that he tried to use a forged letter for extension in his leave:--
`This is to verify that the two letters you faced to us on 1.4.00 were not issued by my department or Mount Sinai Medical Centre. This stationery is not consistent with out, and since we have not seen Mr. Hanif in our office, we do not know his diagnosis and would have no reasons to compose the content of the letters'."
"Findings:
Mr. Muhammad Hanif, Assistant Director FIA had been provided not only sufficient time but an opportunity for hearing in person to enable to defend the allegations. He had been deliberately avoiding attending the Inquiry by sending requests one after another. He was directed to appear in person no later then 15th January, 2002 but he has failed stating that Doctor has advised that he needs regular medical follow ups for another period of three months and in view of health conditions he is advised not to travel to Pakistan during this period. Medical Certificate issued by Departmental representative Ly. Hong-Sen has been attested by the Counsel General of Pakistan, Montreal Canada.
The following charges have there been established/proved:
(i) Mr. Muhammad Hanif had intervened for issuance of visa to eight (08) persons for France using his official capacity enabling M/s Muhammad Akbar and Athar Iqbal for applying political asylum in France.
(ii) Mr. Muhammad Hanif submitted forged medical certificates for grant of Ex-Pakistan leave.
(iii) He is absent from duty without approval with effect from 5th December, 2000.
Recommendations:
In the light of the facts analysis of the case it is recommended that:--
(i) Charges at Serial No.(i) and (ii) have been provided, competent authority may consider minor/ major penalties under B & D Rules, 1973 as per Section 3 (I) of Removal from Service (Special Powers) Ordinance, 2000.
(ii) The Counsel General of Pakistan Montreal Canada may be requested through Ministry of Foreign Affairs to have medical check up of Mr. Hanif in Montreal Canada that he is suffering from Chronic HBV infection and unable to travel to Pakistan.
(iii) On receipt of report from Counsel General of Pakistan Montreal Canada disciplinary action be initiated in the light of that report."
On receipt of above recommendations, petitioner was served with a show-cause-notice dated 14.3.2002. The petitioner denied the allegations and requested that inquiry proceedings may be held in abeyance till his arrival to Pakistan. Reply of the petitioner did not find favour with the authority and vide notification dated 15.7.2002 major penalty of compulsory retirement from service was inflicted upon the petitioner. The petitioner filed departmental representation and on expiry of the statutory period, preferred appeal before Tribunal, which has been disposed of through the judgment impugned herein.
Mr. Azid Nafees, Advocate appearing on behalf of the petitioner mainly contended that learned Tribunal while delivering the judgment overlooked that the proceedings of the inquiry and the impugned notification of compulsory retirement of the petitioner had been conducted and issued in violation of the provisions of the Removal From Service (Special Powers) Ordinance, 2000; that it was totally ignored that petitioner was entitled to leave without pay for maximum period of five years in terms of Revised Leave Rules, 1980 and even if the petitioner was not granted leave on medical grounds, his absence could be treated as leave without pay. In this regard our attention was invited to the provisions of para 13 of O.M. No.F-l/(2)-Rev. 1/78 dated 21st September, 1978. Concluding the arguments, learned counsel reiterated that Tribunal erred in law in upholding an ex-parte inquiry conducted in undue haste in a mechanical manner without application of independent mind, accepting inadmissible evidence, resulting in complete failure of justice.
Contrarily, Mr. Shah Khawar, learned Deputy Attorney General representing the respondents-department, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment on all counts, reiterating that the authority, by considering the human aspect of the matter, not only granted the petitioner 90 days Ex-Pakistan Leave for the purpose of treatment abroad but also acceded to his request for extension of leave for another 90 days. According to the Revised Leave Rules, 1980, it is not necessary to specify the reasons for which leave has been applied; that charges were conveyed to the petitioner and he acknowledged its receipt by giving reply to the charges and that petitioner was given sufficient opportunity to come to Pakistan and join the proceedings but he willfully remained away from the country by submitting fake/bogus medical certificates, culminating in his ultimate removal from service.
Having considered the matter from all angles in the light of material on file, we find that submissions of learned counsel for the petitioner carry weight. All proceedings were carried out ex-parte without waiting for the return of the petitioner from abroad. Record reveals that no charge sheet was issued to the petitioner as required under Section 3(2) of the Ordinance (ibid). The petitioner was deprived of opportunity of showing cause by giving a defence reply to the charge sheet. The petitioner was also denied of the opportunity of defence at the first stage required under the law. Such proceedings could not be sustained which had prejudiced the right of defence of the petitioner.
It has been held in Sajjad Hussain Bhatti versus The Post Master General, Pakistan Post Office, Metropolitan, S.S.C. Karachi and two others, (2002 TD (Service) 41), that, "Exparte inquiry conducted against accused civil servant without giving opportunity of defence to accused civil servant would vitiate the order of dismissal from service recorded against him." The demand of justice required that the authorities should have waited the return of the petitioner from abroad who could not come back to Pakistan for reasons beyond his control. There was no urgency to proceed against the petitioner in the circumstances of the case. On one hand it was essential in the interest of justice that the inquiry should be conducted in the presence of the petitioner, on the other hand, the inquiry could not be conducted in haste causing substantial prejudice to the principles of natural justice by depriving the petitioner of his defence. There was no wisdom in adopting the second course and ignoring the most appropriate course. The findings of the inquiry officer were not based on any evidence produced by any witness. The inquiry officer formed the opinion without any authentication of the documents. The inquiry officer proposed a major penalty, without having regard to facts and circumstances of the case. Such findings and the recommendations based on such findings on conjectures and surmises based on the opinion of the inquiry officer could not be made base for imposing any penalty what to talk of a major penalty. It has been contemplated under Section 5 of the Removal from Service (Special Powers) Ordinance, 2000 that in case of charge of misconduct as stipulated in Section 3 of the Ordinance a full fledge enquiry is to be conducted in order to give an opportunity to the civil servant to clarify his position.
Needless to emphasise that in order to act justicely and to reach just ends by just means the Courts insist that the authority should adopt the elementary principles of natural justice unless the same have been expressly excluded. It has been held by this Court in the case of Collector of Customs Hyderabad and another V. Muhammad Hayat, reported as 2001 PLC (CS) 81, that "Civil servant was granted leave on medical grounds but such leave was not extended. Period of un-authorized absence was treated as leave without pay. Disciplinary proceedings were initiated against the civil servant and he was removed from service was right in holding that once request for medical leave was granted, subsequent request for extension of such leave could not be declined without referring his case for a second medical opinion". The authority was not justified in refusing to grant the leave on EOL (leave without pay). The petitioner has 26 years of service to his credit and as per Revised Leave Rules, 1980 the petitioner was entitled for EOL without pay for a maximum period of 5 years, if he had rendered more than 10 years of service. There was no justification, as rightly contended, for refusing EOL when the petitioner requested for that on medical grounds. Irrigation Secretariat, Lahore versus Abdul Hamid Arif and others, (1991 SCMR 628), Allah Yar versus General Manager, Railways Headquarters, Lahore, (2001 SCMR 256) Amjad Ali and others versus Board of Intermediate and Secondary Education and others, (2001 PLC (CS) 81) and Naseeb Khan versus Divisional Superintendent, Pakistan Railways, Lahore and another, (2008 SCMR 1369).
In the light of foregoing discussion, this petition is converted into appeal and allowed accordingly. The impugned judgment dated 13.5.2008 passed by learned Tribunal, is set-aside and appellant is directed to be reinstated in service with all back benefits. However, department would be at liberty to initiate fresh enquiry against the petitioner in accordance with law, if so advised. No order as to costs.
These are the detailed reasons of our short order dated 14.1.2009.
(R.A.) Appeal allowed.
PLJ 2009 SC 769
[Appellate Jurisdiction]
Present: M. Javed Buttar, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
Mst. SAIRA BIBI--Petitioner
versus
MUHAMMAD ASIF etc.--Respondents
Crl. Shariat Petition No. 49 of 2005, decided on 25.3.2009.
(On appeal against the judgment dated 20.6.2005 passed by the Federal Shariat Court, Lahore in Cr. A. 94-L, 107-L, 111-L/2003 & Crl. Revision No. 37-L/2003).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10 (2) & 11--Constitution of Pakistan, 1973, Art. 203-F--Leave to appeal--Abduction and commission of rape--Conviction and sentence recorded against accused by trial Court, set aside--Assailed--During cross-examination victim made many dishonest improvements in her statement and was duly confronted with her statement recorded u/S. 161, Cr.P.C.--Major contradiction and could not be easily ignored--Age of tear on hymen was about one week that would not support the prosecution case viz a viz dates of commission of rape--Disbelieved qua abduction caused a serious dent in veracity of her statement--Rape can only be believed in presence of strong corroborating evidence--Medical evidence revealed about sexual intercourse and did not lead to the person who did it especially in absence of any DNA test or any grouping test of semen--Victim was recovered from the house of her cousin and not from the house of any of the accused--None of accused was present at the time of recovery of victim--Neither any weapon nor vehicle was recovered from their possession or at the instance--Statement of victim was not confident inspiring--Held: Solitary statement of victim being inconsistent was not confidence inspiring and hence not worthy of credence--Statement of the victim was also not corroborated by any independent, reliable incriminatory evidence--Findings recorded by Appellate Court while acquitting the accused were neither perverse not arbitrary--Leave refused. [Pp. 773, 774 & 775] A, B, C, D & E
Acquitted--
----Order of acquittal should not be reversed--Before order of acquittal is reversed, it must be shown that judgment of the Court was not reasonable or wrong--If two conclusions were equally possible, order of acquittal should not be reversed. [P. 777] F
PLD 1985 SC 11, ref.
Ch. M. Anwar Bhinder, Sr. ASC for Petitioner.
Ch. Amin Javed, ASC for Respondent No. 3.
Mr. Saif-ul-Malook, ASC for Respondents No. 1-2.
Ch. Munir Sadiq, DPG, Pb. for State.
Date of hearing: 24.3.2009.
Judgment
Muhammad Farrukh Mahmud, J.--This petition seeking leave to appeal is directed against the judgment dated 20.06.2005 passed by the learned Federal Shariat Court in case FIR No. 14 registered at Police Station Kamoke on 13.01.2002 for offence under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereby the Criminal Appeals filed by the respondents were allowed and the Criminal Revision seeking enhancement of sentence by the petitioner was dismissed, the judgment dated 05.03.2003 handed down by the learned trial Court whereby the respondents were convicted for offence under Section 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance and each of the respondent was sentenced to 10 years R.I. and fine of Rs. 50, 000/- was set aside.
The law was set in motion through written application (Ex. P.B) by Khalid Javed (PW 2) father of the petitioner-Mst. Saira Bibi. On the basis of the Ex.PB, formal FIR Ex.PB/1 was registered for offence under Section 11 of the Ordinance. According to FIR Mst. Saira Bibi d/o of complainant, aged about 16-17 years was studying in 2nd year in Government College Kamoke. Mst. Shaheen Akhtar wife of complainant (step mother of Mst. Saira Bibi) used to drop Mst. Saira Bibi at College and bring her back after the college hours. On the fateful day on 10.01.2002 wife of the petitioner brought Saira Bibi to college at about 9 a.m. At about 2 p.m. she went back to the college to pick Saira Bibi who was missing. She reported the matter to the complainant who started searching for her. During search, Jamshed Nasir (PW 4), Tanvir and Liaqat informed the complainant that they had seen Mst. Saira Bibi going alongwith Muhammad Asif and Amir respondents on a Motorcycle at about 11 a.m. The complainant alongwith other witnesses contacted Muhammad Asif, respondent and others for return of her daughter, who initially promised to return Mst. Saira Bibi. After waiting for three days, the complainant reported the matter to the police. Muhammad Asif and Amir Masih respondents, who were named in the FIR alongwith Tanvir Masih, faced trial. During trial, prosecution produced 11 witnesses in support of its case. PW 2 Khalid Javed narrated the story given in the FIR. Mst. Saira Bibi appeared as PW 3 and stated about her abduction and commission of rape by the respondents. Jamshed Nasir (PW 4) who is nephew of the complainant stated that he alongwith (Liaqat Ali and Tanvir Ahmad who were not produced) had seen Mst. Saira Bibi in the company of Muhammad Asif and Amir Masih at about 11 a.m. on 10.01.2002, while they were going on a motorcycle. Dr. Nasreen Akhtar appeared as PW 9 and stated that she had examined Saira Bibi on 21.01.2002 at 8.30 p.m. and had conducted her medical examination. She observed freshly healed tear in posterior wall of hymen. She opined that Mst. Saira Bibi was subjected to intercourse. Zafar Ullah (PW 11) stated about the investigation of the case, arrest of the accused and recoveries. The statements of the respondents were recorded under Section 342 Cr.P.C and all of them claimed to be innocent and stated that they were roped in a false case. Tanvir Masih added that he was s/o a preacher and had a good reputation. Muhammad Asif, after denying commission on any offence, added that Mst. Saira Bibi, who was an adult having love affair with Amir Masih, left her house with her free will after her parents taunted her about the affair. Similarly Amir Masih, stated that Saira Bibi used to write love letters to him and also used to send telephonic messages to him and that she was forcing him to change his religion and marry her. On his refusal, he was roped in a false case and that after knowing the affair of Saira Bibi, she was beaten by her parents, thereafter she left her house on her own and went to the house of her co-villager Majeed Qureshi (PW 3) and that subsequently she leveled false allegation against him.
The respondents did not appear as witnesses in their defence under Section 340(2) Cr.P.C. However Amir Masih produced Mst. Asia (DW 1), Abdul Rashid DW-2 and Majeed (DW-3) in his defence. According to Mst. Asia Bibi on 10th she and her husband Rashid Ahmad found Saira Bibi lying on the middle of the road, who told them that no body belonged to her and she be saved, so they brought Saira Bibi to their house where she remained for 2 days and thereafter she went to the house of her cousin-sister who lived at Jandiala Baghwala. (DW 1) however stated that Saira Bibi informed her that she had left her house due to quarrel with her step mother. Abdul Rashid (DW 2) narrated a similar story and added that on 3rd day Saira Bibi informed them about her father's name and his telephone number, thereafter the relatives of Saira Bibi were contacted and Saira Bibi was dropped at the house of her Khala Zad sister at Jandiala Baghwala. Abdul Majeed stated that Rasheed met them on 13th and on the same day he made telephone call to the house of the relatives of Saira Bibi, thereafter she was dropped at the house of her Phoopi at Jandiala Baghwala.
The learned counsel for the petitioner has argued that the statement of Saira Bibi was trustworthy, convincing and was enough for recording conviction of the respondents, and that medical evidence fully supported and corroborated the statement of the victim. The learned counsel further argued that the learned Appellate Court was influenced by the love letters allegedly written by Saira Bibi to Amir Masih despite the fact that the letters were not exhibited and hence could not be read in evidence. According to the learned counsel the statement of Saira Bibi supported by medical evidence was enough to record conviction. The learned counsel lastly argued that the learned Appellate Court did not properly appreciate the prosecution evidence and that the judgment passed by the learned trial Court should be restored.
Conversely, the learned Deputy Prosecutor General has supported the judgment of the appellate Court and pointed out the infirmities in the statement of the victim. According to learned counsel, the prosecution case was replete with doubts and the respondents were rightly acquitted.
The learned counsel for the respondents adopted the line of arguments of learned DPG and added that according to findings of both the learned Courts below, the story of abduction of Saira Bibi was found to be false and hence her statement vis a viz rape could not be used against the respondents without strong and independent corroboratory evidence which was lacking in this case.
We have heard the learned counsel for the parties at length and have examined the circumstances of the case and the evidence led in detail and have endeavoured to form our own opinion as to the facts relevant to the acceptance of that evidence in pursuit of justice.
The whole prosecution case revolves around the statement of Saira Bibi PW 3. In her statement before trial Court she stated that on the fateful day she went to attend the college and was accompanied by her mother, after crossing the road she reached the gate of the college, she came across Amir Masih and Muhammad Asif respondents who invited her to sit on their motorcycle but she refused. She further stated that she made it clear to the accused that she would raise hue and cry if she was forced to sit with them and that Muhammad Asif who was holding a pistol threatened her with dire consequences and hence she sat on the motorcycle. She did not deny that her mother was not accompanying her. It is mentioned in FIR that as per routine, wife of the complainant used to drop Saira Bibi at college and then collect her after the college hours. It is also mentioned in the FIR that on the fateful day, her stepmother, at bout 9 a.m. dropped her inside the college. Mst. Shaheen Akhtar mother of the victim, was not produce during trial. However it was she, who reported the matter to her husband, father of the victim. It is not mentioned in the FIR that either Amir Masih or Muhammad Asif was present at the gate of the college. Even otherwise a mother would ensure that her daughter safely enters in the college to ensure her safety. In case respondents Amir Masih and Muhammad Asif would have been standing at the gate, then Mst. Shaheen Akhter must have noticed it and taken necessary steps ensuring the safety of Saira Bibi. According to Saira Bibi after her abduction she was taken to Lady Park, where she was threatened not to raise any alarm. During cross-examination she stated that she remained in the park for about 45 minutes and was confronted with her statement recorded by police wherein it was stated that she alongwith accused remained in the park for about 2-3 hours. At the time of occurrence Amir Masih was aged 18 years, Tanvir was aged 20 years and Muhammad Asif was aged about 26 years. There is nothing on record that they were previously involved in criminal case. It was most unlikely that after forcibly abducting Saira Bibi the accused would go into the park and waist time there. In her examination-in-chief she stated that after her abduction, while she and the accused were proceeding to Gujranwala they met with an accident, she got injured, was taken to Kamoke hospital and was not produced before any doctor. Thereafter the accused took her at Gujranwala bus stop and after parking the motorcycle at some unknown place Muhammad Asif and Amir Masih forced her to board a bus thereafter she was taken to Mayo Hospital, Lahore. She was kept in the quarter which belonged to the friend of the accused and Amir Masih and Muhammad Asif committed rape with her. After two days she was brought back to Gujranwala and Amir Masih took her to his friend Tanvir Masih where Tanvir Masih raped her and expelled her out of the house, thereafter she reached Khiali Bypass in a motor rickshaw where she met a man and woman who after listening her story took her to their house and thereafter she was brought to her cousin-sister at Jandiala Baghwala. During cross-examination she made many dishonest improvements in her statement and was duly confronted with her earlier statement recorded under Section 161 Cr.P.C. She could not give any plausible explanation as to why she did not protest and raise alarm at places such like hospitals, parks and bus stop and in the bus. It is also noted that she admitted that she was taken to Tanvir Masih in the house where his family members were also residing. It not plausible that the boy of 20 years would commit rape with an adult girl without her consent in the house where other family members were present. It is not available on record that Tanvir Masih was armed with any weapon. So Saira Bibi could easily defend herself. She admitted that she remained in the house of Mst. Asia and Rashid (DW 2 & 3) for two days and according to her she narrated the whole story to them on the very first day. She also admitted that she remained in the house of her cousin sister Mst. Shama for 15-20 days prior to her recovery by the police. At the same breath she changed her statement by stating that she remained in the house of her cousin for four days prior to her recovery. The fact remained that till 20th the police was not informed by the complainant about the presence of Saira Bibi in the house of her cousin at Jandiala Baghwala. It is admitted that DW 1 and DW 2 contacted the relatives of Saira Bibi and she spent her time in the house of her cousin till her recovery. The question as to why the appellant and relatives of Saira Bibi kept quite for such a long time. This leads to the conclusion that the parents were angry with Asia over her leaving house and were not prepared to take her back.
Admittedly Saira Bibi was recovered on 20.01.2002 from the house of her cousin situated at Jandiala Baghwala. There is no explanation as to why she was not got examined by doctor on the same day. According to her she spent the night in the house of her Mamo Arshad and then went to the police station on the next morning i.e. 21.01.2002 and remained there till 10 a.m. It may be noted here that according to PW 9 and PW 11 medical examination was conducted at THQ Hospital Kamoke while according to Saira Bibi she was taken to Gujranwala for her medical examination on 21.01.2002 but her medical examination was not conducted and she again went to the house of her Mamo and spent the night there and went to the police station early in the morning on 22.01.2002. This is major contradiction and could not be easily ignored. It is also noteworthy that according to doctor the age of the tear on the hymen was about one week, that would came to 14.1.2002 and would not support the prosecution case viz a viz the dates of commission of rape. Saira Bibi in her examination in chief stated that firstly she was taken to Wazirabad hospital and then to Kamoke hospital while during cross examination she did not mention Wazirabad at all and rather denied that her medical examination was conducted. Cross examination is continuing part of the whole statement, rather more important than the examination in chief. The statement of Saira Bibi is inconsistent, and replete with contradictions. In the first half she has been disbelieved by both the learned Courts qua her allegation of abduction and no appeal was filed against the acquittal of the respondents from the charge of abduction. The statement of Saira Bibi stands disbelieved qua abduction that has caused a serious dent in veracity of her statement. The second half of her story, relates to her rape can only be believed in the presence of strong corroborating evidence. As far as medical evidence is concerned, it reveals about sexual intercourse and does not lead to the person who did it especially in the absence of any DNA test or any grouping test of semen.
The learned appellate Court has rightly rejected the statement of Jamshed Nasir (PW 4) who was nephew of the complainant, as rest of the PWs who had seen Saira Bibi alongwith accused were not produced. According to him he had seen Saira Bibi and the accused at 11 a.m. yet he did not inform the complainant till evening. In case he had seen Saira Bibi alongwith the accused he would have reported the matter to the complainant immediately and would not wait till evening.
Admittedly Mst. Saira Bibi was recovered from the house of her cousin and not from the house of any of the accused. Similarly DW 1 and 2 met Saira Bibi when she was alone and none of the accused was present there. Muhammad Asif and Amir Masih respondent/accused were arrested on 18.01.2002, they remained with the police but neither any pistol nor motorcycle was recovered from their possession or at their instance. On the contrary the motorcycle was produced before the police by one Ehsan Ullah on 25.01.2002 who is neither an accused nor a witness in the case.
The learned Appellate Court considered each and every aspect of the case in its true perspective and found that statement of Saira Bibi was not confident inspiring. In the above noted circumstances, we cannot but agree with the findings of the learned Appellate Court. It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed. We would like to reproduce the relevant portion of the judgment of this Court in the case of Ghulam Sikandar vs. Mamraz Khan PLD 1985 SC 11 on the same, wherein it was observed as under: --
"However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases law on the question of setting aside an acquittal by this Court. They are as follows: --
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(1) PLD 1980 SC 317 (2) PLD 1981 SC 286
(3) 1981 SCMR 95 (4) 1981 SCMR 415
(5) 1981 SCMR 474 (6) PLD 1951 FC 107
(7) PLD 1960 SC 286 (8) PLD 1964 SC 422
(9) PLD 1966 SC 424 (10) PLD 1969 SC 293
(11) PLD 1973 SC 469 (12) PLD 1975 SC 227
(13) PLD 1976 SC 234 (14) PLD 1977 SC 4
(15) PLD 1977 SC 529
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reach by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
Similar views were expressed in a later judgment of this Court in the case of Muhammad Iqbal vs Rana Sana Ullah (PLD 1997 SC 569).
The upshot of the whole discussion is that the solitary statement of the Asia Bibi being inconsistent was not confidence inspiring and hence not worthy of credence. The statement of Saira Bibi was also not corroborated by any independent, reliable incriminatory evidence. The findings recorded by learned Appellate Court while acquitting the respondents were neither perverse nor arbitrary. Hence we are not inclined to interfere with the impugned judgment. These were the reasons behind our short order dated 24.03.2009 whereby the petition was dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 777
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
M/s. INTENSIVE AGRICULTURAL PRODUCTION PROJECT
CO-OPERATIVE SOCIETY, LTD., ISLAMABAD through
its General Secretary--Petitioner
versus
CAPITAL DEVELOPMENT AUTHORITY through its Chairman & another--Respondents
Civil Petition No. 124 of 2009, decided on 5.3.2009.
(On appeal from the judgment dated 26.1.2009 of the Islamabad High Court, Islamabad passed in W.P. No. 1483/2008)
Constitution of Pakistan, 1973--
----Art. 185(3)--Appellate jurisdiction--Allotment of plot--Cancellation of--Restoration of plots, which remained undecided--Challenge to--There was no dispute between the parties till payment of seventh installments but when petitioner deposited outstanding amount the same were returned and plots were cancelled--Respondent had failed to show that why the installment was returned after lapse of about 9 months and whether any notice before cancelling the plots were served upon him--Act of respondent was based on malafide intention, arbitrarily and against the principles of natural justice--Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price--Petitioner had paid almost all the premium and the dispute was only with regard to payment of delayed charges and petitioner frankly conceded that petitioner was ready to clear outstanding due against him--Leave accepted. [P. 780] A
Mr. Shoaib Shaheen, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Mr. Abdul Karim Kundi, Sr. ASC and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 5.3.2009.
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is filed against judgment dated 26.1.2009 passed by learned Islamabad High Court, Islamabad whereby Writ Petition No. 1483 of 2008 filed by petitioner was dismissed.
"The case was discussed in detail and the Board observed that the allotee remained defaulter from 1985 till the cancellation of the plots i.e. 25.2.1998. Hence, at this belated stage consideration of restoration of plots on payment of all the charges will open a Pandora box and it will create problem to the Authority. To consider all the aspect of the case by the Board, it was decided that all the three plots be disposed of through open auction. The possession of plots is with CDA."
On establishment of Islamabad High Court, Islamabad the case was transferred there and came up for hearing on 17.3.2008 whereby the writ petition was disposed of with a direction to respondents to consider the case of the petitioner for restoration of cancelled allotment in the next meeting. In pursuance to the direction of the learned High Court, the Board considered the case of the petitioner but did not accede the request of petitioner. Feeling still not satisfied petitioner filed another Writ Petition No. 1483 of 2008 which was dismissed vide impugned judgment as stated above.
It is vehemently contended by learned counsel for the petitioner that learned High Court has not appreciated the facts of the case of petitioner in its true perspective which resulted in miscarriage of justice. According to him, no notice was issued before canceling the plots allotted to the petitioner. He contended that act of the respondents/department being discriminative in nature and against the principle of natural justice is not warranted by law. He further contended that last installment deposited by petitioner was returned after a lapse of more than nine months without any justification. He, however, conceded that petitioner is ready to deposit all outstanding amount.
On the other hand, learned counsel for the respondents controverted above contentions and contended that writ petition before learned High Court is not maintainable as petitioner has failed to avail remedy available to him under the law. He further contended that petitioner vide letter dated 4.5.1995 was informed to remit Rs.228,375/72 within 15 days failing which the plot will be withdrawn/cancelled without further notice. He contended that petitioner has failed to deposit the outstanding does and delayed charges within the stipulated period, as such plots were rightly cancelled. He further contended that in pursuance to the direction of learned High Court the case was placed before CDA Board, which did not accede the request of petitioner for the following reasons:--
(a) The allotee failed to pay the premium in time.
(d) The plots were not developed as per terms and conditions conveyed at the time of allotment.
(c) The plots were allotted for a specific purpose of vegetable and Fruit Farms and for the establishment of Green House, but he failed to develop these plot.
In rebuttal learned counsel for the petitioner contended that according to the terms of the lease agreement all the dues of the CDA in respect of agreement including arrears of rent and interest on the amount due were recoverable by the Authority through the Collector as arrears of land revenue as empowered by the provisions contained in Section 49-A of the CDA Ordinance if the allottees failed to make payment of such dues within the specified period.
We have considered the contentions raised at the bar and have gone through the record and proceedings of the case in minute particulars. It is pertinent to mention here that there was no dispute between the parties till payment of seventh installment which was accepted without any objection. The respondents vide letter dated 1st February 1997 asked petitioner to deposit outstanding amount of Rs.253,599/99 but when petitioner on 27.6.1997 deposited Rs. 91,325/- the same were returned being barred by time and the plots were cancelled. When confronted learned counsel for the respondents has failed to show that why the installment was returned after lapse of about nine months and whether any notice before canceling the plots were served upon him. It seems that this act of the respondents is based on mala fide intention, arbitrarily and against the principles of natural justice. Moreover, the respondents were aware of the improvement made by the petitioner and due to escalation of prices cancelled the plots for selling it at a higher price. The perusal of record reveals that petitioner had paid almost all the premium and the dispute is only with regard to payment of delayed charges and learned counsel for the petitioner frankly conceded that petitioner is ready to clear all outstanding due against him.
The upshot of above discussion is that this petition is converted into appeal and is allowed. The impugned judgment as well as the letter canceling the plots are set aside. The plots stand restored in favour of appellant, who is directed to deposit outstanding dues including 8th installment within three days. Compliance report be submitted with the Registrar of this Court.
(N.I.) Petition allowed.
PLJ 2009 SC 781
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf &
Muhammad Farrukh Mahmud, JJ.
MUHAMMAD FARID KHATTAK & others--Appellants
versus
CHIEF SECRETARY, GOVT. OF NWFP & others--Respondents
Civil Appeals No. 650 to 652 of 2000, decided on 29.8.2008.
(On appeal from the judgment dated 6.1.2000 in Appeal No. 13/96, 14/96 & 15/96 passed by the NWFP Service Tribunal, Peshawar)
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil servant--Qualification for the post of Medical Technologists--Appointment to post graduate medical centre--Challenge to--Leave to appeal--Qualification for the post of Refractionist was comparatively lower than the qualification for the post of Medical Technologist in clinical group--Validity--It was against law to allow lower pay scale to the incumbents of the post of having higher qualifications and greater responsibilities than the incumbents of the post for which lower qualification were prescribed but higher pay scale was allowed--It is for the Govt. to the place a particular post in any grade or prescribed certain terms and conditions therefore, as per its policy, and incumbents of a particular post could not claim as of right for settlement of prescription or provision of certain terms and conditions according to his own choice--Held: No body has a vested right in policy decision of the Govt. and therefore, the Service Tribunal too is divested of the power to indirectly set aside the public policy decision in exercise of its power under the Service Tribunal Act, 1973 and rules framed therein--A particular status cannot be legally bestowed upon a civil servant with retrospective effect, even by the competent authority as he cannot be legally made what he had never been--It was the prerogative of the Govt. to determine terms and conditions of service of particular post which could not be challenged--Appeal dismissed.
[Pp. 784 & 785] A, B, C, D & E
Syed Asif Shah, ASC for Appellants (in all appeals)
Mr. M. Bilal, Sr. ASC for A.G. NWFP.
Date of hearing: 29.8.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals by way of leave are directed against a common judgment dated 6.1.2000 passed by the NWFP Service Tribunal, Peshawar, whereby three Appeals No. 13, 14 and 15 of 1996, separately filed by the appellants, were dismissed.
The relevant facts, briefly stated, are that the appellants were deputed by the Khyber Medical College through the Vice Chancellor, University of Peshawar, to Jinnah Post Graduate Medical Centre, Karachi, in 1974 for doing B.Sc in Medical Technology. They did their B.Sc in Medical technology, in clinical group, whereas two persons, namely, Khushdil Khan and Abdul Shakoor did their B.Sc in Medical Technology, in Radiology group. On successful completion of training they were appointed against the existing post in BPS-16 in the Pathology Department, Khyber Teaching Hospital, Peshawar, while the other two, namely, Khushdil Khan and Abdul Shakoor, were appointed in Radiology group of the same hospital in BPS-16 on ad-hoc basis. The post of Chief Radiographer/Chief X-ray Technician in BPS-17 was advertised through the Public Service Commission and Mr. Khushdil Khan, B.Sc Medical Technology, was selected/appointed against the said post. The posts of Medical Technologist existing in the Pathology Department were advertised through the public Service Commission against which the appellants and Muhammad Anwar were selected and appointed against these posts in BPS.16. The prescribed qualification for the post of Medical Technologists (Clinical Group) was B.Sc Medical Technology from any recognized University whereas the prescribed Qualification for the post of Chief Radiographer/Chief X-ray Technician was Diploma in Radiography through organized training of not less than two years in a recognized institute. It was the case of the appellants that the prescribed qualification for the post of Chief Radiographer/Chief X-ray Technician and those prescribed for the post of Assistant Physiotherapist were definitely lower than the qualification prescribed for the post of Medical Technologist (clinical group), but despite that 20 posts were placed in higher pay scale BPS-17 from the date of creation.
It is the case of the appellants that in the case of Refractionist the prescribed qualification was simple B.Sc with optics with one of the subject as compared with B.Sc Medical Technology which was a professional degree. Thus the qualification for the post of Refractionist was comparatively lower than the qualification for the post of Medical Technologist in clinical group but it carried a higher pay scale BPS-17 while BPS-16 was allowed to Medical Technologist. It is further case of the appellants that in order to get resolve the controversy a representation was made as far back as in 1983 and it was supported by Respondents No. 2 and 3, as a result whereof the matter was placed before the anomaly committee in the finance department which after thorough examination recommended upgradation of the post of Medical Technologist from BPS-16 to BPS-17. Respondent No. 3, while accepting the recommendation of the Anomaly Committee, ordered for upgradation of the said post with immediate effect i.e. 1.1.1994.
It was grievance of the appellants that though the post of Medical Technologist had been upgraded from BPS-16 to BPS-17 with effect from 1.1.1994, yet, since the anomaly arose in the year 1978, and they were deprived of certain benefits, therefore, the posts of Medical Technologists should have been upgraded from the date when the anomaly occurred i.e. in the year 1978.
Learned NWFP Service Tribunal, however, having found that the anomaly having been removed and the post of Medical Technologist having been upgraded though with immediate effect i.e. 1.1.1994 and the appellants having been appointed in BPS-16 thereby accepting the terms and conditions of their appointment at that point of time, there was no justification for allowing BPS-17 to the appellants from 1978.
Syed Asif Shah learned counsel for the appellants has contended that though grievance of the appellants has been partially redressed and the post of Medical Technologist was upgraded by the Government of NWFP w.e.f. 1.1.1994, yet, since the anomaly arose on 1.7.1978, the appellants had made representation in the year 1983, and on 29.3.1983 when the Government of Punjab, vide Notification No.FD/PC/30-2, dated 29.3.1983, also allowed BPS-17 to the B.Sc Medical Technologist, therefore the appellants were entitled to financial benefits from the date when the anomaly arose. He has placed reliance on the case reported as The Province of the Punjab v. Kamaluddin (PLD 1983 SC 126).
Mr. M. Bilal, learned Senior ASC, appearing on behalf of the Advocate General, NWFP, on the other hand, while controverting the contentions raised by the learned counsel for the appellants, submitted that the appeal before the Service Tribunal was incompetent as grant of relief claimed by the appellants was beyond the jurisdiction of the Tribunal, inasmuch as the Provincial Government under Section 26(1) of the NWFP Civil Servants Act, 1973, was the sole authority to frame financial rules and no exception could have been taken therefrom. He has added that it was the prerogative of the Government to prescribe or fix the terms and conditions of a particular post which could not have been challenged before the Service Tribunal being outside the ambit and scope of aforementioned rule.
We have thoroughly considered the contentions raised by the learned counsel for the parties and have also gone through the relevant record with their assistance, carefully.
In the instant case leave to appeal was granted by this Court in the following terms :--
"The learned counsel appearing for the petitioners submitted that Secretary to Government of NWFP Health Department Respondent No. 2 and Secretary, Finance Department Respondent No. 3 had supported the claim of the petitioners for upgradation of the post. Correspondence in this matter contained right from 1983 and, therefore, in the circumstances, the petitioners were entitled to upgradation from the date they were inducted in the service as has been done in the case of other employees of Health Department although they had much lesser qualification than the petitioners. It was further pointed out that the tenor of the impugned order discloses that it was apparently in favour of the petitioners but in the end without assigning any valid reason their appeals were dismissed. In this context PLD 1983 SC 128 was referred to support his view point."
Precisely grievance of the appellants before the Service Tribunal was that it was against law to allow lower pay scales to the incumbents of the post of having higher qualifications and greater responsibilities than the incumbents of the post for which lower qualifications were prescribed but higher pay scale was allowed. However, the fact remains that neither the notification in question whereby, according to the appellants, the anomaly was removed and the post of Medical Technologist was upgraded with effect from 1.1.1994, was challenged, nor the date of its application was disputed. It is also an admitted fact that the appellants had accepted the terms and conditions of their service in BPS-16 at the time of their induction and the other post against which the appellants lay their claim, at the time of their joining service, was in BPS-17 and it was open for them to compete against any one of the said posts, but they opted to join as Medical Technologist. It would be pertinent to mention here that it is for the Government to place a particular post in any grade or prescribe certain terms and conditions therefor, as per its policy, and incumbents of a particular post cannot claim as of right for settlement of prescription or provision of certain terms and conditions according to his own choice. It is always open for a candidate to accept or not the terms and conditions prescribed for a particular post. It is well settled that no body has a vested right in policy decision of the Government and therefore, the Service Tribunal too is divested of the power to indirectly set-aside the public policy decision in exercise of its power under the Service Tribunal Act, 1973 and the rules framed thereunder. No doubt in the case of Province of Punjab v. Kamaluddin and others (PLD 1983 SC 126), cited at the bar by the learned counsel for the appellants, the decision of the Tribunal ordering that Readers to Members of Board of Revenue performing less onerous duties and serving in institution lower in status than High Court, Readers of the High Court, having been placed in NPS-12, were also entitled to be placed in NPS-16, was upheld, but the upgradation order was prospective and it was never laid down that the upgradation would be from a previous date or the notification would have a retrospective effect. Likewise in the case of Ahmad Hussain v. Director of Education (2001 SCMR 955), though it was held by this Court that the petitioners who were appointed as Physical Training Instructors (PTI) in BPS-15 could not have been discriminated and were entitled to upgradation of the post from the date of general upgradation of the posts but the fact remains that the appellants in that case were all teachers and placed in similar situation whereas, in the instant case the facts are other way round.
It may be mentioned here that a particular status cannot be legally bestowed upon a civil servant with retrospective effect, even by the competent authority as he cannot be legally made what he had never been. It may be possible that persons discharging similar duties appointed in different departments may claim that they may be given the same status and benefits but a person, whose nature of duties is altogether different and his terms and conditions are also not alike, cannot claim as of right that he may also be allowed the same benefits and emoluments which are not part of and covered by the terms and conditions of his service. It would be pertinent to mention here that in both the above referred cases i.e. Ahmad Hussain (supra) and Kamaluddin (supra), the nature of duties of the appellants and respondents were alike; in first referred case, they were Readers and were serving as such though in different departments and in the second referred case they were teachers serving in the same department, but in the instant case nature and duties of the Medical Technologists (clinical group) and the Refractionist posts being altogether different and that too, in two different Provincial Governments i.e. Government of Punjab and NWFP, how could the petitioners be treated alike.
As to the contention that since the Punjab Government had placed the post of Medical Technologist in BPS-17 w.e.f. 29.3.1983, therefore the Government of NWFP should have also allowed upgradation of the said post from the said date, it may be pointed out here that it is the prerogative of the Government to determine terms and conditions of service of a particular post which cannot be challenged. In fact the appellants under the garb and clog of financial benefits want upgradation of the post from 1.7.1978 instead of 1.1.1994 which being outside the scope and ambit of the Service Tribunal Act the Tribunal has rightly refused to grant the relief.
Upshot of the above discussion is that these appeals being misconceived are hereby dismissed.
(N.I.) Appeal dismissed.
(N.I.) Appeal dismissed.
PLJ 2009 SC 786
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZON-II, LAHORE--Appellant
versus
M/s. LAHORE CANTT., COOPERATIVE HOUSING SOCIETY LAHORE & others--Respondents
Civil Appeals No. 1477 of 1484 of 2000, decided on 7.11.2008.
(On appeal from the judgment dated 23.5.2000 of the Lahore High Court, Lahore passed in I.T.As. No. 297/99, 303/99, 311/99, 439/1998, 472/99, 501/2000, 511/2000 & 508/2000).
Income Tax Ordinance, 2001 (XLIX of 2001)--
----Ss. 2(16) & 80(2)--Income Tax Ordinance, 1979, S. 2(32)--Co-operative Societies Act, 1925--Scope of--Constitution of Pakistan, 1973, Art. 185(3)--Appellate jurisdiction--Co-operative of company as provided u/S. 2(16) of the Ordinance--Legislature itself, while enacting the latest Income Tax Ordinance of 2001, was conscious of the fact that such societies were not so included in the definition of companies as provided by Section 2(16) of the Ordinance while enacting Income Tax Ordinance of 2001, such co-operative societies were included in the definition of company--U/S. 2(16)(b) of the Income Tax Societies were not included in the definition of company and could not be taxed as claimed by the appellant--Appeal dismissed. [P. 790] A & B
Mr. M. Ilyas Khan, ASC, Mr. M. Bilal, Sr. ASC and Mr. Mumtaz A. Sheikh, Member Legal FBR for Appellant (in all cases).
Raja Abdul Ghafoor, AOR for Appellant (in C.A. No. 1482/2000).
Mr. Zia Haider Rizvi, ASC for Respondent (in C.As. No. 1477-1478/2000).
Kh. Ibrar Majal, ASC for Respondents (in C.As. No. 1479-1480/2000).
Mr. Iqbal Hashmi, ASC and Mr. M.S. Khattak, AOR for Respondents (in C.As. No. 1481-1482 of 2000).
Ex-parte for Respondent in other cases.
Date of hearing: 7.11.2008.
Judgment
Sardar Muhammad Raza Khan, J.--Commissioner of Income Tax/Wealth Tax Companies Zone-III, now Companies Zone-II, Lahore has been granted leave to appeal from the consolidated judgment dated 23.5.2000 of a learned Division Bench of Lahore High Court, whereby, the Income Tax appeals of the appellants were dismissed. The legal as well as factual aspects being common, all the appeals are taken up together.
The respondents are Societies registered under the Cooperative Societies Act, 1925 carrying out development work like construction of roads, sewerages, electrification etcetera through funds raised from the Public on account of development charges. They also performed numerous functions involving income, interests in profit towards the implementation and development of private housing schemes.
The Income Tax Department assigned respondents the status of a "limited company" in terms of Section 2(32) of the Income Tax Ordinance, 1979. Since the assessees failed to deduct tax under Section 50(4) of the Ordinance, those were subjected to tax under Section 52 of the of the Income Tax Ordinance by declaring them as assessees-in-default. Such assessment was upheld by the Commissioner of Income Tax (appeals) vide order dated 7.12.1998. The learned Income Tax Appellate Tribunal in its judgment dated 30.8.1999, held that the respondent societies held the status of `artificial juridical persons'. While setting aside the previous order, the learned Tribunal held that the assessees were not liable to deduct tax under Section 50(4) of the Income Tax Ordinance.
Through the impugned judgment, the learned High Court gave a verdict that the Cooperative Societies are not a Company in terms of Section 2(16)(b) of Income Tax Ordinance and that Societies' income from inertest/profit from Bank deposits was covered by Section 80-B of the Ordinance. Hence the appeals in hand.
In the above context, the Income Tax Department maintains that the respondent Cooperative Societies are liable to be taxed as a "Company" under Section 2(16)(b) of the Ordinance while the Societies claim that they do not fall within the definition of "Company" and are to be taxed in the context of Section 80-B of the Ordinance which provides:
"where any amount referred to in sub-section (2) is received by or accrues or arises or is deemed to accrue or arise to an individual, unregistered firm, association of persons, Hindu undivided family or artificial juridical person referred to in clause (32) of Section 2, the whole of such amount shall be deemed to be income of such person and tax thereon shall be charged at the rates specified in the first schedule".
"Section 2(16) "Company" means--
(a) company as defined in the Companies Ordinance, 1984 (XLVII of 1984) ; or
(b) a body corporate formed by or under any law for the time being in force; or
(bb) a trust formed by or under any law for the time being in force; or
(c) a body corporate incorporated by or under the law of a country outside Pakistan relating to incorporation of companies; or
(cc) a modaraba as defined in the Modaraba Companies and Modarabas (Flotation and Control) Ordinance, 1980 (XXXI of 1980);
(d) the Government of Province;
(e) A foreign association, whether incorporated or not, which the Central Board of Revenue may, by general or special order, declare to be company for the purpose of this Ordinance for such assessment year or years (whether commencing before, on or after the first day of July, 1979) as may be specified in the said order".
"(b) a body corporate formed by or under any law for the time being in force".
We have now to find out the difference between a body corporate "formed by" or "under" any law for the time being in force and those required to be registered only, under any law.
The learned Division Bench of the High Court in its elaborate judgment has consulted Blacks Law Dictionary, 6th Edition, New Lexicon Webster's Dictionary, Words and Phrases Permanent Edition, Stroud's Judicial Dictionary, 5th Edition in order to scan the real connotation of the words "formed by" and "under", as used in clause (b) above. The word "formed by" means; to make, shape, to put together, to mould, to develop, to conceive or to constitute. Thus, we are clear in our mind while agreeing with the learned High Court, that clause (b) of the Ordinance brings into its ambit only those body corporates which are created by some law for the time being in force. Such are only those societies which are directly established, constituted and created by the relevant statue itself. While, on the other hand, a body formed by private individuals and subsequently registered under some law would not be a body formed under that law, rather, it would be a body formed otherwise but registered under the law. The formation, creation and Constitution of a body under the law is, therefore, altogether different from a body required merely to be registered under some law.
In order to elaborate, the learned High Court has given certain examples of the Companies constituted under the law. Pakistan Insurance Corporation is a Company established by Act XXXVIII of 1952 and finds its origin in Section 2(b) of the Act providing that Pakistan Insurance Corporation is established by the Act aforesaid. Similar is the example of National Bank of Pakistan which would not have been in existence if sub-section 2(a) of Ordinance XIX of 1949 had not provided "that the Bank means National Bank of Pakistan, constituted by this Ordinance". Pakistan International Airlines Corporation finds its origin and source of creation in Section 2(b) of Act XIX of 1956 according to which "Corporation means the Pakistan International Airlines Corporation established under this Act". Last one is the example of Agricultural Bank established under Agricultural Bank Act of 1957. If one follows the dictionary meaning of "formed by" and "under" and the aforementioned examples, one comes to an unescapable conclusion that the respondent-societies are not the creation of any law but whatever be their mode of creation, they are required to be registered with the Registrar of Cooperative Societies under the Cooperative Societies Act. We, therefore, have no two opinions that the respondent-societies are not covered by the definition of Company as provided in Section 2(16)(b) of the Ordinance.
Coming to the intention of legislature as to whether the Cooperative Societies like respondents, were intended to be included into the definition of Company under Section 2(16) of the Ordinance. We would observe emphatically that the respondent-societies were not so included. We are also positive that the legislature itself, while enacting the latest Income Tax Ordinance of 2001, was conscious of the fact that such Societies are not so included in the definition of Companies as provided by Section 2 (16) of the Ordinance. While enacting Income Tax Ordinance of 2001, such Cooperative Societies were included in the definition of Company. Section 80 (2)(v) of the Income Tax Ordinance of 2001 reads as under--
"a trust, a cooperative society or a finance society[or any other society established or constituted by or under any law for the time being in force;]
This subsequent inclusion of Cooperative Societies by positive act of legislation is a conclusive proof of the fact that the same were excluded in the earlier enactment.
(N.I.) Appeal dismissed.
PLJ 2009 SC 790
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Muhammad Moosa K. Leghari, JJ.
ALLAH BACHAYO and others--Petitioners
versus
STATE--Respondent
Crl. Petition No. 70-K of 2008, decided on 26.1.2009.
(On appeal from the order dated 8.9.2008 of the High Court of Sindh, Karachi passed in Cr. Bail Application No. S-407 of 2008).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 147, 148, 149 & 504--Constitution of Pakistan, 1973, Art. 185(3)--Bail before arrest, refusal of--Prima facie--Fire-arm injuries on vital parts of body--Concession of anticipatory bail--Bail before arrest was dismissed by High Court--Challenge to--Principles governing the concession of anticipatory bail are quite different from those which are attracted to case of post arrest bail--Supreme Court being Constitutional Court is not expected to interfere with the bail matter if properly dealt with by High Court--Accused had not been able to make out a case for grant of pre-arrest bail--Discretion exercised by High Court does not suffer from any legal infirmity so as to warrant interference by Supreme Court--Leave refused. [P. 792] A & B
PLD 1977 SC 642, ref.
Mr. Muhammad Ilyas Khan, ASC and Mr. A.S.K. Ghori, AOR for Petitioners.
Mr. Shahadat Awan, P.G. (Sindh) for State.
Mr. Mehmood A. Qureshi, ASC and Mr. Suleman Habibullah, AOR for Complainant.
Date of hearing: 26.1.2009.
Judgment
Faqir Muhammad Khokhar, J.--The petitioners and others have been charged by the trial Court under Sections 302, 324, 147, 148, 149 and 504 PPC in case FIR No. 15 of 2008, registered in P.S. Matiyari District Matyari. The complainant Muhammad Jumman alleged in the FIR that both the petitioners and four others named in the FIR carrying the fire-arms trespassed into his house and caused fire-arm injuries on the person of his sister-in-law Mst. Basra deceased and his sister Mst. Asma on their vital parts. Consequently, Mst. Basra succumbed to the injuries whereas Mst. Asma remained in the hospital for a considerable period of time. The pre-arrest bail Application No. 407 of 2008 of the petitioners was refused by the High Court of Sindh, Karachi, vide impugned order dated 08.09.2008 passed in Criminal Bail Application No. 407 of 2008. Hence this petition for leave to appeal.
The learned counsel argued that during the course of the investigation of the case, co-accused Muhammad Yousaf had made a confessional statement under Section 164 Cr.P.C. stating that it was only he and one Urs, who were responsible for causing fire-arm injuries on the person of the deceased and PW-Mst. Asma. Therefore, the possibility of false involvement of the petitioners and other co-accused could not be ruled out. It was further argued that the statements of eye-witnesses of occurrence were recorded by the Police with inordinate and explicable delay which would cast a serious doubt upon the veracity of the prosecution version. The case required further inquiry, which entitled the petitioners to the benefit of grant of pre-arrest bail. Reliance was placed on the case of Gul Naseeb v. State (SBLR 2008 SC 137).
On the other hand, the learned Prosecutor General, Sindh, as well as the learned counsel for the complainant supported the impugned order of the High Court. They submitted that the inmates of the house were the natural witnesses of the occurrence, including injured PW-Mst. Asma, who had fully supported the prosecution case and that the charge had also been framed against the petitioners and others. There were reasonable grounds to believe that the petitioners were guilty of offence involving capital sentence. Reference was made to the case of Ghulam Nabi v. The State (1996 SCMR 1023).
We have heard the learned counsel for the parties as well as the learned Prosecutor General Sindh and have also gone through the available record with their able assistance. Prima facie, there is material to indicate that the petitioners and others had gone to the house of the complainant party. As a result of the assault of the accused by use of fire-arms, one Mst. Basra lost her life whereas F.W Mst. Asma also received fire-arm injuries on vital parts of her body and she luckily survived. The injured PW Asma supported the prosecution case thereby involving the petitioners with the commission of offence. The principles governing the concession of anticipatory bail are quite different from those which are attracted to a case of post-arrest bail. Ordinarily, this Court being constitutional Court is not expected to interfere with the bail matters, if properly dealt with by the High Court. Reference may useflly be made to the case Sultan Khan versus Amir Khan (PLD 1977 SC 642). The petitioners have not been able to make out a case for grant of pre-arrest bail. The discretion exercised by the High Court does not suffer from any legal infirmity so as to warrant interference by this Court.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.
(R.A.) Leave refused.
PLJ 2009 SC 792
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Nasir-ul-Mulk & Sheikh Hakim Ali, JJ.
Mst. BIVI wife of Muhammad Yousuf--Appellant
versus
GHULAM MURTAZA and others--Respondents
Civil Appeal No. 2724 of 2001, decided on 26.11.2008.
(On appeal from the order/judgment dated 30.5.2001 passed by Lahore High Court, Lahore in Civil Revision No. 222-D of 1991).
Punjab Preemption Act, 1913 (I of 1913)--
----S. 34(2) & Scope--Intention of legislature is explicit--Suit for possession on basis of superior right of pre-emption--Question, whether the decree admittedly passed on 31.7.1986 by Civil Judge in favour of appellants--Pre-emptors, was saved from the clutches of the judgment reported as PLD 1986 SC 360 and had fallen within the ambit of provision of Section 34 of Punjab Pre-emption Act, 1991 by which the judgment and decrees passed before the 1st day of August 1986 were saved and repeal of the Punjab Pre-emption Act, 1913 had no repercussion upon those judgments and decrees for the purpose of all the ensuring proceedings, emanating from those decrees passed before the aforementioned target date?--Validity--Intention of the legislature is explicit, according to which judgments and decrees, passed before 1st August 1986, were saved--Judgments and decrees passed on 31st July 1986 were saved and these judgments and decrees were to be governed by the provisions of the Act of 1913 for further proceedings--The words "till and " " are of vital importance which connotes that date of 31.7.1986 was inclusive in the saving process for the judgments and decrees passed in favour of plaintiff--Pre-emptors, and these were preserved from the effect of repeal and were directed to be governed by the provision of the Act of 1913--From 1.8.1986 (this date is inclusive for in effectiveness), any judgment and decree passed under the old law of the Act of 1913 could not be considered to have been saved due to the Section 34(2) of the Act of 1991--Case was remanded. [Pp. 795 & 796] A & B
Mr. Samad Mahmood, ASC for Appellant.
Mr. Gul Zarin Kiyani, Sr. ASC and Mr. Abdul Rashid Awan, ASC for Respondents.
Date of hearing: 26.11.2008.
Judgment
Sheikh Hakim Ali, J.--This Civil Appeal calls in question, the judgment dated 30.5.2001, rendered by a learned Single Judge in Chamber of the Lahore High Court, Lahore, in Civil Revision No. 222-D of 1991 (Mst. Bivi v. Ghulam Murtaza and others) by which civil revision was dismissed.
The case has got chequered history of long drawn litigation between Mst. Bivi v. Ghulam Murtaza and others, with regard to a suit for possession on the basis of superior right of pre-emption, filed by Mst. Bivi, in the Court of learned Civil Judge, Bhalwal, District Sargodha on 30.6.1983 claiming herself to be collateral and legal heir of vendor in respect of the land, measuring 67 Kanals 10 marlas, situated in Mouza Lilliani, Tehsil Bhalwal, District Sargodha sold out through Mutation No. 6053 attested on 6.11.1973, for a consideration of Rs.35,000/- against Ghulam Murtaza and others, the present respondents, who are vendees of the aforesaid suit lands.
Relevant point which requires decision of this Court is, as to whether the decree admittedly passed on 31.7.1986 by learned Civil Judge, Bhalwal, District Sargodha in favour of appellants-pre-emptors, was saved from the clutches of the judgment reported as Government of N.W.F.P. v. Malik Said Kamal Shah (PLD 1986 S.C. 360) and had fallen within the ambit of provision of Section 34 of Punjab Pre-emption Act, 1991 (hereinafter referred to as the "Act of 1991") by which the judgments and decrees passed before the 1st day of August 1986 were saved and repeal of the Punjab Pre-emption Act, 1913. (hereinafter to be called as "Act of 1913") had no repercussion upon those judgments and decrees for the purpose of all the ensuing proceedings, emanating from those decrees passed before the aforementioned target date?
It has been admitted by both the learned counsel of the parties, that according to the report and actuality of facts, the judgment and decree was passed by learned Civil Judge on 31.7.1986 in favour of Mst. Bivi, plaintiff-pre-emptor. Learned High Court has held that Said Kamal Shah (PLD 1986 S.C. 360) had become effective from 31st July 1986 and the Act of 1913 had become wholly unworkable from that date. According to the learned counsel for the appellant, learned Court has misinterpreted the crucial date of ineffectiveness of the provisions of the Act of 1913. Elaborating his arguments, learned counsel submits that, in fact, the Government of the Provinces were directed to enact pre-emption laws in accordance with the Injunctions of Islam uptill 31.7.1986, and in case of failure to enact the pre-emption law as such, the judgment was to take effect thereafter. As the Government of the Punjab Province had not enacted the law till 31.7.1986, therefore, the operative date of ineffectiveness of the Act of 1913, would commence with effect from 1.8.1986 and not from 31st July 1986. This contention of the learned counsel for the appellant has not been forcefully controverted by the learned counsel for the respondents through his arguments.
Before the decision of the target date as to when the Act of 1913 had lost its functioning, we would like to reproduce the relevant part of the order of the Court recorded in the judgment of Said Kamal Shah's case (PLD 1986 S.C. 360 at page 476) which reads as follows:--
".......On merits, following the majority point of view, Appeals Nos.4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre-emption be enacted accordingly till 31.7.1986. There shall be no order as to costs." (underlining is ours)
"34. Repeal of Act I of 1913.--(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof.
From sub-section (2) of Section 34 of the Act of 1991, the intention of the legislature is explicit, according to which judgments and decrees, passed before 1st August 1986, were saved. In other words, judgments and decrees passed on 31st July 1986 were saved and these judgments and decrees were to be governed by the provisions of the Act of 1913 for further proceeding. This position was also clarified by this Court in Suo Motu Shariat Review Petition No. 1-R of 1989 by the Shariat Appellate Bench vide judgment reported in PLD 1990 S.C. 865. Relevant last Para 4 of order of the Court is of vital importance which is repeated as under:--
From the above noted judgments and the provision of the law, the words "till" and " " are of vital importance which connotes that date of 31.7.1986 was inclusive in the saving process for the judgments and decrees passed in favour of plaintiff-pre-emptor, and these were preserved from the effect of repeal and were directed to be governed by the provision of the Act of 1913. From 1.8.1986 (this date is inclusive for ineffectiveness), any judgment and decree passed under the old law of the Act of 1913 could not be considered to have been saved due to the provision of above mentioned Section 34(2) of the Act of 1991.
Accordingly, the appeal is accepted and the case is remanded to the learned District Judge, Sargodha, for decision of appeal (RFA No. 354 of 1988 Ghulam Murtaza and others v. Mst. Bivi) on merits, in accordance with the provisions of the Act of 1913. Learned District Judge may hear the appeal himself or may entrust it to any other learned Additional District Judge. However, we expect that the learned appellate Court shall try its best to dispose of the aforementioned appeal within shortest possible time as the case has already consumed much period to reach to its final decision.
(M.S.A.) Case remanded.
PLJ 2009 SC 796
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
ABDUL AZIZ MEMON & others--Appellants
versus
STATE--Respondent
Cr. M.A. No. 171 & 172 of 2008 & Crl. Appeal No. 140 & 141 of 2005, decided on 14.5.2008.
(On appeal from the judgment dated 6.11.2002 of the High Court of Sindh, Karachi in Cr. Acc. Appeals No. 58 & 59 of 2002).
National Reconciliation Ordinance, 2007--
----S. 7 r.w. 33-F--Proceedings initiated against public office holders before 12th October 1999 shall be withdrawn--Provisions of Section 7 of the NRO stipulates that under Section 33-F of the Ordinance, the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance--Appeals allowed.
[P. 799] A & B
Mr. Khalid Anwar, Sr. ASC for Appellants.
Malik Muhammad Qayyum, Attorney General for Pakistan and Dr. M. Asghar Rana, ADPG NAB for Respondent.
Date of hearing: 14.5.2008.
Order
Abdul Hameed Dogar, CJ.---These criminal appeals with leave to this Court are directed against judgment dated 6.11.2002 passed by learned Division Bench of High Court of Sindh, Karachi whereby Criminal Accountability Appeals No. 58 and 59 filed by appellants were dismissed.
Briefly stated facts of the case are that appellant Abdul Aziz Memon was an active member of the United Bank Employees Union and the UBL Employees Federation. However, he resigned from the service of bank which was accepted on 15.4.1993 with retrospective effect from 16.9.1989. Thereafter, he contested General Election in the year 1993 and was elected as a Member of the National Assembly from NA-190 from 1993 to 1996. On 20.6.1998 the bank filed a complaint before Chairman, Ehtesab Commission under Section 15 of the Ehtesab Act, 1997 against appellant Abdul Aziz Memon alleging that he acquired properties/wealth disproportionate to his legal sources of income. On which an investigation was initiated on 13.7.1998 and the machinery of law was put in action. Later, on promulgation of the National Accountability Ordinance, 1999 the enquiry was transferred/taken over by the NAB authorities and Reference No. 44 of 2001 was filed against appellants before learned Accountability Court No. 3 under Section 18(a) of the National Accountability Ordinance, 1999 (hereinafter referred to as `the Ordinance'). It was alleged in the reference that during the service as during the period remained parliamentarian, appellant Abdul Aziz Memon accumulated wealth and acquired properties illegally and through deceitful means, which are disproportionate to his known sources of income. It was alleged against appellant Mrs. Farida Abdul Aziz that she in collusion, abetment and criminal conspiracy acquired moveable/immoveable properties which were disproportionate to her knowlegal sources of income but actually the same are the pecuniary I advantages obtained by appellant Abdul Aziz Memon. On the conclusion of trial, the learned Accountability Court vide judgment dated 28.6.2002, convicted both the appellants under Section 9(a)(v) of the Ordinance and sentenced them to suffer R.I. for seven years with fine of Rs. 10,00,000/-(Rupees ten lacs only) each or in default whereof to farther undergo two years R.I. and the following properties were forfeited to the Government of Pakistan--
Two plots at Hawksbay Town, Karachi
Plot at KDA Scheme No. 1-A Ext. Karachi.
House No. 15/1, Khayaban-e-Shamsher, Phase-V Ext. DHA Karachi
Feeling aggrieved, appellants filed Criminal Accountability Appeals No. 58 & 59 of 2002 before learned High Court of Sindh, Karachi which were dismissed vide impugned judgment. This judgment was assailed before this Court through Criminal Petitions No. 139-K and 140-K of 2002 in which leave to appeal was granted by this Court on 06.6.2005.
"Withdrawal and termination of prolonged pending proceedings initiated prior to 12.10.1999 (1). Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court including a High Court and the Supreme Court of Pakistan initiated by or on a Reference by the National Accountability Bureau inside and outside Pakistan including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public officer shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date."
It is vehemently contended by learned counsel for the appellants that proceedings in this case were initiated on 20.6.1998 on the basis of a complaint filed by United Bank Limited, prior to the cut off date as given in Section 7 of the NRO, as such the case of appellant is fully covered under the same. He further contended that the appeals pending before this Court stand withdrawn and terminated, hence the same cannot continue further.
On the other hand learned Attorney General for Pakistan and learned ADPG NAB frankly conceded that Section 7 of the NRO is applicable in the instant case as inquiry/investigation was conducted prior to the cut off date i.e. 12th October, 1999 as such the case against appellants may be withdrawn.
We have considered the arguments of both sides and also gone through the relevant provisions of law with their assistance. It is clear that under Section 7 of the NRO, the proceedings initiated against public office holders before 12th October 1999 shall be withdrawn. The perusal of record of the case in hand reveal that inquiry against appellant Abdul Aziz Memon was filed on 20.6.1998 on the complaint filed by United Bank Limited to Chairman, Ehtesab Commission under Section 15 of the Ehtesab Act, 1997 which culminated in filing of Reference No. 44 of 2001. The provisions of Section 7 of the NRO stipulates that under Section 33-F of the Ordinance the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance.
In view of above discussion Cr.M.As No. 171 & 172 of 2008 are allowed. Consequently, Criminal Appeals No. 140 and 141 of 2005 are allowed. Impugned order dated 6.11.2002 passed by learned Division Bench of High Court of Sindh, Karachi is set aside. Accordingly, Appellants Abdul Aziz Memon and Mst. Farida Abdul Aziz Memon are acquitted from the charges under Section 7 of the NRO.
These are the reasons of our short order of even date which reads as under:--
"For the reasons to be recorded later, Criminal Misc. Applications No. 171 & 172 of 2008 filed by the appellants Abdul Aziz Memon and Fida Aziz Memon, seeking their acquittal under Section 7 of the National Reconciliation Ordinance, 2007 are allowed.
Consequently, Criminal Appeals No. 140 & 141 of 2002 are also allowed."
(M.S.A.) Appeal allowed.
PLJ 2009 SC 800
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Zia Perwez, JJ.
QAISER JAVED MALIK--Petitioner
versus
PERVAIZ HAMEED and 2 others--Respondents
Civil Petition No. 1872 of 2008, decided on 10.2.2009.
(On appeal from the judgment dated 25.11.2008 of the Islamabad High Court, Islamabad passed in Writ Petition No. 3233 of 2004).
Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----S. 6--Constitution of Pakistan, 1973, Art. 185(3)--Tenant loosed right to continue to occupy the premises after expiry of term--Eviction petition--Application for eviction allowed by the Rent Controller on the ground of expiry of period of tenancy--Maintained by the appellate Court and High Court in constitutional jurisdiction--Leave to appeal--Held: Tenancy ceases have any legal force or strength on expiry of the time fixed by the agreement--Expiry of any permission or licence, this being so the tenant looses the right to continue to occupy or to hold over the premises after expiry of the term fixed by the parties--Tenancy ceases to be valid and the fact of expiry of the period agreed between the parties as the tenure of tenancy would suffice to order the ejectment of the tenant by the rent controller.
[P. 803] A & B
Interpretation of Statutes--
----Courts should adopt an interpretation, which may give meanings of each word of an enactment taking into consideration the spirit of such legislation. [P. 804] C
PLD 1997 SC 32, PLD 2000 SC 225, PLD 2004 SC 219, 2004 SCMR 456 & PLD 2005 SC 530, ref.
Mr. Muhammad Ishtiaq Ahmed Raja, ASC and Ch. Muhammad Akram, AOR for Petitioner.
Mr. Abdul Rashid Awan, ASC and Mr. Arshad Ali Ch. AOR for Respondents.
Date of hearing: 10.2.2009.
Judgment
Zia Perwez, J.--The petitioner seeks leave to appeal against the judgment dated 17.11.2008, whereby Writ Petition No. 3233/2004 was dismissed by the learned Single Judge in Chambers of the Islamabad High Court, Islamabad.
The petitioner is tenant of Shop No. 3-B Block No. 12-C, Jinnah Super Market, Markaz F-7, Islamabad, hereinafter referred to as the "demised shop", under an agreement dated 1.9.2002 for a period of 11 months commencing from the date of agreement. On expiry of period of tenancy, the respondent/landlord moved application before the Rent Controller seeking eviction of the petitioner from the demised shop on the grounds, amongst others, that the period of tenancy expired and that of personal use. The application was allowed by the learned Rent Controller vide order dated 30.7.2004. The order of ejectment was maintained in appeal by the Additional District Judge, Islamabad vide judgment and decree dated 20.10.2004. Thereafter, the petitioner invoked the constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The High Court recorded findings to effect that the concurrent findings of fact which did not suffer from any legal infirmity with did not warrant any interference and dismissed the petition.
Mr. Muhammad Ishtiaq Ahmed Raja, learned ASC for the petitioner attacked the findings on the ground of personal use and proceeded to argue that the mere fact of expiry of term of agreement does not over-ride the provisions of Section 17 of the said Ordinance and does not entitle the landlord to seek ejectment of the tenant on the ground of expiry period of tenancy. The provisions of the Islamabad Rent Restriction Ordinance, 2001, hereinafter referred to as "the Ordinance" are attracted to tenants holding over the premises after expiry of term mentioned in the tenancy agreement who then become statutory tenants and are controlled by the provisions of Section 17 of the Ordinance, which specifically protects the eviction of a tenant on the grounds as specified in sub-section (2) thereof. Under the circumstances, the provisions of Section 6 of the Ordinance could not be invoked to seek ejectment of the petitioner. On the other hand, Mr. Abdur Rasheed Awan has supported the concurrent findings of the Courts below against the petitioner.
We have heard the learned counsel for the parties and have perused the record.
The ground of personal use has been duly considered at length in the impugned judgment. We find ourselves in agreement with the reasoning, which does not call for further examination.
To examine the second contention of the learned ASC, we may first reproduce Section 6 of the Ordinance:--
"6. Tenure of tenancy.--Subject to the provisions of Section 17 no tenancy shall be valid beyond such period as the landlord and tenant may, by mutual agreement, fix before or after the commencement of the tenancy:
Provided that a tenancy in force before the commencement of this Ordinance for which no period is fixed shall cease to be valid on the expiration of a period of two years from such commencement:
Provided further that a tenancy which comes into force after the commencement of this Ordinance and for which no period is fixed shall not be valid after expiration of period of six moths from the date of the receipt by the tenant of a notice in writing given by the landlord terminating the tenancy."
The plain reading of Section 6 of the Ordinance commencing with the use of words "subject to the provisions of Section 17" signifies that the provisions of Section 17 continue to apply as grounds for eviction of the tenant in addition to a further condition of existence of a valid tenancy agreement. The words do not affect the rights conferred upon the parties by Section 6 of the Ordinance but mean as conditional upon the observance of provisions of Section 17 of the Ordinance as held while interpreting the words "subject to" by the Supreme Court in India in the case of KRCS Balakrishna Chetty and Sons & Co v. The State (AIR 1961 SC 1152). The violation of any of the provisions of Section 17 may, therefore, continue to regulate the ground of eviction of the tenant by the landlord. Section 6 further reads "no tenancy shall be valid beyond such period as the landlord and tenant may, by mutual agreement, fix before or after the commencement of the tenancy".
The legislature has expressly provided that after expiry of the prescribed period as may be fixed by the mutual agreement agreed or fixed initially at the commencement of the tenancy or after such commencement no tenancy shall be valid. The word "valid" has not been defined under the said Ordinance. Therefore, reference is to be made to the ordinary dictionary meanings of the word "valid" as under:--
"Chambers 21st Centaury Dictionary:--
"Valid.--1. said of an argument, objection, etc: a based on truth or sound reasoning; b well-grounded; having force. 2 said of a ticket or official document: a legally acceptable for use"
Black's Law Dictionary:--
"Valid.--Having legal strength or force, executed with proper formalities, incapable of being rightfully over-thrown or set aside legally sufficient
or efficacious; authorized by law. Good or sufficient in point of law; efficacious; executed with the proper formalities; incapable of being rightfully overthrown or set aside; sustainable and effective in law, as distinguished from that which exists or took place in fact or appearance, but has not the requisites to enable it to be recognized and enforced by law. A deed, will, or other instrument, which has received all the formalities required by law, is said to be valid."
(underline/bold provided)
Words & Phrases (Permanent Edition) Volume 44:--
The term "valid" means in law having legal strength force, and effect, or incapable of being rightfully overthrown or set aside.
"Valid" means efficient, effective; accomplishing what is claimed or intended.
"Valid" means good or sufficient in point of law; sustainable and effective in law.
Taking into consideration the above meanings of the word "valid", the intention of the legislature clearly means that the tenancy ceases have any legal force or strength on expiry of the time fixed by the agreement. The position is similar to that of expiry of any permission or licence, this being so the tenant looses the right to continue to occupy or to hold over the premises after expiry of the term fixed by the parties. Provisions of Section 17 of the said Ordinance are similar to the provisions providing grounds of eviction under Section 15 of Punjab Rented Premises Ordinance, 2007 and Sections 15 and 18 of the Sindh Rented Premises Ordinance, 1979 which set forth the grounds for eviction of the tenant are almost similar as provided under the said Ordinance. However, Section 6 of the Ordinance is in addition to the other grounds of eviction' and is available exclusively with respect to the properties situated within the territorial limits where the provisions of the Ordinance apply. This being so the addition of Section 6 creates an entirely a different situation as compared to the other statues with respect to the terms of tenancy and grounds of ejectment of tenants in other areas. The result is that for the areas where the provisions of said Ordinance are attracted, by virtue of the provisions of Section 6 of the Ordinance, the tenancy ceases to be valid and the fact of expiry of the period agreed between the parties as the tenure of tenancy would suffice to order the ejectment of the tenant by the Rent Controller. At the same time, the right of the landlord to seek eviction on the grounds specified under Section 17 of the Ordinance also remains unaffected. The first and second provisos to Section 6 of the Ordinance are attracted to cases prior to the commencement of the said Ordinance and to ceases where no period is fixed respectively. In the instant case, the period of 11 months was expressly provided under the agreement and therefore no benefit is available to the petitioner under either proviso.
It is settled principle of interpretation that the Courts should adopt an interpretation, which may give meanings of each word of an enactment taking into consideration the spirit of such legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner as held by this Court in the cases of Shahid Nabi Malik and another v. Chief Election Commissioner and 7 others (PLD 1997 SC 32), M. Aslam Khaki v. Muhammad Hashim (PLD 2000 SC 225), Hafiz Abdul Waheed v. Mrs. Asma Jehangir (PLD 2004 SC 219), DG Khan Cement Company Limited and others v. Federation of Pakistan and others (2004 SCMR 456) and Shoukat Baiq v. Shahid Jamil (PLD 2005 SC 530). We are of the view that in the instant case, the learned Single Judge of the High Court upheld the concurrent findings of both the Courts after examining the record in its true perspective and held that no case calling for exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was made out. Under the circumstances, no interference is warranted in the circumstances of the present petition.
For the foregoing reasons, this petition being without any merit is dismissed and leave to appeal is refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 804
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & M. Javed Buttar, JJ.
Mian MUHAMMAD ASIF--Appellant
versus
FAHAD and another--Respondents
Civil Appeal No. 2237 of 2008, decided on 17.3.2009.
(On appeal against the judgment dated 29.10.2008 passed by the Lahore High Court, Lahore, in Writ Petition No. 6627 of 2008).
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 3--Limitation Act. 1908, Arts. 163 & 183--Suit for specific performance of agreement, dismissed for non-prosecution--Application for restoration of suit alongwith application for condonation of delay--Dismissed by trial Court--Revision was allowed by First Appellate Court--Writ petition was also allowed restoring the order of trial Court--Direct appeal to Supreme Court--Held: Trial Judge proceeded under Order IX, Rule 3, CPC, therefore, Art. 181 of the Limitation Act, was not attracted and the Courts below correctly applied Art. 163 of the Limitation Act, while considering the appellants application for condonation of delay in moving the application for restoration of the suit, which was grossly barred by time--Court was not bound to restore the suit merely because the restoration application was within time--Appeal dismissed. [P. 806 & 807] A & B
Syed Iftikhar Hussain Shah, ASC for Appellant.
Mr. A.G. Tariq Ch. ASC for Respondent No. 1.
Date of hearing: 17.3.2009.
Judgment
M. Javed Buttar, J.--On 24.12.2003 appellant filed a suit for specific performance of an agreement to sell dated 20.12.2002 against his sister Mst. Shagufta Sharif who died during the pendency of the suit and is now represented by her son Fahad (Respondent No. 1). During the progress of the suit, ex-parte proceedings were ordered against her and the case was being adjourned for recording evidence of the appellant but the appellant became absent and the suit was dismissed for non-prosecution on 13.12.2006. On 11.10.2007, he filed an application for restoration of suit alongwith an application for condonation of delay. Both the applications were contested and were dismissed by the learned trial Court on 17.1.2008. However, Revision Petition, filed by the appellant, was allowed by the Hon'ble Additional District Judge, Sheikhupura, on 29.3.2008. Writ Petition No. 6627 of 2008 instituted by Respondent No. 1 was allowed by an Hon'ble Judge in Chambers of Lahore High Court, Lahore, on 29.10.2008. Order dated 29.3.2008, passed by Hon'ble Additional District Judge was declared to be without lawful authority and was set aside and the order dated 17.1.2008, passed by the trial Court, dismissing the application for restoration of the suit, was restored. Hence this direct appeal.
We have heard the learned counsel for the appellant, learned counsel for Respondent No. 1 and have also seen the available record with their able assistance.
Learned counsel for the appellant has submitted that the Hon'ble Additional District Judge could have restored the suit under Section 151 CPC, that it was an adjourned date of hearing on which the suit was dismissed for non-prosecution, therefore, it will be deemed that the order of dismissal for non-prosecution was passed under Order XVII Rule 2 CPC and not under Order IX Rule 3 CPC and therefore, the limitation period for restoration of application is governed by Article 181 of the Limitation Act which is three years and not under Article 163 of the Limitation Act which is thirty days, that the High Court wrongly interfered in the writ jurisdiction, that the appellant has been knocked-out purely on technical ground, that the pleadings are to be liberally construed and law favours decision on merits. In support of his contentions the learned counsel has placed his reliance on Hassomal Tillumal vs. Ghulam Nabishah (AIR (36) 1949 Sind 26), M/s Rehman Weaving Factory (Regd), Bahawalnaqar vs. Industrial Development Bank of Pakistan and Punjab Small Industries Corporation, Lahore (PLD 1981 SC 21) and Yousaf Raza Hussain vs. The IVth Additional District Judge (South), Karachi and others (1987 MLD 2989 (Kar).
On the other hand, learned counsel representing Respondent No. 1, while vehemently opposing the application, has submitted that the appellant and his deceased sister were living in the same house which is apparent from the address given on the application for restoration and the appellant was actually trying to get an ex-parte decree against his sister on the basis of a false document, that the trial Court, the revisional Court as well as the High Court have concurrently found that no cause had been shown by the appellant for his absence or the absence of his counsel when the suit was dismissed for non-prosecution and no ground for condonation of delay had been made out and since after recording this finding the Hon'ble Additional District Judge had interfered in revisional jurisdiction without disclosing any reason, the High Court correctly interfered in the constitutional jurisdiction and this Court would not interfere in the concurrent findings recorded by all the three Courts below and that the appellant has failed to make out any ground for equitable consideration.
We have given our anxious consideration to the entire facts and circumstances of the case. Plain reading of Order XVII Rule 2 CPC shows that in such a situation the Court has an option to proceed under Order IX of CPC and in the instant case, although it is not written in the order dated 13.12.2006, whereby the suit was dismissed for non-prosecution, that it was being dismissed under Order IX Rule 3 CPC but it is apparent that the Hon'ble trial Judge proceeded under Order IX Rule 3 CPC, therefore, Article 181 of the Limitation Act was not attracted and the Courts below correctly applied Article 163 of the Limitation Act while considering the appellant's application for condonation of delay in moving the application for restoration of the suit, which was grossly barred by time.
Furthermore, we have gone through the application moved by the appellant for restoration of the suit. No cause has been shown for the absence of appellant and his counsel when the suit was dismissed for non-prosecution. It has been vaguely asserted in the said application that at that time the appellant was in England but nothing has been said about the absence of his counsel. Even otherwise, it was admitted before the Hon'ble Judge of the High Court, during the course of hearing of Writ Petition that the appellant had returned to Pakistan in December 2006. In these circumstances, the Courts below correctly concluded that no cause had been shown for the absence of the appellant or his counsel on 13.12.2006, which was a date of hearing fixed for recording of evidence of the appellant.
Additionally, no ground has been made out for condoning the delay in filing of the application for restoration of the suit. Even otherwise, the issue of limitation lost its importance when the appellant failed to show any cause for his absence and the absence of his counsel on the relevant date. In this background, the Court was competent to dismiss the suit for non-prosecution and competently and correctly refused to restore the suit. Even otherwise, the Court is not bound to restore the suit merely because the restoration application is within time.
the Hon'ble Additional District Judge had no jurisdiction to restore the suit.
In view of the above mentioned, we find no merit in this appeal which is dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeal dismissed.
PLJ 2009 SC 808
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ &
Muhammad Farrukh Mahmud, J.
M/s FAZAL DIN & SONS (Pvt.) Ltd.--Petitioner
versus
FEDERAL BOARD OF REVENUE, ISLAMABAD & others--Respondents
Civil Petition No. 1520 of 2008, decided on 16.3.2009.
(On appeal from the judgment dated 14.10.2008 of the Lahore High Court, Lahore passed in W.P. No. 9851/08).
General Clauses Act, 1897 (X of 1897)--
----S. 21--Question, whether a vested right has accrued in favour of petitioner and if so can be taken away through subsequent circular by applying the same retrospectively--Legislature is also competent to amend, vary or repeal the same but the right conferred through can only be taken away by legislative enactment and not by an executive authority through notification in exercise of the rule making power or the power to amend, vary or rescind an earlier order/notification in the proponed exercise of power conferred under Section 21 of the General Clauses Act, 1897. [P. 812] A
Income tax Ordinance, 2001 (XLIX of 2001)--
----S. 120-A--Any income, investment which remained undeclared in the return shall be an `undisclosed income' covered under the provisions Section 120-A of the Ordinance--Scheme is applicable to all undisclosed assets/income which somehow or the other could not be disclosed and remained un-explained and that cases are pending in appeal or raised/detected by the department would be dealt under normal law and not under specific provisions of scheme--Second deviation took place when the FBR issued whereby the scheme was restricted so as to exclude pending case before the department, appellate authority or any Court, thus the state of law was changed--Held: Amendment brought through the referred circular is of substantive nature, thereby, restricting the scope of the original scheme and the state of law a stood changed from the date effecting the right and liabilities of those who have acted upon the scheme in good faith under its original scope--Leave allowed.
[Pp. 812 & 813] B & C
Mr. Shahzad Butt, ASC and Mr. Sirajuddin Khalid, ASC for Petitioner.
Mr. Shahid Jamil, ASC, Mr. M.S. Khattak, AOR and Mr. Mumtaz Ahmed Sh., Member (Legal) FBR for Respondents.
Date of hearing: 16.2.2009.
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is filed against order dated 14.10.2008 passed by learned Single Judge of Lahore High Court, Lahore whereby Writ Petition No. 9851 of 2008 filed by petitioner was dismissed.
Briefly stated facts are that petitioner M/s Fazal Din & Sons (Pvt.), a private limited company engaged in the business of sale, purchase of medicines and medical equipments and is a regular tax payer had filed its income tax returns for all the tax years. The returns so filed by the Company being complete were treated and taken by the department to be an assessment of taxable income for the relevant tax years. But subsequently, Income Tax Department initiated proceedings for tax years 2003-2007 so as to amend all the assessment orders by exercising power under Section 122(1) read with Section 122(5) of the Income Tax Ordinance, 2001 (hereinafter referred to as `the Ordinance'). At the time of filing of Constitution petition before learned Lahore High Court, the assessment for the tax year 2005 stood amended by the department by virtue of an order dated 30-8-2007 and the same was challenged before concerned Commissioner of Income Tax (Appeals) while in rest of the years the amendments proceedings were initiated and statutory notices were issued. During the pendency of these proceedings Section 120A was inserted in the Ordinance through Finance Act, 2008 whereby the Federal Board of Revenue (hereinafter referred to as "FBR") was empowered to make a scheme for payment of investment tax in respect of undisclosed income, representing any amount or investment made in moveable or immovable assets. Subsequently the FBR in exercise of power conferred under sub-section (1) of Section 120A of the Ordinance issued investment Tax Scheme, 2008 through Circular No. 3 of 2008 dated 01.7.2008. In pursuance of which petitioner filed a declaration in respect of its years wise computed undisclosed, untaxed and unexplained income on 15.7.2008 in accordance with the terms and conditions of the Scheme and paid all the tax due thereon. After filing of declaration, FBR, issued a clarificatory Circular No. 7 of 2008 issued on 19.7.2008 whereby the Board explained that the Scheme is applicable to all undisclosed assets/income which could not be disclosed and remained unexplained and that issues pending in appeals or raised/detected by the department would be dealt with under normal law and not under the Scheme. It was also explained that the scope of the Scheme is limited to the proceedings covered by the Ordinance and the declaration made and tax paid under the Scheme, shall not absolve the declarant from any action under the provisions of other applicable law. Accordingly, the declaration filed by petitioner was rejected on the ground that pending proceedings does not qualify and are not covered under the Scheme for the reason that the notices under Sections 122(1) and (5) and 111(l)(b) read with S. 111(2) of the Ordinance for tax years, 2003, 2004, 2006 and 2007 have already been issued. Feeling aggrieved petitioner filed Writ Petition No. 11025 before learned Lahore High Court, Lahore. During pendency of writ petition FBR vide another clarification circular dated 08.8.2008 stated that the scheme shall not apply to the cases where proceedings are pending before the Department, Appellate Authority or any Court; and the figure 2008 was substituted with 2007. Afterwards, the Constitution petition was dismissed vide impugned judgment.
Learned counsel for the petitioner mainly contended that learned Judge in Chambers of Lahore High Court has neither mentioned the proper facts of the case nor has passed a speaking order with regard to the case of petitioner and also has not appreciated the provision of Section 120A of the Ordinance which was inserted through Finance Act, 2008 whereby the scope of investment tax on income was provided. According to him declaration was filed by petitioner strictly in accordance with the requirements of circular dated 01.7.2008 which being comprehensive in nature, the vested right has accrued under the said circular which is neither withdrawn nor denied by brining new amendments. He further contended that these amendment being in direct conflict with the provisions of Section 120A of the Ordinance and circular dated 01.7.2008, are liable to be set aside. Learned counsel contended that FBR has no authority to amend the circular retrospectively thus subsequent circular dated 08.8.2008 cannot be made applicable with retrospective effect to the case of petitioner who filed his declaration earlier to such amendment. According to him, the perusal of newly inserted provisions pertains to undisclosed income which has been explained in proviso (i) of sub-rule (4) of Section 120A of the Ordinance which means any investment to be deemed as income under Section 111 or any other deemed income, for any year or years, which was chargeable to tax but was not so charged. He further contended that scope of undisclosed income has been extended to cover the real income as well as all other incomes which are at the time under the fraction of law declared under Section 2(29) of the Ordinance. He submitted that only rider provided under the law is that such income must be chargeable to tax and if was not so charged under Section 4 of the Ordinance. He further submitted that there is no dispute that at the time of declaration made by the petitioner the same was not charged except for the year 2005 whereby assessment stood amended under Section 122(5) of the Ordinance and the same is pending adjudication before the appellate forum. In support he placed reliance on the cases reported as Al-Samrez Enterprise v. The Federation of Pakistan (1986 SCMR 1917), Federation of Pakistan and others v. Ch.Muhammad Aslam and others (1986 SCMR 916), Army Welfare Sugar Mills v. Federation of Pakistan (1992 SCMR 1652) and Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and others (PLD 1969 SC 599).
On the other hand learned counsel for the respondents controverted above contentions and supported impugned judgment. He contended that there was some obvious mistakes in Circular dated 1.7.2008 which were clarified through subsequent Circular No. 7 dated 19.7.2008 and Circular No. 8 dated 08.8.2008. He contended that returns for the tax year 2008 were not even due and FBR has no authority to grant immunity to undisclosed income as such Circular No. 7 was issued to clarify that the scheme is applicable to all undisclosed assets/income which somehow or other could not be disclosed and remained unexplained and issues pending in appeals or raised/detected by the department would be dealt with under normal law and not under specific provisions of scheme. Through Circular No. 8 it was clarified that the scheme would be applicable for the tax year 2007 and not 2008. According to him, undisclosed income shall include only that income which was chargeable as deemed income in the year or years but have escaped assessment and it is applicable only on that deemed income which has successfully been concealed by the taxpayer.
We have considered the contentions raised at the bar and have perused the record. First of all the question that whether impugned judgment is not speaking one and is contrary to the facts of the case of the petitioner is concerned. In fact, the petitioner filed declaration on 15.07.2008 in pursuance to Investment Tax Scheme dated 01.7.2008 (Circular No. 3 of 2008) in accordance with the policy and in good faith. Later on, FBR through Circular No. 7 dated 19.7.2008 clarified that the scheme is applicable to all undisclosed assets/income which somehow or the other could not have been disclosed and remained un-explained and issues pending in appeals or raised/detected by the department would be dealt with under normal law and not under specific provisions of scheme. Learned Judge of Lahore High Court has ignored that declaration was filed prior to the Circulars No. 7 and 8 and also failed to appreciate that show-cause notices were issued in respect of assessment years, 2003, 2004, 2006 and 2007 which were repelled and explained, and assessment was not amended by that time. The learned High Court while dismissing the writ petition has never discussed the complete facts of petitioner's case and wrongly mentioned that the assessment of the petitioner was subject matter of appeal whereas the appeal was pending with respect to assessment year 2005 only. Thus, we are of the view the impugned judgment is not in consonance with the case of petitioner.
So far as the question that whether a vested right has accrued in favour of petitioner and if so can be taken away through subsequent circular by applying the same retrospectively. It was held by this Court in the case of Army Welfare Sugar Mills (Supra) that if an exemption from payment of excise duty or any other tax has been granted for a specified period on certain conditions and a person who fulfills those conditions, acquires a vested right. So it can be said that vested right had accrued in favour of the petitioner the moment he had filed declaration in pursuance to Circular No. 3 of 2008. It was held by this Court in case of Al-Samrez Enterprises (supra) that an enactment which prejudicially affected vested rights or the legality of past transactions or impaired contract cannot be given retrospective operation. It was also held that it will be inequitable and unjust to deprive a person who acts upon such assurance of the right to exemption and expose him to unforeseen loss in the business transaction by suddenly withdrawing the exemption after he had made legal commitments. In this perspective, we are inclined to hold that a right was created in favour of petitioner and a subsequent amendment in the original scheme cannot be given retrospective effect by a subsequent act of the department to destroy the said right. So the vested rights cannot be taken away by express words and necessary intendment. No doubt that the legislature is also competent to amend, vary or repeal the same but the right conferred through statute can only be taken away by legislative enactment and not by an executive authority through notification in exercise of the rule making power or the power to amend, vary or rescind an earlier order/notification in the proponed exercise of power conferred under Section 21 of the General Clauses Act, 1897.
Now coming to the scheme, it has been specifically mentioned in Section 120 of the Ordinance that where a taxpayer has furnished a return of income, the same shall be taken to be complete if it is in accordance with the provisions of sub-section (2) of Section 114 of the Ordinance. It clarifies that the income declared in the return stands assessed and what was not declared in the return shall escape assessment in the declaration. Therefore, any income, investment which remained undeclared in the return shall be an `undisclosed income' covered under the provisions of Section 120A of the Ordinance. The amounts yearly declared by the petitioner in the declaration of investment tax being over and above the originally assessed income was undisclosed income which was chargeable to tax but remained uncharged because of non-declaration. This position prevails in all the tax year as on completion of an assessment the amount though charged to tax at the lowest level but the same having been impugned in appeals had not attained finality and until it is finally determined, it cannot be said that the amounts subject matter of declaration or assessment had finally been charged to tax.
Needles to mention here that FBR through Circular No. 7 dated 19th July 2008 clarified that scheme is applicable to all undisclosed assets/income which somehow or the other could not be disclosed and remained unexplained and that cases are pending in appeal or raised/detected by the department would be dealt under normal law and not under specific provisions of scheme. The second deviation took place when the FBR issued Circular No. 8 of 2008 whereby the scheme was restricted so as to exclude pending cases before the department, appellate authority or any Court, thus the state of law was changed. We are of the view that amendment brought through the referred circular is of substantive nature thereby restricting the scope of the original scheme and the state of law stood changed from the said date effecting the right and liabilities of those who have acted upon the scheme in good faith under its original scope. Therefore, Circular No. 8 of 2008 cannot apply retrospectively and show-cause notices are stand vacated.
Upshot of the above discussion is that the impugned judgment is not sustainable in law, resultantly, the petition is converted into appeal and is allowed.
(M.S.A.) Leave allowed.
PLJ 2009 SC 813
[Original Jurisdiction]
Present : Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Falak Sher, Mian Shakirullah Jan & M. Javed Buttar, JJ.
JAMAT-E-ISLAMI through its Amir & others--Petitioners
versus
FEDERATION OF PAKISTAN & others--Respondents
Constitutional Petition Nos. 59, 58, 61, 62, 63 & 68 of 2007, decided on 28.9.2007.
(i) Constitution of Pakistan, 1973--
----Arts. 184(3) & 41(2)--Civil Procedure Code, (V of 1908), O. XXVII-A Supreme Court Rules, 1980, O. XXIX, R. 1--Constitutional petition--Maintainability of--Question of--Challenged the eligibility of General Pervez Musharraf, Chief of Army Staff and President of Pakistan--Incumbent of office of President being not qualified to be elected or chosen as member of national assembly is lacking requisite qualification to contest election of President--Validity of--If is challenged on the ground than being in contravention of fundamental rights, Supreme Court would not entertain such challenge in the proceedings under Art. 184(3) of Constitution, even if the law is found in contravention of provision of the Constitution--Held : Supreme Court will not interfere under Art. 185(3) unless it is satisfied that infringement of right being complained is the fundamental right and breach of such right is a matter of public importance--Further held: Unless a matter of public importance with enforcement of fundamental rights conferred by Part 11 of Chapter of Constitution is involved in a petition u/Art. 184(3) of Constitution, is not maintainable--Presidential election while holding the office of Chief of Army Staff, is not eligible to contest and participate in the election by virtue of Art. 63(1)(d)(k) & (o) he is not qualified to contest the election of President--Court may ignore the objection and decide these petitions on merits--In light of Constitutional mandate as contemplated in Art. 184(3) of the Constitution, Supreme Court may not entertain a direct petition under Art. 184(3) in a matter not involving the enforcement of any fundamental right--General Pervez Musharraf being in advantageous position, has edge over the other candidates in the election and members of Armed Forces of the equal rank of General Pervez Musharaf have been discriminated of equal chance of appointment as COAS--Question raised in these petitions did not directly or indirectly relate to enforcement of any of fundamental rights--Most of the questions raised in the petitions relating to eligibility of President General Pervez Musharraf, a prospective candidate for the office of President are speculative and presumptive in nature which even would fall in domain of Election Commissioner--Constitutional forum and consequently these petitions before Supreme Court apart from being not maintainable, are premature--Question are beyond the Scope of Art. 184(3) of the Constitution and the petitions being not maintainable, are dismissed. [P 853, 855, 857, 858 & 859] K, M, R & U
(ii) Constitution of Pakistan, 1973--
----Art. 184(3)--Invocation of original jurisdiction of Supreme Court--Object, scope and essential conditions--There are two essential conditions for invoking the jurisdiction of Supreme Court under Art. 184(3) of Constitution--First condition is that subject matter of the petition under Art. 184(3) must be of public importance and second condition is that it must relate to enforcement of any of fundamental rights conferred by Part-II Chapter-I of Constitution. [P. 842 & 843] A
(iii) Constitution of Pakistan, 1973--
----Art. 184(3)--Part II--Chapter 1 (Arts. 8 to 28) Constitutional petition before SC--Maintainability--Matter of public importance and enforcement of fundamental rights--Original jurisdiction of Supreme Court under Art. 184(3) of Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement fundamental rights conferred by Part-II Chapter I of Constitution and Supreme Court is not supposed to entertain a petition u/Art. 184(3) of the Constitution. [Pp. 850 & 851] B
(iv) Constitution of Pakistan, 1973--
----Art. 184(3) & Part-II--Chap. I--Object & scope--Enforcement of fundamental rights--Question of--Determination of original jurisdiction--No question, other than relating to enforcement of a fundamental right, can be brought before Supreme Court for determination in its original jurisdiction and an aggrieved person may avail other remedies open to him under the law--Supreme Court will not entertain a petition under Art. 184(3) if infringement of any of fundamental rights conferred by Part II Chap. I of the Constitution is not involved as remedy only for enforcement of fundamental rights in a case of public importance--Held: Supreme Court would not entertain such challenge in the proceedings under Art. 184(3) of Constitution, even if the law is found in contravention of some other provision of the Constitution. [P. 851] C & D
(v) Constitution of Pakistan, 1973--
----Art. 184(3)--Constitutional jurisdiction of Supreme Court--Correctness of a judgment of the Court--Power to rectify its own mistake--Constitutional jurisdiction of Supreme Court under Art. 184(3) of Constitution also cannot be invoked for correctness of a judgment of the Court in which a question of law was decided unless it is established that in consequence to the judgment of Supreme Court, a fundamental right falling in Part II Chap I of Constitution has been violated--Held: Supreme Court has power to rectify its own mistake but the provision of Art. 184(3) of the Constitution is invokeable only in the matter of public importance relating to enforcement of fundamental rights. [P. 851] E
(vi) Constitution of Pakistan, 1973--
----Art. 184(3)--Original jurisdiction--Question of--Determination of the legislative competence or vires of enactment--Principle of presumption of Constitutionality of an enactment--Question pertaining to the determination of the legislative competence or vires of a particular enactment can only be gone into by Supreme Court in its original jurisdiction under Art. 184(3) of Constitution if a case is made out for interference by establishing that a law so enacted was beyond the competence of legislature or it was not covered by legislative list or the same has invaded the fundamental rights guaranteed in Part-II Chapter-I of Constitution. [P. 851] F
(vii) Constitution of Pakistan, 1973--
----Art. 184(3)--Original Constitutional jurisdiction of Supreme Court--Object & scope of judicial review of Supreme Court--Validity of an amendment in Constitution--Provision of law relating to right to vote--Purview of fundamental rights--Effect of delay--Scope of judicial review of S.C is most extensive known to word of law as Supreme Court in exercise of such power, can examine the validity even of an amendment in Constitution which is violative of basic structure of the Constitution--Such power is also not invokeable in absence of a direct and casual violation of fundamental right--Right to contest election may be a Constitutional right which is regulated by limitation--Provision of law relating to right to vote to bring the matter relating to such rights within ambit of Art. 184(3) of Constitution--Mere apprehension of breach of fundamental right is not enough to invoke the extra-ordinary jurisdiction of SC--Supreme Court cannot grant relief in exercise of its original jurisdiction in a case, filed with inordinate delay notwithstanding the fact that delay would not effect the jurisdiction of the Court. [P. 852] G & H
(viii) Constitution of Pakistan, 1973--
----Part II--Chap. I & Art. 184(3)--Enforcement of fundamental rights--Original jurisdiction of Supreme Court--Maintainability of Constitutional petition--Unless a matter of public importance with enforcement of fundamental rights conferred by Part 11 of Chapter I of Constitutional is invoked in a petition under Art. 184(3) of Constitution, it is not maintainable. [P. 852] I & J
PLJ 1988 SC 416; PLD 1989 SC 166; PLD 1998 SC 388; PLD 1993 SC 473; PLD 2000 SC 869; PLD 2004 SC 600 & 1991 SCMR 1041, ref.
(ix) Constitution of Pakistan, 1973--
----Art. 63(1)(d)(k) & (o)--Eligibility to contest election of Presidential election while holding the office of chief of army staff--Validity--Presidential election while holding the office of chief of army staff, is not eligible to contest and participate in the election and even by virtue of Art. 63(1)(d)(k) & (o) he is not qualified to contest the election of President. [P. 853] K
(x) Constitution of Pakistan, 1973--
----Arts. 199 & 184(3)--Distinction between Arts. 199 & 184(3) of Constitution--Enforcement of fundamental rights--Original jurisdiction--Direct petition--In the matters which do not involve enforcement of fundamental rights of the public at large as envisaged in Art. 184(3) of the Constitution, a direct petition in original jurisdiction is not entertainable. [P. 855] N
(xi) Constitution of Pakistan, 1973--
----Arts. 25, 199 & 184(3)--Equality before law--Discriminatory treatment of fundamental rights--Principle of equality and equal protection of law--Entitlement to equal protection--Maintainability of direct petition--All persons are equal before law and a person aggrieved of any discriminatory treatment in respect of any of his right may approach the High Court and avail the remedy of writ petition for redressal of his grievance under Art. 199 of the Constitution--If the question relating to discriminatory treatment of any of fundamental rights with public at large, a direct petition under Art. 184(3) of the Constitution is entertainable--Held: Principle of equality and equal protection of law embodied in Art. 25 of the Constitution envisages that all citizens are equal before law and are entitled to equal protection of law without any discrimination.
[P. 857] P & Q
Per Falak Sher, J.--
(x) Constitution of Pakistan, 1973--
----Arts. 184(3) & 63(d) & (K)--President to Hold Another Office Act, (VII of 2004)--S. 2--Constitutional petition--Question legality of exposure of candidature of President General Pervez Musharraf--Disqualified for sought for office being in service of Pakistan as a serving chief of army staff and could not do so unless a period of two years has elapsed--Ultra vires of the Constitution--Maintainability--Majority of six to three the Bench resolved to dismiss the petition being not maintainable within contemplation of Art. 184(3) of Constitution--Jurisdictional question--Held: Contrary view would be paradoxical despite visitation of disqualifications a member of national assembly is to be disqualified but Presidential candidate remains immune from the same--Disqualifications envisaged by Art. 63 are attracted with full vigour to a Presidential candidate--Renders a person in the service of Pakistan as Chief of Army Staff being member of the Armed Forces and a period of two years has not elapsed since he ceases to be so, ineligible for the Presidential contest--President being serving Chief of Army Staff, as a member of Armed Forces, is in service of Pakistan cannot hold any other office of profit in the service of Pakistan carrying right to remuneration for rendering service, unless a period of two years has elapsed since cease to hold that office--If he holds an office of profit in service of Pakistan, other than an office declared by law not to disqualify its holder, which in fact seems to have been designed to exempt an existing office of profit in service of Pakistan, which otherwise renders the same to be disqualified on that count, but does not enable such a person to hold an additional office thus ostensibly seems to be a case of beyond the pole of Constitutional delegation--Such act cannot override the Constitutional status of armed forces as defined in Art. 260, for which the remedy lies in amending the Constitution, which objective cannot be achieved through a subordinate delegated legislation--Holder of presidential office perforce is required to perform political functions as well being head of state which would be incongrous with oath of office of the Chief of Army Staff as a member of Armed Forces--Further held: Presidential General Pervez Musharraf was not qualified to contest the ensuing Presidential election.
[Pp. 851, 877, 878 & 879] F, Z, AA, BB & CC
(xi) Constitution of Pakistan, 1973--
----Arts. 17, 25 & 199--Enforcement of fundamental rights--Recourse to remedies--Petitioner should be equipped with either of spelt out fundamental rights for enforcement whereof he seeks a mandamous, is demonstrative of the fact that save for Arts. 17 & 25 none of remaining Articles has been remotest nexus with controversy--Art. 25 envisaging equality of treatment enables a person to seek a recourse to remedies catered for by Art. 199 before High Courts and in the event of issue involving question of public importance to Supreme Court for alleged discriminatory treatment metted out to him but does not perceive right to question some body else's candidature for election especially without being in the run.
[P. 869] V & W
(xii) Constitution of Pakistan, 1973--
----Art. 270-AA--(17th Amendment)--Validation--Enforcement of spelt out fundamental right--Distinguishable--By no stretch of imagination could envisage enforcement of any of petitioner spelt out fundamental right without being contemporary contender in race, especially when some of them having been instrumental in furnishing a foot hold to regime, conferring blanket umbrella and validation thereof vide 17th Amendment and Art. 270-AA, whereof are no beyond comprehension to comprehend in light of the fact that they had the right and opportunity to pull out the carpet underneath the pedestal of power by repealing it in event of being averse to same--Renders the petition not maintainable with a right to petitioners to avail of appropriate remedies--Petitions were not maintainable. [P. 870] X
(xiii) Constitution of Pakistan, 1973--
----Arts. 62 & 63--Description of qualification to contest election--A person despite being eclipsed by disqualifications would be qualified to contest the election. [P. 871] Y
(xiv) Constitution of Pakistan, 1973--
----Arts. 41(2), 62 & 63--Provision spelling out qualifications as well as disqualifications--Eligibility of Presidential candidate--Contrary view would be paradoxical viz. despite visitation of disqualification a member of National Assembly is to be disqualified but a Presidential candidate remains immune from the same--Disqualifications envisaged by Art. 63 are attracted with full vigour to Presidential candidate whereof are crucial to controversy in hand since the same renders a person in the service of Pakistan as Chief of Army Staff being member of Armed Forces a period of two years has not elapsed since he ceases to be so, ineligible or Presidential contest read conjunctively with Arts. 43(1), 243 & 260. [P. 876] Z
Per Rana Bhagwandas, J.--
(xv) Constitution of Pakistan, 1973--
----Arts. 184(3), 63(1)(d) & (5), 43 & 244--Direct Constitution petitions before Supreme Court--Challenged the holding of two offices of Chief of Army Staff as well President of Pakistan--Violative of Constitutional mandate--Inherent pre-election disqualification and was not eligible to be candidate for and to be elected to office of President--Ultra vires--Question of validity--Maintainability of Constitutional petitions--Question raised in petitions touch the vires of various laws, including--President to Hold Another Office Act, 2004 providing mandate to respondent to hold two offices and to be exempt from disqualification incurred on account of holding another office of profit and to contest elections despite the bar contained in Arts. 63(1)(d) & (s) r/W. Art. 43 & 244 of Constitution as well as various provisions of Pakistan Army Act and law of land--Issues raised to the eligibility of the President to contest election to the office of President, which is highest office reflecting the unity of federation, raised important and serious questions of law justifying invocation of original jurisdiction of Supreme Court. [P. 884] DD
PLD 1972 SC 139; PLD 1977 SC 657; PLD 1988 SC 416; PLD 1989 SC 66; PLD 1989 SC 166; PLD 1989 SC 166; PLD 1993 SC 473; PLD 1994 SC 738; PLD 1996 SC 324; PLD 1988 SC 388; PLD 2000 SC 869; PLD 2004 SC 583 & PLD 2006 SC 697, ref.
(xvi) Constitution of Pakistan, 1973--
----Art. 25--Fundamental right of every citizen--Equal protection of law--To enjoy equal protection of law and to be treated in accordance with law is an inalienable right of every citizen--Equal treatment before law is basic fundamental right of every citizen, which is secured and guaranteed by Art. 25 of Constitution. [P. 885] EE
(xvii) Constitution of Pakistan, 1973--
----Art. 8--Concept of access to political justice--Challenged the vires of law--If law is enacted by parliament which is inconsistent with or in derogation of fundamental rights to extent of inconsistency, shall be void and when a citizen challenges the vires of law, indeed he seeks to enforce the fundamental right guaranteed Art. 8 of Constitution concept of access to political justice has also been acknowledged and recognized by Supreme Court. [P. 885] FF
(xviii) Democratic Institution--
----Concept of fair, free and transparent election--Development and flourishing of democratic institution in a free, fair and transparent manner with equal opportunity--Validity--In a democratic set-up, the concept of fair, free and transparent elections can hardly be overemphasized and petitioners, in law, are entitled to have equal opportunity to take part in election process against the President General Pervez Musharraf who has been placed at a highly advantageous and exalted position by reason of his office as commender-in-chief of Army--Held: Petitioner's seeking right of access to political justice against respondent before Supreme Court in exercise of its extraordinary original jurisdiction cannot be denied on hyper-technical grounds as it would be against the basic norms of justice, fair play, good conscience and doctrine of equality. [P. 885] GG
(xix) Fundamental Right--
----Election of President of Pakistan--Gross violation and infringement of a fundamental right of equal treatment--Assailed the eligibility and qualification to run an election to highest office of President, indeed, petitioners are not only seeking to enforce, their right to have a level playing field but also highlight a genuine grievance amounting to gross violation and infringement of a fundamental right of equal treatment before law and equal protection under law, as guaranteed by Constitution. [Pp. 885 & 886] HH
(xx) Nomination Paper--
----Objection was raised before Chief Election at the time of scrutiny of nomination papers--Returning Officer in exercise of his limited scope of duties cannot lawfully declare the vires of a law as ultra vires the Constitution--Returning officer at the stage of scrutiny of nomination papers can hold a summary enquiry, without going into deeper analysis of the grounds of disqualification against a candidate.
[P. 886] II
(xxi) Locus Standi--
----Disqualification of a candidate--Objection of--Not locus standi--A person interested in the result of lis can always espouse a cause of general public importance on behalf of a large group of persons and the nation as a whole before superior Court and he cannot be denied fair access to justice on technical ground that he does not have locus standi to raise a dispute of high magnitude. [P. 886] JJ
(xxii) Constitution of Pakistan, 1973--
----Art. 17 & Chap. I, Part II--Fundamental right--Concept of political justice--Parliamentary democratic system--Challenging the candidature of President General Pervez Musharraf to contest election--Seeking to enforce their right to political justice--Validity--Every citizen has a right to take part in political activities and to ensure that elections in the country are held in a free, fair and transparent manner, which can only be conceived of when equal opportunities are available to all citizens possessing requisite qualifications, prescribed by law. [P. 892] LL
(xxiii) Constitution of Pakistan, 1973--
----Art. 199--Principle of construction--Remedy before High Court--Right of access of justice--Constitution should receive a liberal interpretation in favour of the citizens with respect to those provisions which were designed to safeguard the valuable right of access to justice--Held: It would neither be just, fair, proper nor lawful for Supreme Court to knock down to petitioners on the premise that they should seek their remedy before High Court under Art. 199 of Constitution. [P. 893] MM
(xxiv) Words and Phrases--
----"Per incuriam" defined in Ballentine's Law Dictionary. [P. 893] NN
(xxv) Per Incuriam--
----Judgment--Need out necessarily be over-ruled or set aside--No binding force cannot be pressed into service--Pendency of a review petition does not abstain Supreme Court from distinguishing the judgment or to make a deviation from the view already taken, which, suffers from lack of care and lack of application of law within meaning of expression. [P. 894] OO
(xxvi) Constitution of Pakistan, 1973--
----Arts. 183(3), 243(1-A) & 24--Constitutional petition--Election for President of Pakistan--Entitled to hold two offices--Oath by virtue of Art. 244 of Constitution not to engage himself in political activities--Question of--Being at helm of affairs of Pakistan Army can the General Pervez Musharraf of lawfully and Constitutionally take active part in political activities by holding meetings, making public addresses, attending political parties--Determination--Validity--If an Army officer, while in service, including in political activities, he not only violated the oath of office but also acts in flagrant violation of Army Act, and Army Officers Service Regulations--Held: Civil servant, fulfilling the conditions of Art. 62 would also be eligible to contest election to representative office--If no other person in service of Pakistan holding an office of profit is entitled to contest election.
[Pp. 895 & 896] PP & QQ
(xxvii) Constitution of Pakistan, 1973--
----Arts. 244 & 184(3)--Constitutional petition--Challenged the election of President--Oath of allegiance to Pakistan--Term of office retaining the office of Chief of Army Staff--President General Pervez Musharraf enjoying the office of Chief of Army Staff and also holding the office of President having not given up the office of Chief of Army Staff--Held: Holder of a Constitutional office cannot hold another office under the Constitution of Pakistan. [P. 897] RR
(xxviii) Constitution of Pakistan, 1973--
----Art. 41(2)--Qualification for election of President--A person shall not be qualified for election as President unless he is a Muslim not less than forty five years of age and is qualified to be elected as member of National Assembly. [P. 897] SS
(xxix) Constitution of Pakistan, 1973--
----Arts. 62 & 63--Election to the office of President of Pakistan--Qualifications--Logic and rationale demand--If a person possesses necessary attributes enumerated in Art. 62 of Constitution he would be, prima facie, qualified to contest for election to seat of National Assembly but the reason, logic and rationale demand that primarily and essentially he at some time should be immune and completely free from disqualifications expressly incorporated in Art. 63 of the Constitution--In case Supreme Court ignore and exclude the disqualification clauses of Art. 63 of Constitution in respect of a candidate and only confine to attributes possessed by him in terms of Art. 62 it would be mutually destructive and paradoxical, which would run counter to intention of the framers of the Constitution.
[P. 898] TT
(xxx) Constitution of Pakistan, 1973--
----Arts. 41(2) & 63--Qualification for election to the office of President--Disqualifications cannot be read into Art. 41(2) of Constitution--President must be a person qualified to be elected as member of National Assembly and by way of obiter--Held: Disqualification listed in Art. 63 cannot be read into Art. 41(2) of Constitution.
[Pp. 898 & 899] UU
(xxxi) Qualification and Disqualifications--
----Election to the office of President--Qualifications and disqualifications were two different concepts and while considering as to whether, a person was qualified to be appointed to the office--Disqualification cannot be considered--Validity--Qualifications and disqualifications are inter twined and interwoven and must be read together as a person cannot be declared to be qualified to hold an office unless he is able to demonstrate that he is free from all disqualifications prescribed by law--Qualifications for membership to National Assembly would be essentially required whereas disqualification attached to a candidate completely ignored and over-looked.
[P. 899] VV
(xxxii) Constitution of Pakistan, 1973--
----Arts. 44(2) & 184(3)--Constitutional petition--Election to the office of President--President shall hold office for a term of five years from the day he enters upon his office--After military take over, General Pervez Musharraf assumed the office of Chief Executive after dislodging the elected Prime Minister, his government as well as dismissing the assemblies in country--After dislodging the elected President through President's Succession Order 2001, assumed the office of President in addition to his position as Chief Executive of country--His first term, expiring, however, was not under the Constitution while the second term of office as President commenced in terms of Art. 44(1) of Constitution--Held: A person having enjoyed the office of President for consecutive two terms under Constitution shall not be entitled to contest for the same office there after--General Pervez Musharraf though enjoyed the office of President for two terms and his second term of office is expired strictly speaking he would not be ineligible for contesting election to the office for forth coming election as first term of office as President by way of supra Constitutional measure cannot be declared as a term of office under Constitution--President Pervez Musharraf was not eligible to be elected as President in light of letter and spirit of Constitution, which cannot be over looked--Petitions were allowed. [Pp. 904 & 905] WW
(xxxiii) Electoral College--
----Election to the office of President--Principle of democratic values--Competency to elect as president for another term--Consisting of national assembly and four provincial assemblies--Validity of existing assemblies--Outgoing assemblies cannot be allowed to bind successor assemblies to be elected as a result of popular mandate--Held: Members of the electoral college who have already expressed their opinion by exercising a vote of confidence after their assumption of office, may not be in a position to exercise their right of franchise freely and independently--It would be in the fitness of things and in consonance with democratic norms and intention of framers of the Constitution, if new assemblies and electoral college are allowed to exercise their right to elect a President of their choice during the term of electoral college under the Constitution--Parliament having outlived its tenure should not be allowed to bind the successor parliament with its choice as it is well settled that parliament may do anything but bind the successor parliament--Further held: Parliament having outlived its life does not have democratic mandate of the people to elect as President for another term of five years, which would militate against the well entrenched principles of democratic values. [Pp. 905, 906 & 907] XX
Per Sardar Muhammad Raza, J.
(xxxiv) Constitution of Pakistan, 1973--
----Art. 184(3)--Constitutional petition before Supreme Court seeking determination of eligibility of a person to contest election for President of Pakistan--Question of maintainability--Dissenting with majority view--Doctrine of necessity is neither law nor any rule nor regulation--Doctrine of necessity or those of Machiaveli are these propound that truth and falsehood, permissible and impermissible have no such frontiers that cannot, under any circumstances, be violated--If expediency demands, impermissible can be made permissible regardless of good conduct, principles or values of life--Means are justified by the ends achieved--Almighty Allah has denounced even the mixing up of truth with falsehood, leaving no room for expediency--Held: Doctrine of necessity is violative of Quranic injunctions and withholding of decision on merits, in order to achieve smooth transition in the interest of state necessity, would neither be just, nor fair nor legal--Petition being maintainable were accepted. [Pp. 911 & 912] YY, AAA & CCC
(xxxv) Doctrine of Necessity--
----Doctrine of necessity is a man made enigma, which must always be subservient to the greater human values, ordained by Almighty Allah--When truth is ordained and falsehood condemned, it is imperatively laid down that do not confront truth by overlaying it with falsehood nor knowingly conceal the truth. [P. 911] ZZ
(xxxvi) Divine Verdict--
----Conduct of duality--Truthful never vascilate Mingling of truth and falsehood is a negation of Divine Verdict--At this juncture cannot avoid referring to a very apt quotation of Allama Iqbal whose deep insight into the Holy Qur'an is evident from his poetry. [P. 912] BBB
Mr. M. Akram Sheikh, Sr. ASC and Mr. M. A. Zaidi, AOR for Petitioner. (In Const. P. No. 59 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan and Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan for Respondent No. 1 (In Const. P. No. 59 of 2007).
Syed Sharifuddin Pirzada, Sr. ASC, Mr. Ahmad Raza Khan Qasuri, Sr. ASC, Mr. Muhammad Ibrahim Satti, ASC, Chaudhry Naseer Ahmad, ASC and Chaudhry Arshad Ali, AOR for Respondent No. 2. (In Const. P. No. 59 of 2007).
Mr. Hamid Khan, Sr. ASC, Mr. Shaukat Aziz Siddiqui, ASC and Mr. M. S. Khattak, AOR for Petitioner (In Const. P. No. 58 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan, Mr. Abdul Sattar Chughtai, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents.
Mr. Hamid Khan, Sr. ASC and Mr. M.S. Khattak, AOR for Petitioner (In Const. P. No. 61 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1.
Syed Sharifuddin Prizada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and Chaudhry Arshad Ali, AOR for Respondent No. 2.
Petitioner in person (In Const. P. No. 62 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Dy. Attorney General for Pakistan, Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan and Mr. Arshad Ali Chaudhry, AOR for Respondents No. 1 & 2.
Syed Sharifuddin Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 3.
Mr. Abdul Rehman Siddiqui, ASC and Chaudhry Muhammad Akram, AOR for Petitioner (In Const. P. No. 63 of 2007).
Syed Sharifuddin Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1.
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 2.
Mr. A.K. Dogar, ASC (in person) for Petitioner (In Const. P. No. 68 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan, Mr. Muhammad Aslam Nagi, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents.
Mr. S.M. Zafar, Sr. ASC, Mr. Abdul Hafeez Pirzada, Sr. ASC and Chaudhry Aitzaz Ahsan, Sr. ASC Amicus Curiae (On Court Notice).
Dates of hearing: 17 to 21, 24 to 28.9.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This judgment proposes to dispose of Constitution petitions bearing No. 58, 59, 61, 62, 63 and 67 of 2007 which have been filed by the petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, (hereinafter referred to as the Constitution), challenging the eligibility of General Pervez Musharraf, Chief of the Army Staff and the President of Pakistan (respondent herein) to be a candidate to contest the forthcoming election for the office of President for the second term on various grounds. After preliminary hearing of the Constitution Petition No. 59 of 2007 this Court vide order dated 6.9.2007 issued notices to the Attorney General for Pakistan in terms of Order XXVII-A CPC read with Order XXIX
Rule 1 of the Supreme Court Rules, 1980 and also appointed M/s S. M. Zafar, learned Sr. ASC, Mr. Abdul Hafeez Pirzada, learned Sr. ASC and Ch. Aitzaz Ahsan, learned Sr. ASC to assist the Court as amicus curiae. All these connected petitions involving common questions of law and facts have been set down for regular hearing to consider the questions formulated in Constitution Petition No. 59 of 2007 as under :--
"This Constitution Petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as "the Constitution"].
(i) The President to Hold Another Office Act, 2004 [herein after referred to as "the impugned Act"], on the face of it, is discriminatory. It discriminates amongst the persons, occupying the similar offices, subsequent incumbents and all other Army/Military personnel.
(ii) The Impugned Act does not exempt the office of the Chief of Army Staff, which is permanent office. It exempts the present incumbent of the office of the President, none else.
(iii) In the case of Pakistan Lawyers Forum V. Federation of Pakistan (PLD 2005 SC 719) the law laid down in the earlier judgment in Qazi Hussain Ahmed V. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) has been reiterated on the point that only the qualification shall apply and disqualifications enumerated in Article 63 of the Constitution shall not apply. The above referred two judgments are per incuriam of the law declared by this Court in Sabir Shah V. Shad Muhammad Khan (PLD 1995 SC 66), as such these judgments are liable to be revisited to the extent of the finding/observation for determining whether disqualifications contained in Article 63 of the Constitution apply to the President of Pakistan or not? The above referred two judgments have erroneously followed the rule laid down in Muhammad Shahbaz Sharif V. Muhammad Altaf Hussain (PLD 1995 Lahore 541), Muhammad Rafiq Tarar V. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414) and Muhammad Rafiq Tarar V. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 461).
(iv) Article 244 of the Constitution is applicable with full force on the forthcoming election of the President.
(v) The present incumbent of the office of the President is ineligible even to file his nomination papers for the next term, even without uniform.
(vi) The amendments in Article 41 (7), (8) and (9) of the Constitution were one time specific and were based on a covenant between the political parties, thus this impugned Act, entire amendments and related issues have to be examined, keeping in view such consensus/agreement, leading to such amendments. Hence, the impugned Act was framed and enacted in breach of the national consensus for post takeover extra Constitutional management. But for this consensus and covenant, neither there would have been the 17th Amendment nor the incumbent President in uniform.
(vii) The entire issue relates to the Fundamental Rights of the people of Pakistan, enshrined in the Constitution, which are being denied on account of and for the sake of one person.
(a) This petition, on the face of it, is not maintainable under Article 184(3) of the Constitution and has been instituted/filed with mala fide.
(b) In any case the relief, so far as the forthcoming election to the office of the President is concerned, is premature and does not raise a live issue at present and is based on speculations, conjectures and surmises and is without any basis.
(c) Jurisdiction of this Court under Article 184(3) of the Constitution is discretionary and should not be exercised, as it would amount to disrupting the Constitution process of election for the office of President and the general elections.
(d) The relief should not be granted as instant petition has also been filed after undue delay and suffers from laches and also for the reason that impugned Act has remained in force for a period of about three years. In any case, instant petition have been filed after about two years of the judgment of this Hon'ble Court in the case of Pakistan Lawyers Forum V. Federation of Pakistan (PLD 2005 SC 719).
(e) The impugned Act is Constitutionally legal and valid and does not suffer from any discrimination and is not violative of Article 25 of the Constitution.
(f) In any case the declaration of the office of Chief of Army Staff, being not an office of profit in service of Pakistan, by the impugned Act, is based upon intelligible differentia and on sound reasons, including the Constitutional history of the occupation of the office, both of the President and the Chief of Army Staff by Respondent No. 2 Gen. Pervez Musharraf.
(g) Article 63(l)(d) of the Constitution itself permits the Legislature to frame a law, exempting the holder of any office and exercise of legislative powers by the Parliament, pursuant to this Constitutional provision, is not liable to or in the alternative, may not be interfered with by this Court.
(h) The Constitution itself protects the holder of the office of the President and also the Chief of Army Staff, therefore, the incumbent President has a right to remain and occupy the office of Chief of Army Staff.
(i) Article 63 of the Constitution has no applicability to the election of the office of the President, as has been correctly held by this Court in Qazi Hussain Ahmed V. Pervez Musharraf, Chief Executive (PLD 2002 SC 853).
(j) Article 244 of the Constitution has no applicability so far as the election to the office of the President is concerned as it has already been held by this Court in various cases.
(k) Although, for the points noted above, the question whether or not Gen. Pervez Musharraf is qualified to contest the next election of the President, does not arise in the present case. However, in the alternative, the plea is that he is fully qualified and competent to contest the election to the office of the President with or without uniform i.e. while holding the office of the Chief of Army Staff or without it, for the next term.
(l) So called agreement/arrangements between the political party or parties is extraneous to the validity of the impugned Act and this question cannot be gone into by this Court and can also not form basis for declaring a law invalid or unConstitutional.
(m) Article 17 of the Constitution relied upon by the petitioner has no relevancy nor Fundamental Rights of the people of Pakistan are in issue, in any manner, whatsoever, in the present case.
(n) Constitutional amendment or a law framed for an individual is legal, valid and Constitutional and has been upheld in various judgments by this Court including Fauji Foundation V. Shamimur Rehman (PLD 1983 SC 457).
(1) There can be no estopple against a statute.
(2) Reliance has been placed by the learned counsel for the petitioner on the so called agreement between the political parties, therefore, the petition suffers from non-joinder of the said parties.
(3) As the case of Pakistan Lawyers Forum V. Federation of Pakistan (PLD 2005 SC 719) is under review, therefore, hearing of this petition is liable to be stayed till the said decision.
"That term of Office of the President expires on 15th of November 2007.
It may be mentioned that under Article 44(1) of the Constitution of Pakistan, it is provided that the President shall, notwithstanding the expiration of his terms, continue to hold office until his successor enters upon his office."
Learned counsel appearing for Respondents No. 1 & 2, have stated that they do no want to file any written reply to this petition, as per the instructions, which have been conveyed to them.
The points raised on behalf of both the sides, particularly, the statement filed by Respondent No. 2 give rise to number of questions, pertaining to the interpretation of the Constitution, therefore, it is mandatory to seek assistance of learned Attorney General for Pakistan, as such, notice, as required in terms of Order XXVIIA CPC and Order XXIX Rule 1 of the Supreme Court Rules, 1980 is issued to him.
As important questions, relating to interpretation of the Constitution and law are involved, therefore, we consider it appropriate to appoint M/s S.M.Zafar, Sr. ASC, Abdul Hafeez Pirzada, Sr. ASC and Ch. Aitzaz Ahsan, Sr. ASC to appear and assist the Court as amicus curiae.
Since it is an important matter, as it is evident from the contentions, raised on behalf of the parties, we direct that let this case be fixed for hearing on 17th September 2007".
Messrs Muhammad Akram Sheikh, learned Sr. ASC, Hamid Khan, learned Sr. ASC, Mr. AK Dogar, learned Sr. ASC, have represented the petitioners in Constitution Petition Nos. 59/2007, 58 & 61/2007, 68/2007 respectively and Malik Muhammad Qayyum, learned Attorney General for Pakistan, Syed Sharifuddin Pirzada, learned Sr. ASC assisted by Raja Muhammad Ibrahim Satti, learned ASC, appeared on behalf of the respondents whereas Mr. S. M. Zafar, learned Sr. ASC, Mr. Abdul Hafeez Pirzada, learned Sr. ASC and Mr. Aitzaz Ahsan, learned Sr. ASC, have assisted the Court as amicus curiae.
The learned counsel for the petitioners having focused their arguments on the points noted hereinabove, have submitted that notwithstanding 17th Amendment in the Constitution or any other law for the time being in force, General Pervez Musharraf, the present incumbent of the office of President being not qualified to be elected or chosen as member of National Assembly is lacking the requisite qualification to contest the forthcoming election of President of Pakistan. The precise argument of the learned counsel was that apart from the qualification of a candidate for the election of President mentioned in Article 41(2) of the Constitution that he should be a Muslim of not less than 45 years of age and should also possess the qualifications mentioned in Article 62 of the Constitution to be elected or chosen as a member of Parliament, he must not be suffering from any disqualification contained in Article 63 of the Constitution.
Learned counsel while challenging the validity of the Act-VII of 2004 namely "President to Hold Another Office Act, 2004" promulgated under Article 63(1)(d) of the Constitution on 30th November 2004 which was enforced on 31.12.2004, has contended that the enactment of this law was mala-fide and beyond the scope of the legislative competence of the Parliament. They, with reference to the judgment of this Court in Zafar Ali Shah Vs. General Pervez Musharraf, Chief Executive (PLD 2000 SC 869) have contended that it being ultra vires to the Constitution was not a valid law and would not remove the disqualification incurred by General Pervez Musharraf (respondent herein) under Article 63(1)(d)(k) and (o) of the Constitution. The learned counsel submitted that the respondent while occupying the office of Chief of Army Staff (COAS) in violation of the Army Regulations Vol I (Rules) 1998 and his oath as Member of Armed Forces under Article 244 read with 3rd Schedule of the Constitution, is not qualified to contest the election for the office of President and argued that the judgments rendered by this Court in the cases of Qazi Hussain Ahmed Vs. General Pervez Musharraf, Chief Executive (PLD 2002 SC 853) and Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), wherein the verdict given to the effect that Article 63 was not applicable for determination of the eligibility of a candidate to contest the election for the office of President in terms of Article 41 (2) of the Constitution, was contrary to the law laid down by this Court in Pir Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66) and these judgments were not only per incuriam but were also in conflict to the true spirit of Article 41(2) of the Constitution.
Malik Muhammad Qayyum, learned Attorney General for Pakistan and Syed Sharifuddin Pirzada, learned Senior ASC, counsel for the President have opposed these petitions on the grounds, firstly that no question relating to the enforcement of any of the fundamental rights conferred by Part II Chapter I of the Constitution (Articles 8 to 28) is involved in these petitions to invoke the original jurisdiction of this Court under Article 184(3) of the Constitution and secondly these petitions have also no substance on merits in the light of provision of Article 41(7)(b) read with Article 62 of the Constitution as well as Act VII of 2004 and the law laid down by this Court in above referred judgments.
The main thrust of the arguments of the learned counsel for the petitioners was that General Pervez Musharraf respondent herein is not qualified to contest the election for the office of President for the next term, whereas the learned Attorney General and learned counsel for the respondents have emphasized that no doubt the election of the President is a matter of public importance but no question with reference to the enforcement of any of the fundamental rights guaranteed under the Constitution is involved in the matter to maintain these petitions under Article 184 (3) of the Constitution.
Mr. Muhammad Akram Sheikh, learned Sr. ASC, counsel for the petitioner in Constitution Petition No. 59 of 2007, has contended that in the cases namely Aftab Shahban Mirani Vs. President of Pakistan (1998 SCMR 1863), Malik Hamid Sarfraz Vs. Federation of Pakistan (PLD 1979 SC 991), Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161), Mian Muhammad Shahbaz Sharif Vs. Ch. Muhammad Altaf Hussain, [PLD 1995 Lahore 541], Justice (R) Muhammad Rafique Tarrar Vs. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan, and 6 others (PLD 1998 Lah. 461), Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others Vs. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) the view taken that the eligibility of a person to contest the election of President is determined only on the basis of qualification mentioned in Article 62 of Constitution and the disqualification referred in Article 63 of the Constitution is not applicable to the election of President, is contrary to the spirit of Article 41(2) of the Constitution and the law laid down by this Court in Pir Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66). The learned counsel submitted that Articles 62 and 63 of the Constitution are to be read together for the purpose of determination of the qualification of a person to be elected or chosen as Member of the Parliament and in the same manner, the eligibility of a person who intends to contest the election for the office of President is to be determined under Article 41 (2) of the Constitution.
Learned counsel submitted that Article 62 of the Constitution contains pre-election qualification and disqualification of a candidate whereas the disqualification mentioned in Article 63 of the Constitution is applicable to the candidate as well as Member and the expression `qualified to be elected as member' used in Article 41 (2) of the Constitution is referable to both qualification and disqualification mentioned in Articles 62 and 63 of the Constitution for the purpose of determining the eligibility of a candidate for the election of President. The learned counsel placing reliance on Zafar Ali Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), Sardar Farooq Khan Leghari Vs. Federation of Pakistan (PLD 1999 SC 57) and Pir Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66) submitted that the judgment rendered in the cases of Qazi Hussain Ahmed and Pakistan Lawyers Forum, supra would require reconsideration to rectify the mistake of law.
The learned counsel on the strength of Articles 17 and 25 of the Constitution contended that the questions raised in these petitions would relate to the political rights of the people of Pakistan as President being Head of State is symbol of unity and this is fundamental right of the citizens of Pakistan to have a non controversial person acceptable as Head of State to every one in the larger interest of sovereignty and integrity of Pakistan. In view thereof, the election of the President is not only a matter of public importance but also involves enforcement of the fundamental right of political justice in terms of Article 17 of the Constitution, therefore, the verdict given by this Court in Qazi Hussain Ahmed case and in Pakistan Lawyers Forum's case, supra, that disqualification listed in Article 63 of the Constitution on the basis of an earlier judgment rendered by this Court in Aftab Shahban Mirani Vs. President of Pakistan and others (1998 SCMR 1863) by virtue of which the judgments of the Lahore High Court in the cases of Justice (R) Muhammad Rafique Tarrar Vs. Justice Mukhtar Ahmed Junejo, (PLD 1998 Lah. 461) and Mian Muhammad Shahbaz Sharif Vs. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others (PLD 1995 Lah 541) on the same subject were upheld, was not in accordance with the Constitutional mandate. The learned counsel submitted that the principle of true and harmonious interpretation of law, would require that eligibility of a person as candidate for election of President of Pakistan must be determined under Article 41 (2) read with Articles 62 and 63 and consequently, the judgments referred above were not only contrary to the law laid down by this Court in Pir Sabir Shah's case supra, but were also not in consonance with the spirit of Article 41 (2) of the Constitution.
The second limb of the argument of learned counsel in respect of eligibility of General Pervez Musharraf is that he after relinquishing the charge of the office of Chief Executive in terms of Article 41 (7)(b) of the Constitution has almost completed a full term of office of President and prior to the assumption of office of President under the President Succession Order, 2001, he also completed left over term of an elected President (Mr. Justice (R) Muhammad Rafique Tarrar) and thus having already completed two terms of office of President in terms of Article 44 (2) of the Constitution, is not eligible to contest election for the third term. The learned counsel added that General Pervez Musharraf having not relinquished the office of COAS in pursuance to proviso to Article 41(7)(b) of the Constitution inserted by virtue of 17th Amendment, has rendered himself disqualified under Article 63 (1) (d) (k) and (o) of the Constitution to be elected or chosen as Member of Parliament to hold the office of President and consequently, notwithstanding the Article 270-AA of the Constitution and 17th amendment, he while holding the office of COAS cannot hold the office of COAS cannot hold the office of President and is also not qualified to contest the election for the office of President for the next term. The learned counsel thus argued that a candidate in the election for the office of President must not only fulfill the qualification to be elected as Member of the Parliament under Article 62 of the Constitution but he should also be not suffering from any disqualification to be elected or chosen as Member of Parliament under Article 63 of the Constitution or under any other provision of the Constitution and law.
The next contention of the learned counsel is that General Pervez Musharraf is occupying the office of COAS in deviation to the law and the Constitution depriving the others from their legitimate right to hold the said office in their own right and with reference to the cases titled Government of Balochistan Vs. Azizullah Memon (PLD 1993 SC 341), Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457), Inamur Rehman Vs. Federation of Pakistan and another (1992 SCMR 563), Kanta Kathuria Vs. Manak Chand Surana (1970) 2 SCR 835) and Muhammad Shahbaz Sharif V. Muhammad Altaf Hussain (PLD 1995 Lahore 541), has submitted that he has rendered himself disqualified to contest the election for the office of President.
Mr. Hamid Khan, Sr. ASC, learned counsel in the Constitution Petition Nos. 58 & 61/2007 has submitted that General Pervez Musharraf obtained commission in the Pakistan Army as Second Lieutenant in 1964 and having been served for a period more than 36 years, he was promoted as General and then was appointed as COAS on 7.10.1998. The learned counsel without taking any exception to the prevailing situation, submitted that General Pervez Musharraf having completed the normal terms of office of COAS on 6th October 2001 and attaining the retiring age of 60 years on 11.8.2003 could not hold the office of COAS beyond the above dates, therefore, his continuation in the said office was illegal and unConstitutional. In consequence thereto, notwithstanding the provision of Article 41(7) of the Constitution and Act VII of 2004, he having incurred disqualification referred in Article 63(1)(d) and also suffering from disqualification mentioned in clause (k) and (o) of this Article of the Constitution is not eligible to contest the election of the office of President. The learned counsel added that General Pervez Musharraf indulged in political activities in violation of his oath as Member of Armed Forces under Article 244 read with 3rd Schedule of the Constitution as well as Pakistan Army Regulations Vol I, (Rules) 1998, and also having not relinquished the office of COAS in terms of proviso to Article 41(7)(b) inserted through 17th Amendment in the Constitution, has incurred a patent disqualification to hold the office of President or to become a candidate in the forthcoming election for President.
Learned counsel next argued that Act VII of 2004 being violative of Article 2-A read with Articles 8, and 25 of the Constitution is not a valid law to have any legal effect and in the light of law laid down by the Supreme Court of India in Amirunnisa Begum Vs. Mehboob Begum (AIR 1953 SC 91) and by the Supreme Court of Pakistan in Abrar Hassan Vs. Govt. of Sind (PLD 1976 SC 315), General Pervez Musharraf cannot hold two Constitutional offices at the same time.
Last point argued by the learned counsel was that notwithstanding the provision of Article 41 (3) and (4) of the Constitution, the present National and Provincial Assemblies do not constitute a valid electoral college for the election of President under Article 41(3) of the Constitution as the terms of these Assemblies as provided in Article 52 and Article 107 of the Constitution respectively, are also expiring with the term of President in office.
Mr. A.K. Dogar, Sr. ASC, learned counsel in Constitution Petition No. 68/2007 with reference to the events of military Take-over and Proclamation of Emergency in October, 1999, promulgation of Provisional Constitutional Order and pronouncement of judgment in Zafar Ali Shah case in 2000, the President Successions Order 2001, the Referendum Order, 2002, Legal Framework Order, 2002, the holding of General Elections Order, 2002, taking of Oath of Office of President, the Revival of Constitution Order 2002, passing of 17th Amendment and promulgation of Act VII of 2004 contended that the continuation of General Pervez Musharraf in the office of COAS after 31.12.2004 was unConstitutional. The learned counsel added that promulgation of Act VII of 2004 under Article 63(1)(d) being ultra vires to the Constitution, was not a valid law to remove his disability to hold the office of COAS along with the office of President. He argued that the expression `declared' has been used in Article 63(1)(d) of the Constitution with reference to the laws already in existence whereas Act VII of 2004 was enacted subsequent to the 17th Amendment in the Constitution exclusively for the benefit of General Pervez Musharraf to undo the effect of proviso added in Article 41(7)(b) of the Constitution to enable him to hold the office of President along with office of COAS in utter disregard to the legislative competence of the Parliament and the law laid down by this Court in Mahmood Khan Achakzai Vs. Federation of Pakistan (1997 SC 426), Asma Jillani Vs. Government of Punjab and another (PLD 1972 SC 139). The learned counsel emphasized that this is the duty of the Court to decide the question of law arising in a case even if it was not raised by the parties, therefore, notwithstanding the judgment of this Court in Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), it was still open for this Court to examine the validity of 17th Amendment and Act VII of 2004 by virtue of which an encroachment was made on the political rights of the people as incorporated in Article 17 of the Constitution to elect a person of their choice as Head of State. Learned counsel submitted that in the light of law laid down by this Court in Zafar Ali Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the Parliament in its legislative competence, could not enact a law to perpetuate the Military Rule.
The next contention of the learned counsel is that notwithstanding the protection provided to General Pervez Musharraf (respondent) under Article 41(7)(b) to hold the office of COAS with the office of President, the occupation of office of COAS beyond the scope of proviso added therewith by 17th Amendment in the Constitution, was violative of Articles 63, 41 and Article 43 of the Constitution, therefore, his disqualification to contest election, was floating on the surface and this Court may not hesitate to examine the question of his eligibility as a candidate in the election of President in its original jurisdiction under Article 184(3) of the Constitution before or after the election and placing reliance on Al-Jehad Trust Vs. Federation of Pakistan (PLD 1996 SC 324) added that the President having involved himself in political activities and patronizing a political party, has rendered himself liable to be removed from office under Article 47 of the Constitution and consequently, he would also be not a fit person to be elected as President for the next term.
The learned counsel forcefully argued that Articles 62 and 63 cannot be separated and read in isolation rather both these Articles must be read together with Article 41(2) of the Constitution for the purpose of determination of the eligibility of a person to contest the election for the office of President and placing reliance on Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66) contended that the disqualification of a person referred therein cannot be ignored on technical grounds.
The last point pressed by the learned counsel was that present incumbent of the office of President is not a righteous person as he having breached oath of his office, has proved him a dishonest person and also having acted in the manner prejudicial to the integrity and independence of the judiciary and ridiculing the Armed Forces of Pakistan for his personal gain has lacked qualification under Article 62 (f) of the Constitution and also earned disqualification under Article 63 (g) of the Constitution to hold any public office.
Malik Muhammad Qayyum, learned Attorney General for Pakistan without disputing the Public Importance of the election of President, has seriously questioned the maintainability of these petitions under Article 184(3) of the Constitution with the assertion that the question as to whether a person is qualified for the election of President or not, has no nexus with any of the fundamental rights conferred by Part II Chapter 1 of the Constitution [Articles 8 to 28) and unless there is a question relating to the enforcement of any of these fundamental rights, the original jurisdiction of this Court under Article 184(3) of the Constitution, cannot be invoked. The learned Attorney General, urged that the right to contest the election for a public office is different to the right to challenge the candidature of a person to restrain him from participating in the election and notwithstanding the public importance of the election of Head of State, the question relating to the qualification and disqualification of a person to determine his eligibility as a candidate in such election is not a fundamental right enforceable under Article 184 (3) of the Constitution. The learned Attorney General submitted that the qualification and disqualification is a matter which relates to the eligibility of a person to contest the election and this is settled law that all questions relating to the eligibility and candidature of a person must be decided by the concerned forum at the appropriate stage in accordance with law. Therefore, the objection that the respondent was suffering from certain disqualifications mentioned in Article 63 of the Constitution can be conveniently raised before the proper forum provided under the law and a direct petition under Article 184(3) of the Constitution before this Court in such a case is not maintainable.
The learned Attorney General forcefully argued that in view of the law laid down by the Supreme Court of India in Mahendra Lal Vs. State of U.P. (AIR 1963 SC 1019), the question whether a judgment is per incuriam is not a question relating to the enforcement of any fundamental rights mentioned in part-II of Chapter 1 (Articles 8 to 28) of the Constitution. He submitted that the expression per incuriam means wrong decision or a decision rendered in ignorance of law but a judgment is not per incuriam merely for the reason that it contains a different view on a question of law to that of the view rendered in an earlier judgment and so long such a judgment is in the field, it has binding effect in terms of Article 189 of the Constitution. This is settled proposition of law that if a person on the relevant date is qualified to be elected as member of Parliament, the eligibility of such a person cannot be subsequently re-determined by stretching the law against his candidature with retrospective effect. This is also settled proposition that subject to law, a person has right to contest the election and has also right to raise objection before the appropriate forum that his opponent is not qualified to contest the election but such rights do not fall under Part II Chapter 1 of the Constitution, therefore, this Court may not exercise jurisdiction under Article 184(3) of the Constitution in such matters.
Learned Attorney General with reference to the cases titled Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others vs. Pervez Musharraf, Chief Executive, and others (PLD 2002 SC 853), Pakistan Lawyers Forum vs. Federation of Pakistan (PLD 2005 SC 719) and Aftab Shahban Mirani vs. President of Pakistan (1998 SCMR 1863) argued that the opinion rendered by this Court in these judgments relating to the interpretation of Article 41(2) of the Constitution, was quite different to the proposition involved in Pir Sabir Shah's case, supra, and while placing reliance on All Pakistan Newspaper Society vs. Federation of Pakistan (PLD 2004 SC 600), Muhammad Shahbaz Sharif vs. Federation of Pakistan (PLD 2004 SC 583), Syed Zulfiqar Mehdi and another vs. Pakistan International Air Lines through M.D. Karachi and others (1998 SCMR 793) and Manzoor Elahi vs. Federation of Pakistan (PLD 1975 SC 66) argued that these petitions are not maintainable under Article 184(3) of the Constitution.
In the wake of arguments on merits learned Attorney General submitted that Article 41(2) of the Constitution read with Article 62 of the Constitution is self-contained in respect of the qualification and disqualification of a person for the election of President, therefore, the disqualification mentioned in Article 63 is not as such applicable to the election of President to determine the eligibility of a person under Article 41(2) of the Constitution. In support of the proposition, he has placed reliance on the cases of Aftab Shahban Mirani Vs. Chief Election Commissioner and others (1998 SCMR 1863), Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719) and Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others Vs. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853).
The learned Attorney General next contended that the validity of Act VII of 2004 as well as the question relating to the application of Article 63 has been elaborately dealt with by this Court in Lawyers Forum's case supra and in view of the legal position explained therein, General Pervez Musharraf, is not suffering from any disqualification mentioned therein to participate in the election of President as candidate. He submitted that be that as it may, all questions relating to the eligibility of a candidate in the election of President must be raised before Chief Election Commissioner, a forum provided under the Constitution and with reference to Kanta Kathuria Vs. Manak Chand (AIR 1970 SC 694), N. Ibomcha Singh Vs. Chandramani Singh (AIR 1977 SC 682), Province of East Pakistan Vs. Sirajul Haq Patwari (PLD 1966 SC 854), Multiline Associates Vs. Ardeshir Cowasjee (PLD 1995 SC 423), Fauji Foundation Vs. Shamimur Rehman (PLD 1983 SC 457) L. N. Mishra Institute of E.D. and Social Change Vs. State of Behar (AIR 1988 SC 1136), Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others Vs. Pervez Musharraf, Chief Executive, and others (PLD 2002 SC 853) he forcefully argued that these petitions are neither maintainable nor have any substance to succeed on merits.
Syed Sharifuddin Pirzada, learned Sr. ASC having adopted the arguments of learned Attorney General, has submitted that learned counsel for the petitioners have not been able to point out the involvement of any question relating to the enforcement of any of the fundamental rights in the present petitions. The different interpretation in two judgments on a question of law is not as such a matter relating to the enforcement of a fundamental right to invoke the jurisdiction of this Court under Article 184(3) of the Constitution. Learned counsel has submitted that since a review petition is pending before this Court in the case of Lawyers Forum, supra, whereas judgment rendered in Qazi Hussain Ahmed's case has attained finality, therefore, the precise question relating to the application of Article 63 of the Constitution to the election of President cannot be agitated in the present petitions at this stage. Learned counsel with reference to Babu Parasu Kaikadi Vs. Babu (AIR 2004 SC 754) submitted that notwithstanding the divergent opinion of this Court on a question of law, the law so declared unless is changed, has binding effect under Article 189 of the Constitution and cannot be ignored.
Mr. S.M. Zafar, learned Senior ASC appearing as amicus curiae, has argued that the Presidential election is an essential step to complete transitional process of transfer of powers from military rule to civil authorities and this process must not be obstructed. Learned counsel pointed out that Act VII of 2004 was validated by this Court in Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), in consequence to which the President continued in the office while holding the office of COAS, therefore, the validity of this Act was no more questionable and further in view of statement made by Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of General Pervez Musharraf that if he is elected as President for the second term, he will relinquish the office of COAS before taking oath of office of President, these petitions have borne fruit which may be disposed of accordingly.
The learned counsel argued that the bar of holding another office by the President in the service of Pakistan under Article 43 of the Constitution was not applicable to General Pervez Musharraf, the present incumbent of office of President by virtue of Article 41(7)(b) of the Constitution and this Court may direct him to relinquish the office of COAS before the election so that the process of transfer of powers is completed in accordance with the Constitution. Learned counsel argued that in consequence to the direction given by this Court in Zafar Ali Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) the elections were held and assemblies were constituted. The Legal Framework Order (LFO) was incorporated in 17th Amendment in the Constitution and a number of other steps were taken and acts were done for restoration of democracy, therefore, the questions raised in the present petitions may have no substantial bearing on the real issue rather may have adverse effect on smooth transfer of power at this stage.
Mr. Abdul Hafeez Pirzada, learned Sr. ASC appearing as amicus curiae, having endorsed the views of Mr. S.M. Zafar submitted that transition of power must not be interrupted and that the objection relating to the eligibility of General Pervez Musharraf to contest the election of President, stands removed on the undertaking given by Syed Sharifuddin Pirzada, learned Sr. ASC in the Court on his behalf for relinquishing the office of COAS, therefore, there is no need to further proceed with these petitions. The learned counsel while distinguishing the judgment in Pir Sabir Shah's case cited before the Court in respect of the question relating to the application of Article 63 of the Constitution to the election of President, submitted that the judgments in Qazi Hussain Ahmed and Lawyers Forum cases were not per incuriam and submitted that by virtue of proviso to Article 41(7)(b) read with Act VII of 2004 General Pervez Musharraf may not hold the office of COAS beyond the date of expiry of his current term of office of President. Be that as it may, the Chief Election Commissioner is the proper forum to determine the eligibility of the candidates for the election of President in terms of Article 41 (2) of the Constitution and since Constitutional aberration in Pakistan, was a normal practice, therefore, a worst kind of democracy would be better to that of an ideal dictatorship. The learned counsel tracing out the Constitutional history of Pakistan suggested that this Court may not allow the obstruction in the transition of powers at this stage.
Mr. Aitzaz Ahsan, Sr. ASC also appearing as amicus curiae, has contended that under the Constitution no person in the service of Pakistan including a Member of Armed Forces can contest the election for the office of President or for any other elective office and in the light of legal position, the following situations may arise in the facts and circumstances of the present cases.
(i) In consequence to 17th Amendment in the Constitution, Gen. Pervez Musharraf, can retain the office of President as well as the office of COAS maximum till the expiry of his present term of office of President.
(ii) In view of the statement made by Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of General Pervez Musharraf that he will relinquish the office of COAS before taking oath of office of President for the next term, he has conceded his disqualification and therefore, neither he can hold office of COAS after a particular date nor he is qualified for election of President for the next term.
(iii) In view of the provisions of Article 63 (1)(d)(k) and (o) of the Constitution, it is clear that General Pervez Musharraf while holding the office of COAS is not eligible under Article 41(2) read with Article 44(2) of the Constitution to contest the election for the office of President and in the light of theory of separation of powers under the Constitution while being Member of Armed Forces cannot occupy any other elective office.
Mr. Aitzaz Ahsan, learned Sr. ASC, has argued that there is a Constitutional and legal fire wall around the office of the President but in consequence to the 17th Amendment in the Constitution a deviation has been made to enable the President to hold another office in complete departure to the concept of the democracy and Parliament system of Government. Learned counsel contended that under the provisions of Articles 41 and 62 read with Article 63 of the Constitution a person in service of Pakistan is disqualified to contest the election for the office of President and this Constitutional disqualification cannot be removed through subordinate legislation therefore, notwithstanding the enforcement of Act VII of 2004 General Pervez Musharraf is not qualified to contest the election of President. Learned counsel submitted that Articles 62 and 63 of the Constitution being interlinked, the eligibility of a person must not be determined only on the basis of qualification mentioned in Article 62 of the Constitution rather his eligibility must be determined in the light of disqualifications mentioned in Article 63 of the Constitution and in the present case, General Pervez Musharraf by virtue of his oath under Article 244 read with 3rd Schedule of Constitution, even otherwise is not qualified to contest election for the office of President. Learned counsel with reference to the certain provisions of the Constitution submitted that distinction being made between qualification and disqualification is beyond the scope of law as well as logic and placing reliance on the cases of Sabir Shah (PLD 1995 SC 66), Dr. Zakar Hussain's case (AIR 1968 SC 908) and Shahbaz Sharif vs. Altaf Hussain (PLD 1995 Lahore 541) argued that qualification and disqualification must be given effect together for the purpose of determination of the eligibility of a person to contest the election. There is thus a fallacy in the idea that disqualification mentioned in Article 63 of the Constitution is not applicable to the election of the President despite the fact that a candidate in such election, must be qualified to be elected as Member of Parliament. Learned counsel thus emphasized that the proposition raised herein would require examination in the light of principle of rational interpretation of the law on the subject.
After hearing the learned counsel for the parties and learned amicus curiae at quite some length and perused the case law on the subject cited by them at the bar in support of the contentions raised in these petitions and in the light of concept of original jurisdiction of the Supreme Court under the Constitution as well as the law laid down by this Court, we at the first instance, consider it proper and necessary to examine the question relating to the maintainability of these petitions under Article 184(3) of the Constitution which provides as under:--
"184 (1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.--In this clause, "Governments" means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause, (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject-matter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter-1 of the Constitution. Therefore, we in the light of law laid down by this Court on the subject, would like to examine the question as to whether the present petitions qualify the test of maintainability under Article 184(3) of the Constitution.
This Court in Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632) interpreted the expression "public importance" as under:--
"......it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals."
"8. In order to confer jurisdiction on this Court to entertain a petition under Article 184 (3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632). The expression `public importance' was interpreted in the case of Manzoor Elahi Vs. Federation of Pakistan (PLD 1975 SC 66) as follows:--
"Now, what is meant by a question of public importance. The term public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in
Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Bom 279) while construing the wordspublic purpose' such a phrase, whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned'. This definition appears to me to be equally applicable to the phrasepublic importance'.
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence. (Emphasis provided)
"3. In order to appreciate the above controversy, it may be advantageous to quote above clause (3) of Article 184 of the Constitution, which reads as follows:--
"184(3).--Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
A perusal of the above-quoted clause indicates that without prejudice the provisions of Article, 199 of the Constitution, which confers a Constitutional jurisdiction on the High Courts, the Supreme Court has been empowered to make an order of the nature mentioned in the above Article 199 provided the following two conditions are fulfilled :--
(i) a question of public importance is involved;
(ii) with reference to the enforcement of any of the Fundamental Rights guaranteed by Chapter 1, Part II of the Constitution, i.e. Articles 8 to 28."
It was further held that:--
"Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the Supreme Court and its object is to ensure the enforcement of fundamental rights referred to therein. This provision is an edifice of democratic way of life and manifestation of responsibility casts on this Court as a protector and guardian of the Constitution. The jurisdiction conferred by it is fairly wide and the Court can make an order of the nature envisaged by Article 199, in a case where a question of public importance, with reference to enforcement of any fundamental right conferred by Chapter 1 of Part II of the Constitution is involved. Article 184(3) is remedial in character and is conditioned by three prerequisites, namely--
(i) There is a question of public importance.
(ii) Such a question involves enforcement of fundamental right, and
(iii) The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution."
"3. First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions; one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the fundamental rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order of the nature mentioned in Article 199. The word `nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to secure and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance." (Emphasis provided)
"3. The above petitions have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. The above provision reads as follows:--
"(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:--
(i) The case involves a question of public importance; and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter I of Part II of the Constitution.
"199.--(l) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office." (Emphasis provided)
A High Court, while passing an appropriate order for the enforcement of Fundamental Rights or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not required to go into the question, whether the case involves a question of public importance and, secondly, under the above sub-clauses (a) and (b) of clause (1) of Article 199, it is not necessary that the impugned action must be relatable to the enforcement of Fundamental Rights."
In Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) the provisions of Articles 184(3) and 199 of the Constitution were interpreted in the following manner :--
"From the above discussion it is quite clear that the use of the expression `without prejudice to the provisions of Article 199' in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of fundamental rights guaranteed under Chapter I of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of the Constitution is not affected in any manner either by the provisions of Section 133 of the Act or by the conditions contained in Article 199(3) of the Constitution. The jurisdiction of this Court in a case under Article 184(3) of the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly, that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter 1, Part II of the Constitution. Apart from these two jurisdictional requirements, no other consideration are relevant for exercise of power by this Court under Article 184(3) of the Constitution." (Emphasis provided)
"Article 184(3) of the Constitution empowers Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a case the infringement of the Fundamental Right is complete co instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the Constitutional remedy. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of Supreme Court for the enforcement of his right, will be to deny him the benefit of a salutary Constitutional remedy which is itself his Fundamental Right. The infractions alleged cannot be regarded as seeking a declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions."
"it is evident from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental
Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the remedy' that makes the right real. It is often said that withoutremedy' there is no right. It is for this reason that
Constitution-makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme
Court at the apex having jurisdiction over the entire length and breadth of
Pakistan. Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter I of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating. The language of Article 184(3) is "open ended", and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons."
There is no cavil to the principle that original jurisdiction of this Court under Article 184 (3) of the Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement of fundamental rights conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in absence of any of the above condition, this Court is not supposed to entertain a petition under Article 184 (3) of the Constitution. The object of Article 184(3) of the Constitution is the enforcement of the fundamental rights referred therein and no question, other than relating to the enforcement of a fundamental right, can be brought before this Court for determination in its original jurisdiction and an aggrieved person may avail other remedies open to him under the law. This Court will not entertain a petition under Article 184(3) if infringement of any of the fundamental rights conferred by Part II Chapter I of the Constitution is not involved as the remedy under this Article is only for the enforcement of fundamental rights in a case of public importance. The validity of any law or a provision of Statute if is challenged on the ground other than being in contravention of fundamental rights, the Supreme Court would not entertain such challenge in the proceedings under Article 184(3) of the Constitution, even if the law is found in contravention of some other provision of the Constitution. The rule is that Supreme Court will not interfere under this Article unless it is satisfied that infringement of the right being complained is the fundamental right and breach of such right is a matter of public importance. The Constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution also cannot be invoked for the correctness of a judgment of the Court in which a question of law was decided unless it is established that in consequence to the judgment of this Court, a fundamental right falling in Part II Chapter I of the Constitution has been violated. The Supreme Court indeed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invokeable only in the matter of public importance relating to the enforcement of fundamental rights. The question pertaining to the determination of the legislative competence or vires of a particular enactment can only be gone into by this Court in its original jurisdiction under Article 184(3) of the Constitution if a case is made out for interference, by establishing that a law so enacted was beyond the competence of the legislature or it was not covered by the legislative list or the same has invaded the fundamental rights guaranteed in Part-II, Chapter-1 of the Constitution. The general principle is in favour of presumption of Constitutionality of an enactment and Courts are not supposed to struck down a law merely on technical grounds for collateral purposes. Similarly, the question relating to the correctness or validity of an order and judgment of the Supreme Court may not as such be entertainable in the proceedings under Article 184(3) of the Constitution to undo the effect of such order or judgment. However, the Court may in an appropriate case in which a fundamental right is being infringed, can entertain an original petition as right to move the Supreme Court in a case of violation of fundamental right is itself a fundamental right. It is thus essential that existence of a fundamental right and its breach actual or threatened, must be established to entertain a petition under Article 184(3) of the Constitution. The power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writs and also is not necessarily circumscribed by the conditions to limit the exercise of power rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights.
The scope of judicial review of the Supreme Court perhaps is most extensive known to the world of law as the Supreme Court in exercise of this power, can examine the validity even of an amendment in the Constitution which is violative of the basic structure of the Constitution. However, the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is not supposed to give a declaration which has no useful purpose so far as the public interest is concerned and this power is also not invokeable in absence of a direct and casual violation of fundamental right guaranteed under Part-II of Chapter 1 of the Constitution. The right to contest the election may be a Constitutional right which is regulated by the limitation imposed by the Statutes and consequently, the provision of law relating to such right or right to vote may not as such fall within the purview of fundamental rights in Part-II of Chapter 1 of the Constitution to bring the matter relating to such rights within the ambit of Article 184 (3) of the Constitution as the right to file a petition under Article 184(3) of the Constitution arises only in a case of infringement of the fundamental right or a serious threat to infringe such a right. The mere apprehension of breach of fundamental right is not enough to invoke the extra-ordinary jurisdiction of the Supreme Court as the Court is always reluctant to answer the hypothetical question even if such a question in its substantial context may be of public importance relating to the enforcement of fundamental rights and similarly the Supreme Court may not grant relief in exercise of its original jurisdiction in a case, filed with inordinate delay notwithstanding the fact that delay would not effect the jurisdiction of the Court.
In the light of foregoing discussion, there can be no departure to the Constitutional mandate that unless a matter of public importance concerning with the enforcement of fundamental rights conferred by Part II of Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not maintainable. In the present case, the matter to the extent of the Presidential election is certainly has public importance but we have not been able to digest that the questions raised therein really relates to the enforcement of the fundamental rights conferred by Part II Chapter-1 of the Constitution (Articles 8 to 28) to invoke the jurisdiction of this Court under Article 184(3) of the Constitution. The expression "enforcement" has predominant significance with reference to "fundamental rights" and reliance may be placed on; (1) Banazir Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416), (2) Federation of Pakistan Vs. Muhammad Saifullah Khan (PLD 1989 SC 166), (3) Banazir Bhutto vs. President of Pakistan (PLD 1998 SC 388), (4) Muhammad Nawaz Sharif vs. President of Pakistan (PLD 1993 SC 473), (5) Zafar Ali Shah vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), (6) Aftab Shahban Mirani vs. President of Pakistan (1998 SCMR 1863), (7) Muhammad Rafiq Tarar Vs. Mukhtar Ahmed Junejo (PLD 1998 Lahore 461), (8) Malik Asad Ali & others vs. Federation of Pakistan (PLD 1998 SC 161), (9) All Pakistan Newspapers Society vs. Federation of Pakistan (PLD 2004 SC 600), and (10) I.A. Sharwani Vs. Government of Pakistan (1991 SCMR 1041).
The petitioners in the present petitions, have sought a declaration that General Pervez Musharraf, a prospective candidate in the forthcoming Presidential election while holding the office of Chief of Army Staff, is not eligible to contest and participate in the election and even otherwise, by virtue of Article 63 (1) (d) (k) and (o), he is not qualified to contest the election of President. However, the learned counsel for the petitioners have not been able to satisfy us that in what manner the disqualification of General Pervez Musharraf if any has caused infringement of any of the fundamental rights of the petitioners or any other person guaranteed under the Constitution and in what manner it relates to the enforcement of such rights under Article 184(3) of the Constitution.
This Court in the case of Zafar Ali Shah Vs. Pervez Musharraf (PLD 2000 SC 869), held that fundamental rights provided in Part-II Chapter-1 of the Constitution shall continue to hold the field but the State would be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution. In Qazi Hussain Ahmad Vs. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) it was observed that the powers of the Government were strictly circumscribed in the judgment in Syed Zafar Ali Shah's case supra. In Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66), it was observed that this Court can exercise jurisdiction without prejudice to Article 199 if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights mentioned therein is involved and has power to do complete justice under Article 187 of the Constitution. In Wattan Party Vs. Federation of Pakistan (PLD 2006 SC 697), this Court while dealing with a Constitution petition, held that Supreme Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights or the provisions which are found inconsistent with the Constitution. In Wasim Sajjad Vs. Federation of Pakistan (PLD 2001 SC 233) while dealing with doctrine of State necessity, it was held that to save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments, the Court has to make every attempt to save what institutional values required to be saved. In Muhammad Nawaz Sharif Vs. President of Pakistan (PLD 1993 SC 473) it was held that preliminary objection regarding the maintainability of the petition should be joined with the question arising on merits and both the questions should be heard and decided together. In Amanullah Khan Vs. Chairman Medical Research Council (1995 SCMR 202), this Court in its original jurisdiction while dealing with a petition seeking ban on commercials appearing on TV on behalf of cigarette companies, held that the petition did not fall within the restricted jurisdiction enjoyed by this Court under Article 184 (3) of the Constitution. In Zulfiqar Mehdi Vs. Pakistan International Airlines Corporation (1998 SCMR 793), it was held that the allegation of discrimination made by the petitioners having been denied by the employer Corporation, the issue of discrimination both on legal as well as factual planes required enquiry into the factual aspects which could not be taken up by the Supreme Court in the proceedings under Art. 184(3) of the Constitution. This Court in "All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600)" held that jurisdiction under Article 184 (3) would be exercised subject to the establishing by furnishing convincing evidence, as to the non availability of any other adequate remedy and that question of public importance with reference to enforcement of fundamental rights had been made out. In State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 SCMR 1341) it was held that violation of Articles 4 & 5 of the Constitution which do not fall in Part II Chapter 1 of the Constitution, cannot attract the jurisdiction of Supreme Court under Art. 184(3) of the Constitution. This Court in Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), held that the questions raised in the direct petition must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large irrespective of the fact that who raised such question. In Muhammad Siddique v. Government of Pakistan (PLD 2005 Supreme Court 1), it was held that the issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue, in order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The expression `public' necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole but if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance. In Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), this Court while dealing with Article 184(3) held that vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown where the Act is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner. This Court in Javed Jabbar and 14 others v. Federation of Pakistan and others (PLD 2003 Supreme Court 955) held that filing of a Constitution petition depends upon the nature of the case and the inbuilt provisions of Article 184(3) of the Constitution can be invoked in a case relating to violation of fundamental rights and question of public importance.
The ratio of the judgment referred hereinabove is that unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184 (3) of the Constitution. Consequently, we having considered the matter in the light of the law laid down by this Court in the judgments referred hereinabove, find that these petitions under Article 184(3) of the Constitution are not maintainable and we are not persuaded to agree with the assertion that in view of the nature of dispute and importance of the matter, the Court may ignore the objection and decide these petitions on merits. This may be pointed out that in the light of Constitutional mandate as contemplated in Article 184(3) of the Constitution this Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein. The question raised in the present petitions do not as such relate to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution and most of these questions even otherwise are speculative and presumptive in nature at this stage. In view of the clear distinction between Article 199 and Article 184 (3) of the Constitution, this Court has repeatedly held that in the matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.
The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter is of public importance and also relates to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution which are incorporated in Articles 8 to 28 of the Constitution as under :--
"(8) Laws inconsistent with or in derogation of Fundamental Rights to be void, (9) Security of person (10) Safeguards as to arrest and detention, (11) Slavery, forced labour, etc., prohibited, (12) protection against retrospective punishment, (13) Protection against double punishment and self-incrimination, (14) Inviolability of dignity of man, etc, (15) Freedom of movement, etc, (16) Freedom of assembly, (17) Freedom of association, (18) Freedom of speech, etc, (19) Freedom to profess religion and to manage religious institutions, (20) Safeguard against taxation for purpose of any particular religion, (21) Safeguard as to educational institutions in respect of religion, etc, (22) Safeguards as to educational institutions in respect of religion, etc, (23) Provision as to property, (24) Protection of properly rights, (25) Equality of citizens, (26) Non-discrimination in respect of access to public places, (27) Safeguard against discrimination in services and (28) Preservation of language, script and culture."
The learned counsel for the petitioners in the present petitions half-heartedly argued that subject matter of these petitions may fall within the purview of Articles 17 and 25 of the Constitution and we with a view to ascertain that in what manner the rights guaranteed under Articles 17 and 25 of the Constitution, have been violated, consider it necessary to examine these Articles :--
Freedom of association. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan or public order] and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or public order] the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
Provided that no political party shall promote sectarian, ethnic, regional hatred or animosity, or be titled or constituted as a militant group or section.
(3) Every political party shall account for the source of its funds in accordance with law.
(4) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders."
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
In the light of nature of rights guaranteed under Articles 17 and 25 of the Constitution, the learned counsel for the petitioners have not been able to point out that which particular right under these articles required enforcement and in what manner these rights of the petitioners or any other person, were infringed to bring the matter within the ambit of Article 184 (3) of the Constitution. Article 25 of the Constitution envisages that all persons are equal before law and a person aggrieved of any discriminatory treatment in respect of any of his right may approach the High Court and avail the remedy of writ petition for redressal of his grievance under Article 199 of the Constitution and if the question relating to the discriminatory treatment in respect of any of fundamental rights concerns with public at large, a direct petition under Article 184(3) of the Constitution is entertainable. In the present case, petitioners have questioned the eligibility of the respondent to contest the election for the office of President which has no nexus with the rights guaranteed under Articles 17 and 25 of the Constitution. The principle of equality and equal protection of law embodied in Article 25 of the Constitution envisages that All citizens are equal before law and are entitled to equal protection of law without any discrimination. This principle is however subject to reasonable classification and this Court in Govt. of Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341) held that no standard of universal application to the test of reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances. Looking into the matter in the perspective of Article 25 of the Constitution, we have not been able to find out any substance in the contention that respondent (General Pervez Musharraf) being in advantageous position, has edge over the other candidates in the election and similarly, the members of Armed Forces of the equal rank of General Pervez Musharraf have been discriminated in respect of equal chance of appointment as COAS.
In the light of the above discussion, we having come to the conclusion that the questions raised in these petitions do not directly or indirectly relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter 1 of the Constitution as contemplated in Article 184 (3) of the Constitution and consequently, the objection of the respondents regarding the maintainability of these petitions is upheld.
This may be pointed out that most of the questions raised in these petitions relating to the eligibility of President General Pervez Musharraf, a prospective candidate in the forthcoming election for the office of President are speculative and presumptive in nature which even otherwise would fall in the domain of Election Commissioner of Pakistan, a Constitutional forum and consequently these petitions before this Court apart from being not maintainable, are premature. In consequence to the above discussion, we may conclude as under:--
(i) Notwithstanding the public importance of the subject matter of these petitions, the questions raised therein do not as such relate to the enforcement of any of the fundamental rights guaranteed in Part II Chapter-1 of the Constitution (Articles 8 to 28) to invoke the original jurisdiction of this Court under Article 184 (3) of the Constitution.
(ii) The question as to whether a person is or is not qualified to contest the election for the office of President in terms of Article 41(2) read with other provisions of the Constitution, does not relate to the enforcement of any of the fundamental rights of the petitioners or any other person, therefore, the direct petition before this Court under Article 184(3) of the Constitution is not maintainable.
(iii) The Parliament, pursuant to its legislative competence under the Constitution, has enacted Act VII of 2004 which having been found not in conflict to any provision of the Constitution, was validated by this Court in the case of Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719) and pending a review petition against the judgment in the above case, a separate petition on the same subject with a delay of more than two years may not be entertainable.
(iv) The question relating to the application of Article 63 read with Article 62 of the Constitution for the purpose of determination of eligibility of a candidate in the election for the office of President squarely falling within the jurisdiction and domain of Election Commissioner of Pakistan, a Constitutional forum of exclusive jurisdiction, cannot be directly brought before this Court in its original jurisdiction under Article 184 (3) of the Constitution.
In the light of above discussion and in view of the facts and circumstances of the present cases, we are of the considered opinion that the questions raised therein are beyond the scope of Article 184 (3) of the Constitution and these petitions being not maintainable, are accordingly dismissed.
The above are the reasons of our short order of even date which is accordingly made part of this judgment, and is read as under :--
"For reasons to be recorded later, as per majority view of 6 to 3, these petitions are held to be not maintainable within he contemplation of Article 184 (3) of the Constitution.
ORDER OF THE COURT
FALAK SHER, J.--With a view to questioning legality of the exposure of candidature of President General Pervez Musharraf hereinafter referred to as the Respondent, for the ensuing Presidential elections, captioned petitions were preferred couched under Article 184(3) of the Constitution of 1973, hereinafter referred to as the Constitution, contending that he is disqualified for the sought for office being in the Service of Pakistan as a serving Chief of the Army Staff and could not do so unless a period of two years has elapsed since he ceases to be in that service in terms of Article 63(d) and (k), respectively; and the President to Hold Another Office Act VII of 2004 purportedly designed to enable him to do so, is ultra vires the Constitution.
After notice to the respondents and the learned Attorney General for Pakistan petitions were placed before this Bench and after hearing the learned counsel for the parties as well as the learned three amicus curiae at length during the course whereof learned counsel for the petitioners namely, Sh. Muhammad Akram, Mr. Hamid Khan and Mr. A.K. Dogar canvassed the arguments for disqualification of the Respondent to whom Mr. Aitezaz Ahsan also joined; to which the learned Attorney General for Pakistan and Mr. S. Sharifuddin Pirzada joined issue in addition to submitting that the petitions are not maintainable placing on record a statement stating that if elected as President the Respondent would relinquish the office of Chief of Army Staff before entering upon the office of the President, while Mr. S.M. Zafar pleaded facilitation of smooth transition to the civilian rule, and Mr. Abdul Hafiz Pirzada subscribing to the same view opposed the petitions on merits on both the counts.
On 28th instant by a majority of six to three the Bench resolved to dismiss the petitions being not maintainable within the contemplation of Article 184(3) of the Constitution, during the course of deliberations by the members of the Bench I while subscribing to the majority view avowed that since the entire case has been heard on merits as well, therefore, in my considered opinion for a person "to be qualified" for the election of the President within the meanings of Article 41(2), must not only be equipped with the qualifications enshrined in Article 62 but also ought to be free from the disqualifications envisaged by Article 63 which ought to be read conjunctively since the expression "qualified to be" manifested in Article 41(2) being of composite nature; further, the President to Hold another Office Act Vll of 2004 is ultra vires the Constitution.
Whereupon it was proposed that for brevity of the order I can record my opinion separately which I accordingly venture upon confining my views on the two counts viz. maintainability and eligibility of the Presidential candidate in the scenario referred to supra.
Embarking upon the jurisdictional question, text of Article 184 (3) in extenso is reproduced hereinbelow for the sake of convenience of reference conferring original jurisdiction of this Court other than exclusive jurisdiction pertaining to inter-Governmental disputes being the subject matter of the preceding clauses (1) and (2):--
"184 (3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
Perusal whereof reveals that sine qua non for availing of this jurisdiction two conditions precedent should co-exist as an essential concomitant viz. the lis. should engulf question of public importance concerning enforcement of fundamental rights which are conferred by Chapter-I of Part-II of the Constitution.
The first jurisdictional fact pertaining to the juridical classification of the lis, being beyond the pale of any ambiguity since the same relates to the eligibility of the serving Chief of Army Staff's candidature for the Presidential election thus is obviously a question of public importance.
However, the second limb offers the difficulty since it starts with the rubric ENFORCEMENT OF THE FUNDAMENTAL RIGHTS conferred by Chapter-I Part-II spelt, out in Articles 8 to 28 text whereof for the sake of convenience of reference is reproduced hereinbelow:
"8. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to--
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the--
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other law specified in [Part I of the First Schedule] and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation.--If in respect of any law [Majils-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
No person shall be deprived of life or liberty save in accordance with law.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding [three months] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient causes for such detention, and, if the detention is continued after the said period of [three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation I.--In this Article, "the appropriate Review Board" means,--
(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
Explanation II.--The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, [within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case :
Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy [, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such ant-national activity].
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
(2) All forms of forced labour and traffic in human beings are prohibited.
(3) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment.
(4) Nothing in this Article shall be deemed to affect compulsory service--
(a) by any person undergoing punishment for an offence against any law; or
(b) required by any law for public purpose :
Provided that no compulsory service shall be of a cruel nature or incompatible with human dignity.
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.
(a) shall be prosecuted or punished for the same offence more than one; or
(b) shall, when accused of an offence, be compelled to be a witness against himself.
(2) No person shall be subjected to torture for the purpose of extracting evidence.
Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.
Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.
(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of [sovereignty or integrity of Pakistan, public order or morality]
[(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan or public order and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or public order, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.]
[Provided that no political party shall promote sectarian, ethnic, regional hatred or animosity, or be titled or constituted as a militant group or section.]
(3) Every political party shall account for the source of its funds in accordance with law.
[(4) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders.]
Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.
Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by jaw in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign State, public order, decency or morality, or in relation to contempt of Court, commission of or incitement to an offence.
Subject to law, public order and morality,--
(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own.
(1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
(3) Subject to law, (a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and
(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens.
Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.
(1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of--
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenances to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
(2) Nothing in clause (1) shall prevent the State from making any special provision for women and children.
Provided that, for a period not exceeding [forty] years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan:
Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex.
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period, not exceeding three years, prior to appointment under that Government or authority".
Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose.
The expression "Enforcement" deployed by the framers of the Constitution is of predominant significance contemplating that the petitioner should be equipped with either of the spelt out fundamental rights for enforcement whereof he seeks a mandamous, is demonstrative of the fact that save for Articles 17 and 25 none of the remaining Articles has even remotest nexus with the controversy in hand thus impels examination of the latter two.
Article 25 envisaging equality of treatment enables a person to seek a recourse to the remedies catered for by Article 199 before the Provincial High Courts, and in the event of the issue involving question of public importance to this Court for the alleged discriminatory treatment metted out to him but does not perceive right to question some body else's candidature for election especially without being in the run.
Likewise, Article 17 though caters for right of association for infringement whereof obviously this jurisdiction could be invoked in appropriate cases of which the following precedents are illustrative:--
(i) Banazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) Challenging amendments in the Political Party Act 1962
(ii) Federation of Pakistan vs. Muhammad Saifullah Khan (PLD 1989 SC 166)
(iii) Banazir Bhutto vs. President of Pakistan (PLD 1998 SC 388)
(iv) Muhammad Nawaz Sharif vs. President of Pakistan (PLD 1993 SC 473) Challenging dissolution of the Assemblies and dismissal of the Governments
(v) Zafar Ali Shah vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869)
Questioning military takeover
(vi) Aftab Shahban Mirani vs. President of Pakistan (1998 SCMR 1363)
(vii) Muhammad Rafiq Tarar vs. Mukhtar Ahmed Junejo (PLD 1998 Lah. 461) seeking de-seating of the sitting Senator involving factual controversy for allegedly ridiculing the judiciary.
(viii) Malik Asad Ali & others vs. Federation of Pakistan (PLD 1998 SC 161) seeking resolution of the controversy stemmed out of appointment of the Chief Justice of Pakistan against the principle of seniority laid down in Al-Jehad Trust's case (PLD 1996 SC 341) splitting the Court into warring factions for which no other forum could have been recoursed to.
(ix) All Pakistan Newspapers Society vs. Federation of Pakistan (PLD 2004 SC 600)
Where the question of public importance was lacking, (x) I.A. Sharwani s. Government of Pakistan (1991 SCMR 1041) Pertaining to terms and conditions of a civil servant.
The afore-referred cases are distinguishable as a specie since those pertain to the enforcement of the spelt out fundamental right; while the present lis in pith and substance is designed to object to the serving Chief of Army Staffs candidature for the ensuing Presidential election which by no stretch of imagination could envisage enforcement of any of the petitioners' spelt out fundamental right without being contemporary contender in the race; especially when some of them having been instrumental in furnishing a foothold to the regime, conferring blanket umbrella and validation thereof vide 17th Amendment and Article 270-AA, reasons whereof are not beyond comprehension to comprehend especially visualized in the light of the fact that they had the right and opportunity to pull out the carpet underneath the pedestal of power by repealing it in the event of being averse to the same; thus renders the petitions not maintainable with a right to the petitioners to avail of appropriate remedies, hence 1 concur with the majority view in holding that the petitions are not maintainable.
Adverting to the core issue of eligibility of the Respondent for the forthcoming Presidential election it may be pointed out that Articles 41(2) and 41 (7)(b) provide the springboard, relevant text whereof is reproduced hereinunder:--
41 (2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly.
41 (7) The Chief Executive of the Islamic Republic of Pakistan--
(a) .....................
(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.
[Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004]
The expression "is qualified to be as a member of the National Assembly, deployed in Article 41(2) is the key governing word of composite character disseminating intendment of the legislature viz. a person aspiring to be a candidate for the Presidency must not only answer the description of qualifications envisaged in Article 62 but also should be free from the disqualifications prescribed by Article 63 which ought to be read conjunctively being inter-dependent, failing which it would be an absolute absurdity to perceive that a person despite being eclipsed by the disqualifications would be qualified to contest the election. For the sake of convenience of comparative glance, text of both the Articles is reproduced hereinbelow:--
A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--
(a) he is a citizen of Pakistan.
(b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in--
(i) any part of Pakistan, for election to a general seat or a seat reserved for non-Muslims; and
(ii) any area in a Province from which he seeks membership for election to a seat reserved for women.
(c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal capital or the Federally Administered Tribal Areas, from where he seeks membership;
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteous and non-profligate and honest and amen;
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;
(h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan:
Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and
(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (parliament).
63 (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament). If--
(a) he is of unsound mind and has been so declared by a competent Court; or
(b) he is an undischarged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of Section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he is propagating any opinion , or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty,, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local government on the grounds of misconduct or moral turpitude; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(m) he has been convicted under Section 7 of the Political Parties Act, 1962 (111 of 1962), unless a period of five years has elapsed from the date of such conviction; or
(n) he, whether by himself or by any person or body of persons in trust for him or his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:
Provided that the disqualification under this paragraph shall not apply to a person--
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;
(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1948 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that
family in the course of carrying on a separate business in which he has no share or interest; or
Explanation.--In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:--
(i) an office which is not whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force; or
(p) he has been convicted and sentenced to imprisonment for having absconded by a competent Court under any law for the time being in force; or
(q) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(r) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or
(s) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
[(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within thirty days from raising of such question refer the question to the Chief Election Commissioner.]
[(3) Where a question is referred to the Chief Election Commissioner under clause (2), he shall lay such question before the Election Commission which shall give its decision thereon not later than three months from its receipt by the Chief Election Commissioner.]
A perusal of Article 62 reveals that some of the qualifications have been couched in the positive form and some in the negative, while Article 63 incorporates the disqualifications, for violation whereof in the post election scenario framers of the Constitution have prescribed remedial mechanism in clauses 63 (2) & (3) for members of the Assembly but not for the Presidential candidate. In view whereof I am not persuaded by the submissions made at the Bar that Article 62 is a self-contained provision spelling out qualifications as well as disqualifications because the expression qualified to be used in Article 41(2) makes Articles 62 and 63 intertwined and interdependent thus ought to be read conjunctively. The contrary view would be paradoxical viz. despite visitation of the disqualifications a member of the National Assembly is to be disqualified but a Presidential candidate remains immune from the same.
Before proceeding further it may be mentioned that the observations made by this Court in this context in Qazi Hussain Ahmad's case (PLD 2002 SC 853) and Lawyers Forum's case (PLD 2005 SC 768) are per incuriam being only a passing reference without any ratio and misplaced reference out of the context, since the concerned provisions and scope thereof has not been dilated upon in addition to the fact that the view point expressed by some of the members of the Bench in Pir Sabir Shah's case (PLD 1995 SC 66) seems to have not been examined.
Having concluded that the disqualifications envisaged by Article 63 are attracted with full vigour to a Presidential candidate, clauses, 63(1)(d)(k) whereof are crucial to the controversy in hand since the same renders a person presently in the service of Pakistan as Chief of the Army Staff being member of the Armed Forces and a period of two years has not elapsed since he ceases to be so, ineligible for the Presidential contest read conjunctively with Article 43(1), 243, 260 , reading as under:--
"43. (1) The President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.
[1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of he Armed Forces shall vest in the President.]
(2) The President shall subject to law, have power--
(a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; [and]
(b) to grant Commissions in such Forces.
[(3) The President shall, [in consultation with the Prime Minister], appoint--
(a) the Chairman, Joint Chiefs of Staff Committee;
(b) the Chief of the Army Staff;
(c) the Chief of the Naval Staff; and
(d) the Chief of the Air Staff, And shall also determine their salaries and allowances]
................
"service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of [Majlis-e-Shoora (Parliament)] or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, [Attorney-General, [Advocate-General,] Parliamentary Secretary] or [Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister] or member of a House or a Provincial Assembly;
A plain reading of the afore quoted Articles in the preceding paragraph, leads to an irresistible conclusion that the Respondent being the serving Chief of Army Staff, as a member of the Armed Forces, is in the Service of Pakistan cannot hold any other office of profit in the service of Pakistan carrying right to remuneration for rendering services, unless a period of 2 years has elapsed since the cease to hold that office.
Which situation is not amenable to salvage by banking upon the non obstante clause deployed in clause 43(1) even in its widest possible connotation because it cannot conceivably embrace erosion, or nullification or mutilation or ruinage of the Constitution negating its very basic structure which ought to be read as an organic whole and mere pre-fixation of a non obstante clause could not be construed so widely so as to eradicate even the specific provisions catering ground norm of the Constitutional fabric.
In the context of things, it is pertinent to mention that the immunity from challenge perceived by Article 239(5) having been incorporated during General Zia-ul-Haq's military regime's amendments cannot travel beyond the fundamental structure of the Constitution. I may hasten to add that the sought for phenomenology is irreconcilable with the express provisions of Article 243 envisaging control and command of the Armed Forces subservient to the Federal Government including the Chief of Army Staff; otherwise it would be highly paradoxical that with the revival of the Constitution Chief of Army Staff despite being subordinate to the Federal Government enjoys supra command of the same
Lastly examination of the President to Hold Another Office Act VII of 2004, Section 2 whereof for the convenience of reference is reproduced hereunder:--
(2) Holder of another office ...The holder of the office of the President of Pakistan may, in addition to this office, hold the office of the Chief of the Army Staff which is hereby declared not to disqualify its holder as provided under paragraph (d) of clause (1) of Article 63 read with proviso to paragraph (b) of clause (7) of Article 41 of the Constitution of the Islamic republic of Pakistan or any other law for the time being in force or any judgment of any Court or tribunal.
Provided that this provision shall be valid only for the present holder of the office of the President.
reveals that it has been purportedly framed under the powers conferred by Article 63(1)(d) prescribing disqualifications of a person to be a member of Parliament, if he holds an office of profit in the Service of Pakistan, other than an office declared by law not to disqualify its holder, which in fact seems to have been designed to exempt an existing office of profit in the Service of Pakistan, which otherwise renders the same to be disqualified on that count, but does not enable such a person to hold an additional office thus ostensibly seems to be a case of beyond the pale of Constitutional delegation; additionally, this Act cannot over-ride the Constitutional status of the Armed Forces as defined in the definition of Article 260, for which the remedy lies in amending the Constitution, which objective cannot be achieved through a subordinate delegated legislation.
Further, the holder of Presidential office perforce is required to perform certain political functions as well being Head of the State which would be incongruous with the Oath of Office of the Chief of Army Staff as a member of the Armed Forces set forth in Illrd Schedule pursuant to Article 244:--
Every member of the Armed Forces shall make oath in the form set out in the Third Schedule.
Oath for Members of the Armed Forces
I, ___________________ ,do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.
[May Allah Almighty help and guide me (A'meen).]
Rana Bhagwandas, J.--At the conclusion of hearing, aforesaid Constitution petitions were dismissed by majority of six to three (Rana Bhagwandas, Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJs dissenting) vide short order dated 28.9.2007, which reads as under:--
"For reasons to be recorded later, as per majority view of 6 to 3, these petitions are held to be not maintainable within the contemplation of Article 184 (3) of the Constitution.
(2) As per minority view of Mr. Justice Rana Bhagwandas, Mr. Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah Jan, all the petitions are held to be maintainable under Article 184 (3) of the Constitution and are hereby accepted. Constitution Petition No.63 of 2007 re: Dr. Anwarul Haq v. Federation of Pakistan and another is disallowed to the extent of seeking permission to contest the election to the office of the President.
ORDER OF THE COURT
(3) As per majority view, these petitions are hereby dismissed as not maintainable.
In these direct Constitution petitions filed before this Court in terms of Article 184 (3) of the Constitution, the petitioners, inter alia, have essentially challenged the holding of two offices of Chief of Army Staff as well as the President of Pakistan by the respondent since 21.6.2001 as violative of the Constitutional mandate. Petitioners mainly seek a declaration from this Court that respondent General Pervez Musharraf (hereinafter referred to as the respondent) suffers from inherent pre-election disqualifications under the Constitution and is not eligible to be a candidate for and to be elected to the office of President of Pakistan by the out-going Assemblies. There is also a prayer to the effect that Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive (PLD 2002 S.C. 853) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 S.C. 719) are per-incuriam, at least, to the extent of interpretation of Article 63 (1) (d) (e) (k) and (o) of the Constitution, and that "President to hold Another Office Act" (VII of 2004) is ultra vires the Constitution and despite its validation through Seventeenth Amendment Act 2003 vide Article 270-AA of the Constitution, the inherent disqualification qua the respondent to contest election for the office of the President remains intact.
Facts leading to the institution of these petitions need not be dilated upon in great details. Suffice it to mention that the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff i.e. the respondent, on 12.10.1999, seized political power in Pakistan by dismissing elected Government of the then Prime Minister Mian Muhammad Nawaz Sharif placing him under house arrest on charges of interfering in the Armed Forces, politicising the Army, destabilizing it and attempting to create dissension within its ranks. On 14.10.1999, respondent issued Proclamation of Emergency effective from 12.10.1999 whereby Constitution of Islamic Republic of Pakistan was held in abeyance and whole of Pakistan brought under the control of Armed Forces. This proclamation was simultaneously followed by the Provisional Constitution Order No. 1 of 1999 as amended, providing, inter alia, that notwithstanding the abeyance of the provisions of the Constitution, Pakistan shall subject to this Order and any other Order made by the Chief Executive be governed as nearly as may be, in accordance with the Constitution. It was further stipulated that, subject as aforesaid, all Courts already in existence shall continue to function and to exercise their respective powers and jurisdiction with the proviso that the Supreme Court, High Courts and any other Court shall not have the power to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority. Fundamental rights, incorporated in Chapter I of Part-II of the Constitution, not in conflict with the aforesaid Proclamation or any Order made thereunder from time to time shall continue to be in force.
On 31st December 1999, respondent, as Chief Executive of Pakistan promulgated Oath of Office (Judges) Order, 1999, providing for an oath of office for a Judge of superior Court appointed after the commencement of this Order before entering upon his office before the authority specified in the Constitution and in the appropriate form set out in the Third Schedule to the Constitution. On 25th January, 2000, respondent, in his capacity as Chief Executive, promulgated Oath of Office (Judges) Order 2000, providing for a fresh oath of Office to all the sitting Judges of the superior Courts within specified time with the consequence that a Judge who has made oath as required by these clauses shall be bound by the provisions of this Order, the Proclamation of Emergency dated 14.10.1999 and the Provisional Constitution Order No. 1 of 1999 as amended and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof. One of the salient features of the above Order would appear to be that a person holding office immediately before the commencement of the Order as a Judge of superior Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule before the expiration of such time as the Chief Executive may determine.
Army take over and dismissal of elected Government was challenged by Syed Zafar Ali Shah and others before this Court through a number of petitions, which were heard by the Full Court which vide judgment dated 12.5.2000 for the time being condoned the assumption of power by respondent on the doctrine of State Necessity. This Court condoned various actions taken and performed by the respondent, reserving the power of judicial review conferred on the superior Courts to determine the validity of any act or action of the Chief Executive in the light of the principles underlying the law of State Necessity, which shall remain intact and may be exercised as hereto before notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf. It may not be out of context to observe that through this judgment, the respondent, as Chief Executive was held entitled to perform all such acts and promulgate all legislative measures, which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it, and to perform all acts, which tend to advance or promote the good of the people. The Court expressly held that three years period was allowed to the Chief Executive with effect from 12.10.1999 for achieving his declared objectives and that he shall appoint a day not later than 90 days before the expiry of the aforesaid period of three years for holding of general elections to the National Assembly, the Provincial Assemblies and the Senate of Pakistan.
A review petition later filed against this judgment was dismissed vide judgment reported as Wasim Sajjad v. General Pervez Musharraf (PLD 2001 S.C. 233).
On 20.6.2001, the respondent, as Chief Executive of Pakistan, promulgated President's Succession Order 2001 (CEO III of 2001), dislodging elected President Mr. Muhammad Rafique Tarar and on 21.6.2001 assumed the office of the President, in addition to his position as Chief Executive of the country. In the backdrop of aforesaid scenario, respondent as Chief Executive and President of Pakistan, promulgated Chief Executive Order No.XII of 2002 on 19th April, 2002, commonly known as the "Referendum Order" providing for a referendum to be held on 30.4.2002, in which every citizen having attained the age of 18 years and possessing a National Identity Card was declared eligible to vote at the Referendum on the question whether he voted for continuation in office of General Pervez Musharraf as President of Pakistan for the next five years for achieving the objectives, continuity of local government system, strengthening of democracy, continuity and integration of the reforms, eradication of extremism and ethnicity and for accomplishment of the ideology of Founder of the Nation. The task of holding Referendum was assigned to the Election Commission of Pakistan.
On 21.8.2002, as Chief Executive of Pakistan, he promulgated Legal Framework Order 2002 (CEO No.XXIV of 2002), introducing as many as 29 amendments in the Constitution of Pakistan on the premise that it was necessary to provide for a smooth and orderly transition. LFO was amended by CEO No.XXIX of 2002 on 9.10.2002 and further amended vide CEO No.XXXII of 2002 on 26th October, 2002. Pursuant to the LFO, as amended, inter alia, seats in the National Assembly, the Provincial Assemblies and Senate were increased, seats in the Assemblies were reserved for women and non-Muslims and the age of voter was reduced from 21 to 18 years. General elections in the country were held on 10.10.2002. Consequent upon completion of election process, Members of the National Assembly took oath of office on 16th November, 2002. As a result of amendments in Article 41 of the Constitution through LFO 2002, as amended, on the same day respondent relinquished the office of Chief Executive and assumed the office of President of Pakistan. Subsequently, he secured a vote of confidence from the National Assembly as well as the Provincial Assemblies, affirming his oath of office as President. Senate of Pakistan was created after taking oath in March, 2003.
Vide notification dated 15.11.2002, by order of the Chief Executive, the Preamble, Articles 1 to 58, Articles 64 to 100, Articles 139 to 231, Articles 240 to 280, the Annexure and the Schedules to the Constitution were brought into force with effect from Sixteenth day of November, 2002, whereas, vide notification dated 22nd November, 2002, Articles 59 to 63 and Articles 232 to 239 were revived with effect from the day on which the Members elected to the Senate took oath. Articles 105 and 127 stood revived with effect from the day when the first Chief Minister took oath, Articles 101 to 104, Articles 106 to 126 and Articles 128 to 138 came into force on 25th November, 2002 and all the remaining provisions of the Constitution stood revived on 31st December, 2002.
Process of negotiations on Constitutional amendments and reforms took place between Muttahida Majlis-e-Amal and the ruling party whereby an agreement was arrived at between the parties on 24th December, 2003 whereby some of the amendments introduced in the Constitution through LFO 2002, with slight modifications, were agreed to be inserted in the Constitution and a Constitution Amendment Bill was introduced and carried out in the National Assembly on 25th December, 2003, which was assented to by the President on 31st December, 2003. This amendment commonly known as Constitution (Seventeenth Amendment) Act 2003, inter alia, inserted a proviso to amended clause (7) of Article 41 of the Constitution to the effect that "provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from 31st day of December, 2004. It may not be out of place to mention that by inserting Article 270-AA through this Amendment Act, Proclamation of Emergency of 14th day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, Legal Framework Order and all other laws made between twelfth day of October, nineteen hundred ninety-nine and the day on which this Article came into force were declared to have been validly made by the competent authority and were not to be called into question in any Court or forum.
Lastly, Majlis-e-Shoora passed Act No.VII of 2004 to enable the President to Hold Another Office declared by law to be valid, in consonance with paragraph (d) of clause (1) of Article 63 of the Constitution. It validated the holding of another office of profit. This Act received the assent of the President on 30th November, 2004 whereas it was made effective from 31st December, 2004.
Holding of referendum for election to the Office of the President, pursuant to "Referendum Order 2002" was challenged by Qazi Hussain Ahmad and others before this Court through different petitions, which were disposed of by a larger Bench comprising nine Judges with the observation that it had been issued by the Chief Executive and the President of Pakistan in exercise of powers conferred upon him by this Court in Syed Zafar Ali Shah's case and that it does not have the effect of amending the Constitution. As regards challenge to the consequences flowing from holding of Referendum, this Court declined to go into these questions with the observation that the same shall be determined by a proper forum at the proper time. Likewise, vires of the Seventeenth Amendment in the Constitution were challenged before this Court by Pakistan Lawyers Forum and others through different petitions, which were dismissed by a Bench of five Judges on 13th April, 2005. The judgment is reported as Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 S.C. 719).
Petitions have been resisted by the respondent as well as the Federation of Pakistan on the premises, inter alia, that these petitions are not maintainable before this Court within the contemplation of Article 184 (3) of the Constitution; that the cases of Qazi Hussain Ahmad and Pakistan Lawyers Forum were rightly decided by this Court with due exercise of its jurisdiction; that respondent is lawfully authorized to hold both the offices of Chief of Army Staff as well as the President of Pakistan till 15th November, 2007; that he is Constitutionally entitled to contest for the office of the President in the forthcoming election and lastly that this Court should not exercise its discretionary jurisdiction in the matter of smooth transition of power to the elected representatives to emerge in pursuance of the general elections of the National as well as Provincial Assemblies.
M/s Muhammad Akram Sheikh, learned Sr. ASC, Hamid Khan, learned Sr. ASC, A. K. Dogar, learned ASC, Abdul Rehman Siddiqui, learned ASC and Mr. Jameel Ahmed Malik, in person, have addressed arguments in support of their respective petitions whereas Malik Muhammad Qayyum, learned Attorney General for Pakistan, assisted by a team of Deputy Attorney Generals and Syed Sharifuddin Pirzada, learned Sr. ASC assisted by other learned ASCs have entered appearance on behalf of the respondents. M/s S. M. Zafar, learned Sr. ASC, Abdul Hafeez Pirzada, learned Sr. ASC and Chaudhry Aitzaz Ahsan, learned Sr. ASC were invited to assist this Court as amici curiae on the questions of public importance raised in these petitions.
At the very outset, respondents have seriously contested the maintainability of these petitions, as, according to them, these petitions neither raise a question of public importance nor do they have any concern with the enforcement of any of the Fundamental rights conferred by Chapter-I of Part-II of the Constitution. With due deference, we do not feel persuaded to agree with the preliminary objection raised with regard to maintainability of these petitions. Admittedly, the questions raised in these petitions touch the vires of various laws, including Act VII of 2004 providing mandate to the respondent to hold two offices and to be exempt from disqualification apparently incurred on account of holding another office of profit and to contest elections despite the bar contained in Article 63(1) (d) & (s) read with Articles 43 and 244 of the Constitution as well as various provisions of the Pakistan Army Act 1952 and the law of the land.
Furthermore, the whole nation and the people at large are interested in the democratic set up of the country and destiny of the nation as a result forthcoming elections for smooth transition of power from military rule to genuine democracy. The very fact that the issues raised with regard to the eligibility of the respondent to contest election to the office of the President of the Country, which is the highest office reflecting the unity of the Federation, raises important and serious questions of law justifying the invocation of original jurisdiction of this Court on the touch stone of the cases reported as [Asma Jilani v. Government of the Punjab (PLD 1972 S.C. 139)], Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 S.C. 657), Benazir Bhutto v. Federation of Pakistan (PLD 1988 S.C. 416), Benazir Bhutto v. Federation of Pakistan (PLD 1989 S.C. 66), Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 S.C. 166), Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 S.C. 473), Sabir Shah v. Federation of Pakistan (PLD 1994 S.C. 738), Al-Jehald Trust v. Federation of Pakistan (PLD 1996 S.C. 324), Benazir Bhutto v. President of Pakistan (PLD 1998 S.C. 388), Zafar Ali Shah v. Musharraf, Chief Executive of Pakistan (PLD 2000 S.C. 869), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 S.C. 583) and Wattan Party v. Federation of Pakistan (PLD 2006 S.C. 697).
There is consensus of opinion on the point that to enjoy equal protection of law and to be treated in accordance with law is an inalienable right of every citizen. Likewise, equal treatment before law is basic fundamental right of every citizen, which is secured and guaranteed by Article 25 of the Constitution. Furthermore, if a law is enacted by Parliament, which is inconsistent with or in derogation of fundamental rights, to the extent of such inconsistency, shall be void and when a citizen challenges the vires of such law, indeed he seeks to enforce the fundamental right guaranteed vide Article 8 of the Constitution. The concept of access to political justice has also been acknowledged and recognized by this Court in Mian Muhammad Nawaz Sharif (supra). Since the petitioners are seeking a declaration with regard to the ineligibility of the respondent to the office of the President while holding the office of Chief of Army Staff and since they as of right are interested in the development and flourishing of democratic institutions in a free, fair and transparent manner, with equal opportunity, it can hardly be said that the petitioners have not made out a case of enforcement of fundamental right as guaranteed under the Constitution. In a democratic set up, the concept of fair, free and transparent elections can hardly be overemphasized and the petitioners, in law, are entitled to have equal opportunity to take part in the election process against the respondent, who has been placed at a highly advantageous and exalted position by reason of his office as Commander-in-Chief of the Army, which is quite likely to provide him an edge over the petitioners, who happen to be the ordinary citizens, some of them being political leaders in the country. Petitioners' seeking right of access to political justice against the respondent before this Court in the exercise of its extraordinary original jurisdiction cannot be denied on hyper-technical grounds as it would be against the basic norms of justice, fair play, good conscience and doctrine of equality. There is no gain observing that by stretch of any reasoning, petitioners cannot be said to stand in a position similar to that of the respondent, who, according to them, commands mighty force and immense executive power of the Government by reason of his position as President as well as the Chief of Army Staff. By reason of assailing the eligibility and qualification of the respondent to run an election to the highest office of the President of Pakistan, indeed, the petitioners arc not only seeking to enforce their right to have a level playing field but also highlight a genuine grievance amounting to gross violation and infringement of a fundamental right of equal treatment before the law and equal protection under the law, as guaranteed by the Constitution.
One of the petitioners i.e. Jamaat-e-Islami Pakistan being a well known political party of the country is entitled to espouse the cause of public at large in general and more particularly of its members to truggle for the establishment, progress and development of democratic process in the country and to ensure that basic human rights as well as fundamental rights guaranteed under the Constitution are fully secured to the people of this country. Therefore, these petitions cannot be thrown out on the flimsy ground that they do not disclose a substantial cause for enforcement of a fundamental right.
It was canvassed on behalf of the respondents that indeed the questions raised in the set of petitions before this Court could be raised before the Chief Election Commissioner, who acts as Returning Officer at the time of scrutiny of nomination papers. We, however, do not find any satisfactory and sound answer to the proposition that a Returning Officer in, exercise of his limited scope of duties cannot lawfully declare the vires of a law as ultra vires the Constitution. Likewise, a Returning Officer at the stage of scrutiny of the nomination papers can only hold a summary enquiry, without going into deeper analysis of the grounds of disqualification against a candidate. It can hardly be denied that pre-election disputes, touching the root of the matter, more particularly, in relation to the case of a very important person, no less than the Head of State, can always be raised by a citizen of Pakistan before announcement of the schedule for the elections without being a candidate in election, whereas, an objection as to disqualification of a candidate before the Returning Officer can only be pressed into service by a contesting candidate. No authority is needed for the proposition that a person interested in the result of the lis can always espouse a cause of general public importance on behalf of a large group of persons and the nation as a whole before the Superior Court and he cannot be denied fair access to justice on the technical ground that he does not have locus standi to raise a dispute of high magnitude. In fact Constitution petitions against apprehended injury have been entertained by superior Courts and we have the precedent of Farzand Ali v. Province of West Pakistan (PLD 1970 S.C. 98 at page 111).
Learned Attorney General for Pakistan as well as learned counsel for the Federation relied upon Manzoor Illahi v. Federation of Pakistan (PLD 1975 S.C. 66), Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 S.C. 11), Watan Party v. Chief Executive/President (PLD 2003 S.C. 74), Javed Jabbar v. Federation of Pakistan (PLD 2003 S.C. 955), All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 S.C. 600), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 S.C. 583) and Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) in support of their submission that this Court has declined to exercise its original jurisdiction in similar cases but we are least impressed by the submission as the cited precedents are clearly distinguishable on facts and circumstances out of which these cases arose.
In Manzoor Illahi (supra), this Court declined to grant relief to the petitioner in the exercise of its jurisdiction under Article 184 (3) of the Constitution on the premise that a Constitution petition under Article 199 for enforcement of his right under Article 9 of the Constitution was already sub-judice before erstwhile High Court of Sindh and Balochsitan. In Zulfiqar Ali Babu (supra), petition under Article 184(3) was found to be not maintainable for the reason that rights sought to be enforced related to violation of Articles 7 & 32 of the Constitution, which do not fall in Chapter-I, Part-II of the Constitution, containing fundamental rights. In Watan party (supra), relied upon by learned Attorney General, extraordinary relief in the exercise of original jurisdiction of this Court was declined on the premise that the petitioner failed to demonstrate that he had filed the petition bona fide and that he had locus standi for raising the grievance. In Javed Jabbar (supra), relief in terms of Article 184(3) of the Constitution was declined on the premise of lack of locus standi, which, in our considered view, does not lay down a correct law and can hardly be relied upon for the proposition canvassed on behalf of the respondent. In All Pakistan Newspaper Society (supra), this Court did not entertain direct petition as the question of law raised by a group of newspaper managements did not affect the public-at-large or the country as a whole. It was held that a financial dispute between employers and employees would not give rise to a question of public importance within the meaning of the expression. In Zulfiqar Mehdi (supra), petitioners were agitating the question of discrimination in the matter of non-payment of back benefits to them by PIA in contradistinction to another group of employees, to which his right was extended. This Court, therefore, held that the issue raised concerned a limited number of employees and did not pose a question of public importance. In Muhammad Shahbaz Sharif (supra), petition under Article 184 (3) of the Constitution was entertained but the relief was denied for the reason that grievance raised was pre-mature and was individual in nature.
Conversely, consensus of the Courts throughout has been that where a petition raises a question of public importance with reference to enforcement of any of the fundamental rights incorporated in Part-1, Chapter-II of the Constitution, this Court would be within its jurisdiction to pass appropriate orders, decrees and judgments. Such jurisdiction has also been exercised on a number of appropriate occasions in the exercise of authority of this Court, conferred under Article 187 of the Constitution.
Having decided the question of maintainability of these petitions in affirmative, we now advert to the merits of the contentions raised by the parties respectively. It may be observed that after notice to the respondents in the aforesaid petitions while noting the contentions raised by the parties, this Court had allowed an opportunity to the respondents to submit a concise statement but none was filed and the respondents' counsel chose to address the arguments without availing the right to file a concise statement in rebuttal of various questions raised by the petitioners, which may be summarized as under:--
(1) Whether the respondent is disqualified under Article 63(1)(d) and (s) of the Constitution read with the provisions of Pakistan Army Act 1952 and ESTACODE 2000 from contesting election to the office of the President of Pakistan?
(2) Whether Act VII of 2004 was validly enacted by the Parliament and whether it excludes the case of the respondent from the disqualification clause contemplated by Article 63(1)(d) and (s) of the Constitution?
(3) Whether respondent would only be governed by qualifications contained in Article 62 of the Constitution for election as Member of the National Assembly and whether disqualifications enumerated in Article 63 of the Constitution would not be attracted in the case of election to the office of the President?
(4) Whether the respondent being incumbent President of Pakistan is eligible to seek re-election to the office of the President for the third time in view of the bar contained in Article 44 (2) of the Constitution?
(5) Whether the existing Assemblies, whose term would expire on 15th November, 2007 are legally competent to elect the same person as President for the second time?
(6) What would be the legal effect and impact of revival/resurrection of Article 63(1)(d) of the Constitution with effect from 31st December, 2004?
(7) Whether opinion rendered by M/s. S. M. Zafar and Abdul Hafeez Pirzada, amici curiae, suggesting the continuity of system for transitional phase and allowing the respondent to take part in the Presidential election can be legally and Constitutionally entertained?
Questions Nos. 1 & 2
"(7) The Chief Executive of the Islamic Republic of Pakistan--
(a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgment of the Supreme Court of Pakistan of the 12th May, 2000; and
(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.
Provided that Paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004.
(8) Without prejudice to the provisions of clause (7), any member of members of a House of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, individually or jointly, may, not later than thirty days from the commencement of the Constitution (Seventeenth Amendment) Act, 2003, move a resolution for vote of confidence for further affirmation of the President in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the Federal Government under clause (9), of the electrol college consisting of members of both Houses of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, in a special session of each House of Majlis-e-Shoora (Parliament) and of each Provincial Assembly summoned for the purpose, and the vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgment of any Court, shall be deemed to be elected to hold office for a term of five years under the Constitution, and the same shall not be called in question in any Court or forum on any ground whatsoever.
(9) Notwithstanding anything contained in the Constitution or any other law for the time being in force, the proceedings for the vote of confidence referred to in clause (8) shall be regulated and conducted by the Cheif Election Commissioner in accordance with such procedure and the vote shall be counted in such manner as may be prescribed by the rules framed by the Federal Government:
Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office.".
It would, thus, appear that exemption and exception from disqualification for election to the office of the President and deviation from Constitutional procedure in respect of the respondent was acknowledged and accepted by the Majlis-e-Shoora (Parliament) in order to accommodate him for a single term and the same would not be available for a second term. Furthermore, with the resurrection of Article 63(1)(d) of the Constitution with effect from 31st day of December, 2004, though the respondent having committed with the nation in his public address as well as in the dialogue with the MMA was duty bound to shed off his uniform as Chief of Army Staff by this day, yet he did not abide by his solemn undertaking and for the reasons best known to him, continues to hold such office of profit.
With a view to defeating the law and spirit of Article 63(1) (d) of the Constitution and to provide further protection to him, the Parliament, by simple majority, enacted the President to Hold Another Office Act (VII of 2004), which received the assent of the President on 30th November, 2004 but was made effective from 31.12.2004. It may be observed that this Act, in its preamble, commences with the words "whereas Paragraph (d) of clause (1) of Article 63 of the Constitution of the Islamic Republic of Pakistan provides for holding another office of profit in the service of Pakistan, if declared by law as such and; whereas it is expedient to make declaratory provision enabling the President to hold another office of profit in the service of Pakistan". It may not be out of context to point out that the source or the foundation from which legislature sought its authority for enactment of this law, is referable to Article 63(1)(d) of the Constitution, which in fact was in abeyance and actually dormant on the day this law was so enacted. If Article 63(1)(d) was not alive on the day of legislation, irrespective of legal authority of the Parliament, it is hard to accept that law could be enacted with reference to a Constitutional provision which did not exist. Furthermore, the language of Para (d) of clause (1) of Article 63 provides for an office already declared by law not to disqualify its holder. Instead of declaring an office or a post as not an office of profit blanket coverage has been provided to the respondent, which law, on the face of it, appears to be not only arbitrarily enacted but also discriminatory and ultra-vires the Constitution.
Indeed the subject of law does not fall within any of the entries enumerated in the Federal Legislative List or Concurrent List incorporated in Fourth Schedule of the Constitution on which legislation can be made by the Parliament. This law allowing glaring and classic exemption to the respondent does not fall within the purview of "reasonable classification" based on intelligible differentia, inasmuch as, blanket umbrella has been provided to an individual rather than the holders of such office in general. Moreover, it being "person specific", evidently offends the equality clause as enshrined in Articles 4 & 25 of the Constitution, which clearly defeats the intent and spirit of the Constitution. The impugned Act, on the face of it, is completely discriminatory as it does not meet the basic requirement of reasonable classification within the contemplation of Article 25 of the Constitution. In Government of Balochistan v. Azizullah Memon (PLD 1993 S.C. 341), this Court, while laying down the principles and defining the scope and application of Article 25 of the Constitution ruled, inter alia, that in order to make a classification reasonable it should be based (a) on a intelligible differentia, which distinguishes persons or things that are grouped together from those who have been left out; and (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. It would, thus, appear that one of the propositions is that equal protection of law means that no person or class of persons shall be denied the same protection of the law, which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property and in pursuit of happiness. We are strengthened in forming this opinion by the case decided as Jibendra Kishore v. Province of East Pakistan (PLD 1957 S.C. (Pak.) 9). The principle of law emerging from the aforesaid discussion symbolizes that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. In order to establish the supremacy of law, it has to be applied equally to persons similarly situated. In the present case, we fail to see any indelible distinction in case of the respondent, who has been treated differently and exceptionally without faking such opportunity available to other citizens of the country. Indeed, it destroys the object, intention and the spirit underlying the fundamental right guaranteed under Article 25 of the Constitution.
It may not be out of place to point out that by challenging the candidature of the respondent to contest election to the office of the President, petitioners are seeking to enforce their right to political justice, which has been fully recognized in Muhammad Nawaz Sharif (supra) through a Full Court judgment of this Court. In the presence of Parliamentary democratic system designed by our Constitution, every citizen has a right to take part in political activities and to ensure that elections in the country are held in a free, fair and transparent manner, which can only be conceived of when equal opportunities are available to all the citizens possessing requisite qualifications, prescribed by law. Any right emerging from the concept of political justice being significant would be enforceable in terms of Article 17 of the Constitution, which is one of the fundamental rights contained in Chapter-I, Part-II of the Constitution. Respondents, while raising the issue of incompetence of these petitions have utterly failed to satisfy the conscience of the Court that the petitions, though raising a very important and serious question of law, do not seek the enforcement of a fundamental right, as guaranteed under the Constitution. The very concept of a fundamental right is that it being a right guaranteed and secured under the Constitution cannot be taken away by law and it is not only technically inartistic but a fraud on the citizens, for, the framers of law assured that the right is so fundamental that it cannot be taken away even by an enactment. It is also a basic principle of construction that a Constitution should receive a liberal interpretation in favour of the citizens, especially, with respect to those provisions which were designed to safeguard the valuable right of access to justice. In our view, after a detailed hearing for more than two weeks by a Larger Bench of this Court, it would neither be just, fair, proper nor lawful for this Court to knock down the petitioners on the premise that they should seek their remedy before the High Court under Article 199.
It was argued that the vires of this law were questioned before this Court in Pakistan Lawyer Forum versus Federation of Pakistan (PLD 2005 S.C. 719) and upheld as a good law but, as vehemently contended before this Court, in our considered view, this case was not correctly decided and the observations made in the judgment and the conclusion drawn, in our considered opinion are per incuriam. To observe the least the judgment does not discuss the genesis of law and its legal and historical back ground and merely follows the ratio in Hussain Ahmad v. Pervez Musharaf (PLD 2002 S.C. 853), which again suffers from proper consideration of principles of law and lack of application of judicious mind.
Term "per incuriam" has been defined in Ballentine's Law Dictionary Third Edition at page 932 to mean, "through carelessness"; "through inadvertence"; "through lack of care". This expression has been defined in Black's Law Discretionary 8th Edition at page 1175 to mean "wrongly decided, because the Judge or Judges were ill-informed about the applicable law.". Similar definition has been assigned to this expression in Jewatt's Dictionary of English Law Second Edition and Bourier's Law Dictionary. In `Words and Phrases' First Edition by D. Varagarajan, the expression has been defined as under:
"A decision would be treated as given per incuriam when it is given in ignorance of terms of statute, or a rule having the force of law. An order passed without reference to the relevant provisions of the Act and without any citation of authority is per incuriam (see Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 S.C. 38). In the case of Punjab Land Development and Reclamation Corporation Ltd., v. Presiding Officer (1990) 77 FJR 17; (1990) 3 SCC 682, the Supreme Court explained the principle of per incuriam and held that the Latin expression per incuriam means through inadvertence. A decision can be said to be given per incuriam when a High Court has acted in ignorance of the decision of the Supreme Court".
In Whartan's Law Lexicon the expression per incuriam has been defined as follows:
"Per incuriam through want of care. An order of the Court obviously made through some mistake or under some misapprehension is said to be made per incuriam."
Concept of judgment "per incuriam" has been elaborately considered by this Court in Province of Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 S.C. 351), Babu Parasu Kaikade v. Babu (AIR 2004 S.C. 754) and State v. Nasim-ur-Rehman (PLD 2005 S.C. 270). It was pointed out on behalf of the respondent that a review petition against the judgment in Pakistan Lawyers Forum (supra) is sub-judice before this Court. Nevertheless, we are firmly of the view that once a Court comes to the conclusion that a judgment is per incuriam, it must simply be ignored and need not necessarily be over-ruled or set aside. A judgment per incuriam having no binding force cannot be pressed into service for being followed, even by way of stare decisis. To our mind, pendency of a review petition does not abstain us from distinguishing the judgment or to make a deviation from the view already taken, which, to our understanding, suffers from lack of care and lack of application of law within the meaning of the expression.
There is another important aspect of the case. The expression law' by which an office may be declared as an office other than office of profit certainly and quite clearly refers to the
Constitutional provisions rather than through ordinary legislation by
Parliament. Had it not been so, the framers of the Constitution would not have provided for a class of holders of office of profit in the service of Pakistan in Paragraph (o) of clause (1) of Article 63 whereby Lumberdars, Qaumi Razakars and any office, holder whereof liable to be called up for military training or military service under any law providing for the Constitution or raising of a
Force have been excluded from disqualification otherwise applicable to persons in the service of Pakistan holding an office of profit. As to the concept of law, by which an office or class of persons can be declared as an office other than the holder of an office of profit, we are fortified, in our view, by judgments reported as Asma Jilani v. Government of Punjab (PLD 1972 S.C. 139) and Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 S.C. 426). We are in no manner of doubt that by applying the expressionlaw', intention of the
Constitution seems to be that exemption can only be made through an amendment in Constitution and not by way of a sub-ordinate legislation passed by simple majority. The enactment of Act VII of 2004, in our view, does not cure the inherent disqualification in terms of Article 43 of the Constitution owing to holding another office of profit in the service of Pakistan carrying the right to remuneration for rendering of services.
It was submitted on behalf of the respondents that, while interpreting the Constitutional instruments and the law enacted by Parliament, this Court should always lean in favour of and draw a presumption of Constitutionality of law, which must be saved and harmonized rather than struck down and destroyed. There may be no cavil with the proposition of law that the Courts, ordinarily, lean in favour of Constitutionality of law and do not generally declare a law invalid merely because it is harsh or unreasonable, the fact remains that any law inconsistent with the provisions of the Constitution or repugnant to the spirit and object of the Constitution must yield to the will of the Constitution makers and such law must be struck down in the exercise of jurisdiction by the superior Courts, who are not only obliged to do so but also under a solemn duty to perform such obligation under the Constitutional mandate. Indeed, legislative instrument heavily relied upon and pressed into service by the respondent can neither be sustained nor protected, as it does not fit in within the Constitutional parameters of legislation and within the sphere of duty and scope of authority of Parliament. We shall be failing in our duty in the field of dispensation of justice, if we leave a law unnoticed and unaltered when it does not coincide with the Constitutional machinery, from which Parliament itself derives its legislative power and authority.
Reliance by learned Attorney General for Pakistan on the cases reported as Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 S.C. 854), Fauji Foundation v. Federation of Pakistan (PLD 1983 S.C. 457), S. P. Mittal v. Union of India (AIR 1983 S.C. 1), L. M. Mishra Institute of B.D. and Social Change v. State of Bihar (AIR 1988 S.C. 1136) and Multiline v. Ardeshir Cowasjee (PLD 1995 S.C. 423) in support of his submission that Act VII of 2004 was a valid law, is misplaced, as we are firmly of the view that it does not conform to the parameters prescribed by Constitution for enactment of a legal instrument.
There is yet another aspect of the case. Assuming, without conceding, that the respondent may be entitled to hold two offices, as heavily pressed into service on his behalf, one cannot loose sight of the fact that as Chief of Army Staff and a Member of Armed Forces, he is under an oath by virtue of Article 244 of the Constitution not to engage himself in political activities, whatsoever, and that he will honestly and faithfully serve Pakistan in the Pakistan Army as required by law and under the law. Now a question arises that being at the helm of affairs of Pakistan Army, can the respondent lawfully and Constitutionally take active part in political activities by holding meetings, making public addresses, attending political party meetings, political functions and freely mixing up with the politicians within and beyond the country as a part of election campaign. Simple answer would be in the negative because if an Army Officer, while in service, indulges in political activities, he not only violates the oath of office but also acts in flagrant violation of the Army Act 1952 and the Army Officers Service Regulations. In terms of Article 243(1) of the Constitution, Federal Government shall have, control and command of the Armed Forces whereas under Article 243(1-A), without prejudice to the generality of Article 243 (1) of the Constitution, the Supreme Command of the Armed Forces shall vest in the President. On the other hand, Prime Minister is Constitutionally the Chief Executive and the holder of executive power of the Federal Government by reason of being elected representative of the people while the Armed Forces shall serve under the control and command of the Federal Government. It would be anomalous and irreconcilable with the provision of oath of office taken by the respondent that he as the Head of Armed Forces, may be lawfully allowed to take part in active politics and rather run for election to the exalted office of the President.
It may not be out of context to note that oath of office is prescribed under the Constitution for the President, Prime Minister, Federal Ministers, Speaker of the National Assembly, Chairman Senate, Deputy Speaker National Assembly, Deputy Chairman Senate, Members of National Assembly, Members Senate, Governors of the Provinces, Chief Ministers, Provincial Ministers, Speakers of the Provincial Assemblies, Members of Provincial Assemblies, Auditor General of Pakistan, Chief Justice of Pakistan, Chief Justice of a High Court, Judges of Supreme Court & High Courts, Chief Justice and Judges of Federal Shariat Court and Chief Election Commissioner not being in the service of Pakistan but holders of Constitutional office. Only exception in the Constitution is about the Members of Armed Forces, every Member whereof is required to take oath of allegiance to serve Pakistan and Pakistan Army, Pakistan Navy and Air Force (as the case may be) whereas no such oath is prescribed for other civil servants. Likewise, ESTACODE framed by the Federal Government prohibits all civil servants and persons in service of Pakistan from taking part in politics and they are completely debarred from discussing politics in offices, clubs and restaurants. In case argument of the respondent is accepted that Article 63 is not applicable to election to the office of President, can it be said that a civil servant, fulfilling the conditions of Article 62 would also be eligible to contest election to a representative office. If no other person in the service of Pakistan holding an office of profit is entitled to contest the election, in law, same principle and parameters would apply to the case of the respondent, who has chosen to continue as Chief of Army Staff beyond the target date i.e. 31.12.2004 without any lawful and Constitutional justification.
There is another well established principle of law that the holder of a Constitutional office cannot hold another office under the Constitution. Admittedly Chief of Army Staff is a Constitutional position envisaged by Article 244 of the Constitution with oath of allegiance to Pakistan and virtually uphold the Constitution in the prescribed form in third Schedule of the Constitution. Likewise, office of the President is a Constitutional office as envisaged by Articles 41 to 49 of the Constitution. Verily, respondent enjoying the office of Chief of Army Staff and also holding the office of President of Pakistan having not given up the office of Chief of Army Staff as solemnly committed by him with the Members of Majlis-e-Shoora (Parliament) as well as the nation on electronic media was provided with a blanket umbrella to hold both the offices through Constitution (Seventeenth Amendment) Act 2003 up to 31st December 2004. He, nevertheless, continues to hold both offices till this day and is contesting for another term of office retaining the office of Chief of Army Staff. The issue of holding two Constitutional positions simultaneously, was considered by this Court in Abrar Hassan v. Government of Pakistan (PLD 1976 S.C. 315). The facts precisely were that a permanent Judge of this Court was notified and appointed as Chief Justice of the Sindh High Court with direction that he shall hold lien against his office in the Supreme Court. Notification of appointment as Chief Justice of Sindh High Court and also holding lien against the office of Judge of this Court was challenged through a writ of Quo Warranto before the Sindh & Balochistan High Court, which failed on technical grounds. In appeal, this Court, while disapproving the appointment of same person against two Constitutional offices, expressed the view that on assumption of another office, the incumbent is deemed to have vacated the earlier office. It was authoritatively held that no person can hold two substantive offices at one and the same time. In the present case, since the respondent continues to be the Chief of Army Staff, he is not only disqualified from holding the office of the President but also not eligible to run for election to the office of the President for another term, as it would certainly defeat and destroy the object and mandate of the Constitution.
In view of what has been discussed hereinabove, we answer Questions Nos. 1 & 2 against the respondent.
Question No.3:
Article 41(2) of the Constitution mandates that a person shall not be qualified for election as President unless he is a Muslim not less than forty-five years of age and is qualified to be elected as Member of the National Assembly. It would, thus, be seen that a candidate, in order to qualify to be elected as President, should not only be a Muslim, not below the age of forty-five years but also possess requisite qualifications for being elected or chosen as Member of the National Assembly. Now Article 62 prescribes the qualifications for membership of Majlis-e-Shoora (Parliament), that run from clauses (a) to (i). Likewise Article 63 of the Constitution lays down disqualifications of a candidate for membership of Majlis-e-Shoora (Parliament) and contains as many as 19 clauses. It has been strenuously contended on behalf of the respondent that since by reason of Article 41(2) of the Constitution, he is only required to qualify as Member of the National Assembly, various kinds of disqualifications debarring a person from being elected or chosen as and from being a Member of the National Assembly would not arise for election to the office of the President. Argument on the face of it, though ingenious, does not appeal to reason and mind. We do not find any substance in the submission. If a person possesses necessary attributes enumerated in Article 62 of the Constitution, he would be, prima facie, qualified to contest for election to the seat of National Assembly but the reason, logic and rationale demand that primarily and essentially he at the same time should be immune and completely free from disqualifications expressly incorporated in Article 63 of the Constitution. In case we ignore and exclude the disqualification clauses of Article 63 of the Constitution in respect of a candidate and only confine to the attributes possessed by him in terms of Article 62, it would be mutually destructive and paradoxical, which would certainly run counter to the intention of the framers of the Constitution.
On behalf of the respondent, reliance is placed on the judgment in Qazi Hussain Ahmad v. General Pervez Musharraf, Chief Executive (PLD 2002 S.C. 853). This was a case in which petitioner had essentially challenged "Referendum Order 2002", under which the respondent was seeking indirect election to the office of President of Pakistan while acting as Chief Executive of Pakistan after military take over, promulgation of Proclamation of Emergency and Provisional Constitution Order (No.I of 1999). In the reported case an argument was raised that the respondent, while holding the office of Chief Executive and exercising the powers of Prime Minister of Pakistan could not at the same time seek election to the office of the President as a consequence of the Referendum to be held on 30.4.2002. This Court did not examine the vires of the Referendum Order since the said Order had not been issued under the Constitution, which in fact had been issued under the Proclamation of Emergency and Provisional Constitution Order (No. 1 of 1999). In this context, an argument was advanced that under Article 62 of the Constitution, which contains qualifications for being elected as a Member of the National Assembly, which are also the qualifications for election to the office of the President, it was observed by this Court that disqualifications cannot be read into Article 41(2) of the Constitution. It was observed that the said Article only provided that the President must be a person qualified to be elected as Member of the National Assembly and by way of obiter further observed that the disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaaban Mirani v. President of Pakistan (1998 SCMR 1863), which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafique Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). This Court went on to add that the same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541).
The case of Aftab Shaaban Mirani (supra) arose from judgment of the Lahore High Court setting aside the order of the Returning Officer/Chief Election Commissioner rejecting nomination papers of Mr. Muhammad Rafique Tarrar for election to the office of the President of Pakistan. It may be observed that at the time of seeking election to the office of the President, Mr. Muhammad Rafique Tarrar was a Member of the Senate of Pakistan, qualifications whereof are the same as that of a Member of the National Assembly of Pakistan. It was in this backdrop that Ajmal Mian, CJ (as his Lordship then was), speaking for the Full Bench held that if a sitting Senator or a sitting MNA is candidate for the office of the President, he is qualified to be a candidate in terms of clause (2) of Article 41 of the Constitution till the time he is non-seated through the mechanism provided in clause (2) of Article 63 of the Constitution. Suffice it to observe that precedent case does not advance the point canvassed on behalf of the respondent. Likewise, observation by Lahore High Court in Muhammad Shahbaz Sharif (supra), in which no final opinion was rendered, except a prima facie view that the qualifications and disqualifications were two different concepts and while considering as to whether, a person was qualified to be appointed to a particular office the provisions regarding disqualification cannot be taken into consideration. A sweeping remark in passing cannot be treated as ratio of a case and, thus, of no assistance to the respondent. In our view, qualifications and disqualifications are inter twined and interwoven and must be read together as a person cannot be declared to be qualified to hold an office unless he is able to demonstrate that he is free from all disqualifications prescribed by relevant law. We are at loss to appreciate and comprehend the logic behind the submission that for election to the august office of President of Pakistan, the qualifications for membership to National Assembly would be essentially required whereas disqualification attached to a candidate completely ignored and over-looked. We tend to agree and endorse the opinion rendered by Fazal Karim, J (as his Lordship then was) in Sabir Shah v. Shad Muhammad Khan (PLD 1995 S.C. 66).
Article 63 (1) (p) before being amended through Legal Framework Order 2002 was to the effect that a person shall be disqualified from being elected or chosen as a Member of the Majlis-e-Shoora (Parliament) if he is for the time being disqualified from being elected or chosen as Member of Majlis-e-Shoora (Parliament) or a Provincial Assembly under any law for the time being in force. This paragraph is now contained in amended Article 63 (1) (s) and is to the same effect. Interpreting this paragraph in Sabir Shah case (supra), it was held as under:--
"38. It will be noticed that according to the title as also according to the opening part of Article 62, paragraphs (a) to (h) all provide for qualifications; yet according to the proviso, what paragraphs (d) and (e) contain are disqualifications. Learned counsel for the respondents suggested that as the proviso treats paragraphs (d) and (e) only as containing disqualifications, they alone should be so treated. I should think that the use of the word
qualification' in the title, the wordsshall not be qualified' in the opening part and the use of the word disqualification' in the proviso rather suggest that it is not the label ofqualification' or `disqualification' that truly describes the substance of the provision. Articles 62 and 63 read together show, and in my opinion so clearly, that they run into each other. For instance, it is qualification to be a citizen of Pakistan. Obviously, it is disqualification not to be a citizen of Pakistan. This is brought into sharp relief by Articles 88 and 89 of the Constitution of Sri Lanka Article 88 thereof says:
"Every person shall, unless disqualified as hereinafter provided, be qualified to be an elector at the election of the President and of the Members of Parliament or to vote at any Referendum:
Provided that no such person shall be entitled to vote unless his name is entered in the appropriate register of electors";
And Article 89 provides:
"No person shall be qualified to be an elector at an election of the President, or of the Members of Parliament or to vote at any Referendum, if he is subject to any of the following disqualifications namely--
(a) if he is not a citizen of Sri Lanka;
Para 38 and para 39 of the judgment reproduced above, being majority judgment, in our considered opinion, finally clinch the issue and can be safely relied upon for the proposition that the qualifications and disqualifications though not interchangeable yet are interlinked, interdependent, run into each other and must be read together. In fact these are the two facets of same coin. Any attempt to isolate one from other would certainly lead to unconscionable consequences, absurdities and defeat the spirit of law and intention of the framers of the Constitution.
Learned Attorney General, while arguing that the qualifications prescribed in Article 62 and disqualifications incorporated in Article 63 of the Constitution are independent of each other, neither interchangeable nor interdependent, he is of the view that since Article 41 (2) only speaks of a person's eligibility to be elected or chosen as a Member of the National Assembly only qualifications prescribed by law would be attracted and not the disqualifications. Learned counsel pressed into service Shahidullah Qazi v. Additional Commissioner (PLD 1969 Dacca 868) and Ghulam Abbas v. Additional Commissioner, Khairpur (PLD 1965 (W.P.) Karachi 625) in support of the submission that want of qualification would not be tantamount to disqualification. We have examined both the cases from Dacca and Sindh jurisdiction, which essentially related to the interpretation of the provisions of Electoral College Act in relation to the age of a voter. Both the cases are absolutely distinct and distinguishable on facts. We are, therefore, firmly of the view that these precedents do not advance the case of the respondent.
There is another aspect of the case. Respondents were fully aware of and alive to the situation that the provisions of Article 63 would, with all force, be attracted in the case of election to the office of the President. It was in this backdrop and with definite knowledge of law that, while drafting Constitution (Seventeenth Amendment) Act 2003, after clause (7) paragraph (b) of Article 41 following proviso was added:--
"Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004."."
Not only the respondent but also Members of Majlis-e-Shoora by two thirds majority felt it absolutely necessary to revive this para with effect from 31st December, 2004 and to provide a blanket cover to the respondent till the cut off day by which day he had solemnly committed with the Members of the Majlis-e-Shoora in particular and the nation in general that he would abandon the office of Chief of Army Staff but continue as the President of Pakistan after having assumed the office of President through Referendum and vote of confidence from Parliament and the Provincial Assemblies. It is evident that since the respondent could not keep up his solemn commitment, it was found necessary to enact the "President to hold Another Office Act 2004" on a particular day, when Article 63 (1) (d) was held in abeyance. It was keeping in view the command of the proviso to Article 41(7) (b) and the proviso to Article 63 (1) (d) of the Constitution that the Parliament was persuaded to enact a law enabling the respondent to hold another office in addition to the Constitutional office already held by him. In case clause (1) (d) of Article 63 was not attracted to election for the office of President there was no occasion to resurrect and revive this Article with effect from 31.12.2004 and to exempt the respondent from the purview of disqualification incurred by him by reason of holding the office of Chief of Army Staff.
The question with regard to qualifications and disqualifications in the perspective of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance 1972 came up for consideration before a Full Bench of Azad Jammu and Kashmir High Court in Muhammad Yusuf v. Azad Government (PLD 2001 Azad J&K 60), in which the view taken was that the worlds "qualifications" and "disqualifications" had been separately mentioned in the Constitution as well as in the election law. A person, who was disqualified would mean that due to lack of some quality or virtue, he was not entitled to a particular privilege, or right, but that would not mean that he was not qualified. Terms qualification and disqualification were so interwoven that those were interchangeable as a person who was not qualified stood disqualified and a disqualified person was not qualified. Even if a person was knowledgeable, qualified and having all the virtues of worldly affairs, he could be debarred if he did not fulfill particular criteria, which the legislature deemed fit for a particular job or institution. The view expressed by AJ&K High Court is fully attracted in the circumstances of the case and is in consonance with the spirit of law and the Constitutional mandate. It would, thus, be seen that the contention that a candidate for election to the office of President is only required to be qualified under Article 62 and not to account for disqualifications envisaged by Article 63 would only lead to violence on the statute.
There is another important development in the matter. During the pendency of these petitions, in which eligibility of the respondent to contest for Presidential election was vehemently questioned the Chief Election Commissioner of Pakistan was persuaded by the Federation to amend Presidential Election Rules 1988 in exercise of the powers conferred upon him by paragraph 22 of the Second Schedule to the Constitution with the approval of the President. In terms of Para 1 of the Second Schedule to the Constitution, Chief Election Commissioner has been authorized to hold and conduct election to the office of the President and he shall be the Returning Officer for such election. Vide paragraph 22 of the Second Schedule, the Chief Election Commissioner may, by public notification with the approval of the President make Rules for carrying out the purposes of this Schedule. Accordingly, vide SRO 1089 (I)/88, dated 3.12.1988, Chief Election Commissioner, with the approval of the President, has notified the Rules 1988 in the Gazette of Pakistan, Extraordinary, Part-II dated 3rd December, 1988. Rule 5 of the Rules, inter alia, deals with the scrutiny of nomination papers received from the candidates or their authroised agents. Sub-rule 3 stipulates as under:--
"(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper if he is satisfied that--
(a) the candidate is not qualified under the Constitution to be elected as President, or is subject to disqualification from being elected as, and from being, a member of the National Assembly;".
"the candidate is not qualified under the Constitution to be elected as President;".
Question No.3 is answered accordingly.
Question No.4:
Apart from seriously assailing the eligibility of the respondent to be elected to the office of the President on various legal and Constitutional grounds by reason of disqualification, as discussed above, petitioners have questioned the candidature of the respondent for re-election to the office of the President in view of bar contained in Article 44 (2) of the Constitution. It may be observed that as per the language used in Article 44 (1) of the Constitution, subject to the Constitution, the President shall hold office for a term of five years from the day he enters upon his office. Clause (2) of Article 44, commands that, subject to the Constitution, a person holding office as President shall be eligible for re-election to that office, but no person shall hold that office for more than two consecutive terms. It may be observed that after military take over on 12th October, 1999, the respondent assumed the office of Chief Executive of Pakistan after dislodging the elected Prime Minister, his Government as well as dismissing the National Assembly and four Provincial Assemblies in the country. By virtue of Provisional Constitutional Order No. 1 of 1999, he continued to administer the affairs of State by exercising the powers of the Prime Minister and let the former duly elected President continue. However, with effect from 21.6.2001, after dislodging the elected President through President's Succession Order 2001, he assumed the office of President in addition to his position as Chief Executive of the country. He enjoyed this term till the assumption of office as President on 16th November, 2002, as a result of promulgation of Legal Framework Order 2002 after amending Article 41 of the Constitution and obtaining a vote of confidence from both Houses as well as Provincial Assemblies, deviating from the Constitutional procedure for election of the President. His first term, expiring on 15th November, 2002, however, was not under the Constitution while the second term of office as President apparently commenced in terms of clause (1) of Article 44 of the Constitution.
In the backdrop of above legal position, intention of the framers of the Constitution would be manifestly obvious that a person having enjoyed the office of President for consecutive two terms under the Constitution shall not be entitled to contest for the same office there after. In our considered view, the respondent though enjoyed the office of President for two terms and his second term of office is expiring on 15th November, 2007, strictly speaking, he would not be ineligible for contesting election to the said office for forthcoming election as the first term of office as President by way of supra Constitutional measure cannot be declared as a term of office under the Constitution. On merits, however, we have already held that he is not eligible to be elected as President in the light of letter and spirit of the Constitution, which, in our opinion, cannot be overlooked. The question is answered accordingly.
Question No.5:
Question No.6:
Question No.7:
Amongst the learned Senior Counsel requested to assist as Amicus Curiae in these Constitutional petitions of great importance and significance, while Mr. S. M. Zafar elaborately dealt with the philosophy of legal jurisprudence and advocated in favour of ongoing election process in the larger interest of smooth and peaceful transition of power from military administration to democratic set up with the bonafide desire that the respondent may be directed to shed off his uniform before seeking election to the office of the President, Syed Sharifuddin Pirzada, learned Sr. ASC for the respondent is on record having placed a statement on record on behalf of the respondent that, if elected as President, respondent would give up his uniform before taking the oath of office as President for the second term. Be that as it may, the wishful desire of Mr. S. M. Zafar, learned Sr. ASC, who actively participated on behalf of the ruling party in the dialogue with the Muttahida Majlis-e-Aml in December 2003 and fully reflected in his publication captioned "Dialogue" First Edition 2004 does not appear to be forthcoming. Learned counsel strategically avoided to express his opinion on the merits of the case as regards the competence, eligibility and qualification of the respondent in the perspective of Articles 41, 43, 44 and 63 of the Constitution and left it to the judgment of this Court.
On his part, Mr. Abdul Hafeez Pirzada, learned Sr. ASC took pains to persuade the Court to strengthen the system, stabilize the present set up and dismiss these petitions in order to permit smooth transition of power from military set up to democratic forces. In this connection a reference was made to Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 S.C. 166), in which despite the finding that Full Court with majority opinion, declared the order of dissolution of Muhammad Khan Junejo's Government as invalid and ultra vires the Constitution declined to restore the elected Government as well as the Assemblies. We are clear in our mind that the submission of learned counsel, if accepted, would only result in reviving and perpetuating the doctrine of necessity, which must be buried for all times to come.
Withholding of discretion in Haji Saifullah case was reviewed in Mian Muhammad Nawaz Sharif case (supra) and Dr. Nasim Hassan Shah, C.J. (as his Lordship then was) publicly regretted that the relief was wrongly declined in earlier case. This course of action does not lay down good law and does not have any binding force and persuasive value. Once a superior Court comes to the conclusion that an order is invalid and ultravires, it is legally bound to extend the relief due. We earnestly feel that this county no longer can afford the luxury of resorting to circumvent the law and the Constitutional mandate by upholding and affirming the draconian doctrine of necessity resorted to earlier. Even otherwise, on merits it may be observed that the continuation of the respondent at the helm of the affairs with mutilated Constitution concentrating overwhelming powers in the President would not fulfill the desired object as canvassed by learned amicus curiac being contrary to the dictates of the law. Indeed, the Judges of this Court are under oath to uphold, preserve and defend the Constitution of Pakistan, which must be strictly adhered to in letter and spirit without any fear or favour, affection or ill-will. Suspicions and apprehensions in the minds of people about future scenario would not resolve the complex problems being faced by this Country and the only salvation of the nation lies in stabilizing the institutions of the State strictly in accordance with the provisions of the Constitution rather than to keep them under Military Rulers thumb. Any endeavour to continue and affirm the present system of governance, which has transformed Parliamentary system of government into Presidential form of Government is bound to amage the dignity, respect and honour of the citizens of this country in the comity of nations and bring a bad name to it, which can hardly be appreciated. Independence of judiciary, stability of democratic system, regular conduct of general election process, allowing the Institutions to serve freely within the sphere of their scope and without involvement of the Armed Forces would always be in the supreme interest of the nation. Needless to emphasise, frequent military interventions and destabilizing elected Governments have always given rise to indiscipline, disorder, conflict of interest, inflation, unemployment, massive corruption, intolerance and extremism in the country, which must be eradicated and eliminated with iron hand and strength in accordance with law.
Before parting with this judgment, it may be observed that Chadury Aitzaz Ahsan, learned Sr. ASC appearing as amicus curiae fully supported the case of the petitioners by his valuable arguments backed by propositions of law and the provisions of the Constitution as well as legal instruments.
We express our sense of gratitude to the learned amici curiae as well as learned counsel for the parties and the Attorney General for Pakistan for assisting this Court in arriving at a just and fair conclusion.
For the aforesaid facts, circumstances and reasons these petitions are allowed and respondent declared to be disqualified to contest for Presidential election. Constitution Petition No.63 of 2007, Professor Dr. Anwarul Haq versus General Pervez Musharraf is disallowed to the extent of seeking permission to participate in the forthcoming elections to the office of the President.
SARDAR MUHAMMAD RAZA, J.--I have gone through the judgment handed down by my learned brother Rana Bhagwandas, J., being reasons for the short order dated 28th September 2007, whereby we had held, while dissenting with majority view, that the petitions are maintainable under Article 184 (3) of the Constitution and hence accepted in totality. I agree with the reasoning adhered to in the judgment aforesaid but would like to dilate upon the view taken by Mr. Abdul Hafeez Pirzada, learned amicus curiae.
He did not controvert the merits of the case. His placing reliance upon Haji Saifullah case (PLD 1968 SC 166) was tantamount to saying that even if the petitioners have a good case on merits, it would not be in the fitness of the things to issue writ in their favour, as it would, most likely impede smooth transition from uniform rule to the rule of pure democracy. The stance so taken is nothing but reiterating the import of doctrine of state necessity, altogether forgetting that the favour did not work in the past. The transition provided only a reinvigorating space for a new Uniform rule, bringing the Nation back again and again to the zero point - the marvel of doctrine of necessity.
Doctrine of necessity is neither Law nor any rule nor regulation. It is a state of affairs where, in the given circumstances, unfair is justified in the name of expediency. Most of philosophers, scholars and pseudo-intellectuals in the west have been floating various ideas from time to time sparking debates the world over. Genuine things are adopted and promoted in the developed countries while underdeveloped are duped into the fantasies of in-genuine, which unfortunately are followed as sacred commandments. Later category include Hans Kelsen's doctrine of state necessity and Machiavelli's "Prince"; cherished in the underdeveloped like Pakistan despite being damagingly hypocritical. The theories are by no means universally accepted nor do they form basis of modern jurisprudence. Borrowing words from Hamoodur Rehman C.J. (as his lordship then was); he, while criticizing Muhammad Munir C.J. said that the latter "not only misapplied the doctrine of Hans Kelsen but also fell into error that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone........"
What irks my mind most is not primarily the genuineness or otherwise of these draconian ideas of Kelsen or Machiavelli but whether or not we the Muslims have any legacy to follow or to refute or defy the evil ideologies though dead in the civilized countries yet flourishing in the third world. I firmly believe and hold that we the Muslims must seek ultimate guidance from the ultimate wisdom of revealed knowledge - The Holy Qur'an.
A book that has to last for all times should always avoid minor details and must always lay down the principles. It is essentially true about the Holy Qur'an. Before that we seek guidance from the Book, it is necessary to comprehend as to what the doctrine of necessity or those of Machiavelli are. Briefly, those propound that truth and falsehood, permissible and impermissible have no such frontiers that cannot, under any circumstances, be violated. If expediency demands, impermissible can be made permissible regardless of good conduct, principles or values of life. Means are justified by the ends achieved. On the other hand Holy Qur'an lays down certain restrictions on the conduct of man, which cannot be changed or violated. Any deviation therefrom is a negation of (The commands of your nourisher are complete with truth and justice. No person can bring about any change whatsoever in them.)
Doctrine of necessity is a man made enigma, which must always be subservient to the greater human values, ordained by Almighty Allah. Certain commandments are directed towards individuals, the negation whereof ultimately affects the whole society. When truth is ordained and falsehood condemned, it is imperatively laid down that "do not confound truth by overlaying it with falsehood nor knowingly conceal the truth."
Almighty Allah has denounced even the mixing up of truth with falsehood, leaving no room for expediency. More explicit is the verdict in surah Al-Nisa where extremely strong and impulsive expediencies are shunned altogether in comparison to the greater values of truth and justice. It says, "Believers! be upholders of justice and bearers of witness to truth for the sake of Allah, even though it may be against yourselves or against your parents and kinsmen or the rich or the poor, for, Allah is more concerned with their well being than you are. Do not, then, follow your own desires lest you keep away from justice. If you twist or turn away from the truth, know that Allah is well aware of all that you do." (Al-Nisa 4/135--
(Al Maida 5/8
One has to restrict only to a few references from the Holy book, owing to the shortage of time, otherwise, one can write volumes on the subject that Qur'an has defied expediency in comparison to the truth. It is nothing but worst kind of hypocris, which has been the way of life of the nations who were eliminated and replaced by nations who followed the Divine Verdict. Duality of Conduct has been the hallmark of condemned people. Time is witness to it. History of mankind bears witness to it and the truth thereof is evident from Surah Al-Asr- (103), wherein the non-righteous are declared to be in a state of loss. In brief, every word of Qur'an abhors falsehood, hypocrisy, duality of character, duality of conduct, expediency, and thus, the doctrine of necessity. Seen in the larger and wider perspective and applied to the entire society, the doctrine of necessity becomes one of State necessity. Whatever be the canvas, whether individual or collective, the doctrine is destructive either way. Rather, at State level, it is devastating for the entire nation. Who should know it better than us.
Duality of conduct is always attributed to falsehood. Truthful never vascilate. Mingling of truth and falsehood is a negation of Divine Verdict. I, at this juncture, cannot avoid referring to a very apt quotation of Allama Iqbal, whose deep insight into the Holy Qur'an is evident from his poetry.
Idolatry has, in the present day, multifarious manifestations. Ideologies, doctrines, theories and hypothesis are invented, tailored and banked upon to please humans, at the cost of displeasing the Almighty. Quid pro quo is followed and maintained which may be relevant to politics but cannot, in the circumstances, be pressed into service in judicial matters while imparting justice. It is high time to follow Greater Values of life rather than the expedient. We should avoid being accused of
(R.A.) Order accordingly.
PLJ 2009 SC 913
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan khan, JJ.
DISTRICT CO-ORDINATION OFFICER, DISTRICT DIR LOWER
and others--Petitioners
versus
ROZI KHAN & others--Respondents
C.P. Nos. 660-P, 661-P & 662-P of 2006, decided on 6.2.2009.
(On appeal from the judgment dated 17.6.2006 of the NWFP Service Tribunal, Peshawar passed in Appeal Nos. 490, 491 and 492 of 2005).
North West Frontier Province Service Tribunal Act, 1974 (I of 1974)--
----S. 4--Constitution of Pakistan, 1973, Art. 212(3)--Withdrawal of previous appointment order without proper inquiry or show cause notice--Validity--Civil servants were initially appointed as Qaris (BS-7), after proper selection--Subsequently they were appointed as Arabic teachers--After having received salaries for 3 months, their appointment was withdrawn--Held: Appointments were made by competent authority, after observance of due process of law--No proper inquiry such as issuing charge sheet/statement of allegations or show-cause notice had been issued--Impugned judgment of Service Tribunal was based on valid and sound reasons and was entirely in consonance with law--Neither misreading, non-reading of material evidence nor misconstruction of facts & law was pointed out--Leave refused. [P. 915] A & B
2002 PLC (CS) 47, 2004 SCMR 1662, 2007 PLC (CS) 179 & 2004 SCMR 303, ref.
Mr. Tasleem Hussain, ASC for Petitioners.
Mr. Ijaz Anwar, ASC for Respondents.
Date of hearing: 6.2.2009.
Judgment
Ijaz-ul-Hassan, J.--These petitions for leave to appeal, proceed against common judgment dated 17.6.2006 passed by the NWFP Service Tribunal, Peshawar, whereby Appeal Nos. 490, 491 and 492 of 2005 filed by respondents Rozi Khan, Saeedullah and Muhammad Idrees Arabic Teachers were accepted, order dated 30.7.2004 was restored and the impugned order dated 31.1.2005 of termination/withdrawal of respondents, was set-aside.
Facts of the case need not be reiterated as the same have been mentioned in detail in the impugned judgment as well as in the memo of petitions.
We have heard at length Mr. Tasleem Hussain, Advocate, appearing on behalf of petitioners-department and Mr. Ijaz Anwar, Advocate representing the respondents. We have also perused the material on record as well as the impugned judgment minutely.
Learned counsel for the petitioner-department mainly contended that appointment of the respondents was withdrawn for valid reasons as sanads' of the respondents issued by the "Deni-Madrasa" were not found valid as theMadrasa' has not been registered/recognized by the
Higher Education Commission. He also added that the Institution/Madrasa which issued the `Sanad' is not affiliated to Model Dini Madaris Board as required under the Federal Government Promulgated Ordinance No. XL of 2001.
On the other side learned counsel for the respondents vehemently controverted the above contentions and argued that respondents were appointed as regular employees after completion of legal formalities and approval of the competent authority and that respondents assumed the charge and received three months salaries and as such petitioner-department had no justifiable reason to withdraw their order of appointment. To substantiate the contentions, reliance was placed on Ghulam Rasool and others versus Government of Balochistan and others, (2002 PLC (CS) 47, Federation of Pakistan through Secretary, Establishment Division, Islamabad and another versus Gohar Riaz, (2004 SCMR 1662) and Abdul Salim versus Government of NWFP through Secretary, Department of Education Secondary, NWFP, (2007 PLC (CS) 179).
Record reveals that respondents were initially appointed as `Qaris' (BS-7) vide order dated 29.4.1999 after proper selection. Subsequently, as a result of advertisement appearing in the newspaper, the respondents applied for the post of Arabic Teacher (BS-9) and they were appointed as such vide order dated 30.7.2004. The respondents took the charge on 31.7.2004 and received the salary. Vide order dated 31.1.2005, the appointment order issued on 30.7.2004, was withdrawn. The respondents preferred departmental appeals which remained un-responded. Feeling aggrieved, the respondents, approached the NWFP Service Tribunal, Peshawar, byway of filing appeals, which were accepted as stated and mentioned above.
The respondents were qualified and their appointments were made by the competent authority after observance of due process of law. No proper inquiry such as issuing of charge sheet/statement of allegations, show-cause notice has been issued to the respondents. The impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading or non-reading of material evidence, nor misconstruction of facts and law. Needless to emphasize that for any irregularity whatsoever, if committed by the department itself, the appointee cannot be harmed, damaged or condemned subsequently when it occurs to the department that it had itself committed some irregularities qua any appointment. This Court has held in Collector of Customs and Central Excise, Peshawar and 2 others versus Abdul Waheed and 7 others, (2004 SCMR 303) that for the irregularities committed by the department itself qua appointment of a candidate, the appointees cannot be condemned subsequently. It was observed:
"Obviously the appointments so made, were made by the Competent Authority and in case prescribed procedure was not followed by concerned authority, the appointees/respondents could be blamed for what was to be performed and done by the Competent Authority before having verified the qualification and suitability and observance of the due process before issuing the appointment orders."
Having considered the matter from all angles in the light of material on file, we find that learned Tribunal in the impugned judgment has discussed all aspects of the matter in a proper manner and has assigned cogent and sound reasoning in the impugned judgment before arriving at the conclusion. Neither any misreading or non-reading of the evidence on record could be pointed out in the impugned judgment, justifying interference by this Court. Even otherwise no substantial question of law of public importance is involved.
Pursuant to above, finding no substance in these petitions, we dismiss the same and decline to grant leave.
(J.R.) Leave refused.
PLJ 2009 SC 916
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
JAMIA MASJID QAZI ABDUL QADIR & DARUL ALOOM HAQANIA QADRIA QUETTA and others--Petitioners
versus
JAN MUHAMMAD & others--Respondents
Civil Petition No. 79-Q of 2006, decided on 19.5.2009.
(On appeal from the judgment dated 5.5.2006 of the High Court of Balochistan, Quetta, passed in C.M. Appeal No. 20 of 2002).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Question of competency in manage, run and interfere in the affairs of mosque--Managing body alone was competent to run affairs of mosque being society registered--Matter was referred to decide as to who was managing the mosque after its construction and prior to filing of the suit--Two arbitrators from each side were nominated--During arbitration proceedings objections were submitted which were neither considered--Validity--Where a dispute is referred to an arbitrator of the choice of the parties and he makes an award, it becomes the duty of Court to give every reasonable intendment in favour of the award and lean towards upholding it rather than vitiating it--Held: Mosque was constructed on the land owned by Railways--Without consent of Railways authorities no person could claim to be Mutawalli of the same or to appoint further Mutawalli or hand over management of the mosque to other person on the basis of a society registered long after construction the mosque with Registrar of Cooperative Societies--No substantial question of law of public importance was involved in the instant petition--Leave was dismissed. [P. 919] A & B
1984 SCMR 597 and PLD 1958 (W.P.) Karachi 145 rel.
Mr. Muhammad Aslam Chishti, Sr. ASC and Mr. S.A.M. Quadri, AOR for Petitioner.
Syed Ayaz Zahoor, Sr. ASC and Mr. Mehta W.N. Kholi, AOR for Respondents.
Date of hearing: 19.5.2009.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, Jamia Masjid Qazi Abdul Qadir and Dar-ul-Aloom Haqania Qadria Brewry Chowk, Joint Road, Quetta through Maulana Ghulam Yahya Haqani and others, petitioners, seek leave to appeal from a judgment of the High Court of Balochistan, Quetta, dated 05.05.2006, whereby petitioners' Civil Misc. Appeal No. 20 of 2002 has been dismissed.
Facts of the case need not be reiterated as the same have been mentioned in the impugned judgment as well in the memo of petition. Suffice is to state that petitioners instituted suit for declaration that Managing Body alone was competent to run affairs of Jamia Masjid Qazi Abdul Qadir and Dar-ul-Aloom Haqania Qadria, Joint Road, Quetta, being society registered under the Societies Act, 1860. Suit was decreed against respondents on 03.07.1997 by learned Additional District Judge, Quetta. There-against respondents preferred appeal which was dismissed by the High Court on 09.02.1998. Civil Petition for Leave to Appeal No. 23-Q/1998 was filed by respondents before this Court, which came up for hearing on 31.05.1999, when the matter was referred to one Maulana Abdul Ghafoor Lehri to decide the question "as to who was managing the Mosque after its construction and prior to filing of the suit" after hearing and recording evidence of the parties and submit report within one month. However, it was informed on 29.07.1999 that Maulana Abdul Ghafoor Lehri had already expired whereupon nominations were sought of two Arbitrators from each side with an umpire in case of difference of opinion, who shall decide the aforesaid question after proper proceedings. Arbitrators nominated from either side made dissenting reports whereupon umpire in his decision supported award of the Arbitrators in favour of the respondents. Umpire filed Award in the Court of Additional District Judge, Quetta, who made it as a rule of the Court vide judgment dated 24.02.2000. On appeal matter was remanded by learned High Court on 19.09.2000 for decision afresh. On remand earlier decision was maintained vide judgment dated 04.07.2002 of the trial Court. Appeal was filed which was dismissed vide judgment impugned herein.
We have heard at length Mr. Muhammad Aslam Chishti, Advocate for the petitioners and Syed Ayaz Zahoor, Advocate for the respondents. We have also gone through the entire record with their assistance.
It is mainly contended by learned counsel for the petitioners that during arbitration proceedings objections were submitted in writing which were neither considered by the arbitrators or by the umpire or by learned Additional District Judge, Quetta, while making award and giving decision; that the evidence produced before the arbitrators was not appreciated in its true perspective; that the umpire only referred to the evidence considered by the two arbitrators with whom he concurred and the evidence considered by the other two arbitrators was not referred; that the decision of umpire is biased and that no finding was recorded in terms of reference indicated in the order of this Court dated 29.07.1999.
On the other hand, learned counsel for the respondents while refuting the arguments of learned counsel for the petitioners and supporting the impugned judgment on all counts contended that the umpire in pursuance to the order passed by this Court on 31.05.1999 after taking into consideration the evidence on record gave his decision, and learned trial Court after receiving objections and hearing the parties and even on remand the trial Court in its decision afresh maintained its earlier decision in the matter, which decision has been upheld by learned High Court and that no such objections were raised before the arbitrators or before learned trial Court. To substantiate the contentions, reliance was placed on Muhammad Abdul Khaleque and others vs. Birendra Lal Das Choudhury and others (PLD 1955 Dacca 13), Messrs Waseem Construction Co. vs. Government of Sindh and others (PLD 1987 Karachi 575) and M/s. Awan Industries Ltd vs. the Executing Engineer Lined Channel Division and another (1992 SCMR 65).
The litigation between the parties started in 1994, when petitioners instituted suit seeking declaration and permanent injunction to the effect that respondents are not competent to manage, run and interfere in the affairs of the mosque/Dar-ul-Aloom in question by posing themselves as its Muntazameen' or for collectingChanda' or holding meetings etc.
Having considered the matter from all corners in the light of material on the file, we find that contentions of learned counsel for the petitioners do not carry weight as the matter was referred by this Court vide Order dated 31.05.1999 to the arbitrators for decision on the issue with consent of the parties, thereby impliedly setting aside the judgment of the trial Court as well as of the High Court. It is a well established rule of law that where a dispute is referred to an arbitrator of the choice of the parties and he makes an award, it becomes the duty of the Court to give every reasonable intendment in favour of the award and lean towards upholding it rather than vitiating it as held by this Court in Ishfaq Ali Qureshi vs. Municipal Corporation Multan and another (1984 SCMR 597). A similar view was taken in Abdul Rauf vs. Muhammad Saeed Akhtar (PLD 1958 (W.P.) Karachi 145) where it was observed as follows:
"A well settled rule of construction of the award is that the award should be construed liberally and in accordance with common sense, and it should be so read that it can be given effect to, and not so that it would nullify the efforts of the arbitrator appointed by the parties themselves."
Record reveals that the mosque in question was constructed on the land owned by Pakistan Railways. In our view without consent of the Railways authorities no person could claim to be Mutawalli' of the same or to appoint furtherMutawalli' or hand over management of the mosque to other persons on the basis of a society registered long after construction of the mosque with the Registrar of Cooperative Societies. The
Umpire after taking into consideration above factors as well as other documentary and ocular evidence produced by the parties, particularly the record of Railway authorities showing payment of salaries to Maulana Abdul
Qadir, rightly concluded that affairs of the mosque were being managed by committees constituted by the Mohalla people at different times before and after construction of the mosque. Mere contention of learned counsel for the petitioners that the decision of umpire was biased and could not have been accepted blindly, without a positive attempt on his part to substantiate the same, is of no consequence. There is nothing on record to show that objection regarding misconduct on the part of arbitrators or umpire was ever raised before the trial Court or before learned High Court. Learned counsel for the petitioners, despite his best efforts could not point out any infirmity, legal or factual, in the impugned judgment, warranting interference by this Court.
Even otherwise no substantial question of law of public importance is involved in this petition.
In the circumstances, finding the petition bereft of merit, we dismiss the same and decline to grant leave.
(R.A.) Leave refused.
PLJ 2009 SC 920
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
FAIZ MUHAMMAD & another--Petitioners
versus
STATE--Respondent
Crl. P. No. 25-Q of 2009, decided on 22.5.2009.
(On appeal from the judgment dated 2.4.2009 of the High Court of Balochistan, Quetta, passed in Criminal Appeal No. 292/2007).
Control of Narcotics Substances Act, 1997--
----S. 9 (c)--Arms Ordinance, 1965, S. 13-E--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--High Court dismissed appeal, assailed--Recovery of 60 packets containing 100 rods of charas and six straps of charas--Validity--High Court re-appraised the entire evidence by making thread bare examination of each piece of evidence--Held: No piece of evidence incriminating in nature produced by prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective--Evidence of prosecution witnesses about recovery of charas weighing 126 Kg and taking of sample from each of rod and slab could not be disputed by defence and report of chemical examiner also supported the case of the prosecution--Driver having the charge of vehicle for long journey is supposed to have knowledge with regard to contents and articles being transported in it--High Court neither reflect any mis--appreciation or non-reading of evidence nor suffer from any legal infirmity so as to make room for further consideration--Leave to appeal was dismissed. [P. 922] A
Mr. S.A.M. Quadri, AOR for Petitioner.
Nemo for State.
Date of hearing: 22.5.2009.
Judgment
Ijaz-ul-Hassan, J.--The petitioners, namely Faiz Muhammad and Muhammad Anwar, sons of Ali Muhammad Lehri, resident of Killi Sheikhan, Mastung, through this petition seek leave to appeal under Article 185(3) of the Islamic Republic of Pakistan, 1973, against judgment of learned Division Bench of the High Court of Balochistan, Quetta dated 02.04.2009, dismissing petitioners' Criminal Appeal No. 292 of 2007, upholding the conviction and sentence of life imprisonment with fine of Rs.50,000/- each, awarded to the petitioners by learned Special Judge, Control of Narcotic Substances, Lasbella at Hub by virtue of judgment dated 26.09.2007.
Facts of the case as gathered from the record are, that pursuant to spy information, stated to have been received on 4.3.2007 by complainant Muhammad Amin Lasi, SI/SHO, Police Station Sakran District
Lasbella, that on the said date huge quantity of narcotics, arms and ammunitions will be smuggled/transported to Karachi from Quetta via Sarona Khuzdar Shah
Noorani' through a Land Cruiser bearing Registration No. BC-4912, a police party, headed by the complainant, laidNakabandi' at Langlohar check post. At about 1:30 p.m said vehicle arrived at the check post. Two persons were found sitting in the vehicle. On inquiry, driver of the vehicle disclosed his name as
Faiz Muhammad and the person sitting with him on front seat introduced himself as Muhammad Anwar. As adequate facilities were not available at the check post, the vehicle was taken to police station. The search of the vehicle led to recovery of 60 packets (each weighing 01 k.g) containing 100 rods of charas and six straps of charas, from its secret cavities. From each of the rod and strap meager quantity was separated and sent for chemical examination. The remaining was sealed in separate parcels. Separate cases were registered against petitioners, one under Section 9(C) of the Control of Narcotic Substances Act, 1997 and the other under Section 13-E of the Arms Ordinance, 1965 vide FIR No.
07/2007 and 08/2007. Both the accused were arrested. After registration of the case and completion of investigation, challan was submitted against accused before the Court of Special Judge, Control of Narcotic Substances, Lasbella at
Hub to face trial.
The prosecution, in order to establish its case, examined four witnesses in all. The petitioners in their statements under section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. The petitioners neither opted to record their statements on oath as envisaged under Section 340(2) Cr.P.C nor produced any witness in their defence.
At the conclusion of trial, upon consideration of the material placed before him, learned trial Court vide judgment dated 26.09.2007, convicted the petitioners under Section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced, them to suffer imprisonment for life with fine of Rs.50,000/- each and in default of payment of fine to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C was extended. Feeling dissatisfied petitioners filed Criminal Appeal No. 292/2007, which has been dismissed through judgment impugned herein, as stated and mentioned above.
Appearing on behalf of the petitioners, Mr. S.A.M. Quadri, learned Advocate, heavily relying on Shah Wali and another vs. the State (PLD 1993 SC 32) and Zahoor Ahmed Anwan and another vs. the State (1997 SCMR 543) tried to convince us that the conviction and sentence awarded by the trial Court and upheld by the High Court is not a natural conclusion of the facts and circumstances of the case; that petitioners had no conscious knowledge that contraband material was concealed in the vehicle or they were owners of the material or the vehicle and that no samples were taken from each and every rod and slab, thus the petitioners were liable to be convicted for the weight of those rods and slabs from which actual pieces were cut and separated for chemical analysis.
On careful re-examination of the evidence brought on record and in the light of arguments addressed by learned counsel for the petitioners, we find that learned High Court while dismissing the appeal filed by the petitioners dealt with the contentions of learned counsel comprehensively, dilating upon each and every aspect of the case. The evidence which has been brought on record has rightly been appreciated by learned trial Court, determination whereof has been upheld by the learned High Court, assigning valid and cogent reasons. No illegality, irregularity or mis-appreciation of evidence could be pointed out persuading us to grant leave to appeal. The learned High Court has
re-appraised the entire evidence available on record by making thread bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective. The evidence of the prosecution witnesses about the recovery of charas weighing 126 k.g and taking of sample from each of the rod and slab could not be disputed by the defence and report of chemical examiner also supported the case of the prosecution. The petitioners were using uncommon route for transportation of charas, arms and ammunitions by concealing it in secret cavities of the vehicle, which reflects their knowledge. The driver having the charge of vehicle for long journey is supposed to have knowledge with regard to contents and articles being transported in it. The findings and judgments of trial Court as well as High Court neither reflect any mis-appreciation or non-reading of evidence nor suffer from any legal infirmity so as to make room for further consideration. Learned counsel though argued at length but could not point out any mis-reading or non-appraisal of evidence.
(R.A.) Leave refused.
PLJ 2009 SC 923
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Ch. Ijaz Ahmed & Mahmood Akhtar Shahid Siddiqui, JJ.
MUHAMMAD ANWAR & others--Appellant
versus
FEDERATION OF PAKISTAN through Secretary Establishment Division & others--Respondents
Civil Appeal No. 2243 of 2008 and 273 of 2009, decided 15.6.2009.
(On appeal from the judgment/order dated 6.10.2008 passed by Islamabad High Court, Islamabad, in ICA No. 50/2008).
Res-judicata--
----Principle of--Causes of action in both constitutional petitions were entirely different--High Court erred in law to dismiss the petition on principle of res-judicata--Parties did not bring the notice the controversy arising in first round of litigation and present litigation--Validity--Appellants had challenged the vires of the order of Wafaqi Mohtasib in the second round of litigation which was passed on their complainant and also order of president which was passed on their representation whereas in to earlier round of litigation appellants had challenged the vires of recommendations of Public Service Commission--Held: Parties did not bring into the notice of Division Bench the controversy arising in the first round of litigation and present litigation--Appeals were allowed. [P. 927] A
PLD 1970 SC 173, PLD 1970 SC 158 & 1998 SCMR 2268, ref.
Malik Muhammad Qayyum, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Appellant (in C.A. No. 2243/2008).
Dr. Muhammad Akmal Saleemi, ASC for the Appellant (in C.A. No. 273/2008).
Mr. Shah Khawar, DAG and Mr. M.S. Khattak, AOR for Respondents (in both cases).
Date of hearing: 15.6.2009.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide the captioned appeals by one consolidated judgment having similar facts and law arising out of the consolidated impugned judgment/order of the Islamabad High Court, Islamabad, dated 6-10-2008 passed in ICA No. 50/2008.
"Learned counsel for the petitioners submits not to press this petition and reserves the right of his clients to resort to the other available remedies to them, including remedy of approaching the wafaqi mohtasib. Order accordingly. Disposed of."
Thereafter appellants preferred a complaint before the Wafaqi Mohtasib which was dismissed as time barred vide order 31-8-2002. Appellants being aggrieved filed representation before the President of Pakistan under Article 32 of the Establishment of the Office of Wafaqi Mohtasib Order 1983 which was also dismissed vide intimation letter dated 20.12.2002. Appellants being aggrieved filed Constitution Petition No. 2790/2004 before the Lahore High Court, which was finally heard by the Islamabad High Court, Islamabad, and the same was dismissed vide order dated 26-6-2008 on the well known principle of res judicata. Appellants being aggrieved filed ICA No. 50 of 2008 in the Islamabad High Court, Islamabad, which was also dismissed vide order dated 6.10.2008. Appellants being aggrieved of the order of the Division Bench of Islamabad High Court, dated 6-10-2008 filed C.P. No. 1437 of 2008 (Muhammad Anwar) and C.P. No. 1844/2008 (Khalid Farooq Mian). Civil Petition No. 1437/2008 filed by Muhammad Anwar was fixed before this Court on 17-12-2008 and leave was granted in the following terms :--
"It is contended that first time litigation was concluded with the order of this Court, whereby the petition was withdrawn and the petitioner wanted to resort other remedy available to him including the remedy of approaching the Wafaqi Mohtasib. The learned ASC further contended that the petitioner approached the Wafaqi Mohtasib, who did not redress his grievance whereafter, the representation against the said order was made, which too was dismissed. It is further contended that this matter has not been considered by the learned Division Bench of the High Court in its true perspective.
Leave to appeal is granted, inter alia, to consider the above contentions."
Civil Petition No. 1844 of 2008 filed by Khalid Farooq Mian was fixed on 11-3-2009 and leave was granted in the following terms:--
"Since leave to appeal has already been granted in Civil Appeal No. 2243 of 2008 involving identical issue. Therefore, leave is also granted in this case. Both be fixed after one month."
(1) That learned High Court had erred in law to dismiss the ICA as well as Constitution petition on the principle of res judicata without adverting to the facts and circumstances of the cases of the appellants.
(2) Principle of res judicata is not attracted in the controversy in question as the appellants had withdrawn their petition in the earlier round of litigation from this Court with permission to approach Wafaqi Mohtasib.
(3) The appellants approached the Wafaqi Mohtasib who dismissed their complaint as time barred which was also approved by the President of the Pakistan while dismissing their representation.
(4) The learned Wafaqi Mohtasib had dismissed their complaint in the violation of principle of natural justice.
(5) The learned High Court had not adverted to this aspect of the case. Similarly Chief Executive had also dismissed their representation without issuing any notice to the appellants.
The learned Deputy Attorney General has supported the impugned judgment/order.
We have given our anxious considerations to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the prayer clauses of the Constitution Petitions No. 18525/1999 and 2790/2004 respectively filed by the appellants to resolve the controversy between the parties:--
Const. Petition No. 1825/1999:
"It is respectfully prayed that the questioned, recommendation of Respondent No. 2 and decision taken thereupon i.e. not to allocate Police Group of Service to the petitioners may kindly be declared to be illegal and without lawful authority with a direction to respondents to allocate the petitioners Police Service Group instead of Income Tax and Customs. Costs may also be awarded.
It is further prayed that till disposal of Writ Petition, the petitioners may be allowed provisionally to have training as members of Police Service Group."
Const. Petition No. 2790/2004:
"In view of the above, it is most respectfully prayed therefore, that by an appropriate writ/order, Order dated 20-12-2002 conveyed to the petitioner on 22-5-2004 may kindly be declared to be illegal, without a lawful authority, may be set aside and the representation may be remanded to the President of Pakistan for decision thereof after taking into consideration aforementioned points and- by writing of a well reasoned judgment after giving of an opportunity of hearing to the petitioners".
It is further prayed that till decision of the writ petition, respondents may be directed to provisionally allocate the petitioners Police Group instead of Income Tax Group of Service and Customs Group of Service."
"Learned counsel for the appellants concedes the fact that appellants had only withdrawn the CPLA from the Hon'ble Supreme Court. Thus, the order of the learned judge-in-chamber affirmed by the Division Bench in ICA has attained finality. Fresh petition filed almost after three years on the same cause of action, besides, being barred by laches, is not maintainable in law. A Division Bench of this Court cannot set aside the order passed by another Division Bench in a earlier litigation on the same cause of action. Reference can be had to "Shaikh Gulzar Ali & Co. Ltd. and others vs. Special Judge, Special Court of Banking and another, 1991 SCMR 590."
Reading of the operative part shows that the impugned order/judgment is judgment per incuriam as evident from the aforesaid prayer clauses of the constitution petitions which clearly show that appellants had challenged the vires of the order of the Wafaqi Mohtasib in the second round of litigation which was passed on their complaint and also the order of the President which was passed on their representation whereas in the earlier round of litigation appellants had challenged the vires of the recommendations of Public Service Commission. It appears that the learned counsel of the parties did not bring into the notice of the Division Bench the controversy arising in the first round of litigation and present litigation. Therefore, impugned judgment is not in consonance with the law laid down by this Court in various pronouncements. See Mollah Ejahar Ali's case (PLD 1970 SC 173), Gouranga Mohan Sikdar's case (PLD 1970 SC 158) and Messrs Airport Support Services' case (1998 SCMR 2268).
In view of what has been discussed above the appeals are allowed and impugned judgment/order dated 6-10-2008 is set aside and the cases are remanded to the learned Islamabad High Court, Islamabad to decide the ICA on merits and in accordance with law.
(R.A.) Appeals allowed.
PLJ 2009 SC 927
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan &
Zia Perwez, JJ.
KHALID MEHMOOD and others--Appellants
versus
STATE--Respondent
Crl. A. No. 304 of 2000, decided on 16.6.2009.
(On appeal from the judgment dated 20.4.1999 of the Lahore High Court, Lahore passed in Criminal Appeal No. 628 of 1994).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 342--Conviction and sentence recorded against accused by trial Court--Challenge to--Motive--Enmity between the parties--Day time occurrence--Statements recorded u/S. 342, Cr.P.C. were not denied or refuted the existence of criminal litigation between the parties--Validity--Even if there is no motive, murder can be committed in the absence of one as the move relates to the state of mind of a criminal--No legal requirement that in order to award maximum penalty of death in murder case, the motive should be alleged and proved--If prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death--If normal sentence is not be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances--Held: Prosecution had proved its case beyond a reasonable doubt against accused by producing at trial ocular testimony, recovery of weapons of offence, positive report of Fire Arm Expert motive and medical evidence--Appeal was dismissed. [Pp. 931 & 932] A & B
2001 SCMR 387, 1995 SCR 1776, 1993 SCMR 585, PLD 1975 SC 160; PLD 1983 SC 197, 1969 SCMR 542, 1977 SCMR 175, 1980 SCMR 291, 1981 SCMR 805, 1983 SCMR 266, 1984 SCMR 124, 1985 SCMR 489, 1985 SCMR 975, 1987 SCMR 320, 1992 SCMR 1036, PLD 1994 SC 259, 1995 SCMR 1666, 1996 SCMR 872, 1971 SCMR 368 &
1985 SCMR 507, ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302 (b)--Conviction and sentence recorded against accused by trial Court--Challenge to--Appreciation of evidence--No weapon of offence was effected from the accused--Innocent by different police agencies--Evidence was not credible and trust worthy--Validity--No weapon of offence has been effected from his possession--Accused was found innocent by different police agencies including DSP, CIA and got discharged from the Court, which order was not challenged by complainant--Evidence of prosecution was not credible and trustworthy--Appeal was allowed. [P. 932] C
PLD 2002 SC 1048, fol.
Ch. Aitzaz Ahsan, Sr. ASC nd Ch. M. Akram, AOR for Appellants.
Syed Ali Imran, DPG for State.
Date of hearing: 16.6.2009.
Judgment
Ijaz-ul-Hassan, J.--This Criminal Appeal Bearing No. 304 of 2000 with leave of the Court, is directed against the judgment dated 20.4.1999 passed by a Division Bench of the Lahore High Court, Lahore dismissing, Criminal Appeal No. 628 of 1994, filed by appellants challenging the judgment dated 22.4.1993 handed down by Special Judge, Speedy Trials, Lahore, whereby appellants were convicted and sentenced to death on three counts, under Section 302 (B) PPC and to pay Rs.50,000/- as fine each, or in default thereof to undergo two years R.I. The amount of fine, on realization, was directed to be paid to legal heirs of the deceased as compensation under Section 544-A Cr.P.C.
The prosecution story as reflected in the F.I.R in brief is, that on the fateful day i.e. 28.8.1991 at about 5.30 a.m. Mubarik Ali and his sons Muhammad Yousaf and Muhammad Ajmal, deceased left the village to attend the hearing in their bail matter fixed in the Court of Additional Sessions Judge, Nankana Sahib. Complainant Sooba, Muhammad Hussain and Nasir, PWs were following them at a distance of 30/35 karms. The victims boarded the wagon at bus stop of Q.B Link Canal of Miraj Colony, at about 5.30 or 5.45 a.m. In the meanwhile, eight persons including the appellants, duly armed emerged from the nearby `khokhas'. Khalid Mehmood and his brother Abid Hussain alias Mehaba were armed with rifle and gun respectively and Zahid alias Javed Iqbal was carrying a carbine on his person. The appellants entered in the wagon. The driver, conductor and passengers of the wagon, came out of the wagon and ran away due to fear. The accused started firing at the deceased, as a result of which Mubarak and Muhammad Yousaf died there and then and Muhammad Ajmal succumbed to the injuries in Civil Hospital Nankana Sahib. After accomplishing the mission accused made good their escape. The motive leading to the tragedy, was stated to be previous enmity between the two groups. Leaving Muhammad Hussain to guard the dead bodies, PW Sooba went to Police Station Mandi Faizabad, District Sheikhupura and lodged the FIR (Ex.PJ/1) which was recorded by PW Muhammad Yaqoob S.I.
The Investigating Officer on reaching the spot, took into possession Wagon bearing Registration No. FDL-3611 (Ex.P/12) vide memo (Ex.PN), blood stained piece of cover of the seat and sealed the same into parcel vide memo Ex.PM, two pieces of blood stained `rubber' and blood stained piece of plastic vide memos (Ex.PM/1) and (Ex.PM/2), respectively. He also took into possession four empty cartridges (Ex.P. 13/A/1-4) and one empty of 7 mm (Ex.P/14) from inside the wagon vide memo (Ex.PN). He recorded the statements of PWs. Khalid Mehmood and Zahid alias Javed Iqbal appellants were arrested on 29.8.1991 by Muhammad Ashiq ASI Police Station Sharqpur Sharif. He also got recovered 12 bore gun (Ex.P. 13) from Zahid appellant on the same day alongwith 27 live cartridges (P. 14/1-27) vide memo (Ex.PP). He got recovered 7 mm rifle P. 15 alongwith 15 live bullets (Ex.P. 16/1-15) vide memo (Ex.P.R.) According to the report of Fire Arm Expert (Ex.PAA), one empty cartridge matched with the gun recovered from Zahid alias Javaid Iqbal appellant while one of the empties of 7 mm rifle matched with 7 mm rifle recovered from Khalid Mehmood appellant. However, no weapon of offence was recovered from Abid Hussain alias Mehaba appellant.
Nine prosecution witnesses were examined at the trial and at conclusion of the prosecution evidence the statements of the accused were recorded under Section 342 Cr.P.C. who denied the prosecution allegations and claimed to have been falsely implicated on account of previous enmity. The plea of alibi was also taken by them. However, neither any of the accused opted to make a statement on oath in terms of Section 340 (2) Cr.P.C. nor any one of them produced any evidence in defence.
Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, appearing on behalf of appellants, after having taken us through the prosecution evidence, statement of the accused recorded under Section 342 Cr. P.C. and other material available on the record, contended that statement of C.W Muhammad Javed, conductor of the wagon, represent an entirely different picture, totally negating the prosecution version, which tends to suggest that material facts have been concealed and the occurrence had not taken place in the manner as alleged. The learned counsel reiterated that Sooba complainant and Nasir Ahmad PWs were closely related to the deceased therefore, their testimony should not have been accepted without corroboration from some independent and unimpeachable source which was not forthcoming; that the eye-witnesses of the occurrence had not been able to provide plausible explanation for their presence on the place of occurrence; that the medical evidence was not in accord with the eye-witness account; that the empties recovered from the spot were not immediately sent to the Fire Arm Expert but later on sent alongwith crime weapons; that motive setup in the FIR has not been satisfactorily established and that the prosecution evidence qua acquitted co-accused has not been believed whereas the same set of evidence has been utilized and made basis of convictions of the appellants. Concluding the arguments, learned counsel submitted that prosecution case is full of glaring defects, legal infirmities and material irregularities. The impugned judgment has not been recorded after careful and proper consideration of the attendant relevant facts and circumstances, therefore, the same has to be reversed.
Syed Ali Imran, learned Deputy Prosecutor General, Punjab, on the other hand, opposed the arguments of learned counsel for the appellants and supported the impugned judgment maintaining that findings of conviction and sentence of the appellants were recorded concurrently by the High Court as well as by the trial Court after appraisal of the evidence, warranting no interference by this Court.
We have heard at length the arguments of learned counsel for the parties. We have also perused the record in minute details with their assistance.
The crime in question is alleged to have been taken place on 28.8.1991 at about 5.30 a.m. in a Wagon near Behal Q.B.link Canal, Mehraj Colony, Jamalpur. The matter was reported to the Police the same day at 6.00. a.m. by complainant Sooba. The distance between the site of occurrence and Police Station being 7 kilometers. Appellants Khalid Mehmood and Zahid alias Javed Iqbal were arrested on 29.8.1991 by Muhammad Ashiq ASI Police Station Sharqpur Sharif. He also got recovered 12 bore gun from Zahid appellant on the same day alongwith 27 live cartridges, vide memo (Ex.PP). He got recovered 7 mm rifle P. 15 alongwith 15 live bullets (Ex.P16/1-15) which were taken into possession vide memo Ex.P.R. The empties recovered from the spot and the crime weapons were sent to Forensic Science Laboratory for comparison. According to the report (Ex.PAA) of the Fire Arm Expert, one empty matched with the Gun recovered from Zahid appellant and one empty matched with 7 mm rifle recovered from Khalid Mehmood appellant.
There is an old enmity between the parties. It is a day time occurrence. The FIR has been lodged with promptness. All the PWs and the deceased were to attend the Court of Additional Session Judge at Nankana Sahib and it was known to every body that they were to board a wagon or bus in order to reach the Court in time.
Insofar as the motive is concerned, it has been vehemently argued by learned counsel for the appellants that the motive for occurrence as stated in the FIR could not be proved at the trial. We are afraid the contention of the learned counsel is without any basis. The accused in their statements recorded under Section 342, Cr. P.C. have not denied or refuted the existence of criminal litigation between the parties. There is no cavil with the proposition that even if there is no motive, murder can be committed in the absence of one as the move relates to the state of mind of a criminal. There is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. It is not a fit case where this Court should interfere with the imposition of the sentence by the two Courts below Waris Khan versus The State, (2001 SCMR 387), Talib Hussain v. State, (1995 SCMR 1776), State/Government of Sindh v. Sobharo, (1993 SCMR 585), Mushtaq Ahmad v. Muhammad Siddique, (PLD 1975 SC 160), Manzoor Ahmad v. The State PLD 1983 SC 197), Sardar Ali v. State, (1969 SCMR 542), Ahmad Nisar v. State, (1977 SCMR 175), Sher Ali v. State, (1980 SCMR 291), Ghulam Nazir v. State, (1981 SCMR 805), Sher Daraz Khan v. State, (1983 SCMR 266), Arif v. State, (1984 SCMR 124), Mati-ur-Rehman v. State, (1985 SCMR 489), Ahmad Khan v. State, (1985 SCMR 975), Faqir Masih v. Mubarik Masih), (1987 SCMR 320), Roheeda v. Khan Bahadur, (1992 SCMR 1036), Muhammad Ishaque Khan v. State, (PLD 1994 SC 259), Zulfiqar v. State, (1995 SCMR 1668, Intizar Hussain v. Muhammad Sarwar, 1996 SCMR 872), Ghuncha Gul v. State (1971 SCMR 368 and Muhammad Nazir v. State (1985 SCMR 507).
From the above discussion, it is manifest that the prosecution has proved its case beyond a reasonable doubt against Khalid Mehmood and Zahid alias Javed appellants by producing at the trial ocular testimony, recovery of weapons of offence, positive report of the Fire Arm Expert motive and medical evidence.
12. Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupure and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad PWs qua appellant Abid Hussain is not credible and trust worthy. The following observations were made by this Court in Ayub Masih versus The State, (PLD 2002 SC 1048).
"It is hereby necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not the imaginary or artificial. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than are innocent person be convicted. In simple words it means that utmost care should be taken by the court in convicting the accused. It was held in The State versus Mushtaq Ahmad, (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and there is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
(R.A.) Order accordingly.
PLJ 2009 SC 933
[Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud &
Sayed Zahid Hussain, JJ.
MUHAMMAD RAMZAN & others--Petitioners
versus
GHULAM QADIR--Respondent
Civil Petition No. 356 to 360 of 2007, decided on 10.6.2009.
(On appeal against the judgment dated 13.2.2007 passed by the Lahore High Court, Multan Bench, Multan in R.F.As No. 232, 233, 234 of 2000 & 57, 56 of 2001).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2(ii)--Constitution of Pakistan, 1973--Art. 183(5)--Leave to appeal--Suits for recovery on basis of pronote executed--Petitioners were allowed to defend the suit subject to furnishing surety bond equal to suit amount within specified time--Petitioners failed to fulfill the conditions on which leave to defend the suits were granted to them--Validity--In default of obtaining leave to defend or to appear in his defence the allegation in plaint would be deemed to be admitted and the suit could be decreed against the defendants--Leave was refused. [P. 935] A
PLD 1995 SC 362.
Mr. Khan Dil Muhammad Khan Alizai, ASC for Petitioners (in all cases).
Nemo for Respondent (in all cases).
Date of hearing: 10.6.2009.
Order
Muhammad Farrukh Mahmud, J.--All these petitions seeking leave to appeal are directed against judgments dated 13.02.2007 handed down by learned Judge in Chambers of Lahore High Court, Multan Bench, Multan whereby R.F.A. No. 232 of 2000, R.F.A. No. 233 of 2000, R.F.A. No. 234 of 2000, R.F.A. No. 57 of 2001 and R.F.A. No. 56 of 2001 were dismissed. As common points of law and similar facts are involved in the Petitions, these are being decided through this consolidated judgment. Respondent instituted suits for recovery of Rs. 25,000/- each against Petitioner Nos. 1, 2 and 4 in the Court of learned District Judge under Order XXXVII C.P.C. on the basis of promote executed in his favour on 08.12.1997.
(i) In Civil Petition No. 356 of 2007, vide order dated 12.06.2000, the petitioner's application seeking leave to defend the suit was allowed subject to furnishing surety bond equal to the suit amount till 12.07.2000. The petitioner failed to file the surety bond, hence his application for leave to defend was dismissed, and after taking into consideration the promote (Ex.P-1) and receipt (Ex.P-2) the suit was decreed in favour of respondent vide judgment and decree dated 19.09.2000.
(ii) In Civil Petition No. 357 of 2007, the petitioner was allowed to defend the suit subject to furnishing surety bond for a sum of Rs. 25,000/- till 12.07.2000 vide order dated 12.06.2000. The petitioner did not submit the surety bond within the specified time, however the date for filling the surety bond was extended till 30.09.2000. The petitioner failed to file the surety bond within the. specified time and sought extension in time. His application seeking extension in time for filling the surety bond was dismissed and the petitioner was proceeded against ex-parte. After considering promote (Ex-P-1) and receipt (Ex-P-2) the learned trial Court decreed the respondent's suit vide judgment and decree dated 30.09.2000.
(iii) In Civil Petition No. 358 of 2007, vide order dated 12.06.2000 the petitioner was allowed to defend the suit subject to his furnishing the surety bond equal to the suit amount till 12.07.2000. The petitioner did not to comply with the order of the learned trial Court, hence his application seeking leave to defend the suit was dismissed and the suit of the respondent was decreed in his favour vide judgment and decree dated 19.09.2000, on the basis of promote (Ex-P-1) and receipt (Ex-P-2).
(iv) In Civil Petition No. 359 of 2007, vide order dated 30.10.2000 the respondent was allowed to defend the suit subject to his furnishing surety bond equal to the suit amount till 21.11.2000. Instead of complying with the order of the trial Court, the petitioner sought extension in time for furnishing the surety bond through application which was dismissed on 10.01.2000 and the case was adjourned for recording ex-parte evidence. After considering promote (Ex-P-1) and receipt (Ex-P-2) the suit was decreed in favour of the respondent vide judgment dated 01.02.2000.
(v) In Civil Petition No. 360 of 2007, vide order dated 30.10.2000 the petitioner was allowed to defend the suit subject to his furnishing surety bond equal to the suit amount till 21.11.2000. Instead of filing the surety bond within the specified time the petitioner moved application seeking extension in time to submit the surety bond which was dismissed by the learned trial Court on 10.01.2001 and the case was adjourned for recording ex-parte evidence. Vide judgment dated 01.02.2001 the suit of the respondent was decreed on the basis of promote (Ex-P-1) and receipt (Ex-P-2).
As noted above, the petitioners went in appeals which were dismissed, hence these petitions.
The learned counsel for the petitioners has argued that the learned trial Court had decreed the suits in favour of the respondent without recording any evidence and that the suits were decreed in favour of the respondent without proper application of mind by the learned trial Court, who should have given further opportunity to furnish the requisite surety bond.
We have heard the learned counsel for the parties and have also gone through the record of the case. In all the above noted petitions the petitioners were allowed to defend the suit subject to their furnishing surety bond equal to suit amount within specified time. The petitioners failed to fulfill the conditions on which leave to defend the suits were granted to them. Perusal of the sub Para 2 of Rule 2 of order XXXVII reveals that in default of obtaining leave to defend or to appear in his defence the allegation in the plaint would be deemed to be admitted and the suit could be decreed against the defendants. We would like to reproduce the observations of this Court, on the point, made in the judgment titled of Haji Ali Khan & Company, Abbottabad and 8 others vs. M/s. Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 Supreme Court 362).
"10. The ratio decidendi of the above-referred cases seems to be that if a defendant fails to appear or fails to obtain leave to defend in response to a summons served in form No. 4 provided in Appendix B to the C.P.C. or fails to fulfil the condition on which leave was granted or where the Court refuses to grant leave, the Court is to pass a decree. It may further be observed that in sub-rule (2) of Rule 2, C.P.C, it has been provided that if a defendant fails to appear or defaults in obtaining leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree, but no such consequences are provided for in Rule 3 of the above Order in a case where the Court refuses to grant leave or the defendant fails to fulfil the condition on which leave was granted. In our view, notwithstanding the above omission in Rule 3, the effect of refusal of the Court to grant leave or failure on the part of the defendant to comply with the condition of the leave, will be the same i.e. the defendant shall not be entitled to defend the suit on any ground and the Court would pass a decree in favour of the plaintiff. However, this does not necessarily mean that the Court is not required to apply its mind to the facts and the documents before it. Every Court is required to apply its mind before passing any order or judgment notwithstanding the factum that no person has appeared before it to oppose such an order or that the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirements of law."
A similar view was taken by this Court in the case of Abdullah vs. Shaukat (2001 SCMR 60) relevant portion is as follows: -
"5. The appellant had all the time in the world to comply with the direction, dated 18.01.1992 and that too by submitting a personal surety bond in the sum of Rs.22,400 between 18.01.1992. He did not do so and his failure was rightly considered by the learned District Judge and the learned Judge in the Lahore High Court, Multan bench as tantamount to admission of the claim of the other side."
In all the cases the learned trial Court had considered and brought on record the promotes and receipts executed in favour of the respondent, so it could not be said that the learned trial Court did not apply its mind to the facts of the case or that the suits were decreed without any evidence.
It is not denied that it was within the discretion of the learned trial Court to grant leave to defend the suit subject to imposition of condition. The order of the learned trial Court on that regard was perfectly legal, furthermore it was not challenged by the petitioners. The petitioners were given sufficient time to comply with the direction of the leaned trial Court visa-a-vis furnishing the surety bonds but the orders were not complied with for no justifiable reasons. The leaned trial Court rightly dismissed the applications of the petitioners seeking leave to defend. The learned counsel failed to point out any irregularity or infirmity in the judgments passed by the learned Courts below.
(R.A.) Petition dismissed.
PLJ 2009 SC 937
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Zia Perwez & Sarmad Jalal Osmany, JJ.
JANNAT BIBI and another--Appellants
versus
MUHAMMAD TAYYAB HUSSAIN & others--Respondents
Crl. Appeal Nos. 206 & 207 of 2001, decided on 22.6.2009.
(On appeal from judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 10.5.1999 passed in Criminal Appeal No. 90/1996 and Murder Reference No. 16/1996).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Conviction and sentence recorded against accused by trial Court--Acquitted by High Court except of one accused--Assailed--Long standing enmity between the parties and litigation was going on--Bones were fractured and broken in three pieces and membrance ruptured and brain was damaged--Hair was absent around the wound--Ocular account was stated to have caused injuries with sharp side of axe whereas caused injury with sabbal--Accordingly to opinion of doctor injuries were caused by a hard and blunt substance--No such corresponding injury as opined by doctor--Validity--As stated by doctor himself in cross-examination such abraisons which correspond to injuries could be caused when body of deceased was dragged on the ground with force--Although the incident may not be pre-meditated one, the injuries on deceased's body reveals that he was done to death mercilessly as it bore multiple abraisons and his head was crushed, and broken into pieces--Held: Abraisons could only be caused by dragging of the deceased's body on the ground with a Tractor--Deceased's body was found entangled in the rear wheels of the Tractor only establishes that convicted accused was the perpetuator of the crime--Appeals were dismissed. [Pp. 944 & 945] A & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Statement of accused--Version in examination--Incident was not denied by defence--Validity--Accused were given their version of it in their examination under Section 342, Cr.P.C. [P. 944] B
Defence version--
----Truth lies in middle of two conflicting versions--Held: Defence version is to be believed to extent that an altercation was going on between the deceased and accused when remaining accused arrived there--Prosecution witnesses have exaggerated the event in order to falsely implicate maximum number of accused who are all near relations. [P. 944] C
Sheikh Khizar Hayat, ASC for Appellant (in Crl. A. No. 206 of 2001).
Syed Raffaqat Hussain Shah, ASC for Respondents No. 1 to 4 (in Crl. A. No. 206 of 2001).
Mian Asif Hayat, Deputy Prosecutor General, Punjab for State (in Crl. A. No. 206 of 2001).
Qari Abdur Rashid, ASC for Appellant (in Crl. A. 207/2001).
Mian Asif Hayat, Deputy Prosecutor General, Punjab for State (in Crl. A. 207/2001).
Date of hearing: 8.6.2009.
Judgment
Sarmad Jalal Osmany, J.--Criminal Appeal No. 206/2001 impugns the judgment of the Learned Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No. 90/1996 whereby Respondents/Accused Muhammad Tayyab, Muhammad. Anwar, Muhammad Ishaq, Muhammad Umar, Tanvir Ahmed, Muhammad Saeed and Abdul Waheed were acquitted of the charge against them under Section 302(b) PPC read with Section 34 PPC for the murder of Deceased Abdul Malik. Criminal Appeal No. 207/2001 impugns the same judgment of the Learned Lahore High Court whereby Appellant Muhammad Khan's conviction under Section 302(b) PPC was upheld and sentence of death confirmed. Consequently, these Appeals are being disposed of together. It may be noted that in the leave granting order notices were only issued to Respondents Muhammad Tayyab, Muhammad Anwar, Muhammad Ishaque and Muhammad Umar.
Briefly stated the case of the Prosecution is that on the day of occurrence viz 28.8.1994 at 7.00 a.m. Deceased Abdul Malik along with his mother Mst. Jannat Bibi had to go to Police Station Shahar Fareed for investigation of a case which they had got registered against Appellant Muhammad Khan. However, due to fear of the Accused Party they did not board the Wagon from the Adda (Stand) and went to Basti Azeem in Chak No. 3/Fordwah to do so. Meanwhile, Muhammad Ali, Muhammad Yasin, Ghulam Rasool came on their motorcycle who had links with the Accused Party and on seeing them returned to inform Accused Muhammad Tayyab about their presence. Shortly thereafter Muhammad Tayyab armed with a hatchet and his son Muhammad Afzal came on a motorcycle. He raised a lalkara that they would teach a lesson to the Deceased for getting a criminal case registered against them on which Muhammad Tayyab gave a hatchet blow on the back of the Deceased's head. Meanwhile Respondents Muhammad Ishaq, Muhammad Umar, Tanvir Ahmad, Muhammad Saeed and Abdul Waheed armed with sotas (sticks) along with Muhammad Anwar armed with a sabbal (iron rod) reached there on a tractor trolley driven by Appellant Muhammad Khan. The Deceased and Complainant Mst. Jannat Bibi ran towards Basti Azeem to save their lives and raised a hue and cry on which Muhammad Sharif, Muhammad Hanif, Noor Hassan, Mst. Shamim and Muhammad Hanif had gathered there. All the Respondents chased the Deceased and his mother. Muhammad Anwar gave a blow with his sabbal on the forehead of the Deceased whereas Muhammad Tayyab gave a second hatchet blow on the back of his head. Muhammad Ishaq gave a stick blow on the right hand and Muhammad Umar on his shoulder when the Deceased fell down on the ground upon which he was further given blows by Muhammad Tanvir, Abdul Waheed and Muhammad Saeed. When Complainant Jannat Bibi tried to rescue her son she was belaboured by Respondents Abdul Waheed, Muhammad Saeed and Muhammad Tanvir with sticks. So also when PWs Muhammad Sharif, Muhammad Hanif and Noor Hassan tried to apprehend the Respondents, they were given similar treatment. Than all the Respondents asked Appellant Muhammad Khan to run over the Deceased with his tractor which he did after removing the trolley from the same. The PWs however, succeeded in apprehending Muhammad Anwar, Muhammad Afzal and Muhammad Tayyab with their weapons while rest of the accused decamped from the scene leaving behind the tractor trolley and motorcycle at the spot.
Sheikh Khizar Hayat, Learned ASC appearing for the Appellant/Complainant in Criminal Appeal No. 206/2001 has firstly submitted that the role of Muhammad Tayyab is that of inflicting two hatchet blows on the back of the Deceased's head which is fully corroborated by the medical report. He was apprehended at the spot and hence there can be no doubt of his presence at the place of incident. Learned ASC has referred to the medical report according to which the injury numbers 1 to 3 viz an abrasion measuring 8cm x 7 cm on the left side of the forehead, a lacerated wound measuring 6 cm x 1 cm on the right side of the skull where the bone was fractured and brain was damaged and a lacerated wound measuring 5 cm x 1 cm on the left side of skull damaging the brain and membrane were the causes of death. Per Learned ASC the evidence available on the record i.e. the statement of the PWS before the Learned Trial Court if placed in juxtaposition with the statement of Respondent Muhammad Tayyab under Section 342 PPC renders the latter implausible according to which the Deceased had opened the attack on Muhammad Khan who was driving a tractor and who in order to save himself swerved towards one side when the Deceased came in front and fell down on some bricks and resultantly died.
Per Learned ASC in so far as the role of Respondent Anwar who caused a sabbal blow on the front side of the Deceased's hand is concerned, it is also corroborated by the medical report i.e. Injury No. 1 which is an abrasion on the left side of the forehead along with laceration found in the middle of the abrasion. However, although the brain had been fractured but the membrane was intact. This is further corroborated by recovery of a Sabbal at the behest of Respondent Muhammad Anwar which was not blood stained. Learned ASC has explained that a safa (piece of cloth) was upon the head of the Deceased, which prevented the blood penetrating through it which could have stained the Sabbal. However, the safa was found to be blood stained. As to Muhammad Ishaq and Umar, they had caused injuries over the arm and shoulder of the Deceased with their sticks which are again corroborated by the medical report and recoveries of such sticks from them. Per Learned ASC in so far as Muhammad Ishaq and Umar are concerned they had the common intention which was shared along with Muhammad Tayyab and Anwar to do away with the Deceased and hence are equally responsible for his death. Therefore the Learned Trial Court correctly convicted Muhammad Tayyab and Anwar to death and Umar and Ishaq to life. As regards the learned High Court's reasoning that there was no injury by any sharp weapon found on the Deceased's body; a sabbal is an iron rod for digging earth and hence it can very well be used as a blunt weapon to cause the injury as attributed to Anwar. Similarly as the Deceased was wearing a safa on his head even if it was used from the sharp side by Tayyab as per eye-witness account, it could only result in a laceration and not an incised wound. In any event per Learned ASC even if there are minor discrepancies between the ocular account and the medical evidence the former should prevail. In support of this contention he has relied upon Muhammad Hanif v. State (PLD 1993 S.C. 895). Learned ASC has also submitted that Learned High Court's reasoning as to the innocence of Ishaq on the ground that no injury was found on the arm of the Deceased is again faulty as it is against the medical record. He has again pressed the plea of common intention in so far as Ishaq is concerned. So also findings of the Learned High Court with regard to Umar's blow are also against the medical record and the ocular account. He has relied upon Muhammad Sharif v. Muhammad Javed (PLD 1976 S.C. 452). He has, therefore, prayed that the judgment of the Learned Trial Court be restored viz-a-viz the acquitted Accused i.e. they be given life imprisonment etc.
Syed Rafaqat Hussain Shah, Learned ASC appearing for the Respondents No. 1 to 4 has contrarily submitted that Muhammad Tayyab was an old man of 70 years at the time of occurrence hence it is not possible that he could have chased a 45 years old robust man and gave him hatchet blows. Secondly, per Learned ASC had Muhammad Ishaq been guilty he would have ran away from the spot. Consequently his version per his statement under Section 342 Cr.P.C. is to be believed i.e. that he arrived on his motorcycle after the occurrence had taken place. Learned ASC has further submitted that the ocular version does not match the medical account in so far as injuries attributed to Muhammad Tayyab with his axe are concerned as then there would have been incised wounds on the Deceased's head whereas the Doctor who conducted the postmortem of the Deceased found that such injuries were given by a hard and blunt weapon. Again in so far as the case of Anwar is concerned he is stated to have hit the Deceased with a Sabbal, which is an iron rod and is used for digging earth. Consequently it is impossible that the injuries attributed to Anwar were from an iron rod as it was not stained with human blood and further that as per medical report brain matter was damaged and membrane was intact which would not have been the case if the injuries were caused by an iron rod. In so far as Umar is concerned, Learned ASC has submitted that he has been attributed Injury No. 5 on the right side of Deceased's chest which is only an abrasion and could be the result of dragging and not delivered with a stick as stated. Further this is corroborated by the medical account as according to the Doctor it could be the result of dragging or falling on the ground as observed by the High Court. He has also fully supported the impugned judgment to the effect that allegation against Respondents Tanvir Ahmad, Muhammad Saeed and Abdul Waheed is of a general nature of having caused blows with their sotas (sticks) but the same is falsified by the medical report as the Doctor has admitted in his cross-examination that Injuries No. 5, 6 & 7 can be the result of dragging or caused from wheels of any vehicle. Learned ASC has therefore prayed that Criminal Appeal No. 206/2001 be dismissed.
Mian Asif Mumtaz, Learned Deputy Prosecutor General, Punjab has adopted the arguments of Sheikh Khizar Hayat Learned ASC appearing for the Appellant. In so far as common intention is concerned, he has relied upon Zahid Imran v. State (PLD 2006 S.C. 109) and Muhammad Yaqoob v. The State (PLD 2001 S.C. 378).
Qari Abdur Rashid, Learned ASC appearing for the Appellant Muhammad Khan in Cr. Appeal No. 207/2001 has submitted that the role given in the F.I.R. to this Appellant is that after the Deceased had fallen down on the ground he had trampled him with his tractor.' However, this version if kept in juxtaposition with the Appellant's statement (he had adopted the statement of Muhammad Tayyab) under Section 342 Cr.P.C. is not probable. According to said statement the Deceased had attacked him and Respondent Muhammad Ishaq who were on the tractor when the Appellant swerved and the Deceased came against it and dashed on some bricks lying in that area and died. Hence there was no pre-mediation on his part at all. Consequently, in the alternative Learned ASC has submitted that life imprisonment should be given to Appellant Muhammad Khan which would serve the ends of justice as the incident took place due to a sudden flare up and fight between the parties. His next submission was that all the witnesses are interested and belong to the same caste viz Arain whereas the Accused party belong to Joiya caste. Hence, strict corroboration is required in so far as the eye-witness account is concerned which is not forthcoming from the medical record. He has finally submitted that if the ocular version is to be believed it is quite clear that Appellant Muhammad Khan trampled the dead body of the deceased hence he should be punished under Section 297 PPC for which the maximum sentence is two years R.I.
Learned Deputy Prosecutor General Punjab on the other hand has totally supported the impugned judgment in so far as Appellant Muhammad Khan is concerned. He has submitted that his statement under Section 342 Cr.P.C. cannot be believed if put in juxtaposition with the prosecution version since the latter has brought home the guilt of this Appellant beyond any reasonable doubt. For this proposition he has cited Elahi Bakhsh v. State (2005 SCMR 810) Muhammad Naeem v. State (PLJ 2005 S.C. 159), Zulfiqar Ali v. State (2008 SCMR 796) and Muhammad Yaqoob v. The State (PLD 2001 S.C. 378).
We have heard all the Learned ASCs as well as Learned Deputy Prosecutor General, Punjab and perused the record with their assistance. It would be seen that in so far as the incident itself is concerned, the same is not denied by the Defence but not in the manner in which it has stated to have taken place by the Prosecution. Similarly, it has not been denied by the PWs that there had been a long standing enmity between the parities and litigation was going on. Consequently, we propose to examine the case keeping in view the afore stated facts which are admitted. In this regard it would be seen that Deceased Abdul Malik, as opined by the Doctor who carried out his postmortem received 8 injuries. Injury No. 1 is an abrasion measuring 8 cm x 7 cm on the left side of the forehead whereas there was a lacerated wound measuring 5 cm x 1 cm in the middle of such abrasion. The bone had been fractured but the brain and membrane was intact. Injury No. 2 was a lacerated wound measuring 6 cm x 1 cm on the right side of the occipital region of the scalp, the bones were fractured and broken in three pieces and the membrane ruptured and brain was damaged. Hair was absent in an area of 8 cm x 5 cm over and around the wound. Injury No. 3 was a lacerated wound measuring 5 cm x 1 cm on the left side of the occipital region of the scalp and bone was fractured in two pieces, the brain was damaged and membrane ruptured. Injury No. 4 was on the upper half of right fore-arm which was swollen, and small blisters were found whereas outer layer of skin was ruptured. Injury No. 5 was an abrasion measuring 18 cm x 14 cm on back of the chest and there was a bruise measuring 3 cm x 4 cm 2 cm below the abrasion. Injury No. 6 was an abrasion measuring 14 cm x 8 cm again on the chest below Injury No. 5. Injury No. 7 again was an abrasion measuring 52 cm x 14 cm extending from the right buttock to the right thigh below the right knee joint. Finally injury 8 was a bruise measuring 6 cm x 5 cm on the right upper arm. No fracture was seen.
Keeping these injuries in view, we would now examine the ocular account according to which Respondent Muhammad Tayyab is stated to have caused Injuries No. 2 & 3 with the sharp side of his axe whereas Respondent Muhammad Anwar is stated to have caused Injury No. 1 with his sabbal (iron rod). According to the opinion of the Doctor Injuries No. 2 and 3 were caused by a hard and blunt substance. Consequently had they been caused by Muhammad Tayyab who used the sharp side of his axe the same would have been incised which is not the case. In so far as Injury No. 1 is concerned, it has been argued by Syed Rafaqat Hussain Shah, learned ASC that this tool is for digging earth, one side of which is blunt and the other flattered. Consequently again since Injury No. 1 was caused by a hard and blunt substance it could not have been caused by a Sabbal by Muhammad Anwar. However, we do not agree with this proposition since the injury itself i.e. No. 1, as opined by the Doctor, is a lacerated wound measuring 5 cm x 1 cm on the left side of the forehead caused by a blunt weapon in which event the sabbal, if used as weapon of offence could very will have caused such injury from the blunt side. Respondent Muhammad Ishaq was allegedly armed with a sota (stick) who injured the right wrist of the Deceased but there is no corresponding injury at such place. On the other hand there as blisters which were not on the right wrist but on the right arm which could not have been caused by a stick. Respondent Muhammad Umar was alleged to have caused an injury with a sota on the left arm of the Deceased but there is no such corresponding injury as opined by the doctor. So also against Respondents Tanvir Ahmad, Muhammad Saeed and Abdul Waheed there are general allegations that they had caused sota blows to the Deceased which are similarly falsified by the medical evidence because a blow given by a stick should result in a bruise and if hit with full force perhaps a laceration but not an abrasion which consists of the remaining injuries certified by the Doctor on the body of the Deceased. The dictionary meaning of the word abrasion would denote `the process of scraping or wearing down by friction or a graze." In our opinion, as stated by the Doctor himself in his cross-examination, such abrasions which correspond to Injuries No. 5, 6 & 7 could be caused when the body of the Deceased was dragged on the ground with force.
As stated above, the incident itself is not denied by the Defence. However, the Accused have given their version of it in their examination under Section 342 Cr.P.C. In this regard, per Respondent Muhammad Tayyab he was not even present at the scene but was going on his motorcycle when after the occurrence he reached there and was apprehended by the PWs. According to him Convict/Appellant Muhammad Khan and Respondent Muhammad Ishaq were on their way to Marry Shauq Shah on the tractor via the place of occurrence leading through Basti Azim when they came across Mst. Jannat Bibi, Noor Hassan, Sharif Hanif and Deceased Abdul Malik who restrained them. The Deceased who was armed with a sofa (stick) gave its blow to Muhammad Ishaq who was sitting on the mudguard of the tractor who fell down. Appellant Muhammad Khan in his defence diverted the tractor towards Basti Azim when the Deceased came in front of the same and as a result fell down on some bricks lying in the area due to which he received injuries and died there. In the meantime inhabitants of the area along with the PWs apprehended Ishaq and Muhammad Khan at the spot. During this process Mst. Jannat Bibi and other PWs also received some injuries. After his arrival along with accused Muhammad Afzal his son, they were also apprehended by the PWs who handed them over to the police. Then the other Co-accused reached the spot when they learnt about the incident and they were also apprehended and in this process the PWs also received injuries. Convict/Appellant Muhammad Khan and Accused Ishaq were also apprehended at the spot but their arrest had been intentionally omitted in order to conceal the true facts. All the accused adopted the statement of Respondent/accused Muhammad Tayyab.
The aforesaid statement when kept in juxtaposition with the Prosecution case particularly the medical evidence reveals that perhaps the truth lies in the middle of these two conflicting versions and both the parties have not been candid before the Learned Trial Court. In this view of the matter, we are of the opinion that the defence version is to be believed to the extent that an altercation was going on between the deceased and Muhammad Khan and Muhammad Ishaque when the remaining accused arrived there. The PWs have exaggerated the event in order to falsely implicate maximum number of accused who are all near relations. Muhammad Khan was driving the Tractor, and although the incident may not be a pre-meditated one, the injuries on the deceased's body reveals that he was done to death mercilessly as it bore multiple abrasions and his head was crushed, and broken into pieces. In our opinion the abrasions could only be caused by dragging of the deceased's body on the ground with a Tractor. This coupled with the fact that the deceased's body was found entangled in the rear wheels of the Tractor only establishes that Muhammad Khan was the perpetuator of the crime. The upshot of the above discussion is that both the Appeals are dismissed.
(R.A.) Appeals dismissed.
PLJ 2009 SC 945
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Raja Fayyaz Ahmed &
Ch. Ijaz Ahmed, JJ.
ABDUL RASHID--Petitioner
versus
DIRECTOR GENERAL, POST OFFICES, ISLAMABAD
and others--Respondents
Civil Petition No. 589 of 2009, decided on 28.4.2009.
(Against the judgment dated 31.1.2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 1235 (R)CS/2003).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil servant--Leave to appeal--Limitation--Punishment of reduction in his pay equal to two steps--Allegations of inefficiency and misconduct--Departmental appeal after a delay of about 2 years and 5 months--Service Tribunal had given findings of facts against petitioner--Validity--Supreme Court cannot interfere in the findings of fact arrived at by Service Tribunal while exercising the power under Art. 212(3) of Constitution--Held: Service Tribunal had exercised its discretion judiciously, which was neither arbitrary nor capricious, hence, conclusion drawn by service tribunal was in accordance law and settled norms of justice--Further held: Finding of tribunal was conclusive which cannot be challenged unless same was result of misreading or non-reading of record--Leave refused.
[Pp. 948 & 949] A & F
1991 SCMR 255 & 1982 SCMR 880 rel.
Civil Servant--
----Departmental appeal was filed after a delay of about 2 years and five months--Validity--Law favours the diligent litigant and not negligent--Civil servant was not vigilant to agitate the matter before competent authority or before service tribunal within prescribed period.
[P. 948] B
1981 SCMR 1158 rel.
Limitation--
----Mere repetitions of representation would not by itself enlarge the prescribed period of limitation. [P. 948] C
PLD 1985 SC 309 & 1990 SCMR 1440 rel.
Service Matter--
----Condonation of delay--Departmental appeal was filed after delay of 2 years and five months--Validity--It is duty and obligation of the aggrieved person seeking condonation of delay must have to justify each day's delay--Held: Application for condonation of delay did not raise any plausible reason for condonation of delay. [P. 949] D
PLD 1982 SC 292; PLD 1995 SC 396 and 1986 SCMR 930 ref.
Service Tribunal Act, 1973 (LXX of 1973)--
----S. 4--Constitution of Pakistan, 1973--Art. 212(3)--Civil servant--Punishment of reduction in pay equal to two steps--Departmental appeal was filed after 2 years and five months--Limitation--Validity--Period of 120 days for filing appeal under proviso to S. 4 of Service Tribunal Act, is available and appeal must be filed within 30 days.
[P. 949] E
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 28.4.2009.
Order
Ch. Ijaz Ahmed, J.--Abdul Rashid, petitioner, seeks leave to appeal against the impugned judgment dated 31-1-2009 whereby the Federal Service Tribunal, Islamabad, dismissed his appeal as time barred.
"decision dated 19-9-2002 is final and holds good".
Petitioner being aggrieved filed Appeal No. 1235(R)CS/2003 before the Federal Service Tribunal, Islamabad, on 19-11-2003 which was dismissed as time barred vide order dated 31-1-2009, hence the present petition.
Leaned counsel for the petitioner submits that learned Service Tribunal had erred in law to dismiss the appeal of the petitioner on technical ground as time barred. The judgment of the learned Service Tribunal is not in consonance with the law laid down by this Court as this Court had laid down principle in various pronouncements that cases must be decided on merits and the poor litigant could not be non-suited on technical grounds including limitation. He further urges that petitioner filed an application before the Service Tribunal for condition of delay which was not decided by the learned Service Tribunal after application of mind. He further maintains that his last representation was finally decided by the appellate authority on 13-10-2003 whereas the petitioner had filed appeal before the Service Tribunal on 19-11-2003, therefore, appeal of the petitioner was not time barred before the Service Tribunal but the Service Tribunal did not consider this aspect of the case.
We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record with his able assistance. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy arising out of this petition:--
(i) Inquiry Officer was appointed by the Competent Authority vide order dated 19-3-1997.
(ii) The Inquiry Officer after completing the legal formalities found him guilty vide its report dated 5-7-1997.
(iii) Show cause notice was served upon the Petitioner on 29.8.1997.
(iv) The competent authority awarded punishment of reduction of two steps to the petitioner vide order dated 25-8-1998 without prescribing the period on account of inefficiency and mis-conduct.
(v) Departmental appeal was filed by the petitioner on 20.9.2000 which was finally decided by the appellate authority on 19-9-2002.
(vi) The representation was filed by the petitioner on 10-9- 2003 which was rejected on 13-10-2003 by informing the petitioner that the decision, already taken on 19-9-2002, is final.
(vii) The petitioner filed appeal before the Service Tribunal on 19-11-2003.
In case the aforesaid facts are put in juxta position then it is crystal clear that the petitioner filed departmental appeal against the order of the appellate authority dated 25-4-1998 on 26-9-2000 after a delay of about 2 years and five months. It is pertinent to mention here that the Appellate Authority decided his appeal on 19-9-2002. The petitioner did not agitate the matter before any forum till 10-9-2003 which was rejected vide order dated 13-10-2003 by informing the petitioner that order dated 19-9-2002 is final. The learned Service Tribunal after application of mind had given findings of fact against the petitioner that his appeal before the Service Tribunal was highly time barred as is depicted from para 6 of the impugned judgment. This Court cannot interfere in the findings of fact arrived at by the Service Tribunal while exercising the power under Article 212(3) of the Constitution as dictum laid down by this Court in Ch. Muhammad Azim's case (1991 SCMR 255) and Muhammad Nawaz's case (1982 SCMR 880)
It is settled proposition of law that law favours the diligent litigant and not the negligent. As mentioned above the petitioner was not vigilant to agitate the matter before the competent authority or before Service Tribunal within prescribed period. The learned Service Tribunal was justified to dismiss the appeal of the petitioner as time barred. See Muhammad Sharif case (1981 SCMR 1158). It is settled proposition of law that mere repetitions of representation would not by itself enlarge the prescribed period of limitation. Any relaxed view in this regard did not defeat real object and spirit of law which consciously restricts and controls period for availing of relief as law laid down by this Court in various pronouncements including the following judgments:--
(i) PLD 1985 SC 309 (Bashir Ahmed Khan case)
(ii) 1990 SCMR 1440 (Muhammad Hasham case)
(i) PLD 1985 SC 153 (Hakim Muhammad Buta's case)
(ii) PLD 1993 SC 147 (Muhammad Hussain case)
(i) PLD 1996 SC 292(Ali Muhammad case)
(ii) PLD 1995 SC 396 (Muhammad Saleem case)
(iii) 1986 SCMR 930 (Muhammad Feroze Khan's case)
The aforesaid proposition of law is also supported by the law laid down by this Court in Zaffar Iqbal Khan case (2003 SCMR 1471). It is settled law that period of 120 days for filing appeal under proviso to Section 4 of Service Tribunals Act, 1973 is available and appeal must be filed within 30 days as law laid down by this Court in Haji Kadir Bux case (1982 SCMR 582). The learned Service Tribunal had examined all controversial questions of law and fact in a comprehensive manner after having scrutinized entire record and relevant laws. The learned Service Tribunal had exercised its discretion judiciously, which was neither arbitrary nor capricious, hence, conclusion drawn by Service Tribunal was in accordance law and settled norms of justice. We do not find any ambiguity or illegality warranting interference by us. As mentioned above, the learned Tribunal has dismissed the appeal as time barred, therefore, finding of Tribunal is conclusive which cannot be challenged unless the same is result of misreading or non-reading of record. See Syed Ali Hasan Rizvi case (1986 SCMR 1086). Even otherwise the petitioner has failed to raise any question of public importance in the present case as contemplated under Article 212(3) of the Constitution.
(R.A.) Leave refused.
PLJ 2009 SC 950
[Appellate Jurisdiction]
Present: Ch. Ejaz Yousaf & Sardar Muhammad Aslam, JJ.
JAMSHED KHAN--Petitioner
versus
MUHAMMAD SAEED & others--Respondents
C.P.L.A. No. 574-P of 2004, decided on 17.4.2009.
(On appeal from the judgment dated 13.5.2004 in C.R. No. 233 of 2003 passed by the Peshawar High Court, Peshawar).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973--Art. 185(3) Leave to appeal--Suit for possession by way of pre-emption--Non-mentioning the place, date and time of talb-i-muwathibat--Maintainability of suit--Revision was dismissed primarily for the reason that neither date, time, or place when talb-i-muwathibat was made was mentioned in plaint, nor plaintiff had disclosed the name of the person from whom he gained knowledge regarding alleged sale--Held: Non-mentioning the place, date and time of talb-i-muwathibat and date of issuing the notice of talb-i-ishhad was fatal towards maintainability of a suit for preemption--Leave refused. [P. 951] A & B
PLD 2003 SC 315, 2003 CLC 1439, 1999 UC SC 424, PLD 2007 SC 302, 2008 SCMR 404 & PLD 2008 SC 559, rel.
Mr. Tasleem Hussain, ASC/AOR for Petitioner.
Abdul Samad Khan, ASC/AOR for Respondent No. 1.
Date of hearing: 17.4.2009.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the order/judgment dated 13.5.2004 passed by a learned Single Bench of the Peshawar High Court, Peshawar, whereby Civil Revision Bearing No. 233/2003 filed by the respondent was allowed, the judgment and decree passed by learned District Judge, Swabi, was set-aside and that of Civil Judge, Swabi was restored.
Facts of the case, in brief, are that a suit for possession by way of pre-emption of the land detailed in the plaint, was instituted by the petitioner against the respondent which was contested by the respondents by filing written statement. The learned trial Court, after framing issues and recording evidence of both the parties, decreed the suit in favour of the petitioners vide judgment and decree dated 27.5.1992. However, in appeal learned District Judge Swabi set-aside the order of the Civil Judge and the case was remanded to the trial Court for decision afresh. On remand, the trial Court dismissed the suit of the petitioner vide judgment and decree dated 14.4.1997. The petitioner/plaintiff filed appeal before the District Judge Swabi which was allowed and the case was again remanded to the trial Court for decision afresh. Being aggrieved, the respondents/defendants filed C.R. No. 115/1998 in the High Court which was allowed vide judgment dated 15.1.2001 and the case was again remanded. On remand, the learned District Judge accepted the appeal and decreed the suit in favour of the petitioner/plaintiff, vide judgment and decree dated 30.1.2003. Being dissatisfied the respondents/defendants filed civil revision before the Peshawar High Court, Peshawar, which, as stated in the opening para hereof, was allowed vide the impugned judgment, hence this petition.
It would be pertinent to mention here that the revision filed by the petitioner was dismissed primarily for the reason that neither the date, time or place, when Talb-i-Muwathibat was made, was mentioned in the plaint, nor the plaintiff had disclosed the name of the person from whom he gained knowledge regarding the alleged sale. Reliance was placed on the cases reported as (i) Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), (ii) Shaibar v. Babu (2003 CLC 1439) and (iii) Mst. Shamim Akhtar v. Kh. Maqsood Ahmad (1999 UC (SC) 424). The learned Judge was further of the opinion that since appellate court had failed to appreciate the correct legal position and thus had committed material irregularity, therefore, the impugned judgment was not sustainable.
It is by now well settled that non-mentioning the place, date and time of Talb-i-Muwathibat and date of issuing the notice of Talb-i-Ishhad, in terms of Section 13 of the Pre-emption Act, is fatal towards maintainability of a suit for pre-emption. It would be pertinent to mention here that the proposition in hand came up for consideration before a larger Bench of this Court in the case of Mian Pir Muhammad & another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) and was answered in the following words :--
"4. It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should made immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act."
and the above view has been reiterated in a recent judgment delivered by this Court in the cases reported as Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404), wherein it has been unequivocally laid down that it was mandatory for the pre-emptor to mention the date, time, place, as well as name of the person in whose presence the information regarding sale of the suit land was received. Similar view has also been taken in the case of Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases. This Court in an unreported judgment dated 18.11.2008, titled as Haq Nawaz v. Muhammad Kabir (C.A. No. 1259 of 2008) has also upheld the order of dismissal of the suit, wherein the petitioner/plaintiff had though mentioned the date and place in the plaint but omitted to state the time of making the Talb-i-Muwathibat.
(R.A.) Leave refused.
PLJ 2009 SC 953
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
JEHANGIR--Petitioner
versus
AMINULLAH & others--Respondents
Crl. Petition No. 18-Q of 2006, decided on 18.5.2009.
(On appeal from the judgment dated 4.5.2006 passed by the High Court of Balochistan Quetta in Crl. Acq. No. 380/2005).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 200--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Private complaint--Instead of registering case the police arrested him in connection with crime--Acquittal of accused--Assailed--Appreciated the entire evidence in accordance with law and settled norms of justice--Determination of--High Court upheld by assigning cogent and concrete reasoning--Conduct of accused was indicative of the fact that complaint lodged by him was not only an after thought but appears to be a counter blast--FIR was got lodged against the petitioner before the petitioner could file the complaint--Question of conviction does not arise--Statement had rightly been discarded by Courts below--Validity--Statements of prosecution witnesses were recorded after two months and such an inordinate delay would speak a volume about deliberation, concoction and false involvement of the respondents--Held: Impugned judgment did not suffer from any error of law and conclusion drawn by Courts below is strictly in accordance with law, settled norms of justice and well entrenched principles qua appreciation of evidence and accordingly no interference was called for--Petition being devoid of merit was dismissed. [Pp. 956 & 957] A & D
Constitution of Pakistan, 1973--
----Art. 185(3)--Criminal Procedure Code, (V of 1898)--S. 200--Leave to appeal--Private complaint--Limitations on power of Appellate Court to convert acquittal into a conviction--Validity--Appellate Court would not interfere with acquittal merely because on reappraisal of evidence--Held: No reasonable person would conceivably reach the same and was impossible then Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion--Further held: Appeal against acquittal Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused--Such approach is slightly different from that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to accused--Principle--Leave refused. [Pp. 956 & 957] B & C
PLD 1997 SC 569, PLD 1995 SC 1, PLD 1985 SC 11, PLD 1951 FC 107, PLD 1964 SC 426, PLD 1997 SC 408, PLD 1976 SC 452, PLD 1977 SC 413, 2001 SCMR 1474 & 2002 SCMR 261, fol.
Mr. Kamran Murtaza, ASC & Mr. S.A.M. Quadri, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 18.5.2009.
Order
Javed Iqbal, J.--This petition for leave to appeal preferred under Article 185(3) of the Constitution of Islamic Republic of Pakistan is directed against judgment dated 4.5.2006 passed by learned Division Bench of High Court of Balochistan, Quetta in Crl. Acq. Appeal No.380/2005 whereby respondents were acquitted.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "a private compliant under Section 200 Cr.P.C. was presented by the appellant before the Judicial Magistrate, Chaman alleging therein that on 10.11.2003 he on his way at Mehrban Road, Chaman when accused persons namely Amin Ullah, Hafiz Allah Muhammad and Haji Abdul Ahad while sitting in a car driven by Haji Abdul Ahad hit him due to which he fell down. He got up and enquired from the accused persons as to why he was hit by them whereupon accused persons armed with knives launched attack upon him. Resultantly he received injuries. He went to police Station, Chaman for lodging report but instead of registering case the police arrested him in connection with crime No.55 of 2003 lodged by the respondents".
After completion of necessary formalities challan was submitted in the Court of learned Sessions Judge, Pishin which culminated into the acquittal of respondents. Being aggrieved acquittal appeal was preferred by the petitioner in the High Court which has been dismissed vide judgment impugned, hence this petition.
Mr. Kamran Murtaza, learned ASC entered appearance on behalf of petitioner and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is also pointed out that conclusion as arrived at by the learned trial Court and upheld by the learned High Court is not inconsonance with the evidence led by the petitioner in support of accusation. It is urged with vehemence that the eye account has been discarded without assigning any reason and on this score alone the judgment impugned is liable to be set aside.
We have carefully examined the contentions as mentioned hereinabove in the light of relevant provisions of law and record of the case. We have minutely perused the evidence by keeping the defence version in juxtaposition and also perused the judgment dated 24.11.2005 passed by learned Sessions Judge, Pishin as well as the judgment impugned. After having gone through the entire record we are of the considered view that the learned trial court has appreciated the entire evidence in accordance with law and settled norms of justice, determination whereof has been upheld by the learned High Court by assigning cogent and concrete reasoning. It is worth mentioning that the conduct of the petitioner is indicative of the fact that the complaint lodged by him is not only an after thought but appears to be a counter blast against the respondents as Haji Abdul Ahad (Respondent No. 2) was injured by him. In this regard FIR was got lodged against the petitioner before the petitioner could file the complaint. The petitioner himself has admitted that he was arrested by police and also produced before the Judicial Magistrate. The learned ASC has time and again referred the statement of Noor Muhammad (CW-2) with the submission that it has been ignored by the courts below without any justification as Noor Muhammad (CW-2) has fully supported the complainant's version and stood firm to the test of cross-examination. The above contention of Mr. Kamran Murtaza, learned ASC on behalf of petitioner seems to be devoid of merit for the simple reason that the statement of Noor Muhammad (CW-2) does not appeal to logic and reason and besides that it is vague and sketchy on the basis whereof the question of conviction does not arise. By no stretch of imagination it can be imagined that he could have gone to his shop after seeing the incident and infliction of knife blows upon the petitioner who is his brother. In our considered view his statement has rightly been discarded by the courts below. It is worth mentioning that the statements of prosecution witnesses were recorded after two months and such an inordinate delay would speak a volume about deliberation, concoction and false involvement of the respondents. In such back drop how conviction could have been awarded to the respondents. It is to be noted that an order of acquittal only warrants interference when the conclusion arrived at is absurd, baseless, perverse, arbitrary or capricious.
It is well settled by now that "there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. The will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence: (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah (PLD 1997 SC 569), State v. Farman Hussain (PLD 1995 SC 1). Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Ahmad v. Crown (PLD 1951 FC 107), Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan (PLD 1964 SC 426), State v. Bashir (PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), Shahzado v. State (PLD 1977 SC 413) and Farmanullah v. Qudeem Khan (2001 SCMR 1474), Khadim Hussain v. Manzoor Hussain Shah (2002 SCMR 261)".
In the light of what has been discussed hereinabove the judgment impugned did not suffer from any error of law and the conclusion drawn by the courts below is strictly in accordance with law, settled norms of justice and well entrenched principles qua appreciation of evidence and accordingly no interference is called for. The petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 957
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
NASIR KHAN--Petitioner
versus
WASEEL GUL and another--Respondents
Crl. Petition No. 2-P of 2009, decided 24.4.2009.
(On appeal from the judgment dated 5.12.2008 of the Peshawar High Court, Peshawar passed in B.A. 1283/2008.
Cancellation of Bail--
----Charged in heinous offence--Bail was granted by High Court--Challenge to--Validity--Mere heinousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit for grant of bail--Held: Bail was granted to accused for cogent and valid reasons which are not open to legitimate exception--Petition was dismissed. [P. 959] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860)--Ss. 365-A & 34--Constitution of Pakistan, 1973--Art. 185(3)--Cancellation of bail--Prima facie--Co-accused, assigned similar role qua accused--Consideration for grant of bail--If the Court on basis of tentative assessment of evidence, forms an opinion that prima facie there were reasonable grounds to believe that accused had not committed an offence with which he was being charged, he would be allowed bail by virtue of S. 497(2), Cr.P.C. as of right--Held: Co-accused, assigned similar role qua the accused have already been admitted to bail by trial Court and no bail cancellation application was moved against them--Leave to appeal was dismissed. [P. 959] B & C
2006 SCMR 66.
Mr. Hussain Ali, ASC and Mir Adam Khan, AOR for Petitioner.
Mr. Tasleem Hussain, AOR for Respondent No. 1.
Mr. Ishtiaq Ibrahim, AAG, NWFP for State.
Date of hearing: 24.4.2009.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, Nasir Khan, petitioner, seeks leave to appeal from a judgment of the Peshawar High Court, Peshawar dated 12.5.2008, granting bail to Waseel Gul, Respondent No. 1, in case FIR No. 428 dated 8.8.2008 registered under Section 365-A/34 PPC at police station Daudzai, Peshawar.
Facts of the case have been incorporated in detail, in the impugned judgment as well as in the memo of petition and need not be reiterated. Suffice is to state that respondent and two others were charged for having, on 1.8.2008 at unknown time, kidnapped Amanullah (14/15) son of the petitioner for ransom. After arrest, respondent applied for grant of bail before learned Judge, Anti Terrorism Court, Peshawar and on its rejection vide order dated 23.9.2008, filed bail application before learned High Court, which has been allowed through the judgment impugned herein.
We have heard M/s. Hussain Ali, Advocate for the petitioner, Tasleem Hussain, Advocate for Respondent No. 1, and Ishtiaq Ibrahim, Additional Advocate-General, NWFP for State in the light of the material on record.
It is contended by learned counsel for the petitioner that sufficient material was available on record to prove that respondent had a hand in the affair; that respondent received rupees two lacs as Tawan' and that factum of delay in reporting the matter to the police which in variably occurs in such like cases, should not have weighed with learned High Court while granting of bail to the respondent.
Learned Additional Advocate-General, representing the State,, supported the contentions raised by learned counsel for the petitioner and opposed the impugned judgment by tooth and nail.
Learned counsel appearing for Respondent No. 1, on the other hand, refuted the above contentions of learned counsel for the petitioner and supported the impugned judgment on all counts.
No doubt, it is true that respondent is one of the accused persons charged in a heinous offence but it is equally true that mere heinousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit far grant of bail. In the instant case, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception. In Suba Khan vs. Muhammad Ajmal and 2 others (2006 SCMR 66) it was observed by this Court that "this Court in a number of cases interpreted the provisions of Section 497(2) Cr.P.C. and held that main consideration for grant of bail under sub-section (2) of Section 497 Cr.P.C. is that if the Court on the basis of tentative assessment of evidence, forms an opinion that prima facie there were reasonable grounds to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of sub-section (2) of Section 497, Cr.P.C. as of right."
It may not be out of place to mention here that two co-accused, assigned similar role qua the respondent have already been admitted to bail by learned trial Court and no bail cancellation application has been moved against them.
In view of the above, finding no merit in this petition, we dismiss the same and decline to grant leave.
(R.A.) Leave refused.
PLJ 2009 SC 959
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
MIR KOHI KHAN--Petitioner
versus
NOOR MUHAMMAD & others--Respondents
Civil Appeal No. 50-Q of 2009 and Civil Petition No. 82-Q of 2005, decided on 22.5.2009.
(On appeal from the judgment dated 24.6.2005 passed by the High Court of Balochistan, Quetta in Civil R. No. 285/2002).
Leave to Appeal--
----Question which needs determination--Whether petition preferred under Art. 185(3) of Constitution can be converted into appeal under Art. 185(2) of Constitution and delay can be condoned merely on account of conversion of petition into an appeal--Held: Leave to appeal was granted to examine the formulated legal propositions.
[P. 960] A & B
2005 SCMR 1371, 1990 SCMR 1621, 1992 SCMR 1202, 1999 SCMR 2702, 1991 SCMR 2164, 1998 SCMR 2306, PLD 1965 SC 310, PLD 1963 SC 598, 1973 SCMR 367, 1992 SCMR 1181, 2006 SCMR 504 & 2008 SCMR 1993.
Mr. Amir-ul-Mulk Mengal, ASC and Mr. S.A.M. Quadri, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 22.5.2009.
Order
Javed Iqbal, J.--Heard learned ASC for the petitioner at length and perused the record vigilantly. The pivotal question which needs determination would be as to whether the petition preferred under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) can be converted into appeal under Article 185(2) (d) of the Constitution and delay can be condoned merely on account of conversion of petition into an appeal or otherwise? It may not be out of place to mention here that the views on the above formulated points are divergent as expressed in different cases which are mentioned herein below:--
Zafar Iqbal Hameed Khan v. Ashiq Hussain (2005 SCMR 1371), Haji Muhammad Nawaz v. Hussain Shah (1990 SCMR 1621), Chairman NWFP v. Khurshid Anwar Khan (1992 SCMR 1202), Inayat Ullah Khan v. Obaidullah Khan (1999 SCMR 2702). Sardar Abdur Rauf Khan v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad (1991 SCMR 2164), Province of Punjab v. Muhammad Akram (1998 SCMR 2306). Pakistan v. Waliullah Sufyani (PLD 1965 SC 310), Paresh Chandra Biswash v. Tapen Kanti Choudhry (PLD 1963 SC 598), T.N. Anaami v. Rcvoluei (AIR 1972 SC 42), Ramanbhai Ashabhai Patel v. Debhi Ajitkumar (AIR 1965 SC 669), Province of West Pakistan v. Associated Hotels of India Limited (1973 SCMR 367), Abdul Rauf Khan v. Land Acquisition Collector (1992 SCMR 1181) Taza Gut v. Fazal Subhan (2006 SCMR 504), Muhammad Nawaz v. Sardara (2008 SCMR 1993).
(R.A.) Leave granted.
PLJ 2009 SC 960
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Mr. Justice Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ.
SINDH HIGH COURT BAR ASSOCIATION--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law & Justice, Islamabad and others--Respondents
Constitution Petition No. 9 & 8 of 2009, decided on 20, 24, 27 to 31.7.2009.
Constitution of Pakistan, 1973--
----Art. 184--Constitutional petitions--Common questions of facts and law--Sought a declaration that all those persons in Supreme Court and High Courts whether they have taken oath under PCO or Constitution, who have been appointed without consultation of Chief Justice as no judge and not entitled to function as such--Independent and strong judiciary is a back bone of viable democratic system--On 3rd November, 2007, General Pervez Musharraf, in the garb of declaration of emergency, put Constitution in abeyance, issued Provisional Constitution Order No. 1 of 2007 followed by Oath of Office (Judges) Order, 2007, making as Judges of judiciary including Chief Justice of Pakistan and Chief Justices of Provinces--Independent and strong judiciary acts as an arbiter striking balance among various segments of democratic system--It helps State organs, such, as, legislature executive and the judiciary itself to function smoothly maintaining balance inter se--Judiciary shall be fully recurred, but, unfortunately to its great dismay, organ of state has, all along been under the wroth of adventures imposing their dictatorial terms for their ulterior designs. [P. 975] A
Independence of Judiciary--
----De jure Chief Justice--In order to save judiciary from being destroyed, for the first time in history of Pakistan a seven members bench of Supreme Court head by de jure Chief Justice of Pakistan, passed an order, inter alia restraining the President and Prime Minister from undertaking any such action, which was contrary to Independence of Judiciary. [P. 976] B
Salus Populi Supreme Lex--
----Principle--Seven members bench head by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tika Iqbal Muhammad Khan and Watan Party and decided the same on principle of Salus Papuli Supreme Lex and granted that relief which was even not prayed by the petitioner--Held: Judgment was ex-facie, per incuriam, corum-non-judice illegal and unlawful. [P. 977] C
Judgments Passed on Strength--
----Declared to be void ab initio--Judgment purported to have been delivered in Constitutional petitions titled as Tika Iqbal Muhammad Khan v. General Pervez Masharraf and others (PLD 2008 SC 25 & PLD 2008 SC 178 and judgment, purported to have been passed titled as Tika Iqbal Muhammad Khan v. General Pervez Musharraf and others and any other judgments passed on strength of the two judgments are hereby declared to be void ab initio. [P. 980] D
Proclamation of Emergency on November 3, 2007--
----Provisional Constitution orders issued by General Pervez Musharraf as Chief of Army Staff, declared to be un-constitutional, ultra vires and consequently being illegal and of no legal--Validity--Proclamation of Emergency issued by General Pervez Musharraf as Chief of Army Staff on November 3, 2007 the Provisional Constitution Order No. 1 of 2007 issued by him on the same date, the Oath of Office (Judges) Order of 2007 but in exercise of powers under Proclamation of Emergency and Provisional Constitution Order No. 1 of 2007 others orders issued by him till 14th December, 2007 being President Order are hereby declared to be un-constitutional, ultra vires of the Constitution and consequently being illegal and of no legal. [P. 980] E
Mr. Hamid Khan, Sr. ASC, Mr. Rashid A. Razvi, ASC, Mr. M. S. Khattak, AOR Assisted by, M/s Waqar Rana, Waheed Khalid Khan and Haq Nawaz Talpur, Advocates for Petitioner (Const. P. 09/2009).
Mr. Muhammad Akram Sheikh, Sr. ASC Assisted by Barristers Ms Natalya Kamal & Syed Shehryar, Advocates for Petitioner (Const. P. 08/2009).
Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan, Agha Tariq Mehmood Khan, DAG, Mr. Shah Khawar, DAG and Ch. Akhtar Ali, AOR for Respondent No. 1.
Mr. Muhammad Yousaf Leghari, A.G. Sindh and Raja Abdul Ghafoor, AOR for Respondents Nos. 3 & 4.
Nemo for Respondents Nos. 3 & 4.
Not represented for Respondent No. 5.
Dates of hearing: 20 to 24 and 27 to 31.7.2009.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--The above Constitutional Petitions bearing Nos. 9 of 2009 and 8 of 2009 involve common questions of facts and law and are disposed of by this single judgment.
"The removal of Judges of Supreme Court and High Courts on 3.11.2007 was not only violative of Article 209 of the Constitution, 1973 but was against the rule laid down by the bench of twelve (12) Judges of Supreme Court in the case of Syed Zafar Ali Shah (PLD 2000 SC 869). The subsequent validation in the case of Tika Iqbal Khan (PLD 2008 SC 178) a smaller bench of the Supreme Court is perincuriam and in any event, is not by a Supreme Court that is de jure. It is respectfully submitted, that Justice Abdul Hameed Dogar could not be treated as Constitutional head of the Supreme Court even after the decision in the case of Tika Iqbal Khan (supra) as he himself was the real beneficiary of the said Judgement and contrary to one of the cardinal principles of Natural justice, "no person should be judge in his own cause" had headed the Bench. Hence, in view of the facts and reasons stated above Justice Iftikhar Muhammad Chaudhry is still the Chief Justice of Pakistan as per Constitution and all appointments and reappointments made in the Supreme Court and High Courts without consultation of de jure Chief justice of Pakistan are unlawful, illegal, ultra-vires of the Constitution as well as malafide".
(i) that the purported acts done by General Pervez Musharraf, (Rtd) between 3.11.2007 to 16.12.2007 aimed at to suspend and amend the Constitution through several instruments are unconstitutional, invalid and without any legal consequence;
(ii) that on account of his acts taken during 3.11.2007 to 15.12.2007 relating to superior judiciary, General Pervez Musharraf (Rtd) became a usurper;
(iii) all the appointments of Judges of superior judiciary on or after 3.11.2007 up till 22.3.2009 which were without consultation of de-jure Chief Justice of Pakistan are/were unconstitutional, invalid and without any legal consequence;
(iv) that the two (so called) Judgments dated 23.11.2007 and 15.2.2008 on Constitutional Petitions No. 87 and 88 of 2007 filed by Tika Iqbal Muhammad and WATAN Party and the Review Petition No.7 of 2008 filed by the former are/were nullity in law, being decisions per incuriam, corum-non-judice, without any legal basis and based on mala-fide proceedings rendered by biased persons of Tribunal (then calling themselves as Judges of this Court) fraudulently, collusively and lacking in bona-fides;
"All the persons who were not judges on 3rd November 2007 but who were brought into Supreme Court and High Courts as `judges' despite the fact that the Honourable Chief Justice of Pakistan was never consulted before their appointment which meant that they were never appointed under the Constitution."
AND
"On the night of 22 March 2009, issuance of cause lists comprising persons who have not been appointed in strict adherence to Article 177 and who are therefore complete strangers to the Supreme court, is a serious matter and it is incumbent on the Honourable Chief Justice, before proceeding with any other judicial work, to forthwith stop all these persons from hearing any cases till such time that he, along with other validly appointed judges, are able to look into and judicially determine validity of their appointments as judges."
The petitioner has, among others, sought a declaration that all those persons, both in Supreme Court and High Courts, regardless of whether they have taken oath under PCO or the Constitution, who have been appointed without `consultation' of Honourable Chief Justice of Pakistan as not judges and therefore, not entitled to function as such.
On 22.7.2009 a notice was issued to General Pervez Musharraf (Rtd) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this Court. The Process Serving Officer reported on the same day that he had gone to the residential place viz: C-1, B Park Road, Chak Shahzad, Islamabad where a person identifying himself as Muhammad Hussain son of Amir and that on formers offer the latter refused to receive the notice. The factum of issuance of the afore-referred notice was widely televised through National and International T.V. channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance.
We have heard learned counsel for petitioners and learned Attorney General for Pakistan.
Before dilating upon the pleas taken in the arguments by learned counsel for the parties, in our view, some of the facts/events which took place before 3rd November, 2007 touching the very basis of the issues involved in the matter are brought on record.
In our country, during sixty years of its independence after partition, to the misfortune of people, several times, the Constitutions framed by Legislative Bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end. For the first time, Constitution of 1956 was abrogated on 7th October, 1958 and Martial Law was imposed by the then President, Sikandar Mirza who dismissed the Central and Provincial Governments; dissolved the Parliament and Provincial Assemblies and abolished all Political Parties and appointed General Muhammad Ayub Khan, the then Commander in Chief as Martial Law Administrator. Sikandar Mirza was soon, within few days, replaced by the latter. On 25th March, 1969, again the then head of Army, General Agha Muhammad Yahya Khan, abrogated the Constitution of 1962 and by proclamation (PLD 1969 Central Statutes 42) Promulgated Martial Law followed by Provisional Constitution Order (Gazette of Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law was imposed throughout the country by the then head of Army Chief viz. former General Muhammad Zia-ul-Haq, who, vide Proclamation of Martial Law (PLD 1969 Federal Statutes 326) dissolved the National Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws (Continuance in Force) Order, 1977. When the Constitution was revived, it was undeniably, in a mutilated form by the notorious Eighth Amendment.
Later, there was another onslaught on the ongoing democratic system of governance. On 12th October, 1999, the then Chief of Army Staff, General Pervez Musharraf, now retired, once more, put the Constitution in abeyance and the whole of Pakistan was brought under the control of Armed Forces. The National Assembly, the Senate and the Provincial Assemblies were suspended, so also, the Chairman and Deputy Chairman of Senate, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies were suspended and it was declared that the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors, the Provincial Chief Ministers and the Advisor to the Chief Ministers would ceased to hold offices, followed by issuance of Provisional Constitution Order and the Oath of Office (Judges) Order 2000. General Pervez Musharraf (Rtd), self styled himself as Chief Executive and started ruling the country under the new dispensation. Later, he, unceremoniously, occupied the office of President and in the coming years revived the Constitution with Seventeenth Amendment.
Again, on 3rd November, 2007 the General Pervez Musharraf, (Rtd), in his capacity as Chief of Army Staff, in the garb of declaration of emergency, put the Constitution in abeyance, issued Provisional Constitution Order No.1 of 2007 followed by the Oath of Office (Judges) Order, 2007, making as many as sixty one (61) Judges of superior judiciary including Chief Justice of Pakistan and Chief Justices of three Provinces dysfunctional for many of them either did not agree to take or were not given the oath. Of them were; from Supreme Court 13 out of 18 (17 permanent and one ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the Lahore High Court, 24 out of 28 Judges including Chief Justice of High Court of Sindh, 6 out of 13 Judges including Chief Justice of Peshawar High Court. It is quite saddening that all the five Judges including the Chief Justice of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.
An independent and strong judiciary is a back bone of viable democratic system all over the world. The time tested experience has proved that independent and strong judiciary provides strength to the institutions running government particularly, those who roll on the wheels of democracy. Equally the independent and strong judiciary acts as an arbiter striking balance among various segments of Democratic system. It helps State organs, such, as, Legislature, Executive and the judiciary itself to function smoothly maintaining balance inter se. The constitution of Pakistan, of 1973, too, provides the judiciary guarantees enshrined in it and states that the judiciary shall be fully secured, but, unfortunately, to its great dismay, this organ of State has, all along been under the wrath of adventurers imposing their dictatorial terms obviously for their ulterior designs. The history of this country witnessed that in a set up of one government tenure of a Chief Justice of Pakistan was curtailed with ulterior motives and was restored to its original position when the designs were stood achieved. Likewise, through various instruments, the favourites and pliant members of superior judiciary were out rightly given underserved benefits while the others were shown doors. This happened during the era of the then Martial Law Administrator General Zia-ul-Haq and following the same foot steps, General Pervez Musharraf (Rtd) did the same in the year 2000. Many judges of superior judiciary who declined to toe his line of action were unceremoniously sacked.
General Pervez Musharraf (Rtd) through his 1999/2000 action, declared that the national Assembly, the provincial Assemblies, Senate, Chairman and Deputy Chairman of Senate, Speaker of National Assembly and the Provincial Assemblies were suspended and the Prime Minister, Federal Ministers, Parliamentary Secretaries, the Provincial Governors and the provincial Chief Ministers and the Advisors to the Chief Ministers, to have ceased to hold offices. However, his November, 2007 action was a singular in nature, in that, the onslaught was on judiciary alone. All other institutions were in tact. The independence of judiciary was given a serious blow. In order to save the judiciary from being destroyed, for the first time in the history of this Country, a seven member bench of this Court headed by the de jure Chief Justice of Pakistan, passed an order, inter-alia, restraining the President and Prime Minister of Pakistan from undertaking any such action, which was contrary to the Independence of Judiciary. So also the Judges of this Court and that of the High Courts including Chief Justice (s) were required not to take oath under the Provincial Constitution Order or any other extra Constitutional step and on the same day viz: 3.11.2007, the order was served on the members of superior judiciary through the respective Registrars of the Courts by way of Fax. It was also sent to all the relevant Executive functionaries.
The action of General Pervez Musharraf (Rtd) was, undeniably, taken to prevent the 11 member Bench of this Court which was hearing the Petition No. 73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad and others in which the qualification of the General was in question, and perhaps, he was not expecting a favourable decision.
The reasons shall, in that behalf be found in the detailed judgement. Be that as it may, Justice Abdul Hameed Dogar, as then he was called, alongwith four other Judges of this Court took oath in pursuance of unconstitutional Provisional Constitution Order and the Oath of Office (Judges) Order, 2007 and by that he also violated the order of seven member Bench of this Court which was headed by de jure Chief Justice of Pakistan. Mr. Justice Abdul Hameed Dogar took the oath of Chief Justice of Pakistan, although, the office was not vacant. Some of High Courts Judges too took oath likewise violating the constitution and the order of seven member Bench, legally and lawfully passed. Besides, many other Judges in this Court and in the High Courts were appointed and they took oath in violation of constitutional provisions and the order of seven member Bench of this Court.
15. Subsequently, in order to dilute the effect of afore-referred 7 member Bench order, Mr. Justice Abdul Hameed Dogar, the CJP, as then was called, constituted a Bench of 8 Judges including those appointed afresh in pursuance of Provisional Constitution Order and took up CMA bearing No.2874 of 2007 in Constitution Petition No.73 of 2007 and by their order dated 6.11.2007 illegally and unlawfully, without the mandate of the Constitution, declared the order dated 3.11.2007 to be illegal and without jurisdiction. Later, a 10 member Bench was also constituted which was headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called. This Bench again illegally and unlawfully took up and dismissed the petition No.73 and Original Criminal Petition No.51 of 2007 filed by Justice (Rtd) Wajihuddin Ahmad calling in question the eligibility of General Pervez Musharraf to contest election to the office of President although, it already stood dismissed for want of instruction. Further details in this behalf shall be given in the detailed judgment.
Also subsequently, an other 7 member bench headed by Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan, as then he was called, took up hearing the case of Tikka Iqbal Muhammad Khan and WATAN Party and decided the same on the principle of `Salus Populi Supreme Lex' and granted that relief which was even not prayed by the petitioner. This judgement is/was, ex-facie, per incuriam, corum-nonjudice illegal and unlawful. Later, a time barred Review Petition was filed by Tikka Iqbal Khan which was heard by 13 member Bench and was dismissed, palpably to give impression that a larger Bench decided the matter to dilute the effect of a previous judgment handed down in case of Syed Zafar Ali Shah (PLD 2000 SC 869).
It may be noted that the chosen representative of the time, too, did not extend validation to the unconstitutional acts taken upto 3rd November, 2007 as is universally known. It is, however, quite heartening that, for the first time, in the history of our beloved country, the chosen representative of people, who took their offices as a result of election taking place on 18th February, 2008 have, commendably, stayed their hands off and have not sanctified the unconstitutional acts, such as, the Declaration of Emergency, the Provisional Constitution Order No.1, the Oath of Office (Judges), Order, 2007, the Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007), the Constitution (Second Amendment) Order of 2007 (President's Order No.6 of 2007) and many other instruments made and declared by General Pervez Musharraf (Rtd). In this, their restraint not extending validity to all these unconstitutional and illegal instruments and other steps taken by retired General are laudable. Evidently, this was done by the present representatives of people believing firmly that the prosperity of the country lies in the strong and independent democratic system which can alone flourish and survive with democratic steps to be taken in the better interest of people always apt and keen to choose them in such a viable system of governance. We are sanguine that the current democratic dispensation comprising of the President, the Prime Minister, Ministers and the Parliament shall continue to uphold the Constitution, its institutions and sacred values.
From above, the conclusions drawn are that:
(i) The General Pervez Musharraf (Rtd) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by selfacquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences;
(ii) Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3.11.2007 passed by a 7 member Bench headed by de-jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant;
(iii) Also, the Judges who were either retired or were not holding any judicial office, beside those in High Courts took fresh oath on their appointment on and after 3.11.2007 till 15.12.2007 in Supreme Court where the full strength of Judges alongwith an Ad-hoc Judge appointed under the Constitution were already working and thus there was no vacancy. Similarly, many Judges took oath in Provincial High Courts. All of them did so in violation of order dated 3.11.2007 passed by 7 member Bench headed by de-jure Chief Justice of Pakistan. Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd);
(iv) The Petition No.73 of 2007 filed by Mr. Justice (Rtd) Wajihuddin Ahmad challenging the eligibility of General Pervez Musharraf (Rtd) to contest for the office of President in uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise;
(v) The decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd) were per incuriam, corumnon-judice, without any legal basis hence, of no legal consequences;
(vi) The amendments in the Supreme Court (Number of Judges) Act, (XXXIII, 1997) 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges is unconstitutional because the strengths of Judges of Supreme Court is be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defines the acts of Parliaments;
(vii) Surprisingly, in the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by the General Pervez Musharraf (Rtd) himself through the PCO and brought a host of unconstitutional amendments for his own benefits; and
(viii) The present representative of people firmly believe in strong and independent judiciary and the democratic system which is evident that the deposed Judges of Supreme Court, High Courts and the de-jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implied that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd) taken from 3.11.2007 to 15.12.2007 during which the Constitution remained suspended.
19. Considering the above, in the light of submissions of learned counsel for the parties and on examination of the material brought before us and for the detailed reasons to be recorded, we dispose the above petitions as follows.
The judgment purported to have been delivered in Constitutional Petitions bearing No: 87 and 88 of 2007 in the case titled as Tika Iqbal Muhammad Khan vs. General Pervez Musharraf and others (PLD 2008 SC 25 and PLD 2008 SC 178) and the judgment dated 15.2.2008, purported to have been passed in C.R.P. No. 7 of 2008 titled as Tika Iqbal Muhammad Khan vs. General Pervez Musharraf and others and any other judgment/judgments passed on the strength of the said two judgments are hereby declared to be void ab initio.
The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; The Provisional Constitution (Amendment) Order, 2007 issued by him likewise on 15.11.2007; the Constitution (Amendment) Order, 2007 being President's Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being Presidents Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.9 of 2007 dated 14th December, 2007 are hereby declared to be unconstitutional, ultra-vires of the Constitution and consequently being illegal and of no legal e.
As a consequence thereof:-
(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore mentioned alleged judgments or any other such judgment and on account of the instruments mentioned in para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;
(ii) it is declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it is further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional; void ab initio and of no legal effect;
Provided that subject to whatever is contained hereinafter, the said unconstitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;
(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
Provided that the Judges so unconstitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and likewise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judge subject to limitation of superannuation;
(iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3.11.2007 but who made oath or took oath of their respective offices in dis-obedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3.11.2007 in C.M.A.No.2869 of 2007 in Constitution Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly;
Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3.11.2007 to 22.3.2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan;
(v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, are protected on the principle laid down in Malik Asad Ali's Case (PLD 1998 SC 161);
(vi) since the Constitution (Amendment) Order, 2007 being the President's Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, have been declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of this order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of afore-mentioned President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High court, subject again to their age of superannuation:
we would like to mention here that establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but it is unfortunate that such a step was taken in an un-constitutional and a highly objectionable manner. We may, therefore, add that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law.
(vii) the Ordinances promulgated by the President or a Governor of a Province before 3.11.2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3.11.2007 and 15.12.2008 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures alongwith the said Provisional Constitution Order had been validated by the aforementioned judgment delivered in Tika Iqbal Muhamad Khan's Case, stand shorn of their purported permanence on account of our afore-mentioned declarations. Since on account of the said judgment in Tika Iqbal Muhammad Khan's Case purporting to be a judgment of this Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it is today that this Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;
(viii) since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It is resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen.
(ix) in the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;
(x) in view of our findings above regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26.8.2008 and the notification dated 15.9.2008 extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Mr. Justice Zafar Kalwar Khan Sherwani as Additional Judges of the High Court of Sindh are declared to be un-constitutional and of no legal effect.
(xi) that the court acknowledges and respects the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of tricotomy of powers enshrined in the Constitution, which is the essence of the rule of law. Any declaration made in this judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions. These acts are fully protected in terms of the age old of principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139.
(xii) Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the Constitution is the sacred function of the Supreme Court. The Constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ................. wherein the independence of judiciary shall be fully secured." While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths.
(R.A.) Order accordingly.
PLJ 2009 SC 961
[Appellate Jurisdiction]
Present: M. Javed Buttar & Sayed Zahid Hussain, JJ.
MUHAMMAD AKBAR--Petitioner
versus
MUHAMMAD ANWAR and others--Respondents
Civil Petition No. 1009 of 2004, decided on 15.6.2009.
(On appeal from the judgment dated 8.3.2004 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1797 of 2001).
West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962)--
----S. 2-A--Illegally ordered the retention of 1/4th share out of property--Order was clearly beyond the decree and to extent the mutation was without jurisdiction--Land was transferred in favor of his wife in lieu of dower--Execution mutation was reviewed--Validity--Decree could not be executed because of S. 2-A of West Pakistan Muslim Personal Law (Shariat) Act, and Addl. Commissioner as well as Board of Revenue incorrectly, wrongly and illegally maintained the order passed by collector. [P. 963] A
Past and Closed Transaction--
----Revenue authorities could not have re-open the past and closed transaction--Application for review--Validity--Any correction in allotted shares by acceptance of review petition did not re-open the past and closed transaction on the ground of non-delivery of actual physical possession. [P. 964] B
West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962)--
----S. 2-A--Dakhl Malkana--Delivery of actual physical possession--Past and closed transaction--Joint possession--Validity--Only joint possession could be delivered as the property was not susceptible of physical possession--Decree in favour of respondents stood executed through sanction of mutation, delivery of possession by way of Dakhl Malkana before enforcement of S. 2-A of Act, 1962--Held: Delivery of actual physical possession was not necessary to make decree in favour of respondents as past and closed transaction in terms of proviso, to S. 2-A of Muslim Personal Law (Shariat) Act. [P. 964] C
Sh. Iftikhar Ahmed, ASC for Petitioner.
Responents No. 1(ii)(iii) & 5 in person.
Date of hearing: 15.6.2009.
Order
M. Javed Buttar, J.--Relevant facts are that one Ali Bahadur Khan was the last male holder of land measuring 298 kanals 12 marlas situated in village Peero Shahi, Tehsil Fateh Jang, District Attock. It was an ancestral property and he was governed by custom. He was issueless. He transferred the said land in favour of his wife Mst. Sardar Khanum in lieu of dower through Mutation No. 387 dated 24.02.1962. Thereafter, she transferred a part of land measuring 20 kanals and 13 marlas in favour of Noora son of Oulia vide Mutation No. 822 sanctioned on 19.12.1963 and sold the remaining land i.e. 277 kanals 19 marlas in favour of the petitioner Muhammad Akbar Khan through Mutation No. 488 attested on 17.11.1967. The respondents as reversioners of the aforesaid Ali Bahadur Khan challenged the above mentioned alienation in favour of Mst. Sardar Khanum and further transfers by Mst. Sardar Khanum in favour of Noora and the petitioner through a regular suit claiming that the power of alienation of Ali Bahadur Khan was restricted and he could not have made gift of the whole of the ancestral land devolved upon him and that further transfers by Mst. Sardar Khanum were also of no consequence. Mst. Sardar Khanum had also died before filing of the suit. The learned trial Court vide its judgment and decree dated 28.03.1970 decreed the respondent's suit. In appeal the Hon'ble District Judge, Cambellpur, Attock vide his judgment and decree dated 15.09.1970 modified the decree of the trial Court and granted a decree in favour of respondents for possession of 277 kanals and 19 marlas. It was held that the sale in favour of Noora through Mutation No. 822 dated 19.12.1963 to the extent of 20 kanals and 13 marlas was valid. Lahore High Court, Rawalpindi Bench vide its judgment and decree dated 19.04.1981 dismissed the second appeal (RSA 85 of 1971). This Court vide its order dated 14.11.1981 dismissed the Civil petition for leave to appeal.
Thus the judgment and decree passed by the trial Court as modified by the First Appellate Court was upheld/confirmed up to this Court.
Later on, when it was realized that this was not the intention of the decree finally passed in favour of the respondents, the execution mutation was reviewed on 28.10.1984 and whole of the land purchased by the petitioner was mutated in favour of the respondents. It was challenged by the petitioner through an appeal and the Collector Attock vide his order dated 11.05.1986 set aside the mutation proceedings and reverted the property back to the petitioner by holding that after insertion of Section 2-A in the West Pakistan Muslim Personal Law (Shariat) Act, 1962, the decree could not have been executed. The Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi vide his judgment dated 28.08.1986 dismissed the respondent's appeal. The Member, Board of Revenue, Punjab, Lahore vide his judgment dated 23.10.1994 dismissed the Revision Petition (R.O.R. No. 2557 of 1986) filed by the respondents. Their Review Petition No. 221 of 1996 was also dismissed vide judgment dated 28.02.2001 passed by Member, Board of Revenue.
Consequently, the respondents assailed the orders/judgments passed by Revenue Hierarchy through Writ Petition No. 1797 of 2001 in the High Court which was allowed vide the impugned judgment dated 08.03.2004 passed by an Hon'ble Judge in Chambers of Lahore High Court, Rawalpindi Bench. The judgments of the Revenue Hierarchy were set aside as being without jurisdiction and Mutation No. 47 as attested on 05.01.1982 was also set aside.
We have heard learned counsel for the petitioner at length and have also seen the available record with his able assistance. The decree passed in favour of respondents as modified by the appellate Court transferring whole of the land sold to the petitioner, in favour of respondents had attained finality as it was affirmed by the High Court and maintained by this Court. Therefore, the Revenue Officer while attesting execution Mutation No. 47 on 05.01.1982 illegally ordered the retention of 1/4th share by the petitioner out of the property sold to him. This order was clearly beyond the decree and to said extent the mutation was without jurisdiction. Hence it was correctly reviewed on 28.10.1984 and the whole of the land purchased by the petitioner was mutated in favour of respondents. In the appeal filed by the petitioner, the Collector illegally held that the decree could not be executed because of Section
2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 and the Additional Commissioner as well as the Board of Revenue incorrectly, wrongly and illegally maintained the order passed by the Collector. It was not realized that Section 2-A of the above Act was inserted in the statute book on 01.08.1983 through West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 much after the decree passed in favour of the respondents as modified by the appellate Court had become final when RSA No. 85 of 1971 was dismissed on 19.04.1981 and CPLA was dismissed on 14.11.1981. Proviso to above said Section 2-A of the above Act reads as under:--
"...............................................
...............................................
(a) ...............................................
...............................................
(b) ...............................................
(c) ...............................................
...............................................
Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree".
In view of the proviso (reproduced above), it was a past and closed transaction and the Revenue Authorities could not have re-open the same because of the provisions of Section 2-A of the above Act.
Even otherwise, the delivery of actual physical possession was not necessary to make the decree in favour of the respondents as past and closed transaction in terms of proviso to section 2-A of the above Act.
In view of the above mentioned, we find no merit in this petition which is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 965
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan &
Zia Perwez, JJ.
CHAUDHRY KHAN--Appellant
versus
MAJOR KHAN ALAM--Respondent
Civil Appeal No. 1763 of 2003, heard on 16.2.2009.
(On appeal from the judgment dated 6.10.2003 of the Lahore High Court, Rawalpindi Bench passed in RSA No. 566 of 1980).
Limitation Act, 1908 (IX of 1908)--
----Art. 10 & First Schedule--Punjab Pre-emption Act, 1913, S. 30--Limitation--Necessary corellary--Suit was dismissed on point of limitation--Registered sale-deed does not give any clue of delivery of possession of the suit land prior to its execution--Joint khata--Co-sharers--Validity--Art. 10 of First Schedule of Limitation Act, provides for a limitation period of one year to enforce a right of pre-emption commencing from the date when purchaser takes, under the sale, sought to be impeached, physical possession of the whole property sold or where sale does not admit to physical possession, when instrument of sale is registered--Held: Period of Limitation of one year for instituting a suit for pre-emption from the date on which a vendee takes under the sale physical possession of any part of such land or property which ever is earlier--Art. 10 of Limitation Act, must be possession under sale sought to be impeached and such possession could only be taken in the instant case i.e. date of deed of sale, and consequently the suit was not barred by time--Appellant had instituted the suit within the limitation period of one year from registration of sale-deed--Further held: High Court fell into error by disregarding the date of registration of sale-deed--Appeal was allowed. [Pp. 967, 968 & 969] A, D & E
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Limitation Act, (IX of 1908), Art. 10--Period of limitation--Terminus qua for a limitation--Question of--Registered sale-deed was executed and registered as required by S. 54 of the Transfer of Property Act--Period of limitation would be computed from the date of registration of sale-deed as physical possession of the suit property under sale could not take place earlier thereto--Delivery of possession even if earlier made pursuant to an agreement to sell would not serve the purpose for non-suiting a pre-emption that ground. [P. 967] B
Limitation Act, 1908 (IX of 1908)--
----Arts. 10 & 120--N.W.F.P. Pre-emption Act, (XIX of 1950), S. 31--Applicability--Neither S. 31 of N.W.F.P. Pre-emption Act, nor Art. 10 of Limitation Act, would be applicable--Suit would fall under residuary Art. 120 of Limitation Act, which provided a period of six years for institution of such a suit. [P. 968] C
PLJ 1984 Pesh. 73.
Hafiz S.A. Rehman, Sr. ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Mr. Qamar Afzal, ASC for Respondent.
Date of hearing: 16.2.2009.
Judgment
Faqir Muhammad Khokhar, J.--The appellant instituted a suit, on 17.2.1979 for pre-emption of the suit land measuring 8 kanals and 17 marlas, purchased by the respondent by virtue of a registered sale-deed dated 21.2.1978 (Ex-D-2) for a sum of Rs.70,000/-. The suit was dismissed by the Civil Judge, Jhelum, vide judgment and decree dated 4.7.1979. However, the Additional District Judge, Jhelum, vide judgment dated 1.4.1980, allowed the appeal of the appellant and decreed the suit. Therefore, the respondent preferred Regular Second Appeal No. 566 of 1980 which was allowed by a learned Single Judge in Chambers of the Lahore High Court, Rawalpindi Bench, by impugned judgment dated 6.10.2003. As a necessary corollary, the suit was dismissed on the point of limitation.
The learned counsel submitted that the registered sale-deed dated 21.2.1978 (Exh.D-2) specifically mentioned the delivery of the possession of the suit land simultaneously with its execution. Therefore, the so-called agreement to sell dated 21.1.1978 (Exh.D-1) which recited the delivery of possession of the suit land thereunder was of no avail. In terms of Article 10 of the First Schedule of Limitation Act, 1908, a suit for pre-emption could be instituted within a period of one year commencing from the date of registration of the sale-deed or as the case may be from delivery of possession of the suit land under the sale. He further argued that delivery of possession of suit land prior to the completed sale would not be relevant for the purpose of reckoning the period of limitation for such a suit. He relied on the cases of Niaz Ahmed and others v. Mian Abdul Rehman and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 1), Muhammad Amin v. Maqbool (PLD 1990 Lahore 397), Tajul Mulk v. Mst. Zaitoon Bibi & others (PLD 1994 SC 356), Khurshid Begum v. Muhammad Fazal (PLD 1981 SC (AJ&K) 103), Gullan v. Muhammad Ramzan (PLD 1962 W.P. Baghdad-ul-Jadid 33), Muhammad Siddique v. Ghulam Muhammad (1996 SCMR 1955) and Sukhnandan Singh and others v. Jamiat Singh and others (AIR 1971 SC 1158).
On the other hand, the learned counsel for the respondent vehemently argued that the question of limitation had been properly dealt with by the Lahore High Court which categorically found that the limitation would start from the date of delivery of possession of the suit land i.e. 21.1.1978 as per sale agreement (Exh.D-1). Therefore, the suit instituted by the appellant on 17.2.1979 was barred by time.
We have heard the learned counsel for the parties and have also carefully gone through the evidence with their able assistance. We find that the registered sale-deed dated 21.2.1978 (Exh.D-2) does not give any clue of delivery of possession of the suit land prior to its execution not does it make a mention of agreement to sell dated 21.1.1978 (Exh.D-1). Moreover, the record shows that the suit property was a part of a joint Khata of which the vendor was one of the co-sharers. Article 10 of the First Schedule of Limitation Act, 1908 provides for a limitation period of one year to enforce a right of pre-emption commencing from the date when the purchaser takes, under the sale, sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit to physical possession, when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act, 1913 also takes care of limitation period in a case not provided for by Article 10 of the Limitation Act. It provides a period of limitation of one year for instituting a suit for pre-emption from the date on which a vendee takes under the sale physical possession of any part of such land or property which ever is earlier. Now the question arises as to terminus a quo for a limitation period. In the present case, the registered sale-deed was executed and registered on 21.2.1978 as required by Section 54 of the Transfer of Property Act, 1882. Therefore, the period of limitation would be computed from the date of registration of the sale-deed as the physical possession of the suit property under the sale could not take place earlier thereto. The delivery of possession even if earlier made pursuant to an agreement to sell would not serve the purpose for non-suiting a pre-emptor on that ground.
This point was examined in a number of cases. In the cases of Tajul Mulk (supra) and Gharib Shah v. Zarmar Gul (PLD 1984 SC 188) provisions of Section 31 of North West Frontier Province Pre-emption Act No. XIV of 1950 were examined in the context of the limitation, period for instituting a suit for pre-emption. It was held that cause of action would accrue to a pre-emptor on the completion of sale transaction by attestation of mutation. In Muhammad Siddique and others (supra) it was observed that the period of limitation under Section 30 of the Punjab Pre-emption Act (1 of 1913) would not run from the date of possession if the same had been delivered before the sale but would run from the date when the sale transaction was attested. In Muhammad Amin (supra) sale had been made through a registered sale-deed on 17.5.1977 although the agreement to sell was executed earlier on 20.4.1977. It was held that the period of limitation under Article 10 of the Limitation Act would start from 17.5.1977 i.e. from registration of sale-deed and not from the date of agreement to sell. In Khurshid Begum (supra) it was held by the Supreme Court of Azad Jammu & Kashmir that for the purposes of assertion of right of prior purchase under Section 20 of the Azad Jammu and Kashmir Right of Prior Purchase Act read with Section 54 of the Transfer of Property Act (IV of 1882), "sale" would mean a completed sale on registration of sale-deed under Section 61 of the Registration Act (XVI of 1908). In Sukhnandan and others (supra), the Supreme Court of India took the view that the starting point of limitation under Article 10 would be the date of registration of the sale-deed and in such a case Section 30 of Punjab Act (1 of 1913) would not be applicable with reference to the date on which vendees took physical possession of any part of such land. Section 30 of Punjab Act (1 of 1913) would apply only where a case did not fall within Article 10 of the Limitation Act. It was further held that second part of Article 10 covered cases where the subject of the property sold did not admit of physical possession. However, in the case of H. Niamatullah Khan v. Shabnama and others (1974 SCMR 425) sale of house had taken place by means of an unregistered sale-deed without any sanction of mutation or delivery of possession. It was held that neither Section 31 of N.W.F.P. Pre-emption Act (XIV of 1950) nor Article 10 of the Limitation Act would be applicable. Therefore, the suit would fall under the residuary Article 120 of the Limitation Act which provided a period of six years for institution of such a suit. In Syed Ghulam Baqir Shah v. Muhammad Nawaz and others (PLJ 1984 Peshawar 73) an oral sale of land was entered in mutation on 6.8.1974 which was attested on 13.9.1974 without there being any mention of an earlier agreement to sell therein. The Peshawar High Court took the view that the earlier agreement to sell was superseded by the mutation. Therefore, the suit for pre-emption instituted on 12.9.1975 was held to be within time. In the case of Ram Peara v. Rup Lal & others (80 Punjab Record (1918) Volume 53 page 269) late Mr. Justice Shah Din of the erstwhile Chief Court, Punjab, examined the scope of Article 10 of the Limitation Act, 1908. In that case the plaintiff had filed a pre-emption suit on 20th of December 1915 in respect of a sale by a registered sale-deed dated 21st December 1914. It was pleaded for defendant that the suit was barred by limitation as the vendee had taken actual possession of the property some two months prior to the 21st December 1914. It was held that the possession referred to in Article 10 of the Limitation Act must be possession "under the sale sought to be impeached" and such possession could only be taken in this case from the 21st December 1914 i.e. the date of deed of sale, and consequently the suit was not barred by time. In Words and Phrases (Permanent Edition) Volume 43 page 213 the meaning of the phrase "under the sale" is stated as follows:--
"Under statute barring owner's right to redeem land following sale for non-payment of taxes if there is no redemption within 20 years after purchaser has entered into open possession, since continued, "under the sale" quoted phrase denotes possession permitted by Tax Sale Act, and mere adverse possession without legislative authority is insufficient Brewer v. Porch, 249 A.2d 388, 395, 53 N.J. 167."
We have no doubt in our mind that the appellant had instituted the suit within the limitation period of one year from the registration of sale-deed. Needless to observe that both the parties had agreed before the Additional District Judge for a decision only on the point of limitation. In our opinion, the High Court fell into error in calculating the period of limitation from the date of agreement to sell by disregarding the date of registration of sale-deed. The impugned judgment of the High Court is not sustainable at law.
For the foregoing reasons, this appeal is allowed. The impugned judgment dated 6.10.2003 passed by the Lahore High Court, Rawalpindi Bench, in RSA No. 566 of 1980 is set aside. Consequently, the judgment and decree dated 1.4.1980 passed by the Additional District Judge, Jhelum, in favour of the appellant is restored. The parties to bear their own costs.
(R.A.) Appeal allowed.
PLJ 2009 SC 985
[Appellate Jurisdiction]
Present: Javed Iqbal, Syed Zahid Hussain & Muhammad Sair Ali, JJ.
ALI ASGHAR ABBASI--Appellant
versus
STATE--Respondent
Crl. A. No. 640 of 2006, decided on 13.5.2009.
(On appeal from the judgment dated 9.12.2005 Passed by the High Court of Sindh at Karachi in Crl. Accountability Appeal No. 1 of 2005).
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a)(iii) (iv) (vi) & (ix) r/w 10 & 15--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and disqualification was maintained but sentence was to reduce--Matter relating to loans of other loanees meanwhile lost relevance--Appellant obtained loans in the names of other persons and misappropriated the released amounts--Validity--Appellant as manager of bank was under statutory as well as contractual obligations to promote, protect and preserve the functional and financial interests of bank--Held: Mere deposit of the loan amount in bank by appellant or any one else, did not absolute the appellant of his criminality for mis-appropriation of the bank-funds which were obtained by him in name of the loanee--Appeal dismissed. [P. 987] A
Mr. Masood Ahmed Chishti, ASC for Appellant.
Mr. Muhammad Aslam Butt, DPG, NAB, Dr. Asghar Rana, Addl. DPG, NAB Saleem Akhtar, Addl. DPG, Sindh for State.
Date of hearing: 13.5.2009.
Judgment
Muhammad Sair Ali, J.--Through this criminal appeal, the appellant has challenged judgment dated 09.12.2005 of High Court of Sindh at Karachi dismissing his Cr. Accountability Appeal No. 01 of 2005 and maintaining his conviction and disqualification pronounced in Reference No. 30 of 2003 by Accountability Court No. II, Karachi through judgment dated 31.12.2004 but reducing the sentence from 10 years to 7 years and fine from Rs.42,20,000/- to Rs.20,00,000/- with benefit of Section 382-B Cr.P.C.
The appellant was Manager, Small Business Finance Corporation, (now named as Small and Medium Enterprises (SME) Bank), Larkana and Shikarpur Branches. The prosecution alleged that during the year 1994 to 1995 the appellant obtained eight loans in the names of Abdul Sattar, Muhammad Sultan, Ahmed Ali Memon, Faiq Ali Khan, Behram, Shah Nawaz, Khair Muhammad and Abdul Rauf and misappropriated the released amounts. On 15.11.2003 reference was filed before the Accountability Court, Karachi. A charge was framed against the appellant for offences under Section 9 of (a)(iii), (iv), (vi) & (ix) read with Section 10 of the NAB Ordinance. He pleaded `not guilty'.
The prosecution examined 11 witnesses. The appellant, in his statement recorded under Section 342 Cr.P.C. denied the allegation but pleaded that all the borrowers had paid the loans and the Bank had not suffered any loss. The appellant without submitting himself for examination under oath, produced three defence witnesses. Two borrowers Muhammad Sultan and Ahmed Ali as DWs supported the case of the appellant and Ghulam Murtaza, the then Senior Assistant/Incharge Recovery as DW, admitted receipt of entire loan payments by the Bank from the loanees Shah Nawaz, Behram and Faiq Ali.
On conclusion of the trial, the appellant was convicted and punished by the Accountability Court to 10 years R.I., fine of
Rs. 42,20,000/- or to one year R.I. for default and disqualification for 10 years under Section 15 of the NAB Ordinance, 1999.
Against the above judgment, his Criminal Accountability Appeal No. 01 of 2005 was dismissed by a learned Division Bench of the High Court of Sindh, Karachi through judgment dated 09.12.2005 whereby his conviction and disqualification was maintained but sentence was to reduced to 7 years and fine to Rs.20,00,000/- with benefit under Section 382-B Cr.P.C.
Present Criminal Appeal No. 640 of 2006 through leave, now assails High Court's judgment dated 09.12.2005 qua loan of Faiq Ali as matters relating to the loans of other loanees meanwhile lost relevance. We will, therefore, restrict our opinion to the matter pleaded and addressed before us in this appeal i.e. Faiq Ali's loan.
The main argument of the learned counsel for the appellant was that the entire loan amount of Rs.300,000/- outstanding in the name of Faiq Ali stood deposited with the Corporation/Bank, therefore, the Bank neither suffered any financial loss nor was the issue alive any more. He also read out the statements of witnesses to prove settlement of the loan amount and also meekly pleaded for reversal of the impugned judgment. In contrary arguments, the learned counsel for the NAB supported the impugned judgment and emphasized that loan payment cannot condone the appellant from the offences under the provisions of National Accountability Ordinance, 1999 for misappropriation of finance.
Attending to the submissions of the learned counsel for the parties, we agree with the respondents' plea that mere deposit of the loan amount in the Bank by the appellant or any one else, did not absolve the appellant of his criminality for mis-appropriation of the Bank-funds which were obtained by him in the name of the loanee.
The appellant as the Manager of the Bank was under statutory as well as contractual obligations to promote, protect and preserve the functional and financial interests of the Bank/Corporation, the primary object of which was to do the business of finances and deposits. A Bank or a Corporation acts, functions and speaks through its Managers or employees who normally also hold its Power of Attorney. Such employees or Managers as agents and representatives of such Institutions have higher moral, ethical, legal, professional and contractual duties towards their employers. They are the face and the mouth of the Financial Institutions. They in their dealings with the customers and the general public are the bank or are perceived to be so. They, wherefore, are to act only in the supreme interest of the Bank.
Regrettably, acting otherwise than was his duty towards his employer, the appellant misused and abused his authority as Manager. On the recommendation of the appellant, loan of Rs.3,00,000/- was sanctioned by the Corporation/Bank for Faiq Ali who was disbursed only the first installment of Rs.30,000/-. The remaining amount of Rs.2,70,000/- was released by the bank for this customer but this money was not paid to the loanee. The Accountability Court as well as the High Court through concurrent findings of fact on the basis of evidence held the appellant to have misappropriated and misapplied this amount and thus to have committed offences punishable under Section 10 of the NAB Ordinance, 1999. The appellant was thus convicted and punished.
The learned counsel for the petitioner has not been able to show us any reason or material to differ with the findings of the learned Courts that the loan obtained by the appellant from the Financial Institution in the name of Faiq Ali was wholly paid to him or that the said loan was disbursed in accordance with the terms and conditions of the Sanction Advice of the Corporation/Bank. The evidence on record overwhelmingly demonstrates that the appellant misappropriated sum of Rs.2,70,000/- out of the sanctioned loan of Rs.3,00,000/-. Faiq Ali, as PW.5, categorically stated that he only received Rs.30,000/- and did not receive Rs.2,70,000/-. Zahid Hussain Abro, PW.3, as the then Manager of SME Bank, discovered in 2001 the fraud and misappropriation of the appellant by devising methodology of obtaining loans in the name of others with object to pocket the same himself. As per the depositions of Mukhtar Ali, PW.4 (of SME Bank) and PW.10 Band-e-Ali, (Manager, Allied Bank Limited), the cross-cheque dated 27.10.1999 issued in the name of Faiq Ali, was converted into an open or a bearer cheque by the appellant by cutting out the parallel lines indicative of crossing. On examining the said cheque, we found appellant to have issued the said cross-cheque as the Bank Manager in the name of Faiq Ali and then to have changed the cross-nature of the cheque into bearer by deleting of the parallel lines with his signatures. When confronted the learned counsel for the appellant was unable to deny or defend such conversion which was also contrary to the Sanction Advice of the corporation. The modified cheque, being bearer, was encashed on the counter from Allied Bank, Limited on 28.10.1999 by the holder who collected Rs.2,70,000/- which did not reach the customer Faiq Ali. The Sanction Advice also required disbursement of the loan only in installments but appellant for his own benefit obtained amount of Rs.2,70,000/- in lum-sum. Faiq Ali's credible and categoric statement of not having received the cheque or the amount of Rs.2,70,000/- could neither be discredited nor dislodged by the appellant despite a gruelling cross-examination. None of the three defence witnesses could go beyond the deposit of the loan amount in the Bank and they were unable to dilute the charges against the appellant.
In view thereof, we do not find any material in the present appeal which is accordingly dismissed. The conviction of the appellant and his punishment are maintained as pronounced in the judgment dated 09.12.2005 the High Court of Sindh at Karachi.
(R.A.) Appeal dismissed.
PLJ 2009 SC 988
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Ch. Ijaz Ahmed & Jawwad S. Khawaja, JJ.
MUHAMMAD SALEEM--Petitioner
versus
--Respondents
Crl. P. No. 308 of 2009, decided on 23.6.2009.
(Against the judgment dated 15.4.2009 passed by the Lahore High Court, Multan Bench, Multan, in Murder Reference No. 145/2003, Criminal Appeal No. 64/2003 and Cr. Revision No. 72/2003).
Constitutional of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Accused did not raise the pleas before trial Court of such pleas were not taken in memo of revision before High Court--Contentions--Improvements and contradictions in statements of prosecution witnesses as well as in the statement of investigating officer--Validity--Witnesses while appearing in the Court had made improvements in their statements to strengthen the prosecution case cast serious doubt on veracity of such witnesses, therefore, High Court was justified to come to conclusion that their statements were not worthy of reliance. [Pp. 991 & 992] A & B
PLJ 1981 SC 835, PLJ 1973 SC 23, 1972 SCMR 644, 1972 SCMR 578 & 1990 SCMR 158, ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 540--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Plea qua summoning of injured witness--Power of Court--Validity--Injured witness whose name was not mentioned in calendar of witnesses u/S. 540, Cr.P.C. before Supreme Court when the High Court had already taken judicial notice against the prosecution--Held: Court has wide powers to call or recall any witness but such powers are not to be exercised to fill in lacuna left by any party--The Court has to exercise these powers judiciously for just decision of case keeping in view circumstances of each and every case--Supreme Court generally does not allow to raise such plea for the first time before Supreme Court with the sole object to create doubts about the judgments of the Courts below--Leave refused. [P. 993] C & D
PLD 2003 SC 703, ref.
Ch. M. Munir Akhtar Minhas, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 23.6.2009.
Judgment
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the judgment of the High Court dated 15-4-2009 wherein the appeal of Respondent No. 1 was accepted and he was acquitted.
"The prosecution was launched with registration of FIR by Munir Ahmad (complainant) to the effect that at 3.00 (noon), he alongwith Muhammad Saleem and Muhammad Aslam were present on the eastern brink of Umarpur Naala, and Allah Bachaya was coming to his house. When Allah Bachaya came in front of Chah Arriwala, Azam (accused/appellant), Muhammad Iqbal and Muhammad Ramzan armed with pistols rushed out of a room, shouted a lalkara to Allah Bachaya and all the three started firing on him, two fire hit Allah Bachaya on his left leg near the thigh and one fire hit his anus and he fell down. From the firing of the accused Muhammad Hayat who was also coming on the brink riding a bicycle also sustained injury on his leg. Thereafter, the accused escaped from the place of occurrence by firing in the air but Allah Bachaya died at the spot."
Respondent No. 1 namely Muhammad Azam alongwith his two co-acquitted accused, namely, Muhammad Iqbal and Muhammad Ramzan were involved in a case FIR No. 314 which was registered on 25-9-2001 at Police Station Rohilanwali under Section 302/324/34 PPC on the complaint of Munir Ahmed. The learned Additional Sessions Judge Muzaffargarh vide its judgment dated 31-1-2003 convicted and sentenced the accused as under:--
Muhammad Azam
Death under Section 302(b) PPC with compensation of
Rs. 50,000/- to be paid to the legal heirs of the deceased Allah Bachaya. In case of default in payment of compensation to further undergo six months' S.I. The said compensation will be recoverable as arrears of land revenue. He was acquitted from the charge under Section 324 PPC.
Muhammad Iqbal and Muhammad Ramzan
They were acquitted from the charges framed against them by giving them the benefit of doubt.
Respondent No. 1 being aggrieved filed Criminal Appeal No. 64/2003 in the Lahore High Court, Multan Bench, Multan. Munir Ahmed complaint also filed Criminal Revision No. 72/2003 against Respondent No. 1 seeking further enhancement of compensation. Murder Reference has been sent by the learned trial Court. The learned High Court vide impugned judgment acquitted Respondent No. 1 and dismissed the criminal revision filed by complainant. Hence the present petition.
(i) The investigating agency has not conducted the investigation of the case fairly, justly and honestly.
(ii) Muhammad Hayat was also injured in the incident in question who had sustained injury on his leg as is evident from the contents of the FIR. This fact also highlighted by the eye-witnesses of the occurrences Munir Ahmed, complainant PW-3 and Muhammad Saleem PW-4.
(iii) The occurrence had taken place in the daylight at 3.00 P.M. but the investigating officer did not record the statement of Muhammad Hayat injured witness.
(iv) Muhammad Hayat was also medically examined on 25.9.2001 by Dr. Muhammad Siddique Bhatti, PW-8.
(v) The police authorities have not cited injured Muhammad Hayat in the report under Section 173 Cr.P.C. which reveals that the police has failed to assign Muhammad Hayat as prosecution witness nor produced his MLR No. 152-R dated 25-9-2001.
(vi) The most important prosecution witness was not produce by the police which vitiated the whole trial.
(vii) Both the Courts below did not advert to this aspect of the case by not summoning the injured witness for recording the evidence, which is essential to the just decision of the case, therefore, both the Courts below have decided the present case in violation of the mandatory provisions of Qanoon-e-Shahadat Order, 1984 and provisions of Criminal Procedure Code.
(viii) Mian Salim-ur-Rehman learned PP for the State had given up PWs Muhammad Aslam, Mst. Nasreen and Dildar Ahmed being unnecessary whereas he did not say single word qua non-producing Muhammad Hayat, injured witness.
(ix) He has also relied upon the following passage from the cross-examination of Sadiq Hussain, Sub-Inspector, to show that the police did not investigate the case in accordance with law:
"After getting myself satisfied as to the preparation of the challan, the accused were challaned to the Court.. I did not mention Muhammad Hayat injured in the calendar of the witnesses because it came to my knowledge that he was supporting the accused party. I did not interrogate Muhammad Hayat injured. The I.O. told me that Muhammad Iqbal injured was giving favour to accused, therefore, I did not mentioned him as PW. I have discharged my duty properly. Being SHO/S.I. I did not want to damage the merits of the case. "
(i) benefit to the exempted accused.
(ii) benefit to the co-accused under trial.
(iii) benefit being the convenience of the Court itself.
Mere reading of Section 540 Cr.P.C. shows that Court has wide powers to call or recall any witness but such powers are not to be exercised to fill in the lacuna left by any party. The Court has to exercise these powers judiciously for just decision of case keeping in view circumstances of each and every case. This Court generally does not allow to raise such pleas for the first time before this Court with the sole object to create doubts about the judgments of the Courts below. See Sh. Muhammad Ahmad's case (PLD 2003 SC 704). The petitioner has not agitated the matter before the trial Court when the challan was submitted before the trial Court and his name (Muhammad Hayat injured) was not mentioned in calendar of witnesses. During the proceedings before trial Court the petitioner has not raised this plea and also failed to raise such plea even in the High Court. In view of the aforesaid circumstances highlighted herein above we do not find any force and we are not inclined to vitiate the judgments of the Courts below consequently and remand the case of the respondent for retrial at this belated stage as is evident from the following facts:--
(i) FIR was lodged on 25-9-2001
(ii) Trial Court convicted Respondent No. 1 vide its judgment dated 31-1-2003.
(iii) The learned High Court had acquitted Respondent No. 1 vide judgment dated 15-4-2009.
It is settled law that for enhancement of sentence, the order impugned should be either perverse or arbitrary or without any substance reason. See Ghulam Sikandar's case (PLD 1985 SC 11). In the light of principle laid down by this Court in the aforesaid judgment we see no illegality committed by the learned High Court while acquitting Respondent No. 1. The reasoning noted in aforesaid paragraphs in the impugned judgment shows that the learned High Court had acquitted Respondent No. 1 after judicious application of mind and after considering each and every piece of evidence.
(R.A.) Leave refused.
PLJ 2009 SC 994
[Appellate Jurisdiction]
Present: Sayed Zahid Hussain & Muhammad Sair Ali, JJ.
MUHAMMAD FARYAD--Petitioner
versus
STATE--Respondent
Jail Petition No. 342 of 2008, decided on 19.5.2009.
(On appeal from the judgment dated 28.11.2008 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 878 of 2002 of M.R. No. 568/03).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Recovery of pistol--Effect of--Uncertain expression on probable distance cannot believe the consistent and credible version--Day-light occurrence--Nominated in FIR as the only accused who fired the single but fatal pistol shot--Recovery of pistol was also proved--Prosecution witnesses had no motive to falsely implicate the accused in absence of any previous enmity--Held: No material contradictions or serious discrepancies in the evidence of prosecution witnesses existed--No ground to interfere in concurrent findings of the Courts below is available--Leave refused. [P. 997] A
Mr. Aftab Ahmed Khan, ASC for Petitioner.
Mian Asif, Dy. P.G. Punjab, for State.
Date of hearing: 19.5.2009.
Judgment
Muhammad Sair Ali, J.--Leave to appeal is sought through this jail petition by Muhammad Faryad, petitioner against the judgment dated 28.11.2008 passed by the Lahore High Court, Multan Bench dismissing petitioner's Criminal Appeal No. 878 of 2002 thereby confirming the death sentence etc. awarded by the trial Court and answering the murder reference in affirmative.
Briefly stated the facts of the case are that on report of the complainant Muhammad Ramzan (PW.6) FIR No. 174 of 1999 under Section 302 PPC, Police Station Jehanian, District Khanewal was registered alleging the murder of his brother Muhammad Islam by the petitioner through a pistol shot. The motive was stated to be reprimand by Muhammad Islam deceased on petitioner's staring at the girls through the gate of the Girls College.
After completion of investigation, the case was sent up for trial. The petitioner was charge sheeted, but he denied the charges and opted for the trial. Prosecution examined 10 witnesses. Muhammad Ramzan complainant appeared as PW.6 and Iftikhar Ahmed as PW.5 to support the prosecution story, the motive and the recoveries. Recovery of pistol i.e. (P.3) was effected through Farman Ali (PW.7) and Nazir Ahmed Shah, Investigation Officer (P.W.9). Dr. Mumtaz Ahmed Khan (PW.10) appeared to depose on post-mortem examination of Muhammad Islam deceased detailing and describing nature of injuries on the person of the deceased. Report of the Chemical Examiner (Ex.PK) and that of Serologist (Ex.P.L) and of Forensic Science Laboratory (Ex.PN) were tendered in the evidence by the prosecution. In his statement under Section 342 Cr.P.C, petitioner denied the prosecution story and claimed that he had been falsely implicated in lieu of the sons of the deceased who were the actual killers of their father on a land dispute. However, he neither appeared as his own witness nor produced any defence witnesses.
The learned Sessions Judge, Khanewal through judgment dated 24.09.2002 convicted the petitioner under Section 302(b) PPC and sentenced him to death and to pay compensation of Rs.50,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C and in default thereof to undergo 6 months R.I.
The petitioner filed an appeal against trial Court's judgment before the Lahore High Court, Multan Bench. The High Court dismissing the appeal maintained petitioner's conviction and sentence thereby also answering the reference in affirmative. Hence the present jail petition.
To support this petition Mr. Aftab Ahmed Khan, ASC contended that medical evidence and the ocular evidence contradict each other as to the distance of fire of the pistol shot. Iftikhar Ahmed, PW.5 and Muhammad Ramzan, PW.6 stated that the fire was made at a distance of about 3-5 feet while Dr. Mumtaz Ahmed Khan, in his opinion has stated the fire to have been made from a distance of 20 feet. He further contended that perusal of the site-plan shows that the deceased was sitting in the Baithak of Basit Ali with his back to the door from where the convict allegedly entered and fired but the prosecution story, the deposition of eye-witnesses and the medical evidence describe the fire to have hit the deceased on the frontal part of the body causing the fatal injury on the front of the neck.
The learned Dy. Prosecutor General, Punjab has supported the impugned judgment.
Having heard the learned counsel for the parties and perused the record minutely, we do not find any substance in the submissions of the learned counsel for the petitioner. The story in the FIR was proved by the consistent, credible and natural depositions of Muhammad Ramzan, PW.6 i.e. the complainant and Iftikhar Ahmed, PW.5. They both stated the petitioner to have entered the room from the door and firing the shot directly at the deceased hit him on the frontal of the neck. This ocular evidence was endorsed by the statement of Dr. Mumtaz Ahmed Khan PW.10 who conducted the post-mortem examination and described the injuries as under:--
"1. A lacerated wound 1 cm x 1cm penetrating deep with inverted margins (entry wound) on left side of front of upper neck, 5 cm from laryngeal box.
Injury No. 1 and 2 were the entry and exit wounds, caused by fire-arm and were anti-mortem in nature, sufficient to cause death in the ordinary course. Dr. Mumtaz Ahmed, PW.10 in answer to the questions in the cross-examination stated that "The Injury No. 1 paneterated from left side in the neck. The assailant was on the left side of the deceased at the time of firing. The direction of the injury was downwards towards right shoulder hence exit was on the back of the right shoulder." In answer to the question on distance, Dr. Mumtaz Ahmed Khan, PW.10 stated that "I cannot give the exact distance between the deceased and the assailant at the time of firing. There is possibility that the assailant may be at a distance of 20 feet at the time of firing."
This statement is adequate to meet the objections of the learned counsel for the petitioner as to the distance and direction of the fire.
We also examined the site-plan and the place of the two Cots and the door from where the petitioner entered and fired on the left front side of the deceased as per the PWs. The site-plan does not support the plea of the learned counsel for the petitioner that the door was at the back of the accused and fire, if shot from the door, could only hit the accused in the back. The door as shown in the site-plan was on the left side of the Cot of accused and fire could only hit him as stated by PWs. The medical evidence, the statement of the PWs and the site-plan read together proved the story of the prosecution beyond doubt. On the distance, Dr. Mumtaz Ahmed Khan, PW.10, initially denied his ability to give the exact distance but on further cross-examination as to the possible distance, he mentioned that the distance may be 20 feet. This uncertain expression on the probable distance cannot belie the consistent and credible version of the PWs on the distance and the manner of commission of crime.
It was a day light occurrence. Petitioner was known to the PWs. In the FIR he was nominated as the only accused person who fired the single but fatal pistol shot. Recovery of the pistol was also proved to have been made from the accused. The prosecution witnesses had no motive to falsely implicate the accused in absence of any previous enmity. Reprimanding the petitioner by the deceased for staring at the college girls was the immediate motive for the murder and the same was also duly proved by mutually corroborative statements of Iftikhar Ahmed, PW.5 and Muhammad Ramzan, PW.6. No material contradictions or serious discrepancies in the evidence of the prosecution witnesses existed. No ground to interfere in the concurrent findings of the Courts below is therefor available.
In view thereof, this petition is dismissed. Leave is declined.
(R.A.) Leave refused.
PLJ 2009 SC 998
[Appellate Jurisdiction]
Present: Javed Iqbal, Ch. Ejaz Yousaf &
Sardar Muhammad Aslam, JJ.
Mst. JINDO MAI (deceased) through LRs. and others--Petitioners
versus
MUHAMMAD BAKHSH and others--Respondents
Civil Petition No. 895 of 2007, decided on 18.6.2009.
(On appeal from the order dated 3.9.2007 passed by the Lahore High Court, Multan Bench, Multan in C.R. No. 550-D/2007 & CM 1-2/C/2007).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Non-depositing of Court fee would have adverse consequences--Deficiency of Court fee could not be made up--Deficiency of Court fee be made on or before 4.5.2006 and needful could not be done till 30.5.2006 as Presiding Officer was on leave--Due to non-avail of Presiding Officer, Reader (Ahlmad) directed to do the needful on next date of hearing--Validity--Presiding Officer remained on leave and order passed by Reader (Ahlmad) was not indicative that petitioners were not prepared to pay the Court fee--Held: Reader (Ahlmad) has absolutely no authority to extend the time in depositing the Court fee and no such extension was granted by Reader but the relevant diary sheet depicts that "Court fee is to be deposited on the next date of hearing" which cannot be equated to that of denial by petitioners--Target date i.e. 4.5.2006 was neither violated nor the order was flouted which could not be complied with due to absence of Presiding Officer on one hand and direction of the Reader (Ahlmad) who mentioned that Court fee is to be deposited on the next date of hearing--No direction whatsoever was given by Reader (Ahlmad) that Court fee is to be deposited with Duty Judge.
[P. 1000] A
Deficiency of Court Fee--
----Deficiency of Court fee could be made up--Direction that deficiency of Court fee be made on or before 4.5.2006 and needful could not be done till 30.5.2006 as Presiding Officer was on leave--Order passed by Reader (Ahlmad) is not indicative that petitioners were not prepared to pay Court fee--Duty judge the Reader (Ahlmad) would have not given the date--Validity--Where Presiding Officer is on short leave for a day or two, no "Duty Judge" is appointed and in criminal case for purposes of remand, additional duties are assigned to other judicial officer--Court fee was deposited on 30.5.2006 which was a valid tendering of the Court fee under peculiar circumstances of the case, leave of Presiding Officer and orders of Reader--Conduct of the petitioners cannot be declared contumacious nor he had acted with mala fide intention to deliberately flout the order of the Court--Leave allowed. [P. 1000] B
Malik Muhammad Latif Khokhar, ASC and Mr. M.A. Zaidi, AOR for Petitioners.
Nemo for Respondents 1-3 & 5.
Mr. G.N. Gohar, ASC/AOR for Respondent No. 4.
Date of hearing: 18.6.2009.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against order dated 3.9.2007 passed by the learned single Judge of the Lahore High Court, Multan Bench, Multan whereby Civil Revision preferred on behalf of petitioners has been dismissed and the judgment/decree dated 24.7.2007 passed by learned Additional District Judge, Karor, District Layyah has been kept intact.
The facts of the case has been narrated in extenso hence reproduction whereof would be of no use. Suffice it to say that the petitioners have been knocked out as deficiency of Court fee could not be made up.
Malik Muhammad Latif Khokar, learned ASC entered appearance on behalf of petitioners and urged with vehemence that the appeal as preferred before learned Additional District Judge, Karor on 26.4.2006 against judgment and decree dated 18.4.2006 passed by learned Civil Judge which was admitted for regular hearing by means of order dated 26.4.2006 with the direction that the deficiency of Court fee be made on or before 4.5.2006 and needful could not be done till 30.5.2006 as the learned Presiding Officer was on leave. It is next contended that the learned Additional District Judge in his order dated 26.4.2006 did not mention the exact amount of deficiency of Court fee which was required to be made up and such approach was not in accordance with the settled law which resulted in serious miscarriage of justice and the appeal could not have been dismissed merely on the minor delay of couple of days that too with reasonable justification and sufficient cause. It is argued that the petitioners were ready to pay Court fee on 4.5.2006 and on 18.5.2006 but due to non-availability of learned Presiding Officer, the Reader (Ahlmad) of the Court directed to do the needful on next date of hearing. It is argued with firmness that the petitioners has a very good case on merits which is required to be decided on merits instead of sheer technicalities.
Mr. G. N. Gohar, learned ASC entered appearance on behalf of Respondent No. 4 and strenuously controverted the view point as canvassed at bar by the learned ASC on behalf of petitioners with the submission that Court fee should have been paid in time which could not be done by the petitioners and thus order impugned being well based does not warrant any interference.
We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the order impugned. It transpired from scrutiny of record that on 4.5.2006 and on 18.5.2006 the learned Presiding Officer remained on leave and the order passed by the Reader (Ahlmad) is not indicative of the fact that the petitioners were not prepared to pay the Court fee. Had the learned Presiding Officer been present, in that case non-depositing of the Court fee would have adverse consequences. We are conscious of the fact that the Reader (Ahlmad) has absolutely no authority to extend the time in depositing the Court fee and no such extension was granted by the Reader (Ahlmad) but the relevant diary sheet depicts that "the Court fee is to be deposited on the next date of hearing" which cannot be equated to that of denial by the petitioners and therefore, it can be inferred safely that the target date i.e. 4.5.2006 was neither violated nor the order was flouted which could not be complied with due to the absence of the learned Presiding Officer on one hand and direction of the Reader (Ahlmad) on the other who mentioned that Court fee is to be deposited on the next date of hearing. No direction whatsoever was given by the Reader (Ahlmad) that the Court fee is to be deposited with Duty Judge. Had there been some Duty Judge the Reader (Ahlmad) himself would have not given the date and adjourned the case. It is general practice that usually where the learned Presiding Officer is on short leave for a day or two, no "Duty Judge" is appointed and in criminal cases for the purposes of remand, additional duties are assigned to some other Judicial Officer. The Court fee was deposited on 30.5.2006 which in our view is a valid tendering of the Court fee under the peculiar circumstances of the case, leave of the learned Presiding Officer and the orders of the Reader (Ahlmad). There is nothing on record to support that the "Duty Judge" was functioning on that day. The conduct of the petitioners cannot be declared contumacious nor he had acted with malafide intention to deliberately flout the orders of the Court.
We have also surveyed the case law enunciated by this Court and expressed in case titled Ahmad Yar Jan v. Noor Ahmed Khan (1994 SC 688) as under:--
"This order of the Court left the calculation of proper Court-fee and the deficit Court-fee to the plaintiff which could not be treated as the direction of the Court to pay a deficient amount of Court-fee within a specified time. Therefore, non-compliance of such an order could not result in the rejection of plaint in view of the law laid down by this Court in the case of Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) and Muhammad Hanif v. Muhammad and others (PLD 1990 SC 859).
Now applying the said dictum of the Hon'ble Supreme Court of Pakistan to the case in hand, the learned trial Court had not ascertained the exact amount of Court-fee on the first date on which the case was put up before it. On the other hand, it left the matter in the hands of the plaintiff either to get the net profits table, calculate the Court-fee and pay the same or to pay it on the market value of the suit-land. Needless to state that there was an initial controversy regarding market value also which was to be determined by the Court. According to the Hon'ble Supreme Court of Pakistan, non-compliance of such an order could not result in rejection of plaint. Now it is a matter of record that ultimately, the learned trial Court determined the exact amount of Court-fee vide order dated 1.10.1983 and after determining the deficiency directed the plaintiff to pay the same and there is no denial that this order was duly complied with. The pliant could not, therefore, have been rejected by the learned District Judge. Needless to state here that there is no question of the suit being barred by time as it was admittedly filed within the period of limitation". Mulazim Hussain v, Inayatullah (MLD 2005 797).
The said view also finds support by the dictum laid down by this Court in case titled Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), Shahna Khan v. Aulia Khan and others (PLD 1984 SC 157), Mst. Parveen v. Ms. Jamsheda Besum and another (PLD 1983 SC 227). We are not deviating from the well entrenched legal position determined and discussed hereinabove but the circumstances of the case in hand are some what different as discussed in the above mentioned cases.
In view of what has been stated hereinabove this petition is converted into appeal and allowed. The order impugned is set aside and the appeal preferred on behalf of petitioners in the Court of learned Additional District Judge shall be considered as pending and decided in accordance with settled law and on merits after affording proper opportunity of hearing to all concerned.
(R.A.) Appeal allowed.
PLJ 2009 SC 1002
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ.
WAQAR HAIDER BUTT--Petitioner
versus
JUDGE, FAMILY COURT, and others--Respondents
Civil Petition No. 608 of 2009, decided 5.5.2009.
(Against the judgment dated 9.2.2009 passed by Lahore High Court, Lahore, in W.P. No. 1461/2009).
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Constitutional petition--Maintainability against concurrent findings of tribunals--Admissible fact--All the Courts below after re-appraisal of evidence had given findings of fact against the petitioner qua his earning amount--Held: Constitutional petition under Art. 199 of Constitution in High Court is not maintainable against the concurrent findings of tribunals. [P. 1005] A
SCMR 1974 SC 279 & PLD 1981 SC 246, rel.
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Appreciation of evidence--All Courts below after re-appraisal of the evidence had given findings of fact against petitioner qua his earning amount--Validity--Supreme Court does not mettle with the findings of fact reached by primary Courts or a High Court when it is satisfied that findings of the Courts below are reasonable and are not arrived at by disregarding of any provision of law or any accepted principle concerning the appreciation of evidence. [P. 1005] B
Appreciation of Evidence--
----Principle--Supreme Court would not normally go behind a concurrent finding of fact recorded by Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence or finally if finding could be demonstrated to be physically impossible. [P. 1006] C
Rule of Court in Civil Petition--
----Concurrent findings recorded by High Court are not sustainable--Burden lies rather heavily on the petitioner to show that concurrent finding recorded by High Court are not sustainable on the record and should be interfered with the Supreme Court. [P. 1006] D
Constitutional Jurisdiction--
----Discretionary in character--Constitutional jurisdiction is always discretionary in character--He who seek equity must come with clean hands. [P. 1006] E
Constitution of Pakistan, 1973--
----Art. 199--Constitutional jurisdiction--Concurrent findings--Quantum of maintenance as fixed by appellate Court considering financial and other circumstances of the petitioner being fair, proper, just and reasonable and based on evidence on record which was upheld by High Court--Validity--High Court had refused to interfere with the finding of fact recorded by Court of competent jurisdiction while exercising constitutional jurisdiction under Art. 199 of Constitution. [P. 1006] F
2000 CLC 588.
Leave to Appeal--
----Matter of discretion--Grant of special leave to appeal from Supreme Court cannot be claimed as of right because essentially it is matter of discretion. [P. 1006] G
PLD 1973 SC 469 & 1971 SCMR 186, ref.
Mr. Sana Ullah Zahid, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 5.5.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the judgment dated 9-2-2009 passed by Lahore High Court, Lahore, wherein, Constitution Petition No. 1461/2009 filed by the petitioner against the judgment and decree of the District Judge, Gujrat, dated 14-11-2008 and judgment and decree of the Judge, Family Court, dated 21-7-2008, was dismissed.
Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that petitioner and Respondent No. 5 solemnized marriage on 30-8-1995. Out of the wedlock Respondent Nos. 3, Amina Waqar and Respondent No. 4, Sara Waqar were borne which are presently residing with Respondent No. 5. The relationship between the petitioner and Respondent No. 5 became strained which ultimately ended in divorce. Respondent No. 5 on her behalf and on behalf of Respondent Nos. 3 and 4 filed suit for recovery of maintenance allowance in the Court of Judge Family Court. The petitioner filed written statement controverting the allegations leveled in the plaint. Out of the pleadings of the parties the learned Judge, Family Court, framed the following issues:--
Whether the plaintiffs are entitled to recover maintenance allowance if so at what rate in which extent? OPP.
Whether plaintiffs have not come to the Court with clean hands? OPD.
Whether plaintiffs have no cause of action to file the suit? OPD.
Whether suit is not maintainable in its present form? OPD.
Relief.
Learned Judge Family Court after completing the legal formalities i.e, recording of the evidence of the parties, partly decreed the suit vide judgment and decree dated 21-7-2008 by observing that Respondents No. 3 & 4 (Plaintiffs No. 1 & 2) are entitled to recovery of monthly allowance at the rate of Rs. 5000/- each from the date of institution of the suit to till their entitlement while Respondent No. 5 (Plaintiff No. 3) is entitled to recover Rs. 5000/- per month from the date of institution of suit to till her Iddat period. The petitioner being aggrieved filed an appeal before the District Judge, Gujrat who partly accepted the appeal of the petitioner vide judgment and decree dated 14-11-2008 wherein maintenance of Respondents No. 3 & 4 (Plaintiffs No. 1& 2) was reduced from Rs. 5000/- to Rs. 4000/- per month with an increase of 10 % percent per annum. Similarly, the maintenance of Respondent No. 5 was also reduced from Rs. 5000/- to Rs.4000/- per month. Petitioner being aggrieved filed Constitution Petition No. 1461/2009 in the Lahore High Court, Lahore, which was dismissed vide impugned judgment dated 9-2-2009, hence the present petition.
Learned counsel for the petitioner submits that all the Courts below had decided the case against the petitioner by misreading and non reading of evidence on record. He further submits that petitioner is a poor person and is not in a position to pay the maintenance awarded by the Courts below to Respondents No, 3 to 5. The petitioner had taken a stand before the Judge Family Court while submitting written statement that he is residing in Qattar having monthly income of Rs. 16,000/- whereas the Courts below had erred in law to observe that petitioner's monthly income is of Rs. 60,000/-. He further urges that the provisions of the Qanoon-e-Shahadat Order are not applicable before the Family Court and this fact was not considered by all the Courts below in its true perspective.
We have given our anxious consideration to the contentions of the learned counsel for the petitioner and paused the record. It is an admitted fact that all the three Courts below after re-appraisal of the evidence had given findings of fact against the petitioner qua his earning amounting to Rs. 60,000/- Learned Judge, Family Court, after appraisal of the evidence on Issue No. 1 had given findings of fact against the petitioner to the following effect:--
"DW-2 categorically admitted that defendant is a person of means and his monthly income is Rs. 60,000/-. So he can pay easily Rs. 5000/- to each plaintiff. Facts admitted need not to be proved is a settled law ".
"In view of above state of facts, bald allegation at the instance of appellant highlighting his monthly resources to the tune of Rs. 16,000/- hardly can be believed, relied and acted upon and one cannot disputed that appellant is earning
Rs. 50,000/- to Rs. 60,000/-. "
It is settled principle of law that Constitutional Petition under Article 199 of the Constitution in the Lahore High Court is not maintainable against the concurrent findings of the tribunals below as law laid down by this Court in Khuda Bakhsh v. Muhammad Sharif and another (SCMR 1974 SC 279) and Muhammad Sharif and another v. Muhammad Afzal Sohail etc, (PLD 1981 SC 246). Both the Courts below have given findings of fact against the petitioner, therefore, learned High Court was justified to dismiss the Constitution petition which is in accordance with the dictum laid down by this Court in Begum Wazir Ahmad Industrial Home's case (PLD 1976 SC 214). It is settled proposition of law that normally this Court does not mettle with the findings of fact reached by the primary Courts or a High Court when it is satisfied that the findings of the Courts below are reasonable and are not arrived at by disregarding of any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible.
It is also a settled principle of law that this Court would not normally go behind a concurrent finding of fact recorded by the Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and rule of the Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. In the interest of justice and fairplay we have re-examined the record and consequently we do not find any illegality committed by the Courts below while recording the finding against the petitioner with regard to the income of the petitioner. It is also settled principle of law that constitutional jurisdiction is always discretionary in character. He who seeks equity must come with clean hands. The petitioner has to pay maintenance allowance to his own children and it is an admitted fact that he is residing in Qattar since 20 years. It is an admitted fact that maintenance as fixed by trial Court was modified by Appellate Court keeping in view financial position of the petitioner. Quantum of maintenance as fixed by appellate Court considering financial and other circumstances of the petitioner being fair, proper, just and reasonable and based on evidence on record which was upheld by the High Court. The learned High Court had refused to interfere with the finding of fact recorded by Court of competent jurisdiction while exercising constitutional jurisdiction under Article 199 of the Constitution. See Tayyab Khan's case (2000 CLC 558). Therefore, we are not inclined to exercise our discretion in favour of the petitioner as law laid by this Court in Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236). It is also settled law that grant of special leave to appeal from this Court cannot be claimed as of right because essentially it is matter of discretion. See Noora's case (PLD 1973 SC 469) and Fazal Din's case (1971 SCMR 186). In the case in hand, we have examined the evidence available on record with the assistance of the learned counsel for the petitioner. We do not find any infirmity or illegality or any mis-reading of evidence on record by the Courts below.
In view of what has been discussed above we do not find any merit in this petition which is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 1007
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & M. Javed Buttar, JJ.
ROZNAMA HAMDARD--Petitioner
versus
HAMDARD NATIONAL FOUNDATION PAKISTAN, HAMDARD CENTRE, NAZIMABAD-II, KARACHI--Respondent
Civil Petition No. 1376 of 2008, decided on 8.7.2009.
(On appeal from judgment of the Islamabad High Court Islamabad dated 30.7.2008 passed in RFA No. 8/2008).
Trade Mark--
----Restrained from infringing registered trademark "Hamdard"--Publication of a daily newspaper under the name of Hamdard which was challenged--Violation of trademark which is tantamount to deception--Validity--Petitioner's name gives an abrupt impression that it is some publication of Hamdard National Foundation--It certainly is deceptive and so was rightly declared by High Court--Authorities relied upon would not help the petitioner because it is a question of fact which varies from case to case--Held: Name of Roznama Hamdard daily newspaper creates deception--Leave refused. [P. 1008] A
Mr. Ishtiaq Ahmad Raja, ASC for Petitioner.
Mr. Sultan Ahmad Sheikh, ASC and Mr. M.S. Khattak, AOR for Respondent.
Date of hearing: 8.7.2009.
Order
Sardar Muhammad Raza Khan, J.--Roznama Hamdard C/o Maymar Times seeks leave to appeal from the judgment dated 30.7.2008 of Islamabad High Court, whereby, the appeal filed by Hamdard National Foundation Pakistan (respondent) was accepted and their suit was decreed to the extent that the petitioner be restrained from infringing the respondent's registered trademark "Hamdard" by using the same for their publication Roznama Hamdard.
The petitioner initiated the publication of a daily newspaper under the name of Hamdard which was challenged by Hamdard National Foundation Pakistan, Hamdard Centre, Nazimabad-II Karachi, on the ground, that it was a clear violation of their registered trademark Hamdard. That they were publishing two journals by the name of Hamdard Naunehal and Hamdard-e-Sehat. That the name of the petitioner's daily newspaper as Hamdard is a clear violation of respondent trademark which is tantamount to deception. The learned High Court accepted the view and restrained the petitioner from naming their daily newspaper as Hamdard.
We have considered the allegations and counter allegations of the parties in the light of the discussion adhered to by the learned High Court. It brings us to an emphatic conclusion that the petitioner's name gives an abrupt impression that it is some publication of Hamdard National Foundation. It certainly is deceptive and so was rightly declared by the learned High Court. The authorities relied upon would not help the petitioner because it is a question of fact which varies from case to case. In the instant case we have no doubt in our mind that the name of petitioner daily newspaper creates deception.
There being no merit in the petition, it is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 1008
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
MUHAMMAD FAZIL--Petitioner
versus
BASHIR AHMAD and another--Respondents
Crl. Petition No. 116 of 2009, decided on 6.5.2009.
(Against the judgment dated 27.1.2009 passed by the Lahore High Court Multan Bench, Multan, in Cr.A. 388/2003, M.R. No. 573/2003).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 337-F(iv) & 337-L(ii)--Leave to appeal against judgment wherein accused was acquitted--Appreciation of evidence--Co-accused were acquitted by trial Court--Respondent/accused was acquitted by Appellate Court--Statements of eye-witnesses were not in consonance with the contents of FIR as well as the statement of doctor--High Court after re-appraisal of the evidence had come to conclusion that eye-witnesses were not present at the spot--Validity--Respondent/accused was also entitled to acquittal, on the fact that four of his co-accused who had taken part in attack, were found to have been falsely implicated by the same eye-witnesses who deposed against him--Held: Improvements of the witnesses to make oral evidence in accordance with medical evidence causes serious doubt about veracity of such witness--Leave refused. [P. 1012] A
PLJ 1981 SC 835, rel.
Mr. Muhammad Zawar Shah Qureshi, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 6.5.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the impugned order dated 27-1-2009 wherein the appeal of the Respondent No. 1 against his conviction was accepted.
Rs. 1,00,000.00 under Section 544-A Cr.P.C. to the legal heirs of the deceased. Incase of default of payment of compensation he shall have to undergo six months' S.I.
It is pertinent to mention here that learned trial Court had acquitted the aforesaid co-accused of the Respondent No. 1. The Respondent No. 1 being aggrieved filed Criminal Appeal No. 388/2003 in the Lahore High Court, Lahore, whereas the trial Court had sent Murder Reference for confirmation under Section 374 Cr.P.C. Hence the present petition.
(i) That the learned High Court had erred in law to acquit Respondent No. 1 without adverting to the evidence on record and the reasoning of the trial Court which had convicted Respondent No. 1 after appraisal of the evidence on record with cogent reasons.
(ii) That the learned High Court erred in law to disbelieve eye-witnesses namely PW-4 Muhammad Fazal, complainant (uncle of the deceased) and PW-5 Liaqat Ali who had no previous enmity with Respondent No. 1.
(iii) The deceased Rustam Ali and Respondent No. 1 fought with each other on a minor issue as the motive as alleged reveals that the dogs of Respondent No. 1 and deceased started fighting with each other. The deceased in order to save his dog gave sugar cane blow to the dog of Respondent No. 1 due to which they abused each other and consequently Respondent No. 1 and his acquitted co-accused in furtherance of their common intention committed murder of deceased Rustam Ali and injured Basara.
(iv) The learned High Court had also erred in law to acquit the Respondent No. 1 on minor contradictions and improvements in the statement of the eye-witnesses by observing the injuries mentioned by Investigating Officer PW in the inquest report and the injuries mentioned by Doctor, at the time of conducting the postmortem examination of the deceased by PW1 Doctor Muhammad Akhtar.
"(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous ".
The aforesaid judgment is upheld by this Court in various pronouncements. See Muhammad Iqbal's case (1994 SCMR 1923).
"1. Abrasion cm x cm of right clavicle.
Abrasion cm on the dorsom of right hand.
Red contusion 12 x 1.5 cm on the back of left chest 11 cm below the angle of left scapula, horizontal slightly oblique.
Redish contusion mark 5 cm x 1.5 cm on the inner part of left buttock 4 cm from mid-line. "
In case contents of FIR, statement of Dr. Muhammad Akhtar, PW1 and statement of Muhammad Fazal PW-4 (uncle of the deceased) PW-5 Liaqat Ali son of the deceased are put in juxta position, then it is crystal clear that the statements of the eye-witnesses are not in consonance with the contents of the FIR as well as the statement of Doctor Muhammad Akhtar, PW-1. The learned High Court had taken a lot of pain in paras 16 and 17 of the impugned judgment. The learned High Court after re-appraisal of the evidence had come to the conclusion that eye-witnesses were not present at the spot. We have also examined the record. We do not find any infirmity qua the conclusion arrived at the by the learned High Court in the aforesaid paragraphs of the impugned judgment. The learned trial Court had disbelieved the recovery of sota Ex.P4 recovered from Respondent No. 1 in para 32 as well as by the learned High Court in the impugned judgment vide para 19. It is admitted fact that trial Court had acquitted 4 co-accused of Respondent No. 1 after appraisal of the evidence and on the basis of the same evidence Respondent was convicted and sentenced to death without adverting to the well known principle that the statements of such witnesses must be examined with great care and caution coupled with the fact that the eye-witnesses PW-4 and PW-5 were chance witnesses as observed by the learned High Court in the impugned judgment, therefore, testimony of such witnesses must be scrutinized with great care and caution. Respondent No. 1 was also entitled to acquittal, on the fact that four of his co-accused who had allegedly taken part in the attack, were found to have been falsely implicated by the same eye-witnesses who deposed against him. It is settled principle of law that improvements of the witnesses to make the oral evidence in accordance with the medical evidence causes serious doubt about veracity of such witnesses, as law laid down by this Court in Shahbaz Khan Jakhrani's case (1984 SCMR 42) and Muhammad Shafique Ahmed's case (PLJ 1981 SC 835). As ocular evidence contradicts by medical evidence as mentioned above, therefore, learned High Court was justified to acquit Respondent No. 1 which is in consonance with the law laid down in various pronouncements. See Bagh Ali's case (PLD 1973 SC 321), Darey Khan's case (1972 SCMR 578) and Shah Bakhsh's case (1990 SCMR 158). Learned counsel for the petitioner had mainly raised the same contentions which were raised by him before the learned High Court. Learned High Court had discarded the same with cogent reasons in the impugned judgment.
(R.A.) Leave refused.
PLJ 2009 SC 1013
[Appellate Jurisdiction]
Present: Javed Iqbal, Nasir-ul-Mulk & Sayed Zahid Hussain, JJ.
AKHTAR ALI--Petitioner
versus
DIRECTOR FEDERAL GOVERNMENT EDUCATIONAL INSTITUTION FGET DTA, RAWALPINDI and others--Respondents
Civil Petition No. 704 of 2008, decided on 21.4.2009.
(On appeal from the judgment dated 19.3.2009 of the Federal Service Tribunal, Islamabad passed in Appeal No. 23(P)(CS) of 2003).
Removal From Service (Special Powers) Ordinance, 2002--
----S. 3(1)(b)--Constitution of Pakistan, 1973--Art. 212(3)--Quantum of punishment--Civil servant--Habitually absent from duty--Suspension was extended being absent from duty--Civil servant had unblemished service record due to involvement in case he absented from duty--Removal from service, appear to be too harsh and dispropertionate--Competent authority had discretion to dismiss or remove from service or compulsorily retire from service--Validity--S. 3(i)(b) of Removal from Service Ordinance, deals with inefficiency of a person in Govt. Service or being habitually absent from duty without prior approval of leave--But a person guilty of misconduct or a person who is corrupt have been dealt with separately--While imposing penalty the competent authority is such expected to keep in mind the gravity and severity of the allegations and past conduct of the person--Removal from service of the civil servant was not only option for the competent authority--He could be awarded other penalty of lesser implications--Held: While hearing petition under Art. 212(3) had been exercising its jurisdiction in appropriate cases of converting its jurisdiction in appropriate cases of converting the penalty found not commensurate to nature of the charges--Further held: Civil servant who had a long unblemished service of about 17 years had by force by circumstances in a case in which he was latter on acquitted been prevented from performing his duty as teacher--He was absent from duty entailing some penalty under law--His removal from service was to harsh a penalty for him--Leave accepted. [P. 1015 & 1017] A, C & D
Service Tribunals Act, 1973--
----S. 5--Appeal before Federal Service Tribunal--Power of Tribunal on appeal to confirm, set aside, vary or modified the order appeal against--Held: No dearth of precedents where tribunal modified the orders of departmental authority by converting penalties and substituting order in place of removal from service. [P. 1016] B
2008 PLC (CS) 77, 2005 SCMR 638, 2005 SCMR 752, 2006 SCMR 60, 2006 SCMR 1018, 2006 SCMR 815, 2007 PLC (CS) 319 & 2008 PLC (CS) 428, rel.
Mr. Amjad Ali, ASC for Petitioner.
Agha Tariq Mehmood, D.A.G. for Respondents.
Date of hearing: 21.4.2009.
Judgment
Sayed Zahid Hussain, J.--Akhtar Ali petitioner was Trained Under Graduate Teacher (TUGT) F.G High School (PRC), Mardan who on 19.8.2000 absented from duty. He was suspended on 27.9.2000 which suspension was extended latter on and was issued notice dated 19.4.2001 for being absent from duty. Since no reply was received show-cause-notice dated 06.7.2001 was issued calling for reply thereto within 15 days. As this notice also remained un-responded, a final show-cause-notice dated 04.9.2001 was issued in terms of section 3 (i)(b) of Removal From Service (Special Powers) Ordinance, 2000. He was eventually removed from service on 23.10.2001. Departmental appeal for reinstatement in service was made by him on 18.11.2002. Having no response to the same, he approached the Federal Service Tribunal through an appeal dated 06.2.2003, which was dismissed by the learned Federal Service Tribunal, Islamabad on 19.3.2008. Aggrieved thereby he has invoked the jurisdiction of this Court under Article 212(3) of the Constitution of the Constitution of Islamic Republic of Pakistan. In that notice to respondents was ordered to be issued by this Court to consider the quantum of punishment in the matter.
The learned counsel for the petitioner and the learned Deputy Attorney General have been heard primarily to consider as to whether the penalty of removal from service was justified in the facts and circumstances of the case. The contention of the learned counsel for the petitioner is that the absence of the petitioner from duty was due to the circumstances beyond his control as he had been involved in a murder case in case FIR No. 511 dated 19.8.2000 registered under Section 302/34 PPC, which fact was brought to the notice of the Headmaster of the School informing that due to threat to his life it had become impossible for him to attend the school and he may be granted leave with effect from 21.8.2000. It is contended that he was acquitted in that case on 13.11.2002 by the trial Court on the basis of compromise. Whereafter, he approached his school when he learnt of his removal from service and agitated the matter, departmentally and thereafter before the learned Tribunal. According to him the view taken by the learned Tribunal in the case was not based on correct appreciation of the matter. He places reliance upon Auditor-General of Pakistan and others versus Muhammad Ali and others, (2006 SCMR 60) and Abdul Hassan versus Secretary, Education (S&L) N.W.F.P. and 3 others, (2008 PLC (C.S.) 77) to contend that harsh penalty of removal from service deserved to be reduced to some minor penalty.
The learned Deputy Attorney General, Pakistan, however, supports the order made by the departmental authority and the judgment of the Federal Service Tribunal and seeks dismissal of the petition.
The factual background is not in dispute. We have considered the matter from various angles and find that the petitioner who got employment as Teacher in the year 1984, had unblemished service record but due to involvement in the case he absented from duty with effect from 19.8.2000 due to threat to his life. He had made an application to the Headmaster of the School also to this effect. The notices dated 19.4.2001, 6.7.2001 and 4.9.2001 remained un responded having not been received by him. These were the circumstances preventing him from continuing to perform his duty as a Teacher. As soon as he was acquitted by the Court on 13.11.2002 he approached the authorities and agitated the matter for his reinstatement within the Department and before the Tribunal. No doubt he remained absent but the punishment he has been awarded i.e. removal from service, appear to be too harsh and disproportionate. It may be observed that while proceeding against a person under Section 3 of the Removal From Service (Special Powers) Ordinance 2000, the competent authority had the discretion to dismiss or remove from service or compulsorily retire from service, or reduce the person concerned to lower post or pay scale or impose one or more minor penalties. It may be observed that Clause (a) of Section 3(1) of the Ordinance deals with the inefficiency of a person in Government service or being habitually absent from duty without prior approval of leave. But a person guilty of misconduct (clause b) or a person who is corrupt (clause c) etc. have been dealt with separately. While imposing penalty the competent authority is thus expected to keep in mind the gravity and severity of the allegations and past conduct of the person concerned. The petitioner's removal from service was not the only option for the competent authority. He could be awarded other penalty of lesser implications. When he filed appeal before the Federal Service Tribunal even the learned Tribunal did not advert to this aspect of the matter although under Section 5 of the Service Tribunals Act, 1973, the Tribunal had power on appeal to "confirm, set aside, vary or modify the order appeal against". There is no dearth of precedents where the Tribunal modified the orders of the departmental authority by converting the penalties and substituting order in place of removal from service. For instance in Abdul Hassan versus Secretary, Education (S&L) NWFP and 3 others, (2008 PLC (C.S.) 77), the NWFP Service Tribunal ordered the conversion of dismissal order from service with that of compulsory retirement. Incidentally, in that case also the appellant had been involved in a murder case who had been sentenced to imprisonment for life and after undergoing the sentence, years after his dismissal from service he filed appeal before the Service Tribunal and the Tribunal altered the penalty. The petition for leave C.P. No. 249-P of 2007 filed by the Government of NWFP against the order of the Tribunal was dismissed by this Court on 24.12.2008. In Shamim Ahmed Kazmi versus Pakistan International Airlines Corporation and another, (2005 SCMR 638), the Federal Service Tribunal had ordered the conversion of dismissal from service into compulsory retirement which was maintained by this Court by dismissing the petition thereagainst. In Agriculture Development Bank of Pakistan through Chairman and another versus Akif Javed, (2005 SCMR 752), the penalty of dismissal from service was modified by the Federal Service Tribunal to compulsory retirement where-against the petition was dismissed by this Court. In Auditor-General of Pakistan and others versus Muhammad Ali and others, (2006 SCMR 60), removal from service order was converted into reduction in time scale by the Federal Service Tribunal where against the appeal of the Department was dismissed by this Court. Reference may also be made to Javed Akhtar and others versus Chief Engineer, Highway Department and others, (2006 SCMR 1018). As to the scope of powers of the Tribunal under the Service Tribunals Act and of this Court under Article 212 reference may be made to Islamic Republic of Pakistan versus Dr. Safdar Mahmood, (PLD 1983 SC 100), Water and Power Development Authority, Lahore and 2 others versus Muhammad Yousaf, Test Inspector, (PLD 1996 SC 840), Mian Shafiuddin, Deputy Director and 4 others versus Surat Khan Marri, Director Regional Information Office, Islamabad and 41 others, (1991 SCMR 2216) and Aijaz Nabi Abbasi versus Water and Power Development Authority and another, (1992 SCMR 774).
Even this Court while hearing petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, had been exercising its jurisdiction in appropriate cases of converting the penalty found not commensurate to the nature of the charges. In Inspector-General (Prisons) NWFP Peshawar and another versus Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others, (2006 SCMR 815), the judgment of the Tribunal was modified to convert the penalties imposed by the departmental authority. In Abdul Sattar and another versus Director Food, Punjab and others (2007 PLC (C.S.) 319), this Court ordered the conversion of penalty of dismissal from service into compulsory retirement from service. In Muhammad Ali S. Bukhari versus Federation of Pakistan through Establishment Secretary, Islamabad and 2 others, (2008 PLC (C.S) 428), modifying the judgment of the learned Tribunal this Court ordered the conversion of penalty of compulsory retirement into reduction of two steps in time scale for a period of two years.
The object of making reference to the above cited precedents is that not only the Tribunal while dealing with an appeal under Section 5 of the Act has the power to vary and modify the order of departmental authority; this Court while sitting in appeal over the judgment of the learned Tribunal can also exercise such a power to meet the ends of justice dependent upon of course the facts and circumstances of each case.
In the instant case as noted above the petitioner who had a long unblemished service of about 17 years had by force of circumstances (involvement in a case in which he was latter on acquitted) been prevented from performing his duty as Teacher. He was absent from duty entailing some penalty under the law. His removal from service in the circumstances was too harsh a penalty for him. We had therefore, on conclusion of hearing passed the following short order:--
"For the reasons to be recorded separately, after having heard the learned counsel for the parties at length, we are inclined to convert this petition into appeal which is accepted and penalty of removal from service is converted to that of compulsory retirement."
These are the reasons for the above order accepting the appeal partially with no order as to costs.
(R.A.) Appeal accepted.
PLJ 2009 SC 1018
[Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain &
Muhammad Sair Ali, JJ.
SHARAFAT ALI KHAN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 46 of 2005, decided on 30.6.2009.
(On appeal from the judgment dated 9.1.2003 of the Lahore High Court, Lahore passed in Crl. A. No. 4-J/1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 324--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Assailed--Plea of minority--Contention--Being a minor (16 years of age at time of commission of offence) his sentence of death was liable to be converted into life imprisonment--Validity--Supreme Court found no difficulty in reaching the conclusion about involvement of the accused in commission of offence with premeditation as a day before the occurrence, the accused had gone to the shop and had manifested his intentions--It was a day time, occurrence supported by eye-witnesses leaving no doubt whatsoever about his involvement in commission of offence--Indeed before Supreme Court at the time of grant of leave against conviction was not pressed and it was only sought to be urged that the sentence of death can be converted into life imprisonment on the ground of minority--Held: Sentence of the accused should be converted into life imprisonment by keeping intact the conviction and other sentence--Appeal was partly allowed. [Pp. 1021 & 1022] A & E
Quantum of sentence--
----Context of age of accused--Appellant was indeed of age of 16 years--Question of minority of the accused--Benefit of--At time of recording of statement of accused u/S. 342, Cr.P.C. his age was recorded as twenty years, whereas the incident was taken place on 13.7.1994, the age of the accused thus reckoning back to the date of occurrence was about 16 years--Validity--Considering the quantum of sentence in the context of age of the accused, the age recorded by Court on its record at the time of recording statement u/S. 342 of Cr.P.C. was taken note of and benefit of tender age was extended to the accused convict--Accordingly his death sentence was substituted by life imprisonment.
[P. 1021] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 324--Conviction and sentence recorded against accused by trial Court--Plea of minority--Qisas is not enforceable--An offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable--Held: Court in a case of Qatl-i-Amd award the offender the punishment of death or imprisonment of life by way of tazir--Plea of minority of the offender, he was awarded imprisonment for life instead of death penalty. [P. 1022] C & D
1993 SCMR 2377, 1999 SCMR 403 & PLJ 2000 SC 965; 2004 SCMR 4, 1999 SCMR 2203, 2003 SCMR 855, 2000 SCMR 338, 2007 SCMR 1413 & 2009 SCMR 502, ref.
Mr. Muhammad Masood Chishti, ASC for Appellant.
Sahibzada M.A. Amin Mian, Addl. D.P.G. Punjab for Respondent.
Date of hearing: 15.5.2009.
Judgment
Sayed Zahid Hussain, J.--Sharafat Ali Khan appellant was charged for the commission of offence u/S. 302(b) and S. 324 PPC for the murder of Muhammad Ishaq deceased. He pleaded not guilty, but after trial, was convicted by the learned Addl. Sessions Judge, Lahore vide judgment dated 17.9.1998 and sentenced to death u/S. 302 (b) PPC. He was also convicted u/S. 324 PPC and sentenced to seven years R.I. with a fine of Rs.5,000/- and was also ordered to pay compensation amounting to Rs.10,000/- u/S. 544-A Cr.P.C. to the legal heirs of the deceased. His appeal there against and Murder Reference No. 390 of 1998 came up before the learned Division Bench of the Lahore High Court, Lahore, who dismissed his appeal and answered the reference in-affirmative. This was vide judgment dated 9.1.2003. On his Jail Petition No. 25 of 2003, leave was granted by this Court on 9.2.2005, which order reads as follows:
"The learned counsel for the petitioner states that he does not press this petition against conviction of the petitioner under Sections 302(b) and 324 PPC and would confine his submissions only to the conversion of death sentence to life imprisonment on the ground of minority of the petitioner who was 16 years of age at the time of commission of offence. Leave is granted to consider the question of quantum of sentence of the convict-petitioner."
The learned counsel for the appellant has though attempted to argue the matter on other aspects of the case yet, his main focal point was that the appellant being a minor (16 years of age at the time of commission of offence) his sentence of death was liable, to be converted into life imprisonment. In order to show that the appellant was indeed of the age of 16 years, he has made a reference to the judgment of the Trial Court and also of the High Court, where such an assertion was noted but had not duly been adverted to. He also makes reference to the age of the appellant mentioned by the Trial Court at the time of recording of his statement u/S. 342 Cr.P.C. He has cited Sohail Iqbal v. The State (1993 SCMR 2377), Muhammad Iqbal v. The State (1999 SCMR 403) and Muhammad Afzal v. State (PLJ 2000 SC 965) in support of his contention.
The learned Addl. Prosecutor General, Punjab, on the other hand supported the judgment of conviction passed by the Trial Court and maintained by the learned High Court. According to him, the question of minority of the appellant cannot be raised before this Court.
The occurrence that led to the conviction of the appellant as para phrased by the High Court was that:--
"According to Riaz Ahmad, he was resident of Walton and was running a General Store in R.A. Bazar. His father Muhammad Ishaq and son Ejaz Ahmad also worked with him. According to complainant on 13.7.1994 Sharafat Ali Khan resident of village Manki, District Sawbi came to his shop and purchased a pistol cover for Rs.150/-. Sharafat Ali Khan returned next day, and wanted to give back pistol cover, he had purchased earlier. The complainant stated that he informed Sharafat Ali that pistol cover could be exchanged but price paid would not be refunded. Sharafat Ali insisted for return of sale price and thereafter left the shop. According to the complainant he alongwith his father and brother was present at his shop when at 8.15 a.m. Sharafat Ali came at the shop and fired thrice with 30 bore pistol at Ejaz Ahmad son of the complainant. Two shots were hit on the person of Haji Muhammad Ishaq, father of the complainant. Several shopkeepers and others rushed to the spot. Sharafat Ali Khan escaped but was overpowered by Muhammad Younas. Sharafat Ali was handed over to police. Haji Muhammad Ishaq died at the spot while Ejaz Ahmad P. W. was removed to hospital."
Before the Trial Court, Abdul Latif PW-1, who identified the dead body of Muhammad Ishaq (deceased), Muhammad Ajmal PW-2, the witness of recovery of blood stained earth, five crime empties and last worn clothes, Sheikh Muhammad Munir PW-3, who saw the appellant running away after the crime, Abdul Shakoor SI PW-4, who recorded the FIR, Muhammad Akram ASI PW-5, who took crime property in custody, Ejaz Ahmad PW-6, who was injured in the same incident, Muhammad Sharif PW-7, who escorted the dead body of Muhammad Ishaq (deceased], Riaz Ahmad complainant PW-8, Muhammad Younas PW-9, who apprehended the accused, Dr. Muhammad Arif PW-10, who conducted Post Mortem and Ali Hassan Randhawa SI PW-11, who conducted the investigation, were produced by the prosecution in order to bring home the guilt to the accused.
The statement of Sharafat Ali appellant u/s. 342 Cr.P.C. was recorded thereafter. He denied the case set up against him by the prosecution and stated that he was apprehended from R.A. Bazar, while he was wandering in search of livelihood in poor condition and shabby dress and that he was innocent.
The unshaken testimony of the prosecution witnesses led to the conviction of the appellant. On perusal of the evidence the learned Division Bench of the High Court dismissed his appeal and confirmed the death sentence. We find no difficulty in reaching the conclusion about the involvement of the appellant in the Commission of offence with premeditation as a day before the occurrence, he had gone to the said shop and had manifested his intentions. It was a day time, occurrence supported by the eye-witnesses leaving no doubt whatsoever about his involvement in the commission of offence. Indeed before this Court at the time of grant of leave petition against conviction was not pressed and it was only sought to be urged that the sentence of death may be converted into life imprisonment on the ground of minority.
Adverting to the aspect of quantum of sentence on which the leave was granted, it may be observed that in Sohail Iqbal v. The State (1993 SCMR 2377) while considering the quantum of sentence in the context of age of the accused, the age recorded by the Court on its record at the time of recording statement u/S. 342 Cr.P.C. was taken note of and benefit of tender age was extended to the accused convict. Accordingly his death sentence was substituted by life imprisonment.
In Muhammad Afzal v. State (PLJ 2000 SC 965) though the conviction was upheld, the appellant/accused was given benefit of his tender age and it was observed that the appellant, owing to his young age appeared to have not considered the serious consequences of his act. Accordingly, maintaining conviction, his sentence was converted from death to imprisonment of life and the appeal was partly allowed.
In Iftikhar-ul-Hassan versus Israr Bashir and another, (PLD 2007 SC 111), it was held that "The difference of punishment for Qatl-i-Amd as qisas and tazir provided under Section 302(a) and 302(b), PPC respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under Section 302(b), PPC and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of `Qatl-i-Amd', keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR, 2203, Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338." Keeping in view the plea of minority of the offender, he was awarded imprisonment for life instead of death penalty.
In Muhammad Riaz and another v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-i-Amd it was observed "No doubt, normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502).
In the instant case, at the time of recording of statement of appellant u/S. 342 Cr.P.C, his age was recorded as twenty years. The said statement was recorded on 25.6.1998 whereas the incident in this case took place on 13.7.1994, the age of the appellant thus reckoning back to the date of occurrence was about 16 years. Before the Trial Court this aspect was pressed into service however no definite finding was given. Even before the High Court this point was once again urged but did not receive serious consideration by the learned Division Bench. We find from the perusal of the petition sent by him from Jail addressed to the Registrar of this Court, wherein again he appealed for his plea of tender age to be kept in sight. Keeping all such aspects in view and the circumstances of the case, on due consideration, we find ourselves inclined to take the view that the sentence of the appellant should be converted into life imprisonment by keeping intact the conviction and other sentences. He will have the benefit of S.382-B Cr.P.C.
In view of the above the appeal is partly allowed to the extent of modification of sentence.
(R.A.) Appeal allowed.
PLJ 2009 SC 1023
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
NAZIR AHMAD--Petitioner
versus
MUHAMMAD IQBAL and another--Respondents
Crl. P. No. 212 of 2009, decided on 25.5.2009.
(Against the judgment dated 3.4.2009 passed by the Lahore High Court Multan Bench, Multan, in Crl. Appeal No. 478/2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-A(i)(ii), 337-F(i)(ii), 337-L(ii), 460, 109, 148 & 149--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--High Court acquitted him from the charge by giving the benefit of doubt--Challenge to--Accused/respondent formed unlawful assembly and had committed lurking house tress-pass by night into the house of prosecution and committed qatl-e-amd--Occurrence had taken place at midnight--Accused were not nominated in FIR--Identified during identification parade--Test of identification parade has important value--Validity--In case the identification parade was conducted in accordance with law and accused were identified by the witnesses then that was the basic factor to connect the accused with commission of offence--High Court had disbelieved ocular account with cogent reasons--Held: Role of accused was not described by the eye witnesses at time of identification parade due to which High Court had come to conclusion after discussing each and every piece of evidence that such type of identification lost its value and is not relied upon law laid down by Supreme Court. [P. 1028] A
1988 SCMR 557, 1995 SCMR 557, 1995 SCMR 127 &
2007 SCMR 670, rel.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-A(i)(ii), 337-F(i)(ii), 337-L(ii), 460, 109, 148 & 149--Conviction and sentence recorded against accused by trial Court--High Court acquitted the accused by giving them benefit of doubt--Identification parade--Whether the persons named were identified by their role in crime or as individuals, friends or as foes--Validity, if it was identification of their role, then it should have been specified to complete the picture of the crime and reinforce the case against them for commission of the crime. [P. 1029] B
1985 SCMR 721 rel.
Identification parade--
----Delay of 24 days in identification parade--Validity--Identification parade was conducted after 24 days after their arrest and possibility cannot be excluded that the witnesses had seen them--Supreme Court did not place any reliance on such identification parade.
[P. 1029] C
PLD 1975 SC 695 & PLD 1981 SC 142, rel.
Identification in Court--
----Requirements of law--Identification in Court after considerable delay i.e. after the incident, of a person produced in Court cannot satisfy the requirement of law for proving identity of a culprit. [P. 1029] D
1992 SCMR 2088 & PLD 2001 SC 564, rel.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324, 337-A(i-ii), 337-F(i-ii), 337-L(ii), 460, 148, 149 & 109--Conviction and sentence recorded against accused by trial Court--Acquitted by High Court--Occurrence had taken place at midnight--Accused were not nominated in FIR--Identification was based on pandemonium of the moment--Accused with muffled faces at midnight committed offence, identification of accused by build and stature was not possible, coupled with the fact that identification of the accused at mid night in electric bulb light was not safe because changes of error in identification had become greatly increased when identification was based of pandemonium of the moment--Held: Testimony of sense cannot be implicity relied as the person or persons who select dark hours of the midnight with object to commit crime in such manner would take all possible care to cancel their identify in such cases suspicion also falls on 9 person who had a reason to do so--An order of acquittal was to be interfered with only, if the same was arbitrary capricious, fanciful and against the record--Supreme Court did not any infirmity or illegality in impugned judgment--Leave refused. [Pp. 1029 & 1030] E & I
Identification parade--
----Joint identification parade--Identification parade of each accused should be held separately otherwise confusion would be created--Validity--Identification parade was held jointly of all the accused, therefore, High Court was justified to set aside the conviction of the accused which was in consonance as law--Held: High Court admitted that identification parade should have been held accordingly to prescribe rules--Even High Court had admitted in its judgment that identification parade was not held strictly accordingly to prescribed rules and it was due to the fact that magistrate not properly gone through the prescribed rules and authorities on subject, therefore, High Court was justified to ignore the evidence regarding identification parade. [P. 1029] F
Identification parade--
----Identification parade was conducted fairly and properly and it becomes the duty of the prosecution to adopt such measures so as to eliminate the possibility of identifying witnesses to see the accused after commission of crime till identification parade was held immediately after arrest of the accused persons was as early as possible. [P. 1030] G
2001 SCMR 424, rel.
Ocular account--
----Injuries of prosecution witness were only indication of his presence at the spot but were not affirmative proof of his credibility and trust. [P. ] H
1981 SCMR 795 & 2007 SCMR 670, rel.
Mr. Razzaq A. Mirza, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 25.5.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the impugned judgment dated 3-4-2009 whereby the learned High Court accepted the appeal of the respondent against his conviction.
(a) one of the accused was of whitish colour, strongly built with smaller height aged about 30/32 years carrying 12-bore gun;
(b) the second was again of whitish colour, smart body aged about 30/35 years armed with iron rod; and
(c) the third one was of taller height, strongly built aged 30/35 years carrying 120 bore pistol.
They also inflicted injuries to Muhammad Rafique, Bashir Ahmad, Sabir Hussain, Mst. Kausar Bibi, Nazar Muhammad and Noor Muhammad. In their self defence the complainant party also inflicted injuries to the accused. On hearing the noise, other persons of the village also attracted to the scene of the occurrence and during scuffle, the accused persons fled away by firing. The contents of the FIR also reveal that they did not know their names at the time of incident and at the time of submitting the complaint to the police with regard to the incident. They knew their names after identification parade which was conducted after about 24/25 days of the occurrence. The investigating agency, after completing the legal formalities submitted the challan against the respondent and his co-accused before the competent Court. The learned Additional Sessions Judge, Sahiwal, convicted and sentenced Muhammad Iqbal, respondent, alongwith his convicted co-accused, Ahmad Ali, vide its judgment dated 19-7-2004 as follows:--
Under Section 148 PPC
One year R.I. each
Under Section 302(b) 149 PPC
imprisonment for life each, plus a fine of Rs. 50,000/-each and in default to further suffer R.I. for five years each
Under Section 544-A Cr.P.C
to pay compensation of Rs. 50,000/- each to the legal heirs of the deceased, in default to further suffer R.I. for six months each;
Under Section 324/140 PPC
to under go seven years R.I. each for attempting to commit murder of Muhammad Rafiq and Nazar Muhammad PWs;
Under Section 337-A(i), 337-F(i), 337-L(ii) PPC
to suffer one year R.I. each for causing injuries to Nazar Muhammad and Muhammad Rafiq. Further to pay Rs. 10,000/- each as Daman for causing said injuries, in default to further suffer six months R.I., each; on recovery of Daman, the same to be given to the injured Nazar Muhammad and Muhammad Rafiq, in equal shares.
Benefit of Section 382-B Cr.P.C. was extended and all the sentences were ordered to run concurrently.
Their co-accused Syed Fateh Shah, was however, acquitted of the charge against him and their other co-accused, namely, Muhammad Ali alias Mami and Abdul Ghafoor since have been declared as absconders.
Respondent (Muhammad Iqbal) being aggrieved filed Criminal Appeal No. 478/2004 in the Lahore High Court, Multan Bench, Multan. The learned High Court allowed his appeal and acquitted him from the charge by giving him the benefit of doubt. Hence the present petition.
(i) The learned High Court had failed to consider the evidence/material on record and acquitted respondent without judicious application of mind.
(ii) Learned High Court had acquitted the respondent by misreading and non reading of the evidence on record.
(iii) The prosecution had proved the case against the respondent beyond any shadow of doubt, therefore, acquittal was not justified.
(iv) The learned High Court had erred in law to discard the statement of the complainant who stated in his statement that he had placed his hands on the heads of the accused persons and these were the actual culprits who had injured PWs and murdered deceased Waryam.
(v) Witnesses had identified the respondent and his other co-accused in Court, therefore, learned High Court had erred in law to discard the statement of the injured witnesses.
(vi) The complainant stated in his statement before the Court that during the incident the accused could not be specifically identified as they have muffled their faces but complainant had observed their features and statures that is why they were subsequently identified by them during the identification parade.
(vii) The identification parade was conducted in accordance with law by PW-12 Rai Liaqat Ali, Civil Judge/Judicial Magistrate who had no enmity with the respondent.
(viii) The learned High Court had erred in law to discard the ocular account furnished by the complainant and other witnesses on surmises and conjectures and also erred in law to discard the identification parade which was conducted in accordance with law.
(i) Ghulam Rasul case (1988 SCMR 557)
(ii) Mahmood Ahmed case (1995 SCMR 127)
(iii) Muhammad Pervez case (2007 SCMR 670)
It is pertinent to mention here that it is not clear from entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes, if it was identification of their role, then it should have been specified to complete the picture of the crime and reinforce the case against them for commission of the crime as law laid down by this Court in Khadim Hussain case (1985 SCMR 721) and affirmed the view taken by the Lahore High Court in Lal Singh case (51 ILR Lah. 396). It is an admitted fact that identification parade was conducted after 24 days after their arrest and possibility cannot be excluded that the witnesses had seen them. We do not place any reliance on this identification parade. See Machia case (PLD 1975 SC 695) and Lal Pasand case (PLD 1981 SC 142). Identification in Court after considerable delay i.e. after the incident, of a person produced in Court cannot satisfy the requirement of law for proving identity of a culprit. See Asghar Ali's case (1992 SCMR 2088) and Sohail Abbas case (PLD 2001 SC 546). It is admitted fact that accused with muffled faces at midnight committed offence, identification of accused by build and stature is not possible, coupled with the fact that identification of the accused at mid night in electric bulb light is not safe because changes of error in identification has become greatly increased when the identification is based on pandemonium of the moment, therefore, testimony of sense cannot be implicitly relied as the person or persons who select dark hours of the midnight with object to commit crime in such manner would take all possible care to conceal their identity in such cases suspicion also falls on a person who had a reason to do so. See Bashir etc. vs. the State (1995 SCMR 276). The learned High Court was justified to discard the identification evidence which is in consonance as law laid down in Maula Dad's case (AIR 1925 Lah. 426). It is settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created. In the case in hand identification parade was held jointly of all the accused, therefore, learned High Court was justified to set aside the conviction of the respondent which is in consonance as law laid down in Lal Pasand case (supra). It is an admitted fact that learned High Court admitted that identification parade should have been held according to the prescribed rules. We have also examined the record. Even the learned High Court had admitted in its judgment that the identification parade was not held strictly according to the prescribed rules and it was due to the fact that the Magistrate not properly gone through the prescribed rules and authorities on the subject, therefore, the learned High Court was justified to ignore the evidence regarding identification parade. It is the settled proposition of law that the identification parade was conducted fairly and properly and it becomes the duty of the prosecution to adopt such measures so as to eliminate the possibility of identifying witnesses to see the accused after the commission of crime till the identification parade is held immediately after arrest of the accused persons as early as possible as law laid down by this Court in Imran Ashraf case (2001 SCMR 424). The learned High Court had considered each and every piece of evidence regarding identification and has come to the conclusion that the same was not worth reliable as is evident from paragraphs 8 and 9 of the impugned judgment. The learned High Court has disbelieved the ocular account while discussing each and every piece of evidence as is evident from the paragraphs 7 & 10 of the impugned judgment. It is settled law that injuries of PW are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed case (1981 SCMR 795) and Muhammad Pervez case (2007 SCMR 670). It has time and again been held by this Court that an order of acquittal is to be interfered with only, if the same is arbitrary, capricious, fanciful and against the record. Keeping in view this background, it cannot, by any stretch of the argument, be described that the impugned judgment suffers from any of the aforesaid blemishes.
(R.A.) Leave refused.
PLJ 2009 SC 1030
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Muhammad Moosa Khan Leghari & Muhammad Sair Ali, JJ.
KARIM NAWAZ--Appellant
versus
STATE--Respondent
Crl. Appeal No. 228 of 2006, decided on 23.4.2009.
(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan dated 27.1.2006 passed in Crl. A.No. 605 of 2000 and M.R. No. 05 of 2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 302(c)--Conviction and sentence recorded against accused by trial Court--High Court converted the sentence from
Ss. 302(b), to S. 302(c) of PPC and reduced the sentence of accused--Challenge to--Caused of murder and causing injuries to ladies including deceased was admitted--Plea of grave and sudden provocation causing the murder of deceased was accepted--Validity--Plea of self defence raised against the ladies who according to appellant himself were armed with sotas was neither plausible nor comprehensible to justify the accused to resort to direct firing--Appeal was dismissed. [P. 1033] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 302(c)--Conviction and sentence recorded against accused by trial Court--High Court converted the sentence from
S. 302(b) to S. 302(c), PPC with regard to charge of murder and reduced the sentence of the accused--Blood stained earth was taken from the house of deceased--Medical evidence including postmortem report was supported the case of prosecution--Held: When the appellant himself admitted to have fired upon deceased, though claiming to have done so in self defence--After killing deceased, he by scalling over the wall erected in between his house and that of the deceased which was situated adjacent to the house of the appellant, he reached in Courtyard and started indiscriminate firing upon the ladies, which resulted in death of lady and injuries to three others--High Court has rightly observed that appellant caused the death and also injured three innocent women without any rhyme or reason--Appeal was dismissed. [P. 1033] B
Mr. Altaf Ibrahim Qureshi, ASC for Appellant.
Syed Amanat Ali Bukhari, D.P.G., Pb. for State.
Date of hearing: 23.4.2009.
Judgment
Muhammad Moosa Khan Leghari, J.--This appeal is directed against the judgment dated 27.01.2006 passed by Lahore High Court, Multan Bench, Multan.
The appellant alongwith acquitted accused Mst. Rukhsana Bibi was sent up to stand trial in a case F.I.R. No. 164 of 1999, Police Station, Bohar Gate, Multan, registered on 25.08.1999 on the complaint of Muhammad Akram. The appellant alongwith the acquitted accused was charged for causing Qatl-e-Amd of Muhammad Bilal and Mst. Rabia Bibi on 28.08.1999 and attempting to cause murder of Mst. Tasleem Bibi, Mst. Eram Bibi and Mst. Hina Bibi by causing injuries, besides committing the trespass of their house.
In order to prove the case, prosecution examined 14 witnesses which included the complainant, namely, P.W. Muhammad Akram, Intizar Hussain and Mst. Tasleem Bibi and the two medical Officers.
In his statement recorded under Section 342 Cr.P.C. the appellant stated that on the fateful day when he reached his house at midnight he was attracted by the commotion raised by his wife in the Baittak. He broke open the door and noticing the presence of deceased Muhammad Bilal he fell provoked and losing self control fired upon deceased Muhammad Bilal with the pistol lying there. He further stated that after hearing the cries Mst. Rabia Bibi and other women also appeared there duly armed with sota and wanted to kill him. Thus exercising the right of self defence he fired upon them. The appellant went on to say that he himself appeared before the police, produced his licensed, pistol and narrated the true facts to the police.
On conclusion of trial the appellant was convicted in the following terms:--
(i) Under Section 302 (b) PPC death on too counts for committing the murder of Bilal and Mst. Rabia Bibi with a direction to pay Rs. 1,00,000/- each as compensation, in default to undergo R.I. for 6 months.
(ii) Under Section 324 PPC imprisonment R.I. for 7 years and payment of Rs.20,000/- Daman on account of three counts for attempting to commit Qatl-e-Amd of Mst. Tasleem Bibi, Mst. Erum Bibi and Mst. Hina Bibi.
(iii) Under Section 449 PPC R.I. for five years with a fine of Rs.5,000/- each in default thereof to suffer S.I. for two months.
On appeal learned Lahore High Court, Multan Bench while accepting the defence plea of grave and sudden provocation raised by the appellant converted the sentence from 302 (b) PPC to 302 (c) PPC with regard to charge of murder of Muhammad Bilal and reduced the sentence of the appellant, to the sentence already undergone by him. However, the sentence of death awarded to the appellant on the charge of causing murder of Mst. Rabia Bibi was upheld. The sentence for causing injuries to Mst. Tasleem Bibi as awarded by the trial Court was also maintained.
Vide order dated 13.03.2006, leave was granted to consider the question as to whether in the circumstances of the case lesser penalty was warranted.
Learned counsel for the appellant contended that the motive as setup by the prosecution was not proved and that the complainant party was guilty of concealing the facts about the injuries sustained by the appellant.
Conversely, learned Deputy Prosecutor General, Punjab supported the impugned judgment, arguing that the appellant did not deny the murders, and the plea of self defence against the murder of Mst. Rabia Bibi was an after thought.
We have given our anxious consideration to the arguments and have examined the material placed on record. The perusal of the statement made by the appellant under Section 342 Cr.P.C. adequately reveals that he has not denied the commission of offence. He admitted having caused the murder of Muhammad Bilal and causing injuries to the ladies including deceased Mst. Rabia Bibi. He further stated that he acted under grave and sudden provocation and in self, defence. The plea of grave and sudden provocation causing the murder of deceased Muhammad Bilal was thus accepted by Lahore High Court, Multan Bench and the sentence awarded to the appellant for causing the murder of Muhammad Bilal was reduced by altering the conviction. However, the plea of self defence raised against the ladies who according to the appellant himself were armed with sotas is neither plausible nor comprehensible to justify the appellant to resort to direct firing. It was observed by learned Lahore High Court that the second part of occurrence in which deceased Mst. Rabia Bibi lost her life and Mst. Tasleem Bibi, Mst. Erum Bibi and Mst. Hina Bibi sustained injuries took place in their house i.e. the house of the complainant party. The bloodstained earth was also taken from the house of the deceased. Medical evidence including the postmortem report was supportive of the case of the prosecution. So far as the injuries sustained by the appellant are concerned, would not in any way, constitute a mitigating circumstance in the peculiar circumstances of the case to award lesser penalty. Particularly when the appellant himself admitted to have fired upon the deceased, though claiming to have done so in self-defence. Indeed the appellant acted in a desparate manner. After killing Muhammad Bilal, he by scaling over the wall erected in between his house and that of the deceased which was situated adjacent to the house of the appellant, he reached in the Courtyard and started indiscriminate firing upon the ladies, which resulted in death of Mst. Rabia Bibi and injuries to three others.
The Lahore High Court has rightly observed that the appellant caused the death of Mst. Rabia Bibi and also injured three innocent women without any rhyme or reason.
We are unable to persuade ourselves to differ from the view taken by learned Lahore High Court, Multan Bench. There appear no cogently plausible circumstances to mitigate the sentence. The appeal being without merit is, therefore, dismissed. Consequently, the impugned judgment of Lahore High Court is upheld.
(R.A.) Appeal dismissed.
PLJ 2009 SC 1034
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
MAZHAR HUSSAIN--Petitioner
versus
STATE--Respondent
Crl. P. No. 222 of 2009, decided on 27.5.2009.
(Against the judgment dated 26.3.2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 35 of 2002 and Murder Reference No. 434 of 2004).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Conviction of death sentence was converted into life imprisonment on two counts--Double murder--Plea of self defence--Two persons were murdered by inflicting fire-arm injuries from his weapon--Injuries were sustained by deceased on vital parts--Validity--Right of self defence does not extend to causing of death of two persons at a time with fire-arm--Injuries inflicted to the deceased do not bring the case of accused within the four corner of self defence to extent that the petitioner had not exceeded his right of self defence which otherwise on account of firing proves both the mens rea and actus runs on the part of the petitioner--Accused had no justification to take life of two persons by using fire arm--Prosecution was found aggressor, thus the accused had exceeded the right of private defence--Sentence of life imprisonment in two counts with benefit of S. 382-B, Cr.P.C. awarded by High Court would not be interfered with by Supreme Court--Leave refused. [P. 1038] A
Right of Private Defence--
----Justification to alter the sentence of death into life imprisonment--Right of private defence exceeded when petitioner found to have shot dead two deceased while injuries on the accused were not of such not of such nature to take life of two persons--Held: High Court was justified to alter the sentence of death into life imprisonment.
[P. 1038] B
Constitution of Pakistan, 1973--
----Art. 185(3)--Concurrent findings--Leave to appeal--Validity--Supreme Court does not interfere qua concurrent conclusions of the Courts below while exercising power under Art. 185(3) of Constitution.
[P. 1038] C
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Constitutional power--Supreme Court generally does not interfere qua the legal sentence awarded by Courts below while exercising constitutional power under Art. 185(3) of Constitution--Leave refused. [P. 1038] D
Constitutional Jurisdiction--
----Discretionary in nature--Manner of killing of two persons by the petitioner--Supreme Court was not inclined to exercise constitutional power in favour of the accused--No justification to interfere with sentence awarded by High Court--Leave refused. [P. 1038] E
Sardar Muhammad Ishaq Khan, Sr. ASC for Petitioner.
Nemo for State.
Date of hearing: 27.5.2009.
Order
Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the impugned judgment dated 26-3-2009 wherein the appeal of the petitioner against his conviction was partly allowed by converting his death sentence on two counts into life imprisonment on two counts.
Name of the Under sentence
accused Section
Mazhar Hussain 302(b) PPC Death on two counts with compensation of Rs. 100000/- to be paid to the legal heirs of Shahzad and Tanveer Hussain deceased each and in default to pay compensation to further undergo six months R.I. on each count.
Muhammad Ilyas 302(b)PPC Life imprisonment on two counts with compensation of Rs. 100000/- to be paid to the legal heirs of Shahzad Hussain and Tanveer Hussain deceased each and in default to pay compensation to further undergo three months R.I. on each count. Both the sentences were ordered to run concurrently.
It is pertinent to mention here that the learned trial Court had acquitted Wajid Hussain and Azhar Hussain, the co-accused of the petitioner by giving them the benefit of doubt. The petitioner and his acquitted co-accused (Muhammad Ilyas) filed Criminal Appeal No. 35 of 2002 in the Lahore High Court, Rawalpindi Bench, Rawalpindi. The complainant being aggrieved filed Criminal Appeal No. 52/2002 against the acquittal of Wajid Hussain and Azhar Hussain and also filed Criminal Revision No. 28/2002 for enhancement of sentence of co-accused Muhammad Ilyas. The trial Court had also sent Murder Reference No. 434/2004 seeking confirmation or otherwise of the death sentence awarded to Mazhar Hussain, petitioner, under Section 374 Cr.P.C. The learned High Court vide its impugned judgment dated 26.3.2009 converted the death of the petitioner on two counts into life imprisonment on two counts with benefit of Section 382 Cr.P.C. by maintaining the amount of compensation awarded by the trial Court to be paid to the legal heirs of both the deceased and in default thereof he will undergo six months S.I. on each count. However appeal was accepted to the extent of Muhammad Ilyas and his sentence and conviction was set aside. It is pertinent to mention here that the learned High Court dismissed the appeal and revision of the complainant. Hence the present petition.
Learned counsel for the petitioner submits that the learned High Court had disbelieved the prosecution version, ocular account and motive, therefore, it was not justified to convert the death penalty into life imprisonment as the petitioner would be entitled to be acquitted. He further urges that the learned High Court had also reached to the conclusion that the deceased were aggressors and the petitioner acted in the exercise of right of his self defence, therefore, the learned High Court erred in law to convict the petitioner. He further maintains that the reasons given by the learned High Court for exceeding right of self defence are illogical, fanciful and against the settled principles of law.
We have give our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record. The learned High Court had considered the contentions raised by the learned counsel of the petitioner which was rejected by the trial Court with cogent reasons as evident from Para 27 of the judgment of the trial Court which is reproduced herein below:
"Mazhar Hussain accused has admitted in his statement u/S. 243 Cr.P.C. and his written statement u/S. 265-F(5) Cr.P.C. that he murdered Shahzad Hussain and Tanveer Hussain deceased persons by using his right of self defence. From the circumstances of the case, it has become clear that Mazhar Hussain accused became injured during the instant occurrence. Circumstances of the case show that if the deceased persons attacked at Mazhar Hussain accused, even then they had not lethal weapon with them and the injuries sustained by the accused Mazhar Hussain were not of such nature that he could be allowed to murder two persons. It is fully proved that even if accused Mazhar Hussain was attacked by the deceased persons, even then circumstances do not show that life of the accused Mazhar Hussain was in danger. Even if he used his right of self-defence, he could not be allowed to murder two persons. Circumstances show that even if accused Mazhar Hussain used his right of self-defence, be exceeded the same. The guilt of Mazhar Hussain accused is proved on the file beyond any shadow of doubt, therefore, he is convicted for Qatl-e-Amd of Shahzad Hussain and Tanveer Hussain deceased persons u/S. 302(b) PPC. "
The learned counsel for the petitioner has raised the same contentions before the learned High Court. The learned High Court had rejected the same with cogent reasons and converted death penalty of the petitioner into life imprisonment as evident from Paras 13 and 14 of the impugned judgment. It is no doubt that the petition had raised the plea of self-defence since the initiation of criminal proceedings against him but the petitioner had failed to bring on record sufficient material to show that he had not exceeded deliberately the right of private defence/self-defence. It is admitted fact that petitioner had murdered two persons by inflicting fire-arm injuries from his weapon. Injuries were sustained by the deceased on their vital parts. The circumstances and evidence on record do not reveal that right of self-defence does not extend to causing of death of two persons at a time with fire-arm. Injuries inflicted to the deceased do not bring the case of the petitioner within the four corner of self-defence to the extent that the petitioner had not exceeded his right of self-defence which otherwise on account of firing proves both the mens rea and actus runs on the part of the petitioner The petitioner has no justification to take life of two persons by using fire-arm. Keeping in view the circumstances of the case in spite of the fact that complainant was found aggressor, thus the petitioner had exceeded the right of private defence. Sentence of life imprisonment on two counts with benefit of Section 382-B Cr.P.C. awarded by the learned High Court would not be interfered with by us. The right of private defence exceeded when the petitioner found to have shot dead two deceased while injuries on the petitioner were not of such nature to take life of the two persons, therefore, learned High Court was justified to alter the sentence of death into life imprisonment. It is also admitted fact that both the Courts below have concurrently come to the conclusion qua the guilt of the petitioner. It is settled principle of law that this Court does not interfere qua the concurrent conclusions of the Courts below while exercising power under Article 185(3) of the Constitution of the Islamic Republic of Pakistan. The petitioner had committed the offence in a very brutal manner and on account of discrepancies highlighted by the petitioner before us of the prosecution which were given due weight by the learned High Court while converting the death penalty on two counts awarded by the trial Court to the petitioner into life imprisonment on two counts. It is settled principle of law that this Court generally does not interfere qua the legal sentence awarded by the Courts below while exercising constitutional power under Article 185(3) of the Constitution. Even otherwise it is settled principle that constitutional jurisdiction is discretionary in nature. Keeping in view the manner of killing of two persons by the petitioner we are not inclined to exercise constitutional power in favour of the petitioner. We do not find any justification to interfere with the sentences awarded by the learned High Court.
In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment. Therefore, the petition has no merit and the same is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 1039
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
ZAR MUHAMMAD--Petitioner
versus
MIAN JAFAR SHAH and another--Respondents
Crl. P. No. 4-P of 2008, decided on 23.4.2009.
(On appeal from the judgment dated 15.2.2008 of the Peshawar High Court, Peshawar passed in Cr.M. 1274/2007).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 324 & 34--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Cancellation of bail grnated by High Court on the ground of medical--Medical Board was constituted to ascertain as to whether or not the accused/respondent was suffered from services heart disease needing proper treatment not available in jail hospital--Validity--Having considered the matter from all angles, and medical report, Supreme Court held that High Court had reached the conclusion with valid and sound reasonings which were not open to legitimate exception--Gravity of accused's sickness constitutes legitimate basis for his entitlement to bail under proviso to S. 497, Cr.P.C.--Despite his best efforts, petitioner could not point out any infirmity, legal or factual in impugned judgment justifying interference by Supreme Court--Leave refused. [P. 1040] A
1979 SCMR 302, PLD 1966 SC 658 & 1991 P.Cr.L.J. 2422, ref.
Mr. M. Zahoor Qureshi, AOR for Petitioner.
Mian Mohibullah Kakakhel, Sr. ASC (apeared after Court hours) for Respondent No. 1.
Date of hearing: 23.4.2009.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, Zar Muhammad, petitioner, seeks leave to appeal from a judgment of the Peshawar High Court, Peshawar dated 15.2.2008, granting bail to Mian Jafar Shah, Respondent No. 1, in case FIR No. 620 dated 9.9.2007 registered under Section 302/324/34 PPC at Police Station Nowshera Kalan.
co-accused was charged for having, on 9.9.2007 at 7.30 hours committed murder of Parvez Khan (deceased) and attempted murder of petitioner. The respondent moved an application before learned Judicial Magistrate, Nowshera to secure his release on bail and on its refusal vide order dated 28.9.2007, approached learned Additional Sessions Judge, Nowshera for similar relief but his request was turned down vide order dated 23.10.2007. Feeling aggrieved, respondent, preferred criminal Misc. before learned High Court, which has been allowed on `medical ground' granting bail to respondent through the judgment impugned herein.
Mr. M. Zahboor Qureshi, AOR for the petitioner, in support of the petition contended that overwhelming evidence was available on record to prove complicity of the respondent in the commission of crime and that respondent is suffering from common disease which can conveniently be treated in jail hospital and does not appear to be life threatening. To substantiate the contentions reliance was placed on Muhammad Arshad vs. The State and another (1998 PSC (Crl.) 486 and Raza Mohsin Qazilbash vs. Muhammad Usman Malik etc. (1999 PSC (Crl.) 654)
A Medical Board was constituted under the order of learned High Court to ascertain as to whether or not the respondent was suffering from serious heart disease needing proper treatment not available in the jail hospital. The Board consisting of four eminent doctors, submitted the report which reads:--
"Result received according to which he is known cardiology case with HCV+ve and will need management."
Having considered the matter from all angles, and the medical report, we find that learned High Court has reached the conclusion with valid and sound reasonings which are not open to legitimate exception. The gravity of respondent's sickness constitutes legitimate basis for his entitlement to bail under the proviso to Section 497 Cr.P.C. Learned counsel for the petitioner, despite his best efforts, could not point out any infirmity, legal or factual, in the impugned judgment justifying interference by this Court. Haji Mir Aftab vs. The State (1979 SCMR 320), Abdul Aziz vs. Bashir Ahmed and the State (PLD 1966 SC 658) and Muhammad Bashir vs. the State (1991 P.Cr.L.J. 2422).
In the circumstances, we find no merit in this petition, which is dismissed and leave refused.
(R.A.) Leave refused
PLJ 2009 SC 1041
[Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundhri, JJ.
Ch. MUHAMMAD ISMAIL--Petitioner
versus
STATE--Respondent
Crl. P. No. 23(S) of 2003, decided on 14.4.2009.
(On appeal against the judgment dated 15.9.1998 passed by the Federal Shariat Court in Crl. A. 186/L of 1994).
Expungement of Adverse Remarks--
----While dismissing the appeal passed adverse remarks against the petitioner who had heard and decided the case as judge of Trial Court--Federal Shariat Court observed that investigating officer as well as Magistrate had not properly performed their duties under law and both of them had proceeded in irresponsible manner--Held: Federal Shariat Court did not give any opportunity of hearing to the petitioner before passing adverse remarks against him--Petition was converted into appeal--Adverse remarks narrated in Shariat Petition No. 23 of 2003 were expunged. [P. 1044] A & B
PLD 1963 SC rel.
Mr. Munir Ahmed Bhatti, ASC a/w Mr. Arshad Ali Ch., AOR for Petitioner.
Ch. Munir Sadiq, DPG Pb. for State.
Date of hearing: 14.4.2009.
Order
Muhammad Farrukh Mahmud, J.--This petition seeking leave to appeal is directed, against judgment dated 15.09.1998 handed down by the learned Federal Shariat Court in case FIR. No. 85 registered at Police Station Model Town, Lahore on 10.04.1993 for offence under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, whereby the learned Court while dismissing the appeal passed adverse remarks against the petitioner who had heard and decided the case as Judge of the trial Court.
Haji Muhammad Hamid, Muhammad Latif (both the accused were Nigerian), Muhammad Aslam and Muhammad Rafique Shah faced trial in the Court, of the petitioner for offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.
Vide judgment dated 08.12.1993 the petitioner in his capacity as Judicial Magistrate acquitted Muhammad Hamid, Muhammad Latif and Muhammad Aslam accused. Through the same judgment Muhammad Rafiq Shah, on the basis of his confession, was convicted for offence under Article 4 of the ordinance and was sentenced to six year rigorous imprisonment. He was also directed to pay fine of Rs. 5,000/- in default of payment thereof, he was to suffer four months S.I. he was also sentenced to five stripes, benefit of Section 302(b) Cr.PC was given to him.
Feeling aggrieved the State filed appeal against acquittal of rest of the three accused i.e. Muhammad Hamid, Muhammad Latif and Muhammad Aslam. Vide judgment dated 15.09.1998. The learned Federal Shariat Court while dismissing the appeal passed adverse remarks against the petitioner in Para Nos. 5 and 6 of the judgment. The petitioner has sought expungement of the adverse remarks specified below:--
"The learned Magistrate has thus violated the legal requirements".
It is worth mentioning that extreme negligence has been shown during the proceeding of this case by the learned trial Court".
With the observation that the Magistrate has not properly performed his duties as required under the law proceeded in irresponsible manner".
The learned counsel for the petitioner has submitted that the adverse remarks were not justified in the circumstances of the case and that the petitioner was condemned un-heard. He has relied upon the following cases G. S. GIDEON, Advocate vs. The State (PLD 1963 SC 1), Abdul Khaliq vs Khan Bahadur and another (PLD 1996 SC 176), Muhammad Mansha vs The State (PLD 1996 SC 229) and Abdul Sattar Khan, District and Sessions Judge, Lakki Murwat vs. The State (SCMR 2000 SC 652).
The learned counsel for the State, Ch. Munir Sadiq, Deputy Prosecutor General, Punjab, has argued that the observations made by the learned Federal Shariat Court were justified.
We have heard the learned counsel for the parties and gone through the impugned judgment. In Para No. 5 it was observed that "12 kgs of narcotics were recovered from Muhammad Rafique Shah convicted accused, yet the learned Judicial Magistrate sentenced him to only six years R.I., whipping numbering five stripes and a fine of Rs. 5,000/- or in default four months S.I. and acquitted the respondents. It is not known why the learned Judicial Magistrate acted so hurriedly that he did not record any evidence of prosecution witnesses or even statements of other co-accused/respondents. The learned Magistrate also failed to appreciate the fact that in view of the huge quantity of the contraband confessed by Muhammad Rafiq Shah to have been recovered from his exclusive possession, sentenced him only six years R.I., whereas Article 4 of the said Order prescribes imprisonment for life, if the quantity exceeds 10 grams in case of heroin. As envisaged by Section 347 Cr.P.C and held in case reported as PLD 1991 FSC 66 the learned Magistrate should have forwarded the instant case to the Sessions Court for decision." "The learned Magistrate has thus violated the legal requirement". It. was further observed in the same para, that "It is worth-mentioning that extreme negligence has been shown during the proceeding of this case by the learned trial Court, as well as by the prosecution agencies". In Para 6 of the impugned judgment it was observed that "we dismiss this appeal with the observation that the Investigating Officer as well as Magistrate have not properly performed their duties as required under the law and both of them have proceeded in irresponsible manner".
Firstly, no revision was filed by the State for enhancement of sentence inflicted upon Muhammad Rafique Shah convicted co-accused, secondly the learned appellate Court took no step to enhance the sentence of Muhammad Rafique Shah. Thirdly according to second proviso of Section 4 of Prohibition (Enforcement of Hadd) Order, 1979, the sentence inflicted upon Muhammad Rafique Shah was legal, the proviso is being reproduced:--
"Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty strips, and shall also be liable to fine".
Undeniably the learned Federal Shariat Court did not give any opportunity of hearing to the petitioner before passing adverse remarks against him. It was observed in the case of Syed Ali Nawaz Gardezi vs. Lt-Col. Muhammad Yusuf PLD 1963 SC 51) as follows:
"As the Bench hearing the appeal, it was no doubt within the province of the power and duty of the learned Judges, to comment upon the mode of trial adopted, if it was in contravention of law, or had aspects of unfairness or impropriety. The degree of sharpness that could be permitted, in the comment, would be determined by the gravity of the irregularity or the injury resulting there from. For, in all circumstances, the criticism offered would of necessity fall within the requirements of the dispensation of justice. It is imperative that the criticism offered should not only be well-informed, but also that it should be well-intentioned, in a strictly judicial sense."
(R.A.) Appeal allowed.
PLJ 2009 SC 1044
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
ZIA-UR-REHMAN--Petitioner
versus
DIVISIONAL SUPERINTENDENT, POSTAL SERVICES ABBOTTABAD and others--Respondents
Civil Petition No. 404 of 2009, decided on 22.4.2009.
(Against the judgment dated 27.12.2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 20(P) CS/2007).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil service--Leave to appeal against accepted appeal by converting his dismissal into removal from service--Civil servant was appointed on daily wages basis--Absent from duty--Show-cause notice was received back with remarks that addressee was not available at the given address--Show-cause notice was published in press--Disciplinary proceeding was finalized ex-parte--Department appeal was dismissed as time barred--Challenge to--Civil servant admitted his absence from duty on account of his involvement in criminal case but he failed to substantiate by producing a convincing evidence to extent that he had submitted an application for leave--Held: Mere submission of application for leave by an employee to his department would not mean that leave had been granted in his favour and he was duty bound to enquire from the department himself about the fate of his request for grant of leave--Further held: Departmental appeal was time barred, therefore, appeal before service tribunal was not maintainable--Supreme Court cannot interfere with concurrent findings of fact arrived at by Courts below while exercising the power under Art. 212(3) of Constitution. [P. 1048] A & B
2007 SCMR 152, ref.
Finding of Service Tribunal--
----Finding of service tribunal having findings of fact would not call for interference by Supreme Court. [P. 1048] C
1991 SCMR 255, rel.
Civil Servant--
----Appeal of civil servant--Competency--When appeal of the employee was time barred before appellate authority then the appeal before tribunal was also not competent on that account in view of the various pronouncement of Supreme Court. [P. 1048] D
PLD 1990 SC 951 & 2007 SCMR 513, fol.
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Civil service--Question of public importance--Conversion of punishment--Jurisdiction of service tribunal--Held: Service Tribunal had no jurisdiction to convert the penalty while observing that appellate authority dismissed the appeal of the civil servant as time barred hence appeal before Service Tribunal was not competent--Leave refused. [P. 1049] E
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 22.4.2009.
Order
Ch. Ijaz Ahmed, J.--Zia-ur-Rehman, petitioner, seeks leave to appeal against impugned judgment dated 27-12-2008 whereby the learned Federal Service Tribunal, Islamabad, has partly accepted his appeal by converting his dismissal into removal from service.
Detailed facts have already been mentioned in the impugned judgment, however, necessary facts out of which the present petition arises are that the petitioner was appointed as Postman (BS-5) on 9.3.1999 initially on daily wages basis. Subsequently he was regularized w.e.f. 1-8-2002. The petitioner absented himself from duty from 14.11.2005 to 13-10-2006. The competent authority sent show-cause notice on account of his absence on 1-2-2006 which was received back to the competent authority/respondent with the remarks that the addressee was not available at the given address. Subsequently show-cause notice was published in the press on 16-2-2006. The petitioner did not enter appearance in response to the show-cause notice before the competent authority. Disciplinary proceedings were finalized ex-parte against the petitioner and he was dismissed from service vide order dated 29-5-2006. Order of dismissal was again sent on his permanent address which was also received back. The same was also published in the press on 24-7-2006 but the petitioner did not respond and did not file departmental appeal against the dismissal order within the prescribed period. The petitioner filed departmental appeal before the appellate authority on 7-12-2006 which was rejected as time barred vide order dated 24-1-2007. Petitioner being aggrieved filed Service Appeal No. 20 (P) (CS)/2007 on 12-2-2007 before the Federal Service Tribunal. The Service Tribunal partly accepted the same vide impugned judgment dated 27-12-2008, hence the present petition.
Learned counsel for the petitioner submits that the petitioner was involved in a criminal case which was registered under Section 10/16 Offence of Zina Ordinance, 1979 and under Section 365 PPC. The petitioner was arrested in the said case. He further urges that petitioner had submitted an application for leave to the Divisional Superintendent on 14-11-2005 which, according to him, was not forwarded to the competent authority, therefore, he was treated to be unauthorisedly absent from office. The petitioner was released on bail in the said criminal case on 11-10-2006. Thereafter the petitioner reported for duty on 13-10-2006 when he had received information orally that he was dismissed from service. The petitioner received the dismissal order dated 29-5-2006 on 26-11-2007 and this aspect of the case was not considered in its true perspective by the learned Service Tribunal as well as the respondents. He further maintains that it is the duty and obligation of the respondents to decide the application of the petitioner with reasons in view of Section 24-A of General Clauses Act, 1897. He further urges that learned Service Tribunal had erred in law to non suited the petitioner on technical ground without application of mind.
We have given our anxious consideration to the contentions of the learned counsel of the petitioner and had perused the record with his able assistance. The respondents had taken a stand in comments filed before the Service Tribunal that petitioner had not submitted application for leave and the petitioner was dismissed from service on account of willful absence and mis-appropriation of Government money with mala fide intention. The petitioner had also taken a stand in Para 6 of the appeal before the Service Tribunal that local Postmaster, Changala Gali, in collusion with the complainant Feroze had not submitted the application of the petitioner to the authority concerned. It is appropriate and proper to reproduce basic facts in chronological order to resolve the controversy in question as under:--
(i) Show-cause notice was issued and dispatched on his permanent address on 1-2-2006.
(ii) The said notice was received back in office on 17-1-2006.
(iii) Show-cause notice was also published in the Daily Jang, Rawalpindi and Daily Ittehad, Abbottabad, dated 16-2-2006.
(iv) The petitioner failed to defend himself.
(v) The petitioner was dismissed from service vide order dated 29-5-2006.
(vi) Dismissal order was also dispatched on his permanent address which was received back in the office on 1-6-2006.
(vii) The said dismissal order was also published in the Daily Jang, Rawalpindi, and the Daily Shamal, Abbottabad dated 24-7-2006.
(viii) It is pertinent to mention here that the respondents had taken the aforesaid stand in reply to Para 8.
(ix) The petitioner did not deny the same in the specific words while filing rejoinder before the Federal Service Tribunal.
(x) The petitioner filed departmental appeal on 7-12-2006 which was time barred and was rejected vide order dated 24-1-2007 in the following terms :--
"It is intimated that appeal is time barred. Therefore cannot consider at this stage."
(xi) The petitioner filed appeal before the Service Tribunal on 12-2-2007 which decided vide impugned judgment dated 27.12.2008. The learned Service Tribunal had given finding in Para 7 as under:--
"As per settled law, since the departmental appeal is time-barred, the instant appeal is not competent before this Tribunal"
re-appraisal of evidence and upheld the order of the respondents that his departmental appeal was time barred, therefore, appeal before the Service Tribunal was not maintainable, meaning thereby, that the petitioner had challenged the vires of the concurrent orders of the respondents and impugned judgment of the Tribunal through this petition. This Court cannot interfere with the concurrent findings of fact arrived at by the Courts below while exercising the power under Article 212(3) of the Constitution as laid down by this Court in Iftikhar Ahmed Malik's case (2005 SCMR 806) and Tahir Latif s case (2007 SCMR 152). It is settled principle of law that finding of service tribunal having findings of fact would not call for interference by this Court as law laid down by this Court in Ch. Muhammad Azim's case (1991 SCMR 255). It is settled principle of law that when appeal of the employee was time barred before the appellate authority then the appeal before the Tribunal was also not competent on that count in view of the various pronouncements of this Court including the following judgments:--
Chairman PIA and others vs. Nasim Malik (PLD 1990 SC 951).
Muhammad Aslam vs. WAPDA and others (2007 SCMR 513).
Even otherwise the petitioner has failed to raise any question of public importance in the present case as contemplated under Article 212(3) of the Constitution.
It is pertinent to mention here that learned Service Tribunal has converted the penalty of dismissal into removal on sympathetic grounds keeping in view young age of the petitioner as is evident from Para 8 and 9 of the impugned judgment. As the respondent had not filed petition qua the said conversion of punishment before his Court, therefore, we do not disturb the same, otherwise, learned Service Tribunal has no jurisdiction to convert the penalty while observing that appellate authority dismissed the appeal of the petitioner as time barred, hence, appeal before the Service Tribunal was not competent.
In view of what has been discussed above, we do not find any merit in this Petition and the same is dismissed. Leave refused.
(R.A.) Leave refused.
PLJ 2009 SC 1049
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
PROVINCIAL POLICE OFFICER NWFP and others--Petitioners
versus
MUHAMMAD NAWAZ--Respondent
Civil Petition No. 175-P of 2009, decided on 22.4.2009.
(On appeal from the order of the NWFP Service Tribunal, Peshawar dated 1.1.2009, passed in Service Appeal No. 1372/2008).
Audi Alteram Partem--
----Name was removed from list of promotion--Violation of principle--No notice was issued to civil servant nor he was provided any opportunity of hearing and his name was removed from list of promotion in violation of principle of audi alteram partem. [P. 1051] A
Constitution of Pakistan, 1973--
----Art. 212(3)--Leave to appeal--Civil servant was transferred and his name was removed from promotion list--Appeal was accepted by Service Tribunal--Oral complaints--Validity--Oral complaints should not have weighed with competent authority providing a ground for removal of his name from promotion list--Inclusion of name of the civil servant in list creates a vested right for promotion to high rank and same could not be withdrawn without adopting the proper legal procedure--Leave refused. [P. 1051] B
2000 PLC (CS) 1127 & 1992 PLC (CS) 58, rel.
Mr. Qaiser Rashid, AAG, NWFP for Petitioners.
Mr. M. Tariq Javed, ASC for Respondent.
Date of hearing: 22.4.2009.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition, Provincial Police Officer, NWFP, Peshawar and others, petitioners, seek leave to appeal from a judgment of the NWFP Service Tribunal, Peshawar, dated 1.1.2009 accepting appeal preferred by Muhammad Nawaz, respondent, and setting aside order dated 4.7.2008, whereby respondent was transferred from District Police Nowshera to District Police Kohistan and his name was removed from promotion list "D".
Facts of the case in brief are, that while serving as Head Constable in the District Police, Nowshera, respondent was transferred to District Police, Kohistan and name of respondent was removed from promotion list "D", vide order dated 4.7.2008. The respondent feeling aggrieved, filed departmental representation and on its rejection vide order dated 26.8.2008, preferred appeal before learned Tribunal, which has been accepted through the judgment impugned herein.
Appearing on behalf of the petitioners, Mr. Qaiser Rashid, Additional Advocate-General, NWFP submitted that name of the respondent has been validly removed from list "D" by the competent authority; that the impugned judgment suffers from legal infirmities as learned Tribunal had no jurisdiction to interfere in such a matter which is concerned with the management of the discipline force; that removal of respondent's name from the promotion list is not a punishment or penalty and that department stand has not been considered properly, resulting in manifest injustice.
Mr. M. Tariq Javed, Advocate for the respondent, on the contrary, refuted the arguments of learned Additional Advocate-General and supported the impugned judgment on all counts maintaining that name of the respondent could not be removed from list "D" without any show-cause notice and that respondent was not provided any opportunity of hearing. Reliance was placed on Muhammad Iqbal and 11 others vs. Superintendent of Police, Khanewal and another (2000 PLC (C.S.) 1127) and Rashid Ahmad and 3 others vs. Superintendent of Police and 2 others (1992 PLC (C.S.) 58).
Having considered the arguments of learned counsel for the parties in the light of the material on file, we find that learned Tribunal has rightly accepted the appeal of the respondent and set aside order dated 4.7.2008 for reasons no open to legitimate exception. Record reveals that respondent was appointed as constable on 13.1.1987. He was deputed to police Training College Hangu for recruit course which he passed. After passing Lower School Course he was promoted as Head Constable on 21.12.2001. He passed Intermediate School Course on 20.3.2004 and his name was brought on promotion list "D". During service respondent got courses of Bomb Disposal, Scorpion, Credulity and Traffic and remained posted in various police stations as Mother Moharrar. Surprisingly, no notice was issued to the respondent nor he was provided any opportunity of hearing and his name was removed from list "D" in violation of principle of audi alteram partem. The hammer appears to have fallen on the respondent on account of oral complaints alleged to have been received against him. We agree with learned counsel for the respondent that oral complaints should not have weighed with the competent authority providing a ground for removal of his name from the promotion list. The inclusion of name of the respondent in the list creates a vested right in his favour for promotion to high rank and the same could not be withdrawn without adopting the proper legal procedure. Learned Tribunal has rightly accepted the appeal of the respondent. No infirmity, legal or factual has been pointed out in the impugned judgment.
Finding no merit in this petition, we dismiss the same and decline to grant leave.
(R.A.) Leave refused.
PLJ 2009 SC 1051
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
PROVINCIAL GOVERNMENT through Additional Chief Secretary (Development) Govt. of Balochistan, Quetta and another--Appellants
versus
ABDULLAH JAN and others--Respondents
Civil Appeal No. 911 of 2005, decided on 3.6.2009.
(On appeal from the judgment dated 7.4.2004 passed by the High Court of Balochistan, Quetta in Civil Misc. Appeal No. 9/2001).
Land Acquisition Act, 1984 (I of 1894)--
----S. 18(3)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Deficiency of Court fee--Award was announced at rate of specific amount--Reference was rejected by trial Court as well as by High Court on the grounds of deficiency in Court fee--Scope of--Validity--Trial Court decided the case on some different grounds and High Court has knocked down the appellants on technical ground i.e. deficiency of Court fee--Held: Supreme Court was not inclined to defeat the valuable rights of appellants as well as respondents to be defeated by technicalities and it will be fair and just that the case should be decided on merits for simple reasons that the object is to secure revenue for benefit of state and not to arm the litigant with weapon of technicalities to harass his opponent--Appellants were directed to make-up deficiency in Court fee and case was remanded.
[P. 1055] E
Contumacious attitude--
----Deficiency of Court fee--Deficiency occurred due to professional engagement and rash of work--Validity--When there is negligence or contumacious attitude, then in no way time in making of deficiency of Court fee should be granted--Appeal was perfectly within time and there is no question of limitation--A person of caliber of counsel who got a long standing career cannot dare to have a contumacious attituted or positive malafide and such deficiency occurred due to professional engagement and rush of work, but leaving aside these factors--Held: Parties should not be penalized for negligence of their counsel or staff of the Court, because the Court Fee Act is a taxing statute, which would be interpreted in favour of subject.
[P. 1054] A, B & C
Court Fee Act, 1870 (VII of 1870)--
----Scope of--Basic object of all the statutes are to secure revenue for benefit of state and not to arm the litigant with weapon of technicality--Held: Where the provision is open to two reasonable possible interpretations, than the one favouring the tax payer should be adopted. [P. 1054] D
PLD 1984 SC 289, 1993 CLC 1666, 1997 SCMR 919 & PLD 1979 SC 821, PLD 2007 SC (AJ&K) 1, 2007 SCMR 494, 2001 SCMR 1868, ref.
Mr. Kamran Murtaza, ASC for Appellants.
Mr. Mumtaz Hussain Baqari, ASC for Respondents No. 1-4.
Date of hearing: 3.6.2009.
Judgment
Muhammad Qaim Jan Khan, J.--This civil appeal has been directed against the judgment of a Single Judge of the High Court of Balochistan, Quetta dated 7.4.2004 vide which the appeal of the appellants has been dismissed with no order as to cost.
Rs. 45,24,065/50 at the rate of Rs. 97.75 per square foot inclusive of 15% compulsory acquisition charges.
Feeling aggrieved with the price fixed by the collector, the appellants filed a reference under Section 18(3) of the Land Acquisition Act, 1894 in the Court of District Judge, Quetta which was marked to Additional District Judge-V, Quetta. Notices were issued to the respondents. Respondents No. 2 and 3 filed their written statements while the remaining were proceeded against ex-parte. The trial Court framed almost 5 issues apart from relief. List of the witnesses have been filed alongwith documents and keeping in view the legal nature of the reference, the trial Court directed the respective parties to argue the case before him. Arguments were heard and ultimately the reference was rejected vide order dated 17.4.2001 and the award of Respondent No. 24 is maintained.
Dissatisfied with the order of the trial Court, appellants preferred appeal before the High Court of Balochistan, Quetta and a learned Single Judge of the said Court after hearing the learned counsel for the parties and perusing the record, dismissed the appeal of the appellants vide judgment dated 7.4.2004 on the grounds of deficiency in Court fee, despite chances given to the appellants. Hence this appeal.
Learned counsel for the appellants argued that the valuable rights of the appellants are involved, but have been knocked out on technical grounds and thus, public money has been wasted; that the Court has got sufficient power to enlarge the time to make good the deficiency, but despite request the time was not granted. He argued that Section 148 has got a liberal interpretation and thus, it should be taken liberally, further contended that the appeal was within time and the property worth thousands of rupees have been acquired at a very nominal rate. Learned counsel referred to Muhammad Sarwar Khan Vs. Said Hussain Khan (PLD 2007 SC (AJ&K)1) and argued that party should not be penalized for the negligence of his counsel as Court fees Act, 1870 is a taxing statute.
Learned counsel appearing on behalf of Respondents No. 1 to 4, argued that time limit cannot be condoned and that the appellants have availed sufficient time for making good the deficiency in Court fee, further contended that once an opportunity has not been availed by the appellants, they cannot be granted another opportunity and the appellants despite a long time of 4 months have not complied with the orders of the Court, which is contumacious. Learned counsel referred to Assistant Commissioner and Land Acquisition Collector, Badin Vs. Haji Abdul Shakoor and others (1997 SCMR 919), Riffat Iqbal Vs. Mst. Fatima Bibi and others (2007 SCMR 494), Mubarak Ahmad and 2 others Vs. Hassan Muhammad through Legal Heirs (2001 SCMR 1868), Abdul Sattar Khan and another Vs. Hafiz Muhammad Bakhsh and another (1979 SCMR 243) and Mst. Walayat Khatun Vs. Khalil Khan and another (PLD 1979 SC 821).
We have heard the learned counsel for the parties at length and have also gone through the relevant record and the respective rulings produced by the counsel for the parties. The crux of the rulings of this Court are that when there is negligence or contumacious attitude, then in no way the time in making of the deficiency of Court fee should be granted. Similar is the case with the two rulings referred to by the Hon'ble High Court i.e. (1997 SCMR 919) and (PLD 1979 SC 821). The present case is some what on a different footing. In the instant case, the appeal is perfectly within time and there is no question of limitation. As far as the contumacy and positive mala fide is concerned, a person of the caliber of the appellants' counsel, who got a long standing career cannot dare to have a contumacious attitude or positive mala fide and thus, deficiency occurred due to professional engagement and rush of work, but leaving aside these factors, it is an established practice of the higher Courts that parties should not be penalized for the negligence of their counsel or staff of the Court, because the Court Fees Act, 1870 is a taxing statute, which would be interpreted in favour of the subject. The provision of Court Fees Act and other fiscal statutes were to be construed strictly in favour of subject, because the basic object of all the statues are to secure revenue for the benefit of the State and not to harm the litigant with the weapon of technicality. It is also an established fact that where the provision is open to two reasonably possible interpretations, then the one favouring the taxpayer should be adopted. Reference can be had to Siddique Khan and 2 others Vs. Abdul Shakur Khan and another (PLD 1984 SC 289) and Mubarak Ahmad Vs. Sub-Registrar, District Courts, Faisalabad and 4 others (1993 CLC 1666). In the instant case, a property of a very high cost has been acquired for a nominal price which would certainly damage the Government as well as the respondents and public-at-large because public revenue is involved. The trial Court has decided the case on some what different grounds and the Hon'ble High Court has knocked down the appellants on technical ground i.e. deficiency of Court fee. We are not inclined to defeat the valuable rights of the appellants as well as the respondents to be defeated by technicalities and it will be fair and just that the present case should be decided on merits for the simple reasons that the object of the Act is to secure revenue for the benefit of State and not to arm the litigant with weapon of technicalities to harass his opponent. Moreover, limitation is also not a hurdle. Reference can be had to the above mentioned authority i.e. (PLD 1984 SC 289). In these circumstances, we allow the appeal and direct the appellants to make up the deficiency in Court fee and remand the case back to the Hon'ble High Court while setting aside the judgment dated 7.4.2004 with further direction to decide the case on merits.
(R.A.) Appeal allowed.
PLJ 2009 SC 1055
[Appellate Jurisdiction]
Present: Javed Iqbal, Syed Zahid Hussain & Muhammad Sair Ali, JJ.
EXECUTIVE ENGINEER GEPCO LIMITED and another--Petitioners
versus
LIAQAT ALI--Respondent
Civil Petition No. 579 of 2009, decided on 8.5.2009.
(On appeal from the judgment dated 29.1.2009 passed by the Federal Service Tribunal in Appeal No. 146 (R)/CE/2006).
Removal from Service (Special Powers) Ordinance, 2000 (XVI of 2000)--
----Ss. 5, 6 & 7--Constitution of Pakistan, 1973--Art. 212(3)--Civil servant--Major penalty could be imposed but that too after an opportunity of personal hearing to civil servant--Allegation of misconduct allegedly for facilitating theft of electricity and tampering with metters--Without holding an inquiry and without opportunity of hearing, civil servant was compulsorily retired from service--Service Tribunal reinstated in service from the date of compulsory retirement with all back benefits--Validity--Sections 5, 6 & 7 of Removal from Service Ordinance, provide for appointment of inquiry or inquiry committee to hold inquiry to scrutinize the conduct of a person and submission of findings and recommendations to competent authority on receiving the findings and recommendations of inquiry office or inquiry committee, the competent authority u/S. 8 thereof is empowered to pass orders in accordance with provisions of the Ordinance--Held: Competent authority, for even handed administration of justice, was obligated to follow the prescribed procedure before passing the order of imposition of major penalty i.e. compulsory retirement from service--Leave refused. [P. 1057] A
Mr. Aurangzeb Mirza, ASC for Petitioners.
Respondent in person.
Date of hearing: 8.5.2009.
Order
Muhammad Sair Ali, J.--Leave is sought by Executive Engineer GEPCO Limited and another against judgment dated 29.01.2009 of the Federal Service Tribunal, reinstating the respondent Liaqat Ali in service from the date of his compulsory retirement with all the back benefits.
The respondent, a Meter Reader, was served with show-cause notice dated 08.11.2005 and statement of allegations charging him of misconduct allegedly for facilitating theft of electricity and tampering with Meters etc. Through his defence reply dated 15.11.2005, he strongly denied the charges and also specifically alleged mala fide of the authorities against him. Without holding an inquiry and without the opportunity of hearing, the respondent was compulsorily retired from service under the Removal from Service (Special Powers) Ordinance, 2000 by order dated 24.11.2005 of Petitioner No. 1. i.e. Executive Engineer GEPCO Limited. Respondent's departmental representation dated 05.12.2005 remained un-responded whereupon he filed Appeal No. 146(R)CE/2006 before the Federal Service Tribunal, Islamabad.
The Tribunal accepted the appeal through the impugned order dated 29.01.2009 observing that holding of inquiry became essential on denial of charges by the respondent and that only on an implicating inquiry report by the Inquiry Officer that a major penalty could be imposed by the petitioner-authority, but that too after an opportunity of personal hearing to the respondent. The tribunal thus reinstated the respondent with all the back benefits. Hence the present petition.
The learned counsel for the petitioners argued that the respondent in his reply had admitted the allegations wherefor no inquiry or hearing was needed for imposition of even the major penalty of compulsory retirement.
Having examined the arguments of the learned counsel and the record, we are afraid we cannot approve the lopsided contention of the learned counsel. He reads admissions of the respondent in reply to the show-cause notice while no such admissions exist therein. Instead, respondent in a detailed reply set up his defence pleas alongwith support documents in total denial of the charges and also alleged mala fide of the relevant authorities against him. What was alleged against the respondent was denied by him. The allegations thus became disputed and required inquiry as envisaged in Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance No. XVII of 2000.
The respondent no doubt is "a person in corporation service" in terms of Section 2(c) of Removal from Service (Special Powers) Ordinance No. XVII OF 2000. The petitioners claim to have invoked the provisions of the Ordinance to impose major penalty of compulsorily retirement on the respondent. The survey of the Ordinance belies the claim of the petitioners. Sub-section (1) of Section 3 prescribes that where, in the opinion of the competent authority, a person in corporation service, is guilty of mis-conduct, the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under Section 5 may......by an order in writing dismiss or remove or compulsorily retire such person from service etc etc. Sub-section (2) of Section 3 imperatively provides that;--
"Before passing an order under sub-section (1), the competent authority shall,--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action within seven days or within such extended period as the competent authority may determine."
Sections 5, 6 and 7 ibid provide for appointment of inquiry or inquiry committee to hold inquiry "to scrutinize the conduct of a person" and the submission of findings and recommendations to the competent authority. On receiving the findings and recommendations of the Inquiry Officer or the Inquiry Committee, the competent authority under Section 8 thereof is empowered to pass orders in accordance with the provisions of the Ordinance.
The competent authority, for even handed administration of justice, was obligated to follow the prescribed procedures before passing the order of imposition of major penalty i.e. compulsory retirement from service.
It was not a case falling within the statutory ambit of proviso to Section 3 or Sections 3-A, 5(4) and 5(5) of the Ordinance, where holding of inquiry or opportunity of hearing could be dispensed with. The petitioners have not pleaded or made out a case under these provisions of law.
In view thereof, we do not find any substance in the present petition which is accordingly dismissed. Leave declined.
(R.A.) Leave refused.
PLJ 2009 SC 1058
[Appellate Jurisdiction]
Present: Ch. Ejaz Yousaf & Sardar Muhammad Aslam, JJ.
Mst. ROQIAZA AKBAR & others--Petitioners
versus
SECRETARY EDUCATION (S&L), NWFP & others--Respondents
C.P.L.A. Nos. 480-P to 483-P of 2007, decided on 1.4.2009.
(On appeal from the order/judgment dated 6.7.2007 passed by the NWFP Service Tribunal, Peshawar in Appeals No. 729, 731 to
733 of 2006).
Constitution of Pakistan, 1973--
----Art. 212(3)--Civil servant--Services were terminated on ground of long absence from duty--Appeal was also dismissed by service tribunal as not maintainable on ground that representation was barred by limitation--Civil servant did not bother to file appeals before departmental authority for about six years--Being barred by time, the appeals before Service Tribunal were not competent--Validity--If appeal before departmental authority is barred by time, then appeal before service tribunal would also be incompetent because under relevant law utilization of departmental remedy is the condition precedent towards maintainability of appeal before service tribunal--Held: Law helps, the diligent and not the delinquent--If a person has been negligent in prosecuting his remedy before proper forum, he is not entitled to indulgence of the Court--Leave refused.
[P. 1060] A & B
2007 SCMR 513, 2007 SCMR 346, 2006 SCMR 1862, 2006 SCMR 453, 2005 SCMR 1322 & PLD 1990 SC 951, ref.
Mir Adam Khan, ASC/AOR for Petitioners (in all cases).
Nemo for Respondents.
Date of hearing: 1.4.2009.
Judgment
Ch. Ejaz Yousaf, J.--All these four petitions are directed against a common order/judgment dated 6.7.2007 passed by the NWFP Service Tribunal, Peshawar, whereby Appeals No. 729/2006, 731/2006, 732/2006 and 733/2006 filed by the petitioners were dismissed. Since same question of law is involved, therefore, we propose to decide all the four petitions through this common judgment.
CPLA No. 480-P/2007
Petitioner in this case was appointed as untrained PTC teacher on 31.7.1999. Her services were terminated from the date of her appointment vide order dated 26.11.1999, on the ground of long absence from her duty. The petitioner filed departmental appeal on 19.5.2006 which was rejected vide order dated 22.7.2006. Being aggrieved she preferred an appeal before the NWFP Service Tribunal, Peshawar, which was dismissed as not maintainable on the ground that representation before the department was barred by limitation.
CPLA No. 481-P/2007
Petitioner in this case was appointed as untrained PTC teacher on 31.7.1999. Her services were terminated from the date of her appointment vide order dated 26.11.1999, on the ground of long absence from duty. The petitioner filed departmental appeal on 19.5.2006 which was rejected vide order dated 22.7.2006. Being aggrieved she preferred an appeal before the NWFP Service Tribunal, Peshawar, which was dismissed as not maintainable on the ground that representation before the department was barred by limitation.
CPLA No. 482-P/2007
Petitioner in this case was appointed as untrained PTC teacher on 31.7.1999. Her services were terminated with immediate effect, vide order dated 26.11.1999, on the ground of long absence from duty. The petitioner filed departmental appeal on 19.5.2006 which was rejected vide order dated 22.7.2006. Being aggrieved she preferred an appeal before the NWFP Service Tribunal, Peshawar, which was dismissed as not maintainable on the ground that representation before the department was barred by limitation.
CPLA No. 483-P/2007
Petitioner in this case was appointed as untrained PTC teacher on 31.7.1999. Her services were terminated with immediate effect, vide order dated 26.11.1999, on the ground of long absence from duty. The petitioner filed departmental appeal on 19.5.2006 which was rejected vide order dated 22.7.2006. Being aggrieved she preferred an appeal before the NWFP Service Tribunal, Peshawar, which was dismissed as not maintainable on the ground that representation before the department was barred by limitation.
It has been mainly contended by the learned counsel for the petitioner that the learned Tribunal has gravely erred in dismissing appeal of the petitioners on the ground that their representations before the departmental authority were time barred.
We have given our anxious consideration to the contention of the learned counsel for the petitioners and have perused the record of the case, with his assistance, minutely.
It may be pertinent to mention here that in two of the petitions i.e. Bearing No. 480-P and 481-P of 2007, the services of the petitioners were terminated on account of non-assumption of charge, whereas in other two petitions i.e. Bearing No. 482-P & 483-P of 2007 services of the petitioners were terminated for willful absence from duty. Although the termination orders were passed on 26.11.1999 yet, the petitioners slept over the matter and did not bother to file appeals before the departmental authority for about six years uptill 19.5.2006, which were dismissed mainly on the ground of limitation. The petitioners then approached the Service Tribunal on 11.8.2006 and the learned Service Tribunal having found that the departmental appeals being barred by time, the appeals before the Service Tribunal too, were not competent.
By now it is well settled that if appeal before the departmental authority is barred by time, then appeal before the Service Tribunal would also be incompetent because under the relevant law utilization of the departmental remedy is the condition precedent towards maintainability of appeal before the Service Tribunal. In this view we are fortified by the following reported judgments:--
Muhammad Aslam v. WAPDA & others (2007 SCMR 513).
Muhammad Ramzan v. Inspector General of Police (2007 SCMR 346).
Chairman, Evacuee Trust Property Board & other v. Khawaja Shahid Nazir (2006 SCMR 1862).
N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah (2006 SCMR 453)
S.M. Afzal-ur-Rehman v. Federation of Pakistan & others (2005 SCMR 1322)
The Chairman, PIAC & others v. Nasim Malik (PLD 1990 SC 951).
It would be pertinent to mention here that law helps the diligent and not the delinquent/remiss. If a person has been negligent in prosecuting his remedy before the proper forum, he is not entitled to indulgence of the Court.
(R.A.) Leave refused.
PLJ 2009 SC 1061
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Raja Fayyaz Ahmed, JJ.
MUHAMMAD NADEEM @ DEEMI--Petitioner
versus
STATE--Respondent
Jail Petition No. 86 of 2008, decided on 26.3.2009.
(On appeal from judgment dated 8.5.2008 of Lahore High Court, Lahore passed in Crl. A. No. 107-J/2003 & M.R. No. 821/2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to Appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Appreciation of evidence--Delay of about 17 hours in lodging FIR--Held: In criminal cases the delay, by itself, in lodging FIR was not material--Factors to be considered by the Court that such delay stands reasonably explained and secondly, that the prosecution had not derived any undue advantage through the delay involved--Delay was explained in FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim--Possibility of the complainant party arranging for eye-witnesses was altogether ruled out because even if so, the occurrence having taken place at occurrence every thing could have been arranged within minutes--While concurring with two Courts that the prosecution had explained the delay in question--Leave refused. [P. 1063] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 342--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Recovery of dagger at belated stage and that it was never smeared with blood so as to justify the false report of chemical examiner--Validity--Recovery of dagger or its having been stained with blood or not becomes completely immaterial--Accused had admitted in his statement that he had inflicted dagger below to deceased--Held: Recovery of crime weapon in criminal case was not at all material--It can only be piece of supporting evidence--If other evidence goes to prove the case independently, the recovery is not essential at all--Leave refused.
[P. 1064] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Plea of self defence--Deceased initiated the attack with dagger and that he acted in self defence after snatching dagger from the deceased--Validity--Once that weapon was snatched by accused, no right of private defence remained in play because by that action the deceased had become unarmed--No right of private defence remained available to accused, the moment the dagger fell into the hands of accused from the alleged assailant--Held: After snatching the dagger, he had no apprehension or danger to his life at the hands of the deceased and thus, not only that he had no right to attack deceased but had no justification to inflict as many as seven fatal dagger blow on the deceased circumstances were more akin to prosecution version rather than to defence version which culminates into nothing but a cock and bull story. [P. 1065] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Confessional statement--Validity--Statement u/S. 342, Cr.P.C. is not necessarily to be accepted as a whole because it cannot be equated with a confessional statement--Statement, where right of private defence is claimed, cannot be dubbed as confessional statement. [P. 1066] D
Mr. Muhammad Zaman Bhatti, ASC for Petitioner.
Mian Asif Mumtaz, DPG for State.
Date of hearing: 26.3.2009.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Nadeem son of Muhammad Ashiq, through this Jail Petition, seeks leave to appeal from the judgment dated 8.5.2008 of a learned Division Bench of Lahore High Court, whereby, the appeal of the petitioner was dismissed, Murder Reference was answered in affirmative and the death sentence awarded on 5.9.2002 to the petitioner by learned Sessions Judge, Gujranwala under Section 302(b), PPC alongwith compensation of Rs.300,000/- under Section 544-A Cr.P.C was affirmed.
The brief background of the case is disclosed by Abdul Aziz, complainant in his application (Ex.-PC), incorporated into FIR No. 389 dated 6.9.2001 of PS Baghbanpura, District Gujranwala. The occurrence had taken place at about 4:30 p.m. on 5.9.2001, the report whereof was lodged on 6.9.2001 at 9:20 a.m. The complainant Abdul Aziz is the real uncle of deceased Muhammad Sajid.
On 5.9.2001, at the given time, complainant Abdul Aziz and Muhammad Sajid went to Islamia College Ground to watch a cricket match. Muhammad Nadeem, the convict petitioner was already known to Muhammad Sajid, who both met each other at the cricket ground. Muhammad Nadeem demanded some money from Muhammad Sajid, which the latter refused. Altercation ensued between the two, whereupon, Muhammad Nadeem drew out the dagger from the fold of his shalwar and inflicted repeated dagger blows at Muhammad Sajid. The culprit thereafter ran away from the spot. Occurrence, besides the complainant, was also witnessed by Abdul Majid and Muhammad Ilyas. As Sajid had become seriously injured, he was taken to hospital by the complainant and his companions. The latter remained busy at the hospital, attending the injured nephew, and hence could file the application/report only on the morning of the following day. Initially, report was registered for the attempted murder under Section 324 PPC. On 9.9.2001, Muhammad Sajid succumbed to his injuries and so the section of law was changed into 302 PPC.
The prosecution examined Abdul Aziz, complainant (PW-10) and Muhammad Ilyas (PW-11) as eye-witnesses. The ocular testimony of the above witnesses got due support from the recovery of dagger, the medico legal and postmortem reports, in addition to the statement under Section 342 Cr.P.C. Learned counsel for the petitioner-convict assailed the impugned conviction etcetera on three-fold ground.
Firstly, that there was a delay of about 17 hours in lodging FIR. Secondly, that the recovery of dagger/chhury was damagingly belated and was not bloodstained at all. Thirdly, that the plea of self-defence raised by the accused in his statement under Section 342 Cr.P.C ought to have been accepted by the learned trial Court as well as learned High Court.
So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of the attending circumstances of the case, the delay stands explained. It is an established principle of law and practice that in criminal cases the delay, by itself, in lodging the FIR is not material. The factors to be considered by the Courts are firstly, that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved. The delay is explained in the FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim. The possibility of the complainant party arranging for the eye-witnesses is altogether ruled out because even if so, the occurrence having taken place in the cricket ground of the city, everything could have been arranged within minutes. It is proved through the version of the eye-witnesses that occurrence had taken place in the cricket ground duly supported by recovery memo (Ex. PD), indicating the recovery of blood from the spot. We believe while concurring with the two Courts that the prosecution has explained the delay in question.
Coming to the question of what advantage the prosecution has gained from delaying the First Information Report, we observe that no advantage, at all, was so gained. The complainant has not involved any person by deliberations and brought about the single charge which was true and logical in every sense. The effective role is attributed to the petitioner and petitioner alone. The complainant had no enmity, whatsoever, for falsely implicating the petitioner, and thus nothing was unlawfully and maliciously gained through the delay in question. The same accused was subsequently arrested on 11.9.2001 from the College Road.
Learned counsel had serious reservations about the recovery of dagger at a belated stage and that it was never smeared with blood so as to justify the false report of chemical examiner. In the light of what subsequently occurred during trial and what the accused stated in his statement under Section 342, Cr.P.C, the recovery of dagger or its having been stained with blood or not, becomes completely immaterial. The accused has admitted in his statement that he had inflicted dagger blow to the deceased. Even otherwise, the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence. If other evidence goes to prove the case independently, the recovery is not essential at all.
Lastly, we come to the statement of accused under Section 342 Cr.P.C where he has taken the plea of self-defence. The relevant portion is the answer to Question No. 7, which should be kept in view, as follows:--
"Q.No. 7: Why this case is against you and why the PWs have deposed against you?
Ans: I am resident of Dogranwali, P.S. Cantt
Gujranwala and earn my two times meals by manual labour. On the day of occurrence I was sitting in Islamia College ground and a cricket match was being played there. Sajid deceased sat near to me, who was not previously known to me nor I had ever met him, nor I had ever any enmity, grudge or money transaction with Sajid deceased. Even I had not seen Sajid deceased previously.
There myself and Sajid deceased had betted on the match. Firstly, Sajid deceased won the bet but when my turn of winning the bet came, the deceased displayed an attitude of stinginess in giving the bet amount whereupon, 1 refused to bet again but Sajid deceased insisted to bet again. I once again won the bet and at the time of bet amount was double. Sajid deceased refused to give the bet amount for which I beseeched the deceased and in return, Sajid took a chhuri' from a nearby parked fruitrehri' and raised a lalkara' for giving a taste to me for demanding the bet amount. Sajid deceased assaulted upon me withchhuri' and I warded off the blow of chhuri' with my hand as a result of which, my hand was wounded but the local police with ulterior motives did not get my wounded hand medically examined. During this sudden fight, Sajid deceased also received achurri' blow. It was Sajid deceased who started the fight/quarrel and I in self-defence as well as to save mv own skin, the
`chhuri' blow was received.' It was not a preplanned fight, nor I had had any money dispute with the deceased. Nothing was recovered from possession. The dagger was planted upon me just to strengthen the prosecution case. The PWs have deposed against me being related inter se." (underlining improvised)
We cannot avoid, but, to remark that this answer has rather proved the case of the prosecution. The accused is narrating that he and the deceased had resorted to betting over the match. That Sajid deceased lost the bet on more than one occasion but refused to pay the stake amount. This leads us to a reasonable conclusion that both were not strangers to each other and only friends or acquaintance could be joined in the gamble of betting. Such circumstance supports the complainant version in the FIR that both were already known to each other.
The accused had taken the plea that the deceased initiated the attack with dagger and that he acted in self-defence after snatching dagger from the deceased. The deceased, in that case, would be deemed to have been armed with one and the only weapon. Once that weapon was snatched by the accused, no right of private defence remained in play because by that action the deceased had become unarmed. No right of private defence remained available to the accused, the moment the dagger fell into the hands of accused from the alleged assailant. According to accused, after snatching the dagger, he had no apprehension or danger to his life at the hands of the deceased and thus, not only that he had no right to attack the deceased, but had no justification to inflict as many as seven fatal dagger blows on the deceased. It was a move provenly offensive and not defensive at all. So is the case of prosecution that the accused opened an attack at the deceased. The circumstances are more akin to the prosecution version rather than to the defence version which culminates into nothing but a cock and bull story.
The statement under Section 342, Cr.P.C is not necessarily to be accepted as a whole because it cannot be equated with a confessional statement. A statement, where right of private defence is claimed, cannot be dubbed as confessional statement. Rather, the statement under Section 342, Cr.P.C of the accused in the instant case can conveniently be interpreted as an admission of fact that the deceased was killed at the hands of the accused. It, rather, goes to prove the case of prosecution. The story advanced in statement of the accused is not, at all, supported by the prosecution evidence.
In the circumstances, the petitioner convict was rightly held guilty by the learned trial Court as well as by the learned High Court. The impugned judgment dated 8.5.2008 of the High Court is upheld. There being no merit in the instant petition, it is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 1066
[Appellate Jurisdiction]
Present: Sadar Muhammad Raza Khan & Mian Hamid Farooq, JJ.
Syed MASOOD ALAM RIZVI, etc.--Petitioners
versus
Dr. MUHAMMAD SAEED and another--Respondents
Crl. PLA No. 176 and 219 of 2008, decided on 1.12.2008.
(On appeal from order dated 21.5.2008 of the Lahore High Court, Lahore, passed in Criminal Original No. 323-W of 2008).
Contempt of Court--
----Question, whether order of High Court to issue notice to a person for a date "to be charged in contempt" is an interim order or final order--Held: The words "to be charged in contempt" are of utmost significance--It flows therefrom that High Court summoned the petitioner to charge him for committing contempt of Court--It appears from the tenor of the order that the Judge after proper application of mind and with determination to proceed against the petitioner under contempt laws issued notice to him--Therefore, the said order for all intents and purposes is a final order and hence could be assailed before Court. [P. 1069] A
Second petition--
----Contempt of Court--Question, whether during pendency of "first petition", the "second petition" was competent in law--Held: Litigant cannot be allowed to file repetitive petitions on the same subject matter and for the same relief under the circumstances, "second petition" was not competent in law during pendency of "first petition" and it deserved to be dismissed on the short ground that "first petition" stood dismissed on merits by High Court--Held: Matter of contempt is between the Court and the alleged contemner, it was upto the Court either to take any appropriate action against the alleged contemnors or drop the matter--Order accordingly.
[Pp. 1070 & 1072] B & C
Mr. Amir Alam Khan, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitions (in Crl. PLA No. 176 of 2008).
Mr. Ihsan-ul-Haq Chaudhry and Ch. M. Akram, AOR for Respondent (in Crl. PLA No. 176 of 2008).
Mr. Ihsan-ul-Haq Chaudhry and Ch. M. Akram, AOR for Petitioner (in Crl. PLA No. 219 of 2008).
Mr. Amir Alam Khan, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents (in Crl. PLA No. 219 of 2008).
Date of hearing: 1.12.2008.
Judgment
Mian Hamid Farooq, J.--We, through this single judgment, propose to decide two connected petitions (Crl.PLA No. 176 of 2008 & Crl.PLA No. 219 of 2008), as identical questions of law and facts are involved in both the petitions and those are between the same parties.
Syed Masood Alam Rizvi, etc (the petitioners), through filing the petition (Crl. PLA No. 176 of 2008), seek leave to appeal against order dated 21.05.2008, whereby learned Lahore High Court at Lahore directed Petitioner No. 1 to file reply to the Criminal Petition (Crl. Org. No. 323-W of 2008) to be charged in contempt and issued notices to other petitioners, while Dr. Muhammad Saeed (`the respondent') through filing other petition (Crl. PLA No. 219 of 2008), seeks leave to appeal against order dated 27.05.2008, passed by the learned Lahore High Court at Lahore, through which it dismissed his petition (Crl. Org: No. 383-W of 2007) for initiating contempt proceedings against the petitioners.
Facts, relevant for the decision of the afore-noted petitions, are that the respondent, through the constitutional petition (Writ Petition No. 1753 of 2006), challenged the notification dated 14.11.2005, whereby his case for promotion to BS-21 was rejected and other doctors allegedly junior to him were promoted. Said petition was disposed of by the learned High Court, on 25.07.2006, directing the petitioners to complete service record of the respondent and subject to his eligibility present the same before the competent authority for considering his merit and fitness for promotion. Professor Anwar A. Khan (Petitioner No. 3 in Crl. PLA No. 176 of 2008) challenged the said decision through filing the appeal (ICA No. 258 of 2006) and the learned Division Bench of the Lahore High Court at Lahore partially modified the order dated 25.07.2006 holding that the grant of BS-21 is a matter for the competent authority to consider, vide judgment dated 18.10.2006. The respondent challenged the said judgment through filing civil petition (CPLA No. 2388-L of 2006), which was disposed of by this Court, vide order dated 02.02.2007, observing that "on completion of the record of the petitioner, the same should be placed before the competent authority for examining his case for promotion to BS-21 in accordance with law and prevailing policy". According to the respondent, various written and oral requests, including a legal notice, for implementation of afore-stated orders passed by the High Court and this Court proved abortive and his grievance was not redressed. He, on 13.06.2007, filed the contempt petition (Crl. Org. No. 383-W of 2007) (`First petition') for initiating contempt proceedings against Syed Masood Alam Rizvi, (Petitioner No. 1) who resisted it through filing the reply. It appears that in the meantime cases of certain persons, including the respondent, for grant of BS-21 under meritorious basis were submitted to the Establishment Division, Government of Pakistan, however, none of the officers of Sheikh Zayed Post Graduate Medical Institute, Lahore (SZPGMI) was approved for grant of BS-21 on the said basis and this was communicated, vide order dated 17.01.2008. During the proceedings, in the "First Petition" the learned High Court, on 17.03.2008, directed the petitioners "to take all steps to comply with" the order dated 02.02.2007, and present the case before the competent authority for regular promotion to BS-21 as directed by the High Court and by this Court. The learned counsel for the petitioners was further directed to file report on or before 15.04.2008. Pursuant thereto the report, in compliance with order dated 17.03.2008, coupled with the minutes of the meetings of department held on 31.03.2008, was submitted before the Court. It was reported that the committee considered the case of the respondent and concluded that there is no regular post available in BS-21, against which any of the Professors could be promoted and no Professor was promoted to BS-21 through regular promotion. During pendency of the "First petition", the respondent, on 20.05.2008, opted to file another petition (Crl. Org. No. 323-W of 2008) "Second Petition" against the petitioners, which came up for hearing before the learned High Court on 21.05.2008 and the learned single Judge in Chambers issued notice to the Petitioner No. 1 (Syed Masood Alam Rizvi) "to be charged in contempt" and also issued notices to the other respondents. Syed Masood Alam Rizvi alongwith others challenged the order dated 21.05.2008 before this Court through Crl. PLA No. 176 of 2008. During pendency of the "second petition", the learned High Court after hearing the learned counsel for the parties, dismissed the "First petition" (Crl. Org. No. 383-W of 2007), vide order dated 27.05.2008, which is the subject matter of the Crl. PLA No. 219 of 2008 filed by the respondent.
Learned counsel for the petitioners submitted that successive contempt petitions on the same subject matter and arising out of one order could neither be entertained nor competent before the High Court; that in view of dismissal of first contempt petition on 27.05.2008, the "second petition" lost its efficacy; that the directions of the High Court as well as of this Court were complied with in letter and spirit, therefore, the petitioners were not guilty of committing contempt of the Court; that the respondent could not seek promotion in regular course after the post of Professor and that he filed two contempt petitions to compel the petitioners for creating a post of BS-21 for him. Conversely, learned counsel representing the respondent submitted that since order dated 21.05.2008 was an interim order, therefore, could not be assailed before this Court. He further submitted that orders passed by the High Court as well as by this Court for promotion of Dr. Muhammad Saeed to BS-21 were not complied with and thus the petitioners committed contempt of the Court and the learned High Court while dismissing first contempt petition committed grave legal error.
We have heard the learned counsel for the parties and deeply examined order dated 21.05.2008 in order to determine as to whether it is an interim order or a final order. We found that the learned single Judge while issuing notice to Petitioner No. 1 (Syed Masood Alam Rizvi) specifically directed that notice be issued to him for a date "to be charged in contempt". The words "to be charged in contempt" are of utmost significance. It flows therefrom that the learned High Court summoned the Petitioner No. 1 to charge him for committing contempt of Court. It appears from the tenor of the order that the learned Judge after proper application of mind and with determination to proceed against the Petitioner No. 1 under contempt laws issued notice to him. We have no doubt in our mind that the learned single Judge was convinced that the Petitioner No. 1 committed contempt of the Court and he be charged for contempt and that appeared to be the reason why the Petitioner No. 1 was issued notice to be charged in contempt, while rest of the petitioners were issued notices only to file reply to the "second petition". In view whereof, as the learned Judge expressed his mind to charge the Petitioner No. 1 in contempt proceedings, therefore, the said order for all intents and purposes is a final order and hence could be assailed before this Court.
The respondent filed the "second contempt" petition (Crl. Org. No. 323-W of 2008) on 20.05.2008, when his "first petition" (Crl. Org. No. 383-W of 2007) was pending. It may be noted that the respondent admitted in para 2 of the "second petition" that, "it is the second contempt petition". The "first petition" was dismissed on merits by the High Court on 27.05.2008. Now the question arises, as canvassed by the learned counsel for the petitioners, as to whether during pendency of the "first petition", the "second petition" was competent in law. We compared the contents of the afore-noted two petitions and found that paras 3 to 13 of the "second petition" are merely reproduction of paras 2 to 12 of the "first petition, while rest of the paras are rejoinder to the reply of the "first petition". Admittedly, the respondent filed the "second petition" on the same subject matter and seeking same relief for no apparent reasons. His "second petition" does not even feebly indicate as to what were the reasons necessitating filing of the "second petition". Even the learned counsel for the respondent could not demonstrate from the available record as to why the second petition on the same subject matter was filed and that too at a stage when his "first petition" for same relief was pending before the same High Court. A litigant cannot be allowed to file repetitive petitions on the same subject matter and for the same relief. Under the circumstances, we are of the view that "second petition" was not competent in law during pendency of the "first petition" and it deserved to be dismissed on the short ground that the "first petition" stood dismissed on merits on 27.05.2008 by the High Court. It was noted in para 2 of the "second petition" that, "The first contempt petition No. Crl. Org. No. 383-W/2007 was heard by his lordship Mr. Justice Maulvi Anwar-ul-Haq". The learned Judge in Chambers, it appears, on 21.05.2008 without noticing that the "first petition" was pending proceeded to summon the petitioners in the "second petition" and directed them to file reply to the "second petition" inasmuch as Petitioner No. 1 was called upon to file reply to be charged in contempt. We are unable to subscribe view of the learned High Court to summon the petitioners in the "second petition". Proper course for the High Court would have been, on 21.05.2008, to adjourn the "second petition" to be heard alongwith the "first petition". Under the facts and circumstances of the present case the "second petition" was incompetent and not maintainable in law and, therefore, was liable to be dismissed.
Even otherwise the respondent has got no case on merits. It appears appropriate to reproduce operative portions of different orders passed by the High Court and by this Court.
(i) Order dated 25.07.2006 passed in respondent's petition (Writ Petition No. 1753 of 2006) by the learned single Judge of Lahore High Court at Lahore:--
"It goes without saying and is so directed that the respondents shall act expeditiously in the matter of completing the service record of the petitioner and, subject to his eligibility, presenting the same before the competent authority for considering the petitioner's merit and fitness for promotion. The needful for the completion of the said record shall be accomplished by the respondents within four weeks after the receipt of a certified copy of this order. Disposed of."
(ii) Order dated 18.10.2006 passed in Petitioner No. 3's appeal (ICA No. 258 of 2006) passed by the learned Division Bench of the Lahore High Court, Lahore:--
"The appeal is accordingly disposed of with this modification that whereas the service record of Respondent No. 1 needs to be completed expeditiously, the grant of BS.21 is a matter for the competent authority to consider in the light of the prevailing policy."
(iii) Order dated 02.02.2007, passed by this Court in respondent's petition (CPLA No. 2388-L of 2006):--
"After hearing the learned counsel for the parties and going through the order passed by Lahore High Court, Lahore in WP No. 1753/2006, (dated 25.07.2006) and in ICA No. on completion of record of the petitioner, the same should be placed before the competent authority for examining his case for promotion to BS-21, in accordance with law and prevailing policy."
The respondent alleging violation and disobedience of orders dated 25.07.2006 and 02.02.2007 filed the afore-stated two contempt petitions. Record of the case manifests that pursuant to the said orders, the petitioners completed the missing service record of the respondent and referred the case to the Committee for the grant of BS-21 on meritorious grounds and then in compliance with the order dated 17.03.2008 meeting of the Committee was convened for considering the case of the respondent for regular promotion to BS-21. It is evident from the report of the Committee that the said exercise was undertaken in obedience to order dated 17.03.2008 and the Committee came to the conclusion that no professor could be promoted to regular BS-21 through regular promotion and that no regular post in BS-21 exists against which any professor could be promoted. Relevant portion whereof has been reproduced in the impugned order dated 27.05.2008. The petitioners by submitting the case of the respondent before the competent authority complied with the directions of the High Court and by this Court, thus it cannot be argued that the petitioners failed to comply with the directions passed by the learned High Court and by this Court. Under the circumstances, no case for initiating contempt proceedings was made out against the petitioners. The learned High Court while dismissing "first petition" did not commit any error in law rather it after examining the entire record of the case and orders passed at different stages rightly decided the case after giving cogent reasons, which are not only in accordance with the record of the case but also in consonance with the law on the subject. We are not persuaded to reverse the findings of the learned High Court rendered in order dated 27.05.2008.
There is another aspect of the case. Admittedly, letter dated 17.01.2008 issued by the Cabinet Division informing that "none of the officer of SZPGMI has been approved for grant of BS-21 on meritorious basis" was not challenged by the respondent before any forum and he instead of assailing the said order before the competent Court of law opted to file the "second petition". We have a feeling that the respondent endeavored to secure his promotion through exercise of pressure tactics and by filing repetitive contempt petitions and thus even equity does not lean in his favour.
Assuming a case for initiating contempt proceedings was made out against the petitioners, even then in view of the settled law, that a matter of contempt is between the Court and the alleged contemnor, it was upto the Court either to take any appropriate action against the alleged contemnors or drop the matter. On this count too the respondent has got no case.
For the foregoing reasons, Crl.PLA No. 176 of 2008, filed by Syed Masood Alam Rizvi, etc is converted into appeal and allowed; consequently order dated 21.05.2007, passed by the learned High Court is set aside and Crl. Org. No. 323-W of 2008 stands dismissed, while Crl. PLA No. 219 of 2008, filed by Dr. Muhammad Saeed, being meritless is dismissed and leave refused.
(M.S.A.) Order accordingly.
PLJ 2009 SC 1072
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
Mst. SHAUKAT ARA--Petitioner
versus
Mst. BANU BEGUM decd. through LRs. & others--Respondents
Civil Petition No. 163-P of 2008, decided on 16.4.2009.
(On appeal from the judgment dated 25.6.2008 of the Peshawar High Court, Peshawar passed in CR. No. 176 of 2008).
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13--Question--Whether ex-parte shall be set aside as a whole or partially--Held: Relief can only be extended to a party who had approached the Court for setting aside the ex-parte decree on available grounds under the law, including the one that the applicant seeking setting aside ex-parte decree was not heard or allowed to represent himself/herself before the Court--Petition accepted.
[P. 1074] A
AIR 1952 Bombay 446, ref.
Mr. Muhammad Asif, ASC with Petitioner.
Mian Muhammad Younas Shah, ASC for Respondents.
Date of hearing: 16.4.2009.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition for leave to appeal calls in question the judgment dated 25.6.2008 of the Peshawar High Court, Peshawar in Civil Revision No. 176 of 2008.
Precisely stating the facts and circumstances of the case are that the predecessor-in-interest of respondent Mst. Bano Begum instituted a suit for declaration to the effect that she was the owner in possession of the property measuring 6 kanals 14 1/2 marlas out of 11 kanals and 5 1/2 marlas and the Mutation No. 245 attested on 17.4.1947 in favour of Habibur Rehman, the predecessor in interest of Defendants No. 1 to 11 was ineffective on her rights. The suit was decreed ex-parte in favour of the plaintiff on 26.7.2006. Petitioner Mst. Shoukat Ara filed an application for setting aside ex-parte decree but could not make out a case before the trial Court as her application was dismissed on 20.2.2007. The appeal preferred against this order also failed before the Additional District Judge, Peshawar, who dismissed the same vide order dated 9.2.2008. Subsequent thereto the revision noted above was filed which also dismissed.
We have heard the parties' learned counsel and also requisitioned the record to examine whether service upon Mst. Shoukat Ara was duly effected or not. The learned counsel for the petitioner and the respondents during hearing of the petition entered into the compromise, the contents whereof reads as under:--
"We agree that the application of Mst. Shaukat Ara alone for setting aside ex-parte decree may be accepted and for the remaining defendants ex-parte decree may remain intact and the ex-parte decree to the share of Mst. Shaukat Ara in disputed property may be set aside and the case may be remanded back to trial Court to decide on merits after recording the evidence by giving opportunity to both the parties.
"4. Mr. Bhaba asked us to consider what would happen after the decree is set aside and the Court dismisses the suit against Defendant No. 1. In our opinion, that is not a consideration that can weigh with the Court when it considers the proviso to O. IX, R. 13. The right to set aside the ex parte decree is conferred expressly only upon the party who applies to set aside the ex parte decree. As against the parties who have not applied, the plaintiff has obtained a valuable right, he has obtained a decree against those defendants, and that valuable right can only be defeated provided the Court itself funds a difficulty in setting aside the ex parte decree only against the defendant who has applied to do so. But there, is no right whatever in the party who has not applied to set aside the ex parte decree to have that decree set aside. Mr. Bhaba's client had the right to apply set aside ex parte. He did not choose to exercise that right; he submitted to the decree. It is not therefore for him to appeal against any injustice that might be caused by reason of the fact that a suit against Defendant No. 1 may be dismissed on the same cause of action. He himself has no right conferred upon him by the Code. It is only difficulty that the Court might experience which has led the Legislature to enact the proviso."
Thus, the compromise reproduced hereinabove is accepted. The ex-parte decree dated 26.7.2006 only to the extent of petitioner is set aside. Her case is remanded to the Civil Judge, Peshawar for decision afresh after granting opportunity of defending the suit in accordance with the law. As the matter is lingering on since long, therefore, the trial Court is directed to dispose of the case expeditiously as far as possible within a period of three months after receipt thereof.
For the foregoing reasons, this petition is converted into appeal and disposed of accordingly, leaving the parties to bear their own costs.
(M.S.A.) Appeal disposed of.
PLJ 2009 SC 1075
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
Syed ALTAF SHAH--Petitioner
versus
STATE--Respondent
Crl. R. P. No. 1-P of 2006 in Criminal Petition No. 63-P of 2005, decided on 19.12.2008.
Constitution of Pakistan, 1973--
----Art. 188--Supreme Court Rules 1980, O. XXVI--Review petition--Scope & maintainability--The case cannot be reopened on merits in view--Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other--Moreover any dispute which had already been resolved cannot be reviewed, even if the same had been resolved illegally--It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record--It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of rationcination--Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced--Review dismissed. [P. 1077] A
1992 SCMR 145, 1994 SCMR 157 & 2007 SCMR 755, ref.
Mr. Abdul Latif Yousafzai, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 19.12.2008.
Order
Ijaz-ul-Hassan, J.--Syed Altaf Shah, petitioner, has filed instant petition under Order XXVI of the Supreme Court Rules, 1980, read with Article 188 of the Constitution of Islamic Republic of Pakistan, 1973, seeking review of the order of this Court dated 12.6.2006, dismissing Criminal Petition No. 63-P of 2005 and maintaining judgment of the Peshawar High Court, Peshawar dated 28.4.2005.
Facts of the case have been elaborately mentioned in the impugned order and need not be reiterated here. Suffice is to state that huge quantity of `chars' weighing 160 KGs, was recovered from secret cavities of Datsun Pickup bearing Registration No. 9674/DGC. The petitioner was found driving the vehicle at the relevant time. The petitioner was tried by learned Additional Sessions Judge, Swabi and at the conclusion of trial, vide judgment dated 14.7.2004, petitioner found guilty of the said charge, was convicted under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment with a fine of Rs.50,000/- or in default whereof to undergo further two years R.I with benefit under Section 382-B Cr.P.C. The petitioner, feeling aggrieved, preferred criminal appeal before Peshawar High Court, Peshawar, which did not succeed. The same was dismissed vide judgment dated 28.4.2005. The petitioner also filed appeal in this Court, which met the same fate, vide order impugned herein.
Mr. Abdul Latif Yousafzari, Advocate appearing on behalf of the petitioner, vehemently contended that material on record has not been appreciated in the right direction; that petitioner had no conscious knowledge of the presence of contraband `chars' in the secret cavities of the vehicle in question; and that original owner was let off and the petitioner was made escape goat. Concluding the arguments, learned counsel contended that petitioner was a innocent carrier and this aspect of the case was not taken into consideration by this Court while awarding sentence to the petitioner. To substantiate the contentions, reliance was placed on Muhammad Rafique versus The State, (1990 SCMR 602), Mst. Husna Saadat versus The State, (2006 SCMR 1041), and Niaz-ud-Din versus The State, (2007 SCMR 206).
We have heard learned counsel and carefully examined the record. We find that the impugned order suffers from no error or mistake warranting review of the same. All the points agitated while arguing the review petition have been dilated upon and decided after going through entire record with care and caution. From whatever angle the matter may be examined, no case of review is made out. This is settled law that the case cannot be reopened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegally. Allah Ditta and others vs. Mehrban and others, (1992 SCR 145), Zafar Iqbal vs. Allotment Committee of Municipal Committee of Municipal Committee Mirpur and others, (1994 SCR 157) and Sh. Mehdi Hassan vs. Province of Punjab through Member, Board of Revenue and 5 others, (2007 SCMR 755).
The exercise of review jurisdiction does not mean a re-hearing of the matter and as finally attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of rationcination. It is not denied that if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Colour took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. The contentions of learned counsel for the petitioner as rightly urged, are nothing but reiteration of the same grounds, which were urged at the hearing of petition, but were rejected by this Court after consideration. These contentions cannot be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioner cannot obtain rehearing of the petition.
There is nothing on the file to show that the petitioner was carrier. No such plea has been taken by the petitioner in his statement under Section 342 Cr.P.C. This aspect of the matter has been duly considered by this Court and dealt with appropriately.
In the circumstances, finding no ground for review, this petition is dismissed with no order as to costs.
(M.S.A.) Petition dismissed.
PLJ 2009 SC 1078
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabir &
Syed Sakhi Hussain Bukhari, JJ.
UMER KHAN--Petitioner
versus
HAJI MUSA JAN--Respondent
C.P.F.L.A. No. 76-Q of 2007, decided on 8.4.2009.
(On appeal from the judgment dated 21.6.2007 of High Court of Balochistan, Quetta, passed in RFA No. 57 of 2002).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Suit for recovery under O. 37, R. 2, CPC--Application for leave to defend the suit--Leave refused--Assailed--Leave to defend--Object--Scope--Held: Order 37 merely provides special procedure to be followed in suits covered by Rule 2 and the defendant appearing in the Court has to seek leave to defend the suit by filling an application under Rule 3 of Order 37--Court would grant leave to defend the suit whether conditional or unconditional, where the petitioner through affidavit with the application for leave to defend would show "plausible defence" or showing some substantial question of fact or law which needs to be tried--If application for leave to defend is not allowed by the Court then no option is left with the Court but to decree the suit without recording of evidence and that because object of speedy and summary trial would be defeated--Leave refused. [Pp. 1079, 1080 & 1081] A, B & C
Mr. Kushnood Ahmed, ASC and Mr. Mehta W.N. Kohli, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 8.4.2009.
Judgment
Muhammad Akhtar Shabbir, J.--Petitioner seeks leave to appeal against the Judgment dated 21.06.2007, passed by the High Court of Balochistan, Quetta, in RFA No. 57 of 2002.
The facts of the case are that the plaintiff, respondent herein, had filed suit for recovery of Rs.4,50,000/- under Order 37 Rule 2 C.P.C averring in the plaint that defendant-petitioner had purchased a vehicle Toyota Corolla, Model 1983, bearing Registration No. AA-0251 from the respondent for a consideration of Rs.4,50,000/-. In this regard an agreement dated 10.10.2000 had been executed, wherein it was agreed that the sale consideration of vehicle would be paid within three months i.e upto 10.01.2001. Defendant-petitioner further issued a Cheque Bearing No. 06583227 dated 10.10.2000 drawn on Habib Bank Limited Satellite Town Branch in favour of plaintiff-respondent. Defendant also executed "Promissory Note" in favour of plaintiff. As per plaintiff Cheque when presented before the Bank was bounced, whereafter the plaintiff approached the defendant who delayed the matter on one pretext or the other and lastly refused to pay the amount. The defendant in response to the notice issued to him filed an application seeking leave to defend the suit. The trial Court without disposal of the application directed the defendant to file his written statement, which was accordingly filed, meanwhile one Fazal-ur-Rehman had also filed an application under Order 1, Rule 10 C.P.C read with Section 151 C.P.C for his impleadment as defendant. The said application had been dismissed by the Court on 4.07.2002. The application for leave to defend the suit filed by the present petitioner had also been dismissed, refusing the leave to defend the suit. Resultantly the suit was decreed vide, Judgment and Decree dated 8.09.2002. Feeling aggrieved of same petitioner filed RFA No. 57/2002 before the High Court of Balochistan, Quetta, which was dismissed by the Division Bench vide impugned judgment.
Learned counsel for the petitioner contended that Court has directed the petitioner to file written statement and in compliance to the said Order petitioner filed the same in the Court. Further contended that Court had initiated proceedings in the suit but thereafter dismissed the application for leave to defend illegally. Further contended that petitioner had disclosed a plausible defence in his application which should have been granted either conditionally or unconditionally. Further contended that once the Court has started proceedings and adopted a procedure and the said suit should have been concluded under that procedure.
We have heard the learned counsel for the petitioner, perused the record.
It is admitted position that suit has been filed by the petitioner under Order 37, Rule 2 CPC on 20.06.2002. Order 37 merely provides special procedure to be followed in suits covered by Rule 2 and the defendant appearing in the Court has to seek leave to defend the suit by filing an application under Rule 3 of Order 37. The relevant provisions of the said Rule are reproduced as under:--
"3. Defendant showing defence on merits to have leave to appear...
(1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to application under sub-rule (1)."
From plain reading of the above provisions it is manifestly clear that defendant may apply for leave to appear and defend or should file an affidavit disclosing a defence. In this context reference can be made to case of Haji Ali Khan & Co., Abbotabad & 8 others Vs. Allied Bank of Pakistan Limited, Abbotabad (PLD 1995 SC 362), wherein it has been laid down that leave can be granted if a defendant upon affidavit discloses such facts as would made it incumbent on the holder of the document on the basis of which suit had been filed.
The petitioner has raised a defence in his application for leave to defend that actually the vehicle had been sold out by the plaintiff to one Fazal-ur-Rehman and the petitioner had signed all the documents produced in the Court just on the assertions of plaintiff as "guarantor" for Fazal-ur-Rehman. The petitioner had not denied the execution of Agreement, Promissory Note and the Cheque in dispute meaning thereby that petitioner has admitted his signature on the Cheque. It is settled law that the Court would grant leave to defend the suit whether conditional or unconditional; where the petitioner through affidavit with the application for leave to defend would show "plausible defence" or showing some substantial question of fact or law which needs to be tried as laid down in cases Fine Textile Mills Ltd., Karachi Vs. Han Umar (PLD 1963 SC 163), Mian Rafiq Saigol & another Vs. Bank of Credit and Commerce International (Overseas) Ltd & another (PLD 1996 SC 749), Messrs National Security Insurance Company Limited & others Vs. Messrs Hoechst Pakistan Limited & others (1992 SCMR 718) and Ch. Mawsood Ahmed Vs. Khalid Pervaiz (1990 CLC 1536).
From minute scrutiny of the record we find that affidavit filed by the petitioner with his application for leave to defend the suit did not disclose facts and prove "prima facie" "plausible defence", therefore, it would be inferred that affidavit is not in accordance with the provision of Rule 3, Order 37. The petitioner has admitted his signature on the affidavits, promissory note and the agreement. A prudent mind would not accept the stance of the petitioner that he signed all the three documents as surety/guarantor for one Fazal-ur-Rehman. The trial Court has rightly dismissed the application for leave to defend filed by the petitioner as petitioner has failed to make out a case for grant of leave to defend the suit.
As to the argument of the learned counsel for the petitioner that the Court has directed petitioner to file written statement and adopted the other procedure, the answer would be that suit was filed by the plaintiff-respondent under Order 37, Rule 2 C.P.C, a special procedure has been provided in the said Order, to be followed in suits instituted upon bill of exchange, Hundies or promissory notes and where the defendant had defaulted for obtaining prescribed leave for his appearance for defending the suit. If application for leave to defend is not allowed by the Court then no option is left with the Court but to decree the suit without recording of evidence and that because object of speedy and summary trial would be defeated. If the Court without adverting to the special procedure provided under the law has directed the petitioner to file written statement and thereafter adopted valid and required procedure has not committed any illegality. After hearing the learned counsel for the petitioner and examination of the record, we do not find any illegality, infirmity in the impugned judgments of the Courts below.
For the foregoing reasons, we do not find any substance in this petition, which is dismissed. Leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 1081
[Appellate Jurisdiction]
Present: M. Javed Buttar & Sabihuddin Ahmed, JJ.
MUHAMMAD ALI and others--Petitioners
versus
PROVINCE OF PUNJAB and others--Respondents
Civil Petition No. 1838 of 2008, decided on 11.3.2009.
(On appeal against the judgment dated 22.10.2008 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in C.R. No. 341-D of 2008).
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(2) & O. VII, Rr. 11 & 13--An order rejecting a plaint is most certainly a decree in terms of the definition of the expression "decree" contained in Section 2(2), CPC which explicitly provides that the expression shall be deemed to include the rejection of a plaint--It would, therefore, follow that it would carry the same degree of finality and enforceability unless provided otherwise by law.
[P. 1084] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, Rr. 11 & 13--Rejection of plaint--Multiplicity of litigation--No doubt Order VII Rule 13 does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint--Nevertheless the underline words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored--For instance if a plaint under Order VII is rejected on the ground of the relief being undervalued or failure to affix proper Court fee stamps a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation--Nevertheless if the plaint is rejected after proper adjudication as to the non existence of cause of action or upon the suit being barred by law and findings could operate as resjudicate and would not enable the plaintiff to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief--Therefore, the question whether a fresh plaint could be presented under Order VII Rule 13 or otherwise would depend upon the nature of the order passed by the Court in rejecting a plaint under Order VII Rule 11--Leave refused. [P. 1484] B
PLD 2005 SC 511, ref.
Mr. Muhammad Ibrahim Khan, ASC and Mr. G.N. Gohar, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 11.3.2009.
Order
Sabihuddin Ahmed, J.--This petition is directed against a judgment of a learned single judge of the Lahore High Court (Bahawalpur Bench) dated 22.10.2008 dismissing Civil Revision No. 341-D of 2008 in limine.
No. 813 of 2003 was also filed during the pendency of the second suit on the same cause of action on 08.09.2003 without disclosing such pendency and without depositing costs of Rs.1000/- which came to be disposed of by rejection of plaint by the trial Court on 02.12.2004. It may be pertinent to mention here that the date of filing of the suit has not been divulged in the memo of petition before this Court and the title of several documents purported to be certified copies obtained from the office of the District Judge, Bahawalnagar including the written statements of the respondents, the applications under Order VII, Rule 11 and the challan regarding deposit of costs repeatedly show 08.09.2004 as the date of filing of the suit. The order rejecting the plaint passed by the trial Court does not contain the number of the suit or the year of its filing. Indeed it was important to consider whether the third suit was filed during the pendency of the second one or after the unconditional withdrawal of the latter. We are sadly disappointed in the casual manner in which certified copies of documents were prepared in the Court of District Judge, Bahawalnagar. Learned AOR for the petitioners not merely fail in referring to the date of filing of the third suit in the memo of petition itself but in fact went on to admit in the aforesaid memo that the said suit was filed "by concealing facts from the Court". We regret to say that such lapses in pleadings cause unnecessary wastage of time in dispensation of justice and need to be avoided.
"It is evident from the record that the petitioners had already filed a suit which was dismissed and appeal was also filed and the appeal also met with the same fate. The subject matter has already been decided by the Court of competent jurisdiction, therefore, the application U/O 7, Rule 11 CPC is hereby accepted and the plaint is hereby rejected U/O 7, Rule 11 CPC. Parties are left to bear their own costs."
Petitioners preferred an appeal against the said order which came to be dismissed by the Additional District Judge on 25.09.2008. Thereafter they preferred a civil revision application against the aforesaid order which was dismissed in limine vide the impugned judgment by the Honourable High Court. Learned counsel for the petitioners urged that an order rejecting a plaint could not be treated as a decree and, therefore, after rejection of one plaint another could always be presented. Moreover, he urged that the petitioners claim was never adjudicated upon on merits and, therefore, filing of successive suits either after withdrawal of one or after rejection of plaint could not be held to be barred upon the principles of resjudicata.
We have heard learned counsel and are not impressed by either of the contentions. In the first place an order rejecting a plaint is most certainly a decree in terms of the definition of the expression "decree" contained in Section 2(2) CPC which explicitly provides that the aforesaid expression shall be deemed to include the rejection of a plaint. It would, therefore, follow that it would carry the same degree of finality and enforceability unless provided otherwise by law. As such after the expiry of the period of limitation for a second appeal against the order dated 21.02.2005 passed by the learned Additional District Judge, the order rejecting the plaint acquired complete finality.
No doubt Order VII Rule 13 does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint. Nevertheless the underlined words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored. For instance if a plaint under Order VII, Rule 11 is rejected on the ground of the relief being undervalued or failure to affix proper Court fee stamps a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation. Nevertheless if the plaint is rejected after proper adjudication as to the non-existence of cause of action or upon the suit being barred by law the findings could operate as resjudicata and would not enable the plaintiff to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief. In our humble view therefore the question whether a fresh plaint could be presented under Order VII, Rule 13 or otherwise would depend upon the nature of the order passed by the Court in rejecting a plaint Under Order VII, Rule 11. A somewhat similar view appears to have been taken by this Court in Muhammad Salemullah and others Vs. Additional District Judge, Gujranwala and others (PLD 2005 SC 511).
In our opinion, therefore, in the instant case a fresh plaint even if permissible after rejection of the plaint by the trial Court could not be presented after the decree had been appealed against, disposed of and limitation for preferring a second appeal allowed to expire. Moreover, it is evident from the record that the third suit was filed by the petitioners during the pendency of the second one and was as such liable to be stayed in view of the mandatory provisions of Section-10 and could proceed only after the disposal of the second one. The moment petitioners abandoned their claim and unconditionally withdrew the second suit they could be held barred from pursuing the third suit on the same cause of action in terms of the spirit of Order XXIII, Rule 1. With profound respects in our humble opinion the provisions of Section-10 ought to be read along with Order XXIII, Rule 1 because otherwise the object of the latter could possibly be defeated. Nevertheless since a somewhat contrary view appears to have been taken by a two Member Bench of this Court in the case of Jeewan Shah Vs. Muhammad Shah and others reported in (PLD 2006 SC 202) we would avoid entering this controversy and leave it to a larger Bench to resolve the same in an appropriate case.
Be that as it may, even if it be assumed that the third suit was maintainable on grounds of it having been filed prior to withdrawal of the second one the fact remains that the fourth one was filed on the same cause of action after the unconditional withdrawal of the second one and dismissal of the petitioners appeal against the order rejecting the plaint in the third suit. Evidently both these factors were sufficient to render the suit not maintainable. Obviously when the petitioners had unconditionally withdrawn the second suit on 12.09.2003 the matter could not be reagitated through a fourth suit in 2006 because of the bar contained in Order II, Rule 2 and Order XXIII, Rule 1 as held by this Court, inter-alia, in Hashim Khan Vs. National Bank of Pakistan, Head Office At I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta (PLD 2001 SC 325) and Haji Muhammad Boota and others Vs. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979). At the same time the decree of the Court of Additional District Judge upholding the rejection of the plaint in the third suit could not enable the petitioners to wipe out its effect through bringing a fourth suit before the trial Court. We, therefore, find no substance in this petition and decline leave to appeal.
(M.S.A.) Leave refused.
PLJ 2009 SC 1085
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
MIAN GHAYASSUDDIN & others--Petitioners
versus
Mst. HIDAYATUN NISA & others--Respondents
Civil Petition No. 616-P of 2004, decided on 27.4.2009.
(On appeal from the judgment dated 28.6.2004 of the Peshawar High Court, Peshawar, passed in Civil Revision No. 614/2001).
Gift--
----Suit for declaration challenging the validity of gift deed depriving the plaintiff of his "Shari" share, decreed by trial Court--Appeal dismissed by ADJ--Revision also dismissed by High Court--Seeking leave to appeal against the concurrent findings of law and facts of Courts below--Held: Onus was heavily placed on the shoulders of petitioners to have proved that the transaction of gift was effected without exercising undue influence over the donor or that she had independent advice at the relevant time and that she had effected the transaction with her free will and consent--Such onus has not been discharged satisfactorily--At the time of the gift mutations, the alleged donor was an old lady of 90 years of age--She remained under treatment and was found to have lost the faculty of memory and understanding--Alleged donor expired in the hospital--The mutations were attested close to the date of her ailment and death--Leave refused. [P. 1087] A & B
Sh. Wazir Muhammad, ASC for Petitioners.
Nemo for Respondents.
Date of hearing: 27.4.2009.
Judgment
Ijaz-ul-Hassan, J.--By this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave to appeal is sought from a judgment of the Peshawar High Court, Peshawar, dated 28.6.2004 whereby Civil Revision No. 614 of 2001 filed by Mian Ghayassuddin and others, petitioners, assailing concurrent judgments and decrees passed by Civil Judge and Additional District Judge, Swabi dated 25.5.200 and 1.10.2001, respectively, has been dismissed.
Facts of the case shortly narrated are, that respondents, brought a suit against the petitioners for declaration to the effect that they are entitled to their `Shari' share in "the legacy of Mst. Hamia Begum their mother and the alleged gift Mutations Nos. 3760 dated 13.9.1987 and 388 dated 25.2.1990 being based on fraud and mis-representation, are ineffective upon their rights and equally the subsequent mutations based on the above two mutations are also illegal and ineffective qua their rights.
The suit was resisted on all grounds, legal as well as factual. The pleas of the parties gave rise to the framing of as many as 11 issues. After recording such evidence as the parties wished to adduce in support of their respective stances, suit was decreed by learned Civil Judge, Swabi vide judgment dated 30.5.1994. An appeal was preferred there-against which was accepted by learned Additional District Judge, Swabi and matter was remanded to the trial Court for framing additional issues. After remand, suit was again decreed on 25.5.2000. The appeal filed there-against was dismissed on 1.10.2001. Finally the petitioner approached the Peshawar High Court, Peshawar through Civil Revision No. 614 of 2001. The said revision was dismissed vide judgment and order dated 28.6.2004, necessitating the filing of instant petition for grant of leave to appeal.
Sh. Wazir Muhammad, Advocate, appearing on behalf of the petitioners reiterating the contentions which he urged before learned High Court attempted to argue that impugned judgment as well as judgments and decrees of the Courts below, are based on misreading and non-reading of evidence and misconception of law. He also contended that sale against consideration coupled with possession on the basis of consistent revenue entries and later on further acted upon by consideration and enjoying the facilities of buildings as owner is protected under Section 41 of the Transfer of Property Act 1882 but learned Courts below ignored this aspect of the matter, resulting in manifest injustice. Reliance was placed on Sudhangshu Bimal Biswas vs. MD. Mustafa Chowdhury (1968 SCMR 213).
Having re-examined the material on file in the light of the submissions of learned counsel for the petitioners, we are of the view that no case for grant of leave is made out. Learned counsel, despite his best efforts, could not point out any misreading or non-reading of the evidence on record. Learned lower Courts have fairly apprised the evidence before recording concurrent findings, which findings have been upheld by learned High Court cogently assigning sound and valid reasons. The mere assertion of the learned counsel that judgments and decrees of the Courts below and affirmed by learned High Court suffer from the vice of mis-reading and non-reading of evidence, without a positive attempt on his part to substantiate the same, is of no consequence. The onus was heavily placed on the shoulders of petitioners to have proved that the transaction of gift was effected without exercising undue influence over the donor or that she had independent advice at the relevant time and that she had effected the transaction with her free will and consent. This onus has not been discharged satisfactorily. As against that, the evidence produced by the other side, if taken alongwith the admission made by the petitioners and the witnesses produced by them clearly establish that the gift mutations in question were effected in a very dubious and deceptive manner. It has come on record that at the time of the gift mutations Mst. Hamia Begum, the alleged donor was an old lady of 90 years of age. She remained under the treatment of Dr. Sibtain Anwar and was found to have lost the faculty of memory and understanding. It may be noted here that Mst. Hamia Begum expired in the hospital. The mutations were attested close to the date of her ailment and death.
Learned High Court in the impugned judgment has examined, scanned and scrutinized each material piece of evidence in relation to the controversy involved and has drawn a definite conclusion for reasons based up on the evidence on record. The impugned judgment in our view, is not open to any exception in the light of the well settled principles laid down by this Court, justifying interference in the concurrent findings of facts. Even otherwise no substantial question of law of public importance is involved in this petition. The case law relied upon by learned counsel is distinguishable and of no help to the case of the petitioner.
Pursuant to above, finding no substance in this petition, we dismiss the same and decline to grant leave.
(M.S.A.) Leave refused.
PLJ 2009 SC 1088
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
Mian SHAHID IQBAL--Petitioner
versus
Sheikh TARIQ MEHMOOD--Respondent
Civil Petition No. 650 of 2009, decided on 15.5.2009.
(On appeal from the order dated 13.3.2009 of the Lahore High Court, Lahore passed in Writ Petition No. SAO No. 6 of 2009).
West Pakistan Urban (Rent Restriction) Ordinance, 1959--
----S. 5-A--No requirement for a land lord to call upon the tenant to increase to rent at the rate of 25% on the expiry of every three years.
[P. 1090] A
2000 SCMR 207 & 1994 SCMR 1900, ref.
West Pakistan Rent Restriction Ordinance, 1959--
----S. 5-A--Application for ejectment--Rent Controller passed order for depositing the amount of arrears of the rent--Rent Controller struck off the defence of the petitioner/tenant for not depositing the rent and for non-compliance of the order--Appeals were dismissed--Leave to appeal--Held: By means of Section 5-A of the Ordinance, 1959, which has created statutory duty upon the tenant to increase rent notwithstanding the fact whether it had become time barred, the Rent Controller can direct to deposit the same in compliance of the provisions and once the compliance has been made, the petitioner or the tenant can express his reservation before the rent controller for finally determining the same at the time of adjudication by contending that his ejectment could not be directed in view of given situation when there is no default and the claim of the landlrod has become time barred but not by refusing or to commit default in the payment of rent nor the ejectment proceedings could be questioned merely for the reason that rent due was made part of the time barred rent, and, therefore, the ejectment application at least can be maintained under the provisions of the Ordinance, 1959--Leave refused. [P. 1090] B
Malik Shahzad Ahmed Khan, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 15.5.2009.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition for leave to appeal is directed against the order dated 13.3.2009 of the Lahore High Court, Rawalpindi Bench passed in Second Appellate Order No. 06/2009.
"Para No. 4 as stated is incorrect hence denied vehemently. In reply to this para it is submitted that as per rent agreement dated 20.7.1999 the petitioner received Rs.700,000/- in cash from the respondent as security which is still lying with the petitioner, who is legally bound to return the same. So far as Section 5-A of Punjab Rent Restriction (Amending) Act, 1991 an increase of 25% of rent after every three years is concerned it is submitted that the shop in question was rented out to the respondent @ Rs.8,000/- per month from 20.7.1999 initially for a period of 7 years extendable by the mutual consent of the parties and as per clause 6 of the rent agreement dated 20.7.1999 it was agreed between the parties that the rate of rent would be enhanced @ 15% after every three years and in this regard the first increase in rent was made on 21.7.2002 and since July, 2002 to June, 2005 the respondent had paid rent to the petitioner @ Rs.9,200/- per month. Second increase was made in July, 2005 and since July, 2005 till today the respondent had been paying the rent @ Rs.10,600/- per month after increase of 15% therefore, Section 5-A of Urban Restriction (Amending) Act, 1991 is not applicable to the case in hand."
Learned Rent Controller passed order on 24.1.2008 for depositing the amount of arrears of the rent of Rs. 1,54,700/- on or before 15.3.2008. Admittedly, the order was not complied with and in the meanwhile, the petitioner filed constitutional petition before the High Court, which was dismissed, however, later on the outstanding amount was deposited on 7.7.2008. Learned Rent Controller on 12.5.2008 struck off the defence of the petitioner for not depositing the rent and for non-compliance of the order. Against this order, appeal was filed, which was dismissed by the learned Additional District Judge on 29.1.2009 and Second Appeal has also been dismissed by the learned High Court, Rawalpindi Bench on 13.3.2009, as such; this petition for leave to appeal has been filed.
Learned counsel for the petitioner has contended that the Rent Controller had no jurisdiction to make direction for deposit of rent, which has become barred by limitation. Reliance has been placed by him on the case of Ashfaqur Rehman v. Choudhry Muhammad Afzal (PLD 1968 SC 230), wherein it has been held that the Rent Controller acting under Section 13(6) West Pakistan Urban Rent Restriction Ordinance, 1959 cannot direct the tenant to deposit rent in respect of which the legal remedy to recover had become barred under the statute of limitation, therefore, according to him, in view of such legal position, the defence of the petitioner tenant was not liable to be struck off.
To examine the arguments and the related proposition one has to keep in mind the development of the law after the pronouncement of above judgment, it would be worth to mention that after introduction of the West Pakistan Rent Statues i.e. West Pakistan Urban (Rent Restriction) Ordinance, 1959, latter on was adapted by all the provinces on dissolution of West Pakistan (by operation of law). As far as the province of the Punjab is concerned, it had incorporated Section 5-A in the Punjab Rent Restriction Ordinance, 1959, hereinafter referred to as `the Ordinance, 1959' provided increase of the rent of non-residential buildings at the rate of 25% of the rent already being paid by a tenant. The perusal of this statutory provision reveals that there remained no requirement for a landlord to call upon the tenant to increase the rent at the rate of 25% on the expiry of every three years. This Court has examined the proposition in the case of Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCMR 207), wherein it has been held that the increase of 25% rent under provisions of Section 5-A of the Ordinance, 1959 would become due on expiry of three years and would be deemed to be a rent due. Also on the subject, in the case of Badruddin v. Muhammad Yousaf (1994 SCMR 1900), it has been held that the rent due would also include time-barred rent and a landlord thus would be competent to institute eviction/ejectment proceedings in respect of a time barred rent.
Keeping in view both these judgments, we are of the opinion that as far as the Rent Controller is concerned, he is always competent to pass an order under Section 13(6) of the Ordinance, 1959 by making direction to the tenant to comply with the same by depositing the rent due and the past rent as the case be or before the specific date/s. Duty has been cast upon the Rent Controller to pass an order in such behalf and in case the tenant had some reservations to such an order, firstly he can agitate the same before the Rent Controller. In the instant case, no reservation was expressed by the petitioner when such order was passed and subsequently, he filed Writ Petition No. 273/2008, which has also been dismissed on 8.4.2008. The said order of the High Court was not questioned before this Court and ultimately the order of the Rent Controller dated 24.1.2008 passed under Section 13(6), was complied with on 17.1.2000, therefore, we are of the opinion that the judgment, which has heavily been relied upon by the learned counsel for the petitioner in Ashfaqur Rehman's case, is not of any help to him in view of the above statutory law i.e. by means of Section 5-A of the Ordinance, 1959, which has created statutory duty upon the tenant to increase rent notwithstanding the fact whether it had become time barred, the Rent Controller can direct to deposit the same in compliance of the above said provisions and once the compliance has been made, the petitioner or the tenant can express his reservation before the Rent Controller for finally determining the same at the time of adjudication by contending that his ejectment could not be directed in view of given situation when there is no default and the claim of the landlord has become time barred but not by refusing or to commit default in the payment of rent nor the ejectment proceedings could be questioned merely for the reason that rent due was made part of the time barred rent and, therefore, the ejectment application at least can be maintained under the provisions of the Ordinance, 1959.
(M.S.A.) Leave refused.
PLJ 2009 SC 1091
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabir &
Syed Sakhi Hussain Bukhari, JJ.
MUHAMMAD YOUNIS & others--Appellants
versus
ESSA JAN & others--Respondents
Civil Appeal No. 915/2005 out of Civil Petition No. 111-Q of 2004, decided on 15.4.2009.
(On appeal from the judgment dated 25.6.2004 passed by the High Court of Balochistan, Quetta in Civil Revision No. 25/2004).
Constitution of Pakistan, 1973--
----Art. 185--Concurrent findings--Suit for declaration and permanent injunction and cancellation of mutation--Plaintiff claimed ownership of property in dispute on the ground that their forefathers had purchased the property about 131 years ago through a Sanad/ writing--Suit dismissed--Concurrent findings of law and facts up to High Court--Appeal to Supreme Court--Held: Purchased document was shown to have been executed in presence of marginal witnesses but neither any of them had signed the document nor it was attested by any competent authority, so much so, the place of residence of the vendor had also not been disclosed in the same--Such old document had not been placed on record and exhibited in evidence--A document which was not a part of the judicial record, its judicial notice cannot be taken--Law declared by Courts is never retrospectively effective and it only takes effect after the announcement of the judgment or the date notified by the Court--Appeal dismissed.
[Pp. 1093 & 1094] A & C
Concurrent Finding--
----Concurrent findings of fact rendered by Courts below against the appellants cannot be interfered with by Supreme Court at such stage.
[P. 1094] B
Mr. Tahir Muhammad Khan, ASC for Appellants.
Mr. Imran-ul-Haq, ASC for Respondents No. 1-9.
Date of hearing: 15.4.2009.
Order
Muhammad Akhtar Shabbir J.--This appeal, by leave of the Court, is directed against the judgment dated 25.6.2004 passed by the High Court of Balochistan, Quetta in Civil Revision No. 25/2004.
Brief facts leading to filing of the present appeal are to the effect that the plaintiffs/appellants had filed a suit for declaration, permanent injunction and cancellation of mutation, in the Court of Qazi, Kalat against the defendants/respondents, in respect of property situated in Mouza Ghousabad, Tehsil Kalat. It was alleged in the plaint that the property in dispute had been purchased by their forefathers from Major Wali Muhammad about 131 years back through an agreement and since then their forefathers and thereafter they had been cultivating the same being owners in possession thereof; that they had spent a huge amount to bring the said land under cultivation; that they were of the view that the entries in their favour had been incorporated in the revenue record but in 1991 they came to know that the entries of the land had been firstly incorporated in the name of Khan Ahmad Yar Khan, Khan of Kalat and thereafter under the Land Reforms Regulation, the said land was transferred in favour of the State. The suit was contested by the defendants/respondents by filing written statements, denying the averments made in the plaint with the prayer for dismissal of the same. From the factual controversies appearing on the pleadings of the parties, the learned trial Court/Qazi, Kalat framed various issues and after recording, appreciating the evidence, pro and contra, of the parties, dismissed the suit vide its judgment and decree dated 30.6.2003. The said judgment and decree had been challenged by the plaintiffs/appellants by filing an appeal before the "Majlis-e-Shoora", Kalat Division at Mastung, which had been dismissed, vide judgment dated 29.10.2003. The judgments and decrees of both the Courts below had been assailed by the plaintiffs/appellants before the High Court of Balochistan, Quetta through Civil Revision No. 25/2004, which too met with the same fate, vide the impugned judgment.
Learned counsel for the appellants contended that the appellants have produced documentary evidence (Sanad) before the Qazi, to establish the purchase of the land in dispute from Major Wali Muhammad by their forefathers namely, Lal Muhammad and Saleh Muhammad; that this documentary evidence had been further supported by the oral evidence produced by the appellants; that the 30 years old document produced by the appellants before the trial Court carried the presumption of truth and all the Courts below have illegally ignored the veracity thereof; that the impugned judgment is a result of misreading and non-reading of the evidence.
While, on the other hand, the learned counsel for Respondents No. 1 to 9 vehemently opposed the arguments of the learned counsel for the appellants, contending that the document (Sanad) produced by the appellants had not been exhibited and the trial Court as well as the appellate and revisional Court have observed that the said document was forged and fabricated; that the suit filed by the appellants was hit by limitation, the respondents were the owners of the land in dispute and that the possession of the same was with them; that the appellants have not been able to establish their title/ownership and possession over the land in dispute; that there are concurrent findings of fact against the appellants which could not be interfered with by this Court.
We have heard the arguments of the learned counsel for the parties, perused the record with their assistance. The suit has been filed by the plaintiffs/appellants on the ground that their forefathers had purchased the property from one Major Wali Muhammad about 131 years ago through a Sanad/Writing, whereafter they and then the appellants had been cultivating the same without any interference. The document of purchase was shown to have been executed in presence of the marginal witnesses namely, Abdul Ghani s/o Abdul Aleem, Hussain Bakhsh s/o Pir Bakhsh and Muhammad s/o Abdul Rahim but neither any of them had signed the said document nor it was attested by any competent authority, so much so, the place of residence of the vendor, Major Wali Muhammad had also not been disclosed in the same. In the year 1291 Hijra, Khan of Kalat was the ruler of the area, the property was not in ownership of any private person and it is not clear from the record as to how Major Wali Muhammad became owner of the property in dispute; The most important aspect of the case is that this old document has not been placed on record and exhibited in evidence. A document which is not a part of the judicial record, its judicial notice cannot be taken. The Courts below i.e. the trial Court as well as the appellate Court had not taken into consideration the said Sanad/ document while deciding the suit against the present appellants because they have not been able to produce sufficient convincing evidence to establish their assertions made in the plaint, and the said findings have been affirmed by the High Court, vide the impugned judgment. The appellants have failed to prove their ownership and title over the land in dispute. It has never been entered in the revenue record in favour of the appellants. The appellants have admitted in their plaint that in the record property is entered in favour of Khan of Kalat, who is forefather of the defendants/respondents. It is thus established that the respondents are owners of the property. The concurrent findings of fact rendered by the three Courts below against the appellants cannot be interfered with by this Court at this stage. Even otherwise, this Court would not interfere with the concurrent findings of fact recorded by the lower Courts as laid down in the cases of Muhammad Sharif v. Mst. Fajji @ Phaji Begum through Legal Heirs and another (1998 SCMR 2485), Muhammad Azam v. Inayat Shah (1998 SCMR 1356) and Mazhar Iqbal v. D.C.O Toba Tek Singh & others (2005 PSC 124). The appellants have also not pointed out any illegality, infirmity, jurisdictional defect, misreading or non-reading of evidence in the impugned judgment, warranting interference by this Court.
As to the argument of the learned counsel for the appellants, that the provisions of the Land Reforms Regulation, 1972 had been declared against the Injunctions of Quran and Sunnah, vide judgment of the Shariat Appellate Bench of this Court, in case of Qazal Bash Waqf and others Vs. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99), it would be suffice to observe that as observed by the Court, the decision in the said case would be effective w.e.f. 23.3.1990. Even otherwise, the law declared by Courts is never retrospectively effective and it only takes effect after the announcement of the judgment or the date notified by the Court.
For the foregoing reasons, we do not find any substance in this appeal which is dismissed. There shall be no order as to costs.
(M.S.A.) Appeal dismissed.
PLJ 2009 SC 1095
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Muhammad Qaim Jan Khan, JJ.
GUL SHAH and others--Appellants
versus
Hafiz GHULAM MUHAMMAD and others--Respondents
Civil Appeals No. 226 & 227 of 2004, decided on 11.5.2009.
(On Appeal from the judgment dated 10.10.2003 passed by the High Court of Balochistan, Quetta in C.R. No. 129/2002).
Evacuee Trust Property (Management and Disposal) Act (XIII), 1975--
----S. 14--Question of jurisdiction of Civil Court--Held: Under S. 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted/barred, but that jurisdiction is barred in ordinary cases and when malafide and malice is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law--In the instant case, the malice/malafide against the official respondents is clearly reflected as PTO was granted to the respondent in the year 1960 uptill 1994, there was no wrong with the respondent but when he enhanced the rent of the present petitioners being his tenants, then the present petitioners with the connivance of the official respondents took up the matter again and canceled the PTO and dragged the respondent to prolong litigation--Respondents have been allotted the suit property as back as from 1960 and they incurred huge expenses on the construction of the property and then it let out to the present petitioners--Department slept over the matter for 34 long years and then suddenly came out of slumber in the year 1994, when the petitioners agitated the matter with the respondents regarding the status of the property--So, in such like circumstances, if there is clear cut malafide and malice apparent on the face of record, the jurisdiction of the Civil Court be ousted--Appeal dismissed. [P. 1098] A
Mr. Iftikhar-ul-Haq, ASC and Mr. Kamran Murtaza, ASC for Appellants (in both appeals).
Mr. Qahir Shah, ASC for L.Rs. of Respondent No. 1.
Mr. Kamran Murtaza, ASC for Respondents No. 3 & 4 (in C.A. No. 226/04).
Date of hearing: 11.5.2009.
Judgment
Muhammad Qaim Jan Khan, J.--These two appeals by leave of the Court are directed against the judgment of a learned single Judge of High Court of Balochistan, Quetta dated 10.10.2003, vide which the revision petition of Respondent No. 1 has been accepted, the judgments and decrees of the Courts below have been set aside and the case has been remanded to Civil Judge-IV, Quetta for deciding the same afresh in accordance with law, after recording the evidence and hearing the respective parties.
Short facts of the case are that Respondent No. 1, Hafiz Ghulam Muhammad now dead and represented by his L.Rs., filed a suit for declaration and permanent injunction against the present petitioners and proforma Respondents No. 10 to 12, in respect of properties situated at Masjid Road, Quetta which were allotted to him by Deputy Settlement Rehabilitation Commissioner, Quetta Kalat and a PTO was issued in his favour on 15.9.1960. Subsequently, the said property was declared evacuee trust property and taken over by the Evacuee Trust Property Board. According to Respondent No. 1, after issuance of PTO he made construction over the property in dispute by incurring heavy expenditure and thereafter, let out the said property to the present petitioners alongwith others. It is further alleged in the plaint that in the year 1991, Respondent No. 1/plaintiff asked his tenants for enhancement of rent due to increase in local taxes, but instead of enhancement in rent, the petitioners joined hands with the Settlement Authority (Assistant Administrator Evacuee Trust Property, Quetta), who made a reference under Sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act (XIII), 1975 for declaring the property in dispute as evacuee trust property, whereupon the Chairman, Evacuee Trust Property Board declared the same as such vide order dated 12.12.1991. Respondent No. 1/plaintiff dissatisfied with the order, preferred a revision petition before the Federal Government, which was accepted and the matter was remanded to Chairman, Evacuee Trust Property Board for fresh decision after hearing the parties. On remand the Chairman, Evacuee Trust Property Board again declared the property as evacuee trust property, but directed for selling out the same to Respondent No. 1 /plaintiff with prior approval of Federal Government at the rate to be determined by Deputy Commissioner Quetta. Respondent No. 1 filed various applications before the Government functionaries and also approached the Chief Justice, Balochistan High Court through an application which was converted into Suo Moto Constitutional Petition No. 60/1999, which was later on dismissed as not pressed. He filed a petition for leave to appeal before the Hon'ble Supreme Court of Pakistan, but the same was also dismissed being barred by time. Thereafter, Respondent No. 1/plaintiff filed the instant suit in the Court of Civil Judge-IV, Quetta.
The suit was resisted by the respondents and they took a preliminary objection regarding jurisdiction of the Civil Courts for entertaining the suit on the ground that under the Act (XIII) of 1975, the jurisdiction of the Civil Courts have been specifically excluded. The trial Court after hearing the parties rejected the plaint for want of jurisdiction on 28.8.2001. Respondent No. 1/plaintiff preferred appeal before the District Judge, Quetta which was later on transferred to Additional District Judge-III, Quetta who dismissed the appeal and upheld the order of Civil Judge-IV, Quetta. Dissatisfied with these orders, Hafiz Ghulam Muhammad preferred civil revision before the High Court of Balochistan, Quetta and a learned single Judge of the said Court after hearing the petitioner and counsel for the respondents in detail, passed the impugned judgment dated 10.10.2003. Hence these appeals.
Learned counsel for the petitioners mainly argued that Civil Court has got no jurisdiction; that the respondent has got no PTO in his favour and that by remand order the agony of the parties will be prolonged and that if the jurisdiction of the Civil Court is not barred as held by the Courts below, then a Pandora box of suits will start. He stressed that the remand order is not in accordance with law. Learned counsel cited in his support Evacuee Trust Property Board through Assistant Director, Evacuee Trust Properties, Gujrat Vs. Muhammad Siddique alias Bandoo and others (1995 SCMR 1748) and Evacuee Trust Property Board Vs. Mst. Zakia Begum and others (1992 SCMR 1313) and stressed that under Section 14 the Civil Court has got no jurisdiction.
Learned counsel for the L.Rs. of Hafiz Ghulam Muhammad mainly argued that petitioners are tenants and that when they stopped the payment in the year 1994, the tussle arose. He argued that respondents are the legal allottees and they have constructed a huge building and incurred huge expenses and the said shops were let out to the petitioners, further argued that as malice and malafide is apparent on the record, therefore, the trial Court has got ample jurisdiction to entertain the present suit, further argued that the trial Court should have framed issues including the issue of jurisdiction and after recording of the evidence, he should have passed a comprehensive judgment followed by a decree, further argued that the denial of the petitioners is malicious and the petitioners are no more tenants and have been ousted from the property and the respondents i.e. L.Rs. of Hafiz Ghulam Muhammad are in possession of the same, further argued that official respondents acted in connivance with the present petitioners and deprived the respondents from the fruit of the income of their property. He supported the judgment of the High Court and termed it as correct and in accordance with law.
Learned counsel for the official respondents mainly argued that this is a second round of litigation; that the matter has once reached up to this Apex Court and argued that the remand order will further prolong the agonies of the petitioners. The crux of the arguments of the official respondents was that the jurisdiction of the Civil Court is ousted/barred under Section 14.
We have heard learned counsel for the parties at sufficient length and have also perused the relevant record.
Admittedly, under Section 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted/barred, but that jurisdiction is barred in ordinary cases and when malafide and malice is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law. In the instant case, the malice/malafide against the official respondents is clearly reflected as PTO was granted to the respondent in the year 1960 and right from year 1960 up-till 1994, there was no wrong with the respondent but when he enhanced the rent of the present petitioners being his tenants, then the present petitioners with the connivance of the official respondents took up the matter again and canceled the PTO and dragged the respondent to prolong litigation. The respondents have been allotted the suit property as back as from 1960 and they incurred huge expenses on the construction of the property and then it let out to the present petitioners. The department slept over the matter for 34 long years and then suddenly came out of slumber in the year 1994, when the petitioners agitated the matter with the respondents regarding the status of the property. So, in such like circumstances, if there is clear cut malafide and malice apparent on the face of record, the jurisdiction of the Civil Court cannot be ousted. The Hon'ble Judge has correctly relied upon Hamid Hussain Vs. Government of West Pakistan and others (1974 SCMR 356) and The Chief Settlement Commissioner, Lahore Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). The authorities referred by the petitioners' counsel i.e. Evacuee Trust Property Board through Assistant Director, Evacuee Trust Properties, Gujrat Vs. Muhammad Siddique alias Bandoo and others (1995 SCMR 1748) and Evacuee Trust Property Board Vs. Mst. Zakia Begum and others (1992 SCMR 1313) alongwith Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad Vs. Mufti Iftikhar-ud-Din and another (2000 SCMR 01) are very correct in their perspective but in those cases no malice or malafide has been alleged against the official respondents. A bare perusal of the plaint itself reflects a clear cut malafide on behalf of the government functionaries by the respondent-plaintiff in clear words. So keeping in view all these factors, the judgment of the Hon'ble High Court is plainly correct and the trial Court has been correctly directed to afford an opportunity to the parties to lead the evidence in order to prove the malafide and to see whether the order passed by the official respondents was illegal, void or without jurisdiction. Lastly we would like to say that any observation, direction or opinion given by this judgment shall in no way affect the impugned order of the trial Court who after recording the evidence and hearing the respective parties, passed an order in accordance with law based upon the available evidence. Consequently, the two appeals in hand are dismissed with no order as to costs.
(M.S.A.) Appeals dismissed.
PLJ 2009 SC 1099
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.
SOHAIL BUTT--Petitioner
versus
DEPUTY INSPECTOR GENERAL OF POLICE (NORTH) NATIONAL HIGHWAY AND MOTORWAY POLICE and others--Respondents
Civil Petition No. 396 of 2009, decided on 20.5.2009.
(Against the judgment dated 31.12.2008 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 707(R)/CS/2007).
Constitution of Pakistan, 1973--
----Art. 212(3)--If departmental appeal is not filed within the statutory period, the appeal before the tribunal would not be competent meaning thereby where departmental appeal is time-barred, then the appeal before the tribunal is also time-barred. [P. 1102] A
Finding of Service Tribunal--
----Finding of Service Tribunal having finding of fact would not call for interference by Supreme Court while exercising power under Art. 212(3) of the Constitution. [P. 1102] B
1995 SCMR 1505, PLD 1990 SC 951, PLD 2002 SC 101, 2004 SCMR 1426 & 2006 SCMR 453, ref.
Constitution of Pakistan, 1973--
----Art. 212--Interpretation--The word `public importance' can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved--Public importance must include a purpose or aim in which the general interest of community as opposed to the particular interest of the individuals is directly and vitally concerned.
[P. 1103] C
Constitution of Pakistan, 1973--
----Art. 212(3)--Ingredients of--Ingredients of Art. 212(3) of the Constitution clearly show that constitutional power under Art. 212 is discretionary in character/nature which has to be exercised reasonably, honestly and not arbitrarily or capriciously or in bad faith--It is pertinent to mention that involvement of a question of law of public importance alone could justify leave to appeal under Art. 212(3) of the Constitution--In other words, appeal against order of service tribunal is competent only on ground of law of public importance, otherwise barred--Leave refused. [P. 1104] D
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 20.5.2009.
Order
Ch. Ijaz Ahmed, J.--Sohail Butt, petitioner, seeks leave to appeal against the judgment dated 31-12-2008 whereby the Federal Service Tribunal, Islamabad, dismissed his appeal on merits as well as time barred.
"It is not necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee".
Show cause notice dated 13-12-2004 was sent to him by the competent authority. Petitioner was awarded major penalty of dismissal from service w.e.f. 10-9-2004 vide order dated 9-4-2005. Petitioner being aggrieved filed appeal before the Deputy Inspector General of Police on 5-7-2007 which was dismissed vide order dated 12-7-2007 as time barred and the same could not be entertained. The petitioner being aggrieved filed Appeal No. 707(R)/CS/2007 before the Federal Service Tribunal, Islamabad, which was dismissed on merits as well as time barred. Hence the present petition.
Learned counsel for the petitioner submits that learned Service Tribunal erred in law to dismiss the appeal of the petitioner as time barred without adverting to the facts and circumstances of the case of the petitioner as the impugned order of dismissal was passed by an incompetent authority, i.e., Senior Superintendent of Police whereas Chief Executive vide Notification dated 27-5-2000 through S.R.O. No. 208(1)/2000 has authorized the head of the department/subordinate office to exercise the power of competent authority for the class of persons holding posts in BPS-16-19 while exercising power conferred by Section 2(a) of the Ordinance. He further urges that petitioner met with an accident and got fractured in his left feet and was admitted in Tehsil Headquarter Hospital Gujar Khan. Medical certificate was also submitted to the Sr. Superintendent of Police concerned when petitioner appeared before him. The petitioner could not attend office on account of his illness and the medical certificates were also submitted before the Senior Superintendent of Police who did not consider the same at the time of awarding major penalty to the petitioner. Learned Service Tribunal also erred in law to decide the appeal of the petitioner without judicial application of mind.
We have given our consideration to the contentions of the learned counsel of the petitioner and also perused the record. It is proper and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--
(i) Sow cause notice was issued to the petitioner on 13.12.2004.
(ii) The petitioner was removed from service on 9-4-2005.
(iii) The petitioner filed appeal before the departmental authority on 5-7-2007.
(iv) The departmental appeal of the petitioner was dismissed as time barred on 12-7-2007.
Mere reading of the aforesaid facts it is crystal clear that the departmental appeal of the petitioner was barred by limitation for more than two years. It is settled proposition of law that if departmental appeal is not filed within the statutory period, the appeal before the Tribunal would not be competent meaning thereby where departmental appeal is time-barred, then the appeal before the Tribunal is also time-barred. The appeal before the Tribunal was also incompetent on that account. There are series of judgments of this Court in support of the aforesaid proposition of law. See Anwarul Haq case (1995 SCMR 1505), Chairman PIA case (PLD 1990 SC 951). The above view was re-affirmed in the following judgments:--
(i) Dr.Anwar Ali Sahto case (PLD 2002 SC 101)
(ii) Khyber Zaman case (2004 SCMR 1426)
(iii) Syed Ashfat Hussain Shah case (2006 SCMR 453).
The learned Service Tribunal had taken a lot of pain to consider the case of the petitioner even on merits in spite of the fact that his appeal before the Service Tribunal was incompetent as the departmental appeal filed by the petitioner was dismissed as time barred as depicted from para 4 of the impugned judgment. It is settled principle of law that finding of Service Tribunal having findings of fact would not call for interference by this Court while exercising power under Article 212(3) of the Constitution. It is pertinent to mention here that petitioner is a member of discipline force but his conduct as evident from the narration of facts would not deserve any leniency as the petitioner had absented himself from duty without securing any permission from any higher authority for a considerable period approximately 3 months. Petitioner had also failed to file reply of the show cause notice issued to him at his given address and even when the same was published in the newspaper, therefore, learned Service Tribunal was justified to come to the conclusion that petitioner had no case even on merits. As mentioned above the learned Tribunal dismissed the appeal as time barred as well as on merits, even otherwise the learned counsel of the petitioner has failed to raise any question of public importance as contemplated under Article 212(3) of the Constitution. It is better and appropriate to reproduce Article 212 (3) of the Constitution to resolve the controversy between the parties:
"212. Administrative Courts and Tribunals.--
(1) -------------
(2) -------------
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal". (under lines are ours)
The word
satisfied' means existence of mental persuasion much higher than mere opinion meaning thereby the phrase satisfied means simply makes up its mind. See Blyth v. Blyth {(1966) AER 524 (541)}, also means a mind not troubled by doubt or to adopt the language of Smith, J a mind which has reached on clear conclusion
Angland v. Payne {1944 NZLR 610 (626)}. The wordsubstantial question of law' means a substantial question of law as between the parties in the case involved'. See Raghuman Prasad Singh & others versus the Deputy
Commissioner of Partabgarh & others (AIR 1927 P.C. 101). The dictum laid down by the Privy Council was followed by the Indian Supreme Court in the case of
Sir Chunilal versus Mehta & Sons Ltd (AIR 1962 SC 1314). The wordpublic importance' I can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved. But it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned. See
Abdul Aziz's case (PLD 1982 SC (AJ&K) 16). The word grants' meanspermission'.
The following are the ingredients of said Articles:--
(a) An appeal lies to the Apex Court from a judgment, decree, order or sentence of such Court or Tribunal.
(b) Appeal shall only lie if the Apex Court grants leave to appeal being satisfied that the case involves a substantial question of law of public importance.
The above referred ingredients of Article 212 (3) of the Constitution clearly show that constitutional power under this Article is discretionary in character/nature which has to be exercised reasonably, honestly and not arbitrarily or capriciously or in bad faith. It is pertinent to mention that involvement of a question of law of public importance alone could justify leave to appeal under Article 212 (3) of the Constitution. In other words, appeal against order of Service Tribunal is competent only on ground of law of public importance, otherwise barred. We find that the Service Tribunal has examined each and every piece of evidence at considerable length before coming to the conclusion that apparently the petitioner had absented himself without permission of his higher officer as evident from para 3 of the impugned judgment. We are not persuaded that the Service Tribunal has ignored any material evidence or mis-reading the same in reaching its conclusions.
(M.S.A.) Leave refused.
PLJ 2009 SC 1104
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Mian Shakirullah Jan & Raja Fayyaz Ahmed, JJ.
KHALIDA BIBI--Petitioner
versus
NADEEM BAIG--Respondent
Crl. P. No. 450/L of 2008, decided on 3.4.2008.
(On appeal against the order dated 19.9.2008 passed by Lahore High Court, Lahore, in Crl. Misc. No. 2640-B/2008).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(2) & 497(5)--Constitution of Pakistan, 1973, Art. 185(3)--Bail, granted by High Court--Cancellation of bail--Plea of alibi--During investigation about 200 persons supported the version of the accused--First fight preceding the accused sustained serious head injuries as while he was being taken to hospital the second incident took place and fires were made only co-accused--Court u/S. 497(2), Cr.P.C. to make probe into a defence version in order to advance a plea of bail, rather it has to tentatively assess the material produced before it and to see if reasonable grounds exist to believe, of prima facie, involvement of accused in commission of offence--If the plea on basis of which the accused had been released on bail was accepted, would impugn with the version of eyewitnesses which have been discarded at the initial stage of the case by observing contra to the version of ocular witnesses which course was at all not permissible and later on no such evidence was furnished, then it would not be free from doubt--Held: During the course of investigation the police was not required to examine hundreds of people in order to inquire as to whether the accused is involved in the offence or not--Police was required to consider the material available on the record and not to disregard the eye witnesses in support to say that he was not involved in the commission of the offence and thus, would not only be entitled to grant of bail but at the same time to earn acquittal--Practice adopted by trial Court as well as by the High Court, was not appreciated by Supreme Court--Held: Supreme Court converted into appeal and cancelled the bail granted to accused by High Court.
[Pp. 1108, 1109 & 1110] A & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Constitution of Pakistan, 1973, Art. 185(3)--Cancellation of bail granted by High Court--Grounds that found related to non-recovery of the weapon of offence and non-framing of charge after submission of challan--Validity--Ground of non-recovery of weapon was not available to the accused for the reason that he remained absconder for a considerable time and even did not surrender despite cancellation of his bail by High Court as well as Sessions Judge--On submission of challan, the proceedings in the case after framing the charge commences and in the mean while on the ground of non-submission of challan in the case which attracted prohibitory clause of S. 497, Cr.P.C. and thus would not entitled an accused to grant of bail in view of well recognized principles of criminal jurisdiction--Reasons on which bail had been extended to the accused were not entertainable in the eyes of law--Supreme Court converted petition for leave to appeal for cancellation of bail into appeal and allowed the same. [P. 1109] B & C
Ch. Farooq Haider, ASC for Petitioner.
Ch. Munir Sadiq, D.P.G., Punjab for State.
Mr. Muhammad Ilyas Siddiqui, ASC with Respondent.
Date of hearing: 3.4.2009.
Order
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed against the order dated 19.09.2008, whereby learned Single Judge of the Lahore High Court, Lahore, granted bail to the respondent/accused for the following reasons:--
"(i) During investigation about 200 persons appeared before the Investigating Officer and supported the version of the accused that in the first fight present Petitioner Nadeem Baig sustained serious head injuries. While he was being taken to hospital by his brother and father some one informed his other brother Faisal Baig that the present petitioner had been murdered by the complainant, his brother and his father, on which he rushed home, took out a rifle, reached the house of the complainant and killed the three deceased victims. Accordingly, except for Faisal Baig the Investigating Officer found all other co-accused including the present petitioner to be innocent. The Investigating Officer present in the Court supports his findings, which he claims were subsequently verified by the Senior Police Officers. This fact alone makes the case of the present petitioner to be that of further inquiry.
(ii) Neither any recovery has been affected from the petitioner as accused nor he is needed by police for any investigation purpose. And, (iii) The challan in the case has though been submitted in the Court, yet even charge has not so far been framed. Therefore, the conclusion of the trial cannot be seen with reasonable certainty."
The facts in nutshell are that statedly vide an FIR No. 100/2007 P.S. Karianwala, District Gujrat, Zubair s/o Muhammad Rafiq on 07.05.2007 reported that on the day of incident a scuffle took place between the parties in which the father of the complainant Muhammad Rafiq and his brother Zahid Rafiq, as well as Nadeem Baig, respondent, sustained injuries. It may be noted that the nature of the injuries particularly with reference to Nadeem Baig were not described, however, the matter was statedly patched up and the accused party in order to take revenge of their insult alleged to have attacked upon them when the complainant alongwith his father Muhammad Rafiq, mother Surriya Akhtar, brother Zahid Rafiq, Sami-ul-Hassan s/o Muhammad Younis, Khalida Bibi w/o Muhammad Ashraf were present in their house. Accused namely Zahid Baig s/o Walayat Baig, Nadeem Baig and Faisal Baig sons of Hanif Baig, Shafique Baig s/o Sharif Baig, Sharif Baig s/o Akbar Baig duly armed with rifles came in the street in front of their house and Sharif Baig raised lalkara. On hearing their noises Muhammad Rafiq, Surriya Akhtar and Zahid Rafiq went out in the street and the complainant also followed them. Sharif Baig raised a lalkara and stated that revenge will be taken of their insult. On this Faisal Baig straight fired with his rifle which hit Muhammad Rafiq on his chest due to which he fell down afterwards a second fire was shot which hit him on his right flank. Then Nadeem Baig, respondent, straight fired at Zahid Rafiq which hit on his chest and then Zahid Baig fired at him which hit him on his neck due to which he fell down. Sharif Baig also fired at Zahid Rafiq which hit on his right side. Shafique Baig straightly fired with his rifle at Surriya Akhtar which hit on her right side due to which she fell down. The father and brother of the complainant died at the spot whereas, his mother was taken to hospital in a serious condition but she succumbed to injuries in the hospital. Accordingly, a case was registered in respect of murder of three persons namely Muhammad Rafiq, Surriya Akhtar and Zahid Rafiq.
During the investigation, six empties of Kalashanikov were recovered from the place of incident. As far as Nadeem Baig is concerned, statedly he was not present on the spot as on account of sustaining injuries he was taken to a hospital and during this time information regarding the incident was received by him through his relative on cell phone, therefore, instead of going to a local hospital they ran away from the place of occurrence due to fear of being killed. In the Court, it was informed by the learned counsel for the respondent that the respondent came to Islamabad for the purpose of getting medical treatment. Be that as it may, after remaining absconder for 66 days he surrendered before the Sessions Judge claiming grant of bail and obtained ad-interim pre-arrest bail but at the time of confirmation of his bail or otherwise, he absconded and, therefore, approached the High Court for bail before arrest but could not get the relief and his request was declined on 27.07.2007 vide Crl. Misc. No. 5247-B/2007 and again he approached the Sessions Judge for pre-arrest bail which was allowed on 28.07.2007 and was not confirmed but again he did not appear, therefore, the bail order was recalled and in the meanwhile, he remained in custody. After his arrest, the petitioner again moved an application before the Additional Sessions Judge for grant of bail which was declined by him on 13.03.2008. Accordingly, he approached the learned High Court for bail which has been allowed by means of impugned order, the relevant part therefrom has already been reproduced herein above.
The learned counsel for the complainant stated that Mst. Khalida Bibi, Zubair and Sami-ul-Hassan, being the eye-witnesses, have fully implicated the respondent in the commission of the offence but he has been granted bail for the reasons which are not recognized under the well established principles and the law governing such matters.
4-A. The learned counsel for the respondent stated that the respondent in the incident preceding the main occurrence sustained injuries as it reflects from the FIR itself and in order to further ascertain about the nature of injuries, the Sessions Judge got opinion of the Doctors and some exercise in such behalf was also undertaken by the High Court, resultantly on the basis of opinion of Doctors that he had sustained injuries on his skull about one year back, therefore, according to the learned counsel, it was rightly concluded that he was not present at place of incident. Besides, the learned counsel added that about 200 persons appeared before the I.O. by lending support to the plea of the respondent that he was not involved in the commission of the fateful incident.
Learned Deputy Prosecutor General opposed the impugned order and contended that no one out of 200 persons appeared before the I.O. to say that they were present and had witnessed the main incident. He was also of the opinion that the High Court ought to have disposed of the bail plea of the respondent on the basis of material available on the record.
We have considered the contentions of the learned counsel for the parties and have gone through the impugned order carefully in the light of the record of the case.
Firstly, as it has been observed herein above, the learned High Court found itself to have been satisfied that during investigation about 200 persons appeared before the I.O. and supported the version of the respondent/accused and that in the first fight preceding the main incident the respondent/accused sustained serious head injuries as while he was being taken to the hospital the second incident took place and fires were made only by Faisal Baig. Secondly, in this view of the matter, it is to be noted that as per record of the case no one had appeared before the I.O. to testify about the alibi plea of respondent i.e., that he was not present at the place of incident as he had suffered injuries in the first incident;. Admittedly, no evidence was produced by the respondent in respect of injuries alleged to have been sustained by him during the course of investigation. It is noteworthy that the first fight preceding the main incident had taken place at 4.00 p.m. but no explanation was provided as to why the respondent was not immediately shifted to the hospital whereas; the second incident took place at 5 o'clock. Thirdly, no evidence, during the course of investigation, from the hospital was produced. We have noted that Sessions Judge as well as the High Court had obtained the medical reports with regard to the injuries alleged to have been suffered by the respondent. Essentially in view of the overall facts of the case and in the first fight meaning thereby that the people to support the plea of the respondent particularly in view of the assertion of the I.O. having concluded that a number of people alleged to have stated with regard to the injuries of the petitioner and that he was being taken to hospital when the second (main) incident took place but strange enough that none at the relevant time came forward to depose so before the I.O. Thus, it has never been the practice of the Courts and under Section 497(2) Cr.P.C. to make probe into a defence version in order to advance a plea of bail, rather it has to tentatively assess the material produced before it and to see if reasonable grounds exist to believe, of prima facie, involvement of accused in the commission of the offence. The second admitted aspect of the case is that if the plea on the basis of which the respondent has been released on bail is accepted, would impugn with the version of the eye-witnesses namely Khalida Bibi, Zubair and Sami-ul-Hassan which have been discarded at this initial stage of the case by observing contra to the version of ocular witnesses; which course was at all not permissible and later on no such evidence is furnished, then it would not be free from doubt and in accord with the above quoted provisions of law. Evidence of eye-witnesses has been discarded even in view of the medical opinion by the learned Sessions Judge, as well as by the High Court. This is also to be noted that during the course of investigation the police is not required to examine hundreds of people in order to inquire as to whether the accused is involved in the offence or not. They are required to consider the material available on the record and not to disregard the eye-witnesses in support, to say that he is not involved in the commission of the offence, and thus would not only be entitled to the grant of bail but at the same time to earn acquittal. In the peculiar circumstances of the case the practice adopted by the learned trial Court as well as by the High Court is not appreciated.
As regards the second ground that found favour with the learned High Court related to the non-recovery of the weapon of offence, it is also not available to the accused for the reason that he remained absconder for a considerable period of time and even did not surrender despite cancellation of his bail by the High Court as well as by the Sessions Judge. We have also noted that third reason prevailed upon the High Court with regard to non-framing of charge after submission of challan entitled him to the concession of bail. On submission of challan, the proceedings in the case after framing the charge commences and in the meanwhile on the ground of non-submission of challan in the case which attract prohibitory clause of Section 497 Cr.P.C. would not entitle an accused to the grant of bail in view of well recognized principles of criminal jurisprudence.
us, for the foregoing reasons we are of the opinion that in the given circumstances of the case, there is evidence of three eye-witnesses namely Mst. Khalida Bibi, Zubair and Sami-ul-Hassan, who have furnished ocular account of incident against the respondent involving him prima facie in the commission of the offence. The learned High Court has not considered their evidence and had granted bail to the respondent for the reasons discussed hereinabove. Therefore, we are of the considered opinion that the reasons on which bail has been extended to the accused/respondent are not sustainable in the eye of law.
(R.A.) Appeal allowed.
PLJ 2009 SC 1110
[Shariat Appellate Jurisdiction]
Present: Justice M. Javed Buttar, Chairman, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhari, JJ.
Mst. ZAINAB KHATOON--Petitioner
versus
HAQ NAWAZ etc.--Respondents
Crl. Shariat Petition No. 38 of 2008, decided on 30.3.2009.
(On appeal from the judgment/order dated 28.11.2008 passed by the Federal Shariat Court, Islamabad, in Criminal Misc. Petition
No. 140/I/2008 and 153/I/2008 in Criminal Appeal No. 240/I/2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 354 & 452--Offence of Zina (Enforcement of Hudood) Ordinance, 1979, S. 18--Allegation of attempt to commit zina-bil-jabr--Petitioner filed appeal against the acquittal order u/S. 417(2), Cr.P.C.--Appeal was dismissed for non-prosecution--Subsequently, the application of petitioner seeking restoration of appeal and condonation of delay was also dismissed by Federal Shariat Court--Assailed--Held: Affidavit of appellant was not enough to explain the delay of nearly eight months in filling the restoration application, such observation made by the Federal Shariat Court in its judgment explains the `worth' of petition filed by the petitioner--Leave refused. [Pp. 1111 & 1112] A & B
Mr. Tariq Mahmood, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 30.3.2009.
Judgment
Dr. Rashid Ahmad Jullundhri, J.--This Criminal Petition for leave to appeal is directed against the judgment of November 28, 2008, passed by the Federal Shariat Court whereby the Criminal Appeal No. 38(s)/2008 was dismissed. In fact, The Federal Shariat Court in its judgment upheld the judgment of July 14, 2005 passed by the Additional Sessions Judge whereby "the charge has not been proved against the accused. So by extending benefit of doubt the accused are acquitted of the charge". In its judgment of November 28, 2008. The learned Federal Shariat Court also "did not find any merit in the two applications and had therefore dismissed them by the short order".
On August 21, 2001 a formal FIR No. 69 under Section 354/452 PPC read with Section 18 of the Offence of Zina (Enforcement of Hudood Ordinance), 1979, was lodged with the Police Station of Tamman, District Chakwal. The FIR is based on a statement of petitioner's husband; Muhammad Aksar son of Basheer Khan Awan, resident of Dhauk Bazgul, Tamman. Before lodging the FIR with the Police Station of Tamman, on August 21, 2001, Mrs. Zainab Khatoon, (Petitioner) in her petition of August 2, 2001 to the S.S.P of Chakwal has written in detail her encounter with the accused (Muhammad Nawaz). In her petition, she also involved father and brother of the main accused, while they were not introduced in the FIR. Mention must be made that Mr. Hasnain Raza, (Magistrate 1st Class, Talagang) in his "INQUIRY REPORT" says that on November 05, 2001 Mrs. Zainab Khatoon filed a complaint before the Court wherein she alleged that she is resident of Dhoke Baz Gul. On 2.8.2001 when the complainant; Mrs. Zainib Khatoon was sleeping in her room at 12.30 p.m., the accused Muhammad Nawaz entered her room at 12.30 p.m. and tried to commit Zina-bil-jabr with her. The husband of the complainant suddenly appeared in the room and raized hue and cry. By doing so, he saved her honour.
Later, Mrs. Zainab Khatoon, complainant filed her complaint in the Court of learning Additional Sessions Judge. The complainant repeated her un-pleasant story which was told in the Court of Magistrate 1st Class as well as it is mentioned in the FIR. The accused (Muhammad Nawaz while answering the questions he explained "the true" version of the story by saying: "Aksar Khan PW (husband of Mrs. Zainab Khatoon, (the petitioner) got ploughed his agricultural land by me through my tractor and on demand of remuneration, both husband and wife concocted this story against me which is apparent from the affidavit filed by mother and brother of Mrs. Zainab Khatoon which they presented before I.O. Munir Ahmad, C.W. Having examined the petition in depth, the learned Additional Sessions Judge writes "In view of above circumstances the charge has not been proved against the accused...... The whole of claim of complainant is falsified due to above mentioned contradictions. The accused are acquitted of charge".
Feeling aggrieved the petitioner filed appeal against the acquittal of respondent accused on 5.9.2005 under Section 417(2) Cr.P.C. Before the admittance of appeal for regular hearing it was dismissed for non-prosecution on 17.3.2008. Subsequently, as noted above, the application of petitioner seeking restoration of appeal and condonation of delay was also dismissed by learned Federal Shariat Court.
Perusal of the case made it clear that the petitioner as well as her learned counsel were not able to solve their legal problems in their true perspective. Perhaps this is the reason that the learned Federal Shariat Court in its Judgment of November 28, 2008 passed the following remark: "However, in view of the persistent default on the part of the appellant and her learned Counsel during the last three years, as described in Para-4 of the Order, this bald statement by the petitioner in her affidavit is not enough to explain the delay of nearly eight months in filing the restoration applications. For the above noted reasons we did not find any merit in the two applications and had therefore dismissed them by the short order". This observation made by the Federal Shariat Court in its aforementioned judgment explains the "Worth" of petition filed by the petitioner.
The upshot of the above discussion is that the two sound judgments, passed by the trial Court and the Federal Shariat Court against the petitioner do not allow an interference with. Thus Criminal Petition No. 38(s)/2008 void of merit is dismissed and leave to appeal is refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 1112
[Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Farrukh Mahmud &
Sayed Zahid Hussain, JJ.
MUMTAZ BAIG etc.--Petitioners
versus
JAMAL DIN through legal heirs--Respondents
Civil Petition No. 833 of 2008, decided on 18.6.2009.
(On appeal from the judgment dated 16.4.2008 of the Lahore High Court, Rawalpindi Bench passed in R.A. No. 4-C-99).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Order of High Court passed in review application (refusing review) has only been assailed before Supreme Court and not the judgment whereby the revision petition was dismissed--The suit was decided by the trial Court, as also the appeal and revision after due trial and contest--Full fledged contested litigation right from the lowest forum of trial Court to High Court was dealt with and decided by the Courts having jurisdiction in the matter--Their adjudication of the matter cannot be termed as void or without jurisdiction to overcome the question of limitation--Object behind filing instant petition is to call in-question the correctness and validity of the initial judgment, which has attained finality by efflux of a long period and a valuable right accrued in favour of the private respondent which cannot be lightly disturbed and destroyed for the simple reason that the petitioner has been negligent in prosecuting his remedy--Petition dismissed. [Pp. 1114 & 1115] A, B & C
PLD 1980 SC 198, PLD 2000 SC 63 & 2008 SCMR 435, ref.
Malik Shahzad Ahmed Khan, ASC for Petitioners.
Mr. Gul Zarin Kiyani, Sr. ASC a/w Ch. Akhtar Ali, AOR for Respondents.
Date of hearing: 18.6.2009.
Order
Sayed Zahid Hussain, J.--Order passed by the learned Division Bench of the Lahore High Court, Rawalpindi Bench whereby the Review Petition was dismissed on 16.4.2008 is sought to be assailed through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, which has the under mentioned background.
The petitioners had brought a declaratory suit that they were owners in possession of the suit land and for injunction that the defendant, now represented by the respondents, in collusion with the Revenue Authorities got the entries in the revenue record changed unauthorizedly to show them as tenants. The suit was tried and was dismissed by the learned Trial Judge, Pindigheb on 28.2.1988. Against that appeal preferred by them was dismissed by the learned Additional District Judge, Attock on 10.1.1989. Then revision petition u/S. 115 CPC (CR No. 20-D/90) was filed in the Lahore High Court, which was dismissed on 12.5.1999. Against that judgment Review (RA No. 4-C/1999) was filed, which as mentioned above was dismissed on 16.4.2008. Hence this petition, in which notice was issued to the other side.
At the outset Mr. Gul Zarin Kiyani, Sr.ASC the learned counsel for the respondents has brought to our notice Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another (PLD 1980 SC 198), Ghulam Nabi and 5 others v. Rashid (PLD 2000 SC 63) and Collector Sales Tax (East), Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi (2008 SCMR 435) to contend that since the main judgment of the High Court dated 12.5.1999 had not been challenged; the petition does not lie in view of the principle laid down in the precedent cases and that even the present petition is barred by time.
Malik Shahzad Ahmed Khan, ASC the learned counsel for the petitioners contends that as the long standing revenue entries could not be changed by the Revenue Officials, this patent illegality can be taken notice by this Court disregarding the limitation or any other technical hurdle in the matter.
It may be mentioned here that the order of the High Court dated 16.4.2008 passed in review application (refusing review) has only been assailed before this Court and not the judgment whereby the revision petition was dismissed. The dismissal of the review petition is based on sound judicial principles governing review. The learned counsel however has endevoured to show that since the judgment of the High Court dated 12.5.1999 (where against review had been filed) and the judgments of the lower Courts were void, no question of limitation would rise in the matter. Such a contention has not persuaded us to be contenanced as the suit was decided by the trial Court, as also the appeal and revision after due trial and contest. This full fledged contested litigation right from the lowest forum of trial Court to the High Court was dealt with and decided by the Courts having jurisdiction in the matter. Their adjudication of the matter can not be termed as void or without jurisdiction to over come the question of limitation. At this juncture reference to Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another (supra) may be made wherein the petition had been filed against the order of the High Court whereby the High Court had refused to review its previous judgment. The matter was dealt with by the Court as follows; "This may be so but while seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time had become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give a fresh period of limitation to challenge it. In this peculiar situation therefore when the previous order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed. There may be cases where for instance petition of review may be refused merely for want of jurisdiction in which of course a petition may lie but will be on ground of refusing to exercise jurisdiction vested in a Court by law on the ground that it has no jurisdiction whereas in fact and in law it had such jurisdiction. In those cases a petition against refusal to review will merits but only against the order in review itself. The position in the instant case is however different. Here the question is not of lack of jurisdiction of the High Court to entertain review, but after entertaining it refusing the same on the ground that no case for review on merits exists. Such a decision will essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously cannot be resorted to if the period of limitation for challenging the main previous order has run out and because you cannot do that indirectly which you cannot do directly." (portions underlined by me for emphasis) The petition was accordingly dismissed without expressing any view on merits of the matter. In Ghulam Nabi's case (supra) the above view was followed. In Collector Sales Tax's case (supra) this Court while following Ghulam Hussain's case (supra) went further to observe that "Period spent for pursuing review petition is not liable to exclusion while reckoning the period of limitation for assailing the basic judgment, dated 27.9.2002. For all intents and purposes, object behind filing this petition is to call in question the correctness and validity of the initial judgment, which has attained finality by efflux of a long period and a valuable right accrued in favour of the private respondent, which cannot be lightly disturbed and destroyed for the simple reason that the petition has been negligent in prosecuting his remedy." Nothing has been brought to our notice to the contrary nor any sustainable ground has been urged before us to deviate from above view of the Court. The principle so stated consistently by this Court is fully attracted to the instant case.
For the above reasons, this petition is dismissed without expressing any view as to the merits of the matter.
(M.S.A.) Petition dismissed.
PLJ 2009 SC 1115
[Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain &
Muhammad Sair Ali, JJ.
ZARAI TARAQIATI BANK Ltd.--Petitioner
versus
HAKEEM KHAN--Respondent
C.P. No. 646 of 2009, decided on 8.5.2009.
(On appeal from the judgment dated 25.2.2009 of the Islamabad High Court, Islamabad passed in W.P. No. 798/08).
Constitution of Pakistan, 1973--
----Art. 185(3)--Removal from Service (Special Powers) Ordinance 2000, Ss. 1(4) & 5--Respondent relieved from service by the competent authority of Bank--Respondent assailed the order through writ petition which was accepted by High Court--Bank filed a petition under Art. 185(3) of the Constitution before Supreme Court--S. 1(4) of the Removal from Service (Special Powers) Ordinance 2000, applies to "Persons in government service and corporation service"--Petitioner admittedly is a body corporate owned, managed and controlled by the Federal Government, for the purpose of Ordinance, even after the enforcement of Agricultural Development Bank of Pakistan (re-organization and conversion) Ordinance, 2002--Whereby the delegation of powers to various officers under Removal from Service (Special powers) Ordinance, 2000 was revised--Provisions of Removal from Service (Special Powers) Ordinance, 2000 are applicable as per the petitioners own circular and stance--Firstly, he was entitled to defend himself and explain his position in the inquiry, when instituted against him, unless dispensed with on due application of mind--Secondly, upon any action taken under the Ordinance, the person concerned had the right to avail the remedy of representation as S. 9 and file appeal u/S. 10 before the Federal Service Tribunal--By not adhering to the provisions of the Ordinance, the respondent stood denuded of the safeguards and remedies, available to him under the law--Leave declined.
[Pp. 1118 & 1119] A, B & C
Mr. Haider Hussain, ASC and Mr. M.S. Khattak, AOR for Petitioner.
Respondent in person.
Date of hearing: 8.5.2009.
Order
Sayed Zahid Hussain, J.--This is a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, qua the order passed by the Islamabad High Court, Islamabad, dated 25.2.2009 in Writ Petition No. 798 of 2008, whereby the petition filed by the respondent under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, was accepted.
The case of the respondent before the High Court and before this Court is that in response to the Advertisement published in the Press on 30.10.2005 and the subsequent interview with the Selection Board comprising one of the Board of Directors (BODs) of the defendant Bank, Ex-Managing Director Standard Chartered Bank, the then Banking Ombudsman, Head HR ZTBL and President ZTBL, he was offered employment as Senior Vice President in the Department vide offer of employment letter No. PAD (RP&C)/1(162)/2006/380, dated 27.07.2006 and consequent upon his appointment as Area Specialist in the Rank of Senior Vice President vide notification dated 13.09.2006 and posted as Credit Risk Manager at ZTBL Head Office. On completion of probation period, he was confirmed vide Office Memorandum dated 01.3.2007 enunciating therein his pay, allowances, perks including vehicle at his disposal as a part of his terms and conditions.
Undisputedly, the respondent was a Senior Vice President in the petitioner bank, who claims to have been performing duties diligently with full devotion and dedication when on 26.1.2008 he received a letter informing him that he had "ceased to be productive for the bank" and that the "competent authority, considering it expedient and viable, do hereby relieve you from the Bank's services in terms of Clause 7(B) of SR-2005 with immediate effect" This order was assailed by the respondent by filing a review petition which remained un-responded. He eventually approached the Islamabad High Court, Islamabad by means of the writ petition referred to above, which was accepted by the learned Judge of the High Court observing inter-alia "that S. 3(1)(b) of the Ordinance 2000 i.e. Removal from Service (Special Powers) Ordinance, 2000 provides that if a person in Government Service or Corporation Service is guilty of being habitually absent from duty in the opinion of the competent authority, he can be proceeded against under the provisions of the Ordinance. As has already been mentioned, the petitioner was removed from service on the ground of absence from duty without leave. The petitioner is a person in Corporation Service within the meaning of Clause(c) of Section 2 ..." It was thus observed that "the petitioner is a person in Corporation Service and the disciplinary proceedings in respect of person in corporation service is covered by the provisions of Removal from Service (Special Powers) Ordinance, 2000 and that he can not be removed from service without resorting to the provisions of Removal from Service (Special Powers) Ordinance, 2000." The order was declared to be without lawful authority and he was ordered to be reinstated into service leaving it open for the petitioner before us to proceed against him under the provisions of Removal from Service (Special Powers) Ordinance, 2000.
Assailing the order of the High Court, it is sought to be contended by the learned counsel that the High Court has incorrectly and illegally proceeded on the premises as if the respondent was liable to be proceeded only under the provisions of Removal from Service (Special Powers) Ordinance, 2000, whereas according to him the Bank's Staff Regulation 2005, particularly Regulation 7(B) thereof was rightly invoked for dispensing with the service of the respondent. Further contends that the provisions of the Ordinance could only be applicable if the said respondent was to be dismissed, removed or compulsorily retired from service or was to be reduced to lower post or pay scale and not in a case like this.
We have considered the contentions of the learned counsel for the petitioner in the light of the material placed before us and would like to observe that the Office Memorandum dated 26.1.2008 indeed narrated incidents and events reflecting upon the inefficiency of the respondent including his absence from duty which was made basis by the competent authority to "relieve" him from Bank's service. Before us the applicability and significance of Staff Service Regulation 2005, is sought to be highlighted empowering the competent authority to relieve any employee from the service. But the same have neither been placed on record nor produced before us. The mere use of the word "relieved" from service, would not make any difference inasmuch as this was the mode adopted by the petitioner for sending home the said respondent. In reality and pragmatically the respondent lost his job/employment. The practical effect is one and the same i.e. deprivation of source of livelihood.
Adverting now to the crucial issue as to whether provisions of Removal from Service (Special Powers) Ordinance 2000, were applicable or not. It may be observed that as per S. 1(4) of the Removal from Service (Special Powers) Ordinance 2000, it applies to "persons in government service and corporation service". A "Person in Corporation Service" is defined as per clause (c) of S. 2 as follows:--
"(c) "Person in corporation service" means every person in the employment of a corporation, corporate body, authority statutory body or other organizations or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein:"
The petitioner admittedly is a body corporate owned, managed and controlled by the Federal Government, for the purpose of Ordinance even after the enforcement of Agricultural Development Bank of Pakistan (Re-Organization and Conversion) Ordinance, 2002. It also stand substantiated by Circular No. DPD/02/2008 dated 31.1.2008, whereby the delegation of powers to various officers under Removal from Service (Special Powers) Ordinance 2000 was revised. There can thus be no cavil that the provisions of Removal from Service (Special Powers) Ordinance 2000 are applicable as per the petitioner's own circular and stance.
Having observed that the provisions of the Removal from Service (Special Powers) Ordinance 2000, were applicable, the further question that arises is whether the respondent was liable to be proceeded against under the relevant provisions of the said Ordinance. It may be observed that whereas special powers were given to the competent authority as per the said Ordinance for disciplinary proceedings against the persons in Government Service or Corporation Service; it contained certain safeguards to such persons as envisaged by S. 3 & 5 of the Ordinance, Firstly, he was entitled to defend himself and explain his position in the inquiry, when instituted against him, unless dispensed with on due application of mind. Secondly, upon any action taken under the said Ordinance, the person concerned had the right to avail the remedy of representation as per S. 9 and file appeal u/S. 10 before the Federal Service Tribunal. By not adhering to the provisions of the Ordinance, the respondent stood denuded of the safeguards and remedies, available to him under the law. The adoption of course of passing a relieving order appear to be a ruse to circumvent the inquiry procedure provided for by the Ordinance. Such a colorable exercise of power cannot be countenanced by Court.
In the case of Azizullah Memon v. Province of Sindh (2007 SCMR 229), the import and effect of the provisions of the Ordinance was reiterated by observing:--
"3. In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings, including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside."
The petition in that case was converted into appeal, reinstating the petitioner into service leaving it open for the department to initiate fresh proceedings against him. Similar course has been adopted by the High Court in the present case which is consistent with the legal position obtaining in the matter.
(M.S.A.) Leave refused.
PLJ 2009 SC 1120
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Sheikh Hakim Ali and
Sardar Muhammad Aslam, JJ.
MUHAMMAD AZAM and another--Appellants
versus
STATE and others--Respondents
Crl. Misc. A. No. 400-L of 2006 in Crl. A. No. 824 of 2006 and Crl. A. No. 825 of 2006, decided on 8.5.2009.
(On appeal from the judgment dated 27 and 28.6.2005, passed by the Lahore High Court, Lahore in Crl. A. Nos. 345 and 346/2000 and Murder Reference No. 312 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Conviction & sentence of death was recorded while applying Section 34--Indiscriminate firing--Only specific entry wounds were found on the dead body of deceased, which were attributed to acquitted accused while other injuries could not be explained by lady doctor--No metallic foreign body was extracted from these injuries--Indiscriminate firing was resorted to by the accused after the injured had fallen on the earth and the active participation in the occurrance by the appellant confessed by himself, which took the life of three deceased persons, while applying provisions of vicarious liabilities, were convicted u/Ss. 302(c) & 34, PPC and sentence him to rigorous imprisonment for 14 years, with payment of compensation to the legal heirs of deceased with benefit of Section 382-B, Cr.P.C. [P. 1129] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Confessional statement of accused recorded under Section 342 of Cr.P.C. has to be accepted or rejected as a whole.
[P. 1129] A
Mr. Muhammad Masood Chishti, ASC and Ch. Muhammad Akram, AOR for Appellant (in Crl. A. No. 824/2006).
Sardar Muhammad Ishhaq Khan, Sr. ASC, for Appellant (in Crl. A. No. 825/2006).
Mr. Muhammad Siddique Khan Baloch, DPG Punjab for State (in Crl. A. No. 824/06).
Sardar Muhammad Ishhaq Khan, Sr. ASC for Complainant (in Crl. A. No. 824/06)
Mr. Muhammad Siddique Khan Baloch, D.P.G. Punjab for Respondent No. 1 (in Crl. A. No. 825/06).
Mian Aftab Farrukh, Sr. ASC, for Respondents No. 2-4 (in Crl. A. No. 825/06).
Date of hearing: 08.05.2009.
Judgment
Sheikh Hakim Ali, J.--Through this single judgment, we are proceeding to decide the following cases:--
(i) Criminal Appeal No. 824 of 2006 arising out of Criminal Petition No. 397-L of 2005 (Muhammad Azam Vs. The State) appeal against conviction.
(ii) Criminal Miscellaneous Application No. 400-L of 2006 in Criminal Appeal No. 824 of 2006 (Muhammad Azam Vs. The State) for compromise and
(iii) Criminal Appeal No. 825 of 2006 out of Criminal Petition No. 410-L of 2005 (Javed Iqbal Vs. The State etc) against acquittal.
Because all these cases have sprung out from one FIR No. 194 of 1999, registered on 08.04.1999, at about 4:10 p.m. upon the statement of Seth Javed Iqbal, PW-1, the informant under Sections 302/324/34 PPC with Police Station, Alif Division, District Gujrat.
"(A) All the accused are convicted under Section 302 (b)/34 PPC for the Qatl-i-Amd of Mst. Tanvir Begum and sentenced to death penalty each. An amount of Rs. 100,000/- as compensation shall be paid to the legal heirs of the deceased by each accused and in default of payment of same, they shall further undergo six months S.I. each.
(B) All the accused are convicted under Section 302(b)/34 PPC for the Qatl-i-Amd of Niamat Ullah and sentenced to death penalty each. An amount of Rs. 100,000/- as compensation under Section 544-A Cr.P.C. shall be paid to the legal heirs of the deceased by each accused and in default of payment of compensation, they shall further undergo six months S.I. each.
(C) All the accused are convicted under Section 302(b)/34 PPC for the Qatl-i-Amd of Amanat Ullah and sentenced to death penalty each. An amount of Rs. 100,000/- as compensation under Section 544-A Cr.P.C shall be paid to the legal heirs of the deceased by each accused and in default of payment of compensation, they shall further undergo six months S.I. each.
(D) All the accused are convicted under Section 324/34 PPC for attempting to commit Qatl-i-Amd of Javed Iqbal, complainant and sentenced to ten years R.I. each and a fine of Rs.25,000/-. In default of payment of fine, they shall further undergo six months S.I. each.
(E) All the accused are convicted under Section 337-F(ii)/34 PPC for causing the injury Ghayr Jaifa Badiah to Javed Iqbal, complainant and sentenced to Rs.50,000/- as Daman each and two years R.I as Tazir each. In default of payment of Daman, they shall further undergo two months S.I each."
(I) Criminal Appeal No. 345 of 2000, filed by Muhammad Azam was dismissed, the conviction and the sentences recorded against him by the learned trial Court was maintained in toto.
(II) Criminal Appeal No. 346 of 2000 filed by Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal, were accepted and they were acquitted of the charge.
Aggrieved from the judgment of conviction, of Muhammad Azam filed the above noted Criminal Appeal No. 824 of 2006, while Javed Iqbal, PW-1, the informant, has filed Criminal Appeal No. 825 of 2006 against the acquittal of three above noted acquitted accused, namely, Muhammad Zubair, Muhammad Yousuf and Muhammad Afzal. During the pendency of the Criminal Appeal No. 824 of 2006, filed by Muhammad Azam and application for acquittal of Muhammad Azam in respect of the murder of Niamat Ullah and Amanat Ullah deceased, was submitted before this Court in which, it was prayed that Muhammad Azam might be acquitted of the charges of murder of the above noted deceased persons, as the legal heirs of both the above mentioned deceased had affected a compromise with Muhammad Azam, appellant. The report was called for from the learned Sessions Judge, Gujrat, which was duly submitted, after verifying the genuineness and voluntariness of the compromise entered into between the legal heirs of Niamat Ullah and Amanat Ullah deceased and the present appellant, namely, Muhammad Azam. According to the report dated 20.12.2006 of the learned Sessions Judge, Gujrat, all the major legal heirs of both the above noted deceased have entered into compromise with Muhammad Azam, appellant, while to the extent of minor legal heirs of both the deceased, shares of diyat to their extent were deposited with Habib Bank Limited, Gujrat Branch. Mst. Razia Begum, the mother of both these deceased had at that time refused to accept service. But we have now been apprised of the death of Mst. Razia Begum, of the aforesaid lady which has occurred on 17.2.2007. Copy of Certificate of Mst. Razia Begum issued by Secretary Union Council No. 55 of Gujrat, has also been produced in this Court.
Accordingly, we accept the compromise as genuine and having been entered into by the free consent of legal heirs of Niamat Ullah and Amanat Ullah, deceased, keeping in view of the report dated 20.12.2006 of the learned Sessions Judge, Gujrat, in which the interest of minors have also been safeguarded. Consequently, we acquit Muhammad Azam, the appellant, from the charge of murder of Niamat Ullah and Amanat Ullah deceased on the basis of above noted compromise.
Before bringing discussion of the case on the factual and legal aspect, we consider it necessary to reproduce the story of the prosecution as narrated by Seth Javed Iqbal in FIR No. 194 of 1999, dated 08.04.1999 as was transformed into English version by the learned Division Bench of the Lahore High Court, Lahore:--
"On 8.04.1999 at 2:00 p.m. when Seth Javed Iqbal, the complainant was sitting in the room of his house along with his wife Mst. Tanvir Begum, Niamat Ullah and Amanat Ullah, brothers in law of the complainant were talking about the marriage of children when Ali Abid son of the complainant went in the adjacent room and in the meanwhile, Muhammad Azam, Muhammad Zubair, both real brothers, Muhammad Yousuf and Muhammad Afzal, both brothers in law armed with 30 bore pistol, entered in the room. Sooner, the above said accused entered in the room, Muhammad Zubair fired a shot which hit on the left flank of Amanat Ullah, the second shot fired by Muhammad Azam landed on the left shoulder of Niamat Ullah and the third shot fired by Muhammad Yousuf hit into abdomen of Mst. Tanvir Begum while the fourth shot fired by Muhammad Afzal landed into abdomen of the complainant. All the injured fell down and the accused also made firing upon them which hit on different parts of their bodies. On hearing the report of firing, the PWs attracted to the place of occurrence and the accused while firing in the air, fled away. The injured Amanat Ullah, Niamat Ullah and Mst. Tanvir Begum while in their way to hospital, succumbed to their injuries.
The Motive alleged was dispute of property and condition of account."
(i) FIR was not belated. It was promptly lodged. The time of 6:00 p.m. considered by the learned Division Bench, to be the time of reporting was an inadmissible evidence, which could not be relied upon by the learned Division Bench of the Lahore High Court.
(ii) The acquittal on the basis of opinion of the police in three successive investigations in respect of innocence of three accused could not made basis for acquittal, as it was irrelevant and inadmissible evidence in the eye of law. Refers to 92 SCMR 2055 (Farman Ali and 2 others VS. The State).
(iv) Plea of alibi was never raised by the aforementioned accused in their statement recorded under Section 342 of the Cr.P.C.
(v) Motive and recoveries of empties were admitted facts.
(vi) Conduct of accused after the murder and his confessional statement recorded under Section 342 of the Cr.P.C. was sufficient to convict these accused. The compromise was never entered on behalf of legal heirs of Mst. Tanvir Begum, therefore, all these three accused could not be acquitted.
Learned counsel appearing on behalf of Muhammad Azam, submits that learned Division Bench of the Lahore High Court, Lahore has disbelieved the story and evidence of the prosecution, but has maintained the sentence of Muhammad Azam, convict-appellant upon his confessional statement recorded under Section 342 of the Cr.P.C. Learned counsel submits that the principle with regard to the confessional statement of accused is that it has to be accepted or rejected in toto and its exculpatory portions cannot be discarded while proceeding to rely upon the confessional statement for decision of the case. This settled principle of law was not adopted and acted upon by the learned Division Bench of the Lahore High Court, Lahore, which was against the precedents judgments of this Court reported in 1992 SCMR 2047 (The State Vs. Muhammad Hanif and 5 others) and 1983 SCMR 76 (Faiz and another Vs. The State). Further submits that as the legal heirs of Niamat Ullah and Amanat Ullah deceased, have affected compromise with Muhammad Azam, appellant, so he is entitled acquittal for the murder of these accused, while the appellant Muhammad Azam having not caused any injury to Mst. Tanvir Begum, according to his confessional statement, he was liable to be acquitted by this Court also. The injuries attributed to Mst. Tanvir Begum were ascribed to Muhammad Yousuf accused, who was acquitted by both the learned Courts below.
Arguments from Mian Aftab Farrukh, learned counsel for Respondents No. 2-4, the acquitted accused are in the following forms:--
"(a) In case of acquittal, the principle settled is that when two views are possible from the evidence produced by the prosecution, the view favourable to the accused has to be adopted and accepted. Learned Division Bench having acted upon this principle of law, it was not open to any exception.
(b) The learned counsel for the informant-complainant has not been able to point out that the view taken by the learned Division Bench for ordering the acquittal was perverse, artificial, shocking, ridiculous, arbitrary, or without sustainable reason.
(c) Further submits that in case of acquittal double presumption of innocence arises in favour of acquitted accused which cannot be dislodged without proving the case in consonance with the above noted principles. As per learned counsel, the prosecution has not been able to prove that the principles above noted, have been violated in case of acquittal of the above mentioned accused. Learned counsel has produced a long list of cases also, which we shall enter it at its appropriate place.
Learned DPG has supported the judgment of learned Division Bench of the Lahore High Court, Lahore.
All the learned counsels' lengthy discussion, arguments and the perusal of the record of the case, have brought us to conclude the case with the following reasons:--
(1) It is cardinal principle of criminal jurisprudence, which have been settled since decades by this apex Court of the country that when an accused is acquitted of the charge, he can be brought into barriers of jail when the findings of the learned Court acquitting the accused are proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law. It is also settled that an accused, who has been acquitted is credited with two advantages, one that is available to him of his innocence at the pre-trial stage and the other which is earned by him on the basis of the judgment of acquittal from a Court of Competent jurisdiction. The following authorities noted below, are worth consideration in this regard:--
(1) PLD 1951 FC 107 (Ahmad Vs. The Crown) (2) PLD 1960 SC 286 (Fateh Muhammad Vs. Bagoo and others) (3) PLD 1964 SC 422 (Abdul Majid Vs. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan) (4) PLD 1966 SC 424 (Feroze Khan Vs. Captain Ghulam Nabi Khan and another) (5) PLD 1969 SC 293 (Usman Khan and others Vs. The State) (6) PLD 1973 SC 469 (Noora and another Vs. The State) (7) PLD 1975 SC 227 (Abdur Rashid Vs. Umid Ali and 2 others) (8) PLD 1976 SC 234 (Taj Muhammad Vs. Muhammad Yusuf and 2 others) (9) PLD 1977 SC 4 (Farid Vs. Aslam and 4 others) (10) PLD 1980 SC 317 (Ali Sher Vs. The State and 3 others) (11) 1981 SCMR 95 (Mst. Habibunnisa alias Mst. Bivi Vs. Zafar Iqbal and another) (12) 1981 SCMR 474 (Capt. Mahmood Jan Vs. Madad Khan and another) (13) PLD 1981 SC 286 (State through Advocate General, N.W.F.P. Peshawar Vs. Amir Nazar and others) (14) 1981 SCMR 415 (Nazir Ahmad Vs. Muhammad Din etc.) (15) PLD 1985 SC 11 (Ghulam Sikandar and another Vs. Mamaraz Khan and others) (16) 2003 SCMR 477 (Muhammad Mansha Kausar Vs. Muhammad Asghar and others) (17) 2004 SCMR 215 (Khan Vs. Sajjad and 2 others) (18) 2004 SCMR 923 (Mst. Moodan Vs. Saifullah and 2 others) (19) 2004 SCMR 1209 (Qamar Zaman Vs. Waseem Iqbal and 5 others) (20) PLD 2006 SC 427 (Mst. Zahida Saleem Vs. Muhammad Naseem and others) (21) PLD 2007 SC 637 (Abdul Majeed Vs. Mulazim Hussain and others) (22) 2007 SCMR 1812 (Barkat Ali Vs. Muhammad Asif and others).
(2) Therefore, keeping in view, these principles, we have examined the instant case and have not found any wrong having been committed by the learned Division Bench of the Lahore High Court, Lahore while delivering the judgment of acquittal in respect of these three acquitted accused-respondents. We are in agreement with the view of innocence taken by the learned Division Bench on the basis of following summarized grounds:--
(a) FIR was belated as it was recorded after 6:00 p.m. This finding was rightly and correctly recorded because PW-9, Dr. Tariq had admitted in his statement that general condition of Javed Iqbal was very serious who was profusely bleeding and for that he was operated upon by and another Doctor also. Therefore, this was a supportive legal evidence proving that informant was unconscious, who had recovered at about 6:00 p.m. after the operation.
(b) No independent witness from the locality was produced.
(c) The other witnesses, who were admittedly present at the time of alleged occurrence and whose name was given by the prosecution itself, namely, Muhammad Safdar, Khalid Mehmood and Muhammad Tufail, were given up, the inference arising from it would be that they were not supporting the case of prosecution.
(d) Whole prosecution case was raised upon the ocular testimony of informant and Ali Abid, (PW-2) his son. Both these witnesses cannot be termed as independent witnesses to convict the acquitted accused.
(e) Presence of Ali Abid has been proved on the record to be doubtful at the time of occurrence.
(f) Even, according to the prosecution story as narrated by Seth Javed Iqbal, informant, Ali Abid had gone to another room when the occurrence had taken place.
(g) What was the immediate cause for the commission of murder of these three deceased persons, particularly when these three accused persons had admittedly no animosity or ill-will against these deceased persons.
(h) Conduct of Ali Abid, immediately after the occurrence, of not informing the police and not taking the injured persons to the hospital, proves the absence of Ali Abid (PW-2) the son of informant and Mst. Tanvir Begum, and sister's son of the Niamat Ullah and Amanat Ullah, deceased.
(i) The opinion of police was not the sole ground for acquittal of accused. Many other grounds were also noted in the judgment for forming the view of acquittal.
11-A. From the above and other reasons, which are apparent from the record, we are not inclined to upset the judgment of acquittal of these three accused.
11-B. As regard Muhammad Azam, as the legal heirs of Niamat Ullah and Amanat Ullah, deceased, have affected compromise, Muhammad Azam has therefore, been acquitted for the charge of murder of these two deceased. After the case of these two deceased persons, there remains the case of Mst. Tanvir Begum, the third deceased, to whom injuries were caused by Muhammad Yousuf, the acquitted accused, according to the prosecution story. As regard injury to Seth Javed Iqbal, the informant, it was attributed to Muhammad Afzal another acquitted accused by the prosecution. So, from this discussion, it is evident that Muhammad Azam accused had not caused murder of Mst. Tanvir Begum or injury to Seth Javed Iqbal, according to the case of the prosecution itself. In these circumstances, the prosecution cannot claim the conviction and awarding of death sentence to Muhammad Azam on the basis of its own evidence. At the most, the prosecution can make prayer for the conviction of Muhammad Azam by invoking provision of Section 34 of the PPC. But we have found from the record that only 2 entry wounds were found on the dead body of Mst. Tanvir Begum, which were attributed to Muhammad Yousuf acquitted accused, while Injuries No. 3 to 6 could not be explained by the lady doctor Kausar Perveen, PW-3. Prosecution has not been able to explain these Injuries No. 3 to 6 (consisting of 1 X 1 cm each) as to what was the nature of these injuries, by whom and with what weapon, these injuries were caused? Whether these were entry or exit wounds, no explanation was forthcoming from the doctor, who was herself uncertain as to these injuries. No metallic foreign body was extracted from these injuries. The postmortem examination by the aforementioned lady doctor has not been found by us up to the mark, with a clear picture so as to attribute, link and connect it with Muhammad Azam, accused, who may be held responsible to cause these injuries of unknown nature. It is material to note that it is not the prosecution case that Mst. Tanvir Begum and Seth Javed Iqbal, were caused injuries by Muhammad Azam accused. The evidence of the prosecution having been disbelieved as regard to three accused, so upon the same evidence of prosecution, Muhammad Azam accused cannot be convicted and punished with death sentence.
In the end, we are left with the confessional statement of Muhammad Azam recorded under Section 342 of Cr.P.C. which has to be accepted or rejected as a whole. We have found that Muhammad Azam has exceeded in his right of self defence and has suppressed the real story with regard to injuries caused to Mst. Tanvir Begum. Not a single word was uttered by him as to how and by whom, she was injured although her presence, use of abusive, filthy language, misbehaving to him was admitted in his statement. From this concealment and keeping in view, the assertion of prosecution that indiscriminate firing was resorted to by the accused after the injured had fallen on the earth and the active participation in the occurrence by Muhammad Azam confessed by himself, which took the life of three deceased persons, while applying provision of vicarious liabilities, we convict him under Section 302(c) read with Section 34 of the PPC and sentence him to suffer rigorous imprisonment for 14 years, with payment of compensation of Rs. 100,000/- to the legal heirs of Mst. Tanvir Begum or to suffer six months more of simple imprisonment, in case of non-payment of above noted compensation. The benefit of Section 382-B of the Cr.P.C. however, is extended to the petitioner.
In nutshell, Criminal Appeal No. 825 of 2006 (Javed Iqbal Vs. The State etc) is dismissed while Criminal Miscellaneous Application No. 400-L of 2006 (compromise) with regard to the murder of Niamat Ullah and Amanat Ullah deceased is accepted and Muhammad Azam is acquitted of the charge of these two deceased persons on the basis of compromise. However, Criminal Appeal No. 824 of 2006 is partly allowed, as noted above. The remaining sentences awarded to him by the learned trial Court as upheld by the learned High Court shall be suffered by Muhammad Azam. However, these shall run concurrently with benefit of the provision of Section 382-B of the Cr.P.C.
(M.S.A.) Order accordingly.
PLJ 2009 SC 1129
[Shariat Appellate Jurisdiction]
Present: Justice M. Javed Buttar, Chairman, Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mahmud & Dr. Rashid Ahmed Jullundhri, JJ.
ABDUL MAJID--Appellant
versus
GOVERNMENT OF PAKISTAN--Respondent
Civil Sh. Appeal No. 2(S) of 2004, decided on 7.5.2009.
(On appeal from the judgment/order dated 5.11.2003 passed by the Federal Shariat Court, Islamabad, in Shariat Petition No. 1/I/2003)
Pakistan Arms Ordinance, 1965 (XX of 1965)--
----Scope--Arms Rules, 1924--Scope--Appellant challenged the vires of Pakistan Arms Ordinance, 1965 and Arms Rules, 1924 as they are repugnant to injunctions of Islam--Whether there is any requirement for grant of license for retaining fire arm weapons and also levying of Annual fees for grant of license is accordance with injunctions of Islam--Held: All the subjects of a Muslim state are responsible to safeguard their lives & property on their own this is only in Dar-Harb--Where there is a legal government it is the discretion of the authorities to decide who should be given license of the Arms and who is to be refused--The companions of the Prophet (P.B.U.H) proceeded to Mecca to perform Umrah without arms whereas they were barred at Hudaybia and they were not allowed to enter Mecca--It indicates that it is not the basic necessity of every Muslim to have arms at all times. [P. 1132] A
Ittehad--
----If anything is not specifically found in the Quran & Sunnah it falls in the category where the Quran & Sunnah are silent on that specific issue--In such position legislation can be made by a state by way of Ittehad which was already suggested by the Prophet to fulfill the needs of the public provided any of their findings do not contradict any injunction of the Quran & Sunnah and is not right to say that these conclusions are against the Quran & Sunnah. [P. 1132] B
Pakistan Arms Ordinance, 1965 (XX of 1965)--
----Scope & purpose--Ordinance and Rules place no embargo on keeping of weapon for the purpose of self protection as well as protection of honour and property but as highlighted in its pre-empble itself only aims at consolidating the law relating to the sale, transport, bearing or possession of arms ammunitions for military stores by making certain rules and regulations for the same--The only purpose of the Ordinance and Rules appears to regularize the possession of weapons and thereby identify misuse of the same so that the lives and properties of innocent people are properly safeguard--Appeal dismissed. [P. 1133] C
Appellant in person.
Nemo for Respondent.
Date of hearing: 7.5.2009.
Order
Dr. Allama Khalid Mehmud, J.--This appeal is directed against the judgment dated 05.11.2003 passed by the Federal Shariat Court, whereby appellant's Appeal No. 1/I of 2003, was dismissed in limine.
It is sorry to note that the words Quran and Sunnah are so frequently used on our own far-fetched ideas, having been drawn in some general directions of the Quran & Sunnah. This attitude injures the sanctity of the Quran and Sunnah whereas only clear cut & direct evidence of the Quran and Sunnah should have been quoted in these Names. All the other issues where there is apparently only the implied evidence of any of these Two Headlights of Islam, should not be quoted in these Two Names, When the jurists asserted their own ideas in the name of Torah, the Quran condemns their this attitude in these lines:
"Woe to those who write the Book with their own hands & they say "This is from Allah", so that they may sell it for a pretty price. Woe to them, for what their hands have written and woe to them, for what they have earned Al-Baqarah 79"
This does not mean that they had no prescribed words of Torah; surely they had. It suggests here their wrong ((quoting) from the book on their own presumed ideas. When Ijtihad can be given due consideration in such matters why to dare referring such weak issues directly to Quran and Sunnah and degrade their sanctity. We are sorry to express that our some learned Counsel also do not hesitate to misuse these Two Names and produce these as evidence on their own derivations and for their own far fetched ideas.
It is true that certain issues demonstrated in the Sunnah were ascribed to the Quran because of the daily practice of the Prophet under the Divine guidance; yet we find no evidence in the early period of Islam that any analogical approach ever has been maintained in the names of these Two Head lights of Islam.
It is also not true that all the subjects of a Muslim State are responsible to safeguard their lives & property on their own. This is only in Dar-Harb. Where there is a legal Government it is the discretion of the authorities to decide who should be given license of the Arms and who is to be refused. The companions of the Prophet proceeded to Mecca to perform Umrah without Arms whereas they were barred at Hudaybia and they were not allowed to enter Mecca. It indicates that it is not the basic necessity of every Muslim to have Arms at all times.
We find a general direction to this effect in the Quran as follows:
Al-Ma'arij-23
Trans: There is a known right in their wealth for the beggars and the deprived.
This idea finds support in hadith of the Prophet (P.B.U.H) Fatimah B. Qays relates the Prophet as saying:
Jami ul-Tirmidhi Vol-I, P. 260".
It says verily in the wealth of the (rich) people they have their share, other than Zakat also.
The Quran require the believers to follow their ulu-al-Amr provided that they do not ask believer to adopt anything which contradicts any of the injunctions of the Quran & Sunnah The Quran says:
Tran: O believes ! Obey Allah, Obey the Rasool and those charged with authority among you.
Here the word obey occurs two times for Allah and for the Prophet but the obedience is sought here for three for Allah, for the Prophet and for the rulers. It indicates that obedience to the rulers has been placed under that very word obey which relates to the Prophet. It means the rulers are to be obeyed, provided they do not transgress any guidance of the Prophet. If the believers fall in dispute with the rulers in that position the solution can be made by referring the point of dispute only to the Quran & Sunnah. The next part of the above quoted verse states as follows:
The conclusion of this discussion is that obedience to Allah & the Prophet is un-conditional and obedience to the authorities is conditional that it may not supersede any injunction of the Quran and the Sunnah.
We have given our anxious consideration to the contentions of the appellant and have also perused the record of the case. After examining the record minutely and carefully, we observe that all the contentions raised before us by the appellant are exactly the same which were raised by the appellant before the Federal Shariat Court. The learned Federal Shariat Court, after deep by examining the points in dispute has discussed each and every point in Paras No. 2 to 13 of the impugned judgment and answered the issues which were raised. The learned Federal Shariat Court has rightly observed that ordinance and Rules place no embargo on keeping of weapon for the purpose of self protection as well as protection of honour and property but as highlighted in its pre-empble itself only aims at consolidating the law relating to the sale, transport, bearing or possession of arms ammunitions for military store by making certain rules and regulations for the same. The only purpose of the ordinance and Rules appears to regularize the possession of weapons etc. and thereby identify misuse of the same so that the lives and properties of innocent people are properly safeguarded. While discussing Ijtihad, the learned Federal Shariat Court has rightly held that it has played a vital role in the evolution of laws and making them progressive, modern and dynamic. Learned Federal Shariat Court rightly relied upon the judgment in the case in the judgment in the case in (PLD 1992 FSC 329) regarding the imposition of fees for keeping arms.
The nut shell of the above discussion is that we do not find any infirmity or illegality mis-reading or non-reading of record in the impugned judgment calling for interference by this Court. Thus, the appeal being devoid of any force is hereby dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2009 SC 1134
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Zia Perwez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmood &
Dr. Rashid Ahmed Jullundari, JJ.
NAWAZISH ALI and others--Petitioners
versus
STATE and others--Respondents
Crl. Shariat Petition No. 38 of 2007 & Crl. Shariat Petition No. 39 of 2007, decided on 31.3.2009.
(On appeal from the judgment dated 26.1.2007 of the Federal Shariat Court, Islamabad passed in Criminal Revision No. 114/L of 2005).
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 235 & 239--Respective roles--Each accused would be liable to conviction of proof of charge at trial according to law--In the absence of any prejudice that may be caused to the accused due to joint trial, when a trial arises out of a series of offences during the same transaction the facts relevant to determine whether different acts committed by one or more accused persons arising out of same transaction involve examination of the sequence of facts of the case and, whether or not they are relevant to each of the principle or subsidiary acts resulting in the community of purpose and continuity of action--Held: If a single act or series of acts is of such a nature that it is doubtful each of the several offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences--Role of one or more of the accused person does not cover the entire series of events has to be considered by the trial Court in the evidence at the trial where each individual link of the chain of evidence has to be considered but it does not make out the ground for framing a separate charge. [P. 1137] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Object of exercise of powers is to prevent abuse of law available to the appellate Court, however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice--Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. [P. 1138] C
P.Cr.L. 2000 SC 1054, PLD 1997 SC 275, 1985 SCMR 257, PLD 1967 SC 317 & PLD 1992 SC 353, ref.
Mian Allah Nawaz, ASC and Mr. Arshad Ali Ch., AOR for Petitioner (in Crl. Sh.P. No. 38/07).
Mr. Zulfiqar Khalid Malooka, ASC for Petitioners (in Crl. Sh. P. No. 39/07).
Mian Asif Mumtaz DPG, Punjab for State (in both petition).
Mian Allah Nawaz, ASC and Mr. M.S. Khattak, AOR for Respondents No. 1 to 4 (in Crl. Sh. P. No. 39/2007).
Date of hearing: 31.3.2009.
Judgment
Zia Perwez, J.--Criminal petitions for leave to appeal No. 38(S) and No. 39(S) of 2007 instituted by Nawaizish Ali and others versus The State and others and Mst. Rukhsana Bibi versus Dr. Amir Masood Nasir and others respectively are directed against the judgment of the Federal Shariat Court in Criminal Revision No. 1 14-L of 2005 dated 26.1.2007.
No. 1 of 2004 was registered. In her complaint, she stated her age to be about 14/15 years. About two months prior to lodging of FIR she was alone in her house. Her parents had gone to the city when at about 1.00 p.m. Baggi, Kalu and Malangi, all sons of Taj Din, came in a car driven by a person not known to her. They asked her about her father. She informed them that her parents were out of city, while she was saying so, those persons forcibly threw her in the car and drove away. She tried to raise cry but Baggi and Kalu put their hands on her mouth and threatened to kill her if she tried to make noise. Accused then took her to Multan at the house of Ghanwar Baloch where Mst. Shahnaz and Zafar, wife and son of Ghanwar respectively, were present. Kalu and Malangi went away from the house of Ghanwar Baloch but Baggi stayed there for three days. During this period, Baggi and Zafar repeatedly raped her. Thereafter, Baggi also went away, leaving her in the custody of Ghanwar etc. Ghanwar kept her confined in his house for about ten days, during this period Zafar repeatedly raped her. After ten days Ghanwar, his wife Mst. Shahnaz and son Zafar told her that they were taking her to Data Darbar in Lahore but, in fact, they took her to the house of Dr. Nawaizish in Lahore. Mst. Samina wife of Dr. Nawaizish, was present in the house. Complainant was kept at the house of Dr. Nawazish for three or four days. Then she was told that she was ill and needed medical treatment. On this pretext her blood samples were drawn many times for testing purposes. Thereafter, she was a taken to "Maqsood Hospital" near Kalma Chowk in Lahore. (She named the Hospital as "Maqsood Hospital" although later on it transpired that its name was "Masood Hospital"). There some injections were given to her and she was made to smell something where after she went unconscious. After three days she regained consciousness. Then she came to know that she had been operated upon. Two days thereafter, when she was still in a room in the Hospital when she heard Dr. Nawazish and Ghanwar Baloch talking in the room. She heard that Dr. Nawazish informed Ghanwar Baloch that her kidney was sold for Rs. 1,40,000/-. Ghanwar was demanding two lac rupees for the kidney. She remained in `Masood Hospital' Lahore for about fifteen days. After that Ghanwar Baloch, his wife Mst. Shahnaz and son Zafar brought her in a car to his house in Multan and confined her there for about 10 or 12 days. During this period, Ghanwar Baloch and his wife use to quarrel about the amount for which her kidney had been sold and, as a result, Mst. Shahnaz, after quarreling with her husband left the house. Ghanwar Baloch rushed after her thus complainant got an opportunity, she escaped from the house, she waived to a car, the car owner stopped, he heard her ordeal and gave her lift up to the bus stand. He even paid her for the fare to her village. After she returned to the house of her parents she narrated the entire incident to them. As to the motive on the part of the accused persons, she stated that her parents used to live in Garh More and Baggi also belonged to the same place. Baggi had turned out his wife due to some quarrel. He wanted to marry the complainant but her parents refused to marry her to Baggi, they instead married her to one Mazhar son of Muhammad Ali about five months prior to the incident. Her rukhsati had not taken place. About 15 or 20 days before the occurrence, her parents had moved away from their village and had settled in Chak No. 93/WB and at this the accused persons were annoyed. On account of this grudge she was abducted taken to Multan where Baggi and Zafar had raped her and then her kidney was removed and sold with the help of the doctors at Lahore.
Respondents moved two separate applications under Section 265-K Cr.P.C. seeking acquittal and the second against the framing of a single charge with three heads to stand joint trial with respect to the respective offences committed by them with respect to the individual roles all the accused. The applications were dismissed by the learned Additional Sessions Judge, Vihari vide his order dated 21.11.2005 in Hadood Case No. 19 of 2004. The order was challenged before the Federal Shariat Court in Criminal Revision No. 114-L of 2005 followed by the above judgment impugned before us.
The series of events shows that from the date of abduction till the time when Mst. Rukhsana Bibi succeeded to escape from the detention she was subjected to different offences forming a chain of events for which the various accused have been assigned their respective roles. Each such accused would be liable to conviction of proof of the charge at the trial according to law. In the absence of any prejudice that may be caused to the accused due to joint trial, when a trial arises out of a series of offences during the same transaction the facts relevant to determine whether different acts committed by one or more accused persons arising out of same transaction involve examination of the sequence of facts of the case and, whether or not they are relevant to each of the principle or subsidiary acts resulting in the community of purpose and continuity of action. Different acts committed by the accused in the instant case prima facie make out a series of events linked in a manner so as to constitute a single transaction commencing with the abduction of complainant. The question as to whether the abduction took place with knowledge or connivance of co-accused and whether the motive for abduction was to remove the kidney are relevant and are to be examined on the basis of evidence before the trial Court in support of charge. The provisions of Sections 235 and 239 of the Code of Criminal Procedure are attracted to such cases that provide that if a single act or series of acts is of such a nature that it is doubtful each of the several offences, the facts which can be proved will render the accused liable to conviction for having committed all or any of such offences. Mere facts that the role of one or more of the accused person does not cover the entire series of events has to be considered by the trial Court in the evidence at the trial where each individual link of the chain of evidence has to be considered but it does not make out the ground for framing a separate charge. The trial under such circumstances attracts the provisions of Section 239 (d) Cr.P.C. reproduced as under:--
Section 239. What persons may be charged jointly.--The following persons may be charged and tried together, namely:
(a)......
(b)......
(c)......
(d) "persons accused of different offences committed in the course of the same transaction;"
(e).......
(f).......
(g).......
In the case of Shah Nawaz vs. The State (1968 SCMR 1379) It has been laid down that when two offences are obviously linked together, the second having been committed to cover the first. Both were complementary to each other and therefore fell in the same series of acts which constituted two different offences. The principle is attracted to the facts of the present case involving trial for a charge with three distinct heads.
Criminal Petition for leave to Appeal No. 39(S) of 2007 is directed against the impugned order to the extent that proceedings were quashed against Respondents No. 1 to 4 in exercise of powers under Section 265-K Cr.P.C. by the learned Federal Shariat Court. Perusal of the available record in the light of the argument advanced before us shows that evidence, both oral as well as documentary is available with respect to the allegation of removal of her kidney after abduction of the complainant. In view of the available evidence prima facie case is made out against the said respondents. The object of exercise of powers is to prevent abuse of law available to the learned appellate Court however in a case where sufficient prima facie evidence is available the powers may not be exercised as to throttle the process of justice. Mere availability of defence to a party does not call for exercise of such powers that call for exercise of judicial discretion. The prosecution evidence is not to the sifted at the out set as laid down in the case of Mst. Kalsoom v. Bashir Ahmed and 2 others (P.Cr.L. 2000 SC 1054), Such exercise of power under Section 265-K are similar to and can be equated to the proceedings under Section 561-A Cr.P.C. as held in Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A) (PLD 1997 S.C. 275) and Mian Munir Ahmed v. The State (1985 SCMR 257). The exercise of such powers is an exception rather than a rule. In Sheikh Mahmood and other vs. Amir Nawaz Khan and another (1996 SCMR 839) it was observed as under:--
"Suffice it to say at this juncture that the ground urged before us hardly furnished a valid ground for the quashment of the proceedings under Section 145, Cr.P.C. Even otherwise, normally every case should be allowed to proceed, according to law and resort to the provisions of Section 561-A Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muhammad Khan (PLD 1967 SC 317). Nonetheless, we may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassment."
It was further urged before this Court, that, in the said case the High Court has not only acted in disregard of these principles but has, indeed, by interfering at this intermediate stage with the usual course of the administration of criminal justice in the manner provided by the Criminal Procedure Code interrupted the course of justice and set up a wrong precedent by which the cause of justice instead of being advanced has really been stifled.
"The inherent jurisdiction given by Section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this Section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."
The same principle was attracted to the cases of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353, Abdur Rehman Bajwa v. Sultan and 9 other PLD 1981 SC 522, Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 and Muhammad Aslam v. The State 1991 SCMR 600.
For the foregoing reasons, Criminal Shariat Petition No. 38 of 2007 is dismissed. Criminal Shariat Petition No. 39 of 2007 is converted into appeal and allowed. The impugned judgment of the Federal Shariat Court, dated 26.1.2007 in Criminal Revision No. 114-L of 2005 is set aside and the order of the trial Court dated 21.11.2005 is restored.
(M.S.A.) Order accordingly.
PLJ 2009 SC 1140
[Appellate Jurisdiction]
Present: Javed Iqbal, Nasir-ul-Mulk & Sayed Zahid Hussain, JJ.
A.R. AWAN and others--Appellants
versus
CITY DISTRICT GOVERNMENT KARACHI and another--Respondents
Crl. Appeals No. 506, 507 and 508 of 2005, decided on 22.4.2009.
(On appeal from the judgment dated 27.6.2005 of the High Court of Sindh at Karachi passed in Crl. A. No. 7, 8 & 10 of 1996).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 423(1)(a)--Procedure and manner of disposal of appeals--Disposing of appeal--Provision of law appear to have escaped the notice of judge in High Court--Court could either reverse the order of acquittal or order further inquiry to be made or order retrial of the accused on find him guilty and sentence him according to law--Acquittal order of the appellant was maintained by High Court and appeal was dismissed, but at the same time the Court proceeded to make observations in the judgment which to our understanding fell outside its scope or ambit--It has been the consistent rule followed by the Courts not to embark upon matters not directly arisen for decision or not falling within its ambit or power. [P. 1143] A
Sindh Local Government Ordinance, 1979 (XII of 1979)--
----S. 64--In the presence of such a power available to it, the respondent clearly was not left remidiless or helpless in recovering the taxes or fee if due--It could invoke the relevant provisions of law for that matter--Held: Penal liability was quite distinct from the fiscal liability, which could not be intermingled--In view of the factual and legal position obtaining in the matter, Supreme Court are left with no doubt whatsoever that neither the trial Court nor the appellate Court was called upon to make observations which had no direct relevancy or nexus with the matter before them--Appeals accepted. [P. 1145] B
Mr. Hafeez Lakho, ASC for Appellant.
Mr. Manzoor Ahmad, ASC for Respondent No. 1.
Mr. Saleem Akhtar, Addl. P.G. Sindh for Respondent No. 2.
Date of hearing: 22.4.2009.
Judgment
Sayed Zahid Hussain, J.--A.R. Awan, the Manager of the Mills, the appellant was issued notice dated 30.1.1991 under Section 114 of the Sindh Local Government Ordinance, 1979 alleging contraventions of Section 99/100 read with part I, II of schedule VI of the said Ordinance, which followed his prosecution on a complaint under Section 99/100 Ordinance, 1979 read with clause 2, 31 and 59 of schedule VI part II of the said Ordinance. In that the proceedings commenced against him and the appellant pleaded not guilty. The trial that took place resulted in his acquittal by means of order of the Special Magistrate K.M.C. Karachi dated 17.10.1995, it was however observed that he was not "absolved of the liability of obtaining license on payment of licence fee at the rate of Rs.50/- per month i.e. Rs.600/- per year, if he pays the same he shall stand exonerated". This order was assailed by Karachi Metropolitan Corporation through Criminal Acquittal Appeal No. 7 of 96 under Section 417(2) Cr.P.C. This appeal came up for hearing before a learned Judge of the High Court of Sindh at Karachi, and passed the judgment dated 27.6.2005. While deciding the appeal it was held that " In view of the confusion prevailing on both the sides the conviction and sentences can not be awarded to the respondents and consequently the acquittal of the respondents is not interfered with and the acquittal appeals stand dismissed." However, during the course of its judgment, some observations were recorded as contained in paragraph 28 thereof. The judgment of acquittal has not been challenged by K.M.C, however, the appellant herein felt aggrieved of the view expressed by the learned Judge in Paragraph 28 and filed Cr. Petition No. 62-K of 2005, in which leave was granted by this Court on 20.12.2005, alongwith other connected petitions which order reads as follows:--
"Above said petitions are directed against consolidated judgment of Sindh High Court dated 27.6.2005 dismissing respondents' appeal against the acquittal of the petitioners for violation of clauses 2, 29 and 31 read with Item No. 59 of Part-II of Schedule VI of Sindh Local Government Ordinance, 1979 punishable under Section 100(2) of the said Ordinance.
Precise charge against petitioners appear to be that they have been running dying textile factories at SITE within the territorial limits of erstwhile Karachi Metropolitan Corporation without obtaining any licence and payment of requisite fee to KMC.
Upon their trial they were acquitted by Special Magistrate, KMC Karachi vide order/judgment dated 17.10.1995. Respondents appeals have been dismissed by the High Court through the impugned judgment but the petitioners are seriously aggrieved by concluding Paragraph No. 28 of the judgment in which the High Court while upholding the order of acquittal has determined the scale of fee payable by the petitioners and left it open to the discretion of the respondents to determine the same and collect it with effect from the years 1976-77 to December 1979 and from the year 1980 onwards.
It is inter alia contended that while determining the scale of licence fee in appeals against acquittal High Court acted beyond its jurisdiction as it was not competent to determine the question of rate of licence fee in such proceedings and should have left this question for examination by the authority concerned.
As important question of law of public importance has been raised in these petitions, leave to appeal is granted to consider whether the impugned judgment of the High Court can be sustained at law.
CMA Nos. 17-K to 19-K/2005:--Operation of the impugned judgment is suspended till decision of the appeals.
Cr. Appeal No. 507 of 2005 and Cr. Appeal No. 508 of 2005 arise in almost similar circumstances which due to identity of the matter as stated by the learned counsel have been heard with this appeal and should stand disposed of by means of the judgment in this appeal.
The learned counsel for the parties have been heard. It has been contended by the learned counsel for the appellants that while deciding the appeal the learned High Court has acted beyond the scope of appellate jurisdiction in the matter, as according to him while deciding such appeal it could not issue directions of the nature as are contained in Paragraph 28 of the judgment. It is contended that since the appeal of the respondent was dismissed by maintaining the acquittal order passed by the lower Court, there was no occasion for entering upon the other aspects of the matter, about which the appellants had not been heard even.
The learned counsel for the respondent has however, vehemently endeavored to support the judgment of the learned High Court contending that the appellant was liable to pay fee at certain rates as was observed by the High Court in Paragraph 28 of the judgment. He has made reference to a judgment dated 10.12.1989 of Sindh High Court in C.P. No. D-49/1982. The learned Additional Prosecutor General Sindh has addressed arguments on the scope of appellate jurisdiction with reference to Section 423 Cr.P.C. and found himself in quandary to support the observations of Paragraph 28 of the judgment.
We have considered the respective contentions of the learned counsel for the parties and also of the learned Additional Prosecutor General Sindh, in the light of the material on record. As noted above the appeal had been filed by the respondent under Section 417(2) Cr.P.C. against the order of acquittal passed by the Trial Court. The procedure and manner of disposal of appeals as laid down in Section 423 Cr.P.C. was attracted and required to be followed. Clause (a) of sub-section (1) of Section 423 Cr.P.C. may be of relevance, which reads as follows:--
"S. 423 (i) ...... the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may: (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or [sent for trial to the Court of Session or the High Court], as the case may be or find him guilty and pass sentence on him according to law;"
"Court should not decide what is unnecessary.--A Court should decide only those questions directly arise from the facts of the particular case before it. It is always inadvisable to travel outside the facts of a particular case and express hypothetical opinions which may only embarrass Judges who may have to consider cases in future which arise on different facts. Lord Blackburn observed in Baroness Wenlock v. River Dee Company:
"It is not necessary to decide anything as to the effect of Ashbury Co. V. Riche. The course of argument took makes me think it proper to say - through it is quite true as Mr. Righby said that it was not necessary for the decision in Ashbury Co. v. Riche to do more than decide what the law was with regard to a company formed under the Companies Act, 1862 - that I think the law there laid down applies to all companies created by any statute for a particular purpose. I think that if I were to confine the effect of the decision to companies created under the Act of 1862, and to say it did not extend to such corporation as this, I should do wrong. The law is proverbially uncertain. That cannot be helped. But I think I should unjustifiably add to the uncertainty if I set an example of adhering to my previous reasoning (even should I still think it better than that of noble and learned Lords who decided against it) in every case not precisely involving the very same point."
At page 626, he has discussed about the powers of the Courts as follows:--
"Courts should not extend scope of Act.--It is not for the Court to extend the scope of the Act on the ground of convenience when the language of the law is clear beyond doubt. The scope of the Payment of Wages Act, 1936, being confined to the claims under Section 15, the authority appointed under the Act cannot adjudicate upon any and every dispute in respect of wages. Similarly, the Court cannot interpret the precise language of Section 17 of the Act in any different manner merely because the Legislature had not been logical in providing for all the eventualities in connection with certain dispute. No Court can introduce arbitrary conditions or limitations under a statute, this must be left to the Legislature."
Justice (R) Fazal Karim in his work on Jurisdiction and Judicial Review, page 63 deals with the subject as follows:--
"The Court, sitting in appeal cannot claim higher jurisdiction than the original Court. This was held in F.B. Ali v. State, where the High Court's jurisdiction to interfere with a conviction under the Army Act was barred by Article 199(3) of the Constitution and it was held that the Supreme Court had in appeal no jurisdiction either. The reasons is that "an appeal is a continuation of the original proceeding and therefore it follows that an appellate Court would in the absence of a contrary provision in the statute conferring appellate jurisdiction, be confined in regard to scope of the jurisdiction to the limits of the original forum. This could be illustrated by many examples in which the High Court has been conferred appellate jurisdiction under special laws."
It is thus clear beyond any doubt that while exercising the power, the Court is expected to exercise its jurisdiction and power within the parameters of the statute governing the lis before it.
The mere fact that such observations had been made by the Trial Court also in the concluding para of his order would lend no justification for the appellate Court to repeat the same mistake. Rather, it could have ignored the same as the appeal of the respondent was being dismissed, leaving the respondent to have resort to the action for recovery of its dues in accordance with law.
Reference to provision of chapter 9 of Sindh Local Government Ordinance, 1979, would show that a detailed and comprehensive procedure has been provided for the collection and recovery of taxes. Section 64 of the said Ordinance reads as follows :--
"64. Collection and recovery of taxes etc.--(1) Unless otherwise provided, all taxes, rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner by the persons authorized for such collection ;
(2) All arrears of taxes, rates, tolls and fees and other moneys claimable by a council under this Ordinance shall be recoverable as arrears of land revenue through Government agency or by the council authorized by Government for such recovery through such servants or class servants of the council as may be prescribed."
In the presence of such a power available to it, the respondent clearly was not left remediless or helpless in recovering the taxes or fees if due. It could invoke the relevant provisions of the law for that matter. It may be observed that penal liability was quite distinct from the fiscal liability, which could not be intermingled.
Reference by the learned counsel for the respondent to the judgment dated 10.12.1989 in C.P. No. D.49/1982 is of no avail in these proceedings as in that judgment the competency of the Government to revise rates of fee was in issue, which has no relevancy in the context of the subject matter before us.
(M.S.A.) Appeals accepted.
PLJ 2009 SC 1146
[Shariat Appellate Jurisdiction]
Present: Justice M. Javed Buttar, Chairman, Zia Pervez, Muhammad Farrukh Mahmud, Dr. Allama Khalid Mahmud &
Dr. Rashid Ahmed Jullundari, JJ.
Haji BAKHTAWAR SAID MUHAMMAD--Petitioner
versus
Mst. DUR-E-SHAHWAR BEGUM etc.--Respondents
Crl. Shariat Petition No. 2 of 2008, decided 31.3.2009.
(On appeal from the judgment/order dated 25.1.2008 passed by the Federal Shariat Court, Islamabad, in Criminal Revision No. 8/I of 2004).
Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 (VIII of 1979)--
----Ss. 6, 7 & 14--Denial the paternity of her three children--Charge of adultery being bad character--When a husband accuses before a Court his wife--"Here, there are no husband and wife--Such relationship had admittedly come to an end when husband divorced his wife and executed divorce deed--No question of Section 14 of the Qazf Ordinance being attracted to the facts disclosed by the evidence adduced by the petitioner during preliminary inquiry under Section 202, Cr.P.C.--Petitioner and the respondent were just a man and a woman and not husband and wife when the petitioner in his written statements and also before his elder brother and, allegedly, also before a punchayat in his own house made imputation of zina concerning the respondent and explicity alleged that all of her three children were illegitimate children and, therefore, the action of the petitioner clearly attracted the provisions of Ss. 6 & 7 of the Qazf Ordinance--Leave refused. [P. 1151] A
Sh. Zamir Hussain, Sr. ASC for Petitioner.
Mr. Zulfiqar Khalid Malooka, ASC for Respondent No. 1.
Mian Asif Mumtaz, D.P.G, Punjab for State.
Date of hearing: 31.3.2009.
Order
Dr. Allama Khalid Mehmud, J.--Petitioner seeks leave to appeal against judgment dated 25.01.2008 whereby the learned Federal Shariat Court accepted (Crl. Revision No. 8/I/2004) filed by Respondent Mst. Dur-e-Shahwar Begum whereby the impugned order was set aside and the case was remanded to the learned Additional Sessions Judge, Pakpattan with the direction to frame the charge under Sections 6 & 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and proceed with the case in accordance with law.
The facts of the case are that respondent filed a suit on 17.7.1983 against the petitioner for recovery of dower articles (or money in lieu thereof) in the Court of Civil Judge, Pakpattan. She also filed another suit on the same date in the same Court for recovery of maintenance for herself and her three children. The petitioner filed written statements in both suits on 16.1.1984. In the both written statements the petitioner stated that he was neither the father of children of the respondent as she was not of a good character and all her three children were illegitimate due the result of adultery. The petitioner did not indicate in any of his statements when and how he came to know this fact that none of his three issues were not from him. If he had known that the first of these three were not his children, how he maintained the other two be borne at his home. In this position these are three independent allegations, he leveled against the respondent in his written statement filed in Court which are next only repetition but contain additional allegations of adultery raised for the first time after decision. This response raised another issue and the suits remained pending without any progress having been made in them for the last twenty-three (23) years.
On 9.5.1984 the respondent filed a complaint in the Court of Additional Sessions Judge, Pakpattan under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, (hereinafter referred to as "the Qazf Ordinance"), in which she stated (per para-5) that after receiving the divorce deed she along with a number of notables, whose names she had given in the complaint which includes the name of Pir Muhammad Chishti. They went to Pakpattan to meet the petitioner for effecting a settlement but the petitioner spurned these reconciliatory gestures of the Respondent and accused her of adultery before the assemble notables. He refused to acknowledge the paternity of the three children and alleged that they were the illegitimate children of the Respondent. At this time the Respondent was not his wife and he had already divorced her; so at this time he committed the offence of Qazf if the complaint of the Respondent is given a due consideration. He answered this in response to the suggestion of a compromise that he was not prepared for that. So this was not a repetition of his first allegation made to her when she was his wife.
Sheikh Zamir Hussain, learned Sr. ASC appeared on behalf of petitioner and contended strenuously that the petitioner and the Respondent No. 1 were married on 23.07.1972. The marriage, unfortunately, did not last long and allegedly the petitioner orally divorced the Respondent No. 1 on 24.04.1983. However, on 25.4.1983 a written divorced deed was issued to the respondent which became effective on 3.08.1983. He further stated that after the receipt of the notice she along with some respectable persons approached the petitioner for reconciliation. The petitioner allegedly made the same allegations before the witnesses. Thereafter she along with the witnesses went to the elder brother of the petitioner who called for the petitioner and the petitioner allegedly revised the assertions made in the notice.
According to the learned Counsel for Respondent No. 1, that the petitioner had first committed the offence of Qazf before the respectable of the parties when they had gone to the petitioner to effect reconciliation after the receipt of divorce deed by the petitioner and the petitioner is alleged to have again committed the same offence when he filed the three written statements in the two family suits in which he denied the paternity of the three children of the petitioner alleging that they were not from him but from some one else with whom the Respondent had illicit relations. He committed the same offence in more explained then the first one.
The Quran holds that this act of allegation is liable to punishment. The Quran says:
"Those who accuse a married woman of fornication and produce not four witnesses to support their allegation, shall be flogged eighty lashes......S-Al-noor:3."
The wisdom behind this imposition of punishment is that if any one alleges such a heinous allegation against any woman and does not produce four witnesses and she is defamed in society if the scandler is not punished and if it is proved that he committed that act, it is her right that she be given a chance to sue him to safeguard her modesty. It finds support in Al-Hidaya as follows:
If the accused (against whom the slander is made) requires the Magistrate to pass sentence of punishment for slander (Qazf) upon that person, the Magistrate is bound to order this infliction. Mussalman Law by Charlas Hamilton P. 197
If such allegation is made to wife this leads to lien by which they are separated but if this allegation is made against woman who is already divorced it is Qazf an accusation of fornication against a woman who observes modesty. It suggests that the woman against whom Qazf is made has right to forgive him.
During the course of inquiry under Section 202 Cr.P.C, learned Additional Sessions Judge examined four witnesses, including petitioner's brother Diwan Ghulam Qutbuddin and Sakhi Muhammad Shah Chishti and both of them stated that they had gone to the house of petitioner along with the Respondent and other notable of the area but the petitioner rejected the reconciliatory gestures of the respondent and the notables in front of all of them. He accused the respondent of being the immoral character and habituated to adultery so denied the paternity of her three children. It is obvious that his remarks of slandering her were in response to the suggestion of reconciliation and not a repetition of any of his first statement. Learned Trial Judge, however, refused to frame charge under Section 7 of the Qazf Ordinance vide impugned Order of 6.12.2003 and held that the inquiry under Section 202 Cr.P.C. revealed that the petitioner had leveled charge of adultery being bad character against the respondent during the subsistence of marriage between them, not after the divorce , and therefore this dispute being between husband and wife, would not attract the provisions of Section 7 of the Qazf Ordinance but of Section 14 of the Qazf Ordinance.
The relevant documents for the purpose of determining the validity or otherwise of the impugned order are, firstly, the deposition of witnesses examined by the learned Additional Sessions Judge during preliminary inquiry and the plaints in the two family suits filed by the Respondent Durr-e-Shahwar Begum against the Petitioner for return of dowry and for maintenance and the written statements filed by the Petitioner (both dated 16.1.1984) in two suits, as well as "an amended written statement dated 6.1.1985" in the dowry suit. We have minutely examined these documents. When the question of return of dowry arises? It is always after the divorce.
According to the Respondent, the Petitioner had first committed the offence of Qazf before the respectable of the parties when they had gone to the petitioner to effect reconciliation after the receipt of divorce deed by the Respondent and the petitioner is alleged to have again committed the same offence when he filed the three written statements in the two family suits in which he denied the paternity of the three children of the Respondent alleging that they were not from him but from someone else with whom the Respondent had illicit relations.
Appearing as PW 1 in the preliminary inquiry, the Respondent said that the Petitioner had turned her out of the house some five years prior to giving divorce and she was living separately after receiving the divorce deed (dated 25.4.1983) from the Petitioner. She then went to him with the respectable of her family for effecting some reconciliation but the Petitioner refused to hear them and stated before them that she was a woman of bad character and her three children were the result of her act of adultery.
She also gave the names of five respectable of her family who had gone with her to the house of the Petitioner. Diwan Ghulam Qutbuddin, Sajjada Nashin of dargha of Baba Farid Shakar Gunj, is the real elder brother of the Petitioner.
He deposed that the Petitioner was his younger brother and lived in the adjoining house and he knew very well that the Respondent had lived with
Petitioner for about 7 or 8 years after marriage and her three children were from the Petitioner. He further stated that the Respondent once came to him along with the respectable of the bradari' and complained that the Petitioner had divorced her and had also accused her of adultery and denied the paternity of her children whereupon he (Diwan Ghulam Qutbuddin) sent for the Petitioner
(his younger brother) and tried to persuade him to effect reconciliation but the Petitioner refused to patch up the dispute and even in his presence leveled false charge of adultery on the Respondent and declared that her children were not from hisnutfa' and were illegitimate. PW 3 is the daughter of the
Respondent who was 10 (ten) year old in July 1984 when she was examined. Her evidence is of very little value for our purposes. PW 4 Sakhi Muhammad Shah is the khaloo' of the Respondent and he said that he had acted asgawah nikah' at the time of the marriage of the parties which took place 12 years prior to his examination in Court (he was examined on (22.7.1984), that three children-----Ayuesha Bakhtiar, Mehrunnisa Bakhtiar and Ali Ahmad-----were born out of the wedlock, that five year ago' the Petitioner had turned out the
Respondent and her children out of the house and about15 months ago' he had divorced her, that on learning of the divorce a. punchayat, consisting of the respectable of the `bradri' was constituted, including him, and they along with the Respondent went to the Petitioner (she gave the names of the persons who went to the Petitioner) but the Petitioner accused the Respondent before the punchayat' of immoral character and disowned the paternity of her three children and said they were her illegitimate children whereupon all of them straightaway went to Petitioner's elder brother, Diwan Ghulam Qutbuddin, who sent for the Petitioner who came to his house whereupon Diwan Sahib asked the
Petitioner to behave properly and be reasonable but even before him the
Petitioner made the charge of immorality against the Respondent and again disowned the paternity of her children.
Learned Additional Sessions Judge observes in the impugned order that the evidence on record revealed that the allegation of immorality, even though made after the marriage between the parties stood dissolved due to divorce, were nevertheless in respect of the period when the marriage between them subsisted and therefore Section 7 of the Qazf Ordinance was not applicable and hence he did not frame charge against the Petitioner under Section 7 of the Qazf Ordinance but decided to proceed against him under Section 14 of the Qazf Ordinance.
We have heard the learned ASC for the petitioner. Respondent No. 1 and the learned Deputy Prosecutor General and perused the record.
We agree with the Federal Shariat Court's finding that the learned Additional Sessions Judge seriously erred in law in holding that the preliminary evidence made out a case of Section 14 of the Qazf Ordinance. Learned Additional Sessions Judge failed to note that Section 14(1) commences by the words `When a husband accuses before a Court his wife......Here, there are no husband and wife. Such relationship had admittedly come to an end on 25.4.1983 when the Petitioner divorced the Respondent and executed divorce deed (the Petitioner concedes in his written statements before the Family Court that he had divorced the Respondent and had executed divorce deed on 25.4.1983). There is, therefore, no question of Section 14 of the Qazf Ordinance being attracted to the facts disclosed by the evidence adduced by the petitioner during preliminary inquiry under Section 202 Cr.P.C. The Petitioner and Respondent were just a man and woman------and not husband and wife--------when the Petitioner in his written statements (three of them) and also before his eider brother and, allegedly, also before a punchayat in his own house made imputation of zina concerning the Respondent and explicitly alleged that all of her three children were illegitimate children and therefore the action of the Petitioner clearly attracted the provisions of Sections 6 and 7 of the Qazf Ordinance. The impugned order dated 6.12.2003 is therefore untenable as held by the learned Federal Shariat Appellate Court in the judgment dated 25.10.2008 impugned by the petitioner in this petition.
For the reasons as above, we see no merit in this Petition, which is accordingly dismissed and leave refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 1151
[Appellate Jurisdiction]
Present: Javed Iqbal, Sayed Zahid Hussain &
Muhammad Sair Ali, JJ.
MUHAMMAD YAQOOB--Appellant
versus
STATE--Respondent
Crl. Appeal No. 199 of 2003, decided on 28.4.2009.
(On appeal from the judgment dated 22.10.2002 of the Lahore High Court, Multan Bench passed in Crl. A. No. 302/1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302, 324, 148 & 149--Mitigating circumstances--Sentence of death recorded against accused by trial Court--Confirmed by High Court--Appeal to Supreme Court by leave of the Court--Large scale indiscriminating firing--Background of enmity including previous long drawn litigation up to Supreme Court--All others were acquitted except appellant, who was alleged to have been armed with .222 rifle and recovery of the empties was also of the same weapon, however, the weapon recovered from him during investigation was .7mm rifle licensed--An extent weighed against the prosecution and a circumstance akin to the mitigating circumstance altered the death sentence of the appellant into life imprisonment--Appeal partly allowed. [P. 1156] A
Mr. Zulfiqar Khalid Maluka, ASC for Appellant.
Mr. Asif Mumtaz, D.P.G. Punjab for Respondent.
Date of hearing: 28.4.2009.
Judgment
Sayed Zahid Hussain, J.--Muhammad Yaqoob appellant alongwith thirteen others faced trial on the allegation of committing murder of Munir Ahmad deceased. All others were acquitted but he was convicted by the Judge, Suppression of Terrorist Activities Court, Multan, for offences u/S. 302/324/148/149 PPC and was sentenced to death with the direction to pay Rs.200,000/- as compensation and in default thereof to undergo six months R.I. This was vide judgment dated 24.8.1999. He filed Crl. Appeal No. 302/99, which was heard by the learned Division Bench of the Lahore High Court, Lahore, Multan Bench, and was dismissed on 22.10.2002 confirming the death sentence and maintaining the conviction and sentence as recorded by the Trial Court. He then filed petition before this Court (Crl. P.L.A. No. 871-L of 2002) in which leave was granted on 18.4.2003. For the facility of perusal, its relevant portion reads as follows:--
"2. Precisely stating facts of the case are that on 16.6.1995 a case F.I.R. No. 185 Ex. PA was registered at Police Station Mitro District, Vehari on the complaint of one Muhammad Hussain, who has alleged that Muhammad Yaqoob petitioner along with thirteen others opened indiscriminate firing upon the deceased and another, as a result whereof, shot fired by the petitioner proved fatal, and Muhammad Munir died instantaneously. After registration of the case, investigation commenced. During the course whereof besides recovering other incriminating material from the place of incident an empty of 222 bore rifle was also taken into possession. The petitioner was arrested on 2.8,1995 and, on his pointation, a 7 M.M. rifle with licence Ex. PH dated 15.8.1995 was recovered. Incriminating empty as well as rifle were sent for the report to Forensic Expert, who opined that the fire has not been made from the 7 m.m. rifle. After completion of the investigation, petitioner was sent up to face trial before the Judge, Special Court under Suppression of Terrorist Activities. As he did not plead guilty to the charge read over to him, therefore, prosecution led evidence to substantiate the accusation. On completion of trial, petitioner was found guilty for the commission of the offence. Accordingly he was convicted and sentenced under Section 302(b) PPC. Petitioner preferred appeal before the Lahore High Court, Multan Bench which has been dismissed.
Learned counsel stated that he is not pressing the petition on merit but is making request for reduction in quantum of sentence in view of the judgment in the case of Khawand Bakhsh v. State (PLD 2000 S.C. 1) wherein non-matching of the crime empty with the crime weapon was considered to be a mitigating circumstance and the sentence of death awarded to the accused was converted into life imprisonment.
After hearing learned counsel, we grant leave to appeal to examine whether petitioner is entitled for modification in the quantum of sentence in view of the judgment relied upon by him."
Since the leave was granted on a limited point of quantum of sentence, the learned counsel has addressed arguments on this aspect. He has cited precedents of this Court to persuade us to alter the conviction i.e. death sentence to lesser penalty on the ground that the crime empty recovered from the spot was of 222 rifle whereas the recovery made from the appellant was of 7 MM rifle and the fire had not been made from 7 MM rifle. The learned Deputy Prosecutor General Punjab has also been heard on this aspect.
At this juncture, the discourse of the occurrence as given by the learned Division Bench of the Lahore High Court may be adverted to which is:--
"that on 16.6.1995 Muhammad Hussain, the complainant along with Jahan Khan was standing on the banna of killa No. 4/5 of square No. 44 for the purpose of harvesting the wheat crop. In the meanwhile they saw that Munir Ahmad son of the complainant and Ahmad Khan were coming on tractor No. 2409/VRD. Ahmad Khan was driving the tractor while Munir Ahmad was sitting on the mudguard. When they reached near the dhari of Ghulam Nabi alias Mithoo, Muhammad Ramzan armed with rifle 7 MM, Muhammad Yaqoob armed with rifle 222 and other accused namely, Abdul Karim, Hayat, Khuda Bukhsh, Noor Muhammad, Sanaullah, Mithoo, Mehboob, Abbass, Ghulam Nabi, Abdul Razzaq, Afzal and Falak Sher all armed with fire arms came out from the said dhari and started firing. On this, Ahmad Khan turned the tractor towards his village when Muhammad Ramzan and Ghulam Nabi raised lalkara that they should not go alive. Upon this, Muhammad Yaqoob fired at Munir Ahmad which hit him on his back side and he fell down from the tractor. Ahmad Khan jumped from the tractor and went in the khal to save his life. The complainant and Jehan Khan tried to come near the deceased but the accused made indiscriminate firing on them and they also saved their lives by taking refuge in the khal. The accused thereafter fled away from the spot. The complainant and the PWs came near Munir Ahmad who had already expired.
The motive alleged was civil litigation for pre-emption between the parties since 22 years.
4. Investigation of the case was taken over by Muhammad Younas ASI (PW.10). After registration of the case, he went to the spot: took into possession the blood stained earth vide memo Ex. PD; the tractor was taken into possession vide memo Ex. PC; also secured empty cartridges vide memo Ex. PD; then he went to the dhari of the complainant where the dead body of Munir Ahmad was lying; there he prepared inquest report Ex. PN; injury statement Ex. PJ and also prepared the site plan of the place of occurrence Ex. PL. The last worn clothes of the deceased were taken into possession vide memo Ex. PE. The investigation of the case was then taken over by Inspector Muhammad Hussain examined as PW.13. Muhammad Yaqoob along with
his coaccused was arrested on 2.8.1995. He while in custody
led to the recovery of 7 MM rifle which was taken into possession vide memo Ex. PH. After completion of the remaining formal investigation, 13 accused were challaned to face the trial.
At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Ex. PM/3, report of the Serologist Ex. PN, report of the Forensic Science Laboratory Ex. PO and closed the prosecution case. After that, statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded false implication. After conclusion of the trial, except Muhammad Yaqoob, the present appellant, all the remaining accused-were acquitted."
In the context, the contention of the learned counsel as to modification of the sentence has received our due attention in view of the above background of the matter. In the case noted in the leave granting order Khawand Bakhsh v. State (PLD 2000 SC 1) it had been found that the rifle recovered did not match with any of the crime empties recovered from the spot. Considering it to be extenuating circumstance, it was observed that "the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder. We order accordingly, and alter his death penalty to imprisonment for life plus a fine of Rs. 50,000, or in default to undergo further R.I. for one year with benefit of Section 382-B, Cr.P.C" In Israr Ali Vs. The State (2007 SCMR 525) the learned Shariat Appellate Bench of this Court, noted that "`This brings us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence. We have examined this question in the light of all the circumstances surrounding the guilt. We find mitigating/extenuating circumstance in favour of the appellant for lesser penalty in as much as, the prosecution had failed to connect the convict with the circumstances of photographs recovered from the spot and the photographs recovered from the bag of the convict because there was no photograph of the deceased in the said photographs as mentioned above. Photograph of one Hafeez was found who was not associated by the police in the investigation." Keeping in view the circumstances of the case alteration of the death sentence into life imprisonment was ordered. In Ansari Ahmad Khan Barki Vs. The State (1993 SCMR 1660) also in order to meet the ends of justice, the death sentence was ordered to be converted into life imprisonment.
Similar view was taken in Allah Dad and another v. The State (1995 SCMR 142) and Muhammad Tahir Khan v. The State (1983 SCMR 1169).
It may be observed that long ago this Court had laid down the rule well established for criminal matters in Noora and another v. The State (PLD 1973 SC 469) that it is each case which will have to be adjudged on its own facts and circumstances and that the Supreme Court could come "to its own independent findings upon re-examination of the evidence untrammeled by the opinions of the Courts below." Such a conclusion was drawn by the learned Chief Justice on the basis of several citations as to the amplitude of power and practice of the Court i.e. re-examination and re-assessment of the evidence. The Jurists and Judges, possessed of the rich experience and long line of rulings in criminal cases tell us that there is hardly a case (criminal) which would be cent per-cent identical on all fours to the other. The background and causes for commission of offence may differ from case to case. That is why a ruling in one criminal case is carefully considered before citing it, as a precedent in its application to the other. It was observed in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that "everything said in a Judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case." It may be regarded as having a persuasive value rather than a binding precedent. The rationale behind the dictum in Noora's case (supra), appear to be that the entire evidence can be re-examined and evaluated by the Court to ensure safe dispensation of justice.
As each case may have its own peculiar back ground and circumstances giving rise to an incident or occurrence, that peculiarity may have to be kept in view by the Court while recording its findings and awarding the sentence. In the present case as is evident from the above, Munir Ahmad lost life, but his father Muhammad Hussain roped in fourteen persons including Yaqoob appellant. From the complainant side none had received any injury except the deceased despite alleged large scale indiscriminate firing. There was also back ground of enmity including previous long drawn litigation up to this Court. All others were acquitted except Muhammad Yaqoob appellant, who was alleged to have been armed with 222 rifle and recovery of the empties was also of the same weapon, however, the weapon recovered from him during the investigation was 7MM rifle licensed. This to an extent weighed against the prosecution and a circumstance akin to the mitigating circumstance that prevailed in Khawand Bakhsh's case (supra), wherein the Court altered the death sentence to that of life imprisonment. On consideration of the facts and circumstances, we find ourselves inclined and persuaded to alter the death sentence of the appellant to life imprisonment. The direction of the Trial Court to pay Rs.200,000/- as compensation to the legal heirs of the deceased and in the absence, to be recovered from him as arrears of land revenue and in default thereof to undergo six months R.I. is maintained. However, the appellant will be entitled to the benefit of s. 382 (B) Cr.P.C.
In view of the above the appeal is partly allowed to the extent of modification of sentence.
(M.S.A.) Appeal partly allowed.
PLJ 2009 SC 1156
[Appellate Jurisdiction]
Present: Muhammad Akhtar Shabbir &
Syed Sakhi Hussain Bukhari, JJ.
STATE through Advocate General, NWFP--Petitioner
versus
SARFARAZ and 3 others--Respondents
Crl. Petition No. 54-P of 2008, decided on 2.4.2009.
(On appeal from the judgment dated 14.10.2008 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 178/2006)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 516-A--Control of Narcotic Substances Act, 1997, S. 9(c)--Conviction and sentence recorded by trial Court under S. 9-C of the Control of Narcotics Substances Act, 1997 were altered from Section 9(c) to 9(a) of the Act, 1997 and the sentences were reduced from imprisonment for life to two years R.I. by High Court--Leave to Appeal--Recovered quantity of opium allegedly was 80 kg, had not been produced before the trial Court by the prosecution as the same had allegedly been destroyed by Magistrate under the orders of ASJ--Quantity produced before trial Court was 70 grams which was placed in the samples for expert opinion for proof of remaining quantity, a certificate was produced before trial Court that the remaining quantity was destroyed--Evidenciary value of certificate--Held: Whenever the prosecution wanted the Court to draw an inference that the samples preserved would be construed to be the entire bulk of narcotics as provided in the third proviso to Section 516-A of Cr.P.C., having been destroyed under the orders of the trial Court, the prosecution would bring on record the written permission granted by the Court and the certificate of its destruction issued by trial Court or the Magistrate, supervising the destruction process and it would contain all such details with reference to FIR the date of occurrence, title of the case, particulars of the case, the section of the law applied, description of the police station where case was registered and date, time and place where narcotics have been destroyed and these documents are required to be brought on record in evidence and for that purpose the magistrate who supervised the destruction process was to be produced alongwith the police officer who had taken samples from the bulk for production at the trial--Procedure required for destruction of the remaining quantity of the narcotics material has neither been adhered to nor it has been proved in accordance with law--There is no evidence on the record to establish that the quantity of the narcotics material claimed by the prosecution, in fact had been recovered from respondents--High Court has rightly reduced the sentence of the respondents--Leave refused. [Pp. 1160 & 1161] A & B
Mr. Ishtiaq Ibrahim, AAG, NWFP for Petitioner.
Nemo for Respondents.
Date of hearing: 2.4.2009.
Order
Muhammad Akhtar Shabbir, J.--This petition for leave to appeal is directed against the judgment of the Peshawar High Court, Peshawar dated 14.10.2008 passed in Criminal Appeal No. 178/2006.
The facts giving rise to the filing of the present petition are to the effect that on 11.11.2004 at about 3.00 p.m., Muhammad Shah Khan, SHO PW3, alongwith Police party, while on patrol duty, laid a barricade and as soon as pick-up No. B-2325/DR reached there, from Mangal Chahi side, it was signaled to stop. The said Pick-up was being driven by Sarfaraz, respondent while the other person sitting with him on the front seat was Wahid-ur-Rehman, respondent. Both of them were asked to step down and on search from the back of the front seat, five packets of opium weighing 25 K.Gs, one small bag containing 12 K.Gs of opium, were recovered while from secret cavities of the rear portion/body of the pick-up, 4 packets of opium i.e. 21 K.Gs. and from another side 4 packets of opium weighing 22 K.Gs. were recovered. Samples out of the recovered narcotics material and the remaining quantity thereof were separated and sealed into separate parcels. Two .30 bore pistols with 11 cartridges without licenses were also recovered from the possession of both the accused. On information through Murasila report, FIR No. 237 had been registered at Police Station IDS Swabi on the same day. After investigation of the case, the accused/respondents were challaned to the Court of competent jurisdiction. After recording the prosecution evidence, the trial Court convicted the accused/respondents under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life with a fine of Rs.50,000/- or in default thereof to undergo one year imprisonment, each, vide judgment dated 15.3.2006. Benefit of Section 382-B Cr.P.C. was extended to them. They challenged their conviction and sentences through Criminal Appeal No. 178 of 2006 before the Peshawar High Court, Peshawar, which was partially allowed, vide the impugned judgment, their conviction was altered from Section 9(c) to 9(a) of the Act ibid and the sentences were reduced from imprisonment for life to two years R.I. with a fine of Rs. 20,000/- or in default to undergo two months S.I, each. Benefit of Section 382-B Cr.P.C. extended to them by the trial Court was maintained. Hence this petition.
Learned AAG appearing on behalf of the petitinoer contended that the judgment of the High Court is suffering from legal and factual infirmities; that the prosecution had proved its case beyond reasonable doubt; that the huge quantity of opium recovered from the accused/respondents was destroyed in accordance with Section 33 of the Act ibid and Section 516-A Cr.P.C; that CW1 and CW2 appeared before the Court and proved that the opium recovered from the possession of the respondents had been destroyed and in this respect they have produced a certificate; that the report of the Chemical Examiner with regard to the samples of the opium was positive; that as per proviso to Section 516-A Cr.P.C. such samples would be deemed to be the whole of the property in relation to such offence before the Court. He placed reliance on Sarfraz Gul Vs. The State (PLD 2004 SC 334).
We have heard the arguments of the learned Law Officer, perused the record with his assistance. As per the prosecution story, Muhammad Shah Khan, SHO, PW3/ complainant had effected recovery of 80.00 K.Gs. of opium from the vehicle used in transportation of the narcotics material, being driven by Sarfraz, respondent while Wahid-ur-Rehman, respondent was seated on the front seat. On disclosure by Sarfaraz that the aforesaid narcotics had been purchased by him from Sher Zamin, co-accused while the same was his joint property with the other co-accused, Mehruban Shah. Before the trial Court, the total quantity of the opium recovered from the respondents had not been produced by the prosecution as the same had allegedly been destroyed by the Magistrate under the orders of the learned Addl. Sessions Judge-III, Swabi. The quantity established at the trial was the one which was placed in the samples for expert opinion, weighing 70 grams in all. As argued by the learned Law Officer that such samples would be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court as the narcotics material/opium other than the samples was destroyed and a certificate in this regard has been produced in evidence before the Court. Section 516-A of the Code of Criminal Procedure contemplates as under:--
"516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of:
(Provided that if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in such substances)
(Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:
Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court.)"
Nihar Ali, Incharge Moharrir Malkhana, was produced before the trial Court as CW1 to prove the destruction certificate and other documents with regard to the destruction of the bulk of the narcotics material. As per his statement, all these documents were not made part of the record when the challan was submitted to the Court and the certificate issued by the Magistrate Ex. CW ¬ did not bear the FIR Number, the date of occurrence, the sections of law, the name of the police station, the quantity of narcotics and its kind. The learned AAG has based his arguments on the case of Sarfraz Gul Vs. The State (PLD 2004 SC 334), wherein it has been laid down by this Court that production of entire recovered narcotics in the Court was not a mandatory requirement and certificate for destroying the recovered heroin and opium had been produced in the Court to substantiate the factum of recovery, therefore, the impugned judgment based on forthright and credible evidence, did not call for interference. The point to be examined in the instant case is, whether the remaining quantity of the recovered narcotics material (opium) had been destroyed in a transparent manner as provided in Section 516-A Cr.P.C. read with Section 33 of the Control of Narcotic Substances Act, 1997. CW2, Inamullah Khan, Judicial Magistrate, Swabi, who had supervised the destruction process, admitted that in the permission/ order of the learned Sessions Judge, Swabi, Ex.CW 1/3 the FIR number, the date, the section of law, the name of Police Station, the quantity of narcotics and its kind had not been mentioned and these documents were produced for the first time before him in the Court by the Moharrir Malkhana and in the certificate Ex.CW 1/4 the position was almost the same.
It is pertinent to note that whenever the prosecution wanted the Court to draw an inference that the samples preserved would be construed to be the entire bulk of narcotics as provided in third proviso to Section 516-A of the Code of Criminal Procedure, having been destroyed under the order of the trial Court, the prosecution would bring on record the written permission granted by the Court and the certificate of its destruction issued by the learned trial Judge or the Magistrate, supervising the destruction process and it would contain all such details with reference to FIR Number, the date of occurrence, title of the case, particulars of the case, the section of the law applied, description of the Police Station where case was registered and date, time and place where narcotics have been destroyed and these documents are required to be brought on record in evidence and for that purpose the Magistrate who supervised the destruction process was to be produced alongwith the Police Officer who had taken samples from the bulk for production at the trial. In the instant case, neither any such detail is mentioned in the certificate issued by the Magistrate nor such documents have been produced in evidence. There is no evidence to establish that the samples secured from the narcotics material are the same which have been taken from the remaining/destroyed material. If the prosecution fails to prove this factum before the Court by producing such type of evidence, it cannot be presumed that such huge quantity of the narcotics material had been recovered from the respondent. As per the prosecution story 80 K.Gs of charas had been taken into possession by the complainant, Muhammad Shah Khan PW3 from the vehicle used in commission/transportation of the said narcotics material being driven by Sarfaraz/Respondent No. 2.
The prosecution has not been able to connect the separated narcotics material with the whole quantity recovered from the possession of the respondents. The procedure required for destruction of the remaining quantity of the narcotics material has neither been adhered to nor it has been proved in accordance with law. There is no evidence on the record to establish that the quantity of the narcotics material claimed by the prosecution, in fact had been recovered from the respondents. The learned trial Court has rightly observed that the quantity shown in the report of the Chemical Examiner Ex.PK weighing 70 grams was the recovered material and produced before the Court. In view of the above discussion, we find that the High Court has validly reduced the sentence of the respondents from imprisonment for life to two years R.I with fine of Rs. 20,000/- or in default thereof to suffer two months S.I. After appraisal of the prosecution evidence and the record, we do not find any illegality, infirmity in the impugned judgment, warranting interference by this Court.
For the foregoing reasons, this petition being sans merits is dismissed and leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2009 SC 1161
[Appellate Jurisdiction]
Present: Javed Iqbal, Ijaz-ul-Hassan &
Muhammad Qaim Jan Khan, JJ.
Haji AMANULLAH--Petitioner
versus
MUNIR AHMED & others--Respondents
Crl. P. Nos. 12-Q and 13-Q of 2008, decided on 21.5.2009.
(On appeal from the judgment dated 9.6.2008 passed by the High Court of Balochistan, Quetta in Cr. Acquittal Appeal No. 317/2006).
Constitution of Pakistan, 1973--
----Art. 185(3)--Appeal against acquittal, `principles'--In an appeal the Court would not interfere with acquittal merely because re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible--If, Court was impossible then Supreme ourt would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too with a view only to avoid grave miscarriage of justice and for no other purpose--Merely on the ground of interse relationship the statement of a witness cannot be discarded but here this principle would not be applicable because civil litigation is pending and besides that the respondents were acquitted in case got registered against them by the complainant for cutting down the trees and petition for leave to appeal was also dismissed--Leave refused. [P. 1164] A
Mr. Jamal Khan Mandokhail, ASC for Petitioner (in both cases).
Nemo for Respondents (in both cases).
Date of hearing: 21.5.2009.
Judgment
Criminal Petition No. 12-Q/2008
Javed Iqbal, J.--This Criminal Petition for leave to appeal under Article 185 (3) of the Constitution of Islamic Republic of Pakistan is directed against the judgment dated 9.6.2008 whereby Criminal Acquittal Appeal preferred on behalf of petitioner has been dismissed and the judgment dated 18.11.2006 passed by learned Judicial Magistrate, Muslim Bagh acquitting respondents has been kept intact.
The facts of the case as enumerated in the judgment impugned are to the effect that "on 22.10.2006 a case under Sections 447, 427, 147, 148 and 149 P.P.C. was registered in levies station, Kan Mehterzai on the report of appellant, wherein; it was alleged that private respondents alongwith absconding accused cut down his fruit bearing trees, thereby; causing loss to him. After usual investigation challan was submitted before Judicial Magistrate, who read over the charge to the respondents, to which they pleaded not guilty. Whereafter, prosecution in order to substantiate the accusation produced five witnesses. At the end of prosecution evidence respondents were examined under Section 342 Cr.P.C. wherein they denied all the allegations. They neither opted to record statements on oath nor produced any witness in defence". The learned trial Court on conclusion of the trial acquitted the respondents. Being aggrieved the Criminal Acquittal Appeal was preferred before the High Court which has been rejected vide judgment impugned, hence this petition.
Mr. Jamal Khan Mandokhail, learned ASC entered appearance on behalf of petitioner and contended strenuously that the judgment impugned passed by the learned Division Bench of High Court of Balochistan is not in accordance with the evidence which has come on record and besides that the evidence has not been appreciated in its true perspective and conclusion drawn is not inconsonance with the evidence led in support of accusation. It is next contended that various glaring illegalities apparent in the judgment of learned trial Court were not taken into consideration which resulted in serious miscarriage of justice. It is next contended that the statements of Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) have been discarded merely on the ground of interse relationship as admittedly they are sons of complainant but have no motive whatsoever to falsely implicate the respondents and as such they can not be labeled as interested witnesses and hence their statements should have been taken into consideration. It is also contended that though civil litigation is pending between the parties yet it cannot be made a sole ground for discarding the statements of prosecution witnesses who stood firm to the test of cross-examination and nothing beneficial could be extracted rendering any assistance to the respondents. It is also contended that no glaring contradictions could be pointed out by learned Division Bench in the judgment impugned which is indicative of the fact that the statements of prosecution witnesses were free from any doubt and should have been relied upon. It is also contended that acquittal cannot be based merely on conjectural presumptions but on the well settled principles of law which have been ignored by learned Division Bench.
We have carefully examined the contentions as agitated on behalf of petitioner in the light of evidence which has come on record and besides that the judgment passed by the learned Judicial Magistrate as well as the judgment impugned were perused carefully. Having examined the statements of Haji Amanullah (PW-1), Muhammad Shabbir (PW-2), Shah Khalid (PW-3) and Abdul Haleem (PW-4) with utmost care, we are not hesitant to hold that it would be unsafe to punish the respondents without having any independent corroboration which is absolutely lacking in this case. It is an admitted feature of the case that Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) are real sons of Haji Amanullah (PW-1) who is complainant in the case got lodged against the respondents. We have carefully perused the statements of Haji Amanullah (PW-1/complainant) which is based on the information communicated by Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) and being hearsay it cannot be taken into consideration as admittedly Haji Amanullah (PW-1/complainant) was not present at the time of occurrence. We have also observed that Haji Amanullah (PW-1/complainant) could not mention even the Khasra and Khavet number of the garden in question from where the trees were cut down. It is also to be noted that he could not mention even the presence of Muhammad Shabbir (PW-2) and Shah Khalid, (PW-3) in the garden where the occurrence had taken place. He has also admitted that civil litigation was pending between the parties. While answering one of the questions during cross-examination he also admitted that respondents Munir Ahmad and Haji Muhibullah were shifted to Karachi during winter but came back for a day or so to commit the alleged offences. A careful analysis of the statement of Haji Amanullah (PW-1) would indicate that he was not present at the place of occurrence and besides that civil litigation is pending between the parties and more so he failed to mention about the presence of Muhammad Shabbir (PW-2) and Shah Khalid (PW-3) in his complaint, hence it has rightly been discarded. We have also examined the statement of Muhammad Shabbir (PW-2) who mentioned in a categoric manner that offenders were about 20 in numbers and Munir Ahmad was carrying Kalashnikov while Wali Muhammad, Sardar Muhammad and Gul Muhammad were carrying saw. He also stated that Muhibullah, Mujeebullah, Munir Ahmad and Sardar Muhammad were identified from a distance of more than 50 feet as according to him when they reached at the distance of 40/50 feet the accused persons managed their escape good from the place of occurrence. He also stated that about 110 trees were cut down. A careful scrutiny of his deposition would reveal that some glaring dishonest improvements have been made. For instance he did not mention in his statement got recorded under Section 161 Cr.P.C. that Munir Ahmad was having a Kalashnikov and besides that he did not name any other accused person. He also admitted that he did not mention in his statement got recorded under Section 161 Cr.P.C. that the distance of 40 and 50 feet from where the accused persons were identified. In our considered view identification from a distance of more than 50 feet in a moonlit night is impossible especially when the offenders were under the shadow of trees. It is worth mentioning that Muhammad Shabbir (PW-2) has also admitted that civil litigation was pending between the parties. The statement of Shah Khalid (PW-3) has been examined who stated that accused persons were 18 in numbers who cut down the trees and some of them were carrying Kalashnikov while a few were having saw. He did not mention that Munir Ahmad was carrying Kalashnikov and besides that he failed to point out that who were carrying the saw and by whom the trees in question were cut down. According to him 110 trees were cut down which were never taken into possession by the prosecution. Even otherwise it is not possible to cut down 110 trees having the age of 5/10 years within a couple of hours. Shah Khalid (PW-3) has also admitted that civil litigation was pending between the parties. Abdul Haleem (PW-4) is a Qanoongo from Revenue Department who got his statement recorded but failed to mention the Khasra and Khatuni numbers of the garden in question and admitted that garden in question from where the alleged trees were cut down was shown by the complainant. After having gone through the entire evidence as mentioned hereinabove which is vague, sketchy and partisan has rightly been discarded on the basis whereof the question of any conviction does not arise. It is well settled by now that in an appeal "the Court would not interfere with acquittal merely because re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous". Ali Sher v. the state and 3 others (PLD 1980 SC 317), State through Advocate General NWFP, Peshawar v. Amir Nazar and others (PLD 1981 SC 286), Mst. Habibun Nisa alias Bivi v. Zafar Iqbal and others (1981 SCMR 95), Nazir Ahmad v. Muhammad Din etc (1981 SCMR 415), Capt. Mahmood Jan v. Madad Khan and another (1981 SCMR 474), Ahmad v. Crown (PLD 1951 FC 107), Fateh Muhammad v. Bagoo (PLD 1960 SC 286), Abdul Majid v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan (PLD 1964 SC 422), Feroze Khan v. Capt. Ghulam Nabi (PLD 1966 SC 424), Usman Khan v. The State (PLD 1969 SC 293), Noora and another v. The State (PLD 1973 SC 469), Abdul Rashid v. Umid Ali etc (PLD 1975 SC 227). Taj Muhammad v. Muhammad Yousaf etc (PLD 1976 SC 234), Farid v. Aslam (PLD 1977 SC 4), Fazalur Rehman v. Abdul Ghani (PLD 1977 SC 529). Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11).
On the touchstone of the criterion as mentioned hereinabove this petition for leave to appeal has been examined and we feel that it is neither a case of misreading of evidence nor non-reading of evidence but on the contrary the evidence has been appreciated in its true perspective and in accordance with the principles laid down by this Court qua the appreciation of evidence. No illegality or infirmity could be pointed out warranting interference in the judgment impugned which being unexceptionable cannot be reversed without convincing and cogent reasoning which is badly lacking.
In the light of what has been discussed hereinabove the petition being devoid of merits is dismissed and leave refused.
Criminal Petition No. 13-Q/2008.
The arguments of Mr. Jamal Khan Mandokhail, learned ASC on behalf of petitioner advanced in Criminal Petition No. 13-Q/2008 have been examined in the light of relevant record of the case. It is alleged that after cutting down the trees the respondents alongwith absconder/accused caused serious damage to the transformer by means of firing. A careful analysis of the entire evidence led in support of acquisition being unreliable, partisan, vague and sketchy has rightly been discarded by the learned trial and appellate Courts. The statement of Shah Muhammad hardly renders any assistance to the case of complainant as he could not identify the culprits except Hazrat Jan as they were with muffled faces. It is, however, to be noted that statement of Shah Sanam (PW-4) cannot be taken into consideration not being grandson of the petitioner but for the simple reason that civil litigation is pending between the parties and every effort has been made to implicate them on one or the other pretext in different cases. We are conscious of the fact that merely on the ground of interse relationship the statement of a witness cannot be discarded but here this principle would not be applicable because civil litigation is pending and besides that the respondents were acquitted in case got registered against them by the complainant for cutting down the trees and petition for leave to appeal was also dismissed. The learned Division Bench has examined the evidence in depth and the conclusion arrived at being unexceptionable and in accordance with the settled norms of justice does not warrant interference. The operative portion of the judgment impugned is reproduced herein below for ready reference:--
"We have carefully considered the contentions put forth by the parties learned counsel and have also gone through the impugned judgment as well as evidence on record. At the very outset, we may observe that order of acquittal is not liable to interference merely because on re-appraisal of evidence this Court may come to a different conclusion than that of trial Court provided both conclusions are plausible in the particular facts and circumstances of the case. In the instant case prosecution alleged that private respondents alongwith absconding accused cut down fruit bearing trees of the appellant and in the process they also caused damaged to transformer by means of firing. Only independent witness produced was Shah Muhammad who had not implicated the respondent in commission of offence as according to him he could not identify the culprits except Hazrat Jan as they had muffled their faces. In view of his categoric statement conviction on the basis of sole testimony of PW-4 Shah Sanam cannot be sustained as admittedly he is grandson of appellant and interested witness due to civil dispute going on between the parties. Similarly; report of PW-5 in absence of seizure of damaged articles and alleged cut down trees is of no consequences.
For the foregoing reasons, in our considered view, prosecution failed to prove guilt of respondents, as such; they were rightly acquitted of the charge. The appeal being devoid of any merits is dismissed accordingly".
(M.S.A.) Leave refused.
PLJ 2009 SC 1166
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Zia Perwez, JJ.
ABBAS ALI KHAN--Petitioner
versus
Mst. FARHAT IQBAL and 2 others--Respondents
C.P.L.A. No. 1866-L of 2008, decided on 12.2.2009.
(On appeal from judgment dated 6.11.2008 of Lahore High Court, Lahore passed in Writ Petition No. 12983 of 2008).
Ejectment Petition--
----Default in payment of rent and bonafide personal need--Agreement to sell does not confer title and a tenant on basis of such agreement--Title of landlady was admitted--Denying the required relationship on the ground that he was owner on basis of an agreement to sell--Rent Controller dismissed the ejectment petition--Writ petition was also dismissed--Leave to appeal--Held: Agreement of sale, taken by the petitioner, was altogether fake because an agreement to sell did not confer title and a tenant on the basis of such agreement was not entitled to deny the relationship in-question--Stance taken by the petitioner being malafide, he was liable to straightaway ejectment--Petitioner had not filed any copy of agreement of sale with instant petition--Any such agreement had not seen the light of the day--Entire litigation of the petitioner was based on malafides--Leave was refused. [P. 1167] A & B
Ch. Muhammad Arshad Ramay, ASC for Petitioner.
Mr. Maqbool Sadiq, ASC for Respondents.
Date of hearing: 12.2.2009.
Judgment
Sardar Muhammad Raza, J.--Abbas Ali Khan, an ejected tenant, seeks leave to appeal from the judgment dated 6.11.2008 of Lahore High Court, whereby, his writ petition was dismissed, maintaining the ejectment order dated 02.7.2008, passed by the appellate Court.
Mst. Farhat Iqbal brought a petition against Abbas Ali Khan, seeking his ejectment from property No. S-52-R-89, Nisbat Road, Lahore on grounds of default in payment of rent and bonafide personal need. The petition was contested by the petitioner, denying the required relationship, on the ground that he was an owner on the basis of an agreement to sell executed by Mst. Farhat Iqbal after having received a sum of Rs. 300,000/- as earnest money.
The Rent Controller dismissed the ejectment petition but, in appeal, first appellate Court ordered ejectment against which the writ petition also failed.
A detailed perusal of record would indicate that the learned first appellate Court had thoroughly examined, discussed and discerned the evidence. It had rightly arrived the conclusion it arrived at. In view of the evidence on record, the learned High Court was perfectly right in upholding the view of the appellate Court.
In pleadings of the parties, the petitioner has clearly admitted the title of the landlady as alleged in Para No. 1 of the petition. He also admitted that he obtained possession from the respondent lady, who also has tenants in numerous adjacent properties. The stance, concerning agreement of sale, taken by the petitioner, is altogether fake because an agreement to sell does not confer title and a tenant on the basis of such agreement is not entitled to deny the relationship in question. Owing to this legal aspect alone, the stance taken by the petitioner being malafide, he was liable to straightaway ejectment.
The intriguing aspect of the case is that the petitioner has not filed any copy of agreement of sale with the instant petition. During cross-examination, he categorically admitted that he has lost the original agreement. Any such agreement has not seen the light of the day. The entire litigation of the petitioner is based on malafides.
There being no force in the petition, it is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2009 SC 1168
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani & Sayed Zahid Hussain, JJ.
Dr. MEHMOOD AHMED--Petitioner
versus
SECRETARY LOCAL GOVERNMENT, etc.--Respondents
Civil Petition No. 1525-L of 2009, decided on 4.9.2009.
(On appeal against the order dated 6.7.2009 passed by Lahore High Court, Lahore in ICA No. 562/2009).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to Appeal--Requisition for Reforms Allowance--Incorrectly interpreted the notification--Contention--Medical Officers posted in rural areas were granted Health Sector Reform Allowance by holding that the minimum qualification requisite for the allowance was MBBS--Validity--Leave was granted to consider whether having served as medical officer for more than three decades and in absence of the requirement of MBBS as qualification, could the petitioner be refused reforms allowance. [P. 1168] A
Dr. Ehsan-ul-Haque Khan, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 4.9.2009.
Order
Tassaduq Hussain Jillani, J.--Inter alia contends that the Secretary, Local Government, has incorrectly interpreted the notification Bearing No. PO (P&E-I) 19-113/2004(III) dated 28.6.2006 vide which the Medical Officers posted in rural areas were granted Health Sector Reforms Allowance by holding that the minimum qualification requisite for the said allowance is MBBS. Adds that petitioner has to his credit 32 years of service as Assistant Medical Officer and Medical Officer in Rural Sector of Punjab and was fully qualified to get the allowance in question.
Having heard petitioner's learned counsel and having gone through the impugned judgment, leave is granted, inter alia, to consider whether having served as Medical Officer for more than three decades and in absence of the requirement of MBBS as qualification, could the petitioner be refused the afore-mentioned allowance?
(R.A.) Leave granted.