PLJ 2011 Judgments

PLJ 2011 Karachi 1

Present: Ms. Soofia Latif, J.

BANK ALFALAH LIMITED--Plaintiff

versus

M/s. CALLMATE TELIPS TELECOM LTD. & 5 others--Defendants

Suit Nos. B-01 and B-38 of 2008, decided on 20.4.2009.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 9--Contract Act, 1872, Ss. 128, 133, 134 & 56--Principle of discharge of guarantee--Suit for recovery--Leave to defend--Execution of personal guarantees--Guarantees of defendant the principal borrower--Categorically denied the execution of documents also that they had no knowledge about the rescheduling and their consent was not obtained--Held: On account of their denial the dispute cannot be resolved without recording their evidence--It is settled law that for adjudicating the bonafide question raised, requiring probe investigation. [P. 7] A

Principle of Ruling--

----It is universally accepted principle that every ruling in bank case governs its own facts unless the facts of both cases are identical the principle deducted in authorities cannot be extended to the case under consideration. [P. 7] B

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 18--Leave to defend--Banking documents--Guarantees were obtained blank which is a clear violation of S. 18 of Financial Instituions (Recovery fo Finances) Ordinance. [P. 8] C

Mortgagor--

----Liability of--Document execution--Liability of mortgagor can only be thrashed upon in view of documents executed by guarantor. [P. 8] D

Mr. Abdul Sattar Lakhani, Advocate for Plaintiff (in Suit No. B-1 of 2008) and Defendants for (in Suit No. B-28/2008).

Mr. Saalim Salam Anwari, Advocate for Plaintiff (in Suit No. B-38/2008) and for Defendants Nos. 2 to 6 (in Suit No. B-1/2008).

Date of hearing: 19.3.2009.

Order

By a single order, I intend to dispose off the three CMAs No. 1605/2008 filed by Defendants No. 2, 3 & 4, CMA No. 1607/2008 filed by Defendant No. 6 and CMA No. 7711/2008 filed by Defendant No. 1 in Suit No. B-01/2008 and Suit No. B-38/2008 as identical facts and grounds are involved therein.

Facts, giving rise to above CMAs are that the plaintiff Bank Al-Falah Ltd., at the request of Defendant No. 1 M/s. Callmate Telips Telecom Ltd., provided various financial facilities, which are as follows:--

(1) Current Finance (CF) of Rs. 75.00 Million

(2) TF of Rs. 6.00 Million.

(3) SLC/ULC/Acceptance of Rs. 80.00 Million.

(4) Letter of Guarantee Rs. 30.00 Million.

The above financial facilities were on markup basis/commission in different amounts and renewed/revised the same from time to time against inter alia security of demand promissory note, hypothecation of movable/fixed assets and third party mortgage and personal guarantees. In consideration of the aforesaid facilities, the Defendant No. 1 executed letters of hypothecation in favour of the plaintiff's bank on its movable properties, stocks and fixed assets, book debts and receivables, which were duly registered with the Securities & Exchanges Commission of Pakistan as per requirement of law. It is also the case of plaintiff's bank that in consideration of the aforesaid financial facilities, the Defendant No. 5 first deposited the title deeds of her immovable property i.e. Bungalow No. 22. Khayaban-e-Shamsher, Phase v. Defence Housing Authority, Karachi and then confirmed the factum by executing a memorandum of deposit of title deeds in favour of the plaintiff dated 31.5.2004. She also executed inter alia undertaking Iqrarnama and agreement to create legal mortgage. The Defendants No. 2 to 6 also executed their personal/guarantees in favour of the plaintiff undertaking and guaranteeing the repayment of all the outstanding and dues of the Defendant No. 1 to the Bank.

It is also the case of plaintiff that at the request of Defendant No. 1 the financial facility limits were renewed in favour of Defendant No. 1 and also allowed additional credit facility vide letter dated 04.05.2005 and 30.01.2006, the facilities were also secured through the continuing securities earlier provided by the defendants. They further executed their personal guarantees in favour of the plaintiff. According to the plaintiff on 01.02.2006 the plaintiff at the request of the Defendant No. 1 opened an L/C (Usance-365------days) Bearing L/C No. MBK/0049/2006 in the sum of USD$ 1,292,313 for import of hard and software telecommunication equipments in favour of M/s. HUAWET Teach Investment Company Limited but the defendants failed to liquidate the outstanding amount as a consequence thereof suit has been filed for recovery of said amount along with accrued markup.

Whereas the Defendant No. 5 Mrs. Yuba Jamil Ansari, who purportedly stood mortgagor/guarantor on behalf of Defendant No. 1 in Suit No. B-01/2008, filed suit Bearing No. B-38/2008 for declaration, permanent injunction and redemption of the mortgage property on the averments that the Suit No. B-01/2008 is not maintainable against her due to doctrine of "Novation of Contract" and/or principle of "discharge of guarantee(s)", in view Sections 128, 133, 134 and 56 of Contract Act, 1872. The alleged guarantee was expired on 30.8.2004 and no demand was made within due time. However, she also requested for redemption of her mortgage property in lieu of depositing the amount of PKR 18.2 Million being the mortgage amount/money with the Nazir of this Court.

The Defendants Nos. 2, 3, 4 and 6 filed listed CMAS No. 1065/2008 and 1607/2008 for leave to defend in Suit No. B-01/2008, whereas in Suit No. B-38/2008 the Bank filed CMA No. 7711/2008 for seeking leave to defend.

I have heard learned counsel for parties at length and gone through the record very carefully.

Mr. Saalim Salam Ansari learned counsel appearing for Defendants No. 2, 3, 4, 5 and 6 in Suit No. B-01/2008 and plaintiff in Suit No. B-38/2008 has contended that the leave to defend be granted in view of Section 132, 133, and 134 of the Contract Act, 1872 and in pursuant of Doctrine of "Novation of Contract" or principle of Discharge of Guarantee(s)". In this regard Mr. Saalim has invited my attention to the annexure "L" to the plaint, contended that the previous guarantees, mortgages, securities, if availed by the Defendants No. 2 to 6 have been discharged, revoked as the renewal is without the consent of the mortgagor the Defendant No. 5 and/or the guarantors the Defendants No. 2 to 6 as the renewal is in between the principal borrower/ Defendant No. 1 and/or the plaintiff's bank. It is further urged that mere on this point the leave to defend was granted by the High Courts and Honourable Supreme Court in many cases. In support of his contentions, reliance is placed on the following case laws:--

(1) 1981 CLC 847 (D.B).

(2) PLD 1984 Karachi 211.

(3) PLD 1986 Karachi 107.

(4) 1994 CLC 854.

(5) AIR 1935 Privy Council 21.

(6) AIR 1932 Bombay 168.

(7) AIR 1918 Privy Council 210.

(8) PLD 1968 SC 83.

(9) 2008 SBLR Sindh 1957 (D.B).

(10) 2003 CLD 905 (D.B).

(11) 2002 CLD 1707 (D.B).

(12) 2004 CLD 388 (D.B).

(13) 2004 CLD 110 (D.B).

(14) 2005 CLD 581 (D.B)

(15) PLD 1963 SC 163.

(16) NLR 1996 Civil 628.

(17) PLD 1991 SC 976.

(18) PLJ 1998 Lah. 572.

(19) 2001 YLR 1244 (S.B)

It is next urged by Mr. Saalim Salam that under Section 10(8) of Financial Institution (Recovery of Finances) Ordinance, 2001 if substantial and/or mixed questions of laws or fact(s) are involved for which the evidence is to be recorded, the defendants are entitled for leave to defend. It is also urged that in annexure P/2. P/3 to the leave to defend application, there is clearly mentioned the word "not accepted" which is evident and the contention that mortgage and corporate guarantee were not executed and in annexure P/4 it is also mentioned as crossed or negative that corporate guarantee of Defendant No. 6 and mortgagor is not accepted by Defendants No. 5 and 6, therefore, no mortgage or corporate guarantee can be thrusted/forced upon in view of the observations made in 2006 CLD 1506.

It is further urged by Mr. Saalim Salam that under Section 18(1) of Financial Institution (Recovery of Finances) Ordinance, 2001, no blank document can be taken by the bank as it is evident from annexure P/5, P/6 and P/7 to the leave to defend application that the guarantees have been taken by the bank as blank, which is clear violation of Section 18 (ibid)-the documents singed under "Economic duress" are also "void" under the provision of Sections 10, 14 and 16 of the Contract Act. Reliance is placed on PLD 1997 Karachi 62 (D.B).

It is next urged that the Defendant No. 1 is principle borrower, who has been wound up and Official Assignee of Sindh High Court has been appointed as official liquidator and an exparte decree has been passed against the Defendant No. 1 in Suit No. B-01/2008 and an Execution No. 39/2008 is pending against them and in view of the observation made in 1987 CLC 2364, there is no liability of the guarantors, if the company has been wound up/liquidated.

It is next urged that the signature of Defendant No. 5 are different in four documents (annexure C, C/1 at Pages 87, 89 and C/3 to the plaint) and the Court can examine itself the signature under the provision of the Qanoon-e-Shahadat Order, 1984. It is next urged that as regard the guarantee of Defendant No. 6, which is a private limited company, it is without resolution of Board of the Directors of Company and/or if the guarantee of private limited company is not backed by resolution, it will be treated as "null" and "void".

Mr. Abdul Sattar Lakhani learned counsel appearing for plaintiff in Suit No. B-1/2008 and Defendant No. 1 in Suit No. B-38/2008 has contended that as the Defendants No. 2, 3, 4 and 6 have executed personal guarantees, hence fall within the definition of Customer. They being directors/sponsors of Defendant No. 1 have accepted the liability as that of principal debtor and the guarantees expressly empower the plaintiff to allow the principal borrower time or other indulgence. Mr. Lakhani has denied that the guarantees were expired on 30.8.2007, whereas the same are continuing demand guarantees for repayment of all the dues of the bank. The law does not make any exception in favour of the defendants as guarantors, sureties, indemnifiers and they are legally bound to repay the outstanding amount due against Defendant No. 1. It is also urged that the defendants have executed corporate guarantee as guarantor of Defendant No. 1, therefore, cannot claim discharge of guarantee for any reason. Mr. Lakhani has also denied that there was novation of contract in respect of the said facilities, nor the guarantee of Defendant No. 5 Mst. Youba was ever discharged. The guarantee accepted by her is valid, subsisting and enforceable and she is liable to pay all the outstanding and dues of principal borrower. The Defendant No. 1. Mr. Lakhani has also urged that Mrs. Youba the Defendant No. 5 in Suit No. B-01/2008 and plaintiff in Suit No. B-38/2008 cannot seek redemption of mortgage by way of after thought and with mala fide intention. However, Mr. Lakhani has made request to grant leave to defend to the bank in Suit No. B-38/2008 and refuse the leave in Suit No. B-01/2008 to Defendants No. 2, 3, 4 and 6. In support of the above contentions reliance has been placed on the following case laws:--

(1) 2006 CLD 178.

(2) 2003 CLD 1406.

(3) PLD 1994 Karachi 196.

(4) 2006 SCMR 619.

(5) PLD 1998 Karachi 278.

(6) 2004 CLD 1741.

In order to appreciate the contentions of learned counsel for the parties, I have examined all documents available on record as well as the relevant statutory provisions on the subject and the case laws cited at the bar.

Admittedly the Defendant No. 1 company, the principal borrower for which the Defendant No. 5 mortgaged her property by executing mortgage deed and Defendant Nos. 2 to 6 were the guarantors, has been wound up and official Assignee has been appointed as official liquidator. Suit No. B-01/2008 has been decreed against the Defendant No. 1 and an execution application is pending. Nothing has been filed by the plaintiff's bank to show that any claim has been filed regarding the outstanding or loan against the Defendant No. 1 with the official liquidator.

As regards the point of rescheduling of the loan and manifestly includes markup, according to the plaintiff in Suit No. B-1/2008 at the request of defendant the facility limit was renewed and also allowed additional credit facility vide letter dated 04.05.2005, Defendants No. 2 to 6 further executed their personal guarantees in favour of plaintiff on 02.05.2005. In their leave to defendant application the Defendant No. 2 to 6 have categorically denied the execution of documents dated 02.05.2005. They have stated that they have no knowledge about the rescheduling and their consent was not obtained. On account of their denial the dispute cannot be resolved without recording their evidence. It is a well settled law that for adjudicating the bona fide question raised, requiring probe investigation. Another question arise whether the guarantors are bound for the thing they have not guaranteed. In this context reference has been made in the case of Dr. M.A. Qadir Khan v. The Bank of Bahawalpur Ltd., and others reported in PLD 1984 Karachi 211, it has been observed that surety cannot be held bond for things he has not contracted. Once a variance in contract between creditor and principal debtor is made their obligations are governed by new terms and unless debtor is made their obligation are governed by new terms and unless surety has consented to such terms he cannot be bonud for variation. It has further been held that contract between creditor and principal debtor varied without consent of surety. Surety, held, will be discharged. Same observation has been made in the case of M/s. United Bank Ltd. vs M/s. Mujahid Transport reported in PLD 1986 Karachi 107. On this point the case laws cited by learned counsel for plaintiff are not attracted to the facts of the instant case. It is universally accepted principle that every ruling in bank case governs its own facts unless the facts of both cases are identical the principle deducted in such authorities cannot be extended to the case under consideration.

It is also very surprising to see annexures P/5 to P/7 to the leave to defend application (guarantees) that the guarantees were obtained blank which is a clear violation of Section 18 of Financial Institution (Recovery of Finances) Ordinance, 2001, which states as under:

"18. Banking Documents.--(1) He financial instituted shall obtain the signature of a customer on banking document which contains blanks in respect of important particulars including the date, the amount, the property or the period of time in question;

(2) Finance agreements executed by or on behalf of a financial institution and a customer shall be duly attested in the manner laid down in Article 17 of the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984;)

(3) Nothing contained in sub-sections (1) and (2) shall affect the validity of any document executed prior to the date of enforcement of this Ordinance;

(4) Notwithstanding anything contained in this section or any other law, the Banking Court shall not refuse to accept in evidence any document creating or purporting to create or indicating the creation of a mortgage, charge, pledge or hypothecation in relating to any property or assumption of any obligation by a customer, guarantor, mortgagor or otherwise merely because it is not duly stamped or is not registered as requiring by any law or is not attested or witnessed as required by Article 17 of the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984) and no such document shall be impoundable by the Banking Court or any other Court or authority:

Provided that nothing contained in this sub-section shall operate to defeat the legal rights of a bona fide purchaser for value without notice of a document which ought to have been registered".

As regard the point that annexures P/2 and P/3 to the leave to defendant application, there is clearly mentioned the word "not accepted" and annexure P/4 it is also mentioned as crossed or negative, on perusing the aforesaid annexures, it appears that the words "not accepted" is written therein. however, the plaintiff has denied this fact in their replication, therefore, this disputed point cannot be resolved without recording evidence.

In Suit No. B-38/2008 the plaintiff has taken a plea that she being guarantor is bound to pay her liability to the extent of her liability in view of the documents executed by her. In this regard reliance has been placed by the learned counsel for plaintiff in a case reported in 2006 CLD 1506.

The dicutm laid down in the above citation reveals that the liability of the mortgagor can only be thrusted upon in view of the documents executed by her.

For the reasons discussed above, keeping in mind the above cited judgment and objections raised by the defendant in both suits. I am of the considered view that the Defendant Nos. 2, 3, 4 and 6 in Suit No. B-1/2008 and Defendant No. 1 in Suit No. B-38/2008 have made out a prima facie case for grant of unconditional leave as the object received require detailed investigation through recording of evidence consequently, the leave to defend is granted to the Defendants No. 2, 3, 4, 6 in Suit No. B-1-/2008 and in Suit No. B-38/2008 to the Defendant No. 1 for adjudication of both suits on merits. Leave to defend applications in both suits are treated as written statement and parties are directed to file their propose issues for the purpose of determination of the points of law and facts involved in the matter.

Accordingly the listed CMAs No. 1605/2008, No. 1607/2008 and No. 7711/2008 are hereby allowed in above terms, however, there will be no order as to costs.

(M.S.A.) CMAs allowed.

PLJ 2011 Karachi 9

Present: Syed Pir Ali Shah, J.

FAYSAL BANK LIMITED--Plaintiff

versus

BADIN BOARD MILLS and others--Defendants

Suit No. B-42 of 2007 and CMA No. 10394 of 2007, decided on 3.9.2008.

Administration of Justice--

----Leave to defend--Where the matter required proper adjudication by way of evidence on factual as well as legal questions, leave to defend was allowed in the interest of justice. [P. 16] A

Mr. Abdul Sattar Lakhani, Advocate for Plaintiff.

Mr. Muhammad Saleem Thepdawala, Advocate for Defendant.

Date of hearing:

Order

This is an application under Section 10 of the Financial Institution (Recovery of Finances) Ordinance, 2001 read with Section 151 CPC Bearing CMA No. 10394/07 is filed by the defendant for grant of unconditional leave to appear and defend the above suit.

Through this application the defendants have denied all the allegations against them. In this application the defendant raised preliminary objections that the suit in not maintainable in law as the same is filed without resolution passed by the Board of Directors of the plaintiff as required under the law. Furthermore, that the plaintiff's claim against the defendants is exaggerated and exorbitant, hence not maintainable in law. That the defendants are not liable to pay such exorbitant and unwarranted amount claimed in the above suit which is based on alleged markup/profit, liquidated damages and other charges etc. for which the plaintiff is not entitled.

Apart from the preliminary objections, the Defendant No. 1 replied the plaint wherein it is mentioned that the plaintiff bank has illegally and wrongfully charged markup/profit for more than agreed period and at higher rate as well as debited the penalties with markup/profit thereon and other charges without any authority in respect thereto. It is stated these charges are unlawful, unauthorized and exaggerated. It is also mentioned that the plaintiff with mala fide intention has concealed the repayments made by the Defendant No. 1 towards adjustment of the finance facilities availed by the Defendant No. 1. On the contrary the said repayments have been utilized by the plaintiff towards adjustment of unlawful and unauthorized markup/profit and other charges which were neither agreed between the parties nor under law was the plaintiff entitled and authorized to claim and recover the same from the defendants. It is mentioned that the plaintiff's claim in the above suit is based on various documents which were obtained by suppression of facts and in blank. That the said documents have been filled in by the plaintiff for the dates and amounts of its own choice without any lawful authority. That these documents are also inconsistent and contradictory and do not support the entries of the statements of account in question. Hence the said documents are not binding upon the defendants nor the plaintiff is entitled to obtain any decree in the above suit against the defendants on the basis thereto. It is further mentioned that all the Madarabah facilities availed during that period have fully been adjusted/repaid by the Defendant No. 1 which is evident from the statement of account and, as such, the Defendant No. 1 has never been the defaulter of a single paisa at any time during the entire limit period and always used to maintain good business relationship with the plaintiff bank. It is also mentioned that the major portion of the total Mudarabah Local Purchase Facility have also been adjusted and such, an exorbitant amount under principal disbursement is not due and payable as alleged by the plaintiff. It is mentioned that the complete and thorough scrutiny of the statement of account will establish that the plaintiff has made mis-statement regarding principal outstanding amount against the Defendant No. 1 and in such circumstances the alleged statement of account is not a true and certified statement of account as required under the Bankers' Book Evidence Act and therefore on the basis of the alleged statement of account the bank is not entitled to claim judgment and decree against the Defendant No. 1 for the false and baseless principal amount unless a complete evidence is produced and all relevant documents, vouchers, etc. are produced on record in support for the principal outstanding amount of Rs. 49,743,500/- as mentioned in Para 11 of the plaint. It is further mentioned that as per sanction advise all the Mudarabah Facilities were granted for a maximum period of 180 days with profit at the rate of 7% per annum and in such circumstances the plaintiff bank is not entitled to claim and recover the markup in the shape of profit upon the said Mudarabah Facilities for more than 7% per annum. It is also mentioned that it is normal practice of the plaintiff bank to violate the agreed terms and used to charge markup/profit at higher rate and for more than agreed period and in addition thereto the plaintiff bank has also claimed and recovered several other charges for which the plaintiff bank was not legally entitled. It is denied that the principal amount of Rs. 49,743,500/- is due and payable by the Defendant No. 1 and in the like manner Rs. 2,350,626/- has also been calculated at much higher rate than the agreed rate besides the alleged compensation of Rs. 13,119,841/- and the alleged legal expenses of Rs. 500,000/- though the plaintiff is not authorized and entitled to claim amount of compensation and other charges from the defendants under the Islamic Mode of Financing which are even otherwise contrary to the Rules & Regulations prescribed by the State Bank of Pakistan, therefore, entire claim of the plaintiff mentioned in Para 11 of the plaint amounting to Rs. 65,713,964/- has been denied. It is mentioned that the statement of account (Annexure G-3) which consists of 18 pages is evident that complete mark up/profit till 30.1.2006 has been recovered by the plaintiff bank and all the allegations for non-payment/default by the Defendant No. 1 are misconceived, false and baseless having no substance and therefore, the plaintiff is lawfully bound to prove his claimed amounts through documentary evidence before the Court. It is further mentioned that the plaintiff's legal notice dated 22.3.2006 was replied by the Defendant No. 1 wherein alleged exaggerated and inflated claim/amount of Rs. 53,773,860/- has been denied which fact was deliberately concealed by the plaintiff, therefore, the plaintiff was directed to prepare fair and honest account keeping in view the principles of Mudarabah facilities. It is mentioned that the heavy repayments made by the Defendant No. 1 has not been properly utilized against the principal disbursement and the same have been utilized for the adjustment of unlawful, illegal and unauthorized markup/profit, compensation and other charges hence presently the defendants are not liable to pay such exorbitant and exaggerated claims of the plaintiff. It is further mentioned that as per the statement of account filed by the plaintiff in support of the alleged claim against the Defendant No. 1. It is evident that the alleged amount claimed by the plaintiff in the above suit is completely in negation as well as contrary to its own statement of account which has been filed along with the plaint as true and certified statement of account. It is stated that on the basis of the said statement of accounts the actual/correct position of the account of Defendant No. 1 should been as follows:

PRINCIPAL AMOUNT

Outstanding as per statement Of account filed by plaintiff -------- Rs. 3,468,500/-

Mark-up/profit till 30.1.2006

As per statement of account

Filed by the plaintiff --------- Recovered

Net Payable --------- Rs. 3,468,500/-

It is mentioned that the person who has signed the plaint is not a competent person as no resolution duly passed by the Board of Directors for the purpose as required under law, has been filed by the plaintiff. It is further mentioned that the plaintiff is not entitled for any decree against the defendants for the alleged amount of Rs. 65,713,964/- with cost of fund as alleged or at all plaintiff is not entitled for sale of the mortgaged properties and hypothecated machinery for recovery of the unlawful and unwarranted claim of the plaintiff unless the plaintiff prove the same through documentary proof before this Court in evidence. Reliance has been placed upon the cases of Messrs Yussra Textile Corporation & others vs. PICIC Commercial Bank Ltd. (2003 CLD 905), Messrs Haq Feed Industries (Pvt.) Ltd. vs. National Development Finance Corporation (2007 CLD 975), Messrs ARK Industrial Management Ltd. vs. Messrs Habib Bank Ltd. (PLD 1991 SC 976), Agrofaster (Pvt.) Ltd. & others vs. Judge, Banking Court No. 5, Karachi & another, Messrs Habib Bank Limited vs. Messrs Schon Textiles Limited (2001 YLR 1244), M/s. Zodiac International (Pvt.) Ltd. Etc. vs. M/s. Industrial Development Bank of Pakistan (NLR 2001 Civil 536), Messrs C.M. Textile Mills (Pvt.) Ltd. vs. Investment Corporation of Pakistan (2004 CLD 587), Citi Bank N.A. vs. Riaz Ahmed (2000 CLC 847), Allied Bank of Pakistan vs. Masood Ahmad Khan (1994 MLD 1557), Industrial Development Bank of Pakistan vs. Al-Mansoor Ltd. & others (PLD 1989 Peshawar 191), National Bank of Pakistan vs. Messrs Mujahid Nawaz Cotton Ginners (2007 CLD 678), Sh. Muhammad Naeem & others vs. Habib Bank Limited (2003 CLD 606), National Bank of Pakistan vs. Messrs Mujahid Nawaz Cotton Ginners (PLJ 2007 Lahore 1062 (DB), Mushtaq Ahmad Vohra vs. Crescent Investment Bank Ltd. (2005 CLD 444) and Muhammad Akram and another vs. Mst. Farida Bibi and others (PLJ 2008 SC 42).

The plaintiff filed replication to the application for leave to defend filed by the defendants in which the contents of plaint have been reiterated and have denied each and every allegation of the defendants which is inconsistent with and contrary to the factual position of the case.

The plaintiff has also raised preliminary legal objections and stated that the application for leave to defend is in breach of the mandatory provisions of Section 10(3), (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and therefore the application is liable to be summarily rejected under Section 10(6) of the said Ordinance. The sub-section (3) of the Ordinance requires the application for leave to defend to be in the form of a written statement and contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded whereas the so called application for leave to defend is (sic) a bundle of unrelated papers. The second legal objection raised by the plaintiff is that the defence of the defendants is deliberately false, frivolous and dishonest and is made an attempt to avoid its lawful obligation to make payment of the amount demanded by the plaintiff. The third legal objection is that the application is signed by one Aakib Abbas Khan Niazi son of Tariq Abbas Khan Niazi, as Defendant No. 6 and also on behalf of Defendants No. 1 to 5 and 7 as their Attorney. However, the said signatory has not filed any power of attorney or a mandate from Defendant No. 1 (a registered partnership firm) and on behalf of other partners as co-defendants authorizing him to sign and verify the application as required by law, as such there is no valid application for leave to defend by the Defendants No. 1 to 5 and 7 before the Court.

The plaintiff in his replication also replied the preliminary objections raised by the defendants and its defence please and in that it is denied those pleas being frivolous misconceived and misleading. It is stated that the plaint is signed by the constituted attorney of the plaintiff by virtue of power of attorneys, copies of which have already been annexed to the plaint as mentioned Para 18 of the plaint and there is no legal requirement of filing any resolution. Secondly the amount of plaintiff's claim is as per its books and hence it is neither exorbitant nor unwarranted. It is stated that the defendants have not specified as to which amount of mark-up/profit has been illegally and wrongfully charged. In fact the plaintiff has charged mark up as per agreed terms. It is also stated that the defendants have failed to mention which repayments have been concealed hence such general allegations have no value in the eyes of law.

Apart from above, the plaintiff has replied the replication parawise wherein it is mentioned that the contents of Paragraph 4 of the application are admission by the defendants of having availed various finance facilities. It is further mentioned that the contents of Paragraph 9 of the application are also admission by the defendants that they actually executed persona guarantees. However, the allegation that exaggerated amounts have been filled in the guarantee is denied. It is mentioned that the Defendants No. 2 to 7 have executed and delivered the guarantee dated 3.2.2005 to the plaintiff undertaking joint and several obligation of entire liability under the Morabaha Financing Agreement. It is mentioned that Paragraph 23 of the application amounts to admission of securities by way of mortgage of immovable properties and hypothecation of plant and machinery and equipment to the plaintiff. It is further mentioned that no loss will be suffered by the defendants, if the application is dismissed as the defendants have enjoyed the benefits of Morabaha facility and are liable to make payment of the entire outstanding liability to the plaintiff. In support of such contention reliance has been placed upon the cases of Zeeshan Energy Ltd. & others vs. Faisal Bank Ltd. (2004 CLD 1741), Habib Bank Ltd. vs. Messrs Sabcos (Pvt.) (2006 CLD 244) and National Bank of Pakistan vs. Al-Asif Sugar Mills Limited etc. (2001 CLF 125).

I have heard the learned Advocates for the parties at great length and have also gone through the law citations relied upon by both the parties.

Obviously legal issue with regard to the maintainability of the suit has been raised. At the very outset, it is a matter of record that this suit has been filed without any resolution passed by the Board of Directors of the plaintiff. Secondly, the suit has been filed while claiming markup at the higher rate then the agreed rate of 7% per annum for 180 days. It is said that the plaintiff bank has illegally and wrongfully charged markup/profit for more then agreed period and that the penalties with markup/profit have been debited. It has also been stated that the charges are unlawful and unauthorized and exaggerated. It has been alleged that the plaintiff with mala fide intention has concealed the repayments made by the Defendant No. 1 towards adjustment of the finance facilities availed by the Defendant No. 1. Above said payments have been utilized by the plaintiff bank towards adjustment unlawful and unauthorized markup/profit and their charges which were neither agreed between the parties nor under the law, the plaintiff was entitled and authorized to claim and recover the same from the defendant. Besides, it has been stated that the plaintiff's claim in the above suit is based on various documents which were obtained by suppression of facts and in blank. It is further mentioned that the documents have been filled in by the plaintiffs for the dates and amounts of its choice without any lawful authority. It has been argued that these documents are inconsistent and contradictory and do not support the entries of the statement of account in question and as such not binding upon the defendant. It is contended that all the Mudarabah facilities availed by the defendant during the relevant period have fully been adjusted/repaid which is evident from the statements of account filed on record. It is necessary to reproduce below the text of Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001:

"10. Leave to defend.--(1) In any case in which the summons has been served on the defendants as provided for in sub-section (5) of Section 9, the defendant shall not be entitled to defend the suit unless he obtains from the Banking Court as hereinafter provided to defend the same, and, in default of his doing so the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interest of justice.

In this suit the plaintiff bank claimed amount of Rs. 65,713,964/- with cost of funds as fixed by State Bank of Pakistan from the date of default till realization of the entire decretal amount. In consequences thereof, the plaintiff bank also prayed for attachment and sale of the mortgaged property etc. As regards plaintiff's contention that the application for leave to defend is in breach of the mandatory provisions of Section 10(3), (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which are essentially reproduced below:--

(3) The application for leave to defend shall be in the form of a written statement, and shall contain a summary of the substantial questions of laws as well as facts in respect of which, in the opinion of the defendant, evidence needs to be recorded.

(4) In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:--

(a) The amount of finance availed by the defendant from the financial institution, the amounts paid by the defendant to the financial institution and the dates of payments;

(b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;

(c) the amounts of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;

(d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereof;

Explanation.--For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any, against the principal amount of the finance.

(5) The application for leave to defend shall be accompanied by all the documents which, in the opinion of the defendant, support the substantial questions of law or fact raised by him."

In view of the facts mentioned in this application the matter requires proper adjudication by way of evidence on factual as well as legal questions. Accordingly, this applicant for leave to defend is allowed in the interest of justice.

(A.A.) Leave allowed.

PLJ 2011 Karachi 16 (DB)

Present: Mushir Alam and Safdar Ali Bhutto, JJ.

JALEES AHMED SHAMSI and another--Petitioners

versus

FEDERATION OF PAKISTAN through its Federal Secretary Ministry of Housing & Works, Islamabad and 8 others--Respondents

C.P. No. D-1257 of 2004, CMA Nos. 1442, 1443 of 2009 and Misc. Nos. 1492, 1854 of 2009, decided on 2.4.2009.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Un-authorized use and conversion of residential property into religious status of worship mosque--Commercial activities were restrained--Permission to convert the residential property for religious building--Property which was presently being used as place of worship will continue be used, however, subject to the condition that respondent would follow the regulations and make appropriate application and seek no objection from the lesser and or any other authority for permission to convert the residential property for religious building--Respondent shall also obtain all necessary building plans and approvals from the competent authority who shall process all such applications with due diligence and process the same strictly in accordance with regulations or any other law that may be enforced--Petition disposed of. [P. 17] A

Mr. Muhammad Zahid Khan, Advocate for Petitioner.

Mr. Ghulam Qadir Jatoi, Mr. Sartaj Malkani, Syed Saifuddin, Advocates and Mr. Sarwar Khan, Addl. A.G. Sindh for Respondents.

Mr. Manzoor Ahmed, for CDGK.

Mr. Zarar Khan, for KBCA.

Date of hearing: 2.4.2009.

Order

The petitioners have impugned the unauthorized use and conversion of residential property into religious status of worship (mosque). Pursuant to order of this Court the commercial activities were restrained on 25.11.2009. Today report on behalf of the KBCA has been filed attached thereto undertaking by Chairman Committee, Khalid Bin Waleed Masjid executed by one Muhammad Anas. In the report it is stated that the commercial activities have been closed and the shop's shuttered have been removed and block masonry have been raised. It is also stated that KBCA shall keep a vigilant eye on any unauthorized activities and take action as may be appropriate under the law.

When the learned counsel was confronted as to any regulations or law regulating such conversion of one property into any religious property Mr. Zahid Khan learned counsel for the petitioner has drawn our attention to the regulation 25.13 of the Karachi Building & Town Planning Regulations 2002 which reads as under:--

"25-13 RELIGIOUS BUILDINGS

25-13.1. Subject to the general conditions as defined in Clause 25-1.

25-13.2. A Maximums of 5% of FAR may be utilized for commercial activity for generating income/fund for maintenance of religious building.

25-13.3. No religious building shall be built within 700 ft. (213 m) of any Cinema house, Theatre, or similar entertainment facility.

25-13.4. Religious buildings shall only be permitted on plots reserved for this purpose or on plots with specific approval, from the concerned authority and concerned district administrating for change in land use, if any, which shall be carried out in accordance with the procedures laid down in these Regulations. Reasonable residential area may be allowed for Khateeb. Not exceeding 1000 Sq. ft. (836 Sq. m.)"

All the learned counsel concede that the property which is presently being used as place of worship will continue be used, however, subject to the condition that the Respondent No. 9 shall follow the regulations reproduced above and make appropriate application and seek no objection from the lessor and or any other authority for permission to convert the residential property for religious building. The Respondent No. 9 shall also obtain all necessary building plans and approvals from the competent authority i.e. KBCA who shall process all such applications with due diligence and process the same strictly in accordance with the regulations reproduced above and/or any other law that may be inforce. The petition terms above stands disposed off. No further construction would be raised without complying with the formalities as required under regulation 225.13 ibid. All pending applications stands disposed off.

(R.A.) Applications disposed of.

PLJ 2011 Karachi 18 (DB)

Present: Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ.

AZAM SOLANGI--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior Islamabad and another--Respondents

C.P. No. D-676 of 2008, decided on 16.10.2008.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999--Ss. 9(a)(iii), (iv), (vi), (xi), (xii) and 10(a)--Scope of--Constitutional jurisdiction for seeking bail in reference--Offences of corruption and corrupt practices--Bail, grant of--Object of Ordinance is to expeditiously dispose of the cases--Nature of reference--No likelihood of commencement of trial in near future or account of role assigned to particular close of offenders involved in reference--Object of law was bail and not jail--Held: By virtue of withholding the bail to the accused when the trial had not commenced in last one year and then there was no likelihood of commencement of trial in near future as against petitioner, who was in custody--Accused had made out a case for grant of bail to accused--Bail was granted. [P. 20] B

Bail--

----Fresh ground--Delay and hardship on account of admitted facts--Trial Court has not yet proceeded with trial--Held: No bar for the accused to more fresh application for post arrest bail if new grounds are spelled out from the circumstances of case. [P. 20] A

M/s. Abdul Mujeeb Pirzada and Syed Khalid Shah, Advocates for Petitioner.

Ch. Muhammad Iqbal, DPGA NAB for Respondents.

Date of hearing: 16.10.2008.

Order

The petitioner has repeated the constitutional jurisdiction for seeking post-arrest bail in Reference No 69 of 2007 pending before the Accountability Court of Sindh at Karachi for commission of the offences of corruption and corrupt practices as defined in clauses (iii), (iv), (vi), (xi) and (xii) of Section 9(a) punishable under Section 10(a) of the Ordinance and forgery/falsification of accounts punishable under Sections 468/471/477-A, PPC in the schedule of the Ordinance.

Brief facts, leading to the filing of the reference, are that the petitioner being Ex-Assistant District Officer (Education), Garhi Yasin along with co-accused was involved in abusing the official assignments and embezzlement of the General Provident Funds (GPF) of the Government employees during the period commencing from 2002 to 2003 thereby caused colossal loss to the Government exchequer to the extent of Rs. 222.092 million on the basis of preparation of forged and fake GPF Bills and dishonestly drawing the pecuniary advantages and benefits. It seems that earlier C. P. No. D-2327 of 2007 was filed by the petitioner, which was dismissed by this Court through order dated 28.11.2007.

The learned counsel for the petitioner has agitated a fresh ground contending that the petitioner is behind bars for the last one year despites the object of the promulgation of the Ordinance, 1999 whereby, stress has been laid for expeditious disposal of the cases. The petitioner is rotting in jail without trial. It is, next urged that the co-accused, involved in the reference with the identical role as that of the petitioner, have been extended the benefit of bail, therefore, the principles of consistently shall be applicable in all folds to the cases of the petitioner. However, an attempt has been made on behalf of the learned counsel for the petitioner to analyze the evidence collected during the course of investigation as well as by virtue of the subsequent acts and omission as is apparent from the affidavits of Aziz Soomro and Nisar Ahmad Solangi whereby both of them have exonerated the petitioner from the commission of the alleged offence to their extent. It is, next urged that the case of the petitioner viz-a-viz the case of the co-accused on the principle of consistency, requires consideration and the petitioner is also entitled to the concession of bail. In support of above contention reliance has been placed on unreported judgment passed by the Hon'ble Supreme Court in case of Altaf Hussain Bhatti in Civil Petition No. 179-K of 2008 dated 29.7.2008 wherein also the co-accused were granted bail, therefore, importing the doctrine of consistency the bail was granted in favour of the accused. Relevant portion of the above referred order is reproduced herein below in extenso:

"6. Admittedly, the other co-accused are on bail. Therefore, the rule of consistency is applicable in case of the petitioner. As per reference placed before the Accountability Court, it is manifest that the alleged offence was committed in the year 1992-93 but the reference was filed in the year 2007 which itself reflects that the prosecution has remained silent for long time by forming opinion regarding guilt of the petitioner and other co-accused presuming that the petitioner and other co-accused are guilty of offences. In view of above grounds, raised by the learned counsel for the petitioners and controverted by learned ADPG, NAB and Raja Abdul Rehman, learned DAG, the case of the petitioner is of further inquiry and the petitioner is entitle for concession of bail."

Conversely, learned counsel for the NAB has contended that the ground raised by the learned counsel for the petitioner cannot be taken into consideration at this juncture, which will tantamount to review the earlier order, which is not the spirit of the law. It is, contended that the pleas, raised, were earlier considered, therefore, the best forum for the petitioner was to agitate all the above grounds before the apex Court instead thereof he has chosen to resort to this Court, therefore the petitioner is not entitled to the concession of bail.

We have heard the learned counsel for the parties at length and perused the material available on record.

Undoubtedly, in the earlier petition, filed by the petitioner, all the material was taken into consideration. At present a fresh ground, appears to have been raised by the learned counsel for the petitioner, is the delay and hardship faced by the petitioner on account of the admitted facts that the trial Court has not yet proceeded with the trial. It is, settled law that there is no bar for the petitioner to move fresh application for post-arrest bail if the new grounds are spelled out from the circumstances of the case.

In any view of the matter, we are of the considered view that the object of the Ordinance, 1999 is to expeditiously dispose of the cases. The nature of the reference, filed against the petitioner and co-accused, manifestly reveals that there is no likelihood of the commencement of the trial in near future or account of the role assigned to a particular class of the offenders involved in the reference. The object of law is bail and not jail, by virtue of withholding the bail to the petitioner when the trial has not commenced in the last one year and then there is no likelihood of commencement of the trial in near future as against the petitioner. Who is in custody, the learned counsel for the petitioner has made out a case for grant of bail to the petitioner.

For the foregoing reasons we direct that the petitioner shall be released on bail upon furnishing solvent surety in the sum of Rs. 500,000/- (Rupees five lacs only) and P.R. Bond it he like amount to the satisfaction of the trial Court. Petition stands allowed accordingly.

(S.L.) Bail allowed.

PLJ 2011 Karachi 21

Present: Muhammad Ali Mazhar, J.

TRUSTEES OF THE PORT OF KARACHI--Plaintiff

versus

M/s. FATIMA SUGAR MILLS LIMITED and 2 others--Defendants

Suit No. 233 of 2007 and C.M.As. No. 4332, 1291 of 2008 and 5759, 5760, 5761 of 2009, decided on 25.5.2011.

Limitation Act, 1908 (IX of 1908)--

----S. 14(1)--Civil Procedure Code, (V of 1908), S. 151--Suit for recovery of liquidated damages can be filed within three months from date of order--Question of--Whether bank guarantee can be discharged or not--Validity--If suit is not filed within a period of three months, then the order for extension of bank guarantee in respect of liquidated damages would stand vacated automatically. [P. 24] A

Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 7(4)--Limitation Act, (IX of 1908)--Civil Procedure Code, (V of 1908), S. 151--Suit for recovery liquidated damages--Essential for filing a suit under Financial Institution (Recovery Finances) Ordinance--Question of--Whether Bank Guarantee can be discharged or not--Time spent in Banking Court would be excluded for limitation purpose and delay any can be condoned in refilling the case in High Court--Limitation for filing the suit was not fixed but only passed the order that if suit was not filed within period of three months, then bank guarantee furnished would be automatically discharged--Validity--Karachi Port Trust had to file suit for recovery of liquidated damages and since period of bank guarantee was extended till adjudication of the suit, if any, therefore, in order to expedite the proceedings and to ensure the expeditious disposal, Divisional Bench allowed three months time for filing the suit with further caution that if no suit was filed within stipulated period, the banking guarantee will be discharged automatically. [P. 29] B

Limitation Act, 1908 (IX of 1908)--

----S. 3--Limitation for filing suits--Period of limitation--Limitation has not been set up as a defence--Question of--Because of the mandatory nature of S. 3 of Limitation Act, Court before which any suit, appeal or application instituted, preferred or made is obliged to dismiss the same although the question of limitation may have not been set up as a defence. [P. 29] C

Cause of action--

----Cause of action had arisen from time to time--Validity--Plaintiff can file a suit for recovery of liquidated damages, within three months of its judgment. [P. 29] D

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

----S. 151--Financial Institution (Recovery of Finances) Ordinance, 2001, S. 7(4)--Limitation Act, (IX of 1908) S. 14(i)--Suit for recovery in Banking Court was filed under bonafide belief--Validity of bank guarantee--Contention--Whether bank guarantee should be discharged as plaintiff failed to institute the suit within stipulated time--Controversy--Interest of justice--Suit was filed in Banking Court due to bonafide mistake--Validity--Controversy between the parties cannot be resolved without adducing evidence--Limitation for filing suit will be considered or treated from date of presentation of the plaint in High Court and during period when suit was pending in Banking Court will not be counted--All controversy requires evidence and in order to sift grain from chaff, it would be in interest of justice that instead of outrightly discharging the bank guarantee, Court would frame specific issue covering the present controversy. [P. 30] E

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

----S. 151--Controversy raised in CMA moved under S. 151, CPC cannot be decided without evidence. [P. 31] F

Limitation Act, 1908 (IX of 1908)--

----S. 14--Computing the limitation prescribed for any suit--Defect of jurisdiction--It only germane to computing the limitation prescribed for any suit the time during which plaintiff has been prosecuting with due diligence another civil proceedings whether in a Court of first instance or in a Court of appeal against the defendant shall be excluded where proceedings is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature unable to entertain it. [P. 31] G

Limitation Act, 1908 (IX of 1908)--

----S. 14(1)--Suit for recovery of money--Barred by time--Discharge of bank guarantee--Suit was filed wrongly in Banking Court--Failed to file the suit within stipulated period from the judgment--Limitation for filing the suit of different nature and upon different causes of actions--Scope of limitation--Validity--An important characteristic of case cannot be lost sight that Divisional Bench of High Court did not fix the cut off point of limitation for filing the suit but only allowed an opportunity to commence the suit within a period of three months that in its judgment Bank guarantee was extended, therefore, time granted by D.B. cannot be considered the time allowed under Limitation Act for filing the suit. [P. 31] H

Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 7(4)--Limitation Act, (IX of 1908), S. 14(1)--Suit for recovery in Banking Court--Essential for filing a suit--Question of--Whether suit for recovery in Banking Court was filed under bonafide intention or with sheer negligence or plaintiff was prosecuting the suit in banking Court in good faith--Validity--Plaintiff in all fairness is entitled to lead evidence to prove its bonafides and instead of technical knockout, it would be in the interest of justice to decide the case on its own merits. [P. 31] I

Mr. Safdar Mehmood, Advocate for Plaintiff.

Mr. Shaiq Usmani, Advocate for Defendant No. 1.

Date of hearing: 2.3.2011

Order

By this order I intend to dispose off C.M.A. No. 4332/2008 filed by the plaintiff under Section 14(l) of the Limitation Act and C.M.A. No. 1291/2008, filed by the Defendant No. 1 under Section 151 C.P.C. The plaintiff has filed this suit for recovery of money and prayed as follows:--

(a) Decree the suit for Rs.3,855,595.00 in favour of the plaintiff against the defendants jointly and severally with further interest/mark-up 14% per annum from 1st January 2007, as mentioned in the Bank Guarantee till payment.

(b) Award costs of the suit to the plaintiff. and

(d) Grant any other relief(s) to the plaintiff which this Honourable Court may deems fit and proper

1. The facts forming the background of the present suit are that the plaintiff is a statutory organization functioning under the Karachi Port Trust (KPT) Act, 1886. The Defendant No. 1 is a company engaged in the business of import and export. The Defendant No. 1 imported certain equipments and machinery by establishing Letter of Credit through Defendant No. 2. The release of the goods at the Port at Karachi became subject matter of litigation. However, the customs authorities were ordered by the Lahore High Court to allow release of the machinery/goods subject to submission of a Bank Guarantee in favour of the customs department by the Defendant No. 1. Consequently, the defendants submitted Bank Guarantee for Rs. 3.5 Million and got the goods released. At the time of final hearing, the Lahore High Court held that it has no territorial jurisdiction to decide the petition and returned it to Defendant No. 1.

2. The plaintiff vide letter dated 19th February, 2004 called upon the Defendant No. 1 to pay the amount. The Defendant No. 1 did not make the payment but filed a Constitutional Petition No. D-373 of 2004 in this Court at Karachi on 3rd March, 2004 and got stay order. This constitutional petition was later dismissed vide order dated 18th February 2005, the order was challenged in the Supreme Court then the matter was remanded to the Sindh High Court. On remand, this Court heard the petition and vide order dated 27th September 2006, set aside the amount claimed on account of liquidated damages observing that KPT may file a suit for recovery of liquidated damages (mentioned in the Bank Guarantee) within three months but did not set aside the amount of storage charges and demurrage. This Court in the order also extended the validity period of the Bank Guarantee.

3. The Defendant No. 1 has filed C.M.A No. 4332/2008, under Section 151 CPC in which it is inter alia contended that the divisional bench of this Court vide its judgment dated 27.9.2006 passed in C.P. No. D-373 of 2004 specifically directed that the suit for recovery of liquidated damages be filed within three months from the date of order. The Court had further observed in the order that if suit is not filed within a period of three months, then the order for extension of bank guarantee in respect of liquidated damages shall stand vacated automatically.

4. It is further averred in the application that instead of filing the suit in this Court, the plaintiff had filed a suit for recovery in the Banking Court when they had neither any relationship of borrower nor of a customer with the Defendant No. 3 which is essential for filing a suit sunder Financial Institution (Recovery of Finances) Ordinance 2001. The plaintiff negligently filed the suit in the Banking Court and also sought return of their own plaint through filing an application and the Banking Court itself did not do so of its own volition. The suit thus having been filed in the wrong jurisdiction due to plaintiffs' negligence and its re-presentation in this Court on 24.02.2007 does not make the suit a continuation of the original suit filed in the Banking Court on 21.12.2006. The suit was filed on 24.2.2007 in this Court i.e. about five months after the order dated 27.9.2006.

5. The plaintiff filed its counter affidavit in which it is inter alia contended that the suit was filed with bona fide intention in the Banking Court at Karachi on 21st December 2006, within the time granted by the High Court. The reason of filing the suit in the Banking Court was to recover bank guarantee which had become a subject matter in C.P.No. D-373 of 2004 filed by Defendant No. 1. The suit was filed and received by the Registrar, Banking Court-I, Karachi on 21st December 2006 and numbered as Suit No. 8 of 2007. The same remained there till 12th January 2007, whereafter it was sent to Banking Court No. II which received the case file on 12th January 2007, and renumbered it as Suit No. 3 of 2007. The Banking Court asked the plaintiff to file this plaint in the Sindh High Court after submitting an application for return of plaint. The Banking Court returned the plaint thereafter it was filed in this Court. The Defendant No. 1 had filed the written statement almost after one year on 26th January 2008 but did not take any plea that bank guarantee is liable to discharged due bona fide error of instituting the suit in Banking Court. It is further mentioned in the Courter affidavit that at this stage issues need to be settled for the trial in which the present controversy can be reduced in a separate issue. After adducing evidence, it will be determined whether the Bank Guarantee can be discharged or not. The plaintiff had filed the suit in the Banking Court keeping in view Section 7(4) of the Financial Institution (Recovery of Finance) Ordinance, 2001.

6. The plaintiff has also filed C.M.A No. 4332/2008, under Section 14(1) of Limitation Act in which it is prayed that the time spent in the Banking Court would be excluded for limitation purpose and the delay if any may be condoned in refilling the case in this Court. It is reiterated in the supporting affidavit that the Registrar, Banking Court-I Karachi received the plaint. The same remained there till 12th January 2007, thereafter, the Banking Court asked the Plaintiff to file this plaint in this Court after submitting an application for return of plaint.

7. In response to this application, the Defendant No. 1 has filed its counter affidavit and denied that suit was filed with bona fide intention in the banking jurisdiction. This Court in Constitutional petition specifically directed that the suit for recovery of liquidated damages be filed within three months. The Banking Court had no jurisdiction to entertain the suit of the plaintiff under Financial Institution (Recovery of Finances) Ordinance, 2001. It is obvious that the plaintiff negligently filed the suit in the Banking Court and then sought return of their own plaint through filing an application. The suit had been filed in the wrong jurisdiction due to plaintiffs' negligence. The instant suit has been filed for the alleged recovery of liquidated damages against the Defendant No. 1, therefore, filing suit in Banking Court was sheer negligence on the part of the plaintiff despite having knowledge of nature of alleged recovery which is a case of purely civil nature for which only this Court has jurisdiction.

8. Heard the arguments of learned counsel. The learned counsel for the Defendant No. 1 argued his application moved under Section 151 CPC on the sole ground that the recovery notice dated 19.2.2004 issued by the plaintiff was challenged in CP No. D-373 of 2004 which was decided on 27.9.2006 and the learned divisional bench of this Court held that the KPT cannot on its own enforce recovery of liquidated damages in spite of such stipulation in the bank guarantee. The KPT may file a suit for recovery of liquidated damages and the notice dated 19.2.2004 to the extent of the payment of liquidated damages was struck down with further clarification that striking down of the notice for recovery of liquidated damages shall not affect the right of KPT to file the suit for the recovery of liquidated damages. It was further ordered that the bank • guarantee shall remain in force and its validity was extended till final outcome of the suit of KPT. The divisional bench further observed that if the suit is not filed within three months, then the order for extension of bank guarantee in respect of liquidated damages shall stand vacated automatically. The learned counsel further argued that since the plaintiff had wrongly instituted the suit in the Banking Court and thereafter on its motion applied for return of plaint and then instituted the suit in this Court therefore, the period in which the suit had remained pending in the Banking Court and thereafter the plaint was returned and instituted in this Court will not amount a continuation of original proceedings and for the purposes of filing the suit, the actual date on which the suit was presented in this Court will be treated the actual date of institution of this suit which is much after three months granted by this Court, therefore, in all fairness, the plaintiff is entitled for the discharge of bank guarantee.

9. The learned counsel on the application moved under Section 14 of the Limitation Act by the plaintiff argued that the application is not maintainable as the plaintiff has failed to demonstrate that the suit in Banking Court was being prosecuted in good faith therefore, the plaintiff is not entitled for the benefit of exclusion of time of proceeding continued in a Court without jurisdiction.

10. Conversely, the learned counsel for the plaintiff argued that under a bona fide mistake and without any negligence on the part of plaintiff a suit was filed in the Banking Court under the bona fide belief that it has been rightly instituted under the provisions of Financial Institution (Recovery of Finances) Ordinance, 2001, and as soon as it came into the knowledge of plaintiff, the plaintiff had moved an application under Order VII, Rule 10 CPC in the Banking Court-II at Karachi in which it was clearly mentioned that under a bona fide mistake regarding the jurisdiction, the plaint may be returned to the plaintiff for presentation the same before the Court having jurisdiction. This application was moved on 20.2.2007 and on the same date, the learned Presiding Officer, Banking Court-II returned the plaint on 20.2.2007 and without wastage of any time, the suit was instituted in this Court on 24.2.2007. The learned counsel for the plaintiff further argued that the plaintiff was prosecuting the suit in the banking, Court with due diligence and immediately upon knowing the defect of jurisdiction, an application was moved under Order VII, Rule 10 CPC for the return of plaint, therefore, separate application has been moved under Section 14 of the Limitation Act with the prayer that the time consumed in the Banking Court may be excluded. In support of his arguments, learned counsel for the plaintiff relied upon the following case law:--

11. 1992 CLC 22 (Muhammad Sharif Khan v. Mst. Manzoora Begum). In this case, it was held that provision of S.14, Limitation Act, 1908, being a mandatory provision of law, its benefit could be given to a party concerned on a mere reference to the subject-matter contained therein which would be sufficient for the Court to consider being duty bound, even though S. 14, Limitation Act, 1908, was not specifically mentioned by the party concerned, there being no separate application for the purpose. Plaintiff having been pursuing proceedings before District Judge and High Court under bona fide mistake of law, period of limitation should have been reckoned afresh and delay should have been condoned.

12. 1997 CLC 768 (Muhammad Ali v. Imdad Hussain). In this case, the learned single judge of Lahore High Court held that question of pecuniary jurisdiction and trial by a wrong forum would amount to technical error justifying benefit of S.14, Limitation Act, 1908 to be extended to affected litigant. Plaintiff alone being not responsible for pursuing his remedy in wrong Court but defendant and Court equally were responsible for continuation of lis in wrong forum, plaintiff would be entitled to benefits of S.14, Limitation Act, 1908.

13. NLR 1996 CLJ 31 (Sher Muhammad, etc v. Ismatullah, etc). In this case, it was held that conditions which are necessary to exclude time consumed in proceedings before a wrong forum are: (i) that proceedings are founded on same cause of action, and (ii) that earlier proceedings were prosecuted in good faith in a Court which for want of jurisdiction, or other cause of a like nature did not entertain earlier proceedings. Court should not refuse benefit of S.14 merely because plaintiff does not file application under Section 14 or does not show any ground for exemption from limitation in plaint. Application under Section 14 can be considered by trial Court even if not specifically mentioned in plaint. Benefit of S. 14 is extended only where plaint returned for want of jurisdiction is filed in Court of competent jurisdiction. S. 14 would not apply when plaintiff instead of filing returned plaint files a fresh suit.

14. After hearing the prose and cons advanced by the learned counsel for the parties I have reached to the conclusion that the learned divisional bench in its order did not fix any limitation for filing the suit but only passed the order that if suit is not filed within a period of three months, then the bank guarantee furnished by the defendant would be automatically discharged. The condition for filing the suit within a period of there months was imposed merely for the reason that in the order, the learned divisional bench held that for the purposes of recovery of liquidated damages, the KPT has to file a suit for recovery of liquidated damages and since the period of bank guarantee was extended till adjudication of the suit, if any, therefore, in order to expedite the proceedings and to ensure the expeditious disposal, the learned divisional bench allowed three months time to KPT for filing the suit with further caution that if no suit is filed within the stipulated period, the banking guarantee will be discharged automatically.

15. The limitation for filing suits is governed by the Limitation Act and under Section 3 of the Limitation Act, it is clearly provided that subject to provisions contained in Sections 4 to 25 every suit instituted, appeal preferred and application made after the period of limitation, described, therefor by the first schedule shall be dismissed, although limitation has not been setup as a defence. There is unanimity of the view among the superior Courts that because of the mandatory nature of Section 3 of the Limitation Act, the Court before which any suit, appeal or application instituted, preferred or made is obliged to dismiss the same although the question of limitation may have not been setup as a defence.

16. In the present case, the plaintiff in paragraph 12 of the plaint has described the cause of action and it is stated that the cause of action had arisen on number of dates from time to time and has finally arisen on 27th September 2006 when this Court in constitutional petition observed that the plaintiff may file a suit for recovery of liquidated damages within three months of its judgment. In fact the cause of action was accrued to the plaintiff on 19.2.2004 when the letter was written to the Manager Allied Bank of Pakistan in which it was stated that as per set procedure, the bank guarantee cannot be returned unless KPT dues are cleared and in the same letter a request was made to ABL for the pay order in the sum of Rs.5,690,791/- including liquidated damages as on 20.2.2004. It is the same letter which was the subject matter of constitutional petition also in which the learned divisional bench while setting aside the demand of liquidated damages and extending the validity of bank guarantee, directed the plaintiff to file suit for recovery of liquidated damages within three months.

17. The plea of the plaintiff is that the suit for recovery in the Banking Court was filed under the bona fide belief but subsequently on its own application, the plaint was returned and suit was instituted in this Court. The Defendant No. 1 has not filed any application under Order VII, Rule 11 CPC with the prayer that the suit is barred by the limitation but in the application under Section 151 CPC only a plea has been taken that the bank guarantee is liable to be discharged as the suit was not filed in this Court within the stipulated period allowed by the divisional bench in its judgment.

18. The bone of contention between the parties is whether the bank guarantee should be discharged as the plaintiff failed to institute the suit within the stipulated time, on the contrary the plaintiff takes the position that the suit was filed in the Banking Court initially due to bona fide mistake and immediately upon returning the plaint the suit was rightly filed in this Court. The controversy between the parties cannot be resolved without adducing evidence as issue raised is a issue of mix question of law and fact in which both parties must be allowed to lead evidence and to prove whether the suit in Banking Court was filed due to bona fide mistake or the return of plaint by the baking Court will not be treated continuation of proceedings and limitation for filing suit will be considered or treated from the date of presentation of the plaint in this Court and during the period when the suit was pending in the Banking Court will not be counted. All this controversy requires evidence and in order to sift grain from chaff, it would be in the interest of justice that instead of outrightly discharging the bank guarantee, the Court should frame specific issue covering the present controversy. Since the matter is also being fixed for settlement of issues, therefore, in order to provide fair opportunity to both the sides, a separate issue may be framed.

19. The plaintiff and Defendant No. 1 both have filed their proposed issues and I could have easily settled the issues but three miscellaneous applications filed by Defendant Nos. 2 and 3 are pending adjudication including an application under Order IX, Rule 7 CPC for setting aside the order dated 24.3.2008 whereby the Defendant Nos. 2 and 3 were declared exparte therefore, prior settlement of issues the disposal of applications filed by Defendant Nos. 2 and 3 is also necessary. Since no body was present for the Defendant Nos. 2 and 3 on 2.3.2011, therefore, by consent the hearing of Civil Misc. Applications listed at Serial Nos. 2, 3, 5 and settlement of issues was deferred.

20. The bottom line of this discussion is that the controversy raised by the Defendant No. 1 in CMA No. 1291 of 2008 moved under Section 151 CPC cannot be decided without evidence. So far as the CMA No. 4332 of 2008 moved under Section 14 of Limitation Act is concerned, I am of the firm view that it only germane to the computing the limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceedings whether in a Court of first instance or in a Court of appeal against the defendant shall be excluded where the proceedings is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.

21. The Defendant No. 1 in his application or the written statement nowhere stated that the suit is barred by time but main reason for claiming the discharge of bank guarantee is that the plaintiff wrongly filed the suit in Banking Court and failed to file the suit in this Court within three months from the date of divisional bench judgment. The limitation for filing the suit of different nature and upon different causes of actions is always regulated and governed by means of the Limitation Act, therefore, an important characteristic of the case can not be lost sight that the learned divisional bench of this Court did not fix the cutoff point of limitation for filing the suit but only allowed an opportunity to commence the suit within a period of three months for the reason that in its judgment, the bank guarantee was extended, therefore, the time granted by the divisional bench can not be considered the time allowed under the Limitation Act for filing the suit.

22. Since I have already observed that the burning question cannot be decided without evidence. A matter of concern whether the suit was filed in the Banking Court with bona fide intention or with sheer negligence or the plaintiff was prosecuting the suit in the Banking Court in good faith. In all conscience, this is mix question of a law and fact, therefore, in my view, the plaintiff in all fairness is entitled to lead evidence to prove its bona fides and instead of technical knockout, it would be in the interest of justice to decide the case on its own merits. At this juncture, I would like to quote a landmark judgment reported in PLD 1963 Supreme Court 382 (Imtiaz Ahmed v. Ghulam Ali and others), in which the honorable Supreme Court has held that the proper place of

procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to certain extent, technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives it every person what is his.

1. The upshot of this discussion is that the controversy raised in the instant applications require evidence, therefore, both the parties at the time of settlement of issues may suggest specific issue regarding the present controversy which can be decided after leading the evidence. Both the applications are disposed of in the above terms.

(R.A.) Applications disposed of.

PLJ 2011 Karachi 32

Present: Muhammad Ali Mazhar, J.

MUHAMMAD BACHAL through his Attorney--Plaintiff

versus

PROVINCE OF SINDH through Home Secretary, Sindh Secretariat, Karachi and 12 others--Defendants

Suit No. 1542 & C.M.A. No. 10715, 11035, 11487 of 2008, decided on 25.5.2011.

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

----O. VII, R. 10--Suit for declaration, permanent injunction and recovery of damages--Return of plaint--Civil jurisdiction of High Court--Nature of original jurisdiction exercised by High Court in civil suits in Civil District of Karachi--Ordinary civil jurisdiction of High Court--Where the suit is pending before Court and it can be exercised at any stage of the suit even in appeal and or revision. [P. 44] A

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

----S. 16--Jurisdiction to try the suit on its original side--Property was situated outside territorial jurisdiction of High Court--Suit for determination or right to or interest in immovable property and for compensation for wrong to immovable property and recovery of movable property--Validity--Relief claimed in the suit and its nature falls within the purview of S. 16 of CPC which provides that such kind of suits shall be instituted in Court within limits of whose jurisdiction the property is situated. [P. 45] B

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

----S. 120--Jurisdiction of High Court--Applicability of Ss. 16, 17 & 20 of CPC--Though S. 120, CPC provides that Sections 16, 17 and 20 of CPC shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of S. 120 the jurisdiction of original side of High Court extended to all territories of Province of Sindh--No matter the property was situated at Karachi or not--Jurisdiction of High Court at original side is only limited and confined to Distt. of Karachi. [P. 45] C

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

----Ss. 16, 17, 20 & O. XLIX, R. 3--Original jurisdiction for Distt. of Karachi--Applicability of Ss. 16, 17 & 20 of CPC--Property was situated outside territorial jurisdiction of Karachi--Principles for institution of various suits was provided for other suits to be instituted where defendant resides or cause of action arises--Suit should have instituted where property is situated and claim of damages is not an independent relief--Such relief can also be easily claimed in same suit alongwith other relief. [P. 45] D

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

----O. II, R. 11--Suit to include the whole claim--Relinquish any portion of claim--Jurisdiction of Court--Cause of action--Not be vexed twice for same cause of action--Remedies of--Validity--Every suit would include the whole of claim which plaintiff was entitled to make cause of action but plaintiff might relinquish any portion of his claim in order to bring the suit within jurisdiction of any Court--If wrong was done within local limits of jurisdiction of one Court and defendant resides or carries on business, or personally works for gain, within local limits of jurisdiction of another Court, the suit might be instituted at the option of plaintiff in either of the Courts. [P. 46] E

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

----S. 20(c)--Cause of action--Jurisdiction to entertain the suit--Land was situated at Hyderabad and agreement was also executed at Hyderabad but defendant was residing at Karachi and part payment of sale was also made at Karachi--Question of jurisdiction--High Court in its original civil jurisdiction can entertain all suits where cause of action had arisen within its local limits of jurisdiction but did not consider an important aspect that jurisdiction of High Court on original side was only confined to Karachi district which cannot be extended to entire province of Sindh. [P. 46] F

2007 CLC 394 ref.

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

----O. VII, R. 10--Rejection of plaint--Pecuniary or territorial jurisdiction--Coram non judice--An adjudication by a Court without jurisdiction is a determination coram non judice and not binding--When Court lacks pecuniary or territorial jurisdiction, in such cases, plaint must be returned for presentation to proper Court and Court cannot pass any judicial order except that of returning the plaint. [P. 47] G

Mr. Muhammad Jamil, Advocate for Plaintiff.

Mr. Asif Ali Pirzada, Advocate for Defendant Nos. 3 to 9, 11 & 12.

Mr. Qazi Majid, A.A.G. for others Defendants.

Date of hearing 10.3.2011.

Order

The plaintiff has filed this suit for declaration, permanent injunction & recovery of damages with the following prayers:--

1. Declare that the action of defendants to bulldozed/demolish the six shops and school building consisted over six rooms constructed over the plot admeasuring about 8000 square feet in village Lal Bux Lund near Sindh Colony, situated at Deh Kur Hassan, Taluka & District Naushahro Feroze, owned by plaintiff is illegal, mala fide unlawful and unconstitutional.

2. Award damages of Rs.8 Million on account of demolishing of building to the plaintiff to be paid by the defendants jointly or severally in proportion of their personal liability.

3. Award damages of Rs. 10 Million to the plaintiff on account of his loss of reputation and honour for the defamatory act of the defendants to be paid by the defendants jointly or severally in proportion to their personal liability.

4. Order recovery of articles of various natures amounting to Rs. 1 Million from the defendants taken forcibly from the shops and building/school of the plaintiff or in lieu thereof pay Rs. 1 Million to the plaintiff.

5. Permanently restrained the defendants, their agents, assigns, employees' attorneys or any body acting on their behalf from interfering in the possession of the plaintiff or removing any articles/building material from the site or harassing the plaintiff and his family in any manner whatsoever.

6. The defendants also restrain from creating any third party interest in the suit property.

7. Any other relief this Honourable Court deems proper and appropriate.

8. Grant cost of the suit.

9. The facts forming the background of the present suit are that the plaintiff owns a plot admeasuring about 8000 square feet in village Lal Bux Lund near Sindh Colony, situated at Deh Kur Hassan, District Naushahro Feroze. The Defendant No. 3 is MPA from District Naushahro Feroze and Defendant Nos. 11 and 12 are political opponent of the plaintiff and his family. On 4.11.2008, suddenly the Defendants No. 3 to 12 along with Police and Rangers officials/Mobiles came at the land of the plaintiff and they called Mr. Zameer Vistro, the Principal of the School situated at the land of the plaintiff and issued threats to vacate the School/shops immediately otherwise they will destroy/ruin the property, thereafter, they demolished/bulldozed the plaintiff's property without notice and without permission/approval or intimation to the plaintiff.

10. It is further stated that the Defendants No. 3 to 8 on the instigation of the Defendants No. 11 and 12 served their political purposes at the cost of their posting. The cause of action arose to the plaintiff firstly on 4.11.2008 when the Defendants No. 3, 11 and 12 came at the suit property and issued threats to vacate the land and secondly on 5.11.2008, when the Defendants No. 3 to 12 along with their staff on police mobiles and bulldozers came at the land in question and bulldozed the property of the plaintiff.

11. The plaint was instituted in this Court on 11.11.2008 on which date, the Additional Registrar (O.S) raised the following office objection:

"It appears that the suit land is situated at Deh Kur Hassan Taluka and District Naushahro Feroze, as averred in para-1 of the plaint and the suit to be filed before the Court of learned Senior Civil Judge Naushahro Feroze."

1. The matter was placed in Court for orders on miscellaneous application along with aforesaid office objection on 12th November 2008. The learned Single Judge of this Court passed the orders on office objection as under:

"Learned counsel for the plaintiff submits that the suit property is ancestral property of the plaintiff and due to political victimization the defendants are trying to deprive him of his lawful rights in the said property. He states that though the suit property is situated in another District, but, in view of provisions of Section 120, CPC, this Court in exercise of its original civil jurisdiction, can entertain this suit. He has relied on the reported case of Wajid Hussain Faruqi v. Shahida Shahnawaz (2007 CLC 394). For the time being, the office objections are deferred and will be considered at the time of hearing of the injunction application, office is directed to register this suit and assign a number to it"

1. The record shows that since 12th November 2008 the office objections are intact and have not been disposed of by this Court. When the matter was fixed for hearing before me on 10.3.2011, the office objections raised by the Additional Registrar of this Court were listed at S. No. 1 and the learned counsel appearing for the defendants argued that before further proceeding in this matter, the office objection may be disposed off.

2. The learned counsel for the plaintiff has candidly admitted that the property in question is situated at District Naushahro Feroze and the prayer clauses are also showing that the plaintiff has sought the declaration that the action of defendants to bulldoze/demolish the six shops and school building constructed over the plot of the plaintiff situated at District Naushahro Feroze and also claimed the damages on account of demolishing the building and also recovery of articles of various nature amounting to Rs. 1 Million from the defendants which were forcibly taken away from the shops and building of the plaintiff. Besides above relief, the plaintiff has also prayed that the defendants be permanently restrained from interfering in the possession of the plaintiff or removing any articles and further be restrained from creating any third party interest in the suit property but conversely, the learned counsel for the plaintiff argued that notwithstanding the fact that the property is situated outside the territorial jurisdiction of original side of this Court, even then, this Court has jurisdiction to try the suit on its original side keeping in view Section 120 CPC which excludes the applicability of Sections 16, 17 and 20 CPC therefore, the learned counsel for the plaintiff argued that Section 120 CPC, in fact has enlarged the jurisdiction of this Court on original side rather than curtailing it. The learned counsel further averred that the plain reading of Section 120 CPC would show that this section does not in any way restrict the original civil jurisdiction High Court but it on the contrary enlarges the same. This section on the other hand removes the restrictions imposed under Sections 16, 17 and 20 CPC on the jurisdiction of the High Court. The accrual of cause of action even partly gives jurisdiction to this Court to proceed with the suit. He further averred that due to political rivalry and victimization, the plaintiff has filed the suit directly in this Court. In support of his arguments, learned counsel for the plaintiff has relied upon the following case law:--

(1) 2007 CLC 394 (Wajid Hussain Farooqui v. Shahida Shahnawaz).--In this matter, the learned Single Judge held that undisputedly the land is at Hyderabad and the agreement was also executed at Hyderabad. The plaintiff in para 12 of the plaint submits that Defendant No. 2 resides at Karachi and part payment of sale consideration was made at Karachi and this Court has jurisdiction to entertain the suit. Section 16 of CPC provides that suits relating to immovable properties to be instituted where subject matter situate subject to the pecuniary or other limitation prescribed by any law. Section 16 of CPC regulates the territorial jurisdiction of civil Courts. However, Section 120 of CPC provides that Section 16, 17 and 20 shall not apply to High Court in the exercise of its original civil jurisdiction. Since Sections 16, 17 and 20 is not applicable to High Court in exercise of its original jurisdiction the High Court can entertain all suits where cause of action had arisen within its local limits of jurisdiction.

(2) PLD 1975 Karachi 944 (Haji Razak v. Usman).--In this matter, the learned divisional bench of this Court held that the question before us is of the meaning of the words "ordinary original civil jurisdiction", and even the learned Advocate General, who was appalled by the possible loss of revenues to the State, had to concede that a suit pertains to the civil jurisdiction of a Court, and not to its criminal jurisdiction. Then, as to the word "original", it can only refer to the jurisdiction of a Court to decide a matter as a Court of the first instance, therefore this means that a suit decided by this Court is decided in the exercise of its original jurisdiction, just as a Constitutional Petition is decided in the exercise of its original jurisdiction. The learned Advocate General feebly pointed out that Waheeduddin Ahmed J, had taken a contrary view in the Firdous Trading Corporations' case on the basis of some Indian rulings. But this view must be rejected, as it is contrary to the judgment of the Supreme Court in Ahmed Khan v. The Chief Justice and Judges of the High Court of West Pakistan (1). Therefore, the controversy before us turns really on the meaning of the word "ordinary". The learned Advocate General bypassed this question and would not explain what the meaning of the word was, and, although it is obvious, I would quote the meanings from the Oxford Dictionary'. These are "regular", "normal"; "customary", "usual", "not exceptional". As, subject to rules of valuation and for the accrual of the cause of action, suits are filed as of right on the Original Side of this Court, it follows that they are filed in the regular, normal, usual and customary course. Hence my earlier observation that, the meaning of the said exception is very clear. But assuming, without conceding, that there is any ambiguity about this provisions, the section itself removes all possibility of doubt. Thus, the first clause of Section 4 refers to cases coming before a High Court "in the exercise of its extraordinary original civil jurisdiction". This expression, which is to be found in the Letters Patent of all the High Courts, refers to the power of such a High Court, "when the High Court shall think proper to do so", to transfer to itself a suit pending a Court subject to its superintendence. And because the wordextraordinary' refers to this special power, the word "ordinary" in the same section can only have reference to the jurisdiction of a High Court, which a plaintiff, filing a suit is entitled to invoke as of right.

(3) PLD 1964 (WP) Karachi 11 (West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd).--In this matter, the learned Single Judge of this Court held that Sections 16, 17 and 20 and Clause 12 of the Letters Patent prescribed the forum and the place for suing but these Sections do not apply to High Court. Section 5 of the High Court of West Pakistan Establishment Order, 1955 and also Section 8 of Sindh Act VII of 1926 do not prescribe the place of suing. Section 5 only saves the jurisdiction of Karachi Bench as exercised by it under Section 8 of Sindh Act, 1926. The jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained Sections 16, 17 and 20. The legislature could never have intended to take away the jurisdiction of West Pakistan High Court (Chief Court of Sindh) altogether, since the High Court got that jurisdiction as a place of suing through these sections.

(4) 1988 CLC 59 (Agricides (Pvt). Ltd. v. Ali Agro Supply Corporation Ltd).--In this case, the learned single Judge of this Court held that provisions of Section 120 CPC has in no way restricted jurisdiction of High Court but on contrary, enlarge the same by removing restrictions, imposed under Sections 16, 17 and 20 CPC on original jurisdiction thereof, High Court in exercise of its original civil jurisdiction could entertain all suits value whereof exceeded Rs. 1,00,000/-. Part of cause of action having accrued within jurisdiction of High Court and such Court having pecuniary jurisdiction to entertain claim of plaintiff, would as assume jurisdiction on original side.

(5) PLD 1994 Karachi 388 (Mirza Abdur Rahim Baig and another v. Abdul Haq Lashari and 03 others).--In this matter, the learned Single Judge held that the original civil, jurisdiction, exercised at the principal seat of High Court Karachi might or might not be the ordinary original civil jurisdiction of High Court, it, nonetheless and in spite of its special character, was original civil jurisdiction of the Court. Provision of Section 120 CPC, 1908, excludes applicability of Sections 16, 17 and 20 therefore, in exercise of that jurisdiction viz. original civil jurisdiction.

1. The learned AAG argued that the suit is not maintainable in this Court as the property is admittedly situated outside the territorial jurisdiction of this Court. The learned AAG invited attention to paragraph 18 of the plaint which pertains to the accrual of cause of action. He argued that it is an admitted position that the property in question is situated at Naushahro Feroze and it is also evident from the contents of the plaint that the cause of action accrued to the plaintiff in the district Naushahro Feroze, therefore, the plaint is liable to be returned to the plaintiff for institution in the competent Court at Naushahro Feroze. The learned counsel for the Defendant Nos. 3 to 9 & 11 adopted the arguments of learned AAG and submitted that the plaint is liable to be returned to the plaintiff.

2. After hearing the pros and cons of the matter, I have reached to the conclusion that the entire controversy is roaming around the jurisdiction of this Court at original side and the application and implication of Section 120 CPC read with Order XLIX, Rule 3 CPC. For the convenience and ready reference, Section 120 CPC and Order XLIX, Rule 3 CPC are reproduced as under:--

Section 120, C.P.C.

Provisions not applicable to High Court in original Civil Jurisdiction.--(1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely, Sections 16, 17 and 20.

Order XLIX, Rule (3) C.P.C

1. Application of rules.--The following rules shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:

(1) Rule 10 and Rule 11, clauses (b) and (c), or Order VII;

(2) Rule 3 of Order X;

(3) Rule 2 of Order XVI;

(4) Rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) Rules 1 to 8 of Order XX ; and

(6) Rule 7 of Order XXXIII (so far as relates to the making of a memorandum);

and Rule 35 of Order XLI shall not apply to any such High Court in the exercise of the appellate jurisdiction.

1. Before adverting to the aforesaid provisions of CPC, it would be advantageous to trace out the history of original jurisdiction exercised by the Karachi bench of Sindh High Court in Civil Suits in the Civil District of Karachi and for that history, paragraph 5 of the establishment of West Pakistan High Court Order 1955 is quite relevant which reads as under:--

Para 5 of the Establishment of West Pakistan High Court Order, 1955

"Original civil and criminal jurisdiction of the Bench at Karachi- Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under Section 8 of the Sindh Courts Act, 1926 (Sindh Act VII of 1926):

Provided that the Governor-General may by notification in the official gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers."

1. The establishment of West Pakistan High Court Order came into effect in the year 1955. The original civil jurisdiction of this Court was further strengthen and reinforced under Section 7 of Sindh Civil Courts Ordinance, 1962 which defined and clarified the jurisdiction of the Court of District Judge without the limit of value thereof excepting in the Karachi Districts where the original jurisdiction in Civil Suits and proceedings of the value exceeding 30 lacs of rupees shall be exercised by the High Court. Section 7 of Civil Court Ordinance, 1962 is reproduced hereunder:--

Section 7 of Sindh Civil Courts Ordinance, 1962

1. Original jurisdiction of the Court of District Judge. Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding thirty lacs of rupees shall be exercised by the High Court.

(N.B. By virtue of a latest amendment made under Section 7 of Sindh Civil Court Ordinance, 1962 on 2.3.2011, the pecuniary jurisdiction of the original side of this Court at Karachi has been enhanced from 30 lacs to 15 million).

1. The similar controversy was raised in another Suit No. 1122/2009 filed in this Court in which the land was situated at Thano Bula Khan, District Jamshoro. The objection was raised and the learned single judge returned the plaint. The order returning the plaint is reported in PLD 2010 Karachi 261, (Muhammad Naveed Aslam Versus Mst. Aisha Siddiqui). The order of the learned single judge was challenged in the High Court Appeal No. 62/2010 (Muhammad Naveed Aslam versus Mst. Aisha Siddiqui). The said HCA was heard and vide judgment dated 21.4.2001, it was dismissed and the order passed by the learned single in judge in Suit No. 1122/2009 was affirmed. Since, in the above HCA, the judgment was authored by me, therefore, I would like to rely the same in this judgment also and take the opportunity to quote the excerpt from my own divisional bench judgment.

2. In the divisional bench judgment, plethora of case law has been discussed including the judgments cited by the learned counsel for the plaintiff in this case. In fact, the case of Firdous Trading Corporation, Haji Razaq case and the case of Province of Sindh v. Haji Razaq reported in 1991 SCMR 920 are quite relevant to settle down the controversy involved in this case also. The main case on the subject is the Firdous Trading. Corporation, reported in PLD 1961 (W.P) 565 in which the learned Single Judge of this Court traced out the history and held that the Karachi Bench of Sindh High Court is functioning or exercising the powers and performing the duties as the principal civil Court of original jurisdiction in the civil district of Karachi and further held that the original civil jurisdiction in respect of civil suits in Karachi was not conferred on the High Court as a whole but only to the bench at Karachi. The nature of this jurisdiction is clarified under para 7 of part A of the Schedule of Karachi Courts Order, 1956. The scheme of the establishment of West Pakistan High Court Order, 1955 clearly shows that as a special measure Karachi bench was allowed to continue to perform the duties of the principal civil Court of original jurisdiction in Karachi which is a special jurisdiction and by no stretch of arguments can be considered the ordinary original civil jurisdiction of the West Pakistan High Court. Though in the case of Firdous Trading Corporation, the main dispute was pertaining to the payment of Court fee as the appellant only paid a Court fee of Rs.4 and on the office objection, the appellant in that case contended that since it is letters patent appeal against the judgment passed in exercise of the ordinary civil jurisdiction of the Court, Section 4 of the Court fees Act, does not apply and no Court fee was payable thereon but while deciding the question of Court fee the learned single Judge discussed in detail the nature of jurisdiction being exercised by this Court at its original side at Karachi.

3. The main issue before the learned Single Judge in Firdous Trading Corporation case was to determine what is the nature of original jurisdiction exercised by the Karachi Bench of Sindh High Court in Civil Suits in the Civil District of Karachi. Is it the Ordinary Civil jurisdiction of the High Court or some other jurisdiction? which was only dependent upon the interpretation of paragraph 5 of the Establishment of West Pakistan High Court Order, 1955 in which it is clearly provided that the bench of High Court at Karchi shall have the same original civil jurisdiction for the civil District of Karachi. Similar question was raised in case of Haji Razaq reported in PLD 1975 Karachi 944 in which the learned Divisional Bench of this Court disagreed with the judgment passed in the Firdous Trading Corporation case and took the contrary view. The case of Haji Razaq was based on the office reference in High Court Appeal 61 of 1974 in which the learned Division Bench held that Court fees act is not applicable to 3 unnumbered suits i.e. Suit No. Nil/74, M/s. Haji M. Zakaria and Co. V. Pakistan, Suit No. Nil/75 Hameedul Haq Ch. V. National and Grindlays Bank and another and Suit No. Nil/75, Burney States and others v. Mst. Gul Bibi. The office objection in these suits was rejected. The reference was made to resolve the conflict of authority between the judgment in the Firdous Trading corporation case and the judgment in W.P.I.D.C. v. Fateh Textile Mill and the learned divisional bench held that the view taken in the Firdous Trading Corporation case was not correct and the view taken in W.P.I.D.C's case was affirmed. Though the decision delivered in Firdous Trading Corporation case was overruled by the Divisional Bench of this Court but on appeal filed by the Province of Sindh in case of Haji Razaq, the honorable Supreme Court upheld and affirmed the decision of Firdous Trading Corporation case reported in PLD 1961 Karachi 565. In another case reported in PLD 1991 SC 985 (Mian Akbar Hussain v. Mst. Aisha Bai and others), the question was raised whether in execution of decree passed by High Court of Sindh in Civil Suits Article 181 or 182 of the Limitation Act, will apply or Article 183 will be applicable. The honorable Supreme Court held that as is obvious from the judgment reported in 1991 SCMR 920 whereby it was held that the view taken in Firdous Trading Corporation case was correct and consequently the judgment in Razak v. Usman case was set-aside, it was held that while entertaining and trying civil suit, the High Court of Sindh is exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of High Court. Article 183 provides a period of limitation of six years for enforcing a judgment and decree or order from any High Court in the exercise of its ordinary original civil jurisdiction and in the light of the judgment quoted above Article 183 cannot be applied, therefore, Article 181 will be applicable and in which the period of limitation is three years. Finally it was held in this case that the execution application should have been filed within a period of three years from the date of judgment and decree.

4. Though in this judgment reported in PLD 1991 SC 985, it is printed that the Firdous Trading Corporation case was not a correct law and the case of Haji Abdul Razaq v. Usman reported in PLD 1975 Karachi 954 was said to have been approved but in the body of the judgment, in fact, the honorable Supreme Court relied upon a judgment reported in 1991 SCMR 920, "Province of Sindh v. Haji Razaq" in which it was held that the judgment in Firdous Trading Corporation case was correct and consequently the judgment in Razaq v. Usman was set aside.

5. The powers conferred under Order VII, Rule 10 can only be exercised where the suit is pending before the Court and it may be exercised at any stage of the suit even in appeal and or revision. The bare look of the plaint in this case undisputedly shows that the plaintiff instituted the suit for the determination of the right to or interest in the immovable property and for compensation for wrong to immoveable property and recovery of movable property. The relief claimed in the suit and its nature falls within the purview of Section 16 of CPC which provides that such kind of suits shall be instituted in the Court within the limits of whose jurisdiction the property is situated Though Section 120 CPC provides that Sections 16, 17 and 20 shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of this section the jurisdiction of original side of this Court extended to all territories of Province of Sindh no matter the property in question is situated at Karachi or not. The jurisdiction of this Court at original side is only limited and confined to the districts of Karachi and if the arguments of the learned counsel for the plaintiff is accepted to be true, it will tantamount to the extension of original side jurisdiction of this Court to the entire province of Sindh subject to its pecuniary limits of jurisdiction.

6. The non applicability of Sections 16, 17 and 20 read with Order XLIX, Rule 3 is only applicable and limited to the original side jurisdiction for the districts of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then Sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under Sections 16 to 19 CPC whereafter Section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter Section 16 is applicable therefore, the suit should have instituted where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit along with other reliefs. The honorable full bench of this Court in case "Rimpa Sunbeam co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation" reported PLD 2006 Karachi 444 already held that Jurisdiction of Sindh High Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, the jurisdiction of Sindh High Court to try Civil Suits is confined to matters where the pecuniary value of the subject-matter exceeds Rs.30,00,000/-. All other suits are liable to be tried by the District Courts. In another judgment reported in 2005 MLD 1506 in the case of (Murlidhar P. Gangwani v. Engineer Aftab Islam Agha), the learned divisional bench held that territorial jurisdiction of the Court cannot be extended or curtailed on compassionate grounds or looking to the financial position of a party and the expenses which he might have to incur in pursuing the litigation before the proper Court having jurisdiction in the matter. Further, the question of maintainability of a suit with reference to the territorial jurisdiction, vis-a-vis cause of action accrued to a party for institution of such suit, is to be judged on the basis of averments made in the plaint.

7. It is pertinent to state that Order II, Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Section 19 of CPC provides that where a suit is for compensation for wrong done to the person or to the moveable property, if the wrong was done within the local limits of jurisdiction of one Court and the defendant resides or carries on business, or personally works for gain, within the local limits of jurisdiction of another Court, the suit may be instituted at the option of plaintiff in either of the said Courts. Order, II Rule 2 C.P.C is devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party. This provision is based on the principle that the defendant should not be vexed twice for the same cause of action. It is penal in nature and precludes the plaintiff to sue for the portion of claim or remedy so omitted.

8. The case law relied upon by the learned counsel for the plaintiff are distinguishable. In the case reported in 2007 CLC 394; the learned single judge of this Court held that undisputedly the land is situated at Hyderabad and the agreement was also executed at Hyderabad but the defendant was residing at Karachi and part payment of sale consideration was also made at Karachi therefore, it was held that this Court had jurisdiction to entertain the suit. The learned Single Judge only considered the Section 20(c) CPC and held that this Court in its original civil jurisdiction can entertain all suits where cause of action had arisen within its local limits of jurisdiction but did not consider an important aspect that the jurisdiction of this Court on original side is only confined to Karachi district which cannot be extended to the entire province of Sindh. In the next case reported in PLD 1975 Karachi 944, the learned divisional bench of this Court disagreed with the judgment passed in the Firdous Trading Corporation case and took the contrary view but on appeal filed by the Province of Sindh in case of Haji Razaq, the honourable Supreme Court upheld and affirmed the decision of Firdous Trading Corporation. In the case reported in PLD 1964 W.P Karachi 11, the learned single Judge held that this Court at Karachi has got jurisdiction to entertain the suit irrespective of the fact that the same could be filed in another district. In this matter the property in dispute was situated at Tando Muhammad and Hyderabad, outside the jurisdiction of this Court. The learned counsel appearing for the plaintiff in that case argued that the suit was not for possession in the strict sense of the term but was for resumption of management by the plaintiffs handed over to them by the defendants and in order to distinguish the facts of the case he further referred to an agreement which was executed at Karachi and the defendant company had also an office and carried on business at Karachi. In another case cited by the learned counsel for the plaintiff is reported in 1988 CLC 59, the facts were distinguishable as this was a simple suit for recovery and the agreement between the parties was executed at Karachi for the supply of pesticides by the plaintiff to the defendants which had to become effective on the defendants furnishing irrevocable insurance guarantee accepted to the bankers of the plaintiff. In the next judgment reported in PLD 1994 Karachi 388, the cause of action had accrued at Sanghar in a suit for damages for wrongful detention. Though the learned Single judge of this Court discussed in detail Sections 16, 17, 19, 20 and Order VII, Rule 10 CPC but in the end the suit was sent to the Court of Civil Judge Sanghar. In this case, the learned single Judge further observed that surely Section 24 CPC is very much on the statue book for seeking transfer of the suit, if warranted. But that can only be if and when the suit comes to pend in a Court of competent jurisdiction.

9. The provisions of Order VII, Rule 10 are mandatory. An adjudication by a Court without jurisdiction is a determination coram non judice and not binding. When the Court lacks pecuniary or territorial jurisdiction, in such cases, the plaint must be returned for presentation to the proper Court and Court cannot pass any judicial order except that of returning the plaint. The cause of action has been described by the plaintiff in paragraph 18 of the plaint which clearly shows beyond any shadow of doubt that no cause of action accrued to the plaintiff within the territorial limits and jurisdiction of this Court.

10. For the foregoing reasons, the plaint is returned to the plaintiff for institution before the Court of appropriate jurisdiction.

(R.A.) Order accordingly.

PLJ 2011 Karachi 48 (DB)

Present: Gulzar Ahmed & Shahid Anwar Bajwa, JJ.

HIDAYATULLAH--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information Technology and Telecommunications, Islamabad and 2 others--Respondents

C.P. No. D-1107 of 2010, decided on 16.5.2011.

Sacked Employees (Re-instatement) Act, 2010--

----S. 4(a)(b)--Employment of Telecom Foundation--Non-statutory rules of organization--No stipulation of any period of contract in letter of appointment--Question of--Maintainability--When one was terminated from employment before or after expiry of contract period--Petitioner categorically denied that he signed any other document in respect of term of contract and corporation failed to produce any document--Petitioner was entitled to be re-instated in service in accordance with provisions contained in S. 4(a) of Act, 2010--Petitioner was also consequently entitled to other benefits provided by Sacked Employees (Re-instatement) Act--Petitioner was ordered to be reinstated in service within a period of two weeks--Appeal was allowed. [Pp. 51 & 52] A, B & C

2010 PLC 323 & PLD 2011 SC 132.

Mr. Aziz-ur-Rehman Akhund, Advocate for Petitioner.

Mr. Muhammad Qasim, Standing Counsel for Respondent No. 1.

Mr. Sanaullah Noor Ghauri, Advocate for Respondent No. 2.

Date of hearing: 11.5.2011.

Judgment

Shahid Anwar Bajwa, J.--For reasons to be recorded later this constitutional petition was allowed by short order dictated in open Court on 11.05.2011. The following are reasons of the same.

1. Petitioner was taken in employment of Telecom Foundation, a project of Pakistan Telecommunication Company Ltd., vide order dated 14.10.1996 "on daily waged contract basis". No period of contract was specified in the letter. It was further stated that it was to be "according to the terms and conditions already agreed and signed by you" (present petitioner). Pakistan Telecommunication Company Ltd. transferred and posted the petitioner and gave him training also. Thereafter he was attached and posted with AEP Digital Sibi. However, on 29.12.1996 Respondent No. 2 terminated contract with effect from 29.12.1996. This Constitutional Petition has been filed and the following prayers have been made:--

(A) To declare that Petitioner qualifying the ingredients of Sacked Employees (Reinstatement) Ordinance, 2009 and so also Sacked Employees Reinstatement in Service Ordinance, 2010, is entitled to his reinstatement in service with all back benefits, under the said Ordinances and the Respondents inactions to give effect to the said Ordinances, in the case of Petitioner, is illegal, ultra virus, discriminatory and against the principle of natural justice and equity.

(B) To direct the Respondents to order reinstatement of the Petitioner into service with all back benefits under the Sacked Employees (Reinstatement) Ordinance.

1. Learned counsel for petitioner submitted that petitioner falls within the definition of `Sacked Employee' as given in Section 2(f) of the Sacked Employees (Re-instatement) Act, 2010, (hereinafter referred to as the Act, of 2010). Therefore petitioner is entitled to reinstatement and benefits under the Act, of 2010.

2. Mr. Sanaullah Noor Ghauri learned counsel for the Respondent No. 2 firstly, submitted that that Pakistan Telecommunication Company Ltd. has no statutory rules and, therefore, writ petition is not maintainable. In this regard he referred to Ejaz Ali Bughti v. P.T.C.L. and others (2008 PSC 1229). Learned counsel further submitted that employment of petitioner was terminated in 1996 and he has filed this petition in 2010. Therefore, petition very seriously suffered from laches. He relied upon a judgment of this Bench of this Court passed in case of Masroor Hussain and 45 others v. Chairman, Pakistan International Airlines and another (2010 PLC [C.S.] 630). However, Mr. Ghauri frankly conceded that in terms of definition of `Sacked Employee' as far as dates are concerned, the petitioner falls within those dates.

3. We have considered submissions made by the learned counsel and have also gone through the record as well as case law cited at the bar.

4. As far as status of Pakistan Telecommunication Company Ltd. is concerned, this Court in case reported as Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323) has held the PTCL is a person within contemplation of Article 199 of the Constitution. It was further held that PTCL does not have statutory rules and writ petition by the employees of PTCL would not be maintainable in respect of any matter governed by such non-statutory rules. Judgment by this Court was upheld by the Supreme Court in the case of Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132). Therefore, the question that PTCL is a person within the contemplation of Article 199 of the Constitution admits of no doubt.

5. Petitioner in this petition has not claimed any right under his terms and conditions of employment or non-statutory rules of organization. The right that he has claimed is in terms of provision contained in the Sacked Employment (Re-instatement) Act, 2010. Therefore, this aspect is governed by provision of a Statute and in accordance with law principle laid down by this Court in the case of Shahid Mahmood Usmani v. House Building Finance Corporation through Managing Director and others (2010 PLC [C.S] 1360) writ petition is held to be maintainable.

6. As far as question of laches argued by learned counsel for Respondent No. 2 is concerned, suffice it to observe that such right has been given to the petitioner for the first time by the Sacked Employees (Re-instatement) Ordinance, promulgated in 2009 and this Ordinance, has been converted into the Act, of 2010. Therefore laches are not attracted to the case of petitioner.

7. Section 4 of the Act, provides as under:--

"4. Re-instatement of employees in service and regularization of employees' service.--Notwithstanding anything contained in any law, for the time being in force, or any Judgment of any tribunal or any Court including the Supreme Court and a High Court or any terms and conditions of appointment on contract basis or otherwise, all sacked employees shall be re-instated in service and their service shall be regularized with effect from the date of enactment of this Act, in the manner provided as under, namely:--

(a) a sacked employee appointed on permanent or temporary basis or regular or ad hoc basis or otherwise in any corporation or Government service against a regular or temporary post shall be re-instated and regularized in regular service of the employer on one scale higher to his substantive scale, grade, cadre, group, post or designation, whatever the case may be, held by the sacked employee at the time of his dismissal, removal or termination from service or at the time forced golden hand shake was given to the sacked employee;

(b) a sacked employee appointed on contract basis against a regular or a temporary post and dismissed, removed or terminated from service before or after expiry of the contract period and whether or not he was again appointed and allowed to complete the period of contract, irrespective of the fact that whether a letter or notification for dismissal, removal or termination of the sacked employee's service or expiry of the contract was issued or not, shall be re-instated and regularized against a regular post of the same scale, grade, cadre, group, post or designation, whatever the case may be, in regular service of the employer.

1. The relevant provision in the letter of the appointment has been quoted above. There is no stipulation of any period of contract in the letter of appointment issued to the petitioner. Therefore, Clause "(b)" of Section 4 is not applicable to petitioner because it is applicable when one is terminated from the employment "before or after expiry of the contract period." Moreover the petitioner categorically denied that he signed any other document in respect of term of contract and respondent corporation failed to produce any such document.

2. Since no period of contract has been specified in the letter dated 14.10.1996 case of the petitioner has to be dealt with not in accordance with Section 4(b) but in accordance with Section 4(a) as the latter deals with employment on "regular or ad hoc basis or otherwise". Therefore, petitioner is entitled to be re-instated in service in accordance with provisions contained in Section 4(a) of the Act, 2010. Petitioner is also consequently entitled to other benefits provided by the Act, 2010. Somewhat similar constitutional petition has been allowed by this Court in the case of Abdul Jabbar Mastoi and others v. Federation of Pakistan, through Secretary, Ministry of Information Technology & Telecommunications, Islamabad and others (C.P. No. D-605/2010) decided on 06.03.2011.

3. Result of the above discussions is that this petition is allowed and petitioner is ordered to be re-instated in service in accordance with Section 4(a) of the Act, of 2010 within a period of two weeks of the date of this judgment. It is also ordered that petitioner is to be paid benefits according to the provisions of the Act, of 2010.

(R.A.) Petition allowed.

PLJ 2011 Karachi 52

Present: Muhammad Ali Mazhar, J.

NORMEEN SHAFI--Applicant

versus

AMJAD SHAFI and 5 other--Respondents

C.R.A. No. 27 and C.M.A. No. 146 of 2007, decided on 16.5.2011.

Cause of action--

----Right to judgment--Term cause of action refers to every fact which if traversed it should be necessary for plaintiff to prove in order to support his judgment and which if not proved, give defendant a right to judgment. [P. 58] A

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

----S. 20(c)--Cause of action arises in whole or in part--Essential facts which was necessary to prove--Suit can be filed in a Court within local limits of whose jurisdiction cause of action arises in whole or in part and in cases covered by S. 20, CPC the suit can be instituted where even a part of cause of action arises regardless of place of residence of defendant. [P. 58, 59] B

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

----Ss. 16(d) & 17 and O. VII, R. 10--Suit for declaration, cancellation accounts--Executed transfer deeds--Plaint was returned without notice--Territorial jurisdiction of trial Court--Courts below failed to exercise its jurisdiction and without assigning any valid reason passed the order for returning the plaint--Validity--Trial Court had failed to consider that plaintiff was claiming her share which was a private limited company and not in Tures Motel--When property in which plaintiffs claims her share was situated at Islamabad and defendants were resident of Islamabad, therefore, suits would have been filed at Islamabad--Concurrent findings of facts were not sacrosanct and can be examined in light of record of the case and if found suffering from legal infirmities and jurisdictional errors, can be declared as illegal without jurisdiction, eventually, can be set aside--If revisional Court finds any violation of provision of law or ignorance of law by Court then it is vested with authority to set aside concurrent findings and substitute its own findings. [P. 59 & 61] C & J

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

----S. 20--Cause of action--Claim from Court in whose jurisdiction head office of company was situated--Validity--Corporation can be said to carry on business at head office or at the place where it has a branch in respect of a cause of action which arises, wholly or in part, at the place where branch office is situated--If no part of action arises at the place of branch office, the corporation cannot be said to transact business at that place. [P. 60] D

Cause of action--

----Relief was required to prove for obtaining judgment--Not only the party seeking relief should have a cause of action when transaction or alleged act is done but also at time of institution of claim. [P. 60] E

Right to relief--

----When an action is brought--No right to seek remedy when right was infringed--Validity--Not only a right has been infringed in a manner to entitle to a relief but also that when he approached the Court the right to seek relief was in existence. [P. 60] F

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

----S. 20, O. VII, R. 10--Return of plaint--Cause of action--Question--Whether cause of action wholly or in part arose within territorial of Court--Validity--All classes of suits could be filed in a Court within local limits of whose jurisdiction the cause of action arose either wholly or in part. [P. 60] G

Cause of action--

----Every act which if traversed should be necessary for plaintiff to prove in order to support his right to judgment and if no proved, would give defendant a right to judgment and for that purpose only facts stated in plaint are to be considered to determine whether those facts state cause of action or not. [P. 61] H

Words and Phrases--

----Cause of action--According to Black's Law Dictionary, Sixth Edition, cause of action means the fact or facts which give a person a right to judicial redress or relief against another. [P. 61] I

Mr. Sundardas, Advocate for Applicant

Mr. Azhar Mehmood, Advocate for Respondents No. 2 to 5.

Date of hearing: 01.04.2011

Order

This Revision Application is brought to challenge the judgment passed by the VIth Additional District Judge Hyderabad on 6.12.2006 in Misc. Civil Appeal No. 70 of 2005 and the order passed by Vth Senior Civil Judge Hyderabad on 22.11.2005 in F.C Suit No. 93 of 2005, whereby, the plaint was returned.

1. The facts forming the background of the case are that applicant/plaintiff filed a Suit for Declaration, cancellation, Accounts and Permanent Injunction against the respondents/defendants on the ground that she has 9% share holding (434 shares) in the Defendant No. 2, which is a private limited company, having its registered office at Hyderabad within the territorial jurisdiction of Trial Court. In January 2004, the Respondent/Defendant No. 1 who is real brother of applicant offered to purchase the shares of the applicant/plaintiff and delivered four cross cheques of Rs.12 lacs as part payment of the shares and obtained signature of applicant on blank papers.

2. The Respondent/Defendants No. 3, 4 and 5 are not known to the applicant. The applicant never entered into any agreement to sell with the Respondents No. 3 to 5. The Respondent No. 1 while betraying the trust of applicant and being in collusion with Respondents No. 3 to 5 prepared transfer deeds of 434 shares of the Respondent No. 2, possessed/owned by applicant in favour of Defendants No. 3 to 5 on the blank forms and papers on which the Respondent No. 1 had obtained the signatures of applicant. In the suit, the applicant/plaintiff had prayed as under :--

(i) Declare that the plaintiff is the lawful owner of 434 shares of the Defendant No. 2 company.

(ii) Transfer deeds of 434 shares of plaintiff in favour of Defendants 3, 4 and 5 may be adjudged void and may be ordered to be delivered up and cancelled or in the alternate the Defendants 1, 3, 4 and 5 do pay the balance amount after ascertaining the correct value of the shares of plaintiff.

(iii) Direct the defendants to declare all the assets in the name of the defendants and to give complete accounts of the Defendant No. 2 i.e. Sindh Travel Services (Pvt.) Ltd. for the last five years and make the payment of the amounts due to plaintiff.

(iv) Issue interim and ad interim injunction restraining the defendants from encumbering, disposing off or creating any third party interest in all the assets of the Defendants No. 2 i.e. Sindh Travel Services (Pvt.) Ltd. particularly Tures Motel on Plot on Muree Road Islamabad in any manner whatsoever.

(v) Award any other relief deemed fit.

(vi) Award costs.

1. On 25.10.2005, the applicant appeared in Court and verified the plaint on oath and sworn her affidavit. The learned Trial Court heard the advocate for plaintiff on the point of jurisdiction and fixed the matter for orders. It is further averred that the applicant's counsel approached many times to the trial Court for knowing the order, ultimately, the trial Court announced the order on 22.11.2005 and returned the plaint to applicant. The applicant filed Misc. Appeal which was also dismissed.

2. The Respondent No. 5 filed his counter affidavit in this revision application in which it was inter alia contended that the plaint was returned without notice to him and Respondent Nos. 2 to 5. He denied all the allegations and also filed certain documents which were allegedly executed by the applicant. According to the Respondent No. 5, the applicant sold and transferred her shares to the Respondent No. 3 to 5 as far back as 30.1.2004 and also received the payment through pay orders at Islamabad and after receiving the payments, the applicant executed Transfer Deeds. After purchase of the shares, the Respondent No. 5 along with Respondent Nos. 3 and 4 applied for the transfer of shares and the shares were transferred in their names. At the time of transfer of shares, the applicant also wrote letters to Chairman NAB, Deputy Registrar Companies, SECP, Chairman CDA, Member Income Tax, All Pakistan Women Associations, Hyderabad, Secretary Hyderabad press Club and informed that all disputes had been settled and she withdrew all her letters previously written by her. Since January 2004, the applicant is neither shareholder nor Director even not a member of the company.

3. On 16.3.2005, the applicant had filed a winding up petition in this Court but the same was withdrawn on 1.2.2006. All the documents were signed at Islamabad, the Respondent resides at Islamabad, the cause of action, if any accrued at Islamabad and fraud as alleged, if any committed at Islamabad by the Respondent No. 1, hence the Trial Court had no jurisdiction to entertain the suit and it was rightly returned.

4. The learned counsel for the applicant argued that both the Courts below have ignored the relevant law and the facts of the case. The office of the Respondent No. 2 is situated at Hyderabad which is within the territorial jurisdiction of Trial Court. He further argued that trial Court failed to exercise its jurisdiction and without assigning any valid reason passed the order for returning the plaint and the learned appellate Court has also failed to consider the law and affirmed/upheld the order passed by the trial Court.

5. He further argued that the prayer clause is not in respect of property which is situated outside the jurisdiction of the learned Trial Court. The provisions of Sections 16(d) and 17 CPC are not applicable to the facts of the case. The learned Appellate Court committed illegality in applying the said provisions and dismissing the appeal on its erroneous assumptions. The suit of the applicant was in respect of 434 shares of Defendant No. 2 Company which has its registered office at Hyderabad.

6. The learned counsel appearing for the Respondents No. 2 to 5, reiterated the pleas raised in the counter affidavit. He argued that the applicant has already sold out and transferred her shares and also received the payment and thereafter, she had executed Transfer Deeds. Since January 2004, the applicant is neither shareholder nor Director even not a member of the company. He further averred that all the documents were signed at Islamabad, the cause of action, if any accrued at Islamabad, hence the Trial Court had rightly returned the plaint and the learned appellate Court has also rightly affirmed and upheld the order. In support of his arguments, he relied upon following case laws:--

7. 2005 CLC 1659 (United Distribution Pakistan Ltd. v. Al-Syed Agrochemicals Services and others). In this case the learned Single Judge of this Court held that suit to be instituted where defendants reside or cause of action arises. Plaintiff according to S.20 CPC, has three options to sue, (a) where the defendant or each of the defendants actually resides, caries on business or personally works for gain or (b) in case there are more than one defendants any of them resides, carries on business or personally works for gain or (c) at the place where the cause of action, wholly or in part, arises. Where the defendants are neither residing in place at "K" where the plaintiff lived, nor they are carrying on business or having their sub-office at place "K", suit can be filed where the cause of action wholly or in part, arises. Explanation II of S.20, CPC is not applicable to such a case.

8. 2010 CLC 389 (Messers Apollo Textiles Mills Ltd. vs. Mian Farhat Iqbal). In this case, the learned Single Judge of this Court held that plaintiff filed a suit for recovery of money at place "K" where defendant was neither residing nor he was doing any business. Agreement relied upon by plaintiff against defendant was not arrived at place "K" nor any payment was made there. Plaintiff filed suit at place "K" on the basis of issuance of notices to defendant and also issued delivered/gate passes where his registered office was located. In determining whether any part of cause of action had accrued, averments of plaint were to be read with relief sought by a party in the suit but such reading of plaint should be meaningful and rationale to the controversy. Issuance of alleged notices to defendant and preparation of delivery/gate passes from registered office of plaintiff at place "K" could not be considered as accrual of cause of action to plaintiff within territorial limits of Court at place "K". High Court returned the plaint to plaintiff for presenting the same to the Court in which suit should have been instituted. Application was allowed accordingly.

9. After hearing the pros and cons of the matter, I have reached to the conclusion that in the plaint the plaintiff/applicant has only claimed the ownership of 434 shares of the Defendant/Respondent No. 2 with the further prayer for cancellation of transfer deeds or in alternate the Respondent Nos. 1, 3, 4 and 5 be directed to pay the balance amount after ascertaining the correct value of the shares. The applicant has also prayed for the declaration against the defendants to declare all the assets in the name of defendants and to give complete account of the Defendant/Respondent No. 2 i.e. Sindh Travel Services (Pvt.) Ltd. for the last five years and make the payment of the amount due to the plaintiff/applicant. It is clearly transpiring from the contents of the plaint that the plaintiff/applicant had only claimed the declaration as to her ownership of the shares and permanent injunction but no declaration or any right was sought for Tures Motel which is situated at Islamabad and owned by Respondent No. 2, the learned trial Court suo moto returned the plaint without issuing notices to the defendants and the main cause of returning the plaint as mentioned in the order is as under:--

"After perusal of plaint it reveals that the shares 434 of plaintiff in Tures Motel on plot admeasuring 10000/-sq.yards near Rawal Dam Muree Road Islamabad free from all encumbrances is owned and possessed by Defendant No. 2. The market value of the property in the year 2003 was more than Rs. 100 million is situated Muree Road Islamabad the Province Punjab, therefore, this Court has got no jurisdiction to entertain or proceed with this matter."

1. On the basis of above findings the plaint was returned keeping in view the provision of Order VII, Rule 10 CPC. Similarly the learned Appellate Court relied upon Section 16(d) and Section 17 CPC and dismissed the appeal on the basis of following findings:

"In the instant suit the suit property as mentioned in Para-2 of the plaint in Suit No. 93 of 2005 is situated near Rawal Dam Muree Road Islamabad, in which the plaintiff/appellant claims her shares, which according to the contents of plaint were sold by the Defendant/Respondent No. 1 in favour of Defendants/ Respondent Nos. 3 to 5, who are shown in the plaint as residents of Islamabad. In the circumstances, when the property, in which the plaintiff/appellant claims her shares, is situated at Islamabad and the Defendants/Respondents No. 1 to 5 are residents of Islamabad, which is not within jurisdiction of trial Court. The suit should have been filed at Islamabad."

1. The term cause of action refers to every fact which if traversed it should be necessary for the plaintiff to prove in order to support his judgment and which if not proved, give the defendant a right to judgment. It is the bundle or totality of essential facts which is necessary for the plaintiff to prove before he can succeed. In accordance with clause "c" of Section 20 of CPC, the suit can be filed in a Court within the local limits of whose jurisdiction, the cause of action arises in whole or in part and in cases covered by this section, the suit can be instituted where even a part of the cause of action arises regardless of the place of residence of the defendant. It is an admitted fact that the head office of Respondent No. 2 is situated at Hyderabad and in Paragraph 12 of the plaint in question, the plaintiff has asserted that the Defendant Nos. 1 and 2 have failed to pay the rightful share of the rents, profits, dividends and income due to the plaintiff since July 2001 and they are liable to account for the same.

2. In Paragraph 15 of the plaint, the plaintiff has described the cause of action which allegedly accrued to the plaintiff after 1st July 2001, when the plaintiff was denied her rightful share in the profits of Defendant No. 2 and in prayer clause III, the plaintiff has prayed for the direction against the defendants to declare all the assets in the name of defendants and to give complete accounts of the Defendant No. 2 for last five years and made the payment of the amount due to the plaintiff. It is also an admitted fact that the plaintiff had filed J.M No. 07 of 2005 at the Principal seat of this Court which was withdrawn on 1.2.2006 by the plaintiff on the ground that she has filed a civil suit at Hyderabad which has been dismissed and appeal is pending and she stated before the Court that she is going to avail remedy in the appeal and on this ground J.M was not pressed, the copy of order is available as annexure "R-20" which is attached with the counter affidavit filed by Respondent No. 5 in this revision application.

3. The plaint shows beyond any shadow of doubt that the plaintiff did not claim 434 shares in the Tures Motel rather her claim of share holding was related to Defendant No. 2 company but the trial Court in its order dated 22.11.2005 observed that the Tures Motel owned and possessed by Defendant No. 2 is situated at Islamabad therefore, he has no jurisdiction to entertain or proceed the matter. The Trial Court has failed to consider that the plaintiff was claiming her share in Defendant No. 2 which is a private limited company and not in Tures Motel. Similarly the Appellate Court has also observed that when the property in which the plaintiffs/appellant claims her share is situated at Islamabad and the Defendant/Respondent Nos. 1 to 5 are resident of Islamabad, therefore, the suit should have been filed at Islamabad.

4. Both the Courts below have failed to consider that the plaintiff was not claiming her 434 shares in the Tures Motel but her claim was against the company and other defendants in the suit. Though the Tures Motel is owned by the Respondent No. 2 company but for the purposes of deciding the jurisdiction for filing the suit, the Situation/location of Tures Motel is not the alone criteria to decide the matter. The head office of the company which owns the Tures Motel is situated at Hyderabad in which besides claiming the shares, the plaintiff had also lodged her claim regarding the unpaid profits/dividends which could only be claimed from the Court in whose jurisdiction the head office of the company is situated. Explanation II attached with Section 20 C.P.C, provides that a corporation shall be deemed to carry on business at its sole principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. In the judgment reported in 1981 SCMR 494, the Honorable Supreme Court has held that an Explanation is enacted by the Legislature to explain what otherwise would be doubtful or ambiguous. To the extent that it explains a stipulated situation its function is definitive inasmuch as it clarifies or defines the legal position in a supposed state of facts. It is therefore, clear that the corporation can be said to carry on business at the head office or at the place where it has a branch in respect of a cause of action which arises, wholly or in part, at the place where the branch office is situated. If no part of action arises at the place of the branch office, the corporation cannot be said to transact business at that place. This is the only possible interpretation of Explanation II.

5. At this juncture, I would like to refer my own judgment reported in 2010 CLC 1603, (Muhammad Shabbir versus Mrs. Faraha Bibi), in which I have discussed that the word "cause of action" means bundle of facts which if traversed, a suitor claiming relief is required to prove for obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. For example, there may be a case where at the time when an action is brought, there is no right to seek the remedy though the remedy was available when the right was infringed. A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek the relief was in existence. Similarly the Privy Council in another case had summed up that cause of action means every fact which will be necessary for the plaintiff to prove if traverse in order to support his right to judgment. It has no relation to the defence that may be set up nor does it depend upon the character of the relief prayed. Similarly, in my another judgment reported in 2010 CLD 760. (Pakistan Kuwait Investment Company (Pvt.) Ltd. versus Saadullah Khan & Brothers). I have held that for the purposes of Order, VII, Rule 10 and Section 20, C.P.C., it is very much relevant to decide whether cause of action wholly or in part arose within the territorial jurisdiction of the Court. It is also clear that all classes of suits could be filed in a Court within the local limits of whose jurisdiction the cause of action arose either wholly or in part. Term "cause of action" refers to every act which if traversed should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved, would give the defendant a right to judgment and for that purpose only the facts stated in the plaint are to be considered to determine whether those facts state cause of action or not. Even a fraction of cause of action is a part of cause of action. According to Black's Law Dictionary, Sixth Edition, cause of action means the fact or facts which give a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a judicial remedy in his behalf.

6. Since the applicant/plaintiff prayed in the suit that the transfer, deed of 434 shares be adjudged void and may be ordered to be delivered up and cancelled and also sought directions to produce the complete accounts of the Sindh Travel Services (Pvt.) Ltd. and also alleged in the plaint that she has not been paid dividend by the said company. If the suit is decreed then it would be the responsibility of company to make necessary changes in its record and to restore the share register in its original position in case the Court orders for the cancellation of transfer deeds and restoration of plaintiffs shareholding. Another prayer is also against the company for the production of accounts to make payments of the amount due to the plaintiff, therefore, for all intent and purposes and in all fairness, I am of the firm view that the plaintiff has a cause of action against the company and keeping in view, Clause (c) of Section 20 C.P.C. read with Explanation-II, the suit was rightly instituted in the trial Court and both the orders passed by the Courts below are liable to be set aside.

7. The case law relied upon by the learned counsel for the respondent are distinguishable as in no case, the question of any payment of unpaid profit or dividend was involved nor the plaintiff in that cases sought directions for filing the details of assets and accounts of company nor sought cancellation of share transfer deeds.

8. At this point in time, I would also like to hold that the concurrent findings of facts are not sacrosanct and can be examined in the light of the record of the case and if found suffering from the legal infirmities and jurisdictional errors, can be declared as illegal without jurisdiction, eventually, can be set aside. If revisional Court finds any violation of provision of law or ignorance of law by Court then it is vested with the authority to set aside concurrent findings and substitute its own findings. The Honorable Supreme Court in its judgment reported in 2010 SCMR 1630, (Sultan Muhammad and another versus Muhammad Qasim and others), held that the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity affecting the merits of the case, are not open to question at the revisional stage, but where on record the position is contrary to it, then the revisional Court in exercise of its jurisdiction under Section 115, C.P.C. or Supreme Court in exercise of jurisdiction under Article 185(3) of the Constitution, are not denuded of their respective powers to interfere and upset such findings. In another judgment on the same point reported in 2004 SCMR 1668, (Habib Khan versus Mst. Bakhtmina & others), the Honorable Supreme Court held concurrent findings of facts of the Courts below cannot be reversed in exercise of revisional jurisdiction as conferred upon the High Court under Section 115, C.P.C. but it should not be ignored that such concurrent findings cannot be termed as "sacrosanct" and can be reversed, if the same are based on insufficient evidence, misreading of evidence, non-consideration of material piece of evidence, erroneous assumption of facts and patent error of law.

9. The upshot of this discussion is that the impugned judgment dated 6th December 2006 passed by the VIth learned Additional District and Session Judge, Hyderabad in Misc. Civil Appeal No. 70/2004 and the order dated 22nd November 2005, passed by the Vth learned Senior Civil Judge, Hyderabad in FC. Suit No. 93/2005, both are set aside. The matter is remanded to the trial Court with the direction to decide the suit on merits. Since it is an old litigation, therefore, it is expected that the learned trial Court will decide the suit on merits within a period of six months.

Revision Application disposed of in the above terms along with listed application.

(R.A.) Application disposed of.

PLJ 2011 Karachi 63 (DB)

Present: Mushir Alam, C.J. & Salman Hamid, J.

ARSHAD SALEEM--Appellant

Versus

CIVIL AVIATION AUTHORITY through Airport Manager and another--Respondents

HCA No. 178 of 2008, decided on 18.5.2011.

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

----Ss. 12(2), 151 & O. XLI--Law Reforms Ordinance, 1980, S. 15--Companies Ordinance, 1984, S. 111--Ex-parte judgment--Liability of director was limited to extent of shareholding--Paid director of company and not shareholder in the company--No liability--Director was limited to extent of shareholding--Suit was filed against company--Validity--Appellant could not be held liable for acts and deeds of a company as company was a separate and distinct legal entity from its shareholders and directors--Any liability against company cannot be foisted unless it is shown that such directors or shareholders had assumed any responsibility to discharge such liability in terms of S. 111 of Companies Ordinance, 1984--Appeal was allowed. [P. 64] A

Mr. Naseer Hussain Jafri, Advocate for Appellant.

Mr. Sanaullah Qamar, Advocate for Respondent No. 1.

Nemo Respondent No. 2.

Date of hearing: 18.5.2011.

Order

Mushir Alam, C.J.--Through instant appeal, appellant has impugned the order dated 5/5/2008 passed by the learned Single Judge of this Court on an application under Section 12(2) read with Section 151 CPC seeking set aside of the ex-parte judgment dated 16/12/2005 and decree dated 24/1/2006 passed in Suit No. 879/2003 on the ground, inter alia, that the judgment and decree have been obtained by misrepresentation and fraud by the Respondent No. 1 (CAA).

It appears that the Respondent No. 1 entered into an agreement with TDI International Holdings (Pvt.) Limited, the Respondent No. 2 therein, for installation of the advertisement and hoardings on terms and condition agreed between the parties. It seems that transactions were, signed and executed by the appellant herein as a Director of the company. It seems that since dues were not paid followed by the suit against the Respondent No. 2 i.e. TDI International Holdings (Pvt.) Ltd. and the appellant herein was one of its Directors. The suit proceeded and ultimately it was decreed as recorded above. When the execution proceeded the appellant learnt about the exparte judgment and decree and filed the application under Section 12(2) CPC in JM No. 30/2007. It was stated that the appellant was the Paid Director of the company and not the shareholder in the company and the company TDI International Holdings entered into an agreement with CAA.

It is further case of the appellant that he is only a paid employee, had no liability and even he has not assumed any liability of the company. Learned Judge in chamber in consideration of the fact that the service was affected and there is a business relationship between the appellant and the company, therefore, CAA cannot be deprived of the fruit of the judgment and decree.

The matter was proceeded on several dates only to satisfy the Court, first, as to the liability of the Paid Director in a foreign company carrying on business in Pakistan but the same was adjourned at the request of Mr. Sanaullah Qamar, learned counsel for Respondent No. 1.

Learned counsel for the appellant contends that liability of a directed is limited to the extent of shareholding and in the instant case the appellant was not the shareholder but he was a paid employee as per his contract of service which is available on record and such fact is not disputed by the learned counsel for Respondent No. 1. In aid of his contention, he has placed reliance on 2001 YLR 526.

Today, Mr. Sanaullah Qamar, learned counsel for Respondent No. 1, has fairly conceded that the liability of a director is limited as merely signing the correspondence on behalf of the company will not make such person liable, for the acts and deeds of the company. In support of his contention, he has relied upon the case laws reported in (i) 2006 CLD 191, (ii) 2001 YLR 526 and (iii) PLD 2000 Lahore 414.

We have heard the arguments advanced by Learned counsel for the parties, perused the material available on record and thoroughly examined the case laws cited at bar.

It appears that the suit was filed against the company TDI International Holdings by CAA and the liability, if at all, stands against the company TDI International Holdings. From the entire material available on record, including the application under Section 12(2) CPC, it appears that the appellant was merely a paid director in the light of the judgment referred to by the appellant as well as by the Respondent No. 1 which becomes clear that the appellant cannot be held liable for the acts and deeds of a company as the company is a separate and distinct legal entity from its shareholders and directors. Any liability against the company cannot be foisted unless it is shown that such directors or shareholders have assumed any responsibility to discharge such liability in terms of Section 111 of the Companies Ordinance, 1984.

In this view of the matter, this appeal is allowed, the impugned order dated 5/5/2008 is reversed the application under Section 12(2) CPC filed in JM No. 30/2007 is granted and judgment and decree against the appellant is set aside. However, the respondent. No. 1 will be at liberty to pursue its decree against the company TDI International Holdings (Pvt.) Limited, the Respondent No. 2.

The instant appeal in above terms stands disposed of coupled with the listed applications.

(R.A.) Appeal disposed of.

PLJ 2011 Karachi 65 (DB)

Present: Gulzar Ahmad and Shahid Anwar Bajwa, JJ.

AFAQ RIAZ AHMED and another--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law Justice & Human Rights Division, Islamabad and another--Respondents

C.P. No. D-1476 of 2010, decided on 4.6.2010.

Prevention of Electronic Crime Ordinance, 2007--

----Ss. 3, 8, 9, 13, 16 & 19--Pakistan Telecommunication (Re-organization) Act, 1996 r/w. Ss. 36 & 37 of E.T.O. 2002--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Provision of Prevention of Electronic Crime Ordinance having lapsed--Expiring of legislation--Case initiated on basis of a temporary law which having lapsed/expired could not be continued--Lapsed on expiry of 120 days--Repromulgated--Validity--Prevention of Electronic Crime Ordinance 2007, being a temporary law and it having lapsed on 4.11.2009--Proceeding under such Ordinance could not be continued in law--To extent of the proceeding against the petitioners under Prevention of Electronic Crime Ordinance was quashed. [P. 66] A

M/s. Rasheed A. Rizvi, Zia-ul-Haq Makhdoom and Mahmood A. Qureshi, Advocates for Petitioners.

Mr. Ashiq Raza, D.A.G. and Mr. Adnan Karim, A.A.G. for Respondents.

Date of hearing: 4.6.2010.

Order

Petitioners' grievance is that despite the provision of Prevention of Electronic Crime Ordinance having lapsed on 04.11.2009, they are being proceeded under the said Ordinance in the Court of VIIth Civil Judge and Judicial Magistrate, Karachi South. Learned Counsel for the Petitioners has relied upon case of Muhammad Arif versus The State (1993 SCMR 1589) to support his contention that a case initiated on the basis of a temporary law which having lapsed/expired could not be continued as the said case also lapses / expires with the lapsing / expiring of the legislation under which it was initiated.

Learned DAG so also learned AAG are unable to controvert such legal position.

We have considered the submission made by learned counsel and have gone through the record.

It appears that a complaint under Sections 4, 8, 9, 13, 16, 19 of Prevention of Electronic Crime Ordinance, 2007 read with Section 31(1) of Pakistan Telecommunication (Re-organization) Act, 1996 read with Sections 36 and 37 of E.T.O. 2002 was lodged against the petitioners. Apparently there seems to be no dispute that Prevention of Electronic Crime Ordinance which was promulgated on 31.12.2007 lapsed on expiry of 120 days but it appears that it was repromulgated and last such repromulgation was made on 8th July 2009 and-lapsed on 4.11.2009. Detail of such legislation are given by the petitioner in Para 11 of this petition.

In the case of Muhammad Arif & another vs. The State & another (1993 SCMR 1589) the Hon'ble Supreme Court has observed as follows:

"16. From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not been repealed. This is so, inter alia, because of Section 6 of the General Clauses Act, 1897 (which corresponds to Section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any concrary intention manifested in the relevant statute. Since the General Clauses Act is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. However, the above principle cannot be pressed into service, while dealing with temporary statutes as highlighted in the above treatises on the interpretation of statutes. The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it, would ipso facto terminate."

The rule laid down by Hon'ble Supreme Court seems to be squarely applicable to the present case and no other contrary rule is pointed out to us. The Prevention of Electronic Crime Ordinance being a temporary law and it having lapsed on 4.11.2009, the proceeding under such Ordinance could not be continued in law. Therefore, to the extent of the proceeding against the petitioners under the Prevention of Electronic Crime Ordinance is concerned, the same is quashed. Petitioner may however be proceeded under other provision of law as mentioned in the complaint in accordance with law. Listed application is also disposed off.

(R.A.) Application disposed of.

PLJ 2011 Karachi 67

Present: Bhajandas Tejwani, J.

RASHID AHMAD--Petitioner

versus

MUHAMMAD SHABBIR and 3 others--Respondents

C.P. No. 4/S of 2010, decided on 13.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Sindh Rented Premises Ordinance, (XVIII of 1979), Ss. 2(f), 15 & 19--Constitutional petition--Ejectment of tenant--Allegation of non-payment of water and conservancy charges--New landlord--Entitlement--During pendency of ejectment petition, despite selling the premises, previous owner had been pursuing ejectment proceedings--Rent Controller passed eviction order against tenant and lower appellate Court maintained the same--Validity--New owners were not `landlords' in terms of S.2(f) of Sindh Rented Premises Ordinance, 1979, when alleged default was committed by tenant and they had no right to recover monthly rent--Right to recover rent started from the date of change of ownership when new owners acquired title in the property and thereafter they would be entitled to approach the Rent Controller to evict tenant, when he committed default in payment of rent payable to new owner and not for a period for which they were not even entitled to recover the rent--Landlord seeking ejectment of his tenant had to go through mandatory procedure prescribed u/S. 19 of Ordinance, 1979--New owner did not pass through such procedure as the tenant had not committed default in payment of rent to them, therefore, they could not avail benefit of default, if any, committed by tenant during ownership of previous owner, without having recourse of law and procedure--No express covenant, clause or stipulation in conveyance deed executed by previous owner existed in favour of new owners, authorizing them to recover arrears of rent or prosecute litigation initiated by previous owner on the ground of default nor there was any separate assignment of authorization from previous owner--In absence of such authorization or assignment, action of new owners for ejectment of tenant could not sustain, therefore, order of eviction passed by two Courts below was without lawful authority and was set aside--Petition was allowed. [Pp. 72 & 73] A, B & C

2009 SCMR 70 and 2010 SCMR 189 disting.

Mr. Naeem Suleman, Advocate for Petitioner.

Mr. Hussain Bux Sario and Miss Farah Naz Qazi, Advocates for Respondents.

Date of hearing: 13.4.2010.

Order

This petition is directed against the ejectment order dated 25.7.2009 passed by learned IIrd Rent Controller, Karachi Central in Rent Case No. 49 of 2007 and judgment dated 16-11-2009 passed by learned IInd Additional District Judge, Karachi Central in F.R.A. No. 109 of 2008, whereby ejectment order passed by learned Rent Controller was upheld.

The brief facts of this case are that one Syed Muhammad Arif owner of the property filed application under Section 15 of Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner/tenant from Shop No. 2 situated in Block No. 1236 Nishtar Colony Gulbahar, Karachi, on the ground of default in payment of monthly rent from March, 2002 and arrears of rent for 59 months amounting to Rs. 1,68,150. The allegations of non payment of water and conservancy charges were also levelled against the petitioner. The said Muhammad Arif, the landlord also alleged that the petitioner being a tenant of said shop forcibly occupied area of 12/10 feet by breaking the bath room situated on the back side of the said shop and also intervening wall of two rooms by making addition/alteration included the said rooms. Lastly the landlord Muhammad Arif prayed for eviction of the petitioner from the said demised premises.

After service of the notice the present petitioner appeared before the learned Rent Controller and filed his written statement whereby he admitted the relationship, of landlord and tenant between him and said Muhammad Arif and pleaded that no default of payment of monthly rent was committed by him and further asserted that the petitioner paid monthly rent up to October, 2005 to landlord Muhammad Arif and thereafter started to deposit the same in MRC No. 196 of 2006 as the landlord refused to accept the monthly rent. The allegation of addition and alteration in the property was specifically denied by present petitioner.

The landlord's attorney Muhammad Hussain Khilji filed his affidavit-in-evidence on behalf of landlord by repeating the contents of Rent case the said attorney was cross-examined and during his cross-examination the attorney admitted the execution of power of attorney in his favour by the landlord Muhammad Arif who after executing the power of attorney dated 14-11-2006 proceeded to USA by authorizing his attorney to execute the sale-deed in respect of demised premises in favour of Muhammad Shabir and Mst. Himayoon Begum (Respondents) as he had sold the said property to them and received consideration of Rs. 80,00,000 while remaining Rs. 40,00,000 were payable by the vendees at the time of presentation of conveyance deed. The attorney denied to have committed violation of the terms of power of attorney by filing the ejectment case. However, he denied that the petitioner has not committed default in payment of monthly rent. The present petitioner being respondent in the rent case also filed his affidavit-in-evidence in which he gave the detail of payment of monthly rent to the landlord Muhammad Arif and so also deposit of the monthly rent from the year 2006 in MRC No. 196 of 2006. The petitioner also denied to have made any addition or alteration in the demised premises. The petitioner in proof of his contention submitted the documentary evidence i.e. copies of diaries/book showing payment of monthly rent to the landlord. During pendency of rent case the property was conveyed/sold by the said Muhammad Arif through his attorney Muhammad Hussain Khilji to Muhammad Shabir and Mst. Himayoon Begum by way of sale-deed dated 2-5-2009 but said fact was not disclosed before the learned Rent Controller that applicant/landlord Muhammad Arif has ceased to be owner and landlord of the property but the matter was prosecuted and the learned Rent Controller allowed the rent case on the point of default while point with regard to addition and alteration was decided in favour of petitioner. However petitioner was allowed 45 days to vacate the premises.

The petitioner being aggrieved by the above ejectment order preferred F.R.A. No. 109 of 2009. During pendency of this first appeal the subsequent purchasers Muhammad Shabir and Mst. Himayoon Begum were impleaded as respondents and the name of the previous owner/landlord Muhammad Arif was struck off and the appeal was proceeded and the same was also dismissed, hence this petition.

I have heard Mr. Naeem Suleman, learned counsel for the petitioner and Mr. Hussain Bux Sario and Miss Farah Naz Qazi appearing for the respondents.

The learned counsel for the petitioner has contended that the application was filed by the attorney with mala fide intention and no default whatsoever nature was committed by the petitioner who is old tenant of the demised premises since, 1983. Rent was paid to landlord Muhammad Arif till December, 2005 by different modes as detailed in the written statement and affidavit-in-evidence and thereafter same is being regularly deposited in MRC No. 196/2006 but the trial Court as well as the appellate Court heard and decided the point of default against the petitioner without appreciating the evidence of parties.

Mr. Naeem Suleman further submitted that previous landlord Muhammad Arif had sold the property and transferred the all rights of ownership in favour of respondents by executing conveyance deed dated 2-5-2009, during ejectment proceedings but he concealed this material fact from learned Rent Controller and obtained the ejectment order though he has already passed the ownership rights in the demised premises in favour of the Respondents Nos. 1 and 2 by executing the said sale-deed and he was neither landlord nor owner of the property in terms of clause (f) of Section 2 of Sindh Rented Premises Ordinance, XVII of 1979. The learned counsel also submitted that not only this but the subsequent purchasers joined themselves as respondents in the first rent appeal, persuaded the same and the ejectment order passed by the Rent Controller against the petitioner was maintained, thus the subsequent purchasers were held entitled to evict the tenant on the ground of default in payment of rent, if any, committed during the existence of relationship of landlord and tenant with previous owner. The learned counsel submitted that the right of respondents to recover the monthly rent of the demised premises will commence from 2-5-2009 when they, acquired ownership in the demised premises on execution of conveyance deed by the attorney of previous owner/landlord and not before that period and the benefit of default committed during the ownership of previous landlord will not go to the respondents nor such right was transferable with passing of the property.

The learned counsel for respondents contended that the default in payment of monthly rent from March, 2002 committed by the petitioner was proved by the previous owner/landlord and the burden was on the petitioner to have proved the valid payment or tender of monthly rent to the landlord (previous owner) but since the petitioner failed to discharge such onus therefore both Courts below have rightly passed and maintained the eviction order against the petitioner.

Controverting the second contention of petitioner's counsel, it was asserted by the learned counsel for the respondents that the demised property was transferred to them with all rights and benefits, therefore the respondents are entitled to get vacated the premises from the petitioner and continue the ejectment proceedings initiated by previous owner/landlord on the ground of default in payment of monthly rent committed by the petitioner during ownership of previous landlord.

The learned counsel in support of their contentions referred the case of Ghulam Ghaos v. Muhammad Yasin reported in 2009 SCMR 70 and case of Abdul ul Zahir v. Jaffer Khan, reported in 2010 SCMR page 189.

I have considered the arguments of learned counsel for both parties, case law cited at the Bar, oral and documentary evidence brought on the record.

The undisputed fact is that the default in payment of monthly rent, if any, was committed by the petitioner/tenant during his relationship as a tenant with previous landlord Muhammad Arif, who had a cause to file proceedings against the petitioner and such Rent Case No. 49 of 2007 was instituted by him through his attorney namely Muhammad Hussain Khilji under Section 15(2)(ii)(iv) of Sindh Ordinance, XVII of 1979. After filing the Rent case, the previous owner through his attorney had gone through the mandatory procedure prescribed under Section 19 of the said Ordinance, during which he adduced his evidence by filing Affidavit-in-evidence and had gone through the test of cross-examination, while petitioner also availed same opportunity.

On 2-5-2009, the previous owner/landlord, through his Attorney conveyed the property and transferred ownership rights to respondents, as aforementioned, which definitely passed forthwith to buyers, the respondents. The previous owner Muhammad Arif after surrendering his all rights, benefits in favour of respondents, had no right or any concern with the demised premises, therefore he was not entitled to pursue his Rent case and obtain ejectment order on 25-7-2009, i.e. after about 2-1/2 months from the date sale of property by Muhammad Arif to Respondents Nos. 1 and 2. It appears that this material fact that said Muhammad Arif was not owner or landlord of the property after 2.5.2009 and that the property was owned by the respondents, who were owners/landlords in terms of Clause (f) of Section 2 of said Ordinance, was deliberately concealed and an eviction order was, obtained in favour of previous owner.

The respondents being subsequent purchasers appeared during pendency of First Rent Appeal, they were joined in the proceeding and continued to prosecute the appeal on the ground of default allegedly committed by the petitioner during the period of previous owner and landlord, without any express authorization or covenant in the Deed of Sale nor the appellate forum had taken pain to consult the available record and give same finding on this legal point raised by the petitioner's side.

Sindh Rented Premises Ordinance, XVII of 1979, provides mechanism for landlord and owner of Rent premises to seek ejectment of tenant under Section 15 of the said Ordinance, on the various grounds including the ground of default in payment of monthly rent committed by the tenant. The Section 15(1) and its clause (ii) of sub-section (2) of the said Ordinance, which dealt with the situation is reproduced here:--

"Section 15. Application to Controller.--(1) Where a landlord seeks to evict the tenant otherwise than in accordance with Section 14, he shall make such application to the Controller.......

(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:

(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment."

The above provisions envisage in clear terms that the person seeking eviction of tenant must be the landlord in terms of Clause (f) of Section 2 of the said Ordinance, which stipulates as under:--

"Section 2(f).--Landlord means the owner of the premises and includes a person, who is for the time being authorized or entitled to receive the rent in respect of such premises."

It is an admitted position that the respondents were not landlords in terms of above clause of Section 2 of said Ordinance, when the alleged default was committed by the petitioner and they had no right to recover the monthly rent. The right to recover the rent started from the date of change of ownership, when the respondents acquired title in the property and thereafter they will be entitled to approach the concerned Rent Controller to evict their tenant/petitioner, when he commits default in payment of rent payable to respondents and not for a period for which they were not even entitled to recover the rent. The landlord/owner seeking ejectment of his tenant will have to go through the mandatory procedure prescribed under the provisions of Section 19 of the said Ordinance, but in this case the respondents did not pass through the said procedure, as the tenant has not committed the default in payment of rent to the respondents i.e. subsequent owners/landlords, therefore they cannot avail the benefit of default, if any, committed by the tenant during the ownership of previous landlord, without having recourse of law and procedure.

Furthermore there is no any express covenant, clause or stipulation in the conveyance deed executed by previous owner in favour of respondents, authorization them to recover the arrears of rent or prosecute litigation initiated the previous owner on the ground of default nor there is any separate assignment of authorization from the previous owner and in absence of such authorization or assignment the action of respondents for ejectment of the petitioner/tenant cannot sustain, therefore the order of eviction and judgment of appellate forum are illegal and without any lawful authority.

The case-law of honourable Supreme Court referred by the learned counsel for respondents is not applicable in the instant case.

For the foregoing reasons the petition was allowed by short order, dated 13-4-2010.

(R.A.) Petition allowed.

PLJ 2011 Karachi 73

Present: Aqeel Ahmad Abbasi, J

Mrs. SHAHNAZ SHUJA and 2 others--Plaintiffs

versus

PROVINCE OF SINDH through Secretary, Home Department, Government of Sindh and 3 others--Defendants

Suit No. 597 and CM.As. 7897, 8062 of 2010, decided on 30.7.2010.

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

----O.XXIII, R. 3--Specific Relief Act, (I of 1877), S. 42--Qanun-e-Shahadat Order, (10 of 1984), Art. 124--Suit for declaration--Plaintiffs as wife and children of "S" claimed their respective shares as per inheritance in suit property which belonged to "S" whose whereabouts stated to be not known for last eight years despite lodging F.I.R. and publishing news regarding his kidnapping--Joint application under O.XXIII, Rule 3, C.P.C., by plaintiffs, mother and brother of "S" for decreeing suit-Validity--Mother in written statement had denied entitlement of brother of "S", but not those of plaintiffs--Suit property was still standing in name of "S"--No impediment appeared in granting such application--Suit was decreed in favour of plaintiffs and mother of "S" for being entitled to their respective shares as per Shariah in suit property without prejudicing right and interest of any third party therein. [Pp. 74 & 75] A, B, C & D

Mr. Mumtaz Ali Qureshi, Advocate for Plaintiffs.

Qazi Majid Ali, Advocate for Defendant No. 1.

Mr. Asghar Malik, Advocate for Defendant No. 2.

Mr. Shamshad Ali Qureshi, Advocate for Defendants Nos. 3 and 4.

Date of hearing: 30.7.2010.

Order

Office has wrongly listed this application, which was already granted on 23-7-2010.

1. Plaintiff namely Mrs. Shahnaz Shuja wife of Ahmed Shuja is present along with her counsel, whereas Mrs. Rubina Imtiaz claiming to be duly constituted attorney of Defendants Nos. 3 and 4 is also present along with her counsel. This is an application under Order XXIII, Rule 3, C.P.C. read with Section 151, C.P.C., which is duly signed by the plaintiff and the attorney of Defendants Nos. 3 and 4, whereas Defendants Nos. 1 and 2 have not signed the listed application. Plaintiffs have filed the instant suit claiming to be the only legal heirs of one Ahmed Shuja and have sought declaration to the effect that they are entitled for their respective shares per inheritance in respect of the properties mentioned in Para. 7 of the plaint which belong to Ahmed Shuja, whose whereabouts are stated to be not known for the last about eight years. Reference to Article 124 of Qanun-e-Shahadat, 1984 has been made whereas reliance has been placed in the case of Lal Hussain v. Mst. Sadiq and another 2001 SCMR 1036. From perusal of the record, it appears that the plaintiffs have filed copies of the properties as mentioned in Para. 7 of the plaint, copy of Nikhanama showing the Plaintiff No. 1 as wife of Ahmed Shuja, copy of "B" form showing Plaintiffs Nos. 2 and 3 as son and daughter of Ahmed Shuja and copy of F.I.R. along with newspapers cuttings wherein news regarding kidnapping of an architect Ahmed Shuja were published. It appears that Defendant No. 3, who is the mother of Ahmed Shuja has filed her written statement wherein the claim of the plaintiffs appears to have not been denied except entitlement of Defendant No. 4, who is the brother of Ahmed Shuja is denied. It is further stated that Defendant No. 3 being the real mother of Ahmed Shuja is also entitled to the inheritance of her son Ahmed Shuja as per Shariah. It further appears that in Para. 5 of the written statement, Defendant No. 3 has objected to the valuation of both the properties made by the plaintiff in Para. 5 and has also referred to some building and bank accounts which per Defendant No. 3 were also left behind by her son Ahmed Shuja and have allegedly been appropriated by the plaintiffs. Mr. Asghar Malik, learned counsel for Defendant No. 2 has submitted that compromise application has not been signed by Defendants Nos. 1 and 2 as they have no concern with the instant suit which relates to claim of private parties inter se. Learned counsel submitted that the said properties are still in the name of Ahmed Shuja on the record of Defendant No. 2. He has further submitted that he has no objection if instant compromise application is granted.

Keeping in view hereinabove facts and the ratio of judgment cited by the learned counsel for the plaintiffs I am of the view that there appears no impediment in the grant of compromise application. Accordingly, the listed application is granted and the suit is decreed in terms of compromise with no order as to costs, with the clarification that in view of available record, averments of the parties and in the absence of any other claimant, the plaintiffs and Defendant No. 3 are entitled to their respective shares as per Shariah in the immovable properties of Ahmed Shuja as mentioned in Para. 7 of the plaint. However, this will be without prejudice to the right and interest of any third party in respect of the properties mentioned hereinabove.

(R.A.) Suit decreed.

PLJ 2011 Karachi 75 (DB)

Present: Shahid Anwar Bajwa and Irfan Sadat Khan, JJ.

MUHAMMAD AFAQ SHAMSI and 8 others--Petitioners

verses

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 4 others--Respondents

C.P. No. D-1683 of 2010, decided on 1.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), Ss. 5(r) & 25--Criminal Procedure Code, (V of 1898), S.265-K--Contract Act, (IX of 1872), S.62--Constitutional petition--Wilful default--Execution Court allowed judgment debtor company to pay outstanding amount in instalments to decree holder bank by restructuring the original agreement while adjourning execution sine die--During pendency of reference filed by NAB against company for wilful default, application filed under S. 265-K, Cr.P.C. in Accountability Court was dismissed notwithstanding the certificate issued by decree-holder bank to the effect that instalments were being paid by the company in accordance with the new agreement regularly--NAB contended that once investigation was initiated and accused person offered to return the assets, it was the discretion of the Chairman, NAB to refer the case to Court for approval or not, and that payment had to be made to the NAB and that payment to the bank would not absolve the company from its criminal liability--Validity--NAB's plea that payment made by the company directly to the bank would not constitute a valid discharge of obligation was not maintainable--New agreement restructuring the loan was accepted by the Court adjourning the execution application sine die--Quarterly instalments were being paid in accordance with the new agreement, company therefore, could not be said to have committed wilful default as defined in S.5(r) of National Accountability Ordinance, 1999--New agreement was novation of the original contract between the company and the bank and once an agreement had been novated, rights and obligations under the original agreement stood extinguished under S.62 of Contract Act, 1872 and were replaced by rights and obligations under the novated contract--`Novation' amounted to supplanting of a contract and not variation of its terms--Occurrence of default, wilful or otherwise, would flow from the new agreement and not from any prior instrument--Proceedings in Accountability Court were stayed by the High Court and were ordered to stand quashed if entire payment had been made in accordance with new agreement failing which the NAB could apply the Accountability Court to revive proceedings for wilful default. [Pp. 81 & 82] A, B & C

2008 SCMR 1012; 2008 MLD 1734; PLD 2002 Kar. 464 & PLD 1987 Kar. 132 rel.

PLD 1978 SC 220 ref.

Mr. Khalid Imran, Advocate for Petitioners.

Mr. M. Ramzan, Deputy Director, State Bank of Pakistan for Respondent No. 2.

Mr. Behzad Haider and Muhammad Riaz, Senior Prosecutor NAB for Respondent No. 3.

Date of hearing: 19.7.2010.

Judgment

Shahid Anwar Bajwa, J.--Messrs Quice Food Industries Limited, a company incorporated under the Companies Ordinance, 1984 obtained some financial facilities from the Respondent No. 3 Bank. The Petitioners Nos. 1 to 6 are Directors of the Quice Food Industries Ltd., (hereinafter referred to as the Company) and Petitioners Nos. 7 to 9 stood guarantee for the purpose of financial facility allowed to the company (hereinafter referred to as the bank). Since the company defaulted, the Bank filed Suit No. B-70/2001 before this Court and that suit was decreed vide decree dated 31-3-2001. After the suit was decreed execution application was filed. In the execution application an application was filed by the Judgment-Debtor for direction to the Decree-Holder to receive the outstanding payment in terms of restructuring, agreement dated 18-5-2007 till entire outstanding payment is paid to the Decree Holder in terms of the above said agreement. Consequently on 23-1-2009 the following order was passed:--

"An application under Order XXIII, Rules 1 and 3 read with Section 151 of C.P.C. has been filed by the learned counsel for the Decree-Holder, which is signed by the counsel for the Decree-Holder and counsel for the Judgment-debtor. Attorneys of the Decree-Holder Bank are also present. Contents of the compromise appear to be lawful, the same are accepted and the application is allowed. This execution is adjourned sine die. Office is directed to number this application.

The property, which is located in Hataar, N.-W.F.P. was sealed by the Nazir under the order of this Court shall be de- sealed by the Nazir and the possession of the same would be handed over to the authorized representative of the Judgment debtor in presence of the authorized representative of the Decree holder."

1. Agreement was dated 31-12-2008 and it was stated in the agreement that purchaser shall pay a total amount of Rupees 46 million out of which the purchaser paid Rupees 9 million up front and the balance amount Rupees 37 million is to be paid in quarterly instalments of Rupees 3 million each starting from 3 months of the date of execution of the agreement. This agreement it is contended by the learned counsel was faithfully followed. He referred to the letter issued by die Bank on 9.2.2010 which letter says that a total of Rupees 21 million has been paid up on 31-12-2009 and that the account is now regular. Learned counsel further submitted that next instalment of Rupees 3 million was paid in March, 2010 and yet another instalment for Rupees 3 million was paid in June, 2010. Learned counsel for the bank confirmed that instalment was paid in March but did not have any instructions regarding instalment paid in June.

2. In the meanwhile Accountability Reference No. 4 of 2008 had been filed in the Accountability Court. In that reference application under Section 265-K, Cr.P.C. was filed pleading essentially that the Bank and the company have settled their dispute and entered into agreement for repayment and that agreement is now being faithfully followed and moreover the civil dispute has been determined by the High Court and execution application in view of the agreement between the parties has been adjourned sine die. This application was dismissed by the Accountability Court No. 3 vide order dated 23-4-2010. The reasons recorded by the Court are as under:--

"Case against accused requires evidence whether they have defaulted to pay Rs. 57.50 of the decrial amount of Rs. 14.51 million towards cost of funds etc. The arguments of defence counsel are that ABL issued the NOC on 9-4-2009 and according to settlement agreement dated 31-12-2008, accused has paid Rs. 21 million up to 31-12-2009 out of settled amount of Rs. 46 million and now the account is regular, however a matter for the withdrawal of the case from NAB and their concurrence on the settlement is taken up with the NAB by the bank authority which is under process at their end. The question is if the position was so then why not the bank was withdrawing the case from the NAB. This dispute also requires evidence so I am of the view that after recording material evidences of the complainant and some witnesses the accused shall be at liberty to resubmit this application."

1. Learned counsel for the petitioner made the following submissions:--

(1) After the matter has been compromised between the Bank and the parties, unless the company defaults in payment under the agreement it cannot be said to be wilfully in default.

(2) Learned counsel further submitted that the Bank has itself given a certificate that the account is regular and therefore such a certificate by the Bank should be duly honoured by the Accountability Authorities. He relied upon Chairman, National Accountability Bureau and another v. Muhammad Irshad Khan, 2008 SCMR 1012, Muhammad Asif Margoob Siddiqui v. Pakistan through Secretary of Law and Parliamentary Affairs Islamabad and 3 others 2008 MLD 1734, Syed Murad Ali Shah and others v. Government of Sindh through Home Secretary and 7 others, PLD 2002 Kar. 464.

1. Learned counsel for the Bank submitted that the payment is being duly received by the Bank and he admitted that letter has been written by the Bank to NAB Authorities calling upon them to give their concurrence to the revised settlement between the Bank and the Company.

2. Learned senior Prosecutor NAB referred to Section 25 and contended that after investigation has been initiated, whether the trial has commenced or not if the accused persons offer to return to NAB the assets, then Chairman NAB in his discretion can refer the case for the approval of the Court. He submitted that in such a situation the amount has to be deposited with NAB and therefore, payment by the Company to the Bank would not absolve accused persons from their criminal liability.

3. While exercising his right to reply, learned counsel for the petitioner submitted that the changed circumstances must be taken into, consideration by the Court. In this regard learned counsel relied upon PLD 1978 SC 220.

4. We have considered the submissions made by the learned counsel and have also gone through the record as well as case law cited at the bar.

5. In Muhammad Irshad Khan's case (Supra) three investigations had exonerated the respondent and three different legal opinions had concurred with the views of the Investigating Officers but Deputy Prosecutor General NAB again referred the matter for investigation. High Court quashed the investigation holding that it was ordered in colourable exercise of power. The matter was taken to the Supreme Court and the Supreme Court held that since no sufficient evidence was collected and futile exercise of re-investigation had continued for six years, it caused undue harassment to the respondent and concurred with the order passed by the High Court. In Muhammad Asif Margoob Siddiqui's case (Supra), the petitioner was an officer of customs department who had earlier been posted as Commissioner, Sindh Employees Social Security Institution. It was alleged that during his such earlier posting he was involved in accumulation of assets beyond his known sources of income. Twice after conducting investigation Investigating Officer recommended closure of proceedings. Thereafter fresh investigation was ordered which was challenged in the High Court and High Court held that continuation of inquiry proceedings by the NAB authorities against the petitioner would be a mala fide exercise of power. Syed Murad Ali Shah's case (Supra) was a case where corruption was alleged and an F.I.R. was lodged at a Police Station alleging irregularities and misappropriation causing loss to the exchequer. The High Court firstly held that it is only Anti-Corruption establishment which can inquire into the matter and therefore, action by police amounted to violation of provisions of law and therefore, the High Court was competent to quash the proceedings and it did so accordingly. Learned counsel also referred to case of Darayus Cyrus Mirmala v. National Accountability Bureau, C.P. No. D-259 of 2010, decided by a Division Bench of this Court on 21-5-2010. The facts in that petition were that petitioner acted as agent of a foreign airline which leased aircrafts to Pakistan International Airlines. Ex-wife of the petitioner filed proceedings before a Court in U.K. and therein she alleged that the amount of petitioner lying in a bank there was earned through money laundering. Consequently, Attorney-General of Jersey on police report had approached Federal Government of Pakistan to join the proceedings. Certain additional evidence was filed and after such evidence was filed and NAB had represented the Federal Government, it abandoned the proceedings. The Court in U.K. rejected claim of the Government of Pakistan holding that amount was earned as consequence of criminal act. Thereafter NAB made a reference whose reference was quashed through Constitutional Petition. The bench who decided the matter held as under:--

"(19) We have gone through the judgment of the Royal Court of Jersey, which has taken note of the fact that the Islamic Republic of Pakistan has joined the proceedings before the said foreign Court on their own. It has also taken note that the Federal Government has authorized the NAB to engage Counsel to represent its viewpoint. The NAB has also jointly investigated the case with the Jersey Police against the petitioner both within Pakistan and abroad. The NAB has placed material against the petitioner and other co-accused before the Royal Court of Jersey in order to establish that the amount lying with the Respondent No. 4 Bank were the proceeds of criminal acts of the petitioner. Thereafter, when the matter was at the stage of draft judgment, the counsel representing the Federal Government sought leave of the Royal Court to file additional evidence. The Court granted such leave and the counsel filed a statement that the NAB has filed a separate reference against the petitioner and other co-accused before the Accountability Court in Pakistan and had obtained orders of seizure of the properties of the petitioner.

(20) After filing of the additional evidence/statement the Respondent No. 7 abandoned the proceedings whereafter the judgment was announced by the foreign Court. In this regard, paragraphs Nos. 66, 67, 68, 69 and 73 of the judgment of the Royal Court of Jersey are relevant in which it has been held that the assets with which the Court was concerned were not the proceeds of criminal conduct and, therefore, be paid to the wife in order to satisfy the judgment of the U.K. These findings of the Royal Court of Jersey were neither challenged by the Federal Government nor any suit to challenge the said foreign judgment in terms of Section 13, C.P.C. was filed before any Court in Pakistan. Therefore, the said foreign judgment of the Jersey Court, being passed by the Court of competent jurisdiction, has attained finality and is conclusive, binding the parties.

(21) We, therefore, hold that the issue raised in the reference by the NAB has been settled by the judgment of Royal Court of Jersey holding therein that the amount lying in Respondent No. 4 Bank were not the proceeds of criminal conduct of the petitioner. We further hold that the petitioner, applicant and or the private person, namely, Pervaiz Hussain, cannot be tried nor prosecuted before the Accountability Court on the basis of the NAB reference, wherein allegation against the petitioner is that he on receipt of the amount of Commission, which amount was subject matter of the Royal Court of Jersey, had passed it on to the applicant and the private person having protection guaranteed under Article 13(a) of the Constitution. In this regard the provision of Article 13(a) of the Constitution provides that no person shall be prosecuted nor punished for the same offence more than once. The petitioner having been prosecuted and found not guilty of the charge of earning amount by corrupt means is entitled to the protection guaranteed under Article 13(a) of the Constitution."

1. Learned counsel for Respondent No. 3 Bank placed on record letter dated June 7, 2010 written by Respondent No. 1 to Respondent No. 3 demanding from it its share of the amount paid to the Bank by the petitioner company in consequence of agreement dated 31.12.2008 and the order passed by this Court on Execution Application dated 23-1-2009. In view of such a position it really is not available to the NAB to plead that since the amount has not been deposited with them therefore payment directly to the bank does not constitute a valid discharge of the obligation on part of the petitioner. Agreement dated 31.12.2008 has been more or less accepted by this Court in the execution application and the execution application was adjourned sine die. Through this agreement the loan has been restructured and the parties have agreed that Rupees 9 million were to be paid at the time of execution of agreement (and they were paid) and balance amount of Rupees 37 million was to be paid in quarterly instalments of three million each and there is no statement whatsoever that petitioner had defaulted in any such payment. The word wilful default is defined in Section 5(r) of the National Accountability Bureau Ordinance, of 1999. The said section is in the following words:

"(r) "Wilful default" a person or a holder of public office is said to commit an offence of wilful default under this Ordinance, if he does not pay, or continues not to pay, or return or repay the amount due from him to any bank, financial institution, cooperative society, Government department, statutory body or an authority established or controlled by Government on the date that it became due as per agreement containing the obligation to pay return or repay or according to the laws, rules, regulations, instructions issued or notified by the State Bank of Pakistan or the bank, financial institution, cooperative society, Government of Pakistan, statutory body or an authority established or controlled by a Government, as the case may be, and a thirty days notice has been given to such person or holder of public office." (Emphasis added).

1. Reading, of the above definition indicates that default occurs when the amount due as per agreement containing obligation to pay is not paid. The agreement dated 31-12-2008 evidences that the parties agreed that liability was 46 million and then they agreed to a particular schedule of payments. Section 62 of the Contract Act, provides as under:

"(62) Effect of novation, rescission and alteration of contract.--If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."

Agreement dated 31-12-2008 amounts to novation of original contract between Bank and the petitioner and it is settled law that once agreement had been novated rights and obligations under the original contract stands extinguished and are replaced by rights and obligations under the novated contract. Novation amounts to supplanting of a contract and not variation of its terms. Therefore when a contract is novated a fresh contract comes into existence directly or by implication in place of the original contract. If any authority is needed one may refer to Mst. Khatoon Begum v. Mst.Barkatunnisa Begum and 6 others, PLD 1987 Karachi 132. Therefore once agreement dated 31-12-2008 is executed between the Bank and its client rights of the parties are to be determined in the light of that agreement and occurrence of default, wilful or otherwise, is to flow from that agreement and not from any prior instrument.

1. However, since the agreement requires payments in quarterly instalments, as long as the entire payment is not made it cannot be said that the first agreement died its death. Consequently the proceedings in the Accountability Court are ordered to be adjourned sine die. If the entire payment in satisfaction of the contract dated 31-12-2008 is made in accordance with what is agreed in agreement dated 31.12.2008 the proceedings before Accountability Court would stand quashed. On the other hand, if the agreement dated 31-12-2008 is not followed and wilful default is made it shall be available to the NAB to apply to the Accountability Court to revive the proceedings.

This Constitutional Petition is disposed of in the above terms.

(R.A.) Order accordingly.

PLJ 2011 Karachi 83 (DB)

Present: Sarmad Jalal Osmany, C.J. and and Zahid Hamid, J.

MUHAMMAD IQBAL--Petitioner

versus

PROVINCE OF SINDH through Secretary, Home Department and 2 others--Respondents

C.P. No. D-1450 of 2009, decided on 6.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Transfer of Offenders Ordinance, (XXXVII of 2002), Ss. 6 & 9--Criminal Procedure Code, (V of 1898), Ss. 401 & 402-C--Constitutional petition--Conviction and sentence abroad--Transfer of accused to Pakistan--Remission in sentence, claim for--Accused who was convicted for offence abroad, was sentenced to imprisonment for life--After serving sentence for more than five years abroad, petitioner, who after fulfilment of all conditions of S. 6 of Transfer of Offenders Ordinance, 2001 was transferred to Pakistan under S. 9 of Ordinance, 2002 and was handed over to I.G. (Prison) in Pakistan to complete his sentence awarded to him by foreign Court--Petitioner claimed his release from jail in view of remissions granted to him from time to time--Petitioner had earned remissions of eight months, twenty days and he served the sentence including the remissions for a period of 6 years, one month and 27 days and his un-expired period of sentence was allegedly 18 years 10 months and 3 days for Jail `Roll--Petitioner who was repatriated to Pakistan in 2009 after serving 5 years sentence abroad, if he had served said term of sentence in Pakistan, he would have earned till date at least normal remissions commensurate more or less with the remissions earned by him in Pakistan--Petitioner, was entitled to considerable allowance of reduction in sentence--Since the petitioner could be deemed to have served a sentence of more than seven years in prison including remissions granted, his sentence was reduced to the sentence already undergone by him--Petitioner was ordered to be released, in circumstances. [Pp. 87 & 88] A, B & C

2007 PCr.LJ 1364; PLD 2002 Lah. 200; 2005 PCr.LJ 1061; 1999 PCr.LJ 1852; 2001 PCr.LJ 2027 and PLD 2009 Lah. 362 ref.

Mr. Javed Iqbal Burqi, Advocate for Petitioner.

Mr. Nafees Usmani, A.A.-G. for Respondents.

None present for DAG and APG.

Date of hearing: 6.10.2010.

Order

Zahid Hamid, J.--By this order we intend to dispose of the instant constitutional petition, which has been filed by petitioner Umer Iqbal, seeking the direction to the Respondents Nos. 1 and 3 to release the petitioner on his having served more than five years imprisonment, inter alia, taking into account the remissions granted to him from time to time.

1. The factual perspective disclosed in the memo. of Petition is that detenue left for Sri Lanka with the object of seeking employment there through a travel agent in 2004 and on his instruction the petitioner handed over his belongings including bags to the travel agent at Karachi before leaving for Sri Lanka. It is pleaded that the petitioner had paid the agreed amount to the travel agent but on reaching Sri Lanka, extra amount was demanded by the latter which he refused to pay and after exchange of hot words, the travel agent threatened the petitioner that he would have to face dire consequences. On 25-10-2004 the Sri Lankan Police arrested him and charged him with possession of 2700 grams of heroin which had been recovered from his person. Consequently he was sent to jail and thereafter tried and convicted for such offence and sentenced to imprisonment for life by the Sri Lankan Court. Thus after serving for more than five years in Sri Lankan Jail, the petitioner, it is stated, after fulfilment of all conditions of Section 6 of the Transfer of Offenders Ordinance, 2002 was transferred to Pakistan on 31st May, 2009 and under Section 9(1) of Transfer of Offenders Ordinance, 2002 the petitioner was handed over to Respondent No. 3 to complete his sentence in Central Jail, Karachi. It is stated that under Section 13 of the Transfer of Offenders Ordinance, 2002 the sentence of imprisonment imposed on an offender who is a citizen of Pakistan in any specified country should not be subjected to any appeal or revision and under sub-section (4) of Section 9 of Transfer of Offenders Ordinance, 2002 it is provided:

"Where the legal nature and duration of the sentence of imprisonment imposed on an offender transferred under sub-section (1) is incompatible with any law of Pakistan, it shall be lawful for a Court of competent jurisdiction in Pakistan to adopt such sentence to make it compatible with laws of Pakistan."

Consequently, it is claimed that enforcement of sentence of imprisonment imposed on an offender, who is transferred to Pakistan under Section 9 sub-section (1) shall be governed by the laws of Pakistan under Section 9 sub-section (2) of the said Ordinance. The petitioner, under the circumstances, emphasized that he has already served for more than five years in Sri Lankan Jail and on his arrival in Karachi he has been detained since 3rd June, 2009 in Central Prison Karachi and as such any further sentence is incompatible according to law of Pakistan and is to be made compatible as provided under Section 9 of sub-section (4) of Transfer of Offenders Ordinance, 2002. Accordingly his fundamental right is at stake in terms of Articles 4, 9 and 10 and his further detention is violative of such fundamental right. He, therefore, prayed that his further detention may be declared illegal.

1. Notice was issued to learned Advocate General Sindh, learned Prosecutor General Sindh and learned Deputy Attorney General, Pakistan. On 30-3-2010, the learned Additional Advocate-General sought time to file comments, the jail roll of the petitioner was also called for. On 2-4-2010 learned counsel for the petitioner Mr. Javed Iqbal Burqi and learned Additional Advocate-General Mr. Nafees Usmani were heard and the matter was reserved for orders.

2. Learned counsel for the petitioner has relied on the order dated 14-9-2009, delivered by our learned brothers Mr. Justice Mushir Alam and Mr. Justice Muhammad Athar Saeed in Atif Shoaib and others v. Province of Sindh and others (CPs. Nos. D-1188, D-1190, D1193, D-1194, D-1195, D-1196, D-1197 and D-1198 of 2009.) In this case, the petitioners were arrested and tried for possessing different quantities of heroin. They were convicted and sentenced to suffer life imprisonment in Sri Lanka and subsequently repatriated to Pakistan to serve out the remaining portion of their sentences. They invoked the provisions of the Transfer of Offenders Ordinance, 2002 to seek their release as according to them they had already undergone the maximum imprisonment which could be imposed upon them in Pakistan had they been apprehended, charged and sentenced for similar offences in Pakistan.

In the table of offenders Shahzad Ahmed son of Rahmatullah one of the eight offenders in C.P, No. D-1196 of 2009, was arrested for trafficking 2.6 kg of drugs. On 6-12-2006 he was sentenced to suffer life imprisonment and his detention period upto relevant time was noticed as eight years eleven months and twenty six days. It was held that:--

"If the offence had been committed by Shahzad Ahmed Khan of trafficking 2.6 kg of narcotic substance, he would have been sentenced to imprisonment for nine years and fine of Rs. 2,50,000 and in default thereof further imprisonment of one year."

"He had served out the sentence of eight years eleven months and twenty six days and looking at the remissions which he ought to have earned in Sri Lanka as well as in Pakistan his sentence already undergone was treated as compatible to conviction as could have been inflicted in Pakistan. He was therefore ordered to be released forthwith by the aforesaid order of Division Bench of this Court."

1. The learned Counsel has also referred to the case of Imran Ali v. Province of Sindh and others 2007 PCr.LJ 1364. In this case, the petitioner Imran Ali was apprehended by the authorities at Colombo Airport on 13-3-1997, from whose possession 2028.4 grams of heroin was recovered. He was convicted by Sri Lankan Court on 29-11-2005 for such offences and he was sentenced to undergo life imprisonment. On 20.7.2006, the petitioner was deported along with other Pakistani prisoners from Sri Lanka under the agreement dated 1-12-2004 executed between the Government of Pakistan and Sri Lanka of transfer of offenders to undergo remaining portion of their sentences. He filed a Petition claiming that his further detention in Pakistan was violative of the fundamental right guaranteed to him under the Constitution and the petitioner was ordered to be released by the Division Bench of this Court, then headed by one of us, namely, Sarmad Jalal Osmany, J. at the relevant time on the ground that a sentence of 10 years in the prison had already been served though only 2028.4 grams of heroin was involved and as such the sentence already undergone was considered to be sufficient under Section 9(c) of the Control of Narcotic Substances Act.

2. Learned counsel for the petitioner has also relied upon the case of Muhammad Hanif v. The State PLD 2002 Lah. 200 wherein it was held:

"Sentence of life imprisonment or death in cases involving narcotic with quantity of less than 20 kg would be too harsh and may not be in consonance with provisions of Section 9 sub-section (c) of the Control of Narcotic Substances Act, 1997 and as such the High Court reduced the life imprisonment to sentence of ten years and reduction of fine from Rs. One million to Rs. half a million was also ordered on the ground that the convict was a first offender."

1. He has relied upon the case of Arifullah v. The State (2005 PCr.LJ 1061) to emphasize that sentence was reduced from two and half to one year by High Court when the prosecution was not able to prove the exact quantity of contraband narcotic substance. He has relied upon the case of Liaquat Ali v. The State (1999 PCr.LJ 1852) wherein also the sentence was reduced in conviction under Control of Narcotic Substances Act, 1997.

2. The learned counsel for the petitioner referred to the case of Abdul Ghani and others v. The State and others (2001 PCr.LJ 2027). In this case it was held:

"That sentence of imprisonment for life or death in cases involved with quantity of less than 10 kg would be too harsh and highly inappropriate and might not appear to be in consonance with the provisions of Section 9(c) of Control of Narcotic Substances Act, 1997 and that mathematical calculation keeping the terms of imprisonment viz., quantity of narcotic might be warranted and such sentence of imprisonment for life awarded to each accused was reduced to ten years' RI with substantial reduction in fine."

1. Learned counsel for the petitioner finally referred to the order of a Division Bench of this Court in CPs. Nos. D-1050, D-1051, D-1189, D-1191, D-1192 and D-1451 of 2009. In these matters, the petitioners were arrested for trafficking/transporting heroin weighing less than 1000 gram. The petitioners/offenders were sent to Pakistan under the provisions of Transfer of Offenders Ordinance, 2002 by Sri Lankan Authorities and since the sentence imposed on them was not compatible with the laws of Pakistan, therefore, it was held that since the sentence under Section 9(b) of Control of Narcotic Substances Act, 1997 is seven years at the most and since all the petitioners had served out the said sentence they were ordered to be released forthwith.

2. Coming to the facts of this petition, it would be found from the Jail Roll that the petitioner/detenu was arrested on 25-10-2004 and he was convicted for trafficking 2.7 kg. heroin and sentenced to suffer life imprisonment. He was repatriated from Sri Lanka on 31-5-2009 and has since been detained in Central Prison, Karachi.

3. Under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, he earned 120 days of remissions. Special remission awarded by Inspector General of Prisons Sindh under Rule 216 of PPR on 12-8-2009 to the petitioner is stated to be sixty days. Further Special remission awarded to him by Superintendent Jail under Rule 216 of PPR on 26-11-2009 is specified as 30 days. Once again remission of 35 days and 15 days under Rule 204 PPR were granted to petitioner during the year 2009-2010. The grand total of remissions is shown to be 260 days i.e. eight months and twenty days and after award of above remissions, the position, which is reflected by the Jail Roll is that the petitioner has undergone a sentence of five years five months and seven days from the date of his arrest. He earned remissions of eight months twenty days and he served the sentence including the remissions for a period of six years one month twenty seven days up to 1-4-2010 and his unexpired portion of sentence is allegedly 18 years 10 months and 3 days per Jail Roll dated 1-4-2010.

4. The learned Counsel for petitioner has referred to the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) wherein sentence of imprisonment for seven years was approved when 2 Kilograms and not exceeding 3 Kgs. of heroin was involved.

5. Be that as it may admittedly, the petitioner was convicted for trafficking 2700 grams of heroin i.e. more than 2 kg. He was arrested on 25-10-2004 and charged with possession thereof and convicted. Consequently he remained in Sri Lankan Jail and was repatriated to Pakistan on 31-5-2009, if he had served the above term of sentence in Pakistan he would have earned till date at least normal remissions commensurate more or less with the remissions earned by him in Pakistan. He would therefore, be entitled to considerable allowance of reduction in sentence.

6. Since the petitioner could be deemed to have served a sentence of more than seven years by now in prison including remissions granted and probable we reduce the sentence of the petitioner to the sentence already undergone by him and order that he shall be released forthwith if not required in any other case.

(R.A.) Order accordingly.

PLJ 2011 Karachi 88

Present: Irfan Saadat Khan, J.

MUHAMMAD ZAFAR SIDDIQUI and 2 others--Plaintiffs

versus

MUHAMMAD QAMAR SIDDIQUI and another--Defendants

Suit No. 1600 of 2009, decided on 12.10.2010.

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

----O. XX, R. 12--Partition Act, (IV of 1893), S. 4--Partition among co-sharers--Principle--Recovery of mesne profits--Plaintiffs were co-sharers in suit property who sought partition of the same and also sought recovery of mesne profits from defendants for using the property in excess of their share--Validity--Both the parties were co-owners to the extent of 50% of property, there was nothing on record to show that there was any other claimant to the suit property--No rebuttal on the part of defendants, being available on record, therefore, no exception to judgment directing preparation of preliminary decree could be taken--Entitlement of plaintiffs to suit property was established, therefore, partition and division of property could not be denied, unless it was shown that such property was incapable of division and partition--Once it was established and Court had come to the conclusion that person was entitled to any right or share in the property and he was being deprived of use of such right or share in the property by other person, then the owner, who was out of possession or enjoyment, such person was entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof--Plaintiffs were entitled to mesne profit to the extent of their shares/right or interest in the property--Plaintiffs had filed a chart of determination of mesne profits but that could not be considered as a positive evidence led by plaintiffs without certainty as to the actual income or benefit derived by plaintiffs in enjoyment of the suit property--Decree in terms of O.XX, R.12, C.P.C., was ordered to be prepared and after holding such inquiry as could be necessary, the final decree could be prepared--High Court directed that no mesne profit could be calculated beyond the period of three years from the date of filing of suit--Suit was decreed. [P. 92] A & B

PLD 1994 SC 874; PLD 1978 SC 89 and PLD 1986 Pesh.19 ref.

Ms. Nahid Naz, Advocate for Plaintiffs.

Nemo for Defendants.

Date of hearing: 7.10.2010.

Judgment

This suit for rendition of accounts, recovery of mesne profits, separate possession and permanent injunction has been filed by the plaintiffs with following prayers--

(i) pass judgment and decree for partition of the suit property i.e. triple story bungalow on Plot No. B-106, Block-I, measuring 400 sq.yds. situated at North Nazimabad, Karachi in two parts one part comprising 200 sq yds and the other comprising 200 sq yds by metes and bound so as one part comprising 50% shares each of the suit property vests in and becomes exclusive property of the plaintiffs and in the event this Hon'ble Court comes to the conclusion that the partition/division of the suit property is not possible then order for the sale of the suit property through open auction to highest bidder to satisfaction of plaintiff and Court and distribution of the sale proceeds thereof between the plaintiffs and the defendants according to their respective shares be passed.

(ii) pass judgment and decree against the defendants jointly or severally requiring them, to pay the plaintiffs a sum of Rs. 64,37,840 towards their shares in the income, rents/mesne profits of the suit property, from March, 1996 to October, 2009 and further mesne profits at the rate of Rs. 1,38,088 per month with 10% annual increase from November, 2009 till partition and/or delivery of separate possession of the portion of the plaintiffs in the suit property and or sale and payment of the plaintiffs' shares in the sale proceeds of the suit property.

(iii) the defendants be ordered to render the accounts of the income, profits of the suit property which they derived from the accrued garden of the suit property from the date of their exclusive possession till the decision of the suit.

(iv) permanent injunction restraining the defendants from selling, alienating disposing of or creating any third party interest in the suit property.

(v) grant any other relief or reliefs which this Hon'ble Court may deem just and proper in the circumstances of the case.

(vi) grant costs of this suit.

Briefly stated the facts of the case are that the father of the plaintiff namely Muhammad Dawood Siddiqui son of Molvi Muhammad Noor expired in Karachi on 1-12-1996. The deceased was the owner of the House No. B-106, Block-I. North Nazimabad, Karachi and it is a triple storey house built on plot measuring 400 Sq. Yards. At the time of death, the deceased left behind him as his following legal heirs:--

(a) Ms. Jamila Khatoon widow of the deceased.

(b) Ms. Rehana Khatoon wife of Muhammad Saleem Khan and daughter of the deceased.

(c) Mr. Muhammad Zafar Siddiqui son of the deceased.

(d) Mr. Muhammad Qamar Siddiqui son of the deceased.

(e) Mrs. Rukhsana Hussain wife of Dr. Shahid Hussain and daughter of the deceased.

(f) Mr. Muhammad Badar Siddiqui son of the deceased.

Jamila Khatoon widow of the deceased also expired on 26-3-2004 leaving behind three sons and two daughters as mentioned above. After the death of deceased Muhammad Dawood all the legal heirs including Jamila Khatoon participated in mutation proceedings and obtained heir-ship certificate wherein the names of all persons have duly been mentioned. After the death of the mother of the plaintiffs and two defendants, Plaintiff No. 1 approached the Defendants Nos. 2 and 3 for partition of suit property but the defendants on one pretext or the other lingered on the matter. Legal notices in this regard were also sent by plaintiffs to the defendants but of no avail. The matter, thereafter, was referred to Reconciliation Committee (Masalehati Anjuman) 1UC-6 but no amicable settlement took place, hence the present suit.

Learned counsel for the plaintiffs submitted that the plaintiffs tried their level best to settle the matter amicably and made hectic efforts to persuade the defendants for partition of the suit property and distribution of the same amongst the plaintiffs and defendants who are legal heirs of the deceased persons. She submitted that though at number of occasions the plaintiff and the defendants agreed that amicable settlement would be made but on one rhyme or reason the defendants created hurdles by loitering on the matter.

However, no amicable settlement took place between the parties. She further submitted that in order to avoid lengthy legal proceedings the plaintiffs approached Masalehati Council for amicable settlement, however, in spite of making promises by the defendants neither the suit property was vacated nor the plaintiffs were given their due share in the said property. She submitted that it has specifically been mentioned in the report of said Masalehati Council to deposit the file of property with the said Council but the said file was never given. As per learned counsel, the Defendant No. 1 whenever called by the said council, not only used to insult and humiliate the plaintiffs but also remained absent on various occasions. As per the learned counsel plaintiffs have tried their level best for amicable settlement of the matter and to convince the defendants to give due legal share in the said property to all the legal heirs but the defendants were neither cooperating with them nor were ready to give the due legal shares to the other legal heirs of their deceased father. Lastly, she submitted that a number of opportunities were provided to the defendants to appear before this Court but they failed to appear and have not filed their written statements. She prayed that the suit may be decreed as prayed. In support of her contentions she relied upon the cases reported in PLD 1994 SC 874, PLD 1978 SC 89 and PLD 1986 Peshawar 19.

I have heard the learned counsel for the plaintiff and have also perused the record. It is an admitted fact the Defendant Nos. 1 and 2 are the real brothers of the plaintiffs. It is also an admitted position that they are entitled for shares in the property left by their deceased father. Perusal of the record reveals that summon in this case were ordered to be issued by A/R on 16-3-2010 for 16-4-2010, however, as no written statements were filed by them they were debarred from filing the written statements vide order dated 7-5-2010. On 26-11-2009 Defendant No. 2 appeared in person and requested for sometime to file written statement, which request was allowed but no written statement was filed by the defendants thereafter.

From the perusal of the record it is evident that plaintiffs and defendants are the co-owners to the extent of 50% of property, there is nothing on record to show that there are any other claimants to the suit property. There is no rebuttal on the part of defendants therefore no exception to judgment direction preparation of preliminary decree could be taken. It is a trite law that once entitlement of the plaintiffs to the suit property is established, the partition and division of the property cannot be denied, unless of course, it is shown that such property is incapable of division and partition.

It is therefore ordered that preliminary decree for partition and division of suit property be prepared Nazir is directed to take possession of the suit property and in case partition of the suit property is not possible by metes and bound then to sell the property by putting it to an open auction with an option to the parties to the suit to match the highest offer and if the circumstances so permit limited auction between the parties. Nazir's fee is fixed at Rs. 25,000. All other expenses are to be recovered from the auction amount if any otherwise from the parties to the suit according to their shares.

So far the question of mesne profit is concerned, it is a settled proposition of law that once a person establishes and the Court comes to the conclusion that person is entitled to any right or share in the property and is being deprived of use of such right or share in the property by the other person then the owner, who is out of possession or enjoyment, becomes entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof as the case may be. Hence, in my view, the plaintiffs are entitled to mesne profit to the extent of their shares/rights or interest in the property. Though the plaintiffs have filed a chart of determination of mesne profit but that could not be considered as a positive evidence led by the plaintiffs without certainty as to the actual income or benefit derived by the plaintiffs in enjoyment of the suit property. Hence it would meet the ends of justice if decree of mesne profit in terms of Order XX Rule 12, C.P.C. is prepared and after holding such enquiry as may be necessary, the final decree may be prepared. However no mesne profit may be calculated beyond a period of three years from the date of the filing of the present suit. The plaintiffs are also entitled to the costs.

The suit in the above terms stands disposed off.

(R.A.) Suit decreed.

PLJ 2011 Karachi 93 (DB)

Present: Sarmad Jalal Osmany, C.J. and Zahid Hamid, J

Engr. K.M. ASGHAR--Petitioner

versus

PROVINCIAL CHIEF, HBFS, KARACHI and 2 others--Respondents

C.P. No. D-2166 of 2009, decided on 21.10.2010.

House Building Finance Corporation Act, 1952 (XVIII of 1952)--

----S. 24--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Loan, grant of--Scope--Age of borrower--Grievance of petitioner was that despite fulfilling all requirements, (HBFC) was not giving him loan to construct his house--Contention of Corporation was that petitioner was in advance age and guarantor was his daughter who was a house wife and did not have enough sources of income--Validity--Petitioner was ready to mortgage and assign his right, title and interest in the land and construction raised thereon in favour of Corporation--Investment sought from Corporation was a sum of Rs. 15,00,000 which would be fully secured--Loan could not be withheld by Corporation on the ground that guarantee being submitted was lacked in any aspect as the word "or" before the words "by such guarantee as may be prescribed" was to be interpreted disjunctively and, therefore, no guarantee was required at all--Petitioner's daughter having inheritable right in the subject property, who had sufficient means had come forward to give the guarantee for repayment of the loan--Other requisite instructions laid down under the Scheme launched by the Corporation for beefing up the credibility of guarantor such as age limit and capacity of guarantor as to sufficient income was only in nature of subordinate instructions and did not matter when the condition of proper assignment of land with the construction as envisaged by the main statute had been met--High Court directed the Corporation to process the application of petitioner to the extent of loan applied for--Petition was allowed. [P. 97] A

Petitioner (in person).

Mr. Khurshid Ahmed Qureshi, Advocate for Respondent No. 1 (HBFC).

Mian Khan Malik, DAG for Federation of Pakistan.

Date of hearing: 21.10.2010.

Order

Zahid Hamid, J.--By this Order the present Constitutional Petition whereby the refusal of the House Building Finance Corporation (hereinafter referred to as HBFC) to grant loan to the Petitioner for house building has been assailed, shall stand disposed of.

1. The facts are that the petitioner, who is a retired Engineer, applied for loan from HBFC for construction of his house on a leased Plot of land Bearing No. B-173 in Block 12, Gulistan-e-Johar, Karachi measuring 400 square yards. Some construction up to the bottom of lintel level was already completed when the funds available with the petitioner were exhausted. He, therefore, approached HBFC to secure House Building Loan under their "Ghar Aasan Scheme" (GAS) firstly through his letters dated 3-10-2008 and 9-7-2009. All the formalities to secure the loan by way of submission of transfer order, lease deed, approved building plan, letter of approval, declaration of income of the petitioner's guarantor, income per last income tax return of the petitioner, copy of Bank certificate and statement were fulfilled and provided whereas the permission to assign from Defunct KDA (CDGK) KDA Wing was applied for and "non-encumbrance" certificate was promised to be given on approval of the loan; according to brochure and its policy HBFC was under obligation to facilitate the extension of loan but the same was being denied though the construction was going on at an accelerated pace and immediate investment through the needed loan from HBFC was required.

2. The eligibility criterion of the HBFC of submission of a guarantee was restricted to be offered by a sanguine relation of the borrower having an inheritable right. The maximum loan facility could rise to Rs. 75,00,000 yet the petitioner applied for only Rs. 30,00,000 and such demand too was further reduced to Rs. 1500,000 by the petitioner during his arguments.

3. It is stated that the market value of the plot with existing construction was Rs. 9 million. The equity participation of HBFC and the petitioner was in ratio of 70%: 30% respectively under the Rules of Ghar Asan Scheme (GAS) and the petitioner could be entitled to a loan of Rs. 6 million yet he had originally applied for a loan of Rs. 3 million and that though House Building Finance Corporation Limited was keen to provide loans to the property developers, it was ironical that the largest number of defaulters were also the developers as depicted by an advertisement in the newspaper giving their list for auction of properties on 9-9-2009 and since it is for the HBFC to approach and negotiate with developers therefore undue preference was given to them in providing loans which amounted to discrimination.

4-A. It is stated that HBFC is carrying risk free business by mortgaging the property of borrowers, obtaining post-dated cheques and a guarantee, lodging registration of F.I.Rs. if such cheques were dishonoured and proceedings were also being instituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and by such available stratagems loans were fully secured yet the HBFC it is claimed was denying loan to the petitioner by not adhering to the conditions of investment as laid down under Section 24 of the House Building Finance Corporation Act, 1952. It was submitted that the loans offered by HBFC are supposed to be Shariah-compliant pursuant to the Federal Shariat Court's Order, but despite that HBFC had switched to "Flexi loan" at the highest 17.5% rate of markup per annum with the moratorium of 12 months and payment of markup even on the portion of a loan advanced was to be made from the very next month of its release and the petitioner being hard pressed was constrained to accept all such painful conditions.

1. It is stated that the Branch Manager of HBFC objected to the grant of loan on the ground that investment of Rs. 12,00,000 had already been made to the wife of petitioner, a different person on "GAS" on the guarantee of her son through Account No. 847000450-4. The said loan was however being paid back by the petitioner's wife regularly every month since past 4 years without a single default and further when it was the policy of HBFC to provide loan up to Rs. 75,00,000 on a single property, such objection of HBFC Branch was not tenable for the simple reason that the loan asked for was for a different person and property.

2. The guarantee by the petitioner's daughter was not considered as platable on the ground that she had inadequate income. The petitioner submitted that his proposed guarantor daughter was only 35 years old whereas under GAS (Flexi) the loan was recoverable within 21 years and if such period is added to the age of guarantor she would in any case repay the loan before reaching the age of 60 years as prescribed. The guarantee of the petitioner's son who had already guaranteed repayment of loan secured by the petitioner's wife was also not acceptable and he was left with no other alternative but to offer guarantee through his daughter having inheritable right vide letter dated 30-7-2009. She was having her Account No. 5485-7-1 and had a balance of Rs. 885,857 at the relevant time. She was also owning a plot of 10 marla is Ahbab Housing Society (Pvt.) Limited, in Shadab Colony, Phase 3, Ferozabad Road, Lahore, worth Rs. 1.2 million per allotment letter filed by her and that she also had a regular monthly rental income of Rs. 100,000 and she owned property having value of Rs. 2 million and being a housewife did not require NTN and had also income from her household savings and gifts from parents and in-laws yet her guarantee was not acceptable. The petitioner submitted that he himself is self-employed as Site Engineer of S.S. Corporation (Pvt.) Limited and according to his certificate placed by him on record he had income of Rs. 390,000 in the year, 2008 and was in possession of Income Tax returns for two years with effect from 2007 to 2009 which showed his yearly income having touched the figure of Rs. 2,80,000 and Rs. 400,000 respectively.

3. On the other hand HBFC contended that the petitioner was more than 65 years old and he, therefore, did not qualify for demanding investment of Rs. 30,00,000 and under Ghar Asan Scheme (Flexi) he did not have requisite repayment period left at his disposal due to advance age and his guarantor daughter was only a housewife who had not shown any verifiable adequate means.of income which was stated to be Rs. 1 lac nor was she an income tax assessee and there was no assurance of regular repayment of loan by way of instalments. The petitioner could not as such be granted the loan and penal action by HBFC could, on the contrary be taken against him for misrepresentation and concealment under the provisions of House Building Finance Corporation Act, 1952.

4. On behalf of the respondent, State Bank of Pakistan, it was stated that the State Bank had no policy to issue any instruction to HBFC with regard to its business transactions and decisions and the question of grant of loan was purely a matter of mutual concern of the petitioner and HBFC.

5. We have heard the learned counsel and the learned DAG.

6. The learned counsel for HBFC stressed upon the contentions of HBFC already dealt with above and submitted that HBFC had been wound-up by the Federal Government and all of its assets, rights, liabilities, contracts, proceedings, business and undertakings would stand dissolved on the sixtieth (60th) day from the "effective date". Attention of this Court was drawn to S.R.O. 988(I)/2009 dated 10.11.2009 issued by the Government of Pakistan Finance Division whereunder the powers conferred by Section 3-A of the Banking Companies Ordinance, 1962 the Federal Government on the recommendation of the State Bank of Pakistan specified HBFC Limited as a Financial Institution for the application of the provisions of said section. This notification was made effective retrospectively from 25.7.2007.

7. The learned counsel for House Building Finance Corporation Limited was provided with several opportunities and consequently the matter was adjourned from time to time; all the same he could not satisfy this Court as to when the conditions of investment under Section 24 of the House Building Finance Corporation Act, 1952 were fulfilled why HBFC could not grant the loan asked for. It may be advantageous in this context to reproduce Section 24 of the House Building Finance Corporation Act, 1952 as follows:

"24. Conditions for Investment.:--(1) No investment shall be made unless it is fully secured by assignment of the land, the land and the house constructed or to be constructed thereon or by such guarantee as may be prescribed:"

1. From the words emphasized by underlining in Section 24 (ibid) it is pertinent that the investment can be made by House Building Finance Corporation if the assignment of the land, the land and the house constructed or to be constructed thereon is fully secured by such assignment. The petitioner is ready to mortgage and assign his right, title and interest in the land and the construction raised thereon in favour of HBFC. The investment sought from HBFC is a petty sum of Rs. 15,00,000 which would be fully secured as indicated above. Consequently the loan cannot be withheld by HBFC on the ground that guarantee being submitted was lacking in any aspect as the word "or" before the words, "by such guarantee as may be prescribed" supra is to be interpreted disjunctively and therefore no guarantee may be required at all, though in this case the petitioner's daughter having inheritable right in the subject property and who has sufficient means has come forward to give the guarantee for repayment of the loan. Other requisite instructions laid down under "Asan Ghar Scheme" (Flexi) launched on 1.10.2007 for beefing up the credibility of the guarantor such as fixing age limit, and the capacity of the guarantor as to his sufficient income being only in the nature of subordinate instructions would hardly matter when the condition of proper assignment of land with the construction as envisaged by the main statute has been met. The loan was applied on or about 30-6-2009 i.e. much before the publication of gazette notification dated 10-11-2009 of S.R.O. 988(I)/2009 whereby HBFC was notified to have become a Financial Institution under Section 3-A of the Banking Companies Ordinance, 1862 effective from 25-7-2007 which would most probably imply that HBFC held its original status of being a Corporation uptil 10-11-2009. Furthermore the Federal Government and the State Bank of Pakistan now hold 50% of its shares as reflected by Order dated 25th July, 2007 of the Government of Pakistan Finance Division (Internal Finance Wing) on record. So even if the factor of existence or otherwise of the undisclosed effective date of devolution of all assets, rights, liabilities, contracts, proceedings, business and undertakings of the HBFC Limited on the company after HBFC was wound up, as claimed is ignored the State Bank and the Federation of Pakistan jointly having 100% share holding in the successor company of HBFC if any at any time have conceded to the claim of the petitioner by showing their disinterestedness in matter of grant or otherwise of loan in question. In the said order it is mentioned that the House Building Finance Corporation shall be wound up by transferring and vesting in House Building Finance Corporation Limited ("Company") all the assets, contracts, liabilities, proceedings, business and undertaking of HBFC as provided in Schedule 1 of this ("Order") on said date as set out therein below" and further it is mentioned that HBFC shall stand dissolved on the sixtieth (60th) day from the Effective Date and on the Effective Date the entire undertaking and all the assets of HBFC shall immediately and without any conveyance or transfer and without any further act or deed be vested in and become the undertaking and assets of the Company, which shall have, hold and enjoy the same in its own right as fully as the same were possessed, held and enjoyed by HBFC prior to the Effective Date. All the same as already disclosed the effective date has not been specified in this order and it is stated in the order that such effective date shall be notified by the Federal Government in the official Gazette. Under Section 36 of the House Building Finance Corporation Act, 1952 the Corporation could be wound up by the order of the Federal Government and in such manner as it may direct. However no material has been placed on record to show that the winding up by virtue of the order of Federal Government in the manner directed by it under the order has been completed in all material respects. From the reading of the order of the Federal Government it appears that in consideration of vesting in the company all the undertakings assets and liabilities of HBFC shall be that of the Company.

2. But it is important to note that it has been further provided under the order as follows:--

"Subject to the proviso contained in paragraph 2(b) above, every agreement, contract or other instrument to which HBFC is a party shall have effect on and from the Effective Date as if:

(a) the Company had been a party thereto instead of HBFC; and

On the effective Date:--

(a) ---------------------

(b) all the Liabilities of HBFC shall immediately and without any further act or deed to be assumed by and become the Liabilities of the Company, which shall pay, undertake, satisfy, discharge and perform, when due, all of the obligations of HBFC in respect of the Existing Liabilities of HBFC; provided that where the Company and/or HBFC may not have incurred/undertaken Liabilities or obligations bona fide claimant in respect of such Liabilities has proved in a competent Court of law that such Liability was incurred and/or in accordance with law, such Liability will vest in the Company only after the claimant in respect of such Liability has proved in a competent Court of law that such Liability was incurred and undertaken bona fide and strictly in accordance with the law.

1. From the above quotations from the order it would follow that liability which HBFC incurred under Section 24 of HBFC Act, for the loan applied for has to be carried out be it the HBFC or the "Company". Change of name in the instant proceedings from HBFC to the Company under the facts and circumstances would therefore recede in inconsequential back ground.

2. Learned counsel for Respondent No. 2 who filed his Vakalatnama on behalf of House Building Finance Corporation Limited and not the Company did not at any stage argue that by virtue of virtual winding up of the Corporation in terms of Section 36 of House Building Finance Corporation Act, the Corporation which itself is an entity given birth to and created by the Act, ceased to exist and was replaced by House Building Finance Corporation Limited, a Company, with 50% even share holding of the State Bank of Pakistan and the Federal Government, is now left with its own rules of governance which too have neither been claimed to exist nor placed on record. Furthermore no application for impleading the Company if any was made. The learned Counsel for HBFC on the contrary argued that the petitioner is liable for the penalties as laid down under the Act, implying that the Act, of 1952 is still applicable to HBFC. Learned counsel for HBFC argued that upon the proper construction of Section 24 of the House Building Finance Corporation Act, 1952 it would appear that not only the investment is to be fully secured by assignment of the land, the land and the house constructed thereon but also by furnishing a guarantee. However the Learned Counsel failed to justify as to why the word "or" before words "such guarantee" in Section 24 could not be given a disjunctive meaning so as to enable the borrower from getting the loan against mortgage of his land with construction or otherwise.

3. The Government Institutions have to act with transparency HBFC in whatever form it may be now is controlled to the extent of 50% even share holding by the Federal Government and State Bank of Pakistan. The Federal Government and the State Bank of Pakistan have not opposed the plea of the petitioner by saying that S.B.P. is least concerned. In circumstances, the petitioner who has reduced his demand for the loan from Rs. 30,00,000 to Rs. 15,00,000 against mortgage of the subject land with construction thereon which is worth more than Rs. 9 million as stated can surely provide due security to HBFC for repayment of the loan as the loan would not only be secured by mortgage but guarantee as well which the petitioner is prepared to give through his daughter having an inheritable interest in his estate.

4. Accordingly in the facts and circumstances narrated above we conclude that the House Building Finance Corporation Act, 1952 in absence of notification specifying effective date continued to apply to the Respondent No. 1 and the Company both of which would be same on the lifted veil of incorporation.

5. In the facts and circumstances by a short order dated 11.5.2010 the Respondent Corporation was directed to process the application of the petitioner for a loan amount of Rs. 1500,000 and the petition was allowed to that extent and these are the reasons for the same.

(R.A.) Petition allowed.

PLJ 2011 Karachi 100 (DB)

Present: Amir Hani Muslim and Syed Hassan Azhar Rizvi, JJ

SALIM BHALLO--Petitioner

versus

LEARNED COURT OF DISTRICT AND SESSIONS JUDGE, SOUTH, KARACHI and another--Respondents

C.P. No. 1358 of 2009 converted into Crl Misc. Application No. 312 of 2010, decided on 11.10.2010.

National Database and Registration Authority Ordinance, 2000 (VIII of 2000)--

----Ss. 11 & 30--Foreigners Act, (XXI of 1946), Ss. 3(2), 13 & 14--Criminal Procedure Code, (V of 1898), Ss. 265-K & 561-A--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Violation of restrictions imposed on foreigners in Pakistan--Trial Court dismissed accused's application for acquittal under S. 265-K, Cr.P.C.--Accused contended that National Database and Registration Authority had cancelled his Pakistan Origin Card (POC) without issuing any show-cause notice to him--Accused further contended that Court was not competent to take cognizance of any offence punishable under S. 30 of ND&RA Ordinance, 2000 unless the National Database and Registration Authority had lodged complaint in writing to the F.I.A. or notify the same in Official Gazette--Validity--Investigating Officer failed to show any order of cancellation of Pakistan Origin Card (POC) of accused by the National Database and Registration Authority which was neither the complainant nor had been shown as witness in the calendar of witnesses--Accused's petition, in circumstances, was converted into criminal miscellaneous application under S.561-A, Cr.P.C. and proceedings against him before the trial Court were quashed. [P. 102] A

Mr. Jawaid Ahmed Chattari, Advocate for Petitioner.

Mr. Shahab Sarki, Standing Counsel with Inspector FIA M. Anwar (present in person).

Mr. Shafi Muhammad Memon, Addl. A.-G. Sindh.

Muhammad Riaz, Senior Prosecutor NAB.

Syed Israr Ali, Deputy Director FIA, Investigation Officer, Hasan Askari, Inspector FIA and Javed Iqbal Inspector FIA are present in person.

Mr. Salahuddin Ahmed, Advocate for Complainant/Intervener.

Date of hearing: 29.9.2010.

Judgment

Syed Hasan Azhar Rizvi, J.--The petitioner by the present petition has challenged the order dated 20-4-2009 passed by the learned District and Sessions Judge, Karachi-South, the Respondent No. 1, dismissing the application of the petitioner under Section 265-K, Cr.P.C.

1. Brief facts of the case as they appear from the record are that Enquiry No. 760/2008 conducted at AHT Circle (Anti-Human Trafficking Circle) F.I.A., Karachi on the complaint of Mr.Mahmood Hussain, resident of Karachi who informed that Mr.Salim Bhallo son of Muhammad Baker Bhallo the present petitioner, a Tanzanian National, holding Tanzanian Passport No. AB-032948 has married to Mrs. Nihad Fatima Bhallo having P.O.C. (Pakistan Origin Card) No. 8265866504802, having dual nationality i.e. Pakistani/U.K. Mrs. Nihad Fatima Bhallo died on 12th February, 2004. The petitioner on 24-7-2004, after the death of his wife Mrs. Nihad Fatima, applied for P.O.C. and accordingly on 30-12-2004 P.O.C. No. 834586-701281-1 issued to the petitioner which was valid upto 30-12-2011. After the death of his wife Mrs. Nihad Fatima Bhallo, the petitioner made frequent visits to Pakistan and stayed in Pakistan on the basis of aforementioned P.O.C, having entitlement to benefit of unlimited visa free entries into Pakistan. During the inquiry it transpired to the FIA Officials that the petitioner who is a Tanzanian national obtained POC almost six months after his wife's death. On enquiry from NADRA, the PSO to Chairman NADRA, Islamabad vide letter No. NADRA/CS/20/NCMC dated 19-9-2008 informed the F.I.A. Authorities that the POC No. 8345867012811 issued to the petitioner was cancelled due to reason that the present petitioner had no link with Pakistan. As a result of the inquiry referred hereinabove an F.I.R. No. 976 of 2008 under sections 3(2), 13/14 Foreigners Act, 1946 was registered against the petitioner on 27-10-2008 at P.S. F.I.A, Circle, Karachi. After usual investigation was carried out by the F.I.A., Anti-Human Trafficking Circle on 20-4-2009 submitted Final Charge Sheet No. 218 of 2008 in the Court of District and Sessions Judge, Karachi-South Case No 706 of 2008 is pending trial. The petitioner during trial filed an application under Section 265-K Cr.P.C. before the trial Court which was dismissed by the orders dated 20.4.2009, which orders are impugned in the present petition.

2. We have heard Mr. Jawaid Ahmed Chhattari, Advocate for the petitioner, Mr. Shahab Sarki, learned standing counsel along with Syed lsrar Ali, Deputy Director F.I.A., Mr. Shafi Muhammad Memon, Additional Advocate General Sindh Mr. Ali Haider Saleem, Assistant Prosecutor General Sindh and Mr. Salahuddin Ahmed, Advocate for the intervener/complainant Mahmood Hussain.

3. It was contended by the learned counsel for the petitioner that the petitioner has valid POC (Pakistan Origin Card) valid up to 30.12.2011, issued under Section 11 of NADRA Ordinance, 2000, to the petitioner after fulfilment of the required formalities. He further contended that NADRA without issuance of any show-cause notice to the petitioner and without providing any opportunity of hearing has illegally and unauthorized's cancelled the POC issued to the petitioner.

4. It is further contended by the learned counsel for the petitioner that if at all any offence punishable under Section 30 of the NADRA Ordinance, is committed by the petitioner no Court is competent to take cognizance of such an offence under NADRA Ordinance, 2000 unless NADRA lodges, complaint in writing to the authority or notify it in any gazette.

5. The learned counsel for the petitioner, has further contended that the charge against the petitioner is groundless and there is no probability of his conviction even entire evidence is brought on record and therefore, he has prayed for acquittal of the accused as the PIA was, not authorized to take cognizance of the offence alleged against the petitioner in the F.I.R. No. 976 of 2008 unless the competent authority (NADRA) has lodged the complaint.

6. We have called the Investigating Officer Syed Hasan Askari, Sub-Inspector F.I.A., AHT, Karachi in Court along with record, who has failed to show us any order of cancellation of POC of the petitioner by NADRA. Simply a photocopy of a letter dated 19-9-2008 written by Col. Retired Shaukat Raza P.S.O. to Chairman NADRA has been placed on record on 22-9-2010 which does not spell the date on which the POC of the petitioner was cancelled by NADRA. NADRA is neither the complainant nor has been shown as witness in the calendar of witnesses in the case before the trial Court.

7. Mr. Shahab Sarki, the learned standing counsel appearing for the Respondent No. 2, Mr. Shafi Muhammad Memon, learned Additional Advocate General Sindh and Mr. Salahuddin Ahmed, learned counsel for the complainant/ intervener in such circumstances frankly concede to the quashment of the proceedings culminating from Sessions Case No. 706 of 2008 (F.I.R No. 976 of 2008 of Police Station F.I.A., AHT Circle) pending before the Sessions Judge, Karachi-South.

8. For aforementioned reasons on 29-9-2010 at the oral request of the learned counsel for the petitioner we converted the present petition into Criminal Miscellaneous Application under Section 561-A Cr.P.C. for quashment of the proceedings culminating from F.I.R. No. 976/2008 of P.S. FIA, AHT Circle in (Sessions Case No. 706 of 2008) pending before Sessions Judge, Karachi-South.

9. The petitioner, however, would be at liberty to approach appellate authority under Section 18 of the NADRA Ordinance, 2002 for redressal of his grievance in regard to the cancellation of Pakistan Origin Card (POC), which he claims to have been cancelled without serving notice to him.

10. These are the reasons of our order, dated 29-9-2010 allowing the quashment of the aforesaid proceedings.

(R.A.) Application accepted.

PLJ 2011 Karachi 103 (DB)

Present: Gulzar Ahmed and Imam Bux Baloch, JJ.

NOMAN ABID--Petitioner

versus

STATION HOUSE OFFICER, CLIFTON, KARACHI and 3 others--Respondents

C.P. No. D-3170 of 2010, decided on 25.11.2010.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A & 25--Pakistan Penal Code, (XLV of 1860), Ss. 341, 347, 440, 441, 447, 506, 144, 145, 148 & 149--Constitution of Pakistan, 1973, Arts. 199 & 16--Wrongful restraint, wrongful confinement to extort property or constrain to illegal act, mischief committed after preparation made for causing death or hurt, criminal trespass, criminal intimidation, joining unlawful assembly armed with deadly weapon, knowing that it has been commanded to disperse, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object--Constitutional petition--Freedom of assembly--Ex-officio Justice of Peace disallowed petitioner's application for registration of case against principal and students of a private school for holding demonstration in front of petitioner's house against proposed construction of high-rise building near the school--Validity--Right to hold demonstration was conferred on every citizen as a fundamental right under Art. 16 of the Constitution which provided that every citizen should have the right to assemble peacefully and without arms subject to any reasonable restrictions imposed by the law in the interest ofpubiic order--Holding of demonstration and freedom of assembly were essential elements in a democratic set-up; such right had to be construed liberally--Right to assemble peacefully was a sacred and inalienable right which could not be abridged or construed or termed an offence of unlawful assembly--Right guaranteed under the Constitution could not be translated as a crime as the same would amount to denial of such right undermining the ideas of civil liberty, freedom of expression and freedom of assembly--Exercise of fundamental right by the citizens could not justifiably be made ground for registering F.I.R. against them--Demonstration in question was held in exercise of right of freedom of assembly in terms of Art. 16 of the Constitution--Petition was dismissed. [P. 105] A

PLD 2007 SC 539 and PLD 2005 Kar. 285 ref.

Mr. Muhammad Anwar Tariq, Advocate for Petitioner.

Date of hearing: 25.11.2010.

Order

Gulzar Ahmed, J.--By this petition, petitioner seeks direction for registration of F.I.R.

1. Learned counsel for petitioner has contended that the petitioner has applied to the Ex-Officio Justice of Peace for registration of F.I.R., who has disallowed such application and that order disallowing petitioner's request was not legally justifiable and in support of his submissions has relied upon the cases of Muhammad Bashir v. Station House Officer (PLD 2007 SC 539) and Naseem Ahmed v. District and Sessions Judge (PLD 2005 Karachi 285).

2. We have considered the submissions of learned counsel.

3. It seems that petitioner lives in a house built on plot of land on which 20 storey commercial building is proposed to be constructed. Such plot happens to be adjacent or near about Karachi Grammar School. The construction of such commercial building is being opposed by Karachi Grammar School, its students and their parents. A demonstration against such construction was held on 12-10-2010 in which as alleged by learned counsel for the petitioner the Principal of the school, students and their parents participated and that such demonstration was held in front of main gate of petitioner's house and it is alleged that it was a mob chanting slogans and using derogatory language. An application under Section 22-A read with Section 25, Cr.P.C. for registration of case against the Principal of Karachi Grammar School, his associates and accomplice and police officials under sections 341, 347, 440, 441, 447, 506, 144, 145, 148 and 149, P.P.C. read with sections 6/7 of Anti-Terrorism Act, 1997 was filed. Through order dated 25-10-2010 learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi-South dismissed such application.

4. It appears that the principal, students and their parents of Karachi Grammar School were demonstrating against proposed construction of commercial high-rise building adjacent or near about the said school. Such demonstration appears to have taken place on a public road in front of the house of petitioner where the commercial high-rise building is proposed to be constructed. The right to hold demonstration is conferred on every citizen as a fundamental right under Article 16 of the Constitution, which provides that every citizen shall have the right to assemble peacefully and without arms subject to any reasonable restrictions imposed by the law in the interest of public order. Holding of demonstration and freedom of assembly is an essential element in a democratic setup. Such right has to be construed liberally and is to be given full effect until a reasonable restriction on it is imposed by law in the interest of public order. Such sacred and inalienable right cannot be abridged or restricted nor can it be allowed to be construed or termed as an offence of unlawful assembly. A guaranteed right under the Constitution cannot be translated as a crime as mere apprehension or fear in the mind of a citizen of such right being labelled as crime will amount to negation and denial of such right weakening the concept of civil liberty, freedom of expression, freedom of assembly etc. and erode the institution of democracy. The exercise of fundamental right by the citizen cannot justifiably be made ground for registering of F.I.R. against them.

5. In the cited judgment Muhammad Bashir (supra) it is not laid down by Hon'ble Supreme Court that in all circumstances, the High Court is required to give directions for registration of F.I.R. rather it is noted that exercise of discretion under Article 199 of the Constitution was not dependent on an illegality committed by a competent authority but was also controlled by some other important considerations such as the seeker of a writ being an aggrieved person, availability of alternative remedies such as filing of a complaint etc. and the applicant being qualified in equity for grant of relief sought. Such being the legal position and we having come to the conclusion that it was case of demonstration and freedom of assembly in terms of Article 16 of the Constitution, therefore, we find no merit in this petition.

6. After hearing the learned counsel, by a short order passed on 8-11-2010, the petition was dismissed. Above are the reasons for the same.

(R.A.) Petition dismissed.

PLJ 2011 Karachi 106 (DB)

Present: Gulzar Ahmed and Imam Bux Baloch, JJ

Messrs KADRIAH-I LTD. through duly Constituted Attorney--Appellant

versus

M. V. "SPLENDOUR" through Owner, and 2 others--Respondents

Admiralty Appeal No. 3 of 2010, decided on 13.11.2010.

Admiralty Jurisdiction of High Courts Ordinance, 1980 (XLII of 1980)--

----Ss. 3 & 4--Admiralty suit for arrest of defendant-ship--Agreement for sale of plaintiff's ship with owner of defendant-ship--Sale of ship by plaintiff to another person for non-compliance of obligations by owner of defendant-ship under such sale agreement--Question of--Maintainability--Plaintiffs suit for damages against owner of defendant-ship on account of its such default pending in a Court abroad--Filing of such suit by plaintiff for having suffered damages on account of such default by owner of defendant-ship-- Maintainability--Action in rem under 5. 3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980 was permissible only against a delinquent or defaulting ship--Plaintiff's claim neither arose out of any of conditions nor of a nature provided in S. 3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980 upon or against a ship owned or possessed by defendant--Plaintiff's claim for damages suffered on account of such default by defendant was not covered by provisions of S. 3(2) of Ordinance, thus, could not be enforced in rem against defendant-ship--Suit being not maintainable was dismissed. [Pp. 112 & 113] A, B & C

1993 Supp (2) SC Caess 433 and PLD 1993 SC 88 ref.

PLD 1994 SC 894 rel.

Dr. Farogh Naseem, Advocate for Appellant.

Date of hearing: 13.11.2010.

Order

Gulzar Ahmed, J--By this appeal, the appellant has challenged the order dated 6-11-2010, passed by a learned single Judge in Admiralty Suit No. 12 of 2010, by which the application seeking arrest of the Respondent No. 1 ship was dismissed as not maintainable.

1. The facts as argued by learned counsel are that the appellant has entered into an agreement for sale of its ship M.T. Kadriah-I with the Respondents Nos. 2 and 3. The said agreement of sale apparently did not materialize for non-compliance of obligations by the Respondents Nos. 2 and 3, pursuant to which the appellant entered into an agreement for sale of the said ship with another party. While the appellant claims to have sold the said ship to another party, Respondents Nos. 2 and 3 are alleged to have given notice of caution regarding their claim over the said ship. Learned counsel has contended that appellant has suffered loss on account of default of Respondents Nos. 2 and 3 and in this respect has filed its claim for damages in the Court in London and that claim of appellant being covered by the provisions of Section 4(4)(b) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, the respondent ship is liable to be arrested and in support of his submission has relied upon the case of M.V. Elisabeth and others v. Harwan Investment and Trading (Pvt.) Ltd. (1993 Supp (2) Supreme Court Caess 433) and Atlantic Steamer's Supply Company v. M.V. Titisee and others (PLD 1993 SC 88).

2. We have considered the submission made by learned counsel and have gone through the record of the case.

3. The provisions of sections 3 and 4 of the Admiralty Jurisdiction of High Courts Ordinance, 1980 (the Ordinance) are as follows:--

"3. Admiralty Jurisdiction of the High Court.--

(1) The Sindh High Court and the High Court of Baluchistan shall have the exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance, provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.

(2) The Admiralty jurisdiction ot the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claims--

(a) Any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship;

(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or any share therein;

(d) any claim for damage done by a ship;

(e) any claim for damage received by a ship;

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for which wrongful acts, neglects or defaults, the owners, charterers of persons in possession of control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

(g) any claim for loss of or damage to goods carried in a ship;

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

(i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters of internal waters or in a port, including any claim arising by virtue of the application by or under Section 12 of the Civil Aviation Ordinance, 1960, (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo;

(j) any claim in the nature of towage in respect of ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;

(k) any claim in the nature of pilotage in respect of a ship or an aircraft;

(l) any claim in respect of necessaries supplied to a ship;

(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

(n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered;

(o) any claim by a master, shipper, charterer or agent in respect of disbursement made on account of a ship;

(p) any claim arising out of an act which is or is claimed to be a general average act;

(q) any claim arising out of bottomry or respondentia;

(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for Doritos of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which has vested in the High Courts as a Court of Admiralty immediately before the commencement of this Ordinance, or is conferred by or under any law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.

(3) The jurisdiction of the High Court under clause (b) of sub-section (2) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.

(4) The reference in clause (i) of sub-section (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel of wreck as, under any law for the time being in force, are authorised to be made in connection with a ship or an aircraft.

(5) The preceding provisions of this section apply:--

(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered or not and whether the residence or domicile or their owners may be;

(b) in relation to all claims, wheresoever arising including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and

(c) so far as they relate to mortgages and charges, to all mortgages and charges created under the foreign law:

Provided that nothing in this sub-section shall be construed as extending to cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923).

1. Mode of exercise of Admiralty jurisdiction:--

(1) Subject to the provisions of Section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam.

(2) The Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d), (i) and (r) of sub-section (2) of Section 3 be invoked by an action in rem against the ship or property in question.

(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.

(4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of sub-section (2) of Section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner of charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against--

(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

(5) In the case of the claim in. the nature of towage or pilotage in respect of an aircraft, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that aircraft if at the time when the action is brought it is beneficially owned by the person who would be liable on the claim in an action in personam.

(6) In the case of a claim in the nature of a maritime lien, other than a claim on a Bottomry or Respondentia bond or to the possession of the ship, the Admiralty jurisdiction of the High Court may be invoked by an action in personam against the owners of the property which would have been arrested if the proceedings had been in rem.

(7) Notwithstanding anything in the preceding provisions of this section, the Admiralty jurisdiction of the High Court shall not be invoked by an action in rem in the case of any such claim as is mentioned in paragraph (n) of sub-section (2) of Section 3 unless the claim relates wholly or partly to wages, including any sum allotted out of wages or adjudged by a competent authority under the relevant law to be due by way of wages.

(8) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircraft or other property to be sold, the Court shall have jurisdiction to hear and determine any question arising as to the title to, or priorities of claim in, the proceeds of sale.

(9) In determining for the purposes of sub-sections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his ordinary residence or a place or business within Pakistan.

1. From reading of above provisions it is apparent that provision regarding invoking an action in rem against a ship are laid down in Section 3(2) of the Ordinance, and its various sub-clauses, which all deal with question of ownership, mortgage, damage done, damage received, loss of life, personal injury, damage to goods, claim arising out of agreement relating to carriage of goods, salvage of life and property, towage, supplies, construction, repairs, claim of master and crew, disbursement, general average, claim arising out of bottomry or respondent, forfeiture or condemnation of goods etc. which all have to do with a delinquent or defaulting ship and in this respect an action against res is permissible in law.

2. In the case of Messrs V.N. Lakhani and Company v. M.V. Lakatoi Express and 2 others (PLD 1994 SC 894) while dealing with application of Section 4(4) of the Ordinance, the Hon'ble Supreme Court has observed as follows:--

"In applying Section 4(4) one has to take into consideration the existing facts at the time when cause of action arose in connection with the offending ship. In order to invoke the jurisdiction, the plaintiff has to establish that:--

(1) the claim falls in any of the clauses as mentioned in clauses (e) to (h) and (j) to (q) of sub-section (2) of Section 3 and arises in connection with a ship.

(2) when the cause of action for action in personam arose.

(3) the person liable in an action in personam at the time when such cause of action arose, was the owner or charterer of or in possession or in control of the offending ship.

(4) the offending ship or any other ship which is sought to be arrested, at the time action is brought is beneficially owned as respects majority shares by the person liable on the claim in an action in personam."

1. In the present case the claim of appellant does not arise out of any of the conditions provided in Section 3 (2) of the Ordinance, as the appellant has no claim of a nature provided in Section 3(2) of the Ordinance, upon or against any of the ship that may be owned or possessed by Respondents Nos. 2 and 3. The claim of the appellant is that it has suffered damages on account of agreement made by it for selling of its ship M,T. Kadriah-I to Respondents Nos. 2 and 3, who have failed in their obligations resulting in selling of said ship by the appellant to some other party. Such damages apparently are not covered by the provisions of Section 3(2) of the Ordinance, and can not, in our view, be enforced in rem against Respondent No. 1 ship, said to be owned by Respondents Nos. 2 and 3.

2. After hearing the learned counsel by a short order passed on 13-11-2010, the appeal was dismissed, above are the reasons for the same.

(R.A.) Appeal dismissed.

PLJ 2011 Karachi 113

Present: Faisal Arab, J

Mst. UZMA REHMAN--Appellant

versus

PUBLIC-AT-LARGE--Respondent.

Misc. Appeal No. 33 and CM. A. No. 2589 of 2009, decided on 21.1.2010.

Succession Act, 1925 (XXXIX of 1925)--

----Ss. 371 & 384--Grant of Letter of Administration--Jurisdiction--Scope--Deceased husband of applicant who was residing at place, K had left movable and immovable properties at K as well as at place K--Earlier, a succession certificate was granted on application filed at place K however application for grant of Letters of Administration for immovable property left by the deceased at place L was dismissed on ground that property in-question was situated at place L and applicant should approach the Court having jurisdiction--Under S.371 of Succession Act, 1925 jurisdiction lay with the Court where the deceased ordinarily resided--In the present case succession certificate had already been granted by the Court at place K which established that the deceased resided at place K at the time of his death--No justification was available for the Court at place K to dismiss the application for grant of Letter of Administration in respect of the property left by the deceased at place L--Impugned order was set aside and Court was directed to proceed with the matter accordingly. [P. 114] A & B

Mr. Muhammad Akbar Awan, Advocate for Appellant.

Date of hearing: 21.1.2010.

Order

Learned counsel for the appellant states that at the time of his death deceased Shaikh Mujeeb-ur-Rehman, husband of the appellant, was residing at Karachi, who had left movable and immovable properties at Karachi as well as at Lahore. Earlier a Succession Miscellaneous Application for grant of Succession Certificate was filed at Karachi which was granted. However, the application for grant of Letters of Administration for immovable property left by the said deceased at Lahore was dismissed by the learned Vth Additional District Judge, Karachi South, on the ground that the property in-question is situated at Lahore and the appellant should approach the Court having jurisdiction.

Learned counsel for the appellant states that under Section 371 of the Succession Act, 1925, jurisdiction lies with the Court where the deceased ordinary resided. In the present case Succession Certificate has already been granted by the Court at Karachi, which establishes that the deceased resided at Karachi at the time of his death. Therefore, there was no justification for the learned Vth Additional District Judge, Karachi South to dismiss the application for grant of Letters of Administration in respect of the property left by the deceased at Lahore.

In the circumstances, the appeal is allowed and the impugned order date 18-5-2009 is set aside. The learned Vth Additional District Judge, Karachi South is directed to proceed with matter accordingly.

(R.A.) Appeal allowed.

PLJ 2011 Karachi 114

Present: Irfan Saadat Khan, J

Syed ANWAR ADIL SHAH--Applicant

versus

Syed QAMAR-UZ-ZAMAN SHAH--Respondent

Civil Revision Application No. 144 of 2009, decided on 26.11.2010.

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

----S. 12--Civil Procedure Code, (V of 1908), O. XL, R. 1--Suit for specific performance of agreement--Plaintiff was in use of property in dispute since 2006 and had filed suit for specific performance of agreement and permanent injunction on the ground that defendant had failed to execute sale-deed--Defendant filed application under O.XL, R.1, C.P.C. for the appointment of Receiver in respect of the disputed property--Trial Court allowed application and appointed Receiver with direction to the Receiver to maintain all accounts of the money under proper intimation to the Court--Plaintiff filed appeal which was allowed by the appellate Court and application for appointment of Receiver was dismissed--Validity--Disputed property was in use of the plaintiff since 2006 and it would not just and convenient to dispossess plaintiff from the property on the ground of some unfounded, unproven facts and mainly on the basis of some vague allegations--No material was brought on record for proving the allegations levelled by the defendant to substantiate his averments--Defendant had failed to establish that the disputed property, which was given by him to the plaintiff after the sale agreement, was in any danger of being dissipated, wasted or there was strong apprehension of manifest peril to the said property except by levelling allegation that some trees were being cut or the plaintiff was constructing a children playground on the disputed property of which neither any evidence nor any material was produced either before the Trial Court or before High Court--High Court dismissed petition and observed that the suit between the parties was pending adjudication and while deciding the same the Trial Court would not be influenced by the present order and would pass an independent order keeping in view the facts and circumstances of the case on merits. [Pp. 118 & 119] D, F, G, H & L

2004 MLD 1624; 1993 CLC 1606; 1988 CLC 1567 and PLD 2004 Kar. 269. ref.

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

----O.XL, R. 1--Receiver, appointment of--Object--Reciver was generally appointed to preserve the subject matter of litigation which was pending adjudication till the rights of the parties were finally determined--Main object behind appointing a Receiver was to safeguard the interest of the contesting parties as well as the property, however; a party giving such application had to first make out a prima facie case. [P. 117] A

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

----O. XL, R. 1--Receiver, appointment of--Scope--Appointment of Receiver did not mean final determination of the rights of the parties--Court had the discretion to appoint or not to appoint a Receiver, however, such discretion had to be exercised judiciously by following the norms of the law to protect the rights of the citizens. [Pp. 117 & 118] B

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

----O. XL, R.I--Receiver, appointment of--Scope--Appointment of Receiver was the harshest remedy provided under the law which would tantamount to dispossessing a person, who was already in possession of the said property. [P. 118] C

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

----O. XL, R.1--Interpretation of O.XL, R.I, C.P.C.--Words "just and convenient" used in O.XL, R.I, C.P.C. had to be interpreted depending upon the facts of each case--Such word denote convenience of the party and not that of the Court. [P. 118] E

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

----O. XL, R.1--Receiver, appointment of--Scope--Appointment of Receiver being a quite harsh step, this power available to the Court, was to be exercised only when a person would establish a special equity in his favour and made a case of exceptional circumstances. [P. 119] I

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

----O. XL, R.1--Receiver, appointment of--Where a person failed to establish that there existed specific instances of (alleged) wastage, mismanagement, misappropriation and manifest peril, the Courts usually refuse to appoint Receiver until and unless a case was made out by the person urging for such action, depending upon the facts of each case. [P. 119] J

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

----O. XL, R.1--Receiver, appointment of--Discretion of Court--Scope--Discretion to appoint or not to appoint a Receiver was to be exercised judiciously keeping in view the attending circumstances of each case--Where such circumstances were wanting, Receiver could not be appointed, as same would not be "just and convenient" in view of the facts of the case. [P. 119] K

Mr. Aftab Ahmed Shaikh, Advocate for Applicant.

Nemo for Respondent.

Date of hearing: 26.11.2010.

Order

This Civil Revision has been filed against the order dated 8.8.2009, passed by the Additional District Judge, T.M. Khan, (A.D.J.) by which the order dated 6-11-2008 passed by the Senior Civil Judge, T. M. Khan, allowing application under Order XL, Rule 1, C.P.C. filed by the respondent for appointment of receiver, was set aside.

1. Briefly stated the applicant entered into an agreement of sale in respect of 108 acres of agricultural land, situated in Deh Jamarki Tapa Saeedupur, Taluka Bulri Shah Karim, with the respondent for a sale consideration of Rs. 95,00,000. Thereafter, the respondent paid certain amounts to the applicant and physical possession of the suit land was delivered to the respondent on the date of signing the said agreement. Thereafter, the respondent filed a suit for specific performance and permanent injunction, as according to the respondent, the applicant has failed to execute the final sale-deed, which case is pending adjudication before the lower Court. In the meantime, the respondent filed an application under Order XL Rule 1, C.P.C. for appointment of receiver, which application was allowed by appointing the Mukhtiarkar (Revenue), Taluka Bulri Shah Karim as receiver of the entire suit land with the direction that the said receiver shall maintain all accounts of the money in respect of the suit property under proper intimation to the Court as well as he will have the authority to manage the affairs of the property for protection, preservation and improvement of the suit property and collection of the rents and profits thereof.

2. Mr. Aftab Ahmed Shaikh, learned counsel appearing on behalf of the applicant has submitted that the learned A.D.J. was not justified in setting aside the appointment of the receiver in respect of the suit property. He submitted that only a sale agreement was executed between the applicant and the respondent which did not confer any proprietary right over the disputed land to the respondent. He further submitted that the order passed by the learned A.D.J. is violative of Section 55 of the Transfer of Property Act. He submitted that the powers under Order XL Rule 1, C.P.C. were exercised by the Senior Civil Judge after coming to the conclusion that it was "just and convenient", in view of the facts of the case. However, the A.D.J. has neither discussed nor mentioned that what were the reasons and justifications for setting aside the order of Senior Civil Judge who, according to the learned counsel, appointed the receiver after detailed deliberation and after considering the facts of the case. In support of his arguments, the learned counsel has relied upon 2004 MLD 1624, 1993 CLC 1606, 1988 CLC 1567 and PLD 2004 (Karachi) 269.

3. No one has appeared on behalf of the respondents though notices were issued to him through all modes, even publication was also made, but the respondents had chosen not to appear before this Court.

4. I have heard the learned counsel appearing on behalf of the applicant and have perused the record as well as case-laws relied upon by him and my findings are as under.

5. Receivers are generally appointed to preserve the subject matter of litigation, which is pending adjudication till the rights of the parties are finally determined. The main object behind appointing a receiver is to safeguard the interest of the contesting parties as well as the property. However, a party giving such application has to first make out a prima facie case. The appointment of receiver does not mean final determination of the rights of the parties. It is the discretion of the Court to appoint or not to appoint a receiver, however, such discretion has to be exercised judiciously by following the norms of the law to protect the rights of the citizens. It is also a well settled proposition of law that appointment of receiver is the harshest remedy provided under the law of C.P.C, which would tantamount to dispossessing a person, who is already in possession of the said property.

6. In the present case the applicant has failed to establish that the property, which was given by him to the respondent after the sale agreement was in any way, danger of being dissipated, wasted or there is strong apprehension of manifest peril to the said property except by levelling allegation that some trees are being cut or the respondent is constructing a children playground on the said property, of which neither any evidence nor any material was produced either before the trial Court or before this Court.

7A. It is an admitted position that the applicant and the respondent are near relations, however, they are dagger-drawn with each other and it is being prayed on behalf of the applicant that as the property is in possession of the respondent, there is a danger of the property being damaged, wasted and dissipated and it would be equitable for the preservation of the property that a receiver be appointed. A suit for specific performance between the parties is pending adjudication hence no finding with that regard is being given, which would prejudice the said pending suit.

1. It is also an admitted position that an application under Order XXXIX, Rules 1 and 2, C.P.C. was filed by the present respondent before the Senior Civil Judge T.M. Khan, which was allowed vide order dated 6-11-2008 and the present applicant was restrained from selling, mortgaging, renting out etc. of the said property. The words "just and convenient" used in the Order XL, Rule 1, C.P.C. have to be interpreted depending upon the facts of each case. These word denote convenience of the party and not that of the Court. In the instant case the property in dispute was in use of the respondent since 2006, hence, in my view, it would not be just and convenient to dispossess him from the property on the ground of some unfounded, unproven facts and mainly on the basis of some vague allegations. In the instant case as mentioned above no material was brought on record for proving the allegations levelled by the applicant to substantiate his averments.

2. The case-law relied upon by the learned counsel for the applicant are quite distinguishable, as in those decisions the Courts have held that receiver is mostly appointed to protect the property from destructions, however, in the instant case the applicant has failed to adduce any evidence or material in support of his contention that the respondent in any way is causing damage to the said property. It is interesting to note that admittedly it is the applicant himself who after signing of the sale agreement handed over the possession of the property to the respondent and the application for appointment of receiver, in my view, appears to be an afterthought on his part.

3. As stated above, the purpose of appointing the receiver is to safeguard/preserve the property but the person filing the said application has to first make out a prima facie case for such appointment through cogent material and evidence, whereas in the present case no such material has been placed either before the trial Court or before this Court to substantiate his claim. It is a trite proposition of the law that appointment of the receiver is a quite harsh step and this power available to the Court is to be exercised only when a person would establish a special equity in his favour and make out a case of exceptional circumstances which, in the present case, appears to be lacking. Where a person fails to establish that specific instances of alleged wastage, mismanagement, misappropriation and manifest peril the Courts usually refuses to appoint the receiver until and unless a case is made out by the person for interference depending upon the facts of each case. The discretion to appoint or not to appoint a receiver is to be exercised judiciously keeping in view the attending circumstances of each case and where those circumstances are wanting receiver could not be appointed, as it would not be "just and convenient" in view of the facts of the case. Hence, in my view, the necessity of appointing a receiver in the present case was rightly set aside by the A.D.J.

4. For the foregoing reasons, the order passed by the A.D.J., T.M. Khan, in my view, does not suffer with any legal infirmity and the same is hereby upheld. Resultantly, this revision application is dismissed. It is however, clarified that as a suit for specific performance and injunction between the parties is pending adjudication hence while deciding the same the learned trial Court would not be influenced by the present order and would pass an independent order keeping in view the facts and circumstances of the said case on merits.

(R.A.) Order accordingly.

PLJ 2011 Karachi 120 (DB)

Present: Muhammad Athar Saeed and Munib Akhtar, JJ.

MUHAMMAD ZAHID through Legal Heirs--Appellants

versus

Mst. GHAZALA ZAKIR and 7 others--Respondents

H.C.A. No. 127 of 1996 and CM. As. Nos. 988 of 1996, 140 of 1997, 1954 of 1998, decided on 12.11.2010.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Civil Procedure Code, (V of 1908), O. XX, R. 13--lntra-Court Appeal--Administration suit--Maintainability--Scope--Gift in favour of legal heir--Plaintiff claimed that property in-question was gifted in her name by deceased in his life time, therefore, it did not stand in his name at the time of his death and could not be questioned in administration suit--Plea raised by defendant was that since gift in-question related to a matter that was among the heirs, validity of gift could be determined in administration, suit--Validity--Nature of administration suit was limited, inasmuch as it was intended only to settle issues and matters among the sharers--When such considerations were balanced, the proper test to establish whether the determination lay within the scope of an administration suit or beyond which was if determination did not disturb inter se position of sharers and affect all sharers equally, then the question would lie outside the scope of administration suit--If however, determination affected and upset inter se position of sharers and might give one or more of the heirs advantage over the others, then the question would lie within the scope of administration suit and it was immaterial whether alienation sought to be challenged was by way of registered instrument or otherwise--Preliminary decree passed by Trial Court was set aside and case was remanded to Trial Court--Appeal was allowed accordingly. [Pp. 130 & 135] A & B

1997 CLC 167; 1982 CLC 976 and 1984 MLD 590 dissented. 1996 CLC 1847 and PLD 1975 Kar. 979 approved. PLD 1962 SC 291 disting. PLD 1981 Kar. 177 and PLD 2009 Lah. 641 ref. 2000 MLD 122 and 2008 CLC 484 ref.

Mr. Shafaat Hussain, Advocate for Appellants.

Mr. Abid S. Zuberi, Advocate for Respondents.

Date of hearing: 12.11.2010.

Order

Munib Akhtar, J.--The present appeal arises out of an administration suit filed on the original side of this Court in which, by means of the impugned judgment dated 9-5-1996, the learned single Judge made a preliminary decree in respect of the properties of the deceased. The impugned judgment is reported as Ghazala Zakir v. Muhammad Khurshid and others 1997 CLC 167, and for convenience, all references to page numbers are to the reported version of the judgment.

1. The administration suit was filed by the present Respondent No. 1, as plaintiff, against the present appellant and the other respondents, as defendants. All of the parties are the heirs of the deceased Haji Muhammad Zakir. (It may be noted that some of the parties have since expired and are being represented in these proceedings by their successors in interest.) A number of issues were framed by consent (see page 169), of which only two inter-connected ones fall for determination in the present appeal. In his written statement, the present appellant took the stand that one property, located at North Nazimabad ("the subject property"), was also the property of the deceased and thus formed part of his estate and was liable to be administered along with the rest of the latter's properties. The case of the present Respondent No. 1 in respect of this property was that the deceased had gifted the same to her during his lifetime and that therefore the said property, and any issue relating thereto, including in particular, the question of the validity of the gift, lay outside the scope of an administration suit. In respect of the subject property, the following issues were framed by the Court:

"Whether the deceased owned other property i.e. Plot No. 1-499 (200 square yards) North Nazimabad, Karachi at the time of his death? If so, its effect on the suit?"

"Whether the deceased gifted Plot No. 1-499, Block `T' North Nazimabad, Karachi to the plaintiff during his lifetime?"

1. On 30-1-1992, it was ordered that these issues needed to be determined in particular since that would determine whether the said property came within the scope of the administration suit (the order is reproduced at pg. 170). The learned single Judge heard detailed arguments from learned counsel, and case-law was also extensively cited before him. The case of the plaintiff (i.e., the present Respondent No. 1) was that the subject property had been gifted to her during the lifetime of the deceased and did not stand in his name at the time of his death. The validity or otherwise of the gift could not therefore be questioned in an administration suit since the scope of such a suit was limited only to determining and administering those properties which stood in the name of the deceased at the time of his death. On the other hand, the case put forward by the present appellant was that since the gift in-question related to a matter that was inter partes among the heirs, the validity of the gift could be determined in an administration suit. After considering the matter, the learned single Judge came to the following conclusions and made the following observations (pages 175-6):

"(12) Resume of above case-law indicates that there is a very thin line in-between the properties which are to be made subject-matter of the administration suit and which are to be excluded therefrom. The ratio decidendi of the above case-law is that generally in a suit for administration of the properties left by a deceased involves all such properties left by him but with some distinction. The Hon'ble Supreme Court of Pakistan has always discouraged multiplicity of proceedings and disposal of cause in piecemeal. This is the spirit of Order II, Rule 3, C.P.C. which provides joinder of cause of actions which view was followed by a learned Single Judge of this Court in the case of Mst. Ayesha Bai (PLD 1981 Karachi 177).

(13) In view of the above case-law it would be pertinent to observe that necessity for filing a suit for administration arises when there exists dispute between the creditors, next of kins and heirs at law on the question of what movable or immovable properties the deceased was seized of or entitled to at the time of his death and how such properties are to be distributed. Therefore, there may be several instances where a suit of like nature may not be allowed to be maintained. Following are the few guidelines to determine the nature of administration suit:

(a) In a suit for administration for the estate and properties left by a deceased a preliminary decree is to be first granted prior to the final decree, to ascertain the correct position of assets and liabilities, if any, of a deceased in order to share the same amongst heirs, claimants and creditors.

(b) A Court is competent to probe into title of the properties for the limited purpose to ascertain whether it was alienated at any time prior to the death of the person whose properties are sought to be administered.

(c) Where legality or validity of a registered document is challenged or where a closed and past transaction is questioned then it is out of scope of administration suit.

(d) Where any property is alienated, transferred or conveyed through a registered document during the lifetime of a deceased then such property cannot be made subject-matter of an administration suit and that a separate suit for declaration and possession is to be preferred.

(e) Where there is only a sole survivor and where a stranger/trespasser (other than creditor) is made party to the suit for administration then such suit becomes an ordinary suit and loses its character as a suit for administration.

(14) Here, I would like to lay down a mark of caution that in a suit for administration where any party claims to be owner of a property which admittedly stood in the name of deceased at the time of his death then for determination of such claim a suit for administration is maintainable. I would also like to observe that Form 17 of Appendix `D' to Schedule-I of the C.P.C. provides that a suit for administration, accounts and partition is maintainable which impliedly suggests joinder of several causes of action.

(15) It is provided under Order XX, Rule 13(1) that before passing any final decree a preliminary decree is to be ordered for taking accounts and inquiries. Therefore, I would refrain from discussing merits of the case issue-wise. I have gone through the evidence recorded by this Court and I am of the considered view that the property situated at North Nazimabad is a closed and past transaction and, therefore, cannot be made subject-matter of the suit and could not be included in the preliminary decree.

(16) All the parties have admitted execution of the will (Exh.6/1) which supports the plaintiffs plea that the property at North Nazimabad was transferred to her during the lifetime of the deceased. This operates as an estoppel against the defendants and now they cannot be allowed to take turn and challenge the same in this suit."

(emphasis supplied)

On the foregoing basis, the learned single Judge made a preliminary decree for the administration of the estate of the deceased from which the subject property stood excluded. Being aggrieved by this judgement and decree, the present appellant preferred the instant appeal.

1. Mr. Shafaat Hussain, learned counsel for the appellant, submitted that the learned single Judge had erred materially in his appreciation of the scope of an administration suit. He submitted that that the Court seized of an administration suit had ample jurisdiction to decide all matters between the heirs, including whether any alienation made by the deceased during his lifetime to an heir was valid or not. He referred to a number of decisions, including a decision of a single Judge of this Court reported as Ghulam Jilani and others v. Abdul Kadir and others 1996 CLC 1847. This was a case involving an administration suit in which one of the properties sought to be administered as part of the estate of the deceased was claimed by one of the heirs as his own property, although as the learned Judge noted, the heir did not in his pleadings specifically over the basis on which he claimed that the property was his. It was contended that the question whether the deceased had title to the property being claimed by the heir could not be the subject of an administration suit. A number of cases was cited before the learned single Judge and considered by him, being essentially the same case law that was considered in the impugned judgment. The contention was repelled by the learned single Judge, who held as follows:--

"What then, is to be scope of such an inquiry to ascertain what immovable property the deceased was seized of or entitled to at the time of his death? and is the Court debarred from making such an inquiry merely because a defendant asserts simply that he claims a property in his own right? It is true that the scope of a suit for administration is limited and such a suit cannot be converted into a suit for an altogether different purpose such as setting aside alienations by the deceased but, on principle, there appears to be no reason why in a suit for administration properly so-called, viz. a suit the main or the real object of which is to obtain administration of the estate of the deceased, the Court should not determine the question of a party's claim to be entitled to a property in his own right and for that purpose determine the existence or validity of any alleged alienation by the deceased; for ultimately determination of such questions is nothing more than an inquiry as to what property the deceased was seized of or entitled to at the time of his death. If it were otherwise, any suit, even if its main or real purpose is to have the estate of the deceased administered, would be liable to be defeated merely by the defendant alleging that he is the owner of the property in-question; and the result would be multiplicity of litigation." (pp. 1851-52)

"It would, thus, appear, both on principle and on authority, that in a suit for administration properly so-called i.e. a suit the main or the real purpose of which is to have the estate of the deceased administered by the Court, this Court can for the purpose of achieving the object of such a suit, namely, collection and distribution of the estate, and as ancillary to order for administration, decide the question of Title to any property; and the power of the Court to do so extends to determining the existence or validity of any alienation of the property not only by other persons after the death of the deceased but also by the deceased during his lifetime." (pg. 1862)

1. Mr. Abid Zuberi, the learned counsel for the respondents, supported the impugned judgment and submitted that the learned single Judge had properly laid down the applicable principles and on the basis thereof, reached the correct conclusion that the matter of the subject property, being beyond the scope of an administration suit, should be excluded from the preliminary decree. He placed strong reliance on a decision of the Supreme Court reported as Syed Mehdi Hussain Shah v. Shandoo Bibi and others PLD 1962 SC 291 and a decision of a Division Bench of this Court reported as Asghar Ali v. Zohrabi and others 2000 MLD 122. He also referred to another decision of this Court reported as Tahira Parveen and others v. Saba Jamil and others 2008 CLC 484, and prayed that the appeal being without merit ought to be dismissed.

2. We have heard learned counsel for the parties, examined the record with their assistance, and considered the case law relied upon by them. It will be seen that in a sense, the question that falls for determination in the present appeal is whether the view taken in the impugned judgment, namely that the scppe of an administration suit is limited only "to probe into title of the properties for the limited purpose to ascertain whether it was alienated at any time prior to the death" of the deceased, is correct, or whether the view taken in the Ghulam Jilani case (1996 CLC 1847), namely that "the power of the Court... extends to determining the existence or validity of any alienation of the property not only by other persons after the death of the deceased but also by the deceased during his lifetime" is to be preferred. If the, first view is correct, then all that the Court can do is determine which properties stood in the name of the deceased at the time of his death and administer the estate accordingly. It is to be noted that even on this view, a challenge to the validity of an alienation made by the deceased in his lifetime is not barred; it is only that such alienation can be challenged by means of separate proceedings. On the other hand, if the second view is correct, then the scope of an administration suit encompasses even alienations made by the deceased during his lifetime and the validity of the same can be determined by the Court in which the administration suit is pending. As noted above, most of the case-law, especially from the Indian jurisdiction, was extensively cited and considered in both cases. In order therefore to decide the present appeal, it will only be necessary to examine those cases which constitute binding authority for this Court, and also other single bench decisions of this Court to see whether the correct principles have been enunciated and applied in those decisions.

3. We start therefore with the decision of the Supreme Court reported as Syed Mehdi Hussain Shah v. Shahdoo Bibi and others PLD 1962 SC 291. This was a case involving the administration of the estate of a person who was of the Shia fiqh. The deceased left behind two daughters and administration proceedings were commenced by one of them. In the suit, the plaintiff joined not merely her sister as defendant, but also another person who claimed to be the widow of the deceased and the children claimed by the latter to be from her marriage to the deceased. In addition, the plaintiff also impleaded her paternal uncle (i.e., the brother of the deceased) who laid claim to one of the properties of the deceased on the basis of a will made by the latter. The plaintiff denied the validity of the will, and hence her uncle's right to any share in the estate. The uncle took the plea that the suit as framed was not maintainable, since the validity of the will had been challenged. On this, an issue was framed by the Court, which was decided in favour of the plaintiff, i.e., it was held that an administration suit was maintainable. A revision taken to the High Court against this decision failed, and the uncle appealed to the Supreme Court. The Supreme Court first explained the scope and meaning of an administration suit:

"In the absence of any specific provision in the procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that is to be granted in that suit. With respect to an administration suit no such specific provision exists though the competence of such a suit is recognized in Order XX of the Civil Procedure Code and in the forms of plaints and decrees contained in Appendices to that Code. In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court. This means that the Court will assume the functions of an administrator, it will realize the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it.... It is clear that for distributing the estate of the deceased among those entitled to it the Court has to find out who the persons entitled are and therefore it will be proper to join in the suit all those persons who claim to be so entitled.... There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation... It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suit." (pp. 293-4)

It was contended on behalf of the uncle that since, according to the plaintiff, the will under which he claimed was invalid, he was a stranger to the administration proceedings and hence, any order made against him would be tantamount to using an administration suit to gain possession from, or to dispossess, a stranger to the estate. The submission was that this lay beyond the scope of an administration suit and was a matter that could only be decided by separate proceedings. The Supreme Court emphatically rejected this contention:

"Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction." (pg.294)

It will be seen from the foregoing that the question raised before and decided by the Supreme Court was entirely different from the question that requires determination in the present appeal. The question before the Supreme Court was only whether an administration suit lay against a person claiming a share in an estate, whether as an heir or as a legatee, which claim was denied by the plaintiff, and this question was answered in the affirmative. In the present case, there is no dispute as to who are the heirs of the deceased Haji Muhammad Zakir. The facts of the present case, and the issue before this Court, are therefore entirely dissimilar.

1. The next case that requires consideration is the Division Bench decision of this Court reported as Asghar Ali v. Zohrabi and others 2000 MLD 122. In this case, the administration of two properties, one standing in the name of the husband and the other in the name of his wife (both deceased) was sought by their two daughters, who impleaded the other heir, their brother, as the defendant. The defendant claimed that one of the properties, namely the one that stood in the name of his deceased mother at the time of her death, was not the latter's property, but the property of the defendant and hence outside the scope of the administration suit. His case was that he had acquired the property from his own funds. However, the learned single Judge made a preliminary decree in respect of both the properties, and the defendant appealed against this decision. The appeal was dismissed, the Division Bench observing, inter alia, as follows:

"The preliminary decree for administration of assets of deceased cannot be withheld only on the assertion that one of the said properties was purchased by the appellant in the name of his deceased mother from his own funds, when the said property even stood in the name of his mother at the time of her death." (pg. 128)

1. The other decision relied upon by learned counsel for the respondents, Tahira Parveen and others v. Saba Jamil and others 2008 CLC 484, was also a High Court Appeal but one with a rather unusual litigation history. The appeal was dismissed by means of a short order, but before the reasoned judgment could be delivered, the events of November 3, 2007 intervened and one of the learned members of the Bench (who coincidently is one of us, i.e., Muhammad Athar Saeed, J.) ceased to function as a Judge for the duration. The other learned member, who continued to serve as a Judge, released his reasons for the short order. It is these reasons, which are of course not the reasons of the Division Bench and hence have no binding authority, that appear in the report of the decision. The facts of the case were quite similar to those in the Asghar Ali case. At the time of the passing away of the deceased, the disputed property (a plot with a house constructed on it) stood in his name. However, it was claimed by the successors-in-interest of one of the heirs (a son of the deceased, by name Anwar) that the property was his as he had significantly contributed towards the purchase of the plot and the completion of the structure built on it. Notwithstanding this claim, the learned single Judge made a preliminary decree which included the property in dispute. The appeal against this decision failed and, as noted above, was dismissed by means of a short order. In his reasons, the learned Judge opined as follows:

"The purpose of a suit for administration and partition is to decide whether the property belongs to deceased or not and without deciding this it is not possible for the Court to administer and partition the property. The scope is limited. The question of title to a property claimed by any heir in his own independent right cannot be determined in these proceedings. The object was to determine the estate of the deceased at the time of his death. Admittedly at the time of death, the property stands in the name of deceased owner and the appellants have failed to prove that the same was relinquished in favour of Anwar by the deceased owner in his lifetime." (pg. 491)

1. learned counsel appearing on behalf of the respondents sought to argue from the foregoing two decisions of this Court that the correct legal principle was that the Court could only look at the properties that stood in the name of the deceased at the time of his death, and it was only these properties that formed part of the estate. However, in our view the cited cases do not support any such conclusion. All that the cases decide is that even if a property that stands in the name of the deceased at the time of his death is claimed by an heir in his own right, it may be regarded as forming part of the estate of the deceased. It may be noted that in the Tahira Parveen case, evidence was led before the preliminary decree was made and the putative owner (or rather, his successors in interest) were given an opportunity to establish the case that the property actually belonged to the heir. Upon a consideration of the evidence, it was held that no such case had been made out. In the Asghar Ali case, it was contended that the preliminary decree was bad as it had been made without recording any evidence. The Division Bench repelled this contention, observing that it was open to the putative owner to adduce evidence in support of his claim even after the preliminary decree (see at pg. 128). Thus, it was not held in either case that in an administration suit, an heir could not raise an objection that a property standing in the name of the deceased was actually the heir's and did not belong to the deceased. It was simply that a preliminary decree could be made for such property as well (since it stood in the name of the deceased); the putative owner could object to such inclusion either before or after the preliminary decree. If the scope of an administration suit allows an heir to raise such an objection, then surely the converse, namely an objection to an alienation made by the deceased in his lifetime in favour of an heir ought also to be within the scope of an administration suit. Thus, if anything, the two cited cases indicate that the Court seized of an administration suit has ample jurisdiction to decide issues of title raised by any of the heirs in respect of any of the properties sought to be administered.

2. The nature of an administration suit, as explained by the Supreme Court, has been noted above. There are, in general, two classes of persons who can be regarded as having an interest in the estate of the deceased: creditors and sharers. The present proceedings are not concerned with creditors and therefore nothing more need be said about this class. Insofar as sharers are concerned, they fall into two categories, heirs and legatees (i.e., those entitled to a share, whether of movable or immovable property, under a will). The first order of business therefore is to determine who are the sharers, and as the Supreme Court has made clear, this is a matter well within the scope of an administration suit. Since an administration suit, even if adversarial in nature, is for the benefit of all the sharers, the next question is a determination of the properties of the deceased since it is these properties that constitute the estate and are to be administered by the Court. The key question is, what is the proper scope and extent of this enquiry, within the context of an administration suit. This is the question that lies at the heart of the present appeal. (It is important to keep in mind that even if the question whether a particular property is part of the, estate cannot be decided in an administration suit, such a question can undoubtedly be decided in separate proceedings.) How is the boundary to be drawn to determine what lies within the scope of an administration suit, and what is outside its purview? On one hand is the reluctance of the law to countenance any multiplicity of litigation and its desire that such an outcome be avoided if at all possible. On the other is the recognition that the nature of an administration suit is limited, inasmuch as it is intended only to settle issues and matters among the sharers. In our view, when these considerations are balanced, the proper test to establish whether such a determination lies within the scope of an administration suit, or beyond it, is as follows: if the determination will not disturb the inter se position of the sharers, and will affect all the sharers equally, then the question lies outside the scope of the administration suit. If however, the determination will affect and uspset the inter se position of the sharers, and may give one or more of the heirs an advantage over the others, then the question lies within the scope of the administration suit. It is immaterial whether the alienation sought to be challenged was by way of registered instrument or otherwise. A few examples may help illustrate the point. Suppose the question is whether the sale of a property by the deceased to a stranger is liable to be set aside on account of fraud. A determination of this issue does not affect the inter se position of the sharers. If the issue is decided in favour of the estate, all the sharers will benefit equally to the extent of their respective shares (the property will form part of the estate). If the decision is to the contrary, the inter se position of the sharers will again remain unaltered. A determination of this question then lies beyond the scope of an administration suit, and it must be settled by separate proceedings. On the other hand, suppose the question is whether the sale of a property by the deceased to an heir is liable to be set aside on account of fraud. As is obvious, a determination of this issue does affect the inter se position of the sharers. This question then lies within the scope of the administration suit. If the question were held to be outside the scope of such a suit, that would lead to needless multiplicity of proceedings. A separate suit would have to be filed among the same parties to determine whether the property forms part of the estate, and if the question is answered in the affirmative, the property would have to be administered separately or afresh. A third situation could be where an heir claims a property in his own right and contends that it does not form part of the estate. This again is a question the determination of which could affect the inter se position of the sharers. The question would therefore fall within the scope of the administration suit. This conclusion is fully in accord with the decisions of this Court in Asghar Ali and Tahira Parveen (supra). As noted above, in both cases, one of the heirs claimed in his own right a property standing in the name of the deceased. Notwithstanding such claim, the preliminary decree included the property. In both cases, an appeal against such inclusion failed, and it was held that the putative owner could have the issue determined in the administration suit.

3. In light of the foregoing analysis, we are of the view that the specific question raised in this appeal, namely whether the validity of the gift of the subject property by the deceased to the Respondent No. 1, an heir, came within the scope of the administration suit, must be answered in the affirmative. Quite obviously, a determination of this question affects the inter se position of the heirs. The initiation of separate proceedings to determine this question would lead to a needless multiplicity of litigation among the same parties. In this context, we would also note that the use of the expression "closed and past transaction" by the learned single Judge was somewhat unfortunate. This expression is normally used in the context of a change in the law, when the question before the Court is whether such change affects something that has already occurred or a right that has already vested. Furthermore, a "closed and past transaction" cannot be reopened at all and if the gift were such a transaction, it could not be challenged even in separate proceedings. That is obviously not the case, since the question before the learned single Judge was limited only to determining whether the gift could be challenged in the administration suit. Equally, the learned single Judge's observation that the challange to the validity of the gift was hit by estoppel was also inapposite since such an observation could only be premised on the challenge being within the scope of the administration suit, and on this point the learned single Judge had given a negative finding.

4. We would therefore (subject to the test formulated in Para. 11 above) sum up the foregoing analysis in the form of the following propositions:

(a) when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then the question should be determined by means of separate proceedings;

(b) proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate, then the matter comes within the scope of the administration suit;

(c) when a determination of the aforesaid question involves a person who is a sharer in the estate, then the question conies within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased (e.g., by way of a gift or sale from the latter) or in his own right;

(d) it is immaterial whether or not the property in-question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise.

1. We now turn to consider the single bench judgments of this Court in the light of the foregoing. The first decision is reported as Muhammed Bibi and others v. Abdul Ghani and others PLD 1975 (Kar.) 979. Although the actual facts of this case were different, the following observations of the learned single Judge require to be noted:

"Before I part with this aspect of the matter I must add that it was contended on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his life time. Some decisions were cited from foreign jurisdiction in support of this contention. I am, however, of the view that in an administration suit the Court has the jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is." (Para. 43 at pg. 1004)

1. The next decision is reported as Ayesha Bai and another v. Shahida and others PLD 1981 Kar 177. This was an administration suit instituted by the widow and son of the deceased (Haji Muhammad Ibrahim) against his daughter, the three being the only heirs. In addition to the daughter, certain other persons were also impleaded as defendants, who were admittedly not the heirs of the deceased. Three properties were in dispute. As to two of these properties, the defendants contended that the properties belonged to a (predeceased) brother (Muhammad Umar) of the deceased and thus had nothirig to do with the latter. As to the third property, it was contended that the same belonged solely to the Defendant No. 5 (who was not an heir) and the deceased had nothing to do with that property as well. The suit was nonetheless allowed to proceed as an administration suit. The learned Judge's attention was drawn to the observation of the Supreme Court in the Mehdi Hussain Shah's case (supra) to the effect that the plaintiffs "will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit". The learned Judge held that this observation did not apply, as the (non-heir) defendants were alleged to have taken over the properties in collusion with the Defendant No. 1 (the daughter). As to whether the properties formed part of the estate, the learned Judge held, in relation to the properties that had belonged to the predeceased brother, as follows:--

"The plea is not taken in the written statement that Muhammad Umar left behind any other heirs and, therefore, deceased Haji Muhammad Ibrahim as a brother, in the absence of any wife and children of surviving Muhammad Umar, could have acquired the tenancy rights or at least a share in both the properties." (pg 182-3)

As to the third property, the learned Judge observed as follows:

"If in the plaint the only property shown to have been left by the deceased had been [the third] property ... the present suit would not have come within the compass of Order XX, Rule 13, C.P.C. However, as I have already held that on account of the pleadings in this suit in relation to the other two [properties] this suit as an administration suit is maintainable, the issue whether [the third] property ... belonged to the deceased at the time of his death can also be decided in the present administration suit. I am of this view on account of two reasons. Firstly Defendant No. 5 himself applied to become a defendant in this suit and on his own application the Court joined him as Defendant No. 5. Secondly, all the parties who are interested in this property are before the Court and if at this stage it is decided that the question of ownership of this property ought not to be decided in these proceedings, the parties i.e. the plaintiff and Defendant No. 5, will get involved in another litigation. In view of the special circumstances and facts of this case and additionally to avoid multiplicity of proceedings, this question can also be decided in this suit. I may observe here that facts differ from case to case and the decision whether an administration suit is maintainable or not largely depends on the pleadings in a particular case." (pg 183); Emphasis supplied)

In our view, this case does not lay down any generally applicable principle, and as the learned single Judge himself recognized, must be regarded as turning on, and limited to, its own special facts. Certainly, the joining of the third property, which was claimed by a stranger to the estate, would militate against the suit proceeding as an administration suit. Even as regards the other two properties, the question whether the deceased was an heir of his predeceased brother would not be a question among his own heirs (i.e., his widow and son, the two plaintiffs, and his daughter, the Defendant No. 1). Thus, in relation to all the three properties allegedly forming part of the estate, the questions raised involved strangers to the estate. In our view, if the same or similar facts arose today in any suit, it would be incorrect to regard it as an administration suit.

1. The third decision is reported as Muhammad Younus Qureshi and others v. Mrs. Feroz Qureshi and others 1982 CLC 976. In this administration suit, one property was in dispute, which the widow of the deceased claimed had been gifted to her by the latter, and on which she had raised a construction with her own funds. The widow claimed that she had subsequently sold away the property. It was held that the dispute whether the property formed part of the estate did not lie within the scope of the administration suit, and could only be decided by separate proceedings. In our view, with respect, this decision cannot now be regarded as good law. Clearly, the inter se position of the heirs was affected by the claim put forward by one of them, i.e., the widow. Putting them to separate proceedings would only lead to a needless multiplicity of litigation. The fact that the widow had sold away the property also could not stand in the way of the question being determined in the administration suit. If the Court concluded that the property formed part of the estate, then the widow would have to account for the sale proceeds of the property, and the other heirs would be entitled to their respective shares therein.

2. The last single Bench decision of this Court that needs to be examined is reported as Yusuf v. Zubeda and others 1984 MLD 590. Here the issue relevant for present purposes was whether one property, which stood partly in the name of an heir, and which share was claimed by him in his own right, could be included in the preliminary decree. It was contended by the other heirs that the share actually belonged to the deceased. The learned single Judge held as follows:

"I am, therefore, of the view that 50% share of the Defendant No. 1 in property No. 1 of Schedule `A' to the plaint which stands in the name of defendant cannot form part of the estate of the deceased for the present one, therefore, it will not be included in the preliminary decree. It will, however, be open to the plaintiff, if she is so advised, to follow any other remedy under the law available to her, to establish that the 50% share of the property shown in the name of Defendant No. 1 in fact belonged to the deceased and if she succeeds in that behalf she may apply for administration of this part of the property as well later on." (pg 591-92)

In our view, with respect, this decision, like the one before it, cannot now be regarded as good law. The inter se position of the heirs was obviously affected. Putting them, as the learned single Judge observed, to separate proceedings would only lead to a needless multiplicity of litigation. Were a similar matter to be litigated today, it would be regarded as coming within the scope of an administration suit.

1. Finally, we would refer to a recent Division Bench decision of the Lahore High Court reported as Dr Zia-ur-Rehman Khan and another v. Dr. Atiq ur Rehman PLD 2009 Lah. 641. The deceased left a number of properties, of which three were claimed by the respondent-defendant in his own right. A preliminary decree was drawn up in an administration suit filed by the appellants, but the three properties were not included in the decree. On appeal, the Lahore High Court held that the three properties came within the scope of the administration suit.

2. In view of the foregoing discussion and analysis, we hold in conclusion that the impugned judgment must be reversed and set aside (except to the extent of the making of the preliminary decree in respect of the undisputed properties), with the result that the decision as reported (Ghazala Zakir v. Muhammad Khurshid and others 1997 CLC 167) cannot be regarded as good law. Furthermore, subject to what has been said in this judgment, the observations made in Ghulam Jilani and others v. Abdul Kadir and others 1996 CLC 1847 (as reproduced above in para.4) and in Muhammed Bibi and others v. Abdul Ghani and others PLD 1975 Kar 979 (as reproduced above in Para. 14) are approved. The appeal is allowed in the above terms and matter is remitted for further proceedings in Suit No. 1 of 1988 for a decision on the two issues noted in Para. 2 above. If the subject property is found and held to be part of the estate of the deceased Haji Muhammad Zakir, an appropriate preliminary decree shall be made in respect thereof and the matter shall be further dealt with in accordance with law. Since this is an old matter, which has remained lingering for a number of years, it is hoped that the aforesaid two issues will be heard and decided within a period of four months. There shall be no order as to costs in this appeal. The listed applications, having become infructuous, are disposed off as such.

(R.A.) Case remanded.

PLJ 2011 Karachi 136

Present: Syed Hasan Azhar Rizvi, J.

Mrs. ABIDA SALEEM--Plaintiff

versus

M/s. A.I. BROTHERS (PVT.) LTD. and another--Defendants

Suit No. 1628 of 2007, C.M.As. No. 10593/2007, 8927, 8928 of 2008, decided on 9.2.2011.

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

----O. VII, R.11, Specific, Relief Act, 1877, S. 12--Limitation Act, 1908, Art. 113--Rejection of plaint--Suit for specific performance, declaration, perpetual and mandatory injunction and recovery as compensation for damages--Barred by Art. 113 of Limitation Act--Counter affidavits--Parties were entered into a sale transaction of shop--Shop was still mortgaged with bank--Validity--For the purpose of considering the rejection of plaint, averments made by plaintiff was to be accepted as correct--Suit was filed by declaration, perpetual and mandatory injunction and recovery as compensation for damages--Defendant did not cancel the agreement to sell in contract of immovable property, seller facts to complete the documentation within stipulated time, buyer has option either to sue the seller for damages in lieu of performance of contract or may seek specific performance of contract and claim damages in addition to relief of specific performance--In case seller failed to perform within stipulated time then buyer had to first serve notice upon the seller calling upon him to perform the contract within a reasonable time--If seller stills failed to perform then buyer could either put an end to contract, seek damages in lieu or might seek relief of specific performance of contract as well as damages in addition to relief of specific performance--Application was dismissed. [P. 139] A

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

----O. V & O. XXIX, Scope of--No personal services through bailiff, registered post A.D.--Served only through courier service--Good is vague and baseless--Holding the service good--Provisions of CPC were considered--Matter would be decided on merits rather then on technicalities--Direct service upon defendant had not been effected, therefore, in order to avoid multiplicity of litigation, the application was allowed and order dated was hereby recalled. [P. 140] B

Syed Tariq Ali Ahmed, Advocate for Plaintiff.

Mr. Saalim Salam Ansari, Advocate for Defendant No. 1.

Mr. Ijaz Ahmed, Advocate for Defendant No. 2.

Date of hearing: 9.2.2011.

Order

2. CMA No. 8927/2008

This is an application filed by Defendant No. 1 under Order VII, Rule 11 CPC for rejection of plaint on the ground that the suit filed by the plaintiff is time barred and barred by Article 113 of the Limitation Act, 1908.

The plaintiff has filed counter-affidavit to the present application, wherein it has been stated that the Defendant No. 1 has filed the present application with mala fide intention by concealment of facts and without any cogent reasons. It is further denied that the plaintiff has filed time barred suit and prayed for dismissal of the present application.

I have heard Syed Tariq Ali Ahmad learned counsel for plaintiff, Mr. Saalim Salam Ansari learned counsel for the Defendant No. 1 and Mr. Ijaz Ahmed, learned counsel for the Defendant No. 2.

Mr. Saalim Salam Ansari, learned counsel for the Defendant No. 1 has contended that the plaintiff has filed this time barred suit, which is also barred by Article 113 of the Limitation Act, 1908 as the suit is based on agreement dated 28.03.2003. He has contended that the suit is based on part payment of Rs. 4,00,000/- and the total sale consideration of the Shop No. 8, situated on Ground Floor, "Hotel Regency" Dr. Dawood Pota Road, Karachi is Rs. 19,00,000/- and the sale will be completed within three months of the receipt of payment of the balance consideration from the execution of this agreement. He has further contended that the plaintiff has also concealed the fact that the legal notice dated 08.12.2007 was duly replied by the Defendant No. 1 through his counsel and the date of expiry of 90 days time will be taken into account for starting of limitation i.e. 28.6.2003 whereas the instant suit filed on 19.12.2007. Therefore, he has prayed for rejection of plaint.

Learned counsel for the Defendant No. 1 in support of his submissions has placed reliance on the cases of Ghulam Qadir vs. Khandu (PLD 2004 SC 62), Abbas Ali Shah vs. Ghulam Ali (2004 SCMR 1342) and Haji Abdul Karim & others vs. M/s. Florida Builders (Pvt.) Limited (SBLR 2010 Sindh 525).

On the other hand, Syed Tariq Ali Ahmad, learned counsel for the plaintiff has contended that for deciding the application under Order VII, Rule 11 CPC averments of the plaint has to be looked in. He has submitted that the Defendant No. 1 admitted and acknowledged the execution of sale agreement between the plaintiff and Defendant No. 1 for the sale of shop in question and as per agreement the Defendant No. 1 is under obligation to handover the title of the said shop to the plaintiff at the time of payment of balance sale consideration of Rs. 15,00,000/- and after signing of agreement plaintiff time and again approached the Defendant No. 1 with the request for disclosure of any material defect in their title, but the Defendant No. 1 has refused to handover the title documents on one pretext or the other. He has further submitted that the Defendant No. 1 was disclosed that property in question was already mortgaged with banks. He has also submitted that a legal notice dated 8.12.2007 was sent to the Defendant No. 1 for performance of his part of contract and showing his willingness to pay the balance amount of consideration. He has further urged that the defendant. No. 1 from time to time has assured the plaintiff for performance of his part of contract under the agreement of sale and due to price hike the Defendant No. 1 become dishonest, avoided and refused in performance of his obligation though physical possession of the shop in question is remained with the plaintiff.

Learned counsel for the plaintiff in support of his submission has placed reliance upon the cases of Muhammad Hussain & others vs. Dr. Zahoor Alam (2010 SCMR 286), Mst. Batul & others vs. Mst. Razia Fazal & others (2005 SCMR 544), Muhammad Ayub vs. Abbas Ali (2005 MLD 774), Rana Allah Bakhsh vs. Ghulam Sakina (2005 MLD 1700) and Faheem Ahmed vs. Ata-ur-Rehman (SBLR 2007 Sindh 1822).

Mr. Ijaz Ahmed, learned counsel for the Defendant No. 2 supported the arguments advanced by the learned counsel for the Defendant No. 1 and has placed reliance upon the case of Industrial Development Bank of Pakistan vs. Muhammad Ayub Stone Crushers & others (2009 SCMR 611).

It is an admitted position that the plaintiff and Defendant No. 1 were entered into a sale transaction of shop in question and paid Rs. 4,00,000/- at the time of signing of sale agreement and as per clauses (4) & (6) of the said agreement the sale will be completed within three months of the receipt of payment of the balance consideration of R.15,00,000/- and the title of the shop in question will be handed over to the party of the second party at the time of payment of balance amount. Further, the possession of the shop in question has already with the plaintiff. As per agreement the Defendant No. 1 is bound to perform his part of contract but he has suppressed the material facts that the shop in question has already been mortgaged with the Defendant No. 2. The Defendant No. 2 filed Suit No. 1445/1999 against the Defendant No. 1 wherein leave to defend was dismissed against which Appeal No. 181/2007 was filed. The Defendant No. 1 also filed Suit No. B-02/2004 for declaration, permanent injunction, release of guarantee/ mortgage properties under Section 9 of the Financial Institutions (Recovery of Finance) Ordinance, 2001 against Defendant No. 2, which was dismissed on 27.3.2007 against which the Defendant No. 1 filed Appeal No. 182/2007. In appeal the Defendants No. 1 and 2 have been compromised. The Defendant No. 2 filed written statement in the present suit wherein it has been stated that the shop in question is still mortgaged with the bank. Moreover, it is settled principle of law that for the purpose of considering the rejection of plaint, averments made by the plaintiff in the memo. of plaint is to be accepted as correct. The present suit has been filed by the plaintiff seeking specific performance, declaration, perpetual and mandatory injunction and recovery of Rs. 76,00,000/- as compensation for damages and this Court in the recent case of Faheem Ahmed vs. Ata-ur-Rehman (SBLR 2007 Sindh 1822) has held that defendant did not cancel the agreement to sell in contracts of immovable property, the seller fails to complete the documentation within stipulated time, the buyer has the option either to sue the seller for damages in lieu of the performance of the contract or may seek specific performance of the contract and also claim damages in addition to the relief of specific performance in case seller fails to perform within the stipulated time then the buyer has to first serve notice upon the seller calling upon him to perform the contract within a reasonable time -- if the seller still fails to perform then the payer may either put an end to the contract, seek damages in lieu thereof or may seek the relief of specific performance of the contract, as well as damages in addition to the relief of specific performance.

For the foregoing reasons, this application being misconceived is hereby dismissed with no order as to cost.

3. CMA No. 8928/2008

This is an application filed by the Defendant No. 1 seeking recall the ex-parte order dated 26.5.2008 and allow the Defendant No. 1 to file written statement. In support of the application affidavit of Yasir Zafar one of the directors of Defendant No. 1 has been filed wherein it has been stated that M/s. Naek & Co. Advocates and Mr. Adnan Ahmed advocate filed power on 24.6.2008 during the summer vacation to file application under Order VII, Rule 11 CPC on the opening day and previous advocates are not available as Mr. Adnan Karim Memon has been appointed as Assistant Advocate General, Sindh and filed application under Order IX, Rule 7 CPC. It has been further stated that delay may be condoned if any in filing of the present application and pray for recalling of the order dated 26.5.2008 and allowing them to file written statement.

Counter-affidavit has been filed by the plaintiff wherein it has been stated that the affidavit, in support of the present application has been signed by an unauthorized person, as no resolution of board of directions of the company has been annexed as such application under reply is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record, which goes to show that the agreement was signed by Yasir Zafar attorney of the defendant company. Not only this but the plaintiff made the Pay-Order No. 572608 dated 28.3.2003 in the name of Yasir Zafar for advance money of the sale agreement. The record further shows that no personal service has been held upon the defendant through bailiff, registered post A.D. and the defendant has been served only through courier service. Courier service on which service was held good is vague and baseless. The Defendant No. 1 is a private limited company but at the time of holding the service good the provisions of Order V and XXIX of Civil Procedure Code were considered. It has been observed by the Apex Court, as well as this Court in various cases that the matter should be decided on merits rather then on technicalities. In the present case direct service upon the defendant has not been effected, therefore in order to avoid multiplicity of litigation, the present application is allowed and the order dated 26.5.2008 is hereby recalled. The Defendant No. 1 is directed to file written statement within two weeks from today.

1&4: Deferred.

(R.A.) Application allowed.

PLJ 2011 Karachi 140 (DB)

Present: Sajjad Ali Shah & Muhammad Ali Mazhar, JJ.

SHAKEEL AHMED SHAIKH and 2 others--Petitioners

versus

PROVINCE OF SINDH through Chief Secretary Sindh & 3 others--Respondents

Const. P. No. D-587 of 2011, decided on 3.6.2011.

Sindh Criminal Prosecution Service (Constitution, Functions & Powers) Act, 2010 (IX of 2010)--

----Ss. 5(1), 6(1) & 9(1)--Scope of--Administration of service was entrusted to P.G.--No effective administration and control for service unless P.G. was empowered to transfer prosecutor working under his administration and control from one Court to another or from one district to another--Petitioners were A.D.P.P. inducted in Criminal Prosecution Service of Sindh--Exercising one time option u/S.C.P.S. (C, F, P) Ordinance, 2007--P.G. transferred the petitioner from one district to other district--Challenge to--Validity--P.G. was head of service and administration and control of service solely vest in him and Govt. had only retain the power to exercise general superintendence over service and that to ensure achievement of objectives of the Act--Question of--Whether administration and control of the service which vest in P.G. could be construed in a manner to include power to transfer a member or staff of service by Prosecutor General--There cannot be an effective management nor executive duties of an institution can be performed effectively unless the administrator or executive of an institution was equipped with complete power and had total control over member of the institution and such administration and control was useless and ineffective if it was not accompanied by disciplinary powers--Head of service in whom legislature had not only vested the administration of service but also control can safely be held as sole custodian of service with all powers to effectuate its administration over the service including power to transfer the member or staff of service, being the best judge to post members according to their experience and perhaps for such very reason the legislature had made application of Sindh Civil Servant Act, 1973 and rules made thereunder subject to provisions of Act, 2010--Petition was dismissed. [Pp. 144 & 147] A, B, C & D

Mr. Noor-ul-Haq Qureshi, Advocate for Petitioner.

Mr. Allah Bachayo Soomro, Addl. A.G. for Respondent No. 1.

Mr. Shahadat Awan, P.G. Sindh for Respondents No. 2-4.

Date of hearing: 13.4.2011.

Judgment

Sajjad Ali Shah, J.--Through instant petition, the Petitioners who are Assistant District Public Prosecutors inducted in Criminal Prosecution Service of Sindh vide Notification dated 11.02.2008 from Police Department on account of exercising one time option as envisaged under the Sindh Criminal Prosecution Service (Constitution, Functions & Powers) Ordinance, 2007, have impugned notification dated 25.03.2011 whereby the Prosecutor General Sindh had transferred the Petitioners from Hyderabad to Umer Kot.

Mr. Noor-ul-Haq Qureshi, learned counsel appearing for the Petitioners contends that all the three Petitioners were working in Police Department as acting Prosecuting Deputy Superintendent of Police (PDSPs) and after the promulgation of the Criminal Prosecution Service (Constitution, Functions & Powers) Ordinance, 2006 (now Sindh Act, IX of 2010) by exercising one time option on 11.2.2008 Joined Criminal Prosecution Service of the Province. The Petitioners after having been inducted in Criminal Prosecution Service of the Province were posted as Assistant District Public Prosecutors at Hyderabad where they were performing their duties till date when the Respondent No. 3 vide Order dated 25.03.2011 transferred all the three Petitioners from Hyderabad to Umer Kot. Per learned Counsel though in terms of Section 5(2) of the Act, 2009 the administration of the service vest in the Prosecutor General but he has not been entrusted with any power to transfer any District Public Prosecutor, Deputy District Public Prosecutor and Assistant District Public Prosecutor from one district to another. Learned Counsel while referring to Section 14 of the Act, IX of 2010 contends that the Petitioners are civil servants in terms of Civil Servants Act, 1973 and, therefore, their transfer and posting is to be regulated in terms of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 and in accordance with the Entry No. 3 of the Table provided in sub-rule (2) of Rule 9 the authority to transfer an officer of (BS-17) vest with the Chief Secretary, therefore, the Order dated 25.03.2011 passed by the Prosecutor General be declared void ab initio. In the last learned counsel while referring to the Judgment of this Court in Const. Petitions Nos. D-837 and D-980 of 2010 contends that this Court in similar circumstances when the Assistant Prosecutor General and Deputy Prosecutor General were transferred declared that their services cannot be placed in a particular district.

On the other hand Mr. Shahadat Awan, learned Prosecutor General Sindh while referring to sub-section (2) of Section 5, sub-section (1) of Section 6 and sub-section (1) of Section 9 contended that a perusal of the referred provisions would reveal that the Prosecutor General is not only the Incharge of the entire Prosecution Service in the province but the administration of the service also vest in Prosecutor General and there cannot be any effective administration unless the Prosecutor has the power to transfer Prosecutors working under him from one district to another. In support of his contention learned counsel has placed reliance, on the Judgment of the Apex Court in the case of Mehram Ali and others Vs. Federation of Pakistan and others (PLD 1998 Supreme Court 1445). Likewise Mr. Allah Bachayo Soomro, Learned Additional Advocate General for the Government of Sindh while referring to the provision of sub-section (1) of Section 5 has contended that the Government has only been entrusted with General Superintendence over the service to ensure achievement of the objects of the Act, IX of 2010 whereas, the administration of the service has been entrusted to the Prosecutor General who is not only the Head of service in terms of sub-section (1) of Section 6, but also exercises control and has the administration of the entire service and there can be no effective administration and control for the service unless the Prosecutor General is empowered to transfer the Prosecutor working under his administration and control from one Court to another or from one district to another. Learned Addl. Advocate General, therefore, contended that the order of the Prosecutor General is in accordance with the spirit of the Act, IX of 2010 and the instant petition is liable to be dismissed.

We have heard the learned counsel for the petitioners and learned Prosecutor General as well as learned Addl. Advocate General and have minutely perused the record as well as case law cited at bar.

In order to appreciate the contentions of the respective parties it would be appropriate to first examine the relevant provisions of the Act, IX of 2010 entrusting the administration and control of the Service on the Prosecutor General viz-a-viz Provincial Government.

The service has been established by the Government as provided by Section 3 of Act, IX of 2010, which reads as follows:--

Section-3 Government shall establish and maintain a Service to be called the Sindh Criminal Prosecution Service."

Whereas Section 5 of Act, IX of 2010 provides for the Control and

Administration in the following words:--

Section-5. (1) Government shall exercise general superintendence over the Service to ensure achievement of the objectives of this Act.

(2) The administration of the Service shall vest in Prosecutor General.

(3) A Public Prosecutor, an Additional Prosecutor General, a Deputy Prosecutor General and an Assistant Prosecutor General shall perform their functions under the control and the supervision of the Prosecutor General and general superintendence of the Government.

(4) Subject to the sub-clauses (1) and (2) control of all Prosecutor within a District shall work under the supervision of the District Public Prosecutor."

The appointment of Prosecutor General is provided in Section 6, which reads as follows:--

"6.(1) Government shall appoint a Prosecutor General, who shall be the Head of the Service on such terms and conditions, as may be determined by Government.

(2) The terms and conditions of service of the Prosecutor General shall be varied during the term of his office.

(3) The Prosecutor General shall hold office for a non-extendable period of three years."

Whereas Section 14 of the Act, IX of 2010 provides for the application of Sindh Civil Servants Act, 1973 and rule made thereunder to the members of the service, including the staff, in the following words:--

"14. Subject to the provisions of this Act, and rules, member of the service including the staff, shall be appointed and governed under the Sindh Civil Servant Act, 1973 (Sindh Act, No. 14 of 1973) and rules made thereunder."

Bare reading of the provisions reproduced above make it very clear that the Prosecutor General is the Head of Service and the administration and control of the service solely vest in him and the Government has only retain the power to exercise general superintendence over the service and that too only to ensure achievement of the objectives of the Act. It is further important to observe that the objectives of the Act, are also to be achieved through Prosecutor General as sub-section (1) of Section 9 provides that the Prosecutors shall be responsible for the conduct of prosecution on behalf of Government.

On the other hand Section 14 reproduced above provides for the application of Sindh Civil Servants Act, 1973 and the rule made thereunder i.e. Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, however the application of Act, 1973 as well as Rules, 1974 are made subject to the provisions of Act, IX of 2010. Furthermore the minute scrutiny of the provisions of Act, IX of 2010 reveals that there is no provision which deals with the transfer of a members or the staff of the service and therefore, the question which require consideration is as to whether the administration and control of the service which in terms of Section 5 vest in the Prosecutor General could be construed in a manner to include the power to transfer a member or staff of the service by the Prosecutor General.

The term "Administration" has been defined in Black's Law Dictionary as:--

"Management or conduct of an office or employment; the performance of the executive duties of an institution, business, or the like. In public law, the administration of Government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs or agencies."

The Chambers 21st Century Dictionary defines "Administration" as:--

"the directing, managing or governing of a company's affairs, etc. a period of Government by a particular party."

Whereas the term "Control" has been defined in Black's Law Dictionary as:

"To exercise, restraining or directing influence over. To regulate; govern; dominate; curb; to hold from action; overpower; counteract; govern."

Whereas the Chambers 21st Century Dictionary defines the term "Control" as:--

"authority or charge; power to influence or guide take control."

The Indian Supreme Court in the case of the State of West Bengal, v. Nripendra Nath (AIR 1966 S.C 447), while interpreting similar language employed in Article 235 of Constitution of India which confers control by the High Court over District Courts held that word `control' would include the power to take disciplinary action and all other incidental and consequential steps to effectuate this end and made the following observations:

"The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the Court but contemplates disciplinary jurisdiction over the presiding Judge."

Likewise the Supreme Court of India in the case of Corporation of the city of Nagpur v. Ramchandra G. Modak and others (AIR 1984 SC 636) has examined the expression control while interpreting the provision of Section 59 of City of Nagpur Corporation Act, 1950, which reads as follows:

"Section 59(3): Subject, whenever it is in this Act, expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act. The entire executive power for the purpose of carrying out the provisions of this Act, vests in the Commissioner who shall also--

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

(b) exercise supervision and control over the acts and proceedings of all municipal officers and servants, and, subject to the rules or bye-laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances."

(Emphasis ours)

The controversy has arisen from the decision of Bombay High Court whereby an order suspending two employees was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner, who was not competent to suspend the Respondents' pending departmental inquiry. The High Court was of the view that the competent authority to pass order of suspension against the Respondents was the Corporation itself and not the Chief Executive Officer. The Supreme Court after detailed discussion concluded in the following terms:--

"Thus Clause (b) of Section 59(3) in express terms authorities and clothes the Municipal Commissioner with the power to exercise supervision and control over the acts of Municipal officers and servants. It may be noticed that the said Clause (b) is preceded by the words vests in the Commissioner'. When the wordscontrol' and `vests' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the-policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation."

In the case of Mehram Ali v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445) while construing expression "the supervision and control over the subordinate judiciary" used in Article 203 of the Constitution (Ajmal Mian C.J) was quoted from the case of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Kar. 404):

"I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers."

In this context a learned Single Judge of the Lahore High Court in the case of Razia Sultana v. Razia Begum (2003 CLJ 689) while dilating on the object and rationale of Article 203 of the Constitution, which provides that "Each High Court shall supervise and control all Courts subordinate to it" construed expression control as under:

"The word `control' is comprehensive enough to include the general superintendence of the working and administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at to advance the judicial independence and by no means impede or frustrate the very object and purpose."

The expression administration in the light of what has been discussed above presupposes management or executive duties of an institution and there cannot be an effective management nor executive duties of an institution can be performed effectively unless the administrator or the executive of an institution is equipped with complete power and has total control over the member of the institution and such administration and control is useless and ineffective if it is not accompanied by disciplinary powers. It is further important to observe that sub-section (2) of Section 5 which speaks of "administration of Prosecutor General" is preceded by the words "vest in the Prosecutor General" and when the words administration of the service vest in Prosecutor General read together, they are strong terms which convey absolute administration in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the administration and control of the servants and officers of the service. (Corporation of city of Nagpur "supra")

Beside Act, IX of 2010 not only vest the administration of the Service in the Prosecutor General and give him control over the service but also describe him as "Head of Service" and a Head of Service in whom the legislature has not only vested the administration of service but also the control can safely be held as sole custodian of the service with all powers to effectuate its administration over the service including power to transfer the member or staff of the service, being the best judge to post members according to their experience/expertise and perhaps for this very reason the legislature has made the application of Sindh Civil Servant Act, 1973 and the rules made thereunder subject to the provisions of Act, IX of 2010.

In view of what has been discussed above this petition does not find favour and is therefore dismissed.

(R.A.) Petition dismsised.

PLJ 2011 Karachi 148 (DB)

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

NANGAR KALHORO--Petitioner

versus

PROVINCE OF SINDH through Secretary Home Department, Sindh Secretariat, Karachi and 6 others--Respondents

C.P. No. D-2547 of 2011, decided on 13.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 249-A & 265-K--Constitutional petition--Directly approached to High Court for quashing of FIRs--Question of--Whether before invoking jurisdiction of High Court under Art. 199 of Constitution, petitioner had approached trial Court u/Ss. 249-A or 265-K, Cr.P.C.--Validity--A resort to provisions of Art. 199 of Constitution seeking quashment of the case is an extraordinary remedy which can be invoked only in extreme circumstances and provisions can never be exploited as a substitute for prescribed trial or to decide the question of guilt or innocence of an accused person--If prima facie, an offence had been committed, ordinary course of trial before the Court would not be allowed to be deflected by resorting to constitutional jurisdiction. [P. 150] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Inherent jurisdiction of High Court--Interest of justice--Not an alternative jurisdiction or an additional jurisdiction--Jurisdiction preserved in interest of justice to redress grievance for which no other procedure was available or had been provided by Code itself--Power given by S. 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert ordinary course of criminal procedure. [P. 150] B

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 249-A & 265-K--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--No offence was made out--If quashment of FIR was sought that charge was groundless or there was the probability of the accused being convicted of an offence which question cannot be decided without appraisal of evidence or material placed on record--Where question is whether facts, as alleged in FIR constitute an offence or not, petitioner would insist upon to first move an application u/S. 249-A or S. 265-K, Cr.P.C. to trial Court before invoking jurisdiction of High Court--If quashment of criminal proceeding was sough that proceedings were ex-facie without jurisdiction and continuation of same would constitute an abuse of process of Court, High Court can entertain proceedings without first insisting upon party to approach trial Court--Petition was dismissed. [P. 151] C

Mr. Ali Gul Abbasi, Advocate for Petitioner.

Date of hearing: 13.9.2011.

Order

Muhammad Ali Mazhar, J.--The petitioner has filed this Constitutional Petition with the following prayer:--

"(a) That this Honorable Court may be pleased to declare that the FIRs Bearing (1) Crime No. 270/2011 u/Ss. 324, 353, 393, 394, 395, 436, 437, 148, 149 PPC & 7 ATA, (2) Crime No. 272/2011 U/Ss. 13(d) Arms Ordinance, (3) Crime No. 273/2011 U/Ss. 395, 427, 148, 149, 437 PPC & 7 ATA and (4) Crime No. 274/2011 U/Ss. 395, 427, 148, 149, 436, PPC & 7 ATA registered at Police Station, Pano Akil, are false, fabricated and based on false and concocted story and the same are liable to be quashed in accordance with law.

(b) That this Honorable Court may be pleased to direct the Respondents No. 2 to 5 not to arrest the accused persons nominated in the FIRs bearing (1) Crime No. 270/2011 u/Ss. 324, 353, 393, 394, 395, 436, 437,148,149 PPC & 7 ATA, (2) Crime No. 272/2011 U/Ss. 13(d) Arms Ordinance, (3) Crime No. 273/2011 U/Ss 395,427,148,149,437 PPC & 7 ATA and (4) Crime No. 274/2011 U/Ss. 395, 427, 148, 149, 436, PPC & 7 ATA registered at Police Station, Pano Akil, till final disposal of the instant petition.

(c) To award the costs.

(d) To grant any other equitable relief, which this Honorable Court deems fit and proper under the circumstances of the case, in favour of the petitioner".

1. The learned counsel for the petitioner argued that the aforesaid FIRs have been illegally lodged with mala fide intention and the story set out therein is quite unbelievable. It was further contended that the petitioner and other accused persons; nominated in the FIRs, are respectable citizens and it is the duty of the State to protect the life, liberty and other privileges of the citizens and in order to cover up or protect illegalities of the police, they have got registered above FIRs against the petitioner through their hired persons.

2. To a query asked by this Court, whether, before invoking the jurisdiction of this Court under Article 199 of the Constitution of Pakistan, the petitioner has approached and filed application in the trial Court under Section 249-A or 265-K Cr.P.C., the learned counsel contended that no such application has been moved but the petitioner has directly approached this Court for quashment of the aforesaid FIRs on the ground that same are false, fabricated and mala fide.

3. After hearing the arguments of learned counsel for the petitioner, we have no hesitation in our mind to hold that a resort to provisions of Article 199 of the Constitution seeking quashment of the case is an extraordinary remedy which can be invoked only in extreme circumstances and said provisions can never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person. If prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction. Reference can be made to judgment authored by one of us (Muhammad Ali Mazhar J), reported in 2011 MLD 1155 (Rubina Kausar vs. District Police Officer). At this juncture, we would further like to put forward another judgment reported in 2006 SCMR 1192 (Haji Sardar Khalid Saleem vs. Muhammad Ashraf) in which, the Honorable Supreme Court has held that if prima facie offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction. By accepting the constitution petition, the High Court erred in law to short circuit normally procedure in law as provided by law while exercising equitable jurisdiction which was not in consonance with the law laid down in the case of Habib Ahmed vs. M.K.G. Scott Christian (PLD 1992 SC 353). In the case of Habib Ahmed (supra), it was held that if the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared "honorably acquitted by a competent Court". On the other hand if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law".

4. The inherent jurisdiction of this Court under Section 561-A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievance for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statue. The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to a view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.

5. None of the grounds raised in the memo. of petition attracts or justifies at this point in time to hold that from the allegations raised in the FIR, no offence is made out. If quashment of criminal case is sought on the ground that charge is groundless or there is no probability of the accused being convicted of an offence which question cannot be decided without appraisal of evidence or the material placed on record or where question is whether facts, as alleged in the FIR constitute an offence or not, the petitioner should insist upon to first move an application under Section 249-A or 265-K Cr.P.C. to the trial Court before invoking the jurisdiction of this Court. However, if quashment of a criminal proceeding is sought on the ground that proceedings are ex-facie without jurisdiction and continuation of the same will constitute an abuse of process of the Court, this Court can entertain proceedings without first insisting upon the party to approach the trial Court.

6. The upshot of above discussion is that there is nothing available on record to show that the aforesaid FIRs are ex-facie without jurisdiction and continuation of same will constitute abuse of process of law, therefore, this Constitution petition is dismissed in limine. However, petitioner is at liberty to move proper application in the trial Court in accordance with law.

(R.A.) Petition dismissed.

PLJ 2011 Karachi 151

Present: Muhammad Ali Mazhar, J.

ZAHID ALI--Petitioner

versus

STATION HOUSE OFFICER, P.S. PATNI, TALUKA ROHRI, DISTRICT SUKKUR and another--Respondents

C.P. No. 2247 of 2011, decided on 18.8.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898)--Constitutional petition--Registration of second FIR--Application was moved to Justice of Peace with names of proposed accused--Justice of Peace dismissed the application in a cursory manner without adverting to contents of application--Contents of application filed before Justice of Peace were clear without shadow of doubt, that applicant, who was not only son of deceased but also an eye-witness of incident and he had also proposed names of alleged culprits--Question of--Whether a cognizable case was made out by facts narrated in application for registration of F.I.R.--Validity--No cavil to such proposition that second FIR can be lodged and preference would be given to statement recorded u/S. 154, Cr.P.C. by legal heir of deceased who was in instant case also an eye witness and narrated all crucial facts in his application before Justice of Peace warranting registration of second FIR on basis of his statement--No hard and fast rule that another FIR could not be registered in respect of different version given by aggrieved party of the same occurrence--If information subsequently given to police, then unless it was mere amplification of first version, it must be recorded by police--If true facts in respect of an occurrence were not reflected by earlier FIR, the refusal to record a genuine version of the same occurrence would not be justified--SHO was directed to record statement of the petitioner immediately and if any cognizable case was made out he would register the FIR in accordance with law--Petition was accepted. [Pp. 156 & 157] A, B C & D

2011 P.Cr.LJ 268, PLD 2005 SC 297, 2011 YLR 866, ref.

Mr. Ghulam Shabbir Shar, Advocate for Petitioner.

Mr. Agha Ather Hussain, A.A.G. for Respondents.

Date of hearing: 18.8.2011.

Order

This Constitutional petition has been brought to assail an order passed by the Justice of Peace, Sukkur in Crl. Misc. Application No. 541 of 2010 on 26.7.2011, whereby the application moved by the petitioner under Sections 22-A & 22-B, Cr.P.C. was dismissed with the observation that there is no case for registration of second FIR of the same incident.

1. The learned counsel for the petitioner argued that the petitioner and his father deceased Azhar Ali were serving as Chowkidar at fish farm of Muhammad Imran. The father of the petitioner Azhar Ali was murdered and Muhammad Imran the employer of Azher Ali lodged an FIR but it does not reflect the correct position and the actual names of the accused persons who have committed the murder of petitioner's father, have been suppressed and concealed and the FIR has been lodged against two other persons, therefore, an application was moved to the Justice of peace with the names of proposed accused/culprits. The gist of grievance of the petitioner was properly narrated in the Paragraphs 4 to 6 of the Application instituted under Section 22-A & 22-B, Cr.P.C. which are reproduced as under:--

"4. That the father of applicant felt some doubt that Gul Bahar along with other persons used to catch the fish from the farm of Muhammad Imran and sell to other persons, on which Azhar Ali made complaint to his owner Muhammad Imran against Gul Bahar Mirbahar, on which Muhammad Imran replied that he will come there at night time and will verify this thing.

"5. That on 24-5-2011 the applicant along with his deceased father Azhar Ali came on their duty with torches where Muhammad Imran Kamboh and Muhammad Ibrahim S/O Meenhar, Allah Wadhayo S/O Jaro Khan also came there with torches they met with them and ask that they are staying there and will see the actual face of Gul Bahar at about 2.00 a.m. of night they saw and identified on the light of torches clearly that they were accused each (1) Qalander Bux S/O Khadim Hussain with lathi (2) Asghar Ali S/O Qalander Bux with Lathi (3) Niaz S/O Khadim Hussain with Lathi (4) Gul Bahar S/O Muhra, with Pistol (5) Nisar Ahmed S/O Abdul Majeed with Lathi. All by caste Mir Bahar, R/O Village Borahan, Taluka Rohri, District Sukkur, came there and started to catch the fish from fish farm of Muhammad Imran on which the deceased father of applicant gave them Hakal and raised cries which also attracted to Muhammad Imran Kamboh, Muhammad Ibrahim Mirbahar and Allah Wadhayo Mirbahar who also on the light of the torches saw the accused persons and identified them to be same.

6. That accused Gul Bahar asked the father of applicant not to raise cries and he instigated other accused persons who were armed with Lathies not to leave him but kill him on which all accused persons armed with lathies caused lathi blows upon deceased Azhar Ali which hit him on the several parts of body but he continued his cries on which accused Gul Bahar direct fired upon the deceased father of applicant with intention to commit his murder which hit him on his head who fell down with raising cries, thereafter all the above witnesses were coming towards them and also came there with the help of above witnesses they apprehended two accused persons each Gulbahar Mirbahar with Pistol and accused Niaz Ahmed Mirbahar with lathi at spot and other accused persons succeeded in good escape, thereafter they phoned to police of P.S Patni through Mobile phone who also came there and they handed over the accused persons to them along with weapons."

1. The learned counsel for the petitioner argued that in spite of mentioning the explicit particulars in the application, the learned justice of peace has dismissed the application in a cursory manner without adverting to the contents of the application. The entire basis of rejection of application was simply a lodging of earlier FIR by Muhammad Iman, which did not reflect the truthful state of affairs and in fact the names of the actual culprits have been hidden and obscured.

2. The learned counsel further argued that petitioner is not only the legal heir of the deceased but also an eye-witness of the incident, therefore, much sanctity attached to his statement rather than the statement of the employer of the deceased, therefore, his statement should have been accepted and orders ought to have been passed for registration of FIR after recording his statement under Section 154 Cr.P.C. He further argued that there are instances, in which at least three FIRs registered for the same offence but the FIR lodged by the legal heirs was given preference and tried for further proceedings by the trial Court. In support of his arguments, he referred to a judgment reported in 2001 SCMR 1556 (Wajid Ali Khan Durrani v. Government of Sindh), in which the widow of the deceased lodged the third FIR as she was not satisfied with two previously registered FIRs. In this case the first FIR was registered at the instance of the police officer, second FIR was registered at the instance of the private servant, who was in police custody. The widow of deceased filed constitution petition in the High Court seeking direction to the police concerned to record another FIR disclosing the true facts of the incident. High Court accepted the petition and directed the police to record the FIR as prayed for by the widow holding that no hard and fast rule was that another FIR could not be registered. The order of the High Court was challenged in the Honorable Supreme Court, which was affirmed and the petition filed by Wajid Ali Khan Durrani, was dismissed. The Honorable Supreme Court held as under:--

"Registration of third F.I.R. Widows of the deceased were not satisfied with two previously registered F.I.Rs. as they had felt that said F.I.Rs. did not reflect the true facts. First F.I.R. was registered at the instance of a police officer who was suspected by the widows of being accused himself in the case. Second F.I.R. was registered at the instance of a private servant of one of the widows who was still in police custody. Contention of widows that two F.I.Rs. registered by the police did not transpire true facts, was not unreasonable. Widows of the deceased filed Constitutional petition before High Court seeking direction to the police concerned to record another F.I.R. disclosing the true facts of the incident. High Court accepted petition and directed the police to record third F.I.R. as prayed for by the widows holding that no hard and fast rule was that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence. If information subsequently given to a police officer which disclosed a different offence, was also cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police. If true facts in respect of an occurrence were not reflected by the two earlier F.I.Rs. , the refusal to record a genuine version of the same occurrence would not be justified. Alternate remedy though was provided to an aggrieved party under the law by way of lodging complaint, but mere fact that an alternate remedy had been provided for, could not debar the Court from giving direction to the police to record another F.I.R. in an appropriate case. High Court, in circumstances, had rightly directed to the police concerned to register a third F.I.R. at the behest of the widows of the deceased. Petitions for leave to appeal against judgment of High Court were dismissed."

1. At this juncture I would like to refer to another judgment reported in 2011 YLR 866, (Muhammad Nawaz Versus District Police Officer and others), in which, the learned single judge of Lahore High Court held in the similar circumstances as under:

"Petitioner/complainant had never believed the version of the complainant as contained in the already registered F.I.R. about the occurrence and he had resorted to record his own version. Higher police officials including the DPO had been approached in this behalf by the petitioner, but his request for registration of second F.I.R. was not acceded to. Petitioner had been alleging the murder of his daughter against different accused persons and registration of F.I.R was not unnecessary. Station House Officer concerned was consequently directed to register a second F.I.R. forthwith containing the version of the petitioner and then investigate and proceed with the matter strictly in accordance with law. Constitutional petition was allowed accordingly".

1. In another case reported in PLD 2005 Supreme Court 297, (Mst. Anwar Begum Versus Station House Officer, Police Station Karli West, Karachi), the Honorable Supreme Court has held as under:--

"Registration of second F.I.R. Accused mentioned in the first F.I.R. lodged by Manager of deceased were unknown and untraceable. Police refused to record second F.I.R. as per widow's version. High Court in Constitutional petition directed Police to consider widow's version by examining her and her witnesses during investigation. Widow from the day of incident had been alleging murder of her husband to be managed by his real brothers in league with complainant of first F.I.R. its Investigating Officer and others named accused. Veracity and truthfulness of first F.I.R. had become highly doubtful in such circumstances. Widow was right in asking for registration of another F.I.R. as per her own version. Widow had been moving applications and making representations to high-ups in Police, but all in vain. Discretionary powers under Art. 199 of the Constitution must be exercised by High Court in good faith, fairly, justly and reasonably having regard to all relevant circumstances and in accordance with the principles laid down by Superior Courts. Disposal of Constitutional petition on technical grounds without adverting to grievance of widow was not legal. Widow had made out a case for registration of second F.I.R. Supreme Court accepted appeal with direction to Police to register fresh F.I.R. on basis of widow's version within a week & report its compliance to officer-in-charge of Court."

1. The learned AAG argued that instead of requesting for the registration of second FIR the petitioner may file direct complaint in the trial Court and he further opposed that instead of filing this petition, the petitioner should have filed an application under Section 561-A, Cr.P.C. in this Court.

2. I have heard the arguments of the learned counsel and reached to the conclusion that in fact it is not the function of the Justice of Peace to touch the merits of the case and his role is only confined to see whether the police officer on the approach of an aggrieved person recorded the statement under Section 154, Cr.P.C. or not. If Justice of Peace in each and every case on an application moved under Sections 22-A & 22-B, Cr.P.C. will start to try the case on merits and before registration of FIR then the entire purpose of remedy provided under Section 22-A Cr.P.C. will become redundant and a futile exercise. The contents of the application filed before the Justice of Peace are clear without any shadow of doubt that the applicant, who is not only the son of the deceased but also an eye-witness of the incident and he had also proposed the names of alleged culprits. In my own judgment reported in 2011 P.Cr.LJ 268, (Mumtaz Ali Versus S.H.O. Naushahro Feroz and), being fortified by the pronouncement of Honorable Supreme Court on the subject, I have held that under S. 22-A, Cr.P.C., Justice of Peace was required to ascertain whether a cognizable case was made out by the facts narrated in the application for registration of F.I.R. Minute examination of the case and fact finding was not included in the functions of the Justice of Peace. Powers of Justice of Peace were designed to aid and assist criminal justice system; such powers are not supervisory or judicial but the same were administrative and ministerial in nature. Officer in charge of Police Station was not authorized to assess the correctness or falsity of the information received, instead, he was obliged to reduce the same into writing irrespective of the fact whether such information was true or false. Justice of Peace acted in excess of his powers by touching the merits of the case without any justification doing, thereby, violence to the whole scheme of Criminal Procedure Code, 1898. Justice of Peace was saddled with the administrative duty to redress the grievance of complainants aggrieved by refusal of Police Officer to register their reports and was not authorized to assume the role of investigating agency or prosecution. Assumption of role of investigator by Justice of Peace would make Ss.154 and 155, Cr.P.C. redundant.

3. So far as the question whether two F.I.Rs. can be registered for the same offence. This particular aspect has already been dealt with by the Honorable Supreme Court (supra), therefore, there is no cavil to this proposition that second FIR can be lodged and preference shall be given to the statement recorded under Section 154, Cr.P.C. by the legal heir of the deceased who is in this case also an eye-witness and narrated all the crucial facts in his application before justice of peace warranting the registration of second FIR on the basis of his statement. There is no hard and fast rule that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence. If information subsequently given to a police officer discloses a different offence, cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police. If true facts in respect of an occurrence are not reflected by the earlier F.I.R, the refusal to record a genuine version of the same occurrence would not be justified.

4. The upshot of this discussion is that the impugned order dated 26.7.2011 is set aside. The Respondent No. 1 is directed to record the statement of the petitioner immediately and if any cognizable case is made out, he should register the F.I.R. in accordance with law.

(R.A.) Petition accepted.

PLJ 2011 Karachi 157 (DB)

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ.

MISS JAVARIA--Petitioner

versus

MEHRAN UNIVERSITY OF ENGINEERING & TECHNOLOGY JAMSHORO through its Vice-Chancellor--Respondent

C.P. No. 1649 of 2010 and M.As. No. 6912, 7739 of 2010 and 930 of 2011, decided on 5.5.2011.

Mehran University of Engineering and Technology Admissions and Teaching of Students Regulation, 1978--

----Regln. 10--Mehran University of Engineering and Technology Act, 1977, S. 47(1)(a)--Constitution of Pakistan, 1973, Art. 199--(Amended by Academic Council vide Resolution No. 55.2(7) dated 31.5.2003 and approved by Syndicate vide Resolution No. 90.8(ii)--Educational institution--Student was refused to appear in examination due to short attendance--Attendance eligibility list was affixed on notice board but never objection was filed nor approached to competent authority for correctness of list--Plea of sickness--Validity--In order to qualify for final examination of term the student must attend at least 75% of classes in each course and secure satisfactory grade in sessional work of each course failing which he would not be allowed to sit in final term test--For acceptance of examination form, the student must have secured 50% of attendance--Petitioner had only secured 54% attendance in sixth term and reasons for short of attendance in sixth term was claimed to be her often sickness but it was highly astonishing to note that not a single medical certificate was attached with the petition to substantiate the claim--Controversy was entirety revolving around the questions of fact and needed elaborate enquiry, such exercise could not be undertaken by High Court under Art. 199 of Constitution--Held: It was clear beyond any shadow of doubt which was also an admitted fact that petitioner was refused to appear in examination due to lack of required attendance and petitioner also admitted that student had missed 102 classes and secured only 54% attendance in sixth term as against 75% requirement--According to Prospectus, 2007-08, in genuine cases maximum 10% condonation can be allowed under discretionary powers of V.C. on basis of an application to be scrutinized by Chairman--Petitioner had failed to demonstrate any unfair or discriminatory treatment with her which can be required any interference of High Court--Further held: Since regulations and prospectus did not allow any student to appear in examination having below 75% attendance--Interim order passed by High Court did not create any valuable or vested right in favour of petitioner, when in interim order itself High Court allowed the petitioner to appear in examination at his own risk and subject to final decision of the case on merits--Petitioner had failed to make out any case on merits--Petition was dismissed. [Pp. 165, 166, 167, 169 & 170] A, B, C, D, E, F, G & H

2000 SCMR 1222, 1997 CLC 596, PLD 1977 Lah. 1029, 2001 MLD 1252, 1997 SCMR 1845, 1993 CLC 1675 & 2011 CLC 559, ref.

Mr. Irfan Ahmed Qureshi, Advocate for Petitioner.

Mr. Jhamat Jethanand, Advocate for Respondent.

Date of hearing: 29.3.2011.

Order

Muhammad Ali Mazhar, J.--The petitioner has preferred this Constitutional Petition with the prayer that a writ be issued against the respondent in the following terms:

1. To make an order to the respondent to allow the petitioner to sit in the examination of Sixth Term (third year) commencing from 25th November 2010 because the average percentage of attendance of third year (5th and 6th terms) is 65%.

2. To make an order to Respondent to allow the petitioner to sit in the sixth term examination of third year commencing from 25th November 2010 as the petitioner has acquired 65% average attendance plus 10% grace attendance making the total of 75% of average attendance of 5th and 6th terms of 3rd year.

3. To declare that the petitioner by virtue of Para. 17(1) of the prospectus stands promoted to Fourth year and she cannot be prevented from promotion to fourth year (7th term) which is likely to commence from January 2011.

4. To declare that no student can be termed back on account of short of attendance because no such provision of term back exists in the Regulations in vogue.

5. To declare that Statutes, Rules and Regulations are not to be treated as "Controlled Documents" and everybody should have access to them and they should be got published in official gazette of Sindh Government.

6. Any other relief/cost.

7. The brief facts leading to the controversy involved in this case are that the petitioner is student of 3rd year, Bachelor of Engineering (B.E). She was admitted in the respondent University in the year 2008 under the self finance scheme. The respondent is governed and regulated by the Mehran University of Engineering and Technology Act, 1997.

8. The petitioner has cleared all the heads of first term and second term. In addition thereto, the petitioner has given supplementary examination for the second year (4th term) and annual examination of third year (5th Term) but the result of both these examination are still awaited. She was promoted in the third year (6th term) and attended the classes but due to her sickness, she has missed some classes and her attendance has been worked out at 54%. It is further alleged that without issuing any show cause notice, the petitioner has been denied the examination form for the sixth term examination which was likely to be commenced from 25.11.2010. (N.B. The petition was filed in this Court on 24th November 2010, one day earlier to the date of examination).

9. The petitioner has further stated that it has been a practice of respondent that any student who is refused to appear in the examination due to short attendance is reverted back to the junior batch and compelled to sit idle and after sixth months when junior batch is promoted, he is allowed to repeat the same term and in this way, he is thrown back at least for one year which is nowhere provided either in the Act, or Regulations.

10. When this petition was filed, the crux of the matter was that if the petitioner is not allowed to appear in the ensuing term, then she will be virtually expelled for complete one year subject to fulfillment of other conditions including attendance in the next term which will commence from July 2011.

11. On notice, the respondent filed its comments in which it was inter alia contended that the petitioner had knowledge of her 54% attendance on 10.11.2010 but she has deliberately filed this petition only one day prior to her examination. It was further averred that the regulations framed in the year 1978 were amended/repealed on 31.5.2003. The petitioner belongs to 2008 batch which is governed by the respondent's prospectus 2007-08. The prospectus for the year 2010-11, though not applicable to the petitioner's case, but conditions referred to at page 111 of 2010-11 prospectus are same to the prospectus issued for the year 2007-08. The regulations pertaining to year 1978 were repealed w.e.f 31.5.2003, therefore, the student having 50% attendance is not eligible to appear in the examination. It was further stated in the comments that there is nothing on record to show the sickness of the petitioner. The petitioner will only be eligible to attend the classes of 6th term with 2009 batch students in July 2011. The petitioner has neither been ousted nor expelled and from July 2011, she will be entitled to attend the classes. The respondent has further submitted in the comments that each term has its own examination and 75% attendance is mandatory but in this case, the petitioner is not short of negligible or meager percentage of the attendance, therefore, debarring the petitioner is neither unreasonable nor the violation of the prospectus. Much emphasis has been made that in the similar circumstances, the action of respondent debarring the student having 61% attendance was upheld by this Court in C.P. No. 523 of 2000.

12. The learned counsel for the petitioner argued that the petitioner has always remained punctual up to 5th term. However, in the 6th term, she was severally sick, therefore, she could not attend the classes punctually. She was required to secure 65% attendance with grace of 10% attendance but due to aforesaid unavoidable circumstances, she could only secure 54% attendance. He further argued that due to her illness, the petitioner is entitled for the benefit. Debarring the petitioner is a harsh and major penalty. The learned counsel further averred that the petitioner in the 5th term secured 75% attendance and in the 6th term, she has 54% attendance, therefore, an average of attendance of the aforesaid terms comes to 64%, therefore, with the benefit of fraction, the attendance comes to 65% and after allowing the rebate/condonation of 10%, the average attendance of petitioner comes to 75%, therefore by all means she is entitled to attend the examination.

13. The learned counsel relied upon Regulation 10 of Mehran University of Engineering and Technology Admissions and Teaching of Student Regulation 1978 which provides that in order to qualify for the final examination of the term, the student must attend at least 75% of the classes in each course and secure satisfactory grade in sessional work of each course, failing which he shall not be allowed to sit in the final term test. However, for acceptance of examination form, the student must have secured 50% of the attendance. The learned counsel further argued that though the Regulations pertaining to the year 1978 were stood amended/repealed w.e.f 31.5.2003 but in the successive Regulations 2003, it is nowhere mentioned that by framing the Regulations in the year 2003, the Regulations 1978 shall deem to have been repealed, therefore, both regulations are applicable simultaneously and very much are in vogue and for the purposes of petitioner's case, 1978 Regulations will apply.

14. According to the learned counsel, Regulation 11 of Regulations 2003 is applicable only to the students who having 65% attendance but less than 75% attendance and they are eligible for 10% condonation by Pro-Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty. Learned counsel further argued that the facts of C.P. No. 523 of 2000 are quite distinguishable, therefore, the order passed in the case of Farhan Karim Maher has no relevancy. In support of his arguments, the learned counsel for the petitioner relied upon following case law :

(1) 2011 CLC 559 (Miss. Sehar Sultan v. Comsats Institution of Information Technology Lahore). In this Intra Court Appeal, the learned divisional bench of Lahore High Court has held that educational institution did not serve any show cause, notice or communicated the effect of lecture shortage/result of failure to appellant until she gained knowledge on her own after she had completed the sixth semester. Educational institution even did not intimate to the appellant as to her ineligibility to join the next semester resultantly she continued her education till completion of all the eight semesters and the final project. Appellant in circumstances, could not be penalized for the irregularity committed by the institution which impliedly consented to continuance of appellant's further education. No order affecting the rights of any person could be passed without affording an opportunity of hearing to such party.

(2) 1993 CLC 1675 (Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal of Sindh Medical Karachi). In this case, the learned divisional bench of this Court considered Regulation (4) of Pakistan Medical and Dental Council Regulations, 1965. The learned divisional bench held that regulation 4 (1) note (ii) would be applicable only to those cases where said four chances had either been fully but unsuccessfully availed of or had remained un-availed in circumstances involving voluntary failure or design inaction on the part of the student. Where concerned student was able to show that he was demonstrably rendered unfit due to an unavoidable and restricting sickness or prevented by other unavoidable just cause beyond his control from availing of a chance he could not be deemed to have failed in availing one of such four chances.

(3) 2001 MLD 1252 (Miss. Karima v. University of Punjab). In this case, the learned bench of Lahore High Court held that the students who have availed another chance under the interim order of the Court and have admittedly passed the subject which they could not earlier clear in four chances, we are not prepared to allow the petitioners to be thrown out of the study even though they have passed the examination in violation of the regulation. It is well settled that an act of the Court will not prejudice a litigant. The honourable Supreme Court of Pakistan in a case reported in 1997 SCMR 1845 directed the petitioner by an interim order to be admitted in MBBS Course and by the time of final hearing of the case, the petitioner had reached to the final year MBBS. The Court, therefore, held that it could not allow the petitioner to be deprived of his brilliant medical career. In these circumstances we dispose of all the said writ petitions holding that although the regulation in question is valid but the petitioners have cleared the first professional MBBS examination under interim order of this Court shall continue their studies and their such clearance shall be deemed to be proper and legal and will not adversely affect their continuous educational career.

(4) PLD 1977 Lahore 1029 (Controller of Examination Board of Intermediate and Secondary Education Lahore v. Waqar Hussain Hashmi). In this revision application, the learned single judge of Lahore High Court discussed the calendar of board of intermediate and secondary education Lahore Rule (iv) (x) which pertained to the hardship rule. The Court held that candidate for intermediate examination after sitting in all theory papers falling ill and therefore, failing to take practical of science subject. Rule (iv) (x) wide enough to cover such cases of illness and candidate entitled to decree allowing him to appear in practical in next examination.

(5) 1997 CLC 596 (Shaukat Hussain v. Syed Jarar Hyder). In this matter, the learned Single Judge of Lahore High Court while considering the Rules of Board of Intermediate and Secondary Education Bahawalpur held that once the matter that the petitioner was seriously ill came to the knowledge of Headmaster of the institution, he could not strike his name from the roll of the candidate as there was no deliberate negligence on the part of the petitioner and if at all he was of the view that percentage of the attendance was short then according to the rules he should have moved to the board for withdrawal of the admission form. If he was convinced from the very beginning that the attendance of the petitioner was short why he omit to write the word "provisionally" on the admission form submitted by him.

1. The learned counsel for the respondent argued that the petitioner had full knowledge that she had secured 54% attendance on 10.11.2010 and in order to gain undue advantage, she had filed this petition only one day prior to the date of examination which shows her mala fide intention. The learned counsel further averred that there is nothing available on record which may substantiate the plea of sickness advanced by the petitioner. The attendance eligibility list was affixed on the notice board but the petitioner never filed any objection nor approached the competent authority for the correctness of the list if it was found incorrect by her.

2. The learned counsel further argued that the students having below 75% attendance are not eligible for appearing in the examination. According to learned counsel, neither the petitioner has been ousted nor expelled but she was simply refused to appear in the examination due to the lack of required percentage of attendance and the petitioner will be eligible to attend the classes of sixth term with 2009 batch in July 2011. The learned counsel further argued that the criteria of mandatory requirement of 75% attendance was incorporated in the regulation to maintain the high standard of education and for the well being and proper grooming of students and the respondent implements the regulations fairly without any discrimination with any student.

3. The learned counsel invited the attention of this Court to a list along with a statement dated 29.11.2010, presented in Court on 1.12.2010. The attached list duly verified by the In charge, Director Management Information System of the respondent which shows that at least 111 students were not allowed to appear in the examination on account of less attendance (from 53% to 64%) in last three sessions. Separate sheets relevant to different batches along with different terms have also been attached with the statement showing the term wise position in which various students were not allowed to appear in the examination due to deficit/shortfall in the attendance. The learned counsel further argued that since the petitioner belongs to 2008 batch therefore, for all intent and purposes her case is governed by the prospectus 2007-08. So far as the applicability of Regulation 1978 is concerned, the learned counsel emphatically argued that 1978 Regulations, were amended/repealed on 31.5.2003. The learned counsel finally argued that no injustice was done with the petitioner and the respondents have always enforced and implemented the conditions mentioned in the regulations and the relevant prospectus across the board without any discrimination and each and every student is bound to follow the settled norms and standard and cannot claim any immunity or relaxation beyond its scope. In support of his argument, the learned counsel relied upon the following case law:--

(1) 2000 SCMR 1222 (Ali Yousaf and another v. Chairman of Academic Council and Principal Dow Medical College, Karachi). In this matter, the honourable Supreme Court while referring to another judgment reported in 1994 SCMR 532 in the case of Akhtar Ali v. Principal Quaid-e-Azam Medical College Bahawalpur held that right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, a student who intends to pursue his studies in the institution is bound by such rules. The above quoted rule in our view does not infringe upon the right of student to pursue his studies in the medical college. On the contrary it ensures arrest of falling standards of education in such institution. In so far as the contention that the petitioner appeared in the supplementary examination under the interim orders passed by the High Court in his constitutional petition and passed the same therefore, he is entitled to continue his studies. It may be mentioned here that interim orders allowing the petitioner to appear in the examination, which was to be held in January 1999 was subject to the condition that the petitioner may appear in the examination at his own risk and subject to the final decision of the case on merits. Since the high Court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January 1999 under interim orders of the Court the petitioner passed the examination, would be of no avail.

(2) Unreported Judgment in C.P No. D-523 of 2000 (Farhan Karim Mahar v. Mehran University of Engineering and Technology Jamshoro). In this matter, the learned divisional bench of this Court in the similar circumstances in which the respondent was also same held that it is not the case of the petitioner that during this period at any time he was restrained by the respondents from attending the classes but despite that the petitioner opted to attend classes of fourth term only from 12.9.2000 and as a result thereof on conclusion of classes on 21.2.2000, he could only manage 61% attendance which is well short of required minimum 75% for eligibility to appear in the examination. In view of this factual position the plea of the petitioner that due to previous litigation and dispute with the respondent he could not attend the classes from 5.6.2000 has no force. We are also not impressed by the submissions that this is a case where the petitioner is entitled for a lenient view in the matter so that his career is not ruined. In our view the stand taken by the respondents is neither arbitrary or discriminatory nor in any manner the same could be termed as harsh, unjust, un-equitable or improper. In such circumstances, exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an educational institution and therefore, we are not inclined to do so. Finally the learned divisional bench of this Court dismissed the petition in limine.

1. After hearing the arguments of the learned counsel and examining the relevant regulations and prospectus, we are of the firm view that though in the Mehran University of Engineering and Technology Admissions and Teaching of Students Regulation, 1978, it is clearly provided in Regulation 10 that in order to qualify for the final examination of the term the student must attend at least 75% of classes in each course and secure satisfactory grade in sessional work of each course failing which he shall not be allowed to sit in the final term test. However, for acceptance of examination form, the student must have secured 50% of attendance. It is worthwhile to mention here that in the year 2003, the respondent framed the regulations regarding the courses of studies under term system and examinations under external examiners system for the degree of Bachelor of Engineer (B.E), Bachelor of City and Regional Planning (B.C.R.P) and Bachelor of Architecture (B.Arch) as provided under Section 47 (1) (a) of Mehran University of Engineering and Technology Act, 1977. These regulations were amended by Academic Council vide Resolution No. 55.2 (f) dated 31st May 2003 and approved by the Syndicate vide Resolution No. 90.8 (ii) dated 6th December 2003. In the short title, it is clearly provided that these Regulations may be called Mehran University of Engineering & Technology, Bachelor of Engineering (B.E), Bachelor of Architecture (B.Arch.) and Bachelor of City & Regional Planning (B.C.R.P) Degree Courses Regulations amended on 31st May 2003, repealing such Regulations framed by the University authorities or otherwise (if any).

2. The Regulation (9) of 2003 Regulations, pertains to the Term Requirements which provides the minimum requirement for each term course as under:--

"9. Term Requirements.--The minimum requirement for each Term course shall be as follows:--

(i) Sessional Work consisting of class tests and laboratory work.

(ii) 75% attendance (minimum) and

(iii) Appearance in Term Examination."

1. The further clarification and explanation of attendance requirement is provided under Paragraph (11) of the Prospectus 2007-2008 for Bachelors Degree Program which reads as under:--

"11. ATTENDANCE REQUIREMENT

(i) A student must have at least 75% average attendance so as to be eligible to appear in the Term Examination.

(ii) In genuine cases, maximum 10% condonation in attendance shall be the discretionary powers of the Vice-Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty.

(iii) The eligibility attendance Theory/Practical for the admitted students to First Term of First Year only shall be calculated from the date of admission."

1. Though the whole crux of the petition is that the petitioner has only secured 54% attendance in the sixth term and reasons for the short of attendance in the sixth term is claimed to be her often sickness but it is highly astonishing to note that not a single medical certificate has been attached with the petition to substantiate the claim. The respondent in its parawise comments took a specific plea that there is nothing on record to show the alleged sickness of the petitioner for missing the classes. However, first time on 19th March 2011, the petitioner has produced her medical certificates along with affidavit in rejoinder. The petitioner has attached (05) Medical Certificates dated 27.7.2010, 31.8.2010, 24.9.2010, 29.10.2010 & 5.11.2010, respectively in which it is mentioned that the petitioner remained under treatment of Dr. Sohail A. Almani, being a patient of Acute Pholonephritis. It is significant to note that in all five medical certificates, the doctor had advised the complete bed rest for 15 days only. According to the website "www.nmihi.com/i/pyelonephritis". Acute pyelonephritis is one of the most common renal diseases. It is an inflammation of the kidney characterized by the sudden onset (within one to two days) of fever and chills, side pain, and frequent, painful urination. Acute pyelonephritis results most commonly from the spread of a naturally occurring lower urinary tract or bladder infection up through the ureters to the kidneys.

2. Along with the affidavit in rejoinder, the petitioner has also attached a letter dated 15th November 2010 which was written by her to the Chairman, T.L Department of the respondent. Though this letter does not show any acknowledgement or the manner of delivery but in this very letter, the petitioner herself mentioned as under:--

"To the best of my knowledge and belief and as per personal diary maintained by me during these days, I missed about 102 classes (subject to verification through attendance sheets). In support of my version that I have remained sick, I produced medical certificates. I request for condonation of attendance of my missed classes on medical ground".

In paragraph (6) of the affidavit in rejoinder, the petitioner has further highlighted through a table that she was found absent in 34 classes though she claims to have attended the same and she also refers to 32 more classes which were missed due to some other reasons. In our view, this controversy is entirety revolving around the questions of facts and needed elaborate enquiry, such exercise could not be undertaken by this Court under Art. 199 of the Constitution.

1. It is clear beyond any shadow of doubt which is also an admitted fact that the petitioner was refused to appear in the examination due to lack of required attendance and the petitioner also admitted that she had missed 102 classes and secured only 54% attendance in the sixth term as against 75% requirement. According to paragraph (11) of the Prospectus 2007-08, in the genuine cases maximum 10% condonation may be allowed under the discretionary powers of the Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty.

2. The case law relied upon by the learned counsel for the petitioner are distinguishable and not helpful to the facts and circumstances of the case in hand. In the first case reported in 2011 CLC 559, the education institution did not serve any show cause notice or communicated the effect of lecture shortage/result of failure to appellant until she gained knowledge on her own after she had completed the sixth semester. The institution even did not intimate ineligibility to join the next semester, resultantly she continued her education till completion of all the eighth semester and the final project. The Court in this case held that the appellant could not be penalized by the irregularity committed by the institution which impliedly consented to the continuance of appellant's further education. In the case reported in 1993 CLC 1675, no question of short of attendance was involved but the case before the Court was to consider the effect of failure on the part of student to clear first professional MBBS examination in four chances availed or un-availed would cease to be eligible for further medical education. In another case reported in 2001 MLD 1252, the Court while considering the judgment reported in 1997 SCMR 1845 in which the honourable Supreme Court directed the petitioner by an interim order to be admitted in MBBS course and by the time of final hearing of the case, the petitioner had reached to the final year MBBS, therefore, the Court held that it could not allow the petitioner to be deprived of his brilliant medical career. In this case also the question of shortage in attendance was not involved but the petitioners had challenged the order of Principal declaring that they were not eligible to continue further studies as they had failed to pass their first professional MBBS examination in four chances. In another case reported in PLD 1977 Lahore 1029, again the facts are distinguishable as in this case the learned single judge in its revisional jurisdiction considered the hardship rules of board of intermediate and secondary education Lahore and held that rule (iv) (x) is wide enough to cover cases of illness and candidate entitled to decree allowing him to appear in practical in next examination. In the present case also the petitioner has not been ousted or expelled from the institution but it is clearly mentioned in the comments of the respondent that the petitioner will be eligible to attend the classes of sixth term with the 2009 batch in July 2011. In the last case reported in 1997 CLC 596, it was held that Head Master could not strike of petitioner's name from the roll of candidates as there was no deliberate negligence on the petitioner's part and if, at all, he was of the view that percentage of attendance was short then according to rules he should have moved board of secondary examination for withdrawal of petitioners admissions form if he was convinced that the attendance of petitioner was short. No such controversy was involved in that case relevant to the facts and circumstances of the case in hand as in the present case the entire controversy is roaming around the applicability and implementation of 2003 Regulations and prospectus 2007-08 of the respondent in which the minimum requirement of attendance percentage is mentioned along with the mechanism and modality to claim the certain ratio of condonation subject to the discretion of competent authority.

3. The case law relied upon by the learned counsel for the respondent are quite applicable and helpful for the just and proper decision of the matter. This Court vide order dated 28.11.2000 passed in CP No. 523 of 2000 has already decided the similar controversy in case of same respondent and dismissed the petition with the firm finding that the student could only manage 61% attendance which is well short of required minimum 75% eligibility to appear in the examination. In the same judgment the learned divisional bench further held that the petitioner is not entitled for a lenient view in the matter as the stand taken by the respondent is neither arbitrary or discriminatory nor in any manner the same could be termed as harsh, unjust, un-equitable or improper and exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an educational institution. In the next judgment reported in 2000 SCMR 1222, the honourable Supreme Court has held that the right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore, student who intends to pursue his studies in the institution is bound by such rule.

4. The whys and wherefores lead us to a conclusion that Regulation 2003 repealed the earlier Regulations and according to 2003 Regulations, the condition of securing 75% attendance is mandatory however, a procedure and mechanism for seeking condonation is provided in the prospectus 2007-08 which provides that in genuine cases maximum 10% condonation in attendance shall be the discretionary powers of the Vice Chancellor on the basis of an application to be scrutinized by Director/Chairman concerned and routed through respective Dean of Faculty. These regulations and prospectus are applicable across the board. The petitioner has failed to demonstrate any unfair or discriminatory treatment with her which may require any interference of this Court.

5. This petition had first time fixed in this Court on 24.11.2010 on urgent motion and another learned divisional bench of this Court while issuing the notice to the respondent as well as AAG for 15.12.2010, directed the respondent to accept the examination form of the petitioner and allowed her to appear in the sixth term examination subject to the final outcome of this petition. Since the relevant regulations and prospectus mentioned supra do not allow any student to appear in the examination having below 75% attendance, therefore, the interim order passed by this Court does not create any valuable or vested right in favour of the petitioner, specially in the circumstances when in the interim order itself this Court allowed the petitioner to appear in the examination subject to final outcome of this petition. Even otherwise in the similar circumstances, the honourable, Supreme Court in its judgment reported in 2000 SCMR 1222 has already held that the petitioner was allowed to appear in the examination at his own risk and subject to the final decision of the case on merits. Since the High Court finally dismissed the petition on merits, therefore, the question that in the last attempt made in January 1999 under the interim orders of the Court the petitioner passed the examination would be of no avail.

6. The upshot of this discussion is that the petitioner has failed to make out any case on merits. Consequently, this constitutional petition is dismissed along with pending applications.

(R.A.) Petition dismissed.

PLJ 2011 Karachi 170 (DB)

Present: Shahid Anwar Bajwa & Tufail H. Ebrahim, JJ.

SALEH MUHAMMAD & 41 others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary of Ministry of Port & Shipping Pakistan Secretariat, Islamabad & 2 others--Respondents

Const. P. No. D-221 of 2010, decided on 19.2.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Non statutory rules of service--Master and Servant--Prime Minister task force on employment had directed authority not to take any person in employment without obtaining requisite NOC from Task Force--Challenge to--Contention--Law of master and servant can kick in only once relationship of employer and employee had been created and not before such relationship was created--Question of fact can be only decided after evidence was recorded and such an exercise cannot be undertaken in constitutional jurisdiction under Art. 199 of Constitution--Petition was disposed of. [Pp. 172 & 173] A & B

Mr. Abdul Salam Memon, Advocate for Petitioners.

Mr. Sanaullah Noor Ghori, Advocate and Mr. S. Ashiq Raza, D.A.G. for Respondent No. 2.

Date of hearing: 14.12.2010.

Judgment

Shahid Anwar Bajwa, J.--Petitioners have stated in the petition that in November, 2008 an advertisement was placed in newspapers by the Respondent No. 2 Authority for various posts in BS-2 to BS-15. The petitioners applied against those posts. It is further stated in the petition that petitioners passed written test and their interviews were conducted and they were issued letters of medical examination on 13.12.2008. It is also stated in the petition that they were medically examined and fitness certificate was issued for them by the doctors deputed for this purpose. However, while some other persons were taken in employment, the petitioners were not so taken in employment. On 31.12.2008, it was stated that the Prime Minister Task force on employment had directed the respondent Authority not to take any person in employment without obtaining requisite. NOC from the Task Force. This Constitutional petition was filed with the following prayers:--

"1. To declare that the Prime Minister's Task Force on. Employment and Human Resources and/or the Respondent No. 3 have no lawful authority or jurisdiction to require NOC from it before recruitment of it's employees by the Respondent No. 3.

1. To declare that the orders, O.M.S, Circulars, Directives issued by the Prime Minister's Task Force on Employment and Human Resources and /or Respondent No. 3 including letter dated 13.12.2008 whereby the Respondent No. 2 was required to obtain NOC prior to recruitment, appointment of the employed including the petitioners is arbitrary, illegal, malafide, unwarranted and without any lawful authority or jurisdiction and set-aside the same.

2. To set-aside the letters/circulars dated 31.12.2008 and other directives issued by the Respondent No. 2 purporting to cancel/withdraw selection and fitness/appointment of petitioners dated 26.12.2008.

3. To direct the respondents to give effect to the selection and medical fitness/appointment letter issued on the strength of letter issued by the Respondent No. 2 towards the appointment of the petitioners in their respective posts in various basic pay scales (BPS) the petitioners in the service.

4. To prohibit the respondents or any person(s) acting under their authority from appointing any other person(s) in any manner/ mode or giving charge in service of Respondent No. 2 till the decision of the instant petition.

5. To grant any other relief which is deemed just and appropriate by this Honourable Court."

6. Comments were filed by the respondent Authority and it was stated that letters for medical examination were issued by one of the functionaries of the respondent Authority without any record and without any authority. It is further stated that, action was taken against that functionary and he has been, after departmental proceedings, punished with demotion.

7. Learned counsel for the petitioner made the following submissions:

Once the petitioners have been issued letters for medical examination vested right was created in favour of the petitioners. Such rights could not have been taken away from them without any fault on their part. Learned counsel relied upon Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others, 2004 SCMR 1077.

without authority and the respondent authority has no record of application by most of the petitioners.

1. Syed Ashiq Raza, learned DAG adopted arguments of Mr. Sanaullah Noor Ghori.

2. While exercising his right of rebuttal learned counsel for the petitioners relied upon Muhammad Dawood & others v. Federation of Pakistan & others; SBLR 2007 Sindh 495.

3. We have considered the submissions made by the earned counsel. In Pakistan International Airlines Corporation v. Tanveer-ur-Rehman, PLD 2010 SC 676, paras 19 and 25 thereof the Hon'ble Supreme Court has held that if there are no statutory rules of service, notwithstanding the fact that employer organization is a person within contemplation of Article 199 (5) of the Constitution writ petition by employees of such an organization would not be maintainable. Contention of the learned counsel was that law of master and servant can kick in only once relationship of employer and employee has been created and not before such a relationship is created. Exactly the same contention was made by the learned counsel in Writ Petition No. D-1113/2010 decided on 17.4.2010 (Imtiaz Ali Bhagat v. Ministry of Overseas Pakistanis and other). After referring to Tanveer-ur-Rehman's case the following was laid down:--

"Reading of above para indicates that Supreme Court has held that if there are no statutory rules then relationship is (and, if created, would be) that of Master and Servant. One of the essential and fundamental precepts of relationship of Master and Servant is that servant cannot be thrust upon an unwilling master. Therefore, whether such thrusting is sought by setting aside of termination or by ordering initial appointment would be immaterial in this regard."

Reference may be made in this regard to M/S. Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others, 1961 PLC 1381. This Constitutional petition is therefore not maintainable.

1. Besides there are questions of fact. It is contended by the petitioners that they applied for the jobs but they have not enclosed any of the application for the job that they submitted. It is contended by the respondent Authority that no final selection took place. Such contention is denied by the petitioners. It is claimed by the petitioners that letters for medical examination were issued. It is stated by the respondent Authority that person issuing the letters did so without authority. All these questions of fact can be only decided after evidence is recorded and such an exercise cannot be undertaken in Constitutional jurisdiction under Article 199 of the Constitution. Reliance on Akhtar Shirani and Imdad Magsi cases by the learned counsel for the petitioner as also on Dawood case cannot be of much help in these proceedings. In Akhtar Shirani case it was held that beneficiary of illegal appointment could not be blamed alone. It was further held that such illegally appointed person having served for period if removed from service discriminatory such action would not be justified and the authority should take action against the person who wrongly exercised the power. In the present case the petitioners had not yet entered into employment and it is stated by the Authority that action has been taken against the functionary and he has been after departmental proceedings punished with demotion. Imdad Magsi's case (Supra) is case of retrenchment of employees of KBCA. As far as Dawood's case is concerned, maintainability of writ petition is now regulated by judgment of the apex Court in Tanveer-ur-Rehman's case.

2. Result of the above discussion is that this Constitutional Petition is dismissed in limine as being not maintainable. Listed applications are disposed of. Petitioners shall be, however, at liberty to seek such remedy as may be available to them in accordance with the law.

(R.A.) Petition dismissed.

PLJ 2011 Karachi 174 (DB)

Present: Muhammad Ather Saeed and Irfan Saadat Khan, JJ.

Mrs. SOHAILA SHAHZAD--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary and 4 others--Respondents

C.P. No. D-1613, D-1618, D-1412 & D-1880 of 2006, decided on 2.6.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Question of refusal to accept joining report--Question of--Whether issue raised in petitions was amenable to constitutional jurisdiction--Services of petitioners was permanently transferred from PIDC to Patroman in existing pay and grade--Repatriated back to parent organization--Validity--There were no statutory rules of PIDC whether their terms and conditions were not governed by statutory rules but only by regulations, instructions or directions which institution or body, in which, petitioners were employee, had issued for its internal use in violation thereof could be enforced through a writ petition--No statutory regulations exist in that regard the grievance of the petitioners appeared to be their individual grievance which can only be decided on its merits if any adverse action was taken by employer in violation of statutory rules only then action amenable to writ jurisdiction arises--If there were no statutory rules then principle of master and servant would be applicable and such employees had to seek remedy before Court of competent jurisdiction--PIDC admittedly did not have statutory rules and rules of service being not statutory the petitioner was not amenable to writ jurisdiction and only course of action available with petitioners to seek other remedies available to them--Petitions being not maintainable were dismissed. [Pp. 183 & 184] A, B & C

SBLR 2010 SC 303, PLD 2005 SC 806, ref.

Mr. Kazi Abdul Hameed Siddiqui, Advocate for Petitioners (in C.Ps. Nos. 1613 to 1618 of 2006).

Mr. Bilal Khilji, Advocate for Petitioners (in C.P. No. 1412 of 2006).

Nemo for present petitioners (in C.P. No. D-1880 of 2006).

Mr. Sadaqat Khan, Standing Counsel for Respondents No. 1 to 3.

Mr. Masood Ahmed Khan, Advocate for Respondent No. 4.

None present for Respondent No. 5.

Date of hearing: 2.6.2011.

Judgment

Irfan Saadat Khan, J.--This Constitutional Petition calls into question the refusal of Respondent No. 4, Pakistan Industrial Development Corporation ("PIDC") to accept joining report of the petitioner. This petition has been filed with the following prayer clauses:--

"A. Declare that the Respondent No. 4 has been acting in sheer malafides and has been arbitrary and in violation of many mandatory duties enshrined in the Constitution of Pakistan as well as service rules as to the extreme case of hardship faced by the petitioner.

B. Direct the Respondent No. 4 to rehabilitate the petitioner from the day on which the petitioner extended letter of joining/repatriation to the respondent, with all prospective and retrospective monitory benefits, honor and dignity.

C. Direct the Respondent No. 4 perpetually not to disturb the petitioner as to her proprietary interests in the job except in accordance with law.

D. Up to the time this petition is disposed off, direct the Respondent No. 4 to release monthly remuneration of the petitioner w.e.f 1st of September, 2006 and if this Hon. Court is pleased to grant relief to the petitioner i.e. her constructive rehabilitation with the Respondent No. 4, to release all the past pays with all heads along with markup at the prevailing rate.

E. Any other relief/ relief deemed fit by this Hon. Court may also be granted".

1. Briefly stated, the facts of the case are that the petitioner was appointed in Grade E-l by Indus Steel Pipes Limited, a unit of PIDC, on 12.12.1982 and was promoted to Grade E-2 on 10.7.1989 and to Grade E-3 in January, 1995. On 28.1.2000 some subsidiary companies, including Petroman, were merged in PIDC and came under the control of the Chairman, PIDC. Thereafter, the Chairman, PIDC, transferred the petitioner and eight other officers, vide letter dated 31.8.2000, to Petroman. Subsequently, Petroman, which till now was under the Ministry of Industries and Production, became part and parcel of the Ministry of Information Technology, the Respondent No. 1 herein. The Petroman, vide its letter dated 8.10.2003, terminated the services of the petitioner as well as other transferee officers against which the petitioner filed C.P. No. D-1376/2003 before this Court but during pendency of the said petition the respondents intimated the Court that the termination orders were changed and the petitioner and other transferee officers repatriated to their parent organization and were directed to report to the Chairman, PIDC in this regard. Accordingly, the said petition was not pressed and was dismissed as withdrawn. However, when the petitioner submitted her joining report to the Respondent No. 4, it was declined and she was not allowed to join. Hence, the present petition.

2. Mr. Kazi Abdul Hameed Siddiqui, learned counsel for the petitioner, submitted that Petroman was a subsidiary of the Respondent No. 4, PIDC and the petitioner was an employee of Respondent No. 4, PIDC, and not that of Petroman. She was only transferred on deputation to work in Petroman. He submitted that the petitioner had a lien with the Respondent No. 4, PIDC, and, therefore, she was entitled to rejoin her parent organization and, therefore, the Respondent No. 4 was not justified in refusing her to join. He submitted that the act of Respondent No. 4, is in violation of the provisions of Articles 4 and 14 of the Constitution. The learned counsel also invited our attention to the case of one Waseem Akhter, who was also transferred from Respondent No. 4 to Petroman but was subsequently allowed to join the Respondent No. 4. Thus, according to the learned counsel, this is discrimination with the petitioner and violation of Article 25 of the Constitution. He submits that the petition revolves around one question only i.e. whether the petitioner had a lien with Respondent No. 4 after her transfer to Petroman, or not? In this regard he referred to the definitions of the terms "lien", "absorption", "repatriation", and "permanent transfer". He also invited our attention to Ordinance LII of 1984 and stated that the petitioner had a statutory lien with the Respondent No. 4 and, therefore, the said respondent was not justified in depriving her from her vested right. He also invited our attention to the letter dated 17 November, 2003 wherein it was stated that her employment with Petroman had been terminated and she was repatriated back to her parent organization. He submitted that PIDC was not justified in not allowing the petitioner to join her duties when she was repatriated by Petroman to her parent organization. In support of his above contentions the learned counsel relied on the following cases:

(i) Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence (PLD 2006 SC 602), (ii) Muhammad Mobin-ul-Islam v/s. Federal Government [1998 PLC (CS) 400], (iii) (Province of West Pakistan v/s. Been Muhammad and others PLD 1964 SC 21), (iv) Khan Faizullah Khan v/s. Government of Pakistan (PLD 1974 SC 291), (v) The Lahore Central Co-Operative Bank Ltd. versus Pir Saif Ullah Shah (PLD 1959 SC 210), (vi) Chairman East Pakistan Development Corporation v/s. Rustam Ali and others (PLD 1966 SC 848)

(vii) Abdul Rehman v/s. Federation of Pakistan [2010 PLC (CS) 692].

(viii) Executive Engineer Lahore v/s. Muzzaffar-ul-Haq (2000 SCMR 656)

(ix) Messrs Rasu Food Industries versus Messrs Pakistan Industrial Leasing Cooperation Limited (2005 SCMR 1643)

(x) Bolan Bank Limited v/s. Capricon Enterprises (1998 SCMR 1961)

(xi) Chairman SLIC v/s. Humuyun Irfan [2010 PLC (CS) 1183]

(xii) Mazhar Ali v/s. Federation of Pakistan (1992 SCMR 435)

(xiii) Secretary Education v/s. Wiqar-ul-Haq (2000 SCMR 1780)

(xiv) Dr. Malik Maroof Imam v/s. Federation of Pakistan (SBLR 2008 Sindh 575)

(xv) P.I.A.C. v/s. Shehzad Farooq Malik (2004 SCMR 158)

(xvi) P.I.A.C. v/s. Nasir Jamal Malik [2001 PLC (CS) 890]

(xvii) Mrs. M.N. Arshad v/s. Ms. Naeema Khan (PLD 1990 SC 612)

(xviii) Sher Shah Industries v/s. Government of Sindh (PLD 1982 Karachi 653)

1. Mr. Bilal Khilji, advocate appeared on behalf of the petitioner in C.P. No. D-1412/2006 and adopted the arguments of Mr. Siddiqui. In addition to the cases relied upon by Mr. Siddiqui, Mr. Khilji, also relied on the following cases:

(i) PTCL v/s Muhammad Zahid (2010 SCMR 25), (ii) Anisa Rehman v/s P.I.A.C (1994 SCMR 2232)

1. On the other hand, Mr. Masood Ahmed Khan, advocate, appeared on behalf of Respondent No. 4 and submitted that this petition is not maintainable as the petitioners were permanently transferred to Petroman and, subsequently, they were terminated. He submitted that though Petroman stated that the petitioners were repatriated to Respondent No. 4 but, after the petitioners were permanently transferred to Petroman, they had no lien over Respondent No. 4. In support of his contentions the learned counsel relied on the following reported judgments:

(a) P.I.A.C v/s. Tanveer-ur-Rehman (SBLR 2010 SC 303).

(b) Pakistan Telecommunication v/s. Iqbal Nasir (PLD 2011 SC 132).

1. The learned counsel further submitted that the case of Waseem Akhtar is totally different from the case of the petitioners as he was not among the persons who were repatriated and hence there was no discrimination. He, therefore, submitted that the petition, being not maintainable, is liable to be dismissed. Standing Counsel Mr. Saadqat Khan has adopted the arguments of Mr. Masood.

2. We have heard all the learned Counsel at length and have also perused the record and decisions relied upon.

3. Before advancing any further the prime question which firstly has to be considered is that whether the issue raised in the present petitions is amenable to constitutional jurisdiction or not? It is seen from the letter dated 31.08.2000, addressed by Respondent No. 4 to Petroman, that the services of the petitioner was "permanently transferred" from PIDC to Patroman in existing pay & grade with immediate effect. The petitioner was then repatriated back to the parent organization vide letter dated 17.11.2003. However, the petitioner was not granted the permission to join Respondent No. 4. It is seen from the record that Respondent No. 4 vide letter dated 26.03.2004 examined the case of the petitioner at length and thereafter decided that the petitioner may be considered for employment on contract basis in PIDC against clear vacancies provided rules of PIDC so allow and subject to the fulfillment of qualification, experience etc. and requirement of the vacancies. Against the said letter the petitioner filed a Constitutional Petition Bearing No. D-474/2004 before this Court and while deciding the said Constitutional Petition on 14/06/04 the Hon'ble Court has observed as under:--

"The petition pertains to the terms and conditions of service of the employees of PIDC, which is fully owned by the Federal Government employees whereof are admittedly civil servants within the meaning of Section 2 of the Civil Servants Act, 1973. As such this petition is hit by provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan. The petitioners have the alternate remedy as provided for in the Civil Servants Act, but the same has not been availed by them for no justifiable reason.

Accordingly, this petition merits no consideration and is dismissed in limine alongwith the listed applications".

1. The petitioner then approached the Federal Service Tribunal (FST) and the Registrar of the FST abated the appeal on 30.06.2006 by observing as under:

"I have been directed to inform the litigants in their respective Service Matters, that pending cases or proceedings, which are not protected or covered by the judgment of the Apex Court dated 27.06.2006 in Civil Appeals No. 792 to 816/2005, etc. shall stand abated and that they i.e. litigants have been mandated by the Apex Court to resort to the competent forums for redressal of their grievances within 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of the stipulated period. Further, it may be noticed that as held in 1999 PLC (CS) 1316.

There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings results us as a consequence of operations of law, such abatement becomes operative ipso facto at once and there is not need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before those forums thereafter, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum " as in fact after abatement of the proceedings such forum cannot be held to be competent or proper forum. The only corollary pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying upon the rules enunciated in the following precedents:

(1) PLD 1983 SC 385 (2) 1975 SCMR 259 (3) 1985 SCMR 333 (4) 1985 SCMR 890 (5) 1991 SCMR 1841 And (6) 1997 SCMR 1167.

You are nevertheless being informed that your cause Appeal Nos. 281 to 285 stood abated w.e.f. 27th day of June 2006".

1. However, thereafter some representation was made before the Hon'ble Supreme Court of Pakistan in the case of some other petitioners and the Hon'ble Supreme Court was pleased to hold that passing of the order by the Registrar, FST, by abating the appeals of the appellants was not in accordance with law and thereafter remanded the case back to the FST. The FST thereafter heard the appeal of the petitioners and vide order dated 26.06.2009 again abated the appeal of the petitioner by observing as under:

JUSTICE (R) ABDUL GHANI SHAIKH, CHAIRMAN.--The petitioner has submitted M.P. for passing a judicial order regarding abatement of the appeal.

1. This petition has been filed in view of the Civil Petition No. 722 of 2007 (Raja Riaz vs. Chairman Space and Upper Atmosphere Research Commission, Karachi, reported in 2008 SBLR 40) wherein the Hon'ble Supreme Court has held that Registrar of this Tribunal has no authority to declare that any appeal has abated and that the Tribunal is required to pass separate order in every case after providing an opportunity to the parties keeping in view that observations made by the Hon'ble Supreme Court in the judgment in C.P. Nos. 792 to 816 of 2005 (Mubeen-us Salam and others vs. Federation of Pakistan and others reported in PLD 2006 SC 602 as well as in view of judgment passed in M.P. No. 284 and 285 of 2008, Appeal Nos. 107 and 229(K)(CE)/2006.

2. The petitioner admits that he being an employee of PIDC, which is not a statutory body, is not a civil servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973 and therefore the appeal is liable to be abated. Appeal therefore stands abated in view of (Mubeen-us-Salam and others vs. Federation of Pakistan and others in C.P. Nos. 792 to 816 of 2005 reported in PLD 2006 (SC) 602.

M.Ps. Nos. 203, 232 & 233 of 2009 are disposed of accordingly".

1. We were able to lay our hands on the decision reported as Pakistan Red Crescent Society and another Vs. Syed Nazir Gillani (PLD 2005 Supreme Court 806) wherein the Hon'ble Supreme Court of Pakistan observed as under:

"12. It may not be out of place to mention here that this Court has consistently held that in the case of an employee of a corporation where protection cannot be sought under any statutory instrument or enactment the relationship between the employer and employee is that of a Master and Servant as enunciated in various judicial pronouncements which still hold the field are as under:--

(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1996 SC 848)

(ii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210);

(iii) Shahid Khalil v. P.I.A.C. Karachi (1971 SCMR 568);

(iv) A. Ceorge v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748)

(v) Muhammad Umar Malik v. The Muslim Commercial, Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453);

(vi) Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60);

(vii) Raziuddin v. Chairman, P.I.A.C. (PLD 1992 SC 531);

(viii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836)

(ix) Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404)

(x) Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597)

(xi) Zeba Mumtaz v. First Women Bank Ltd (PLD 1999 SC 1106)

1. We have also examined the case-law as referred to by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court which is not applicable being distinguishable.

2. The upshot of the above mentioned discussion is that the appeal is accepted and judgment impugned is set aside. The Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the Respondent. The respondent may approach the forum concerned for redressal of his grievance, if so desired".

3. Even in a latest decision given by the Hon'ble Supreme Court of Pakistan in the case of Pakistan International Airline Corp. & others Vs. Tanweer-ur-Rehman & others (SBLR 2010 SC 303) it was observed as under:

"Therefore, question for consideration would be as to whether in absence of any breach of statutory provision, the employee of appellant-corporation can maintain in action for reinstatement et. This Court when faced with the same question in the case of Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), held that "where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudical taken against him in derogation or in violation of the said rules can be set aside by a writ petition; however, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not normally, be enforced through a writ petition". Likewise, in Raziuddin v. Chairman, PIAC (PLD 1992 SC 531), this Court has held that "the legal position obtaining in Pakistan as to the status of employees of the Corporation seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in use of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement; however, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement". It was further held that "the PIAC has the Regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in Section 30 of the Act; however, there is nothing on record to indicate that the above regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of Section 31 of the Act; in this view of the matter, the Regulations cannot be treated as statutory rules of the nature which would be bring the case of the PIAC within the above qualification as to entitle the employees of the PIAC to claim relief of reinstatement on the ground of breach of the statutory provisions." The above view has been reiterated in Habib Bank Ltd. v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60) and Pakistan Red Crescent Society v. Nazir Gillani (PLD 2005 SC 806). In the last mentioned pronouncement, it has been held that "an employee of a Corporation in the absence of violation of law or any statutory rule could not be press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service; his remedy against wrongful dismissal or termination is to claim damages".

1. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amendable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction.

2. It was also contended by the learned Counsel for the respondents that writ petition before the High Court is maintainable against a statutory corporation. Reference in this behalf was made to Airport Support Services v. Airport Manager (1998 SCMR 2268), Ramma Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) (2004 SCMR 1274) as well as to Aitchison College's case (supra).

It was further observed by the Hon'ble Supreme Court in the aforementioned case as under:

"25. Thus in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as it is evident from the facts narrated hereinabove, and not by the statutory rules framed under Section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant.

In view of the above conclusion, Civil Appeal Nos. 172-K to 175-K, 179-K to 181-K of 2009 (filed by the appellant-corporation) are allowed where as Civil Appeal Nos. 177-K, 178-K and 182-2009 (by the respondent-employees) are dismissed, leaving the parties to bear the own costs".

1. In view of the above settled proposition of law and in view of the admitted position that there are no statutory rules of Respondent No. 4 whether the petitioners can claim any lien in respect of their services from Respondent No. 4 where their terms & conditions are not governed by statutory rules but only by regulations, instructions or directions which the institution or body, in which the petitioners were employee, has issued for its internal use in violation thereof could be enforced through a writ petition. The Hon'ble Supreme Court of Pakistan has already decided the matter by observing that remedy in this regard is only available in the extent of claim of damages and not otherwise. In view of the fact that no statutory regulations exist in this regard the present grievance of the petitioners appears to be their individual grievance which can only be decided on its merits if any adverse action is taken by the employer in violation of the statutory rules only then action amenable to writ jurisdiction arises. However, if there are no statutory rules then the principle of master and servant would be applicable and such employees have to seek remedy before the Court of competent jurisdiction.

2. It is also seen from the record that the petitioner accepted her permanent transfer and joined Petroman without any objection thereto. As a consequence thereof her Provident Services and other dues etc. were also transferred to Petroman vide letter dated 3.10.2000 which has not been denied or controverted by the learned Counsel for the petitioners. It is also seen from the record that when Petroman became a subsidiary of the Respondent No. 04 a requisition was received from them to transfer some experienced staff and thereafter services of nine employees including the petitioner with the approval of the Ministry of Industries were permanently transferred to Petroman and thereafter individual letters for transfer were issued who not only accepted their permanent transfer without any objection but also joined their duties.

3. It is also seen that the case of Waseem Akhtar falls on totally different pedestal as when the said officer was transferred he filed a departmental appeal which was allowed and his transfer was cancelled whereas admittedly in the present case there was no such departmental appeal filed by the petitioners as soon as they were transferred to Petroman.

4. We, therefore, keeping in view the above discussion and the specific directions issued by the Hon'ble Supreme Court are of the considered view that as Respondent No. 4 admittedly does not have statutory rules and rules of service being not statutory the Petitioner is not amenable to writ jurisdiction and the only course of action available with the petitioners was to seek other remedies available to them. These petitions thus being not maintainable are hereby dismissed. However, the petitioners would be at liberty to seek other remedies available to them in accordance with law.

(R.A.) Petitions dismissed.

PLJ 2011 Karachi 184 (DB)

Present: Mushir Alam, CJ & Syed Hasan Azhar Rizvi, J.

TARIQ MEHMOOD A. KHAN and 3 others--Petitioners

versus

SINDH BAR COUNCIL through its Secretary and another--Respondents

C.P. No. D-306 of 2010, CMA No. 2260/2011 and Misc. No. 1239/2010, decided on 27.5.2011.

Constitution of Pakistan, 1973--

----Art. 199(1)(b)(ii)--Pakistan Legal Practitioner & Bar Councils Rules, 1976--Sindh Legal Practitioners & Bar Councils Rules, 2002, R. 5(1)--Procedure of filling of casual vacancy--Quo warranto jurisdiction of High Court--Maintainability--Elections of Sindh Bar Council--Notification of new elected members was issued after official counting--Results were not challenged before any Tribunal or Court--Seat was vacant due to death of new elected member of S.B.C.--Defeated candidate appeared at S. No. 7 was declared eligible to fill vacant seat u/S. 16(b) of Act, 1976--Validity--Petitioner had invoked the relief of quo warranto was not issued as a matter of course and the Court can and will enquire into conduct and motive of relator--No specific rule for exercise of discretion by Court in granting or refusing an information in nature of quo warranto--Petitioner had not been able to point out any provisions of law which had been violated in issuing notification--Rule 28-A of Pakistan Legal Practitioner & Bar Councils Rules, 1976 was not applicable where no number qualified highest to next--It was not a fit case for issuance of writ of quo warranto and interfere in smooth function of Bar Councils--Petition was dismissed. [P. 190] B, C, D, E & F

Pakistan Legal Practitioner & Bar Councils Act, 1973--

----S. 16(b)--Constitution of Pakistan, 1973, Art. 199(1)(b)(ii)--Writ of quo warranto--Filling of vacant seat of Bar Councils--Election of Sind Bar Council--Notification regarding new elected member was issued for publication in official gazette--Seat was vacant due to death of elected member--Notification was issued to find defeated candidate appeared at S. No. 7 as eligible to fill vacant seat--Challenge to--Procedure of filling of casual vacancy--Validity--Any vacancy falling vacant on any account is to be filled by a person who had secured next highest number of votes. [P. 190] A

M/s. Tahmasp R. Razvi and Haq Nawaz Talpur, Advocates for Petitioners.

Mr. Mustafa Lakhani, Advocate for Respondent No. 2.

Mr. Salahuddin Khan Gandapur, Advocate for Respondent No. 2.

Ms. Noor Naz Agha, Advocate on Court Notice.

Mr. Raja Qasit Nawaz, Advocate for Intervenor.

Mr. Adnan Ahmad, Advocate for Intervenor.

Mr. Muhammad Sarwar Khan, Addl. A.G. for Sindh.

Date of hearing: 4.5.2011.

Order

Syed Hasan Azhar Rizvi, J.--The above numbered Constitutional petition was heard and dismissed by our short order dated 04.05.2011. Reasons in support thereof, with concise relevant facts, are recorded as under:--

1. The petitioners are the members of the Sindh Bar Council and actively involved in the affairs of the Lawyers Community have invoked the quo warranto jurisdiction of this Court, mainly against the Respondent No. 2 Mr. Salahuddin Khan Gandapur, further seeking direction to Respondent No. 1 Sindh Bar Council for holding fresh elections for the one (1) seat of Sindh Bar Council from District South, Karachi.

2. The petition was presented on 04.2.2010 and on 18.2.2010 notices were issued to the respondents as well as Advocate General Sindh in response whereof, M/s. Munir A. Malik and Mustafa Lakhani, advocates have appeared on behalf of Respondents No. 1 and 2 and filed their comments.

3. On 10.9.2009 the Returning Officer/Chairman of the Sindh Bar Council, issued Notification under Rule 5(1) of the Sindh Legal Practitioners & Bar Councils Rules, 2002 for announcing the complete program for the elections of the Sindh Bar Council for the tenure 1st January 2010 to 31st December, 2014. Accordingly, list of voters were prepared, nominations were received and on 21.11.2009 polling was conducted from 9.00 a.m. to 5.00 a.m. On the same day in the late hours an un-official counting of votes was done by Polling Officers, whereafter on 2.12.2009 final counting of votes was done in the office of Respondent No. 1 and on 12.12.2009 16 persons were declared return candidates from their respective districts as a result of count and a Notification was issued by Respondent No. 1 for publication in the official gazette. On 05.12.2009 Mr. Muhammad Ali Abbasi, Advocate, who was also a sitting member of the Sindh Bar Council expired, consequently in terms of Section 16(b) of Pakistan Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as the Act, of 1973), Mr. Ainuddin is to be notified as elected member of the Sindh Bar Council for the remaining tenure, as he secured the highest number of votes next after Mr. Muhammad Ali Abbasi, Advocate.

4. Mr. Tahmasp Razvi learned counsel for the petitioners contended that final result was announced on 12.12.2009 and Mr. Muhammad Ali Abbasi, return candidate from District South, has expired on 05.12.2009 prior to completion of election process, therefore Section 16(b) of the Act, is not applicable in the case of Respondent No. 2, as the same has applied only once in respect of each vacancy and Mr. Ainuddin, advocate was appointed against the vacant seat of Mr. Muhammad Ali Abbasi for the remaining tenure. He further contended that Vice Chairman Sindh Bar Counsel made representation to the Chairman/Returning officer Sindh Bar Council praying therein that fresh schedule for the re-election of a one (1) vacant seat, of District South Karachi be announced as the vacancy was not created during the term of office but before termination of the election process (copy of representation dated 24.12.2009 is available at Page 141 of the file), which has been ignored and no proper order has been passed on the same. He also contended that Section 28-A of Pakistan Legal Practitioner & Bar Councils Rule, 1976 has not been adhered to, which provides the procedure of filling of casual vacancy, which is reproduced below:--

"28-A. (i) Any member of a Provincial Bar Council present in the meeting may propose, in writing, the name of an Advocate whose name appears in the Divisional Roll frame that District or Districts to which the vacancy relates, who is qualified to be a Member of the Provincial Bar Council under the Provisions of the act and Rules.

(ii) Such proposal shall be supported by documentary proof of the qualifications of a candidate for the membership of Provincial Bar Council as enumerated in Section 5A of the Act, and shall also be accompanied by a declaration from such candidate that he does not suffer from any of the disqualifications as laid down in the Act, and the Rules.

(iii) If there are more than one proposals for co-option to fill in the vacancy, the decision shall be taken by majority of the members present in the meeting of the Provincial Bar Council.

(iv) After the co-option of a Member against a casual vacancy, the Chairman of the Provincial Bar Council shall cause the name of such co-opted person to be notified in the Official Gazette of the Province as Member of such Provincial Bar Council."

1. Learned counsel lastly argued that the Notification dated 13.1.2010 declaring Mr. Salahuddin Khan Gandapur, Respondent No. 2, as an elected member is void ab initio, liable to be set aside and directed the Respondent No. 1 to hold fresh elections for the one (1) seat of Sindh Bar Council from District South, Karachi. In support of his submissions, learned counsel has placed reliance on the case of Mushtaq Hussain Shah vs. Sindh Bar Council & others (2003 YLR 1520), Syed Jalal Mehmood Shah & another vs. Federation Of Pakistan & another (PLD 1999 SC 395), Shawar Khilji vs. Munawar Iqbal Gondal & 2 others (PLD 2009 Lahore 677), Pakistan International Airline Corporation & others vs. Tanweer-ur-Rehman & others (PLD 2010 SC 676), Salahuddin & 2 others vs. Frontier Sugar Mills & Distillery Ltd. & 10 others (PLD 1975 SC 244) and Ali Irtaza Khan vs. Principal, Lawrence College Ghora Gali Muree & another (1994 MLD 2452).

2. On the other hand, Mr. Mustafa Lakhani learned counsel for the Respondent No. 2 at the very outset objected to the maintainability of this Constitutional petition on the ground that Respondent No. 2 is not holding a public office hence writ of quo warranto does not lie. He argued that, Respondent No. 2 is a duly elected member of the Sindh Bar Council which is a corporate body having perpetual succession and a common seal with power to acquire and hold property as provided under Section 3 of the Act, of 1973. He urged that election process was completed on 02.12.2009 when the official counting of votes were held and the issuance of notification was merely a ministerial act. He also urged that under Article 199(1)(b)(ii) of the Constitution it is the petitioners who have to show that Respondent No. 2 is holding office in clear violation of statutory law and thereafter same can be asked from the respondent under what authority of law he is holding public office. He made reference to the case of Dr. Bushra Ashiq Siddiqui vs. Muhammad Aslam (1989 MLD 1351), wherein it has been held that "in order to make an office as a public office, it should have been created by some law, that it should involve exercise of some portion of sovereign function and that the public should have some interest to ensure that the person holding such office has the right to hold."

3. Learned counsel further argued that neither the petitioners have contested election nor they have aggrieved persons to file writ petition. He argued that if it is assumed that the petitioners have aggrieved persons were required to avail the alternate and adequate remedy provided by statue, before invoking the jurisdiction of this Court under Article 199 of the Constitution. He drew our attention to Section 13(2) of the Act, of 1973, which provides an appeal to the Pakistan Bar Council against an order or decision of a Provincial Bar Council within 30 days of passing of such order or decision.

4. Lastly, Mr. Lakhani contended that no provision to hold fresh or re-election is provided by statue. He made reference to Section 7 of the Act, of 1973, which provides that Provincial Bar Council election shall be held only when term of Provincial Bar Council expires on or before 13th day of November of that year. He, therefore, prayed that petition is not maintainable and liable to be dismissed. In support of his submissions, learned counsel has placed reliance on the cases of Dr. Y. S. Rajasehara Reddy & others vs. Sri Nara Chandrababu Naidu & others (AIR 2000 A.P. 142) and Shawar Khilji vs. Munawar Iqbal Gondal & 2 others (PLD 2009 Lahore 677).

5. Mr. Raja Qasit Nawaz, learned counsel for the Intervenor urged that entire process of election of Provincial Bar Council is to be completed before 13th November. He supported the arguments of Mr. Lakhani learned counsel for the Respondent No. 2. He also drew our attention to Section 4 of 1973 Act, which reads as under:--

"4. Term of Bar Council.--The term of every Bar Council shall be five years beginning on the first day of January following the general elections to the Provincial Bar Councils; and at the end of each terms the members of the Bar Council shall cease to hold office:

Provided that the next elections of the Provincial Bar Councils shall be held between 1st October, 2009 and the 31st of December, 2009 and the term of the next Provincial Bar Council shall commence from the 1st January, 2010".

1. Mr. Sarwar Khan learned Additional Advocate General, Sindh while supporting the order/notification dated 13.1.2010 issued by the Chairman/Returning Officer has made reference to Section 5 of the Act, which relates to composition of Provincial Bar Councils. He submitted that District South has six (06) seats, which have been filled by following due procedure. He also submitted that scheme of Bar Council Act, is for five (05) years and once election is held and any seat remains vacant, which shall be filled by the person who secured the next highest number of votes in the same election. He submitted that the notification dated 13.1.2010 was issued in accordance with the provisions of Section 16(b), Chapter V of the Legal Practitioner & Bar Councils Act, 1973, which deals with filing up of vacancy. It will be advantageous to reproduce Section 16(b) of the Act, which reads as under:

"16(b).--In the case of a Provincial Bar Council, the vacancy shall be filled by the person who received, in the same election and from the same District or, as the case may be, group of Districts, the highest number of votes next after the member the vacancy in whose seat is to be filled, or if there be no such person, by a person eligible for election to that council from the same District or, as the case may be, group of Districts, who is co-opted by the Provincial Bar Council."

1. We have given due consideration to the arguments advanced by the learned counsel for the parties, perused the available material and the case law cited at the bar.

2. Admittedly the learned Returning Officer/Chairman issued Notification announcing the complete program for the election of the Sindh Bar Council for the tenure 1st January, 2010 to 31st December, 2014 on 04.9.2010, which was published in official gazette on 10th September, 2009. According to the election schedule polling was conducted on 21.11.2009 from 9.00 a.m. to 5.00 p.m. On the same day in the late hours an un-official counting of votes was done by Polling Officers and on 02.12.2009 the Returning Office after officially counting the votes in presence of the candidates or their nominees declared the official results, in the which the name of Mr. Muhammad Ali Abbasi, advocate was placed at Serial No. 1, as he has secured the highest votes amongst the contesting candidates from District South. Mr. Muhammad Ali Abbasi, advocate expired on 05.12.2009. Notification was issued by the Respondent No. 1 for publication in the official gazette regarding election of the 16 persons, who were declared elected from their respective Districts as a result of official count on 12.12.2009. The said results have not been challenged before any Tribunal or Court.

3. The controversy starts when the Respondent No. 1 issued notification dated 13.1.2010 notifying Respondent No. 2 Mr. Salahuddin Khan Gandapur as member Sindh Bar Council on the seat vacant, due to death of Mr. Muhammad Ali Abbasi, advocate. The name of Respondent No. 2 appeared at Serial No. 7 in the statement of votes issued by Respondent No. 1 (available at Page 125 of the file), as such found eligible to fill the vacant seat under Section 16 (b) of 1973 Act. It may be noted that in the case of Mushtaq Hussain Shah (Supra), the Division Bench of this Court, was observed that any vacancy falling vacant on any account is to be filled by a person who had secured the next highest number of votes. In the said case the petitioner challenged the notification issued by Chairman/Returning Officer, but in the case in hand the petitioners have invoked the relief of quo warranto, which is purely a discretionary relief as quo warranto is not issued as a matter of course and the Court can and will enquire into the conduct and motive of the relator. So also there is no specific rule for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto. We find further support form the cases of Dr. Y. S. Rajasekara Reddy & Others and Dr. Bushra Ashiq Siddiqui (supra), wherein the Courts have summarized the scope for issuance of writ of quo-warranto. The learned counsel for the petitioners has not been able to point out any provisions of law which has been violated in issuing Notification dated 13.1.2010. The Rule 28-A of the Rules of 1976 referred by the learned counsel for the petitioners is not applicable as the said rule is applicable where no member qualified highest to next. The case law cited by the learned counsel for the petitioners are distinguishable and not applicable to the present case. We, therefore, find that it is not a fit case for issuance of writ of quo warranto and interfere in the smooth functions of the Bar Councils.

4. In view of the above order, applications listed at Serial No. 1 and 3 are also dismissed having become infructuous.

5. The petition has been dismissed through a short order dated 4.5.2011.

(R.A.) Petition dismissed.

PLJ 2011 Karachi 191 (DB)

Present: Gulzar Ahmad and Shahid Anwar Bajwa, JJ.

AFAQ RIAZ AHMED and another--Petitioners

versus

FEDERATION OF PAKISTAN through the Secretary Ministry of Law and another--Respondents

C.P. No. D-1476 of 2010 and Misc. No. 5865 of 2010, decided on 4.6.2010.

Prevention of Electronic Crime Ordinance, 2007--

----Ss. 4, 8, 9, 13, 16 & 19--Telecommunication (Re-organization) Act, 1996, S. 31(1)--E.T.O, 2002, Ss. 36 & 36--Constitution of Pakistan, 1973--Art. 199--Provision of Prevention of Electronic Crime Ordinance having lapsed on 4.11.2009--Temporary law which having lapsed could not be continued--Validity--Prevention of Electronic Crime Ordinance being temporary law and it having lapsed on 4.11.2009, proceeding under such Ordinance could not be continued in law--Proceeding against petitioner under Ordinance, 2007 was quashed. [P. 192] A

1993 SCMR 1589, ref.

M/s. Rasheed A. Rizvi, Ziaul Haq Makhdoom and Mahmood A. Qureshi, Advocates for Petitioners.

Mr. Ashiq Raza, D.A.G. and Mr. Adnan Karim, A.A.G. for Respondents.

Date of hearing: 4.6.2010.

Order

Petitioners' grievance is that despite the provision of Prevention of Electronic Crime Ordinance having lapsed on 04.11.2009, they are being proceeded under the said Ordinance in the Court of VIIth Civil Judge & Judicial Magistrate, Karachi South. Learned Counsel for the Petitioners has relied upon case of Muhammad Arif versus The State (1993 SCMR 1589) to support his contention that a case initiated on the basis of a temporary law which having lapsed/expired could not be continued as the said case also lapses/expires with the lapsing/expiring of the legislation under which it was initiated.

Learned DAG so also learned AAG are unable to controvert such legal position.

We have considered the submission made by learned counsel and have gone through the record.

It appears that a complaint under Sections 4, 8, 9, 13, 16, 19 of Prevention of Electronic Crime Ordinance, 2007 read with Section 31(1) of Pakistan Telecommunication (Re-organization) Act, 1996 read with Sections 36 and 37 of E.T.O. 2002 was lodged against the petitioners. Apparently there seems to be no dispute that Prevention of Electronic Crime Ordinance which was promulgated on 31.12.2007 lapsed on expiry of 120 days but it appears that it was repromulgated and last such repromulgation was made on 8th July 2009 and lapsed on 4.11.2009. Detail of such legislation are given by the petitioner in Para 11 of this petition.

In the case of Muhammad Arif & another vs. The State & another (1993 SCMR 1589) the Hon'ble Supreme Court has observed as follows:

"16. From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may he imposed as if the law had not been repealed. This is so, inter alia, because of Section 6 of the General Clauses Act, 1897 (which corresponds to Section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute. Since the General Clauses Act, is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. However, the above principle cannot be pressed into service, while dealing with temporary statutes as highlighted in the above treatises on the interpretation of statutes. The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it, would ipso facto terminate."

The rule laid down by Hon'ble Supreme Court seems to be squarely applicable to the present case and no other contrary rule is pointed out to us. The Prevention of Electronic Crime Ordinance being a temporary law and it having lapsed on 4.11.2009, the proceeding under such Ordinance could not be continued in law. Therefore, to the extent of the proceeding against the petitioners under the Prevention of Electronic Crime Ordinance is concerned, the same is quashed. Petitioner may however be proceeded under other provision of law as mentioned in the complaint in accordance with law. Listed application is also disposed off.

(R.A.) Application disposed of.

PLJ 2011 Lahore 105 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

MUHAMMAD GULZAR--Petitioner

versus

Mst. ANEELA NAZEER etc.--Respondents

W.P. No. 8515 of 2009, decided on 21.1.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dowry articles and for recovery of the maintenance--Findings of Family Court were reversed--Ground for reversal of findings that defendant did not appear himself in support of the contentions--Defendant was in Saudi Arabia--Special attorney appeared before Family Court on behalf of plaintiff--His statement will be deemed the statement of defendant--Validity--Appreciation of evidence--Owner of furniture marte also stated that he did not prepare the furniture and he only prepared receipt just for estimation which established that the plaintiff produced forged and fabricated receipts--She was not a truthful plaintiff which created doubts about other receipts also whether the same were genuine or fabricated--Petition was allowed. [P. ] A & B

Ch. Abdul Ghani, Advocate for Petitioner.

M/s Qazi Khalid Pervaiz and Mian Saeed Ahmad, Advocates for Respondent No. 3.

Date of hearing: 21.1.2010.

Order

Through this constitutional petition the petitioner seeks setting aside of judgment and decree dated 28.9.2009 passed by learned lower appellate Court/Additional District Judge, Burewala District Vehari.

1. The brief facts of the instant case are that Respondent No. 1 Aneela Nazir daughter of Nazir Ahmad filed a suit on 20.4.2008 for recovery of dowry article and for recovery of her maintenance. The petitioner/defendant vehemently contested the suit, filed written statement, the learned Judge Family Court in the light of divergent pleadings of the parties framed following issues.

Issues:--

1. Whether the plaintiff is entitled for the recovery of dowry articles from the defendant? OPP

2. Whether the plaintiff is entitled for the maintenance allowance as prayed for? OPP

3. Whether the plaintiff is entitled for the gold ornaments 5 Tolas as per list? OPP

4. Whether the plaintiff has no cause of action and locus standi to file the suit ?OPD

After failure in pre-trial reconciliation proceedings the learned Judge Family Court directed both the parties to produce their respective evidence.

1. Mst. Aneela Plaintiff/Respondent No. 1 appeared as PW-1 and stated that at the time of marriage dowry articles as per list Exh.P-1 were given to her and the same are in possession of the petitioner/defendant. In cross-examination she stated that the list of dowry articles was prepared by her sister Nabila Ahmad at the time of her marriage. PW-2 is Sana Ullah who stated that dowry articles as per list were given to Plaintiff/Respondent No. 1 and the same are in possession of the petitioner/defendant. In cross-examination she stated that he has no knowledge whether it was settled between the parties that defendant/petitioner is living abroad and will not take any dowry articles. In addition to oral evidence Plaintiff/Respondent No. 1 also produced receipts of dowry articles Exh.P-1 to Exh.P-5.

2. On the other hand DW-1, special attorney of defendant appeared in the witness-box and stated that defendant/petitioner is his real brother and is living abroad. He stated that he is special attorney of defendant/petitioner and has produced the said power of attorney mark-A. He stated that he attended the marriage of the parties, no dowry articles and gold ornaments were given to Plaintiff/Respondent No. 1 at the time of marriage. DW-2 Muhammad Saleem stated that no dowry articles were given to Plaintiff/Respondent No. 1. Abdul Rashid appeared as DW-3 and stated that he is owner of the shop which is name as Data Furniture Mart. About the receipt Exh.P-5 he stated that no furniture was purchased from him and he only prepared receipt Exh.P-5 just for estimation. The learned trial Court decided Issues No. 1 and 3 against the Plaintiff/Respondent No. 1.

3. Learned counsel for the petitioner contends that Respondent No. 1 filed an appeal on 1.6.2009 before the learned Court of Additional District Judge, Burewala which was accepted on 28.9.2009 by the learned Additional District Judge and decree for Rs.200,000/- was passed in favour of Respondent No. 1 which is now assailed through this writ petition. Learned counsel for the petitioner contended that list of dowry articles Exh.P-1 was not signed by any body even the scriber of list was not produced before the Court. The list P-2 was fictitious document and was product of afterthought; that the petitioner is in Saudi Arabia and the suit was contested through special attorney, his brother Muhammad Arshad so the findings of the learned appellate Court for accepting the appeal on the basis that petitioner herself did not appear is of having no value; that the statement of the special attorney is on the file which will be deemed the statement of the petitioner/defendant. Learned counsel submitted that impugned judgment passed by lower appellate Court is based on mis-reading or non-reading of material evidence which is not sustainable in the eyes of law. Learned counsel submitted that DW-3 Abdul Rashid denied that he issued the receipt of furniture amounting to Rs.52,600/-, no other witness with regard to the receipt Exh.P-2 to Exh.P-5 has been produced. Learned counsel submitted that it cannot be considered that case has been proved by the respondent lady. Learned counsel submitted that Exh.D-2 did not bear the signatures of be owner of Cloth House. The articles of electronics were allegedly purchased from M/S. Dogar Brothers Electronics, Burewala on different dates but it has not been explained why these items were not purchased on one and the same date. Learned counsel contended that the learned trial Court has rightly held that the Respondent No. 1 has failed to prove her case as far as dowry articles is concerned. He further contended that the learned lower appellate Court has exceeded its jurisdiction while decreeing the suit of Respondent No. 1 to the tune of Rs.200,000/-.

4. On the other hand Respondent No. 3 further supports the judgment and decree passed by the learned lower appellate Court. Learned counsel submitted that Respondent No. 3 in her statement described each and every article which her brothers had given to her as dowry at the time of marriage. The Civil Procedure Code is not applicable. The family cases cannot be scrutinized with the standard of scrutinizing civil cases. The judgment of the lower appellate Court is based or correct appraisal of evidence and is convincing rational and based on cogent reasons. It must be maintained by this Court.

5. I have heard the learned counsel for the parties.

6. The learned lower appellate Court only reversed the findings of the Judge Family Court on issue No. 1. The ground for reversal of the findings on issue No. 1 that Muhammad Gulzar son of Muhammad Ibrahim defendant did not appear himself in support of the contentions and averments of the written statement. It is admitted fact that defendant/petitioner is in Saudi Arabia. In his place his brother DW-1, Muhammad Arshad, special attorney, appeared before the learned Judge Family Court, produced his power of attorney which is mark-A and recorded his statement which will be deemed the statement of the defendant. He stated that he attended the marriage of the parties, no dowry articles and gold ornaments were given to Plaintiff/Respondent No. 1 at the time of marriage. DW-2 Muhammad Saleem stated that no dowry articles were given to Plaintiff/Respondent No. 1. Abdul Rashid appeared as DW-3 and stated that he is owner of the shop which is named as Data Furniture Mart. According to receipt Exh.P-5 he stated that he did not prepare the furniture and he only prepared receipt Exh.P-5 just for estimation which established that the plaintiff produced forged and fabricated receipts. She is not a truthful plaintiff which creates doubts about other receipts also whether the same are genuine or fabricated.

7. In the light of above discussion and facts of the case I am of the view that learned Judge Family Court, on appraisal of evidence, rightly decided issue No. 1. I allow this writ petition set aside the judgment of learned lower appellate Court with regard to the decree for dowry articles. No order as to cost.

(R.A.) Petition allowed.

PLJ 2011 Lahore 108

Present: Ch. Muhammad Tariq, J.

ZIA FATIMA and another--Petitioners

versus

STATION HOUSE OFFICER and 3 others--Respondents

W.P. No. 4589 of 2010, decided on 10.3.2010.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 496-A--Quashing of FIR--Obligation to file a suit for dissolution of marriage--Second nikah in presence of existing marriage--Contention--Convertion of religion--No relation remaining between Muslim and non-Muslim--Validity--Petitioner embraced Islam but according to law of the country, the petitioner was under obligation to file a suit for dissolution of marriage u/S. 2(ix) of Dissolution of Marriage Act, 1939, because without obtaining decree for dissolution of marriage second nikah in presence of existing marriage was not warranted under the law--Petition was dismissed. [P. 109] A

Syed Zaman Haider, Advocate for Petitioners.

Date of hearing: 10.3.2010.

Order

The petitioner seeks quashment of F.I.R No. 924 dated 31.12.2009 registered in Police Station Kari Wala, District Faisalabad under Section 496-A PPC. Learned counsel for the petitioners inter-alia contends that the Petitioner No. 1 on the preaching of Islam, converted her religion and became Muslim more than six months ago and she told her husband that there is no relation between them because according to injunctions of Islam, there is no relation remaining between Muslim and non-Muslim. He further contends that the Petitioner No. 1 also asked the Respondent No. 2 to convert to Islam if he wants to continue relations with her but the Respondent No. 2 became hostile who tortured the Petitioner No. 1 and tried to kill the petitioner but luckily she escaped and fled out of the house of her parents and came to Jamia Rizvia Mazhar-ul-Islam Sheikh-ul-Hadith Road, Jaranwala and stated all these facts to Moallim of the said mosque, where the said Moallim issued a certificate of being a Muslim and also changed the name of the petitioner Razia. On the same day, after Zohar prayer, said Moallim announced in the mosque that a converted deserted lady is in the mosque and if some one ready to marry her, he may come forward. On the announcement of Moallim, one Muhammad Shakeel Raza Petitioner No. 2 came forward and showed his willingness to marry with the Petitioner No. 1 so the petitioner got married with the said Muhammad Shakeel Raza according to her sweet will and using her right of being sui juris. Therefore, the above criminal case against the petitioner may be quashed.

1. Arguments heard. Record perused.

2. Admittedly, the petitioner has embraced Islam but according to law of the country, the Petitioner No. 1 was under obligation to file a suit for dissolution of marriage under Section 2(IX) of the Dissolution of Marriage Act, 1939 because without obtaining decree for the dissolution of marriage, second Nikah in presence of existing marriage is not warranted under the law. In the circumstances, this petition is without any merit and is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 110

Present: Muhammad Yawar Ali, J.

SHAHID IQBAL, Ex-ASSISTANT LINEMAN, LAHORE--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE through Its Chairman and 2 others--Respondents

W.P. No. 2298 of 2010, decided on 24.3.2010.

Limitation Act, 1908 (IX of 1908)--

----S.5--Industrial Relations Ordinance, S. 46--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Condonation of delay--Restoration of petition--Grievance petition against an order of compulsory retirement--Application for restoration of petition--Application seeking restoration was dismissed by Pb. Labour Court--No sufficient grounds for restoration of the grievance petition--Appeal was also dismissed--Challenge to--Validity--Petitioner in his application seeking restoration of his grievance petition had neither mentioned the nature of his illness nor appended any medical certificate by a doctor to corroborate the same--Second ground that Labour Court had shifted its premises, it was not possible for the petitioner to have filed an application seeking restoration of his grievance petition in time is also not tenable in law--Held: Petition which was dismissed for non-prosecution can only be restored if there exist "sufficient grounds" which would warrant its restoration--Petition was dismissed. [P. 111] A

1980 SCMR 561 & 1981 SCMR 37, rel.

Mr. Tanveer Ahmed Ghumman, Advocate, with Petitioner.

Syed Nayar Abbas Rizvi, Asst. A.G, on Court's call.

Date of hearing: 24.3.2010.

Order

The petitioner filed a grievance petition under Section 46 of the Industrial Relations Ordinance against an order of compulsory retirement passed by Respondent No. 2 which was dismissed on 11.7.2008 for non-prosecution. The petitioner being aggrieved filed an application for restoration of the petition and also appended with it an application under Section 5 of The Limitation Act for condonation of delay. In the application moved for restoration of the petition it was stated that the petitioner fell ill and was also hampered in his efforts due to the fact that the premises of the Labour Court had been shifted from one place to another.

1. Application seeking restoration was dismissed by Presiding Officer of Punjab Labour Court No. 1, Lahore, on 1.4.2009, on the ground that there were no sufficient grounds for restoration of the grievance petition.

2. The petitioner being aggrieved filed an appeal on 5.6.2009 before Respondent No. 1 which was also dismissed by order dated 4.9.2009 on the ground that the appellant/petitioner had filed an application for restoration of the grievance petition before Labour Court on 17.2.2009 after a period of more than seven months.

3. Learned counsel for the petitioner in this petition filed under Article 199 of the Islamic Republic of Pakistan, 1973, has argued that the petitioner fell ill, the Labour Court shifted its premises and as such there existed good grounds for condonation of delay.

4. After hearing the arguments addressed by learned counsel for petitioner and going through the record it can safely be concluded that there were no grounds for setting aside order dated 11.7.2008 of the Labour Court, wherein, the grievance petition was dismissed for non-prosecution. The petitioner in his application seeking restoration of his grievance petition has neither mentioned the nature of his illness nor appended any medical certificate by a doctor to corroborate the same. The second ground raised by learned counsel for the petitioner that since the Labour Court had shifted its premises, it was not possible for him to have filed an application seeking restoration of his grievance petition in time is also not tenable in law. It is trite that a petition which is dismissed for non-prosecution can only be restored if there exist "sufficient grounds" which would warrant its restoration. The Apex Court in "Sahib Khan and others Vs. Ghulam Dastgir and others" (1980 SCMR 561) has held that any delay which is occasioned on account of the petitioner falling ill per se is not a good ground for condonation of delay. In any case, the petitioner had to explain delay of each and every day as held by the August Supreme Court of Pakistan in "Commissioner of Income Tax, Vs. Rais Pir Ahmad Khan" (1981 SCMR 37) which admittedly has not been done.

5. The Respondent No. 1 in the impugned order dated 4.9.2009 has lightly concluded that law favours the vigilant and not the indolent and that there were no valid grounds for restoration of the petition.

6. Upshot of the above discussion is that there is no merit in this petition and the same is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 112

Present: Ch. Muhammad Tariq, J.

GULRAIZ AMIN MALIK--Petitioner

versus

Mst. AYESHA NOSEEN MALIK and 2 others--Respondents

W.P. No. 7097 of 2010, decided on 19.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Attitude of the petitioner was objectionable--Concealment of fact that prior to filing of the instant writ petition the petitioner had challenged the impugned order in the petition which had been dismissed in limine--Guilty of mis-representation--Fraud was played by the petitioner while giving sequence to the addresses--Held: Petitioner had played fraud with High Court while giving sequence to the addresses of respondent and had also concealed that fact in his certificate that a previous writ petition was filed which had been dismissed in limine--The attitude of petitioner was highly objectionable who had not come to Court with clean hands--Petition was dismissed with costs of Rs. 30,000/.

[P. 113] A

Mr. Khalid Aziz Malik, Advocate for Petitioner.

Mr. Muhammad Ibrahim Khalil, Advocate for Respondents.

Date of hearing: 19.10.2010.

Order

C.M. NO. 1 OF 2010

For the reasons stated/recorded in this application (CM. No. 1/2010) which is supported by an affidavit, the same is allowed and the main writ petition is restored to its original number.

1. Let the main case be heard today.

MAIN CASE.

1. This writ petition has been directed against the order of ejectment dated 21.1.2010 and 6.3.2010 passed by Mr. Barkat Ali, Rent Tribunal, Chiniot, and Mr. Ashtar Abbas, learned Addl. District Judge, Chiniot, in respect of Property No. 14/3 situated at Chenab Nagar, Chiniot.

2. That on 27.5.2010, pre-admission notice was issued to Respondent No. 1 and in compliance, learned counsel for Respondent No. 1 today appeared and informed this Court that the petitioner has concealed this fact that prior to filing of instant writ petition, the petitioner challenged the impugned order in Writ Petition No. 8969/2010 which was dismissed in limine by this Court on 3.5.2010. Learned counsel for the respondent has also placed on record the photo copy of the judgment dated 3.5.2010 passed by this Court.

3. When confronted, the petitioner and his learned counsel denied this fact that previously a writ petition was filed which was dismissed.

4. The matter was confirmed from the office. The petitioner has played fraud with this Court while giving sequence to the addresses of the respondent and has also concealed this fact in his certificate that a previous writ petition was filed which was dismissed in limine. The attitude of petitioner is highly objectionable who has not come to the Court with clean hands.

5. The petitioner has not only concealed the relevant facts but he is guilty of mis-representation. This writ petition is dismissed with costs of Rs.30,000/-. The petitioner is directed to deposit Rs.30,000/- on account of cost with the Deputy Registrar (Judl) of this Court, failing which, the Deputy Registrar (Judl) is directed to sent the matter of recovery of Rs.30,000/- to the District Officer (Revenue), Chiniot, with a direction to recover the amount of cost from the petitioner as arrears of land revenue after adopting all coercive methods, if so needed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 113

Present: Ch. Muhammad Tariq, J.

RASHID AHMAD--Petitioner

versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 16 others--Respondents

W.P. No. 7520 of 2010, heard on 30.11.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Family partition--Wanda--Concurrent findings of three Revenue Courts--Question of maintain ability of writ petition--Mode of partition was purposed which was challenged before EDOR who accepted the revision petition--Assailed--Revision petition was also dismissed by M.B.O.R.--If parties were not satisfied with family partition, they could see legal partition under law--Held: Concurrent findings of three revenue Courts which not interfered in Constitutional jurisdiction of Court--Controversy in relation of `Wanda' of deficiency in entitlement of right holder, adjustment or allocation of land could not subject matter of writ petition--Writ petition was dismissed. [P. 115] A

1970 SCMR 292 & 2007 SCMR 1950 rel.

Malik Ghulam Siddique Awan, Advocate for Petitioner.

Ch. Abdul Salam, Advocate for Respondents.

Date of hearing: 30.11.2010.

Judgment

The petitioner has assailed the impugned orders dated 20.3.2010, 18.11.2009, 25.4.2006 passed by Member Board of Revenue, Punjab, Lahore, in review petition, ROR and in revision petition decided by Executive District Officer (Revenue) Faisalabad, respectively.

1. Learned counsel for the petitioner contends that the petitioner was in possession of land in dispute to the extent of his share. The E.D.O (R) illegally on the frivolous grounds transferred the land which was in possession of the petitioner since long and whole wanda of the petitioner has been given to Respondents No. 5 to 10 which is against the Masawada Partition. Respondents No. 5 to 14 have not impleaded all the share holders while filing application for partition in the Court of Assistant Collector Ist Grade. The Assistant Collector 1st Grade/tehsildar and other lower Courts have not taken into consideration this aspect of the case. Hence impugned orders are liable to be set aside on this ground alone. The Assistant Collector Ist Grade/Tehsildar vide his orders dated 12.8.1997 and 28.6.2001 appointed the Commission to assess the exact situation on the spot who has reported that there are houses and constructed Pacca Buildings on the land in dispute. Even then the Assistant Collector Ist Grade proceeded to partition the land which is not within the jurisdiction of Assistant Collector Ist Grade. Therefore, writ petition be allowed, impugned orders be set aside.

2. Conversely, learned counsel for the respondent has vehemently opposed this writ petition and contends that there are concurrent findings of three Courts below which could not be interfered in the constitutional jurisdiction of this Court. The writ petition is without merit, it be dismissed.

3. Arguments heard. Record perused.

4. Perusal of record reveals that there is no evidence on the record that family partition had taken place, Even otherwise, if the parties are not satisfied with the family partition, they can seek legal partition under the law. After the partition, the mode of partition was proposed which was challenged before the Executive District Officer (Revenue) in revision petition who vide order dated 25.4.2006 accepted the revision petition. Feeling aggrieved, the petitioner assailed the order of Executive District Officer (Revenue) in revision petition before the Member Board of Revenue, Punjab, Lahore, which met the same fate and ROR was dismissed on 18.11.2009. The petitioner further assailed the matter in review petition before Member Board of Revenue, Punjab, Lahore, and it was again dismissed on 20.3.2010 by Senior Member Board of Revenue, Punjab, Lahore. There are Concurrent findings of three revenue Courts which could not be interfered in the constitutional jurisdiction of this Court. Even otherwise, the controversy in relation of `wanda' or deficiency in the entitlement of a right holder, adjustment or allocation of land could not be a subject-matter of a writ petition/Reliance is placed on "2007 SCMR 1950", "1970 SCMR 292".

5. As a result of above discussion, this writ petition is without any substance, same is dismissed.

(S.L. Rana) Petition dismissed.

PLJ 2011 Lahore 115

Present: Sh. Ahmad Farooq, J.

TARIQ AHMAD FAROOQI, ADVOCATE HIGH COURT, LAHORE--Appellant

versus

ADDL. DISTT. JUDGE, LAHORE and another--Respondents

S.A.O. No. 112 of 2003, heard on 30.6.2010.

Punjab Urban Rent Restriction Ordinance, 1959--

----S. 13(6)--Ejectment petition--Determination of the amount of rent due from the tenant--Ejectment application was filed on the ground of default and personal need--Order was not complied with by tenant--Defence was struck off and ejectment application was accepted--Application under 2nd Part of S. 13(6) of Ordinance, 1959 was dismissed by Courts below--Challenge to--Validity--A statutory duty was cast upon the Rent Controller to finally determine the amount of rent due from a tenant and until that function was performed proceedings before Rent Controller could not legally conclude--Findings of the Courts to the effect that the landlord may get the rent due determined and recovered through an appropriate proceeding were against the express provisions of 2nd Part of S. 13(6) of Punjab Urban Rent Restriction Ordinance--Rent Controller, after striking off the defence of a tenant on his failure to deposit the arrears of rent and passing an eviction order did not become functus officio--Rent Controller was not precluded from finally determining the amount of rent due from a tenant--No doubt, in order to finally determine the rent due, Rent Controller was bound to issue notices to the parties and record his findings, after providing an opportunity to the parties being heard or to lead evidence--Appeal was accepted with direction to finally determine the amount to rent due from the tenant and direct that the same may be paid to landlord subject to adjustment of any amount of rent deposited by tenant. [P. 117] A, B & C

1974 SCMR 504, PLD 1990 Lah. 457, 1982 CLC 422 & PLD 2002 Lah. 355, rel.

Mr. Atir Mehmood, Advocate for Appellant.

Exparte for Respondents.

Date of hearing: 30.6.2010.

Judgment

Through the instant appeal, under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, the appellant has prayed for setting-aside the orders dated 23.9.2002 and 27.3.2003, passed by the learned Rent Controller, Lahore and the learned Additional District Judge, Lahore, respectively, whereby his application for holding an enquiry to finally determine the rent due from the Tenant/Respondent No. 2, was dismissed.

1. Briefly the facts, giving rise to the instant appeal, are that the appellant filed an ejectment application against the Respondent No. 2 on the ground of default and personal need, wherein an order, under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, was passed on 2.8.2002, which was not complied with by the Tenant/Respondent No. 2, whereupon his defence was struck off and the ejectment application was accepted. However, the learned Rent Controller, Lahore, vide older dated 23.9.2002, directed the landlord to recover the arrears of rent in accordance with law and in the light of the judgment reported in Khawaja Anwar Hassan v. Naveed Ahmad Chaudhry and 2 others (PLD 2002 Lahore 355). Thereafter, the present appellant filed an application, under 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, for final determination of the amount of rent due from the Tenant/Respondent No. 2 but the same was dismissed by the learned Rent Controller, Lahore on 23.9.2002. The present appellant challenged the aforementioned order of the learned Rent controller, Lahore, dated 23.9.2002, through an appeal, which was also dismissed by the learned Additional District Judge, Lahore, vide order dated 27.3.2003. Hence, the instant appeal.

2. No one appeared on behalf of the Respondent No. 2 despite publication of a notice in the daily "Nawa-i-Waq" and as such, exparte proceedings were ordered against the Respondent No. 2, vide order dated 19.1.2010.

4. It is contended by the learned counsel for the appellant that according to 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, the Rent Controller has the jurisdiction to finally determine the amount of rent due from the tenant and for passing a direction to the tenant to pay the same to the landlord. The learned counsel for the appellant further submitted that the learned Courts below did not consider the aforesaid provision of the Ordinance ibid and as such, the impugned orders are not sustainable. In support of his arguments, the learned counsel for the appellant relied upon the judgments reported in Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate (1974 SCMR 504), Ghulam Rasool v. Said Rasool and 2 others (PLD 1990 Lahore 457) and Zafaryab Ali Khan v. Mst. Afsar Begum (1982 CLC 422). The learned counsel for the appellant argued that the facts of the reported judgment, i.e. "Khawaja Anwar Hassan v. Naveed Ahmad Chaudhary and 2 others (PLD 2002 Lahore 355), relied upon by the learned Rent Controller, Lahore as well as the learned Additional District Judge, Lahore in their impugned orders, were distinguishable from the facts and circumstances of the case in hand.

1. Arguments heard. Record perused.

2. It would be advantageous to reproduce hereunder the 2nd part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959:--

"The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."

A plain reading of the aforementioned provision of the Ordinance ibid would reveal that a statutory duty is cast upon the Rent Controller to finally determine the amount of rent due from a tenant and until this function is performed, the proceedings before the Rent Controller could not legally conclude. Therefore, the findings of the learned Rent Controller, Lahore as well as the learned Additional District Judge, Lahore to the effect that the landlord may get the rent due determined and recovered through an appropriate proceeding, are against the express provisions of 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. The Rent Controller, after striking off the defence of a tenant on his failure to deposit the arrears of rent and passing an eviction order thereon, did not become functus officio. The Rent Controller was not precluded from finally determining the amount of rent due from a tenant. No doubt, in order to finally determine the rent due, the Rent Controller is bound to issue notices to the parties concerned and record his findings, after providing an opportunity to both the parties of being heard or to lead evidence, if required.

1. In view of above, the impugned orders, dated 23.9.2002 and 27.3.2003, passed by the leaned Rent Controller, Lahore and the learned Additional District Judge, Lahore, respectively, are declared to be illegal and accordingly set-aside. The instant appeal is accepted and the learned Rent Controller, Lahore is directed to finally determine the amount of rent due from the tenant/Respondent No. 2 and direct that the same may be paid to the landlord, subject to adjustment of any amount of rent deposited by the tenant.

(R.A.) Appeal accepted.

PLJ 2011 Lahore 118 (DB)

Present: Syed Akhlaq Ahmad and Tariq Javed, JJ.

RASHIDA PARVEEN--Appellant

versus

SPECIAL SECRETARY SCHOOLS, GOVERNMENT OF PUNJAB, EDUCATION DEPARTMENT (SCHOOL WING) LAHORE and 6 others--Respondents

ICA No. 171 of 2007 in W.P. No. 12296 of 2006, heard on 20.10.2010.

Appointment as School Teacher--

----Civil servant--Entitlement of grant of 10 additional marks--Candidates of twin villages--Candidates who were residents of the village where school was situated were entitled to grant of 10 additional marks over--Appellants being resident of the village was awarded additional 10 marks and stood on top of the merit list and as such was appointed on the post--Assailed the appointments--Two villages were adjacent having distance of only one kilometer were treated as one village--Question of--Whether village Bubak and Marali were two distinct villages--Determination--Only one post office known as Bubak Marali and correspondance was also addressed as Bubak Marali--No doubt that these were two distinct villages--Contiguity of the villages did not pre-suppose the merger of the villages--The very name Bubak Marali connotes and denotes that these were two distinct villages--Validity--Recruitment policy provided for 10 additional marks for the candidates who reside in the same village where the school was situated--If no candidate was available from the village then such concession was extended to same ward--Held: According to the criteria, 10 marks were allowed only to residents of the village--The marks can only pass away to the candidates residing in the ward if no candidate was available from the village--Respondents may amend the policy and specifically provide that in case of residents of twin villages which were so closely situated, the marks would be available to all the candidates residing in twin villages--In absence of any such amendment the marks cannot be extended to the candidates of twin villages on the basis of contiguity--Appeal was allowed. [Pp. 120 & 121] A, B & C

Mr. Parvez Inayat Malik, Advocate for Appellant.

Mr. Mehboob Rasul Awan, Advocate for Respondent No. 6.

Mr. Muhammad Arif Gondal, Advocate for Respondent No. 7.

Date of hearing: 20.10.2010.

Judgment

Tariq Javaid, J.--The grievance of the appellant is that the learned judge in chamber while passing the impugned order has misread the contents of certificate issued by the Tehsildar which is annexed as appendix. C-I of the writ petition. As such, the order passed by the learned judge in chamber is not sustainable.

1. The facts of the case are that the appellant is resident of village Bubak in Tehsil Narowal. The Respondents No. 1 to 5 advertised various posts of Elementary School Educators. According to the policy of the respondents, the candidates who were residents of the village where School was situated were entitled to the grant of 10 additional marks over and above the marks secured by them in interview and for their qualification. The appellant as well as Respondents No. 6 & 7 filed their applications for the post of Elementary School Educator in a School situated in village Bubak. The appellants being resident of village Bubak was awarded additional 10 marks and she stood on top of the merit list and as such was appointed on the post.

2. The Respondents No. 6 & 7 who were the main contestant assailed the appointments of the appellant and maintained that though they were residents of village Marali, the two villages were adjacent having distance of only one kilometer, were treated as one village known as Bubak Marali, had one post office, one Patwari and had always been treated as one village. Thus, it was maintained that they were also entitled to the grant of 10 additional marks. In support of their contentions various documents were placed on file. The Respondents No. 1 to 5 filed almost conceding replies, but the appellant contested the petition.

3. The learned Judge in chamber while passing the impugned order relied upon the certificates referred to above and allowed the writ petition.

4. We have heard the arguments and perused the record.

5. The certificate having been relied upon by the learned Judge in chamber is annexed as appendix C-I with the writ petition. This document has not been dated nor it appears to has been issued after proper determination of the fact whether village Bubak and Marali are two district villages. It simply points out that the headquarter of Union Council 33 Bubak Marali is situated in village Marali, Basic Health Unit, Office of Field Assistant Agriculture are also situated in village Marali. Government Boys High School and Government Elementary Schools are situated in village Bubak, the Patwari circle is Bubak Marali, all official and private correspondence is addressed as Bubak Marali and thus it is concluded that Bubak Marali is one village.

6. The above certificate does not show under what authority of law the same has been issued. It is hand written document having no date mentioned therein and even the name of the official is not mentioned therein. By no stretch of imagination the said document can be described as a certificate or an official document.

7. There is no doubt that there is only one post office known as Bubak Marali and the correspondence is also addressed as Bubak Marali. However, we have no doubt that these are two distinct villages. The contiguity of the villages does not pre-suppose the merger of the villages. The very name Bubak Marali connotes and denotes that these are two distinct villages. No revenue record has been produced to show that village Bubak Marali is one village, nor it is shown that any merger or consolidation of villages has taken place. The existence of two Schools in one village and three offices including post office in other adjoining village does not make two district villages as one village.

8. The recruitment policy of the Respondents No. 1 to 5 provides for 10 additional marks for the candidates who reside in the same village where the School is situated. If no candidate is available from the village then this concession is extended to the same Ward, Union Council, Markaz/Police Station and Tehsil respectively. The selection and Ranking criteria as published by the respondents for the said posts is as follows:

"To ensure retention of teachers in Schools a candidate, interested in employment as Educator belonging to the same Village will be awarded Ten Extra Marks as compared to other candidates. If no candidate is available in the Village where the School is situated then this award will be extended to the candidates belonging to same Ward, Union Council, Markaz/Police Station and Tehsil respectively where the School is situated. To ensure that this facility is enjoyed by a right candidate he/she will annex a certificate along with application showing that he/she is bonafide resident of Village, Ward, Union Council, Markaz/Police Station and Tehsil duly attested by the Nazim Union Council."

According to the above criteria, 10 marks are allowed only to the residents of the village. The said marks can only pass away to the candidates residing in the Ward if no candidate is available from the village.

1. However, before parting with this judgment we deem it appropriate that the respondents may amend the policy and specifically provide that in case of residents of twin villages which are so closely situated, the marks would be available to all the candidates residing in twin villages. In absence of any such amendment, the marks cannot be extended to the candidates of twin villages on the basis of contiguity. The appeal is allowed and the impugned judgment is set aside.

(R.A.) Appeal allowed.

PLJ 2011 Lahore 121

Present: Iqbal Hameed-ur-Rehman, J.

IMRAN ULLAH KHAN--Petitioner

versus

STATION HOUSE OFFICER, P.S. QILA DIDAR SINGH DISTT. GUJRANWALA and 2 others--Respondents

W.P. No. 1866 of 2010, decided on 14.5.2010.

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

----S. 56(e)--Issuance of stay order--Criminal matters--Civil suit instituted by the petitioner and injunctive order issued by Civil Court in respect of the cheques--Alleged dishonouring of the cheques had come about prior to issuance of stay order by Civil Court and according to S. 56(e) of Specific Relief Act, no injunction can be granted by a Civil Court against criminal investigation or in any criminal matter. [P. 125] A

PLD 2005 Lah. 568, rel.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898)--Ss. 22-A & 22-B--Constitutional petition--Direction to register criminal case--Challenge to--Contention--If matter is pending before Civil Court, the Criminal Court should not decide the matter till the decision of Civil Court--Legality--If the matter was pending before the Civil Court, the criminal Court should not decide the matter the decision of the Civil Court was concerned--Contention has no force as criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can be proceeded simultaneously--Justice of Peace had rightly passed the impugned order and petitioner had not been able to point out any illegality or irregularity in impugned order calling for by High Court its Constitutional jurisdiction--Petition was dismissed. [P. 125] B & C

PLD 2005 Lah. 568 & 2006 SCMR 1192, rel.

Syeda Feroza Rubab, and Mr. Shahzada Saleem Waraich, Advocates for Petitioner.

Mr. Muhammad Nawaz Bajwa, Advocate Mr. Muhammad Azeem Malik, Addl. A.G. for Respondents.

Date of hearing: 14.5.2010.

Judgment

Through this writ petition, the petitioner seeks setting aside of the impugned order dated 26.1.2010 passed by the learned Justice of Peace/Additional Sessions Judge, Gujranwala/ Respondent No. 3.

1. Brief facts giving rise to this writ petition are that Abdul Ghaffar, Respondent No. 2, filed an application under Section 22-A and 22-B Cr.P.C. for registration of case against the petitioner before the learned Justice of Peace/Additional Sessions Judge, Gujranwala, who vide order dated 26.1.2010, disposed of the said application, directing Respondent No. 2 to approach Respondent No. 1 SHO P.S. Qila Didar Singh, District Gujranwala, and Respondent No. 1 was also directed to record the statement of Respondent No. 2 and register a case in case a cognizable offence was made out and also proceed with the case in accordance with law. Being aggrieved with the said order, the petitioner has filed this writ petition.

2. It is contended by learned counsel for the petitioner that the learned Justice of Peace/Additional Sessions Judge, Gujranwala, while passing the impugned order, has not taken into consideration the report of Respondent No. 1/SHO that the payment has duly been made to Respondent No. 2. It is further contended that the learned Justice of Peace/Additional Sessions Judge, Gujranwala, also failed to take into consideration that an injunctive order has been passed in the suit of the petitioner with regard to the encashment of the disputed cheques. It is further contended that Respondent No. 2 has obtained the impugned order from the learned Justice of Peace/Additional Sessions Judge, Gujranwala/Respondent No. 3 in order to blackmail and harass the petitioner. It is further contended that the Honourable Supreme Court in a number of judgments has laid down that if the matter is pending before the Civil Court, the Criminal Court should not decide the matter till the decision of the Civil Court, therefore, the learned Justice of Peace/Additional Sessions Judge, Gujranwala, illegally directed the registration of case against the petitioner and in this respect, reliance is placed upon a judgment dated 9.9.2009 passed by the Honourable Supreme Court in CP No. 1398-L/09.

3. On the other hand, learned counsel for Respondent No. 2 and the learned Additional Advocate-General, while supporting the impugned order, have stated that admittedly, an agreement dated 18.6.2008 was entered into between the petitioner and Respondent No. 2 regarding the sale of the land measuring 8 Kanals situated in village Hardopur, Tehsil and District Gujranwala and according to the said agreement, it was agreed that the petitioner will pay Rs. 1,10,00,000/- to Respondent No. 2. It is further contended that the petitioner had given four cheques to Respondent No. 2 and two cheques of Rs. 15,00,000/- each were encashed and in this way, Respondent No. 2 received Rs. 30,00,000/- from the petitioner but two other cheques, one of Rs. 1,00,000/- and the other of Rs. 8,00,000/-, were not encashed and the same were dishonoured. It is further contended that the petitioner had made some forged and fabricated entries by affixing signatures of Respondent No. 2 on the back of the agreement (Annexure-D), which show that Respondent No. 2 has received Rs.53,00,000/- and Rs. 20,00,000/- from the petitioner but the actual position is that Respondent No. 2 has not made signatures on the back of the said agreement and has not received the said amount. It is further contended that the petitioner had given two cheques of Rs. 80,00,000/- and Rs. 27,00,000/- to Respondent No. 2, which were later on dishonoured due to insufficient funds, and by giving the said cheques, the petitioner had taken the original agreement dated 18.6.2008 from Respondent No. 2 and thereafter, the petitioner forged the said entries on the above mentioned agreement and submitted a copy thereof before this Court for evading his liability. It is further contended that Respondent No. 2 had already moved an application for initiating criminal proceedings against the petitioner for the said fabrication to the Deputy Inspector-General of Police, Gujranwala. It is further contended that the stay order, if at all, was issued by the learned Civil Judge 1st Class, Gujranwala, after the dishonour of the cheques in question worth Rs. 80,00,000/- and Rs. 27,00,000/-, therefore, the criminal liability had begun to come into play against the petitioner and no injunctive order can be granted by a civil Court against criminal investigation or in any criminal matter and in this respect, reliance is placed upon Aamir Shehzad Vs. The State and another (PLD 2005 Lahore 568). It is further contended that criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can be proceeded simultaneously, as such, the learned Justice, of Peace/Additional Sessions Judge, Gujranwala/ Respondent No. 3 has rightly passed the impugned order dated 26.1.2010 and in this respect, reliance is placed upon Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others (2006 SCMR 1192). It is further contended that the petitioner has not come to this Court with clean hands and he has filed this writ petition with mala fide intentions and ulterior motives, as such, he is not entitled to the relief as prayed for in this writ petition.

4. I have heard learned counsel for the parties as well as the learned Additional Advocate-General and have also perused the impugned order as well as the material placed on the record by both the parties.

5. Admittedly, an agreement dated 18.6.2008 was entered into between the petitioner and Respondent No. 2 regarding the sale of the land measuring 8 Kanals situated in village Hardopur, Tehsil and District Gujranwala and according to the said agreement, it was agreed that the petitioner will pay Rs. 1,10,00,000/- to Respondent No. 2. Perusal of R1 to R4 attached with the written reply of Respondent No. 2, it appears that the petitioner had given four cheques to Respondent No. 2 and two cheques of Rs. 15,00,000/- each were encashed and in this way, Respondent No. 2 received Rs. 30,00,000/-from the petitioner but two other cheques, one of Rs. 1,00,000/- and the other of Rs. 8,00,000/-, were not encashed and the same were dishonoured. It also appears from the record that the petitioner had given two other cheques of Rs. 80,00,000/- and Rs. 27,00,000/- to Respondent No. 2, which were also dishonoured due to insufficient funds. According to the petitioner, he had paid Rs. 53,00,000/- and Rs. 20,00,000/- to Respondent No. 2 whereas according to Respondent No. 2, he has not received the said amount because the petitioner had made some forged and fabricated entries by affixing his signatures on the back of the agreement (Annexure-D), which show that Respondent No. 2 has received Rs.53,00,000/- and Rs. 20,00,000/- from the petitioner, as is apparent from R/5 agreement dated 18.6.2008 attached with the written reply of Respondent No. 2 and in this behalf, he had moved an application to the Deputy Inspector-General, Gujranwala for initiating criminal proceedings against the petitioner. In this view of the matter, it appears that there are factual controversies in this case, which cannot be taken into consideration by this Court in exercise of its Constitutional jurisdiction as has been laid down in the case of Collector of Customs, Lahore and others Vs. Universal Gateway Trading Corporation and another (2005 SCMR 37).

6. As regards the civil suit instituted by the petitioner and the injunctive order issued by the Civil Court in respect of the cheuqes in issue, suffice it to observe that the alleged dishonouring of the cheques in question had come about prior to issuance of the stay order by the civil Court and according to Section 56(e) of the Specific Relief Act, 1877, no injunction can be granted by a civil Court against criminal investigation or in any criminal matter, as has been held in Aamir Shehzad Vs. The State and another (PLD 2005 Lahore 568).

7. So far as the contention of learned counsel for the petitioner that if the matter is pending before the Civil Court, the Criminal Court should not decide the matter till the decision of the civil Court is concerned, the said contention has no force as criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings can be proceeded simultaneously as has been held in Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others (2006 SCMR 1192).

8. In view of the above facts and circumstances and also relying upon Aamir Shehzad Vs. The State and another (PLD 2005 Lahore 568) and Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others (2006 SCMR 1192), I am of the considered view that the learned Justice of Peace/Additional Sessions Judge, Gujranwala/Respondent No. 3 has rightly passed the impugned order dated 26.1.2010 and learned counsel for the petitioner has not been able to point out any illegality or irregularity in the impugned order calling for interference by this Court in its constitutional jurisdiction. Therefore, this writ petition is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 126

Present: Ch. Muhammad Tariq, J.

MAQSOOD AHMAD--Petitioner

versus

Malik MUHAMMAD AFZAL--Respondent

R.F.A. No. 301 of 2010, decided on 31.3.2010.

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

----O. XXXVII, Rr. 2 & 3--Suit for recovery on basis of pro-note--Permission to appear and defend the suit was granted subject to submission of surety bond--Neither written statement submitted nor surety bond was furnished--Ex-parte proceedings was recorded--Application for setting aside ex-parte decree was dismissed--Assailed--Validity--Petitioner did not submit the surety bond and had grossly violated the order passed by trial Court--Appellant could not point out any illegality or jurisdictional error in impugned judgment and decree--Conduct of appellant remained lethargic throughout--Not entitled for any concession--Appeal was dismissed. [P. 127] A

Ch. Muhammad Ashraf Jalal, Advocate for Appellant.

Date of hearing: 31.3.2010.

Order

The respondent filed a suit for recovery, of Rs. 100,000/- under Order XXXVII, C.P.C. on the basis of pro note executed by the petitioner in favour of respondent. On 14.11.2008, the learned trial Court granted the petitioner permission to appear and defend the suit subject to submission of surety bond in the sum of Rs. 100,000/-. The learned trial Court further directed the petitioner to furnish surety bond on or before 27.11.2008 but the petitioner/defendant neither submitted his written statement nor furnished the surety bond as required by the learned trial Court. On 12.12.2008, the learned trial Court proceeded ex party against the petitioner/defendant. Against the said ex party order, the defendant filed an application on 24.02.2009 for setting aside ex party proceedings but later on he absented from the proceedings and the application moved by the defendant for setting aside of ex party proceedings was dismissed in default on 03.07.2009. The case was adjourned for recording of ex party evidence of the plaintiff/respondent on 09.07.2009 and after recording of evidence, the learned trial Court vide judgment and decree dated 24.08.2009 decreed the suit in favour of the plaintiff/respondent. Hence this regular first appeal.

1. Learned counsel for the appellant contends that the petitioner was unheard by the learned Additional District Judge Pakpattan who misread the evidence and totally gave weightage to the respondent's evidence, which is against natural justice. It has been further contended that the petitioner version cannot be recorded through filing leave to defend the suit and the learned Additional District Judge has failed to decide the case without assigning reasons in the judgment and decree dated 24.08.2009. Learned counsel further contends that the judgment and decree is perverse, based on inadmissible evidence and has been passed in the absence of the petitioner. He has placed reliance on 1926 PC 142.

2. Arguments heard. Record perused.

3. The petitioner has not submitted the surety bond till today and has grossly violated the order dated 14.11.2008 passed by the learned trial Court. Further, learned counsel for the appellant could not point out any illegality or jurisdictional error in the impugned judgment and decree. The conduct of appellant remained lethargic throughout and thus, he is not entitled for any concession. This RFA is devoid of merit; hence dismissed in limine.

(R.A.) R.F.A. dismissed.

PLJ 2011 Lahore 127 [Bahawalpur Bench Bahwalpur]

Present: Mazhar Iqbal Sidhu, J.

Mst. SOMIA BIBI--Petitioner

versus

SHO etc.--Respondents

W.P. No. 1017-Q of 2010, decided on 27.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B, 496 & 109--Constitutional petition--Quashing of FIR--No offence is made as the star witness of prosecution had categorically stated before I.O. as well as before the Court that no such incident had ever taken place--During investigation offence u/S. 365-B, PPC was deleted whereas offence u/Ss. 109 & 496-A, PPC were added to FIR--Abductee categorically denied her Nikah--Contracted marriage with accused of her free own will, without any coercions and misrepresentation--Validity--Photocopy of Nikahnama was present on file--If there were two Nikah Namas then, law requires that nikah nama to which parties to nikah nama admit and acknowledge would be taken to be genuine--Abductee was sui juris and she had contracted marriage of her own free will, therefore, no offence was constituted--FIR was quashed. [Pp. 129 & 130] A & B

PLD 1998 FSC 42 & 1994 PCr.LJ 111, rel.

Sardar M. Shehzad Dukhar, Advocate for Petitioner.

Mr. Khalid Pervaiz Opal, Learned DDPP for Respondents.

Date of hearing: 27.4.2010.

Order

Mst. Somia Bibi, being the abductee of FIR No. 51/2010 dated 25-02-2010 has filed Instant constitutional petition seeks quashing of the FIR.

1. The case has been lodged on the complaint of Mushtaq Ahmad Respondent No. 2 father of the petitioner alleging therein that on 19-02-2010, petitioner was married with Altaf Ahmad s/o Musa, the departure of the bride was not yet been taken place. It has been alleged in the FIR that on 24-02-2010 at about 09:00 a.m. Abdul Sattar, Abdul Jabbar, Noor-uz-Zaman, Khuda Bakhsh, Muhammad Hussain and 3/4 unknown persons abducted Mst. Somia Bibi petitioner in order to induce or to compel her for marriage. Hence this petition.

2. The case has been investigated by the investigating agency. During investigation offence under Section 365-B PPC was deleted whereas offence under Sections 109, 496-A PPC were added to the FIR vide case Diary No. 19 dated 25-04-2010 written by Zia-ur-Rehman ASI/I.O. During the investigation, Mst. Somia Bibi appeared before the I.O on 12-04-2010 and made statement under Section 161 of the Cr.P.C. according to which she narrated that she was not abducted by any body; she solemnized marriage with Abdul Sattar accused of the FIR (Respondent No. 3) on 25-02-2010 of her own free will and volition and she has also repudiated her first Nikkah with Altaf Ahmad. She has also stated that she is living with her husband Abdul Sattar.

3. In support of this petition, it has been contended on behalf of the petitioner that no offence is made as the star witness of the prosecution Mst. Somia Bibi has categorically stated before the investigating agency as well as before the Court that no such incident has ever taken place. It has been further contended that during the investigation offence under Section 365-B PPC has been deleted. This fact by itself makes the entire prosecution story false. It has been further argued that the alleged Nikkah of Mst. Somia Bibi with Altaf Ahmad is absolutely false and the petitioner does not accept and acknowledge it. Mst. Somia Bibi petitioner has also been appearing before this Court and kept on acknowledging her Nikkah with Abdul Sattar. It is further submitted that to further continue proceedings in this FIR would be sheer wastage of time and would be abuse of process of law.

4. On the other hand, learned counsel for the respondent has vehemently opposed the contentions of learned counsel for the petitioner on the ground that Mst; Somia Bibi was abducted and under duress false Nikahnama has been fabricated by Abdul Sattar accused/respondent. It has also been submitted that first Nikah of Mst. Somia Bibi with Altaf Ahmad is genuine. Therefore, no case of quashing of FIR is made out. Thus, petition may be dismissed.

5. Heard and record perused.

6. According to the contents of FIR, first Nikah which was stated to have been solemnized on 19-02-2010 of Mst. Somia Bibi with Altaf Ahmad is not before this Court. It is very important that according to prosecution's own case, the departure of the alleged abductee was not yet taken place. Mst. Somia Bibi has categorically denied her Nikkah with Altaf Ahmad during the course of investigation and also before this Court. She has acknowledged that she contracted marriage with Abdul Sattar respondent (accused of the FIR) on 24-02-2010 of her own free will, without any coercions and misrepresentation. Photocopy of the Nikahnama is present on the file. If there are two Nikah Namas then, the law requires that Nikah Nama to which parties to the Nikah Nama admit and acknowledge shall be taken to be genuine.

7. In this respect, reliance has placed on PLD-1998-FSC-42 (Arif Hussain and Azhra Perveen appellants versus The State) wherein it has been held:--

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and 1994-PCRLJ-1111 (Mst. Naseer Khatoon versus The SHO P.S City Mianwali and others) wherein it has been held:--

"Quashing of FIR--Petitioner girl was major and she had married voluntarily with the male accused--No justification, therefore, was available to register the case against the couple under Ss. 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Registration of the case was consequently declared to be without lawful authority and the FIR was quashed accordingly".

Mst. Somia Bibi is sui juris and she has contracted marriage of her own free will, therefore, no offence is constituted. This being so, registration of the case vide FIR No. 51/2010 dated 25.02.2010 under sections 365-B, 496 and 109 PPC is declared to be without lawful authority and the same is hereby quashed.

1. No order as to costs.

(R.A.) FIR quashed.

PLJ 2011 Lahore 130

Present: Ch. Muhammad Tariq, J.

KHUDA BUKHSH--Petitioner

versus

KHUSHI MUHAMMAD and others--Respondents

C.R. No. 1578 of 2000, decided on 8.4.2010.

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

----S. 115--Civil revision--Suit for declaration for claiming to receive share from the estate of deceased--Remand order was challenged through civil revision--Suit was dismissed on the question of limitation--Question of--Issues were required to be decided separately while trial Court had decided these issues jointly--Non-framing of issues or decision of matter on interconnected issues could not be a reason for remand of the case--Validity--A period of more than 40 years had lapsed and it would be unfortunate if the matter was again remanded for initiating it afresh from zero point--High Court sees no illegality in the judgment passed by trial Court because issues were inter-linked and interconnected issues pertaining to the same matter which did not affect the merit of the case--Non-framing of issues or decision of the matter on interconnected issues could not be a reason for remand of the case--Evidence was not sufficient the appellate Court could reframe issues and could decide these on existing evidence or by receiving further evidence but in any case, suit could not be remanded simply because the issues were decided jointly--Held: Matter would be decided on merit and technicalities would be ignored--Civil revision was allowed. [Pp. 133 & 134] A, B & C

Malik Abdul Wahid and Rana Muhammad Anwar, Advocates for Petitioner.

Sheikh Muhammad Nawaz, Advocate for Respondents.

Date of hearing: 8.4.2010.

Order

This petition is directed against the judgment dated 26.06.2000 passed by learned Additional District Judge, Ferozewala whereby the judgment and decree dated 07.01.1998 passed by the learned trial Court was set aside and the case was remanded back to the learned trial Court for decision afresh.

1. Learned counsel for the petitioner/plaintiff submits that the petitioner/plaintiff filed a suit for declaration that he is legal heir of Mst. Sultan Bibi, Kalu and Arora (deceased) who are predecessors of the petitioner/plaintiff. Mst. Sultan Bibi was real daughter of Qadir Bukhsh who had been gifted 1/6 shares from the estate of their predecessor Qadir Bukhsh. Late Mst. Sultan Bibi died issueless and as such her share has to be reverted back to other legal heirs of Qadir Bukhsh and the plaintiff is entitled to receive 1/6 share from the estate of late Mst. Sultan Bibi.

2. Learned counsel for the petitioner/plaintiff further submits that predecessors of the petitioner/plaintiff, Kalu and Arura died leaving behind them the petitioner/plaintiff and others as their legal heir and therefore, the petitioner/plaintiff is also entitled to the extent of his legal share. Further submits that the suit was filed in year 1967 which was contested by both the parties and the learned trial Court after hearing the arguments of both the parties decreed the suit of the petitioner/plaintiff in his favour against the defendant on 07.01.1998. Further submits that the Respondent No. 1 and others filed an appeal against the judgment and decree of the trial Court dated 07.01.1998 which was accepted by the learned Additional District Judge, Ferozewala vide judgment dated 26.06.2000 setting aside the judgment and decree of the learned trial and remanded the case to the learned trial Court for decision afresh. Hence this petition.

3. The operative para of the impugned judgment is reproduced as under:--

"In this way, findings recorded and the way of reading the conclusion with regard to aforementioned issues is not approved by the law and prevalent procedure i.e. Civil Procedure Code. Therefore, before findings with regard to status of Sultan Bibi whether she was daughter of Qadir Bakhsh or not, are recorded, all the issues demand to have clear findings based upon sound reasons relevant, law and facts of the case as well as available material on record. In these circumstances, the impugned judgment could not be sustained, the same is accordingly set aside with the direction to the learned trial Court to correct the language of these issues wherever so required and then to rewrite the judgment in a clear and candid manner. Consequently, the appeal stands accepted. The parties are directed to appear before the successor of the learned Civil Judge who passed the impugned judgment, on 28th instant for further proceedings."

1. Learned counsel for the petitioner/plaintiff inter alia contends that the judgment and decree passed by the learned Additional District Judge Ferozewala is against the law and facts of the case because the petitioner/plaintiff himself appeared as PW-1 and categorically stated that 1/6 share of the estate of Qadir Bukhsh was gifted to Mst. Sultan Bibi, daughter of Qadir Bukhsh. Further contends that the defendant/respondent side has not cross-examined this fact and no suggestion was put to the witnesses that 1/6 share was not gifted to Mst. Sultan Bibi, so this portion of statement remained unchallenged.

2. Learned counsel for the petitioner/plaintiff further contends that learned Additional District Judge/appellate Court while passing the impugned judgment dated 26.06.2000 has noted certain technical defects and has remanded the case after setting aside the decree passed by the trial Court while it is settled law that technicalities should be ignored. Further contends that the remand could not be ordered lightly particularly where case can be decided by the appellate Court itself. Therefore, this civil revision be accepted.

3. On the other hand, learned counsel for the respondents has supported the impugned judgment and has contended that it was duty of the plaintiff/petitioner under Article 117 of Qanun-e-Shahadat Order to prove that he is legal heir of deceased Sultan Bibi and is entitled to inherit from the estate of deceased Sultan Bibi. Learned counsel further contends that plaintiff/petitioner himself appeared as PW-1 as his own witness and his statement is not corroborated by any cogent evidence.

4. Learned counsel for the respondents further contends that the learned trial Court has not decided the matter issue-wise particularly Issues No. 8, 9 & 10 were wrongly decided jointly which should have been decided by the learned trial Court separately and independently, therefore, the impugned judgment does not suffer from any illegality or irregularity; thus this civil revision be dismissed, the impugned judgment be confirmed and the case be remanded to the trial Court for deciding the matter afresh as per judgment of the learned appellate Court. In support of his contentions, learned counsel for respondents has relied upon 2008 YLR 206, PLD 1996 Peshawar 6, 2005 SCMR 1217 and 2008 YLR 881.

5. I have heard the arguments advanced by the parties and have also gone through the record available on file.

6. The record reveals that the suit was filed in the year 1967 which was dismissed on 15.06.1972 on the question of limitation by the learned trial Court. The petitioner/plaintiff filed First Regular Appeal but it met the same fate. Again the petitioner/plaintiff filed a Regular Second Appeal against the judgment and decree passed by both the learned lower Court. The RSA was allowed on 17.11.1993 by this Court and case was remanded to the learned trial Court for decision afresh. The respondent assailed the judgment and decree dated 17.11.1993 passed by this High Court before the Hon'ble Supreme Court of Pakistan which was dismissed on 21.03.1994. Thereafter, the parties produced their oral as well as documentary evidence and on 07.1.1998, the learned trial Court decreed the suit of petitioner/plaintiff. This judgment and decree was challenged by the respondent/defendant and the learned Additional District Judge Ferozewala vide his judgment dated 26.06.2000 accepted the appeal and remanded the case again to the learned trial Court for deciding it afresh on the sole question that Issues No. 8, 9 and 10 were required to be decided separately while the learned trial Court has decided these issues jointly. The perusal of record shows that the instant suit was filed on 19.04.1967. A period of more than 40 years has lapsed and it will be unfortunate if the matter is again remanded to the learned trial Court for initiating it afresh from zero point. This Court sees no illegality in the judgment and decree passed by the learned trial Court because Issues No. 8, 9 and 10 are inter-linked and interconnected issues pertaining to the same matter which does not affect the merit of the case. Non-framing of issues or decision of the matter on interconnected issues could not be a reason for remand of the case. The learned Additional District Judge, if felt necessary, could himself decide the matter issue-wise on the evidence available on record. It was the duty of the appellate Court to re-examine the evidence and decide the matter in accordance with law. In case the learned appellate Court finds that evidence was not sufficient, the appellate Court could reframe issues and could decide these on existing evidence or by receiving further evidence but in any case, suit could not be remanded simply because the Issues No. 8, 9 and 10 were decided jointly. Frequent remands were deprecated by High Court as the same resulted in wastage of time and create frustration amongst the litigants.

7. In the light of the law laid down by the Hon'ble Supreme Court of Pakistan, that matters should be decided on merit and the technicalities should be ignored, this Civil Revision is allowed. The impugned judgment dated 26.06.2000 passed by learned Additional District Judge, Ferozewala is set aside and the case is remanded back to the learned District Judge, Sheikupura who is directed to decide the case on the basis of evidence available on record expeditiously preferably within a period of two months from the date of receipt of this order after hearing all the parties. However, till the final decision of the case by the learned District Judge, Sheikhupura, the status quo in respect of possession shall be maintained by the parties. No order as to costs.

(R.A.) Revision allowed.

PLJ 2011 Lahore 134 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

ASLAM ALI SHAH and others--Petitioners

versus

HAIDER ALI SHAH deceased through Legal Heirs and others--Respondents

W.P. No. 535 of 2010, decided on 13.5.2010.

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

----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Conceding statement made by counsel in trial Court--Petition for restoration was hopelessly barred by time after eight years of dismissal of original petition--Application u/S. 12(2), CPC was remained pending in trial Court--Dismissal for non-prosecution--No knowledge of pendency of any such petition as father had died--Came to knowledge about pendency of petition u/S. 12(2), CPC, as petitioners started claiming themselves as owner to extent of decree--Validity--Findings of trial Court were seen that grounds exist for restoration of the petition u/S. 12(2), CPC--Held: Petition u/S. 12(2), CPC was contested by deceased and statements of both sides had already been recorded and it was only at the stage of final arguments--No ground for interference into concurrent findings of Courts below which even otherwise cannot be interfered while exercising Constitutional jurisdiction, which proposition is further supported by judgment cited for petitioner--Petition was dismissed. [P. 138] A

PLD 1985 SC 131, rel.

Syed Muhammad Ali Gillani, Advocate for Petitioners.

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Respondents.

Date of hearing: 13.5.2010.

Order

Petitioner No. 1 Aslam-Ali Shah, Hashmat Ali Shah son of Akbar Ali Shah the predecessor-in-interest of Petitioners Nos. 2-A to 2-D, Zafar Abbas/Petitioner No. 6 and Mst. Sadaqat Saeed/Petitioner No. 7 filed a suit for declaration whereby they challenged Mutation of Inheritance No. 6 of the year 1953, Chak No. 88/W.B, Mailsi in favour of Asghar Ali, Haider Ali sons of Fakhar-ud-Din and Mst. Akbar Bibi alias Kubran Bibi daughter of Fakhar-ud-Din, who are now being represented by Respondents Nos. 1-A to 4-E, Asghar Ali Shah Respondent No. 5 and Mst. Akbar Bibi alias Kubraan Bibi Respondent No. 6. The suit was resisted by respondents/original defendants. However, according to the facts, on behalf of Defendant No. 2 Haider Ali Shah the predecessor-in-interest of Respondents Nos. 1-A to 1-D one Mian Shabbir Ahmad, Advocate, Mailsi made a conceding statement in the learned trial Court on 10.4.1991 and suit filed by the petitioners/plaintiffs to his extent was decreed. The suit, however, in respect of remaining defendants was dismissed vide judgment and decree dated 6.5.1991. Haider Ali Shah/Defendant No. 2 the predecessor-in-interest of respondents filed a petition under section challenging the legality of the judgment and decree dated 6.5.1991 on the basis of alleged conceding statement made by his counsel in the learned trial Court, which remained pending after recording statements of both the parties. Due to pendency of the appeal the learned trial Court adjourned the proceedings on application under Section 12(2) CPC to await decision in appeal and receipt of record; that the appeal subsequently filed by the plaintiffs/petitioners before the learned appellate Court was dismissed on 3.12.1995, against which Civil Revision No. 1067-D/1995 was filed, which too met the same fate vide judgment and decree dated 3.1.1996. Petitioners further challenged the said dismissal order in C.P.L.A No. 963-L-1996, which was also dismissed vide order dated 6.4.1996 by the Hon'ble Apex Court.

1. That the application under Section 12(2) CPC as earlier mentioned, filed by Haider Ali Shah Defendant No. 2 remained pending in the learned trial Court which however vide order dated 13.7.2001 was dismissed due to non-prosecution. The respondents subsequently on 25.4.2009 moved an application for restoration of that petition under Section 12(2) CPC dismissed for non-prosecution vide order dated 13.7.2001 on the ground that they were not in the knowledge of pendency of any such petition as their father had died on 4.11.1994; that petition was resisted by the petitioners through filing their written reply wherein they agitated that petition for restoration was hopelessly barred by time as it was filed after eight years of the dismissal of original petition. Prayed that it be dismissed.

2. The learned trial Court after hearing the parties vide order dated 10.7.2009 restored the petition under Section 12(2) CPC to be disposed of on merits. Feeling aggrieved present petitioners preferred revision petition, which was heard and decided by learned ADJ Mailsi, who vide impugned judgment dated 26.10.2009 dismissed the same. Feeling aggrieved the petitioners have preferred this writ petition.

3. Learned counsel for the petitioners contends that admittedly the suit to the extent of Haider Ali Shah Defendant No. 2 predecessor-in-interest of respondents was decreed to his extent on the basis of a conceding statement made by his learned counsel; that no-doubt the petition under Section 12(2) CPC was filed but it remained pending; that appeal against the dismissal of the suit was filed before the learned ADJ in which after the death of Haider Ali Shah the respondents were arrayed as party and the matter remained (sic) to the Hon'ble Supreme Court whereby the respondents were shown as a party to the litigation; that respondents were in the knowledge of the pendency of the litigation as well as petition but they did not bother to appear before the learned trial Court and their petition was rightly dismissed for non-prosecution; that the petition for the restoration of application under Section 12(2) CPC was admittedly filed after 8 years of its dismissal which is hopelessly barred by time; that the learned trial Court as well as learned appellate Court did not advert to the actual legal as well as factual aspects of the case and restored the petition without any lawful justification. While relying on 2006 SCMR 1304 (Muhammad Feroze and others Vs. Muhammad Jamaat Ali), PLD 1985 Supreme Court 131 (Noor Muhammad Vs. Sarwar Khan and 2 others), 2005 CLC 1478 (Mirza Allah Ditta alias Mirza Javed Akhtar Vs. Amna Bibi and 2 others) and PLD 2005 Lahore 1 (Muhammad Akbar Vs. Muhammad Malik and another) prayed that writ petition be allowed.

4. On the other hand, learned counsel, for the respondents vehemently opposed this petition on the ground that admittedly application under Section 12(2) CPC after passing the decree on the basis of conceding statement was moved by the original defendant Haider Ali Shah before the learned trial Court. The matter remained pending as it was being contested by both sides and evidence of both sides had already been recorded and it remained on adjourning to await the orders passed by the learned appellate Court and for production of record; that matter went up to the Hon'ble Supreme Court of Pakistan which ended against the petitioners; that it was not in the knowledge of respondents the legal heirs of Haider Ali Shah that any application under Section 12(2) CPC was pending and when they came into knowledge they immediately moved a petition, which was rightly restored as the order whereby the application was dismissed for non-prosecution was void order. It was not a date fixed for hearing and in such eventuality when the Court itself kept on pending the petition under Section 12(2) CPC to await the order and record it could not be dismissed as such. Even otherwise, the petitioners who earlier remained on appearing never informed the learned trial Court about the death of Haider Ali who died in the year 1994 and even after 1994 the matter remained pending till 2001 and subsequently it was dismissed for non-prosecution; that it was a void order and no limitation runs against such order; that both the Courts below rightly passed the findings and restored the petition to be disposed of on merits in accordance with law. While relying on PLD 1993 Lahore 564 (Mahmood Arif Vs. Chief Administrator, Auqaf). 2002 CLC 1372 (Muhammad Shafiq and another Versus Maqsood Ahmad and 2 others). 1993 SCMR 1949 (Qazi Muhammad Tariq Vs. Hasin Jahan and 3 others). PLD 1982 Supreme Court 413 (Begum Shams un Nisa vs. Said Akbar Abbasi and another). 1997 SCMR 526 (Waris Khan and 2 others Vs. Mst Zainab Nisa and others) and PLJ 1993 SC 103 (Muhammad Yasin Vs. Sh. Hanif Ahmed and 4 others) prayed that this petition be dismissed.

5. I have considered the arguments advanced by learned counsel for the parties.

6. No-doubt, the main suit filed by the present petitioners, whereby they challenged inheritance mutation, was resisted by the respondents including the deceased Haider Ali Shah. It was for the reason that counsel allegedly appointed by Haider Ali Shah made a conceding statement whereby the suit to his extent was decreed, while suit in respect of remaining respondents was dismissed. Haider Ali Shah immediately filed petition under Section 12(2) CPC which remained pending but due to non-availability of record as well as pendency of the appeal filed by the petitioners themselves learned trial Court kept on pending petition under Section 12(2) CPC for disposal in accordance with law. The matter remained pending and during that pendency, in the year 1994, Haider Ali Shah Defendant No. 2 the predecessor-in-interest of respondents died. The main appeal went up to the Hon'ble Supreme Court of Pakistan but petitioners' claim was dismissed; that subsequently when the respondents came to the knowledge about pendency of petition under Section 12(2) CPC, as the petitioners' started claiming themselves as the owner to the extent of the decree passed against Haider Ali Shah, they approached the concerned Court and moved petition under Section 12(2) CPC. If the judgment passed by the learned ADJ is seen, he in Para 12 of the judgment observed as under:

"There is however, merit in the contention on behalf of the appellants that one of the legal heirs, namely Haider Ali Defendant/Respondent No. 2 has since conceded the suit of the appellant, therefore, the impugned decree passed to his extent shall subsist. Though it is claimed from the other side that he too has been cheated and an application under Order XII, Rule 2 CPC, for setting it aside is pending in the lower Court. Be that as it may the impugned judgment to the extent of Haider Ali shall subsist till it is set aside, if so, on the said application."

Even otherwise, if the order dated 13.7.2001 is seen it was not a date fixed for hearing and the learned trial Court only due to non-appearance of the respondents dismissed the petition under Section 12(2) CPC. The judgments cited by learned counsel for the respondents i.e. PLD 1993 Lahore 564 (Mahmood Arif Vs. Chief Administrator, Auqaf) and 1993 SCMR 1949 (Qazi Muhammad Tariq Vs. Hasin Jahan and 3 others) clearly support the respondents' version that if any suit not fixed for date of hearing, its dismissal due to non-prosecution is illegal and without lawful justification.

1. As far as, the point of limitation is concerned, it is consistently held by the Hon'ble Superior Courts of this Country that no limitation runs against a void order. If the findings of the learned trial Court are seen it has specifically been mentioned in Para No. 5 of the order that grounds exist for restoration of the petition under Section 12(2) CPC. Even otherwise, other aspects reflected from the record that the petition under Section 12(2) CPC was contested by Haider Ali Shah deceased Defendant No. 2 and statements of both sides have already been recorded and it was only at the stage of final arguments. In these circumstances, there is no ground for interference into concurrent findings of the learned Courts below which even otherwise cannot be interfered while exercising constitutional jurisdiction, which proposition is further supported by the judgment cited by learned counsel for the petitioners himself i.e. PLD 1985 SC 131 (Noor Muhammad vs. Sarwar Khan and 2 others). Resultantly, finding no merit in this writ petition same is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 138 [Multan Bench Multan]

Present: Tariq Javaid, J.

MUHAMMAD AYAZ and 6 others--Petitioners

versus

AMANAT ALI and another--Respondents

C.R. No. 73 of 2010, decided on 6.5.2010.

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

----S. 115--Civil revision--Ejectment petition--Execution proceedings were pending--Application for permission to deposit the rents in Court which was granted--Contention--No relationship of land lord and tenant between them--Application was collusive, in order to defeat the execution proceedings with malafide intentions had entered into an agreement for sub-tenancy--Interim relief was granted to the petitioner by trial Court--Validity--Petitioners were neither his tenants, nor there was any relationship of landlord and tenant and a collusive suit had been filed after passing of the decree for ejectment against the respondent, which was mala fide on the face of it--Sub-tenancy in favour of the petitioners appeared to be a device to defeat the lawful decrees passed by Courts below in previous round of litigation--Instant case appears to be one of gross-misuse of process of law and the suit filed by the petitioners merit to be decided on a preliminary issue of maintainability--Petition having been filed in gross misuse of the procedure and law provided for redressal of grievance of the bonafide litigants was dismissed in limine. [P. 140] A, B & C

1984 SCMR 689, rel.

Mr. Ahmad Raza, Advocate for Petitioners.

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Respondent No. 1.

Date of hearing: 6.5.2010.

Order

This civil revision is directed against the order dated 16.1.2010 passed by the learned Additional District Judge, Sahiwal whereby petitioner's appeal against order dated 1.6.2009 passed by the learned Rent Controller, Sahiwal was dismissed.

1. The brief facts as narrated in the petition are that allegedly petitioners are tenants of the Respondent No. 2 since last ten years and have been paying rents to him. It is further maintained that on first respondent's refusal to receive the rents he moved an application before the learned Rent Controller, Sahiwal for permission to deposit the rents in Court, which was granted vide order dated 1.6.2009 and since then the petitioners are depositing rents in Court.

2. On the other hand, Respondent No. 1 has vehemently opposed this petition and has maintained that there was no relationship of landlord and tenant between the Respondent NO.2 and the petitioners. It is further alleged that the Respondent No. 1 had rented out his property to the Respondent No. 2 against whom an ejectment petition was filed long before 1.6.2009. The appeal was also dismissed and the execution proceedings are pending. It is maintained that the application for deposit of rents was collusive in as much as that both the respondents, in order to defeat the execution proceedings with mala fide intentions had entered into an agreement for sub-tenancy, which was expressly not permissible under the terms of tenancy between the Respondent No. 1 and Respondent No. 2.

3. A suit for permanent injunction was filed by the petitioners wherein it was alleged that the petitioners were tenant of the Respondent No. 2 until 30.4.2013 and hence he may not be ejected illegally. An application for an interim relief was also filed wherein it was prayed that during the pendency of the suit the petitioner may not be ejected and the execution proceedings initiated by the Respondent No. 1 be stayed. In the suit the Respondent No. 1 who is the actual owner of the property and landlord vis-a-vis tenancy agreement between him and the Respondent No. 2 was not impleaded as defendant. However, he joined the proceedings and resisted the same and maintained that the suit filed by the petitioners for permanent injunction was collusive and necessarily abuse of process of law in as much as that there was no relationship of landlord and tenant between the petitioners and the Respondent No. 1. The Respondent No. 2 was himself a tenant according to the terms of tenancy. He was not authorized to sub-let the rented premises and the suit has been filed after passing of the judgment and decree whereby the Respondent No. 1 was directed to hand over the vacant possession of the suit property to the Respondent No. 1.

4. Vide order dated 1.6.2009 an interim relief was granted to the present petitioners by the learned trial Court. However, on appeal the interim order was vacated. In appeal the Respondent No. 1 maintained that the present petitioners were neither his tenants nor there was any relationship of landlord and tenant and a collusive suit has been filed after passing of the decree for ejectment against the Respondent No. 2, which is mala fide on the face of it. The fact that the Petitioners No. 1 to 7 had filed a collusive suit has been admitted by the first appellate Court. It is also a matter of record that proceedings between Respondents No. 1 and 2 were decided by the learned Rent Controller for ejectment of the Respondent No. 2. It also appears that the sub-tenancy in favour of Petitioners No. 1 to 7 appears to be a device to defeat the lawful decrees passed by the Courts below in the previous round of litigation. The present case appears to be one of gross misuse of process of law and the suit filed by the petitioners merit to be decided on a preliminary issue of maintainability. Reliance can be made to 1984 SCMR 689. The present petition having been filed in gross misuse of the procedure and law provided for redressal of grievances of the bona fide litigants is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 141

Present: Iqbal Hameed-ur-Rehman, J.

Ch. ABDUR REHMAN--Petitioner

versus

DEPUTY DIRECTOR, FIA, FAISALABAD CIRCLE, FAISALABAD and 19 others--Respondents

W.P. No. 20066 of 2009, heard on 8.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Banking Ombudsman Ordinance, 1962, S. 82--Constitutional jurisdiction--Question of--Maintainability--Grievance of--Sought direction be issued to hold an inquiry on the basis of fictitious documents, fictitious revenue record prepared on the basis of bogus pass book--Dummy loans had been issued and utilized for private business--Alternate adequate and efficacious remedies which were available, in form of filing a complaint before Banking Ombudsman--By filing a complaint before Special Court, by seeking a direction by filing an application before Justice of Peace and under Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit--No direction can be passed for registration of a case or inquiry under the Constitutional jurisdiction u/Art. 199 of Constitution of Pakistan where alternate remedies were available--Matter was sub-judice before Banking Court--Constitutional petition was not competent and maintainable before High Court and has no merits in fact it appears that petitioner in order to avoid repayment of his loans was trying to create lever in order to pressurize--No direction for registration of case can be issued under extra ordinary Constitutional jurisdiction of High Court--Petition was dismissed. [Pp. 143 & 144] A & B

2007 YLR 2834, 2004 YLR 2577 & 1999 MLD 3230, rel.

Mr. M. Abdus Sattar Chughtai, Advocate for Petitioner.

Mr. Majid Ali Wajid, Advocate for Respondents No. 2, 5 to 20.

Date of hearing: 8.4.2010.

Judgment

Through this instant writ petition the grievance of the petitioner is that a direction be issued to Respondent No. 1 Deputy Director, FIA, Faisalabad Circle, Faisalabad to hold an inquiry against Respondents No. 2 to 20 with the allegation that on the basis of fictitious documents, fictitious Revenue Record was prepared by the said respondents and on the basis of bogus pass book prepared by the respondents dummy loans have been issued and utilized by the respondents for their private business, in view of the same the matter be probed into by FIA and as such a direction of this Court be issued to Respondent No. 1 to register a case against the said respondents and thereafter to proceed in accordance with law.

1. This writ petition has vehemently been opposed by learned counsel for Resplendents No. 2 to 20 both by filing parawise comments as well as at bar. Learned counsel for the respondents at the very outset states that this writ petition is pre-mature as the petitioners have neither approached Respondent No. 1 FIA with any complaint and is trying to obtain a direction of this Court by invoking its constitutional jurisdiction by-passing the law and procedure provided under Federal Investigation Agency Act, 1974 as well as Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. The second legal objection urged by learned counsel for the respondents is that this petition is not maintainable as alternate adequate and efficacious remedies are available to the petitioner firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit which infact the petitioner has already availed and filed a suit under the said Ordinance, 2001 before the Banking Court, Sargodha as such he is estopped by law to re-agitate the same matter before this Court by invoking its constitutional jurisdiction. The subject-matter of the suit which has been dismissed by the Banking Court vide its judgment dated 16.11.2009 is the same as in the instant writ petition. Learned counsel for the respondents further states that the petitioner had filed an appeal which has been accepted vide judgment dated 01.03.2010 and the matter has now been remanded to the Banking Court, Sargodha for deciding the same afresh as such the matter is already pending before the Banking Court as such this constitutional petition is not maintainable. The petitioner has already availed the alternate remedy, therefore, this writ petition merits dismissal. Moreover, in the garb of this writ petition the petitioner is seeking registration of a case against Respondents No. 2 to 4 and 6 to 20 without any specific allegation against them. The allegation as alleged in the writ petition is against Respondent No. 5. The reason being is to harass the officials of the respondent Bank as most of them are Managers of the respondent Bank at Sargodha and the petitioner and his relatives have obtained loans from the different Branches of the respondent Bank and recovery suits are pending against the petitioner. He is not making payment as such the petitioner has approached this Court with unclean hands and has made material concealment of facts and they are not entitled to any equitable relief by this Court in its constitutional jurisdiction. In this regard reliance has been placed on Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), Javed Tariq Khan and another Vs. Ahmed Raza Khan and four others (1999 MLD 3230), Muhammad Akram Vs. Muhammad Anwar (2002 YLR 3701) and Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834). Learned counsel for the respondents has vehemently urged that there is no merit in this writ petition and it is not maintainable, no equitable relief can be granted to the petitioner since it is based on mala fide, concealment of material facts hit by availability of alternate remedies and the same is only intended to be used or a tool for harassing the respondents and delaying the recovery of the outstanding amount from the petitioner granted under the Finances Facilities availed by him from respondents Bank the same be dismissed in limine.

2. Arguments heard and the material placed on record, taken into consideration.

3. Learned counsel for the petitioner has not been able to substantiate from his arguments before this Court that how this writ petition is maintainable. In view of the same petitioner has alternate adequate and efficacious remedies which are available to him i.e. firstly, in the form of filing a complaint before Banking Ombudsman U/S. 82 of the Banking Companies Ordinance, 1962. Secondly, by filing a complaint before the Special Court under the "Offences in Respect of Banks (Special Courts) Ordinance, 1984". Thirdly, by seeking a direction against Respondent No. 1 U/S. 22-A, 22-B Cr.P.C. by filing an application before the Justice of Peace. Fourthly, under the Financial Institutions (Recovery of Finances) Ordinance, 2001 by filing a suit. It is consistent view of this Court that no direction can be passed for registration of a case or inquiry under the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic Of Pakistan where alternate remedies are available and in this regard reliance is being placed on Saeed Ahmed Barry Vs. The State and two others (2007 YLR 2834) in which it has been held that:--

"---Art. 199--Constitutional jurisdiction--Scope--Availability of alternative remedy--Petitioner had prayed for a direction to authorities requiring registration of criminal case under Ss.419, 420, 468, 471, 465, 466, 474 PPC contending that he had come to know that someone had forged an agreement to sell touching his land, though he never executed any such agreement and same was forged, fabricated and fictitious at the hands of beneficiary--Stance canvassed in the petition, rested on disputed factual controversy, requiring, determination through detailed inquiry/recording of evidence--Such exercise could not be undertaken by High Court while discharging jurisdiction under Art. 199 of the Constitution--Petitioner had an alternative remedy of proceeding in the matter by filing a private complaint under S. 200, Cr.P.C.--Direction to register criminal case as prayed for by the petitioner, could not be given--Petitioner could have recourse to other alternative remedies, Provided by law--Constitutional petition was dismissed."

Messrs Royal IPR Security Service (PVT.) LTD. Vs. Muhammad Nadeem and others (2004 YLR 2577), wherein it has been held that:--

"--Art. 199--Constitutional jurisdiction--Scope--Alternate remedy Available Effect--Where an alternate remedy by way of direct complaint was available of the petitioner, he could not insist that High Court should exercise its Constitutional Jurisdiction through not justified under circumstances of the case."

1. Admittedly, before filing this writ petition the petitioner had also filed a suit before the Banking Court, Sargodha for deciding the same matter which was initially dismissed by Banking Court and on appeal thereafter the same has been remanded to the Banking Court vide its judgment dated 01.03.2010 and now the matter is sub judice before the Banking Court, Sargodha therefore, this constitutional petition is not competent and maintainable before this Court and has no merits infact it appears that the petitioner in order to avoid repayment of his loans is trying to create lever in order to pressurize the respondents. In view of the same no direction for registration of case can be issued under extra ordinary constitution jurisdiction of this Court. In this regard reliance is placed on Javed Tariq Khan and another. Vs. Ahmed Raza Khan and four others (1999 MLD 3230) wherein it has been held that:--

"under provisions of Art. 199 of Constitution of Pakistan (1973) it was not obligatory for High Court to issue writ in each case, irrespective of facts/ circumstances, which could call for exercise of judicial restraint in turning down request of petitioner--Conduct of parties was of considerable importance in determining as to whether discretionary jurisdiction under said Article should be exercised or refused--High Court while issuing direction to police to register criminal case against appellant, not only had not considered said circumstances, but also ignored the facts that adequate remedy in form of private complaint was available to complainant/respondent--High Court could refuse relief sought by complainant/respondent through its Constitutional jurisdiction--Indiscreet direction for registration of criminal case, could cause untold problems for opposite party though motive for resorting to writ jurisdiction could be discernible on the face of record namely to humiliate and persecute opponent--When a criminal case is registered against a citizen he is put into terror of being interrogated ruthlessly and even arrested, besides his relations and friends, who also might be called to police station by an unscrupulous police officer--Keeping in view background of enmity between parties and nature of allegation, coupled with reports/proceedings by police, no direction for registration of cases should have been issued by High Court in its discretionary jurisdiction."

1. In the above perspective, this writ petition is not maintainable as well as it has no merits, the same is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 145

Present: Ch. Muhammad Tariq, J.

MUHAMMAD RAMZAN and another--Petitioners

versus

Mst. GHULAM SHAFIA and others--Respondents

R.S.A. No. 117 of 2004, decided on 8.4.2010.

Limitation Act, 1908 (IX of 1908)--

----Arts. 168 & 181--Civil Procedure Code, (V of 1908), S. 151--Inherit power of Court--Period of limitation--Restoration of titled appeal--Case had been transferred--Period for restoration was three years--Contention--Restoration of appeal was governed under Art. 181 of Limitation Act, which provides a period of three years--They did not file application u/S. 5 of Limitation Act, for condonation of delay is misconceived as time for readmission of appeal dismissed for non-prosecution is 30 days--The period runs from the date of dismissal of appeal for non-prosecution and not from the date of gaining knowledge of dismissal because the matter in issue falls under Art. 168 of Limitation and not under Art. 181 of Limitation Act--CMAs were dismissed. [P. 146] A

1975 SCMR 179, rel.

Ch. M. Jahanzeb Wahla, Advocate for Appellants/Petitioners.

Rana M. Arif, vice counsel for Respondent No. 4.

Date of hearing: 8.4.2010.

Order

C.Ms. Nos. 812, 813/C of 2007

Through these applications, the applicants/ petitioners seek restoration of their Appeal No. 117/2004 which was dismissed by this Court on 01.02.2006 in default.

1. Learned counsel for the applicants/petitioners submits that the applicants/petitioners are resident of District Pakpattan who had filed this appeal before Lahore High Court, Multan Bench, Multan under RSA No. 19/2001 but subsequently District Pakpattan came within the jurisdiction of the Lahore High Court, Lahore and the titled appeal was accordingly transferred to this Court where it was renumbered as RSA 117/2004. Further submits that the petitioners were informed about the transfer of titled case at Lahore but no notice for fixation thereof was served upon the petitioners.

2. Learned counsel for the petitioners contends that the petitioners waited for the notice regarding fixation of the case but they did not receive notice from the office. Further contends that after passing of reasonable time, the petitioners came to Lahore on 05.09.2007 and enquired about the case, then it came to their knowledge that the titled appeal had already been dismissed in default on 01.02.2006. Hence this application.

3. Learned counsel for the petitioners further contends that under Article 181 of Limitation Act, the period for restoration is three years, therefore, they did not feel the necessity of filing an application under section 5 of Limitation Act for the condonation of delay. In support of his contentions, learned counsel for the petitioners has relied upon the law laid down by Hon'ble Supreme Court of Pakistan in 1992 SCMR 1895.

4. Arguments heard. Record perused.

5. In para. 2 of the application under Section 151, C.P.C. for restoration of titled appeal, the petitioners have admitted that they were informed by the office of this Court that their case has been transferred to Lahore. Therefore, it was duty of the petitioners to remain vigilant about their case but they remained indolent. The contention of the learned counsel for the petitioners that the restoration of appeal is governed under Article 181 of the Limitation Act which provides a period of three years, therefore, they did not file application under Section 5 of Limitation Act for the condonation of delay is misconceived as the time for readmission of appeal dismissed for non-prosecution is 30 days. The said period runs from the date of dismissal of appeal for non-prosecution and not from the date of gaining knowledge of dismissal because the matter in issue falls under Article 168 of Limitation Act and not under Article 181 of Limitation Act. Law laid down by Hon'ble Supreme Court of Pakistan in case "Haji Ghulam Sarwar vs. Daya Ram" reported as 1975 SCMR 179 is very much clear on the point.

6. In view of the above discussion, both the CMs are without merit which are dismissed.

(R.A.) CMS dismissed.

PLJ 2011 Lahore 147

Present: Iqbal Hameed-ur-Rehman, J.

Mrs. PARVEEN A. HUSSAIN--Petitioner

versus

JUDGE BANKING COURT, NO.IV LAHORE and another--Respondents

W.P. No. 9980 of 2007, heard on 7.4.2010.

Constitution of Pakistan, 1973--

----Art. 199(5)--Constitutional petition--Question of--Maintainability--Private corporate body did not flal within domain of Federal or Provincial Governments--Application for providing a detail of salary, gratuity and provident fund--Claim of liquidated, damages and mark-up for cushion period was deleted from the claimed amount--Application was dismissed--Execution petition of Bank was pending before Executing Court--Suit for declaration alongwith damages--No direction can be issued by High Court--Validity--In execution petition the adjustment sought for can only be made with the consent of decree holder--Decree holder did not consent to the same as the civil suit of the petitioner with regard to same was sub judice before Civil Court--Impugned order had rightly been passed by Bank and there was no illegality or irregularity in the order--Petition was not maintainable because Bank being private Bank was a private corporate body and did not fall within domain of Federal Govt. or Provincial Govt. [P. 150] A

Mr. Shafqat Mahmood Chohan, Advocate for Petitioner.

Mr. Tariq Ahmad Farooqi, Advocate for Respondents.

Date of hearing: 7.4.2010.

Judgment

Through this writ petition the petitioner has assailed the order dated 23.07.2007 passed by learned Judge Banking Court-IV, Lahore and prayed that the respondents be directed to render detailed statement of account showing month-wise entries pertaining to the amount of gratuity, provident fund deducted from the salaries of the petitioner alongwith profit/mark up etc.

1. Brief facts succinctly required for the determination of this writ petition are that the petitioner being Ex-employee of Respondent No. 2/Bank had applied for two finance facilities which are Staff Housing Finance and Personal Computer Finance. The said finances were duly sanctioned and availed by the petitioner. It is stated that after the petitioner leaving the Bank respondents on 04.10.2003 filed a suit for recovery of Rs. 11,77,814/- with regard to the facilities before the learned Banking Court, Lahore which the petitioner duly contested by filing application for leave to defend, the same was dismissed and resultantly Respondent No. 1/learned Banking Court passed a decree for a sum of Rs. 11,77,814.54 on 17.02.2005. The petitioner assailed the same by filing RFA No. 102/05 before this Court. In the said appeal decree was modified and the claim of the liquidated, damages and mark up for cushion period was deleted from the claimed amount. Thereafter Respondent No. 1 proceeded with the execution petition in which the petitioner filed an application for providing a detail of her salary, gratuity and provident fund which were lying with Respondent No. 2/Bank and consequently for its adjustment towards the decretal amount. It is stated that learned Banking Judge/Respondent No. 1 without seeking reply from Respondent No. 2 dismissed the application of the petitioner vide order dated 24.11.2006. The said order was called in question before this Court through Writ Petition No. 13083/06 which passed the following order on 07.12.2006:--

"An executing Court prefers to adopt a lawful mode of recovery that bring early result. It this can be accomplished with the consent and cooperation of the judgment debtors then such course has advantage. It is therefore, directed that the petitioner may approach the learned Banking Court with her offer to make a substantial amount of Rs.300,000/- or so within one week so as to seek the learned Banking Court's indulgence in respect of the sale of her property."

Thereafter, the petitioner had also filed a Review Petition No. 89/06 before this Court in which following corrections had been allowed:--

"This application is made to seek the correction of two figures recorded in the order dated 07.12.2006 on the statement of learned counsel for the petitioner. Learned counsel submits firstly, the appellate Court reduced the amount decreed by the learned Banking Court and secondly that the petitioner's dues in respect of provident fund and gratuity are not known to the petitioner and have to be ascertained from the record of the respondent Bank. Therefore, amounts noted in the order in the foregoing behalf require correction.

It is further stated that in the above perspective the petitioner filed an application U/S. 5(8) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 with the averments that Respondent No. 2 submitted an arbitrary and vague statement in the Court, which does not contain the actual and true record of amount of salaries, gratuity and provident fund of the petitioner which the petitioner owes towards the bank thus causing a substantial loss to the applicant hence in order to get the true picture of the matter and to ascertain the liabilities of the parties and rendering the true statement of amount of outstanding salaries, gratuity and provident fund etc. of the petitioner to produce before the Court. It is stated that the said application had been dismissed without calling for the reply from respondents in arbitrary manner as such the instant order is illegal and the same be set aside and that the respondents be directed to render detailed statement of account showing month-wise entries pertaining to the amount of gratuity, provident fund deducted from the salaries of the petitioner alongwith profit/mark up etc.

1. On the other hand this writ petition has been vehemently opposed by learned counsel for Respondent No. 2 stating that the instant petition is not maintainable in view of the Article-199 Clause-5 of the Constitution of Islamic Republic of Pakistan wherein writ petition is not maintainable against a private corporate body. Moreover, the factual position is that a decree has been passed in the year 2005 against the petitioner and she has failed to satisfy the decree and has been successfully frustrating the same by filing miscellaneous applications before Banking Court and by filing repeated writ petitions before this Court. It is stated that in Writ Petition No. 13083/06, vide order dated 07.12.2006 a direction was given to the petitioner to deposit the amount of Rs.3,00,000/-. The petitioner had not complied with the order instead she filed a review petition and thereafter also the petitioner failed to make any payment towards the satisfaction of the decree. It is further stated that the matter with regard to the gratuity and provident fund etc. are pending sub judice before the civil Court in the suit for declaration alongwith recovery of Rs. 1,00,00,000/-. In view of the same the petitioner has to establish her case before the civil Court as the same cannot be adjusted towards the satisfaction of decree before proper adjudication and determination of the same by civil Court. In view of the same the impugned order dated 23.07.2007 passed by Respondent No. 2 is a perfect order. There is no illegality or irregularity in the impugned order so as to exercise the extra ordinary constitutional jurisdiction of this Court. The writ petition is not maintainable before this Court so far as the merits are concerned and the petitioner has no case and the same be dismissed.

2. I have heard the arguments on behalf of learned counsel for the petitioner as well as learned counsel for Respondent No. 2. It is admitted fact that the decree had been passed by learned Banking Court on 17.02.2005 and thereafter the appeal filed by the petitioner had also been disposed of by High Court with modification and the execution petition of Respondent No. 2/Bank is pending before executing Court/Respondent No. 1 and that the petitioner has also filed a suit for declaration alongwith damages of Rs. 1,00,00,000/- and the relief sought for in this petition is the subject matter of the suit as such no direction can be issued by this Court. Moreover, in execution petition the adjustment sought for can only be made with the consent of the decree holder. The decree holder does not consent to the same as the civil suit of the petitioner with regard to the same is sub judice before the Civil Court therefore, the impugned order has rightly been passed by Respondent No. 1 and there is no illegality or irregularity in the order. Further, this writ petition is also not maintainable in view of Article 199 Clause-5 of Constitution of Islamic Republic of Pakistan because Respondent No. 2 being a private Bank is a private corporate body and does not fall within the domain of Federal Govt. or Provincial Govt. as such this writ petition is dismissed on both accounts, being not maintainable as well as having no merits. There is no order as to costs.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 150

Present: Kh. Muhammad Sharif, C.J.

KASHIF MERAJ--Petitioner

versus

JUDGE FAMILY COURT, FEROZEWALA, DISTT. SHEIKHUPURA and another--Respondents

T.A. No. 185-C of 2010, decided on 18.5.2010.

Punjab Family Courts Act, 1964 (XXX of 1964)--

----S. 25-A--Transfer application--Convenience of the lady--Suit must be heard where lady was residing--Petitioner was a woman and there were so many judgments that convenience of ladies should been seen first and moreover was hardly at a distance of 15 k.ms from Awan-e-Addal Lahore--No case for transfer was made out--Petition was dismissed. [P. 151] A & B

Raja Muhammad Munir, Advocate for Petitioner.

Mr. Liaquat Ali Cheema, Advocate for Respondent.

Ch. Muhammad Hanif Khatana, Addl: Advocate General Punjab on Court's call.

Date of hearing: 18.5.2010.

Order

In continuation of my order dated 18.5.2010, learned counsel for the petitioner adds that he has placed on record a certificate of Secretary Union Council concerned; that Respondent No. 2 is residing with her parents at Lahore; that in order to cause inconvenience to the petitioner she has filed suit for recovery of dowry at Tehsil Ferozewala, District Sheikhupura and according to Muslim Family Law the suit must be heard and decided at Lahore where the respondent is residing.

1. On the other hand, learned counsel for the respondent submits that convenience of the lady is to be seen; that petitioner after giving physical torture to the respondent turned out her from his house, thereafter, she lives in the house of her parents where petitioner gives her threats of dire consequences and in order to earn her livelihood she shifted her residence at Muridkey and filed suit at Tehsil Ferozewala.

2. Learned Addl: Advocate General after getting instructions from SI present in Court submits that he has gone to the house of Respondent No. 2 but she was not available and he was informed by the inmates of the house that respondent in order earn her livelihood is residing at Muridkey.

3. Heard. Petitioner is a woman and there are so many judgments that convenience of ladies should been seen first and moreover, Tehsil Ferozewala is hardly at a distance of 15 K.Ms from "Awan-e-Addal", Lahore. Report of SI present in Court also shows that respondent in order to earn her livelihood lives in Muridkay, District Sheikhupura.

4. In this view of the matter no case for transfer is made out; therefore, this petition is dismissed and the suit filed by the respondent shall be heard and decided at Tehsil Ferozwala.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 152

Present: Tariq Javaid, J.

Mir FARRUKH DAUD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 3 others--Respondents

W.P. Nos. 2104, 2105 and 1160 of 2005, heard 13.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Revisional jurisdiction--Plaint could not be rejected for determination of the issue--Question of--Whether decree can be executed or not should have been left for trial Court to decide--Determination of remaining issue by trial Court was imperative--Order passed by revisional court was self contradictory and was sustainable in law--Issue with regard to relief had also been framed, therefore, it was trial Court to decide the relief which could be granted to the petitioner--Order accordingly. [P. 154] A

Mr. Pervez Inayat Malik, Advocate for Petitioner (in W.P. Nos. 2104, 2105 of 2005 and Respondent in W.P. No. 1160 of 2005).

Nemo for Respondents (in W.P. No. 2104, 2105 of 2005 and Petitioner in W.P. No. 1160 of 2005).

Date of hearing: 13.10.2010.

Judgment

This judgment shall dispose of Writ Petition No. 2104 of 2005; Writ Petition No. 2105 of 2005 and Writ Petition No. 1160 of 2005, as common question of law and facts are involved.

1. These writ petitions were instituted against consolidated order dated 20.11.2004 passed by the learned Addl. District Judge, Gujranwala in revisional jurisdiction, whereby plaint of the petitioner was rejected/returned with regard to remaining issues except Issue No. 2.

2. Brief history of the case is that suit for specific performance of contract and for possession was filed by writ petitioner in Writ Petition No. 2104 of 2005 and Writ Petition No. 2105 of 2005. According to the averments as contained in the plaint Respondent No. 3 entered into contract for sale of the house in consideration of Rs. 13,00,000/- out of which Rs. 6,00,000/- were received by him as earnest money. Subsequently, Respondent No. 3 denied the execution of sale deed and the suit for specific performance of contract was filed. Averments of the petitioner/plaintiff were controverted by Respondent No. 3 and subsequently Respondent No. 4 filed an application under Order 1 Rule 10 CPC for being impleaded as party and also resisted the suit as it was maintained that suit land was joint property and the Respondent No. 3 had no authority to sell the same on behalf of Respondent No. 4 and hence the suit cannot be decreed against Respondent No. 4. Out of the pleadings of the parties following issues were framed:--

(1) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD

(2) Whether the defendant executed the agreement dated 25.10.1994 and had received Rs. 600,000/- as earnest money out of the total consideration of Rs. 13,00,000/-?OPP

(3) Whether the suit of the plaintiff is not maintainable in its present form ?OPD

(4) Whether the defendant extended the last date for registration of the sale deed to 05.01.1996 ?OPP

(5) Whether the plaintiff is entitled for the decree of specific performance of contract dated 25.10.1994, if so, on what terms and conditions.? OPP

(6) Relief.

1. After framing of issues the respondents filed an application under Order VII Rule 11 CPC for rejection of the plaint. The learned trial Court rejected the application vide order dated 26.3.2004 and directed the respondents to produce evidence. Respondents No. 3 & 4 separately filed revision against rejection of their application before Revisional Court. After hearing both the parties Revisional Court came to the conclusion that specific performance of contract could not be granted, hence the suit of the plaintiff was rejected with regard to Issues No. 1, 3 to 6. However, case was remanded to the learned Trial Court to give its findings on Issue No. 2.

2. The learned counsel for the petitioner submits that order passed by the learned Revisional Court is self contradictory and hence, it is not sustainable in the eye of law. Writ petitioner in Writ Petition No. 1160 of 2005 who is Respondent No. 4 in the present writ petitions also assailed the findings of the Revisional Court and maintained that the plaint should have been rejected and case did not merit to be remanded for determination of Issue No. 2.

3. Record reveals that P.C. Card was issued to the learned counsel for the respondent on 15.09.2010 and the case was fixed for today. However, none has entered appearance on behalf of the Respondents No. 3 & 4 nor any request for adjournment has been made on their behalf. Case was kept pending until end of the day, hence it is being decided on the averments contained in their pleadings.

4. It is an admitted position that order passed by the revisional Court is assailed at least; to the extent of Issue No. 2. However, the petitioner's contention is that the plaint could not be rejected for determination of Issue No. 2, this application should have been dismissed and order passed by the trial Court should have been upheld, whereas Respondent No. 4 has maintained that Issue No. 2 did not require adjudication and the plaint should have been rejected in toto. Perusal of issue amply demonstrates that Issue Nos. 2 & 5 are inter-related. If the agreement for sale of the house was executed by Respondent No. 3 and that earnest money of Rs. 6,00,000/- was received by him then determination of remaining issues by the learned trial Court is imperative. However, the question whether decree can be executed or not should have been left for the learned trial Court to decide. The contention of the learned counsel for the petitioner that applications filed by the Respondents No. 3 & 4 are collusive also needs consideration of the trial Court. The averments need determination of facts, hence it appears that order passed by the Revisional Court is self contradictory and is not sustainable in law. Issue with regard to relief has also been framed; therefore, it was the learned trial Court to decide the relief which could be granted to the petitioner/plaintiff. The impugned order passed by the learned revisional Court being vague and in conclusive is set aside and order passed by the trial Court is upheld; therefore, Writ Petition No. 2104 of 2005 and Writ Petition No. 2105 of 2005 are allowed and Writ Petition No. 1160 of 2005 is dismissed.

5. Before parting with this judgment, as it is an old case, the learned trial Court is directed to proceed with the case and decide the same expeditiously, preferably within a period of four months from the receipt of this judgment.

(R.A.) Order accordingly.

PLJ 2011 Lahore 154 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

MUHAMMAD SHAFI--Petitioner

versus

DISTRICT COORDINATION OFFICER, MULTAN and 5 others--Respondents

W.P. No. 4765 of 2010, decided on 1.6.2010.

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Extension of detention period--After expiry of first 30 days, further extended the detention period--Detained as their activities were prejudicial to public safety and maintenance of public order--Ground of recommendation--Petitioners were involved in commission of theft patronizing thieves to live stock and they were involved in nefarious activities whereby people of the locality were aggrieved against them--Petitioners were involved in a number of criminal cases was per se not a valid ground for preventive detention--Validity--When a person had been prosecuted on a criminal charge the same material should not in all fairness be taken as a reasonable basis for ordering his detention--Where definite charges were brought against the detenu was undergoing prosecution therefore it would ordinarily not be open to respondent authorities to also use such charge as ground of preventive detention under Maintenance of Public Order Ordinance--Held: Mere pendency of criminal case against a person was not found a basis of preventive detention--If prosecution was able to prove a criminal charge against an accused then he may be convicted otherwise acquitted, but if he was detained prior to proving the charge it will violative the principle of criminal administration justice that no body be vexed twice for any act or omission constituting as offence on his part--When no plausible explanation or record was available for detaining the detenues, therefore, impugned orders passed by respondents whereby they were directed to be detained were set aside and declared as illegal, without any lawful justification and ineffective upon the rights of the petitioner. [P. 159] A & B

Mr. Muhammad Javaid Iqbal Adum, Advocate for Petitioner.

Mirza Saleem Baig, Additional Advocate General and Rab Nawaz, D.S.P. on behalf of the Respondents.

Date of hearing: 1.6.2010.

Order

This single order shall dispose of Writ Petition No. 4765 of 2010 filed by Muhammad Shafi, petitioner and Writ Petition No. 4764 of 2010 filed by Ijaz Ahmed, petitioner as in both these petitions common questions of law and facts are involved.

1. Brief facts in order to dispose of these petitions are that District Coordination Officer, Multan-Respondent No. 1 vide order dated 19.4.2010 while exercising powers under Section 3 of the Maintenance of Public Order Ordinance, 1960 on the recommendation of City Police Officer, Multan-Respondent No. 5 directed that both the petitioners be detained for a period of 30-days as their activities were prejudicial to public safety and maintenance of public order; that after expiry of the first 30-days, Respondent No. 1 vide order dated 17.5.2010 further extended the detention period of the petitioners from 18.5.2010 to 16.6.2010. Having aggrieved by that orders both the petitioners have approached this Court through these writ petitions.

2. This Court sought para-wise comments from the respondents. Respondent No. 1/D.C.O, Multan in reply to para-3 of the petition submitted as under:--

"The detention order for extension of further period of 30 days was withdrawn on 18.5.2010 as the power to issue these orders lies with the Secretary, Home, Punjab and a reference was made to him who vide Order No. SO(IS-1)/3-35/2010 dated 18.5.2010 extended the period of detention of the petitioner for a period of 30-days."

1. This written reply revealed that although Respondent No. 1 vide order dated 18.5.2010 has withdrawn his earlier order dated 17.5.2010 due to lack of power for further extension of detention period of the petitioners. At the same moment Respondent No. 1 vide Letter No. SO(IS-1)/3-35/2010 dated 18.5.2010 recommended to the Secretary, Government of the Punjab, Home Department, Lahore-Respondent No. 3 for extension of period of detention in respect of both the petitioners along with five others; that Respondent No. 3 on the basis of above mentioned recommendation vide order dated 18.5.2010 extended the detention period of the petitioners for further 30-days.

2. Learned counsel for the petitioners argued that initial detention order dated 19.4.2010 passed by Respondent No. 1 under the recommendations of C.P.O., Multan-Respondent No. 5, its extension vide order dated 17.5.2010 by Respondent No. 1 and then subsequent detention order dated 18.5.2010 passed by Respondent No. 3 are illegal, without lawful justification, based on false and flimsy grounds. Learned counsel argued that if the detention orders are seen it based on the recommendation of C.P.O., Multan-Respondent No. 5 wherein it is only mentioned that Muhammad Shafi S/o Ibrahim, petitioner was found involved in three criminal cases while Ejaz Ahmed S/o Haq Nawaz, petitioner is shown involved in two criminal cases; that all these cases relate to theft of the cattle/live stock; that there are allegations that both the petitioners are habitually involved in the commission of thefts and they belong to a gang to pressurize the people of the locality to pay Bhonga for the recovery of their cattle, etc. Learned counsel argued that except these allegations and the registration of FIRs which are still pending before the concerned Courts for trial there is no evidence available against both the petitioners to connect them with any of the activities which can be termed as prejudicial to the public safety or maintenance of public order; that there is no conviction whatsoever has been passed against the petitioners in any of the cases under reference; that the circumstances and the allegations levelled are not sufficient to make out a case for detention under Section 3 of the Maintenance of Public Order Ordinance, 1960. Reliance has been placed on Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi) (PLD 2005 Karachi 538), (Haq Dad Khan Vs. District Magistrate, Mianwali (1997 P.Cr.L.J 1288) and Muhammad Mushtaq Vs. District Magistrate, Sheikhupura, etc. (PLJ 1997 Lahore 214). Prayed that the impugned orders dated 19.4.2010, 17.5.2010 passed by D.C.O., Multan-Respondent No. 1 and subsequent order dated 18.5.2010 passed by Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 be set aside declaring them illegal, unwarranted and in-effective upon the rights of the petitioners and the petitioners be released forthwith.

6. On the other hand learned Law Officer has vehemently opposed these petitions on the grounds that there is sufficient material present on record as according to the report of C.P.O., Multan both the petitioners are members of a gang involved in notorious activities whereby properties/live stock owned by innocent people are being looted by them and the local administration in view of the circumstances has recommended for their detention as their activities clearly fall under the ambit of Section 3 of the Maintenance of Public Order Ordinance, 1960. Prayed that these petitions be dismissed.

1. I have heard the learned counsel for the parties and perused the record.

2. C.P.O., Multan-Respondent No. 5 in its recommendation dated 18.4.2010 observed as under:--

"It is submitted that Muhammad Shafi S/o Ibrahim caste Babbar resident of Band Bosan is a habitual cattle lifter and a miscreant. He is not only involved in the theft of cattle but also abets and patronizes criminals involved in the commission of this offence. The cases referred to below speaks volume of his criminal tendencies. It has therefore been felt that there is no other remedy but to detain him under West Pakistan Maintenance of Public Order Ordinance, 1960, so that the cattle theft and its patronization comes to a grinding halt and the business of "bhonga" gets discouraged.

Sr.No. F.I.R No Dated U/S. P.S

1 22/09 29.01.09 457/380/411 PPC Alpa

2 25/09 01.02.09 380/411 PPC Alpa

3 22/09 25.01.10 457/380/411 PPC Alpa

1. Similarly in the case of Ejaz Ahmed, petitioner Respondent No. 5 observed as under:--

"It is submitted that Ejaz Ahmed S/o Haq Nawaz Caste Dhillo r/o Mouza Dhillo is a habitual cattle lifter and a miscreant. He is not only involved in the theft of cattle but also abets and patronizes criminals involved in the commission of this offence. The cases referred to below speaks volume of his criminal tendencies. It has therefore been felt that there is no other remedy but to detain him under West Pakistan Maintenance of Public Order Ordinance, 1960, so that the cattle theft and its patronization comes to a grinding halt and the business of "bhonga" gets discouraged.

Sr.No. F.I.R. No Dated U/S. P.S

1 53/09 22.02.09 380/411PPC Alpa

2 56/09 23.02.09 380/411PPC Alpa

1. On the basis of above mentioned recommendations District Coordination Officer, Multan-Respondent No. 1 passed the impugned order dated 19.4.2010 for detention of 30 days and 17.5.2010 for extension in detention for a further period of 30-days which according to his para-wise comments was withdrawn vide order dated 18.5.2010 but at the same time it was recommended to the Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 for passing detention order for further 30-days.

2. The only ground recommended by Respondent No. 5 prevailed with Respondent No. 1 and subsequently acted upon by Respondent No. 3 whereby the order dated 18.5.2010 passed for extension of detention period of both the petitioners based on the alleged FIRs for alleged commission of theft and receiving stolen property against the petitioners. During arguments this Court enquired from the learned Law Officer to provide any data if both the petitioners were ever convicted in any of such like cases but it was replied in negative except the registration of the aforementioned FIRs and the allegations that both the petitioners were involved in the commission of theft patronizing thieves in relation to the live stock and they were also involved in nefarious activities whereby people of the locality were aggrieved against them and it was termed these activities as prejudicial to the public safety or maintenance order. The order dated 18.5.2010 whereby the Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 has directed the extension of detention period of the petitioners also based on the same facts and recommendations initially submitted by Respondent No. 5 to Respondent No. 1 who further conveyed the same to Respondent No. 3.

3. Mere fact that the petitioners have been involved in a number of criminal cases is per se not a valid ground for preventive detention. It is settled law that when a person has been prosecuted on a criminal charge the same material should not in all fairness be taken as a reasonable basis for ordering his detention. Further, where definite charges are brought against the detenu for substantive offences as the case in hand and the detenu is undergoing prosecution therefor it would ordinarily not be open to the respondent authorities to also use such charge as ground of preventive detention under the Maintenance of Public Order Ordinance, 1960. Mere pendency of a criminal case against a person is not found a basis of preventive detention. In case if the prosecution is able to prove a criminal charge against an accused then he may be convicted otherwise acquitted, but if he is detained prior to proving the charge it will violate the principle of the criminal administration of justice that nobody be vaxed twice for any act or omission constituting as offence on his part. It appears that Respondent No. 3 mechanically accepted the recommendation of the District Coordination Officer, Multan-Respondent No. 1 without applying his own independent mind to the material placed before him.

4. It has consistently been held by this Court as well as the superior Courts of the country that until and unless there are convictions and tangible, concrete and substantial material present to warrant detention of a person concerned coupled with the fact that this material should positively be brought on record the liberty of a person cannot be curtailed. Reliance can be placed on Muhammad Mushtaq Vs. District Magistrate, Sheikhupura, etc. (PLJ 1997 Lahore 214).

5. In view of the above detail, except the above mentioned allegations levelled in the FIRs there is no evidence collected by the concerned authority whereby the detention of petitioners under Section 3(6) of West Pakistan Maintenance of Public Order Ordinance, 1960 can be said as justified. Under these circumstances, when no plausible explanation or record is available for detaining the petitioners/detenues, therefore, the impugned orders dated 19.4.2010, 17.5.2010 passed by Respondent No. 1 and order 18.5.2010 passed by Respondent No. 3 whereby they were directed to be detained are set aside and declared as illegal, without any lawful justification and ineffective upon the rights of the petitioner. Petitioners are directed to be released forthwith if no required in any other case.

(R.A.) Petition accepted.

PLJ 2011 Lahore 160 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

NAWAB DIN etc.--Petitioners

versus

PROVINCE OF PUNJAB etc.--Respondents

C.R. No. 438 of 2008, decided on 10.12.2009.

Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--

----S. 36--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Dispute with regard to allotment of Ihata--Price of Ihata was deposited--Warrants of possession was issued--Rapt was entered in Roznamcha Wakiati--Mutation was also sanctioned in favour of the plaintiffs and names of plaintiffs were incorporated in the revenue record--Appeal was dismissed by Addl. Commissioner--Revision Petition was accepted by Board of Revenue--Challenge to through declaratory suit, which was dismissed--Case was remanded for framing an additional issue--Case was again dismissed by Courts below--Jurisdiction--Validity--In view of S. 36 of Colonization of Governments Lands Act, the Civil Court had no jurisdiction in the matter and the controversy could alone be decided by Revenue Courts--Held: Dispute of Ihata falls purely within the jurisdiction of Revenue Courts--Civil suit was not maintainable--Jurisdiction of Civil Court in such like cases under Section 36 of Colonization of Government Lands Acts, is barred--Concurrent findings of fact against the petitioner which cannot be disturbed unless some mis-reading or non-reading was pointed out for which the petitioner failed--Revision was dismissed. [Pp. 163 & 164] A, B & C

2007 SCMR 236, 2007 SCMR 368, 2007 PSC 1496 & 2008 SCMR 428, ref.

Mr. Tahir Mehmood, Advocate for Petitioners.

Date of hearing: 10.12.2009.

Order

Through this civil revision filed under Section 115 of CPC petitioners have called in question orders passed by two Courts below. First order dated 16.10.2008 passed by the learned Additional District Judge, Vehari and second order dated 25.4.2008 passed by learned Civil Judge 1st Class, Vehari is impugned in this civil revision.

1. The brief facts of this civil revision are that the dispute between the petitioners Nawab Din etc and Respondent No. 3 is with regard to allotment of Ihata No. 64 measuring 18 marlas 2 Sarsahis situated in Chak No. 303/EB Tehsil Burewala District Vehari. The claim of the petitioner is that A.C./Collector, Burewala vide order dated 17.4.1996 allotted this Ihata No. 64 to petitioners who deposited the price of the Ihata in Government Exchequer, warrants of possession was issued to the plaintiffs/petitioners on 16.7.1996 and Rapt No. 641 dated 11.8.1996 was entered in Roznamcha wakiati. Mutation No. 11 dated 28.8.1996 was also sanctioned in favour of the plaintiffs and names of the plaintiffs were duly incorporated in the revenue record. Aggrieved from this allotment Fazal Din son of Paris Respondent No. 3 filed an appeal against allotment order dated 17.4.1996 before Additional Commissioner, Multan who vide order dated 27.5.1997 dismissed the same then Respondent/Defendant No. 3 according to the version of the petitioner filed revision petition bearing ROR No. 1142/1997 before the Board of Revenue, Punjab, Lahore which was accepted. Petitioners allege that the petitioners/plaintiffs assailed order dated 29.9.1999 through declaratory suit in the Court of Civil Judge Vehari; that Respondent No. 3 resisted the suit filed written statement separately controverted factual aspects and also took legal objections. Out of the divergent pleadings of the parties following issues were framed.

Issues.

1. Whether the order dated 29.9.1999 is illegal, against facts, void, hence, liable to be cancelled? OPP

2. Whether the plaintiffs are allottees in possession of the disputed Ihata? OPP.

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the civil Court lacks jurisdiction to try this suit? OPD

5. Whether the plaintiffs are estopped by their words and conduct from filing the suit? OPD

6. Whether the plaintiffs have come to the Court with unclean hands and the defendants are entitled for special costs? OPD

7. Relief.

Both the parties adduced their evidence oral as well as documentary in support of their respective contentions. The plaintiff-petitioner produced Muhammad Arif Patwari who appeared as PW-1 and produced Rappat Rozenamcha No. 641 Exh.P-1. Muhammad Younas appeared as PW-2 and deposed that suit Ihata No. 64 was allotted to the plaintiff-petitioners and they placed `Arori' therein. Allah Ditta PW-3 corroborated the statement of PW-2. Muhammad Sharif one of the plaintiffs appeared as PW-4 and deposed that Ihata in question was allotted to the plaintiffs in presence of the witnesses and also in presence of the defendant. In documentary evidence the plaintiffs-petitioners also placed have also produced cop of order dated 17.4.1996 Exh.P-2, copy of order passed by ACC, Multan Exh.P-3, copy of order of MBOR Exh.P-4, copy of Mutation No. 11 dated 28.8.1996 Exh.P-5, copy of register record of right 1997-98 Exh.P-6 and copy of Challan Form No. 32 (three copies) Exh.P-7.

1. In rebuttal the Defendant No. 3 appeared as DW-1 and deposed that he is in possession of the suit Ihata since 1947. Muhammad Azam DW-2 and Amanat Ali DW-3 corroborated the statement of DW-1. The respondents/defendants produced register record of right for the year 1997-98 as Exh.D-1, copy of order of Board of Revenue dated 29.9.1999 as Exh.D-3, copy of register record of rights 1977-98 as Exh.D-2 and reports of Field Staff of Revenue Department Exh. D-4. They relied upon the evidence produced by Defendant No. 3.

2. The learned trial Court after due appraisal of evidence the learned Civil Judge 1st Class, Vehari dismissed the suit of the petitioners/plaintiffs on 30.6.2006. The petitioner filed an appeal in the Court of learned District Judge, Vehari which was entrusted to Additional District Judge who vide order dated 21.11.2006 remanded the case to Civil Judge/trial Court after framing an additional Issue No. 6-A which reproduced below:--

"Whether the disputed Ihata is fixed for mueens and the plaintiffs are not entitled for allotment. If suit Ihata was specified for the mueens then what is its effect? OPD

1. The learned Civil Judge/trial Court Vehari or 25.4.2008 again dismissed the suit of the petitioners/plaintiffs. The petitioners again filed appeal before the learned District Judge, Vehari against order dated 25.4.2008 which was placed before Additional District Judge, Vehari on 16.10.2008 and the same was dismissed. In this civil revision petitioners called in question both the orders dated 16.10.2008 passed by Additional District Judge and dated 24.4.2008 passed by learned Civil Judge, Vehari.

2. Learned counsel for the petitioners contended that judgments and decrees passed by both the Courts below are against law and facts of the case. Both the judgments are based on surmises and conjectures. These judgments were passed without application of judicial mind and are based on mis-reading or non-reading of evidence. The petitioners are in physical possession of the Ihata No. 64 situated in Chak No. 303/EB and the houses of the petitioners are constructed and they are residing in the said Ihata. Learned counsel further contended that both the Courts below wrongly held that the Ihata in dispute was meant for mueens while the petitioners claim is not for the said Ihata as mueen. They are land owners. This Ihata meant for mueens cannot be allowed to them.

3. I have heard the learned counsel for the petitioners at length.

4. Learned Civil Judge 1st Class, Vehari in his order dated 30.6.2006 and subsequent order passed on 25.4.2008 after remand of the case from Additional District Judge, Vehari has discussed at length the facts of this case. Learned trial Court on each and every issue after appraisal of evidence reached at a right and correct conclusion specifically with regard to additional Issue No. 6-A which was framed by the learned Additional District Judge, Vehari while remanding the case to the trial Court. Learned trial Court rightly held that the Ihata in dispute between the parties was meant for mueens and could not be allotted to the petitioners. The ratio cited in case titled "Alam Sher through Legal Heirs vs. Muhammad Sharif and 2 others" (1998 SCMR 468) is very much relevant for adjudication of this case. In this case trial Court had decreed plaintiffs' two suits on the basis of possession. The defendants had filed an appeal before the learned District Judge. The learned District Judge allowed the appeal and dismissed the suits on the ground that in view of Section 36 of the Colonization of Governments Lands Act, 1912, the civil Court had no jurisdiction in the matter and the controversy could alone be decided by the revenue Courts. The petitioner had filed Regular Second Appeal No. 67 and 68 of 1981 which were dismissed by the learned Judge of Lahore High Court Multan and had confirmed the judgment of the lower appellate Court. Against order passed by Lahore High Court Multan Bench this CPLA was filed in which leave was refused on the ground of lack of jurisdiction which reads as under:- Section 36 of Colonization of Govt. Lands Act, 1912 is reproduced hereunder:--

"Jurisdiction of Civil Court barred as regards matter arising under the Act.--A civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the (Provincial Government) (Board of Revenue) or Collector or any other Revenue Officer exercise any power vested in it or in him by or under this Act."

1. In the instant case also the dispute of Ihata falls purely within the jurisdiction of revenue Courts. In the ratio settled in the judgment supra the suit could not be filed. The civil suit was not maintainable. The jurisdiction of the civil Court in such like cases under Section 36 of the Colonization of Governments Lands Act is barred.

2. There are concurrent findings of fact against the petitioner which cannot be disturbed unless some mis-reading or non-reading is pointed out, for which the petitioner failed. I am fortified from the Judgments of the Hon'ble Supreme Court in the case of "Aurangzeb vs. Muhammad Jaffar" (2007 SCMR 236) (a), "Shafi Muhammad vs. Khanzada Gul" (2007 SCMR 368) (a), "Muhammad Khaqan v. Trustees of the Port of Karachi" (2007 PSC 1496) (a), (2008 SCMR 428 (a). This civil revision having no force is dismissed in limine.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 164

Present: Saif-ur-Rehman, J.

MUSHTAQ AHMAD--Petitioner

versus

GHULAM RASOOL and another--Respondents

C.R. No. 1807 of 2007, decided on 20.4.2009.

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

----S. 115 & O. XVI, R-1(3)--O.XVII, R. 2--Civil revision--Powers of Court to issue summons on an application--Right to produce evidence was closed--Witnesses who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave--Third witness was not present was not sufficient to grant adjournment and if at all adjournment was being granted by trial Court--Case was adjourned by shifting the total burden on the shoulders of Petitioner to produce evidence on his own responsibility--Validity--Once discretion had been exercised by trial Court waiving of the restriction placed not to issue the summons if the needful was not done in accordance with law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with the provision in O. V, R, 8, CPC--Petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious--Cases were remanded. [Pp. 168 & 169] A & C

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

----O. XVI, R. 1(3)--List of witnesses furnished by the petitioner within prescribed time--Interest of justice--Since Court itself had waived of the conditions prescribed under O. 16, Rule 1(3), CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by trial Court to get the summons served on the summoned witnesses. [P. 169] B

PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lah. 183, PLD 1994 Lah. 37 & 1998 CLC 610, rel.

Sh. Naveed Sheharyar, Advocate for Petitioner.

Qazi Khurshid Alam, Advocate for Respondents.

Date of hearing: 20.4.2009.

Order

Since same questions of law and fact are involved in Civil Revisions No. 1807, 1867 and 1868 of 2007, hence, the same are being decided through this single order.

1. Three pre-emption suits Bearing Nos. 13, 14 & 15 of 2007 were filed by the petitioner, which were resisted by the respondents. Issues were framed and cases were adjourned repeatedly for evidence of the petitioner. He examined two witnesses in each case. However, on 17.12.2006 evidence of the petitioner was not present, therefore, his right to produce evidence was closed under Order XVII Rule 2 CPC and his suits were dismissed.

2. Learned counsel for the petitioner submitted that since on the date preceding the date on which impugned orders were passed, the cases were adjourned on the request of the respondents, therefore, this penal provision could not be applied. It was next contended that two witnesses of the petitioner were present on the previous date. Affidavit of the learned counsel for the petitioner to this effect had been filed which stood unrebutted on record. Third witness was got summoned by the petitioner about whom report was received that he was not available. It, therefore, was duty of the learned trial Court to coerce appearance of that witness. Evidence, therefore, could not be closed for this reason as well. Reliance was placed on the authorities reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610.

3. Conversely, learned counsel for the respondents submitted that issues in these suits were framed on 20-03-2001. From the very beginning petitioner had been using delaying tactics. Through repeated adjournments he was allowed opportunities for five years but he failed to produce evidence. The address of the witness sought to be summoned through Court had been differently given in the list of witnesses by repeating name of same witness twice. When it had been directed by the learned trial Court that the petitioners would produce his witnesses on his own responsibility, it was his obligation to get service affected and to produce them in the Court but he did not deposit the process fee in time violating the provisions laid down in Order XVII Rule 1(3) CPC and the petitioner had not paid the costs as well which were imposed upon him from time to time. His evidence, therefore, was rightly closed by the learned trial Court. Reliance was placed on the authorities reported as 1994 CLC 1007, AIR 1927 Lahore 281, 2001 MLD 1603 and 2003 CLJ 80.

4. I have considered the respective contentions of the parties in the light of relevant law.

5. A look through the record indicates that on 24-05-2003 witnesses of the petitioner, including Sajjad Ahmad, who was got summoned through the Court, were present in the Court, who could not be recorded because Presiding Officer was on leave. On the next date i.e. 23-07-2003, marginal note on the order sheet indicates that witness was again served, however, without mentioning the fact as to whether witnesses were present or not, the case was adjourned by the learned trial Court on the request without specifying as to who had made request for adjournment. On 01-12-2003 the marginal note again indicates that summoned witnesses had been served. The case was again mechanically adjourned as was done on the previous date. Same was the position on 10-04-2004 when further proceedings could not be conducted because the learned Judge had gone to Central Jail, Mianwali. On 10.06.2004 examination-in-chief of two witnesses were recorded, however, the case was adjourned on the request of learned counsel for the respondents who was busy in some function of the bar. It shall not be out of place to mention here that in the margin there are signatures of three persons who presumably were the witnesses. Later on, however, the evidence could not be produced on a few dates. Ultimately on 17.10.2008 following order was passed by the learned trial Court:--

"Present:-- Counsel for the parties.

Order:

Alamgir and Mushtaq Ahmad PWs are present but the other witness of notice of Talab-e-Ishhad is not present, who is being summoned through process of the Court. Learned counsel for the defendant has objected to recording of partial evidence as it would disclose the cross-examination. He prays that the evidence of the plaintiff be closed because the said witness is not present. The second witness of Talab-e-Ishhad is being summoned through process of Court and the plaintiff has deposited process fee. In the name of this witness summon has not been returned back. As the witness is being summoned through process of the Court so to this extent evidence of the plaintiff cannot be closed whereas the remaining witnesses are present. In these circumstances, in the interest of justice, absolutely last opportunity is granted to the plaintiff. It is clarified that the plaintiff would get service of the summoned witness. Now to come up for evidence of the plaintiff on 07.12.2006.

1. Though it was recorded in the orders that summons had not been received back in the learned trial Court yet from the certified copies of the documents annexed with the civil revisions it appears that notices had been returned and the process server had failed to locate the witness.

2. It may further be added that simply the ground that third witness was not present, was not sufficient to grant adjournment and if at all adjournment was being granted by the learned trial Court, the two witnesses namely Alamgir and Sajjad Hussain must have been bound down to appear on the next date. This was not done by the learned trial Court and the case was adjourned by shifting the total burden on the shoulders of petitioner to produce evidence on his own responsibility. For the aforesaid lapse of the learned trial Court adjournment dated 17.10.2006 is treated to be an adjournment on the request of respondents, hence, in the light of case law reported in PLD 1980 SC 129, PLD 1990 SC 1192, PLD 1991 SC 1109, PLD 1988 Lahore 183, PLD 1994 Lahore 37 and 1998 CLC 610 penal provisions of Order XVII could not be applied to the cases in hand.

3. Following part of the findings of the learned trial Court made in the impugned order are also worth consideration:

".....If a PW is to be summoned through process of the Court under Order XVI Rule 8 CPC it was imperative for the plaintiff to apply for issuance of summons not later than 14 days prior to the date fixed in the suit as envisaged in proviso to Order XVI Rule 1(3) CPC. The plaintiff applied for summons of this witness on 30-11-2006 whereas the date fixed in the suit was 07-12-2006 meaning thereby the plaintiff has no interest to pursue his case......"

1. It shall be appropriate to have a look through Order XVI Rule 1 CPC, which reads as under:--

"1. Summons to attend to give evidence or producer document.

(1) Not later than seven days after the settlement of issues, the parties shall present in Court a (certificate of readiness to produce evidence, along with a) list of witnesses whom they propose to call (or produce) either to give evidence or to produce documents.

(2) A party shall not be permitted to call (or produce) witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.

(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for person whose attendance is required in Court:

Provided that no summons shall be issued for service on a person under Rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited."

Rule 8 of the said Order reads as under:

"8. Service of summons by Court:--

Every summons under this Order, not being a summons made over to a party for service under Rule 7A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto."

Proviso to Order XVI Rule 1(3) CPC puts an embargo on the powers of Court to issue summons on an application in this behalf if not made within the period prescribed therein. However, once discretion had been exercised by the learned trial Court waiving of the restrictions placed not to issue the summons if the needful was not done in accordance with the above quoted law, then the Court was under legal obligation to examine as to whether service on summons had been affected in accordance with provisions contained in Order V Rule 8 CPC.

1. It appears that the petitioner did make effort to trace his witness and according to process server he was not available at the given address.

2. Since name of this witness was mentioned in the list of witnesses duly furnished by the petitioner within prescribed time and since Court itself had waived of the conditions prescribed under Order XVI Rule 1(3) CPC, therefore, in the interest of justice, one more opportunity should have been allowed to the petitioner by the learned trial Court to get the summons served on the summoned witnesses.

3. Why was it necessary is because of the fact that the record indicates that the petitioner had been producing his witnesses on different dates and the summoned witnesses had also been appearing/service had been repeatedly affected in person, therefore, conduct of the petitioner was not contumacious. For the delay caused the respondents could be compensated by awarding costs.

4. For the foregoing reasons, these revisions are accepted and the impugned judgments and decrees are set aside. All the three suits are remanded to the learned trial Court with direction to allow 2 or 3 opportunities to the petitioner to produce evidence subject to payment of costs of Rs. 5000/- in each suit. No order as to costs.

(R.A.) Case remanded.

PLJ 2011 Lahore 169 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

GHULAM JANAT etc.--Petitioners

versus

Mst. SIANI MAI etc.--Respondents

W.P. No. 9326 of 2009, decided on 22.12.2009.

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

----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Application for recalling the order--Statement for withdrawal of suit to extent of respondent--During pendency of instant suit, application for re-calling of the order was filed after three days--After recording of the statement of plaintiff for withdrawal of the suit was dismissed--Word `final' is used for a judgment and decree or order--Validity--Application u/S. 12(2) of CPC can be passed against the final judgment and decree or order, as such, the order was not final order passed by trial Court which could not be assailed u/S. 12(2) of CPC. [P. 171] A

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), S. 12(2)--Constitutional petition--Jurisdictional defect in orders which were assailed in writ petition--Suit was dismissed as withdrawn due to compromise--Application u/S. 12(2) of CPC was filed for recalling of order--Question of--Application for recalling the order could not be filed u/S. 12(2), CPC as the suit was not yet finally decided--Held: Lower Appellate Court dismissed the revision of the petitioner against recalling of order assailed in civil revision--There were concurrent findings of facts which cannot be disturbed in writ jurisdiction unless there was some jurisdictional defect in the orders which were assailed in the writ petition--Petition was dismissed. [P. 171] B

Mian Anwar Mobeen Ansari, Advocate for Petitioners.

Date of hearing: 22.12.2009.

Order

Learned counsel for the petitioner submits that on 22.7.2008 the Plaintiff No. 1 Mst. Siani Mai respondent in the present writ petition got recorded her statement and also marked her thumb impression on the file. She recorded her statement to her extent. The compromise is effected to her extent. She withdraws her from the prosecution to her extent. She alongwith others had filed a suit for declaration. Later on the miscellaneous application was filed before the learned trial Court to recall order dated 22.7.2008. Learned trial Court vide order dated 23.4.2009 accepted this application and civil revision was filed against this order for recalling the order dated 22.7.2008 before learned District Judge which was dismissed vide order dated 12.8.2009 by learned Additional District Judge, D.G.Khan.

1. Learned counsel submits that the respondent Mst. Siani Mai should have filed application under Section 12(2) of CPC. The sanctity is attached to the proceedings of the Court. The learned trial Court committed illegality in recalling its order dated 22.7.2008. As fraud was alleged no issue was framed on the application and no evidence was recorded. The learned trial Court committed illegality in recalling its order dated 22.7.2008. The learned counsel has made reliance on "Shaukat Rehman vs. Tamour Ahmad Khan" (2004 CLC 281).

2. Heard.

3. The case cited by the learned counsel for the petitioner is distinguishable from the instant case. In the cited case in the light of statement of the plaintiff the suit was dismissed as withdrawn due to compromise on 19.2.1997. On 3.3.1997 an application under Section 12(2) CPC was filed for setting aside the order dated 19.2.1997. In the case in hand suit was not dismissed finally. It was still pending for final adjudication. Statement for withdrawal of suit to the extent of Mst. Siani Mai was recorded on 22.7.2008 and the case was adjourned to 11.9.2008. The case was heard on different dates. During the pendency of this suit application for recalling of the order dated 22.7.2008 was filed just after three days Mst. Siani Mai rightly filed an application of recalling the order dated 22.7.2008 as suit was still pending before the learned trial Court while case cited by the learned counsel for the petitioner after recording of the statement of the plaintiff for withdrawal of the suit was dismissed finally. Section 12(2) of CPC reads as under:--

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

The word `final' is used for a judgment and decree or order. The application under Section 12(2) of CPC can be passed against the final judgment and decree or order, as such, the order dated 22.7.2008 was not final order passed by the earned trial Court which could not be assailed under Section 12(2) of CPC. After 22.7.2008 the suit continued to proceed and on 23.4.2009 the suit was finally decided. Mst. Siani Mai had no option except to file an application for recalling the order dated 22.7.2008. To me she rightly filed the application for recalling the order dated 22.7.2008. She could not file application under Section 12(2) of CPC as the suit was not yet finally decided or order dated 22.7.2008 passed on the statement of Mst. Siani Mai, was not final order in the suit so the contention of the learned counsel for the petitioner that only remedy for setting aside order dated 22.7.2008 was through application under Section 12(2) of CPC, this contention of the learned counsel for the petitioner with utmost humility is not tenable. The instant case presented by the learned counsel does not advance his case.

1. Both the Courts below did not accept the arguments of the learned counsel for the petitioners. Learned trial Court rightly recalled its order dated 22.7.2008 and the learned lower appellate Court dismissed the revision of the petitioners against the recalling of order dated 22.7.2008 assailed in the civil revision. There are concurrent findings of facts which cannot be disturbed in writ jurisdiction unless there is some jurisdictional defect in the orders which are assailed in the writ petition. The learned Additional District Judge in detail has narrated the situation relating to Mst. Siani Mai who is stated to be an old lady is stated to be hard of hearing not able to record her statement. Learned Additional District Judge observed that the learned trial Court rightly recalled its own order dated 22.7.2008, hence this revision petition. There is no error in the orders passed by learned trial Court as well as by the learned lower appellate Court. The civil revision is dismissed in limine.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 172

Present: Ijaz Ahmad Chaudhry, J.

MUHAMMAD MANSHA SANDHU--Petitioner

versus

FAROOQ YOUSAF GHURKI and 8 others--Respondents

Election Petition No. 11 of 2008, decided on 24.3.2010.

Representation of the Peoples Act, 1976 (LXXXV of 1976)--

----Ss. 55(3) & 63--Civil Procedure Code, (V of 1908) O. XVI, R. 1--Election petition--Non-fulfillment of mandatory provisions of law is sufficient to dismiss election petition--During pendency of the main election petition, petitioner filed u/O. XVI, R. 1 of CPC read with all enabling provisions of Representation of the People Act, seeking permission to file the list of witnesses--Objection was raised--Election petition was not maintainable in view of non-compliance of the petitioner with mandatory provisions of S. 55(3) of Representation of People Act was dismissed--Validity--Although the preliminary objection raised for the petitioner for dismissal of election petition for non-compliance of the provisions of S. 55(3) of the Representation of Peoples Act, was turned down, but at that juncture it was not taken into consideration that the list of witnesses of their affidavits were not appended with election petition--Election petition was dismissed. [Pp. 173 & 174] A & C

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

----O. XVI, R. 1--Repreentation of the Peoples Act, 1976, Ss. 55(3) & 63--Election petition--Sought permission to file the list of witness and affidavit--Petitioner had failed to append the list of witnesses alongwith their affidavits duly attested by oath commissioner alongwith election petition, which was requirement of S. 55(3) of Representation of Peoples Act--Held: Context of election laws the non-submission of list of witnesses and their affidavits and verification of annexures was not merely a formality, which could be cured later on by allowing amendment--Section 63 of Act, 1963 leaves no option to tribunal to allow any such amendment and its absence entails in dismissal of election petition--Election petition was dismissed. [Pp. 173 & 176] B & D

2007 SCMR 34 & PLD 2007 SC 362, ref.

Mr. Ahmad Waheed Khan, Advocate for Petitioner.

Mr. Javed Iqbal Raja, Advocate for Respondent No. 1.

Date of hearing: 12.3.2010.

Order

During the pendency of the main election petition, the petitioner filed C.M. No. 1 under Order XVI Rule 1 read with all enabling provisions of the Representation of Peoples Act, seeking permission to file the list of witnesses and their affidavits whereas Respondent No. 1 filed CM No. 2 of 2010 under Section 63 of the Representation of Peoples Act, 1976 read with Order VII Rule 11 CPC for rejection of the main election petition. Both the parties have filed replies to the applications filed against each other.

1. I have heard the learned counsel for the parties and perused the documents attached with the main petition as well as the relevant law on the subject. The petitioner and Respondent No. 1 had contested the elections of PP 159-Lahore-XXIII along with others and Respondent No. 1 was declared the returned candidate. The petitioner being aggrieved of result of the elections filed this election petition on various grounds including malpractices. On the other hand Respondent No. 1 contested the same by filing written reply and keeping in view the controversial pleadings of the parties, six issues were framed on 22.5.2009.

2. Then During the pendency thereof, the election petitioner filed CM No. 1 of 2009 and learned counsel for the petitioner made the submission that "\\if a conclusive decision is passed in this C.M., the petitioner would not insist upon other points raised in his election petition." Then on 10.7.2009 the preliminary objection raised by learned counsel for Respondent No. 1 that the election petition was not maintainable in view of non-compliance of the petitioner with the mandatory provisions of Section 55(3) of the Representation of Peoples Act, 1976 was dismissed. Later on CM No. 1 of 2009 filed by the petitioner for recounting of votes has also been dismissed as not pressed by this Court vide orders dated 29.01.2010.

3. It is an admitted position that the petitioner had failed to append the list of witnesses along with their affidavits duly attested by the Oath Commissioner along with the election petition, which was requirement of Section 55(3) of the Representation of Peoples Act, 1976. No doubt paragraph (6) of Notification No. F.1(7)85-Cord, which is reproduced as under:

"(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the tribunal."

empowers this Tribunal to summon and examine any witnesses, who is found to be necessary, but in the present case the petitioner has failed to show any plausible reason for omission to furnish the list of witnesses along with their gist of evidence to give notice thereof to the opposite party for preparing their defence. Although earlier the preliminary objection raised by learned counsel for the petitioner for dismissal of the election petition for non-compliance of the provisions of Section 55(3) of the Representation of Peoples Act, 1976 was turned down, but at that juncture it was not taken into consideration that the list of witnesses or their affidavits were not appended with the election petition. The relevant portion of the order dated 10.7.2009 is reproduced as under:--

"3. \\Para 6 of the election petition clearly points out that counting of Union Council No. 63 which according to the allegation of the learned counsel for the petitioner was incorrect. He has already taken stand that he would only press this issue whether counting of polling station in Union Council No. 63 was conducted in accordance with law or not? He categorically mentioned in this regard a part of Court order dated 5.6.2009 and contents of C.M. No. 1/2009.

1. I have considered the above contentions following which I do not find any force in the objection of the learned counsel for the respondent/applicant, particularly in view of contents of the petition. Consequently, the objection of Respondent No. 1 on the maintainability of this election petition is dismissed.

2. The learned counsel for the parties shall address the Tribunal on C.M. No. 1/2009 on 24.7.2009."

The said order cannot be considered a bar for reconsideration of the preliminary objection as C.M. No. 1/2009 filed by the petitioner has already been dismissed as withdrawn for the reasons best known to the petitioner.

1. In Ch. Muhammad Ashraf vs. Rana Tariq Javed and others (2007 SCMR 34) the election petition was dismissed taking into consideration the technical defects by the Election Tribunal and the August Supreme Court of Pakistan maintained the same. The relevant portion is reproduced as under:--

"The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such refusal of the Election Tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmad Bhandbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570 and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil ur Rehman and others 2000 SCMR 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 (supra) that an election petition not having been filed in compliance with the provisions of Section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under section 63 of the Act as the requirement of both the sections were held by this Court as mandatory."

Similarly in the case titled Malik Omar Aslam. Vs. Sumaira Malik and another (PLD 2007 SC 362) an application was filed by election petitioner to place on record certain documents which could not be appended with the election petition. The August Supreme Court of Pakistan held that these are mandatory provisions of the Act, 1976 where the non-compliance of provisions of law is penalty. In the said case the returned candidate also filed Civil Misc. No. 1 of 2003, praying therein for dismissal of election petition for want of compliance of Section 55(3) of the Act, 1976 on stated allegations that annexures appended with the election petition had not been attested in the manner prescribed in the Civil Procedure Code for the verification of the pleadings. The Supreme Court of Pakistan has concluded that, Court of law may pass judgment declaring that the non fulfillment of mandatory provisions of law is sufficient to dismiss the Election Petition. The relevant portion is re-produced here as under:--

"The Section 63 of the Act, 1976 and Section 67 of the Act, 1964 are corresponding to each other namely empowering the Tribunal to dismiss the petition for non compliance of the provisions of Sections 58 and 59 of the Act, 1964 as well. Learned counsel for appellant is right in pointing out that Sections 62 and 63 of the Act, 1976 are independent of each other. So far as grant of amendment in the petition or verification clause is concerned, it depends upon the nature of amendment sought in the pleadings, on case to case basis. In the case in hand, the appellant knowing well the mandatory provision of Section 55(3) of the Act, 1976 did not apply for amendment within the prescribed period of limitation for filing of Election Petition. Undoubtedly, if during period of limitation for filing of petition such an amendment is sought, the Court may consider the request according to the settled principle relating to amendment in the pleadings but once limitation period has already expired, then it is the duty of the Court to examine whether a right, which has been created on account of bar of limitation in favour of opposite side can be snatched by allowing amendment in the pleadings, enabling the plaintiff (petitioner) to put up a better/perfect case against defendant (respondent). In this behalf the consistent practice of the Courts is that amendment in such matters, where limitation creates a hurdle, is not to be allowed on condoning the delay, particularly where no request has been to enlarge the period of limitation. For the above proposition we are fortified by the judgments in the cases of Bhagwanji. Vs. Alembic Chemical Works (AIR 1948 PC 100) and Saeed Sehgal. Vs. Khurshid Hasan (PLD 1964 SC 598)."

The application for amendment in the pleadings filed by the election petitioner was dismissed with the following observations:--

"Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i.e. 45 days as provided in Section 52(2) of the Act, 1976 for filing of Election Petition. In addition to it, a right in favour of the respondent has been created, as such we are not persuaded to subscribe the view point of the learned counsel for the appellant."

1. I am of the view that in the context of election laws the non-submission of list of witnesses and their affidavits and verification of annexures was not merely a formality, which could be cured later on by allowing amendment. Section 63 of the Act leaves no option to the Tribunal to allow any such amendment and its absence entails in dismissal of the election petition.

2. For the foregoing discussion, I have no hesitation in holding that the preliminary objection taken by Respondent No. 1 has prevailed and it is a case of sheer non-compliance of an imperative provisions pointed out above and its consequence evidently was nothing but dismissal of the main election petition. Hence, C.M. No. 1 of 2010 filed by the Election Petitioner is dismissed whereas C.M. No. 2 of 2010 filed by Respondent No. 1 stands accepted and the main election petition is dismissed accordingly.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 177

Present: Sh. Ahmad Farooq, J.

Mst. KANEEZ AKHTAR--Petitioner

versus

STATION HOUSE OFFICER, P.S. URBAN AREA, SARGODHA and 2 others--Respondents

W.P. No. 12726 of 2003, heard on 19.3.2010.

Constitution of Pakistan, 1973--

----Art. 199--Offence of Zina (Enforcement of Hadood) Ordinance, 1979, Ss. 10 & 16--Pakistan Penal Code, (XLV of 1860)--S. 498--Constitutional petition--Quashing of FIR--Allegations of commission of zina and commission of offence u/S. 498, PPC--Preparation of forged and fake divorce-deed--Question of--Validity of marriage during subsistence of an existing marriage and continuous cohabitation for period of about seven years--Held: Investigating officer had found the accused, prima facie guilty of the commission of the offence--Ordinary course of trial before competent Court would not be allowed to be deflected by resorting to constitutional jurisdiction--High Court had no jurisdiction to give a finding on the disputed question of fact in exercise of its Constitutional jurisdiction--Further held: FIR and proceedings cannot be declared to be without jurisdiction or abuse of process of law--Petition was dismissed. [P. 180] A & B

2008 SCMR 76 & 1192, rel.

Syed Sabahat Hussain Hamdani, Advocate for Appellant.

Mr. Shakeel-ur-Rehman Khan, Addl. A.G. for Respondents.

Date of hearing: 19.3.2010.

Judgment

Through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed that the proceedings qua the FIR No. 301/2003, 8.9.2003, registered in Police Station Urban Area, District Sargodha, under Sections 10 & 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Section 498 PPC, be quashed and the registration of the case against the petitioner be declared without lawful authority and of no legal effect. The petitioner also prayed for passing of a direction to Respondent No. 1 not to arrest him during the investigation of the impugned FIR.

1. Brief facts necessary for the adjudication of the lis in hand are that the present petitioner got married according to "Sharia Muhammadi" and without registration of formal "Nikhanama" to one Abdul Qadir about eight years ago, who was the brother of her step-father. Out of the said wedlock, no issue was born, however, the spouses adopted a child, namely, Muhammad Usman. The petitioner contended that the said Abdul Qadir verbally pronounced "Talaq" thrice in March, 2007, and thereafter, expelled her from his house. Allegedly, the mother and the step-father of the petitioner pressurized the petitioner to join Respondent No. 2 despite being divorced orally. The petitioner married one Kamran Ahmad son of Muhammad Sultan on 8.8.2003 vide "Nikhanama", which was registered in Union Council No. 144/5, Jamia Masjid, Sargodha. The petitioner maintained that her former husband, namely, Abdul Qadir/Respondent No. 2, in connivance with Respondent No. 1 got a case registered against her and Kamran Ahmad vide FIR No. 301/2003, dated 8.9.2003, in Police Station Urban Area, District Sargodha, under Sections 10 & 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Section 498 PPC, with ulterior motive. The petitioner claimed that she being major, sui-juris and divorcee got married to Kamran Ahmad and as such, cannot be alleged to have committed the offences incorporated in the FIR. However, the petitioner admitted that she had not obtained certificate regarding effectiveness of "Talaq" as her earlier "Nikah" with Abdul Qadir was oral according to "Sharia Muhammadi" and no "Nikhanama" was registered. She also admitted that "Nikha Khawan" while performing her "Nikah" with Kamran Ahmad showed her as unmarried/virgin in Column No. 5 of the "Nikhanama" with ulterior motive and in order to save his own skin. In this regard, Kamran Ahmad had submitted an application against the said "Nikha Khawan" to the learned Sessions Judge, Sargodha, on 4.9.2003, which is still pending adjudication. The petitioner claimed that the investigation of the impugned FIR. would tantamount to abuse of process of law and as such, the same deserves to be quashed. The petitioner asserted that no adequate and efficacious remedy is available to her except to invoke the Constitutional jurisdiction of this Court.

2. Learned counsel for the petitioner argued that the petitioner was a divorcee at the time of contracting her second marriage with Kamran Ahmad. He further submitted that the former husband of the petitioner, namely, Abdul Qadir, orally pronounced "Talaq" thrice in March, 2003, which became effective and as such, no certificate in this connection was required to be obtained from the concerned Union Council, particularly when the "Nikah" of the present petitioner with Abdul Qadir was not formally executed/registered. He argued that the present petitioner is living with Kamran Ahmad as his legally wedded wife in pursuance of a "Nikah", which was solemnized on 8.8.2003. He also informed this Court that out of the said wedlock, two issues have born during the last seven years. Lastly, he argued that the impugned FIR has been got registered by the former husband of the present petitioner with mala fide intentions and the investigation thereon are abuse of the process of law.

3. Conversely, the learned Additional Advocate-General argued that the petitioner was never divorced by her first husband, namely, Abdul Qadir, and as such, could not be considered as a divorcee according to the provisions of Muslim Family Laws Ordinance, 1961. He further argued that the question of contracting a second marriage by a woman without being divorced by the first husband is a question of fact, which could only be decided on the basis of evidence produced by the parties before the Investigating Officer as well as in the trial Court. Finally, he argued that this Court has got no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction.

4. Arguments heard. Record perused.

5. Admittedly, the present petitioner was married to Abdul Qadir and the question whether the present petitioner was divorced orally by the said Abdul Qadir is undoubtedly a question of fact, which requires recording of evidence. Similarly, the validity of the marriage of the present petitioner with Kamran Ahmad during the subsistence of an existing marriage and their continuous cohabitation for a period of about seven years is again a controverted question of fact, adjudication of which is only possible after production of relevant evidence and the same is in power and possession of the parties. It is worth consideration that the present petitioner/Mst. Kaneez Akhtar filed a suit for dissolution of marriage against Abdul Qadir on the basis of "Khula" on 18.7.2003 and the same was dismissed due to non-appearance of the petitioner on 22.9.2003. From the contents of the afore-mentioned suit, it has also transpired that the present petitioner admitted the birth of a son, namely, Muhammad Usman, whereas in the instant petition, she has contended that no issue was born out of her marriage with Abdul Qadir and they adopted a son, namely, Muhammad Usman. Secondly, according to Nikhanama of the present petitioner with Kamran Ahmad, dated 8.8.2003, the present petitioner has been shown as "MAIDEN". It is also alleged that the second husband of the present petitioner namely, Kamran Ahmad, also prepared a forged and fake divorce deed, dated 30.8.2003, which was submitted to the Union Council No. 144/5, Sargodha. Moreover, there are serious allegations of commission of "Zina" against the present petitioner as well as Kamran Ahmad and commission of offence under Section 498 PPC. The investigation of the FIR No. 301/2003, 8.9.2003, registered in Police Station Urban Area, District Sargodha, under Sections 10 & 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Section 498 PPC, has almost been completed and only a report under Section 173 Cr.P.C. is to be forwarded to the concerned Court. It is significant that the Investigating Officer of the aforementioned FIR has found the present petitioner as well as Kamran Ahmad, prima-facie guilty of the commission of the offences. Therefore, the ordinary course of trial before the competent Court should not be allowed to be deflected by resorting to Constitutional jurisdiction. This Court has no jurisdiction to give a finding on the disputed question of fact in the exercise of its Constitutional jurisdiction. The quashment of an FIR, wherein the petitioner and a co-accused are alleged to have committed a serious offence, would tantamount to throttling the investigation, which is not permissible in law. In arriving at this conclusion, reliance is placed on the judgments reported in 2008 SCMR 76 and 2008 SCMR 1192.

6. For what has been stated above, the FIR No. 301/2003, 8.9.2003, registered in Police Station Urban Area, District Sargodha, under Sections 10 & 16 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Section 498 PPC, against the present petitioner and co-accused Kamran Ahmad, and proceedings thereon cannot be declared to be without jurisdiction or abuse of process of law. Hence, the instant Constitutional petition, being devoid of any legal force, is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 180 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

QAMAR ABBAS and 7 others--Petitioners

versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and 2 others--Respondents

W.P. No. 1772 of 2006, decided on 10.3.2010.

Punjab Police Rules, 1934--

----Rr. 14.6 & 13.7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Promotion to rank of head constable--Minimum age for admission was fixed at 30 and 33 years--Candidates who had qualified examination were entitled to be enlisted--Inspite of availing of three chances was not to be provided further opportunity to appear in examination of promotion--Validity--Petitioners having passed the examination were entitled to be promoted to the list of the constables--Not prescribe any number of chances that can be availed by candidates for promotion--Held: Punjab Police Rules, 1934 do not prescribe any specific number of chances that a candidate could avail--In absence of such an embargo the possible interpretation is that the number of such chance is infinite till a specific circumscription in introduced by amendment in Punjab Police Rules, 1934--Petitioner cannot be denied their right of being enlisted of the constables. [P. 183] A & C

Interpretation of Law--

----While interpreting the law, the interpretation of the same that favours an individual should be preferred over one that favour law maker. [P. 183] B

M/s. Jaffar Hussain Kiani and Muhammad Bashir Khan, Advocates for Petitioners.

Mr. Rashid Hafeez, AAG for Respondents.

Date of hearing: 10.3.2010.

Order

This constitutional petition has been filed by the police constables serving in the department of Punjab Police, District Attock.

1. It is contended by learned counsel for the petitioners that a constable before earning promotion to the rank of Head Constable is to cross the barrier as imposed in Rules 13.6 and 13.7 of the Punjab Rules 1934, and thus, one has to qualify for the lists A and B-I. The petitioners had already qualified the list-A Examination and their names appeared in the list-A maintained by the department of Punjab Police, Attock. It is further contended by the learned counsel that the minimum age for admission to Lists A & B-I was fixed at 30 and 32-years respectively. The petitioners when appeared for promotion to the List-B were under the age of 33-years and thus, were eligible to appear. Before filing of this constitutional petition, the petitioner had already availed three chances for passing of the said Examination i.e. necessary for being promoted to the List-B-I of the Constables. The petitioners had unluckily remained unsuccessful. They reappeared in the Examination and were declared successful. The District Police Officer, Attock, vide his letter dated 25.2.2006, addressed to the Inspector General Police of Punjab, Lahore, sought his advice whether the petitioners could avail over and above the three chances that they had already availed of. The I.G. Punjab, Lahore, vide his letter dated 06.03.2006, opined that a constable who failed in the Examination of List B-I in spite of availing of three chances is not to be provided further opportunity to appear in the Examination of promotion. Being unsatisfied with this advice, the petitioners filed a representation before the I.G. Punjab, Lahore and prayed that they had passed List B-I Examination and, therefore, their names be entered in the List B-I. The A.I.G. (Legal) Punjab, Lahore, vide advice dated 20.03.2006 opined that if the applicants had qualified the Examination of List B-I, their names should be admitted in the List if the vacancies were available. The I.G. Punjab, Lahore, sent the above application of the petitioners along with advice of the A.I.G. (Legal) to the DPO, Attock for taking further necessary action vide letter dated 24.3.2006. The respondents instead of promoting the petitioners to List B-I, excluded their names from List A. This situation obliged the petitioners to file the instant petition. This Court vide order dated 03.06.2009 framed the following issues, which were to be addressed by the respondents:--

(i) The petitioners as constable had availed three chances for promotion to higher post. In these they could not succeed as per the exams held by the respondents.

(ii) However during this period in the context of a separate litigation relating to their department, filed by certain other officials involving some what similar facts and circumstances viz issue of promotion, the matter went before the august Supreme Court of Pakistan; it was resolved as per terms of the order passed therein.

(iii) It appears that in pursuance thereof one time concession was allowed to all constable/head-constable, with requisite experience and who had applied before 2006 for promotion, to appear in test/exam of the respondents.

(iv) This opportunity was availed by the petitioners herein. In this exam, they showed substantial progress inasmuch as they qualified in list A and B-I. However an exception was taken thereto by a D.I.G./Training who vide letter dated 06.03.2006 (Annex-L of the file) wrote a letter to D.P.O. Attock in which as per his opinion candidates who had failed to succeed in there examinations, could not allowed to appear in the examination.

(v) The matter then came before the A.I.G. (Legal). He did not agree with the aforesaid assertion of the D.I.G./Training. According to the opinion of A.I.G. aforesaid as contained in letter dated 20.03.2006 (page 39 of this file), the petitioners who had qualified the examination as afore, were to be allowed as admitted in the list for promotion.

(vi) However, according to the petitioners, this opinion of A.I.G. (Legal) is not being followed by the respondents."

1. The assistance of A.I.G. (Legal) was required and he was ordered to appear in the Court on 3.7.2009. On the adjourned date, the A.I.G. appeared in person and admitted that Punjab Police Rules, 1934 did not limit the number of attempts that could be availed of by the petitioners. However, he stated that as per the policy guidelines issued by the Inspect General of Police, Punjab, in the year 2001, the number of said attempts had been limited to 3.

2. I have considered the submissions made by the learned counsel for the parties and have also gone through the correspondence of the police officials inter se. The Police Rules, 1934, have also been perused with the assistance of the learned counsel.

3. After submission of the application by the applicants to the I.G. Police, Punjab, Lahore, he had sought advice from the A.I.G. (Legal) in respect of the number of the chances that the candidates could avail. The A.I.G. (Legal) in his response carried in letter dated 20.03.2006 had categorically opined that the candidates who had qualified examination of List B-I were entitled to be enlisted in the List B-I. In regard to the number of chances, learned counsel for the petitioners contended that the number of chances the petitioners could avail was not specified therein. In pursuance of this opinion, the I.G. Punjab Police, vide his office letter Bearing No. 184/PSO, dated 24.03.2006, had advised the District Police Officer, Attock to take further necessary action. This letter when read together with the application of the petitioners and opinion given by the A.I.G. (Legal) would mean that the petitioners having passed the examination were entitled to be promoted to the List B-I of the constables. The Punjab Police Rules 1934 do not prescribe any number of chances that can be availed by the candidates for promotion to the List B-I. It is a settled principle that while interpreting the law, the interpretation of the same that favours an individual should be preferred over one that favours lawmakers. In the instant case, the Punjab Police Rules 1934 do not prescribe any specific number of chances that a candidate could avail. In the absence of such an embargo the possible interpretation is that the number of such chances is infinite till a specific circumscription is introduced by amendment in the Rules ibid. Therefore, in the absence of any such provision, the petitioners cannot be denied their right, of being enlisted in List B-I of the constables.

4. Upshot of above discussion is that this petition is accepted. The order dated 01.06.2006, passed by the District Police Officer, Attock, excluding names of the petitioners from List A of the constables is set aside. The respondents are directed to prepare the List B-I of the constables afresh after including the names of the petitioners therein. The petition is accepted.

(R.A.) Petition accepted.

PLJ 2011 Lahore 184

Present: Ch. Muhammad Tariq, J.

GHULAM RASUL and another--Petitioners

versus

GHULAM QADIR--Respondent

C.R. No. 1267 of 1999, decided on 22.3.2010.

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

----S. 151, O. IX, R. 13 & O. XXII, R. 40--Limitation Act, 1908, S. 5--Ex-parte proceedings--No notices were served upon legal heirs of deceased about the pendency of civil revision in High Court--As soon as person dies, his power of attorney seizes with death of a party--Validity--Civil revision was filed against a sole deceased and there was no other respondent in civil revision who could inform the legal heirs of deceased about pendency of civil revision--Held: Judgment was not sustainable in the eye of law against a dead person, particularly when power of attorney executed by deceased had already expired--It was a sufficient cause to condone the delay--Ex-parte decree was set aside--Petition was accepted. [Pp. 185 & 186] A & B

Sh. Naveed Shaharyar, Advocate for Applicant-Respondent.

Ch. Riasat Ali, Advocate for Writ-Petitioners.

Date of hearing: 22.3.2010.

Order

C.M. No. 1-C/08, C.M. No. 2-C/08, C.M. No. 3-C/08, C.M. No. 4-C/08

This revision petition was decided vide judgment dated 15.4.2005 by this Court in which Ghulam Qadir respondent/plaintiff was proceeded against ex-parte. On 15.5.2008, Sh. Naveed Shaharyar, learned counsel for the respondent/plaintiff has filed four civil miscellaneous applications i.e. C.M. No. 1-C-08 for setting aside ex-parte decree, C.M. No. 2-C-08 for bringing on record the legal heirs of deceased Ghulam Qadir respondent, C.M. No. 3-C-08 for an application under section 5 of the Limitation Act for condonation of delay and C.M. No. 4-C-08 for interim injunction for the suspension of operation of the impugned judgment.

1. Learned counsel for the applicant/respondent contends that the impugned ex-parte judgment be set aside on the following grounds:-

2. That the impugned judgment was passed on 15.4.2005 while Ghulam Qadir respondent had died on 22.3.2004, therefore, a decree could not be passed against a dead person.

3. That as soon as a person dies, his power of attorney automatically ceased to exist unless a new power of attorney is issued/executed by the legal heirs of the deceased.

4. That admittedly the legal heirs of deceased Ghulam Qadir were abroad who were never served with notice by this Court.

5. That an ex-parte judgment and decree against a dead person is a void order, therefore, period of limitation does not run against a void order.

6. That Mst. Bushra and Mst. Hameedan Bibi are illiterate ladies, they were not in a position to approach the Court to obtain the result of the case.

7. That Article 144 has been deleted and no more exists.

8. That it was a case against a sole respondent therefore, the ex-parte judgment be set aside, the delay be condoned and the application be allowed to implicate the legal heirs of deceased Ghulam Qadir and may be decided afresh on merits after hearing all the parties.

9. On the other hand, the learned counsel for the defendants/petitioners has submitted their written reply and controverted the contentions of the learned counsel for the applicant with the prayer that all the applications be dismissed; that the ex-parte decree is not liable to be set aside because the learned counsel for the applicant/respondent has failed to show any reasonable cause for the condonation of delay. The learned counsel for the respondent has put more stress on the point of limitation that application to set aside ex-parte decree is badly barred by time.

10. Arguments heard. Record perused.

11. The ex-parte decree was passed on 15.4.2005 and record reveals that the respondent Ghulam Qadir was died on 22.3.2004. This fact is un-rebutted. It is further confirmed that the legal heirs of deceased respondent Ghulam Qadir were abroad and record also shows that after the death of Ghulam Qadir, no notice were served upon the legal heirs of deceased respondent to inform about the pendency of civil revision in this Court. Again there is no dispute about this fact that as soon as a person dies, his power of attorney seizes with the death of a party. The record further reveals that the civil revision was filed against a sole respondent Ghulam Qadir and there was no other respondent in the civil revision who could inform the legal heirs of deceased Ghulam Qadir about the pendency of civil revision.

12. In view of the above discussion, this Court is of the view that the judgment dated 15.4.2005 is not sustainable in the eye of law against a dead person, particularly when power of attorney executed by the deceased respondent had already expired. In such a situation, it is a sufficient cause to condone the delay, therefore, I accept these petitions and delay is condoned. The ex-parte decree is set aside and the petitioners in the main revision petition are directed to submit amended memo of parties within two weeks. Thereafter, civil revision be decided on merit.

(R.A.) Revision allowed.

PLJ 2011 Lahore 186

Present: Syed Mansoor Ali Shah, J.

NAUBAHAR ALI--Petitioner

versus

VICE-CHANCELLOR, UNIVERSITY OF THE PUNJAB QUAID-E-AZAM CAMPUS, LAHORE and another--Respondents

W.P. No. 9713 of 2007, decided on 24.2.2010.

Calendar of University of the Punjab, 2002--

----R. 8--Constitution of Pakistan, 1973, Art. 199--Termination of the civil servant without notice on account of unsatisfactory work--Petitioner was appointed as an unskilled worker on daily wages for a period of three months--Appointment was terminable on one month's notice or salary in lieu of one month's notice--Validity--It does not befit institutions to violate the very terms and conditions which had been settled by the institutions while offering appointment--To brush aside due process of law tarnishes transparency and weakens governance--Held: University has flouted its own letter of appointment without remorse, wherein it was mandatory to issue a notice before termination--Term of the petitioner had expired, he could not be allowed to resume service--Petitioner was however entitled to one's month salary in lieu of notice as provided in appointment letter which would be paid to him immediately. [P. 191] E & F

Constitution of Pakistan, 1973--

----Art. 4--An enalienable right to enjoy the protection of law and to be treated in accordance with law--Constitutional guarantee--Held: Every citizen and every person for the time being in Pakistan must enjoy the protection of law and be treated in accordance with law. [P. 189] A

PLD 1969 SC 14.

Constitution of Pakistan, 1973--

----Art. 4--Constitutional guarantee--Cardinal principle of natural justice--Right to procedural due process--Right to a fair procedure is therefore, constitutionally guaranteed and makes constitution stand out proudly in constitutions of the world--Art. 4 of the Constitution of Pakistan is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of English Jurisprudence and Procedural Due Process of American jurisprudence, Constitution of Pakistan has boldly recognized the right to be an in alienable right of every citizen or of any other person for time being in Pakistan. [P. 190] B

PLD 1969 SC 14, PLD 1999 SC 1126, 1998 SCMR 1863 & 2009 PLC (CS) 966.

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

----S. 24-A--Violation of requirement--Government functionary--Obligation to issue one month's notice or make payment of one month's salary--Termination of services--Validity--Failure to issue notice also violates the requirement of S. 24-A of General Clauses Act, 1897 which provides that Government functionary must act fairly, justly and reasonably--Element of fairness has to be there in all government actions, which is starkly missing. [P. 190] C

Constitution of Pakistan, 1973--

----Art. 4--Termination from service cannot be ordered without due process of law--Requirement of notice--Violations of--Requirement of notice backed by Art. 4 of the Constitution applies to all persons, even if the employment is contractual or governed by non-statutory rules, in either case termination cannot be ordered without due process of law. [P. 190] D

Mr. Mushtaq Ahmad Mohal, Advocate for Petitioner.

Mr. Muhammad Shahzad Shaukat, Advocate for Respondents.

Date of hearing: 24.2.2010.

Order

Brief facts of the case are that the petitioner was appointed as an unskilled worker (Farrash) on daily wages at Rs. 120/- per working day at the Library of the respondent University for a period of three months on 13.8.2001. Subsequently the petitioner was allowed to continue work and his period of employment was extended from time to time and finally on 16.8.2004 the appointment was converted into monthly salary basis in BS-1 for a period of six months w.e.f. 1.9.2004 on the following terms and conditions:--

"1. The appointment is temporary and terminable on one month's quit service notice or pay in lieu thereof from either side, as the case may be.

1. The appointee will obtain immediately a certificate from the University Chief Medical Officer to the effect that he is physically fit and free from any contagious disease.

2. During the period of his appointment he will be governed by such University Service Rules, Regulations and Statutes as are applicable to such category of employees." (emphasis supplied)

3. Thereafter the petitioner was terminated without notice vide impugned order dated 24.2.2005 on account of unsatisfactory work with immediate effect.

4. Learned counsel for the petitioner contends that the terms and conditions of appointment provided for one month's notice or pay in lieu thereof. However, the impugned order has been issued without show-cause notice to the petitioner. He further refers to Rule 8 of the Calendar of the University of the Punjab, 2002 to submit that a reasonable notice is required before the services of the employees were terminated. He further refers to series of letters wherein the performance of the petitioner has been praised by the senior officers including note dated 26.3.2005 appearing on application dated 28.2.2005. The petitioner submits that inspite of the said recommendations by the senior officers, the impugned order showing that the work of the petitioner was unsatisfactory, is based on malice and smacks of mala fide. Reliance has been placed on Muhammad Asim and others vs. Telecommunication and others (1997 PLC (C.S.) 1131) as well as Ikram Bari and 524 others vs. National Bank of Pakistan through President and another (2005 SCMR 100) to support the above contentions.

5. Counsel for the respondent University submits that the petitioner is a temporary employee and has no vested right to the post. The tenure of the petitioner was to expire on 28.2.2005 while letter of termination was issued on 24.2.2005, therefore, no notice under the contract could have been issued to him as it would have extended his tenure beyond the contract period. He further submits that the matter pertains to terms and conditions of service of the petitioner, which are contractual in nature, hence, the writ jurisdiction cannot be invoked. He placed reliance on Ijaz Hussain Suleri vs. The Registrar and another (1999 SCMR 2381) and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093). He further submits that opportunity of hearing was not required in the present case as the petitioner was an ad hoc/daily wager/temporary employee. Reliance has been placed on Amjad Ali and others vs. Board of Intermediate and Secondary Education and others (2001 SCMR 125) and Capt. Retd. Dr. Muhammad Iqbal vs. Defence Housing Authority, Lahore (2004 PLC (C.S.) 276). By referring to an unreported judgment passed in ICA No. 160/2009, it is submitted that the petitioner has not impleaded the University of the Punjab and, therefore, the instant petition is not maintainable. He also submits that the remedy of the petitioner lies before the Civil Court for damages and relied on Ijaz Hussain Suleri vs. The Registrar and another (1999 SCMR 2381) and Muhammad Afzal (through legal heirs) vs. House Building Finance Corporation, Karachi (PLD 1976 Karachi 1121). In the end the counsel conceded that at best the petitioner is entitled to one month's salary.

6. Arguments heard.

7. The petitioner was appointed by the University for a period of three months and his term was to expire on 13.8.2007 and his terms and conditions stated that his appointment was terminable on one month's notice or salary in lieu of one month's notice.

8. Article 4 of the Constitution guarantees the petitioner an inalienable right to enjoy the protection of law and to be treated in accordance with law. "Law" in Article 4 includes the cardinal principle of natural justice. Article 4 is a loud and clear constitutional guarantee and reminder that every citizen and every person for the time being in Pakistan must enjoy the protection of law and be treated in accordance with law. Hamood-ur-Rehman, J. in Begum Agha Abdul Karim Shorish Kashmiri, (PLD 1969 SC 14) while discussing Article 2 of the 1962 Constitution (same as Article 4 of the 1973 Constitution) said:

"Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts...in this sense it is as comprehensive as the American "due process" clause in a new garb."

1. An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is therefore constitutionally guaranteed in our country and makes our Constitution stand out proudly in the constitutions of the world. Article 4 of our Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English Jurisprudence and Procedural Due process of the American jurisprudence. Our Constitution has boldly recognized this right to be an in alienable right of every citizen or of any other person for the time being in Pakistan. Reliance is placed upon re. Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), re. New Jubliee Insurance Company Ltd, Karachi v. National Bank of Pakistan, (PLD 1999 SC 1126), re. Aftab Shahban Mirani v. President of Pakistan & others. (1998 SCMR 1863) and re. Government of Pakistan v. Farheen Rashid (2009 PLC (CS) 966).

2. The respondents had an obligation to issue one month's notice or make payment of one month's salary in lieu of notice under the terms and conditions of service, if they desired the termination of services of the petitioners. Failure to issue notice, also violates the requirement of Section 24-A of the General Clauses Act, 1897 which provides that Government functionary must act fairly, justly and reasonably. Therefore, the element of fairness has to be there in all Government actions, which is starkly missing in the present case. Case law relied upon by the counsel for respondent University holds that contractual employment and employment that is not regulated by statutory rules of service is not amenable to writ jurisdiction. There is no cavil with this proposition. The difference in the present case is that the requirement of notice as envisaged under the contract has not been complied with, therefore, Article 4 of the Constitution stands violated. The requirement of notice backed by Article 4 of the Constitution applies to all persons, even if the employment is contractual or governed by non-statutory rules, in either case termination cannot be ordered without due process of law.

3. The arguments of the learned counsel for the University that daily wagers do not require right of hearing seriously offends the concept of social justice provided in objectives resolutions, which is substantive part of the Constitution. Admittedly, the petitioners belong to a less privileged segment of the society with limited social and economic choices in life. Petitioners have an unequal bargaining position compared to the University. It is for their protection that the Constitution provides the concept of social & economical justice. "The expression social and economic justice involves the concept of `distributive justice' which connotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society, social justice is the comprehensive form to remove social imbalance by harmonizing the rival claims or the interest of different groups and sections in the social structure or individuals by means of which alone it would be possible to be build a Welfare state." (The Shorter Constitution of India, 13th Edition by Durga Das Basu). Reliance is placed upon re. Ikram Bari and 524 others vs. National Bank of Pakistan through President and another (2005 SCMR 100), re. Capital Development Authority through Chairman and another vs. Mrs. Shaheen Farooq and another (2007 SCMR 1328) and re. M/s. Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268).

4. It does not befit institutions to violate the very terms and conditions which have been settled by the said institutions themselves while offering appointment. To brush aside due process of law tarnishes transparency and weakens governance.

5. Reliance by the counsel for the University on unreported judgment dated 14.07.2009 is misplaced. In that case the University was not made a party in the writ petition and was impleaded at the time of the I.C.A. The said judgment has no relevance to facts of this case. The objection besides being too technical cannot be raised at this stage. Learned counsel for the University has appeared on behalf of respondents tendered his power of attorney and has been attending to this case regularly. The said objection would have carried force had the petitioner filed an application for deletion of the name of the respondents at the very beginning of the case which was not done. It is at best a case of mis-description of the respondents. In any case the petitioners cannot be non-suited on this ground. This objection is therefore overruled.

6. In this case, the University has flouted its own letter of appointment without remorse, wherein it was mandatory to issue a notice before termination. However, the same was not issued. The impugned order is, therefore, set aside. Considering that the term of the petitioner has expired on 13.8.2007, he cannot be allowed to resume service, the petitioner is however entitled to one month's salary in lieu of notice as provided in the appointment letter, which will be paid to him immediately.

(R.A.) Petition allowed.

PLJ 2011 Lahore 192 [Multan Bench Multan]

Present: Pervaiz Inayat Malik, J.

KHALID MEHMOOD--Petitioner

versus

MAC (CBR)--Respondent

W.P. No. 2013 of 2003, heard on 26.5.2009.

Constitution of Pakistan, 1973--

----Art. 199--Government Servants (E & D) Rules, 1973, R. 4(1)(b)(4)--Civil Servant Act, (LXXI of 1973)--S. 25--Constitutional petition--Civil servant was terminated--Violation of law and without lawful authority--Registration of criminal case--Departmental proceedings were initiated by issuance of charge sheet--Order of penalty passed by appellate authority was set aside--Grievance being voiced through Constitutional petition was that inspite of exoneration of the petitioner during course of inquiry and acceptance of appeal, again disciplinary proceedings were issued under some alleged direction from Revenue Division--Orders were being assailed through Constitutional petition--Could not be vexed twice--Validity--Not only cardinal principle of law rather a right guaranteed by Constitution to every citizen of Pakistan--Proceedings once having attained finality cannot be re-opened except in accordance with law and no provision exists either in Rules, 1973 or the appeal rules which authorize the departmental authorities to re-open the past and closed chapter--Held: Proceeding against the petitioner could be switched from Rules, 1973 to Special Order 2000 nor could he be vexed twice thus issuance of fresh notice orders were illegal rather ab-initio--Petition was allowed. [P. 195] A & B

2003 SCMR 1720, ref.

Sardar Muhammad Sarfraz Dogar, Advocate for Petitioner.

Kh. Noor Mustafa, D.A.G. for Pakistan for Respondents.

Date of hearing: 26.5.2009.

Judgment

The petitioner Khalid Mehmood, Senior Auditor, working in Collectorate of Customs, Sales Tax Wing, Vehari Chowk, Multan has through this Constitutional petition assailed the orders dated 22.4.2003 and notice dated 5.7.2003 issued by Respondent No. 2 that the same were passed in violation of law and without lawful authority.

1. Briefly stated facts as those emerge out of this petition are that petitioner joined the respondent department in the year 1998 as Senior Auditor. A case bearing FIR No. 37/99 was registered under Section 5(II) of the Prevention of Corruption Act 1947, read with Sections 468, 471, 109, 409, 161 CPC at Police Station FIA, Multan wherein number of persons including the petitioner were involved as accused persons. The petitioner was arrested and interrogated by FIA and after three months petitioner was released on bail allowed to him by this Court.

3. On the basis of registration of aforesaid criminal case, the departmental proceedings were also initiated against him by issuance of charge sheet dated 20.7.2000 to which he submitted a detailed reply denying the charge contained therein. The inquiry was initiated vide order dated 3.10.2000 against the petitioner and two others under the Government Servant (E&D) Rules 1973. A show-cause notice, subsequently was issued on 17.10.2001 which was replied by the petitioner explaining his position, the petitioner, however during the course of inquiry was found innocent and thus exonerated. But still vide order dated 30.6.2002, the petitioner was terminated by the Respondent No. 3 under Rule 4 (1)(b)(4) of Government Servants (E&D) Rules 1973 with retrospective effect i.e. 27.11.1999, when the petitioner was suspended, where against the petitioner filed a departmental appeal before Respondent No. 1/Appellate Authority which was allowed vide order dated 21.4.2003 and the order of the penalty dated 30.6.2002 passed by authority was set aside. Consequently, the petitioner was reinstated in service.

1. The grievance being voiced through this Constitution petition is that inspite of exoneration of the petitioner during the course of inquiry and acceptance of his appeal, again disciplinary proceedings vide order dated 7.5.2003 were issued under some alleged direction from the Revenue Division, of the Central Board of Revenue dated 22.4.2003. These two orders are being assailed through this Constitution petition.

2. This petition was admitted to regular hearing on 20.5.2003, on which date, operation of impugned orders was also suspended.

3. It is inter-alia contended by Sardar Muhammad Sarfraz Dogar, Advocate learned counsel for the petitioner that the proceedings were initiated under the provisions of Government Servants (E&D) Rules 1973 and also concluded under the same law, therefore, no proceedings under the provisions of Removal From Service (Special Powers) Ordinance, 2000 could be initiated afresh; that proceedings once initiated and concluded under the relevant old law could not be converted into the law subsequently enacted; that petitioner having once faced the charges/agony of inquiry, the matter stood concluded after his exoneration and finally by acceptance of his departmental appeal, became a past and closed chapter/transaction, therefore, no fresh proceedings on the basis of same allegations could be initiated particularly when the order of appellate authority was not assailed before higher forum and the same had attained finality by efflux of time; that the petitioner under the law could not be vexed twice. The same is also violative of Article 13 of the Constitution of Islamic Republic of Pakistan, in support of his contentions places, reliance upon Wali Muhammad Vs. General Manager Electricity WAPDA Lahore etc: (PLD 194). W.P. Peshawar 167. Ch. Munawar Hussain Bhatti Vs. Pakistan Water & Power Development Authority and four others (1983 PLD OCS) 266 and Water & Power Development Authority Vs. Muhammad Ali (1987 SCMR 261) Muhammad Nawaz Vs. District & Sessions Judge etc. (2003 SCMR 1720).

4. Conversely, learned DAG of Pakistan has vehemently opposed the submission made at bar by learned counsel for the petitioner but could not rebut the arguments of learned counsel for the petitioner with the support of some case law.

5. Arguments heard. Record perused.

6. The following issues to my mind need adjudication by this Court:--

(a) Whether the proceedings once having been initiated and concluded under some law applicable at the relevant time, could be converted info subsequently enacted law?

(b) Whether the proceedings against a Civil Servant, once concluded and having attained finality, could be re-initiated on the same charges?

(c) Whether a civil servant can be vexed twice?

(d) Whether in view peculiar facts and circumstances of the case the impugned order could be justifiably passed?

1. Adverting to the first proposition, first issue, admittedly the proceedings against the petitioner were initiated under the provisions of Government Servants (E&D) Rules, 1973. During the year 1999 and were concluded under the provisions of said rules, when the Removal From Service (Special Powers) Ordinance, 2000 was not even in existence. The same, therefore, under the law could not be switched over to RSO 2000, Section 13 whereof is reproduced for ready reference:--

"Pending proceeding to continue ... For the removal of doubt, it is hereby provided that all the proceedings pending immediately, before the commencement of this Ordinance against any person whether in Government Service or Corporation Service under the Civil Servants Act (LXXI of 1973) and rules made there under or any other law or rules, shall continue under the said laws and rules and as provided there."

1. Admittedly, the Government Servants (E&D) Rules, 1973 were framed by the President of Pakistan in exercise of powers conferred upon him by Section 25 of Civil Servants Act, 1973 (LXXI of 1973), therefore, the afore-referred provisions of Section 13, do cover cases initiated or concluded under the Rule 1973.

2. Coming to the second Issue, law on the subject is very clear it is not only the cardinal principal of law rather a right guaranteed by Constitution to every citizen of Pakistan, therefore, the proceedings once having attained finality can not be re-opened except in accordance with law and no provision exists either in the (E&D) Rules 1973 or the appeal rules which authorize to departmental authorities to re-open the past and closed chapter. Article 13 of the Constitution of Islamic Republic of Pakistan for ready reference is re-produced hereunder:--

"No Person (A) shall be prosecuted or punished for the same offence more than once."

1. Coming to the last query in view of above discussion answer to this issue is very simple which is in the negative. The proceeding against the petitioner neither could be switched from Rule, 1973 to Special Order 2000 nor could he be vexed twice thus issuance of fresh notice/impugned orders are illegal rather ab-initio void; Law cited by Sardar Muhammad Sarfraz Dogar learned counsel for the petitioner is fully attracted in view of the facts and circumstances of the case. In the cited case of Muhammad Nawaz referred to Supra (2003 SCMR 1720) their Lordship observed as follow:

"The contention appears to be correct, for Section 13 of the Ordinance is explicit on the point that disciplinary proceedings initiated prior to coming into force of the said Ordinance were to be completed under (E&D) Rules and not under this Ordinance."

1. In view of the above this petition is allowed the order impugned dated 22.4.2003 and 7.5.2003 passed by the respondent vide, which fresh proceeding have been initiated against the petitioner are hereby declared to be illegal, unlawful, arbitrary, mala fide, without lawful authority, hence of no legal effect, consequently, the same are hereby set aside. No order as to costs.

(R.A.) Petition allowed.

PLJ 2011 Lahore 196 [Multan Bench Multan]

Present: Muhammad Khalid Mehmood Khan, J.

DISTRICT BAR ASSOCIATION, VEHARI--Petitioner

versus

SECRETARIES COLONIES etc.--Respondents

W.P. No. 2985 of 2010, decided on 11.11.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Establishment of Lawyers Colony--Challenged the legality of proclamation--Land was allotted to lawyers--Price of land was assessed by District Price Assessment Committee--Issue of payment of price and execution of transfer documents was delayed due to litigation between illegal occupants, illicit lessees--Allotment was duly approved by C.M--Respondents were unable to produce any document showing that CM had every withdrawn the allotment--No authority to review the approval given by C.M. confirming the allotment of land--Validity--It was the departments who were not able to execute the final transfer deed in favour of the lawyers due to litigation--After finalization of litigation between third party, respondents were bound to issue notice of demand to the lawyers for payment of agreed price between the parties--Allottee of the land in dispute was an D.B.A. Vehari and without opportunity of hearing to the allottee the original allotment could not be amended or reviewed--Respondents had failed to produce any document showing CM had withdrawn the allotment in favour of Minister who alone had the authority to withdraw the approval had not power to amend and review the allotment of land in favour of petitioner--Land was validly allotted to the lawyer and they became legal allottee of the land--The allotted land or its price was unwarranted and against law--Secretaries colonies had no authority to penalize the lawyers for their own fault--The land was transferred at the agreed price--It was not fault of petitioner rather it was inability of the respondents to perform their part of commitment which was finalized after the approval of the Chief Minister Punjab, who was Executive Head of Province and his orders could not set aside or amended by functionaries except the Court of law--Action of secretaries colonies to auction the land already allotted to the lawyer was mala fide, illegal allotted to the petitioner was not available for further sale or allotment to any one except the petitioner--Petition was allowed. [Pp. 200 & 201] A, B, C & D

M/s. Ch. Khalid Farooq, Muhammad Jafar Javaid Khan, Ch. Khurshid Ahmad, Riaz-ul-Hassan Gilani, Ch. Saleem Kamboh, Mian Muhammad Rizwan Saeed, Shoukat Thaheel and Sh. Jamshed Hayat, Advocates for Petitioner.

Mr. Muhammad Javed Saeed Pirzada, Assistant Advocate General, Punjab alongwith Ch. Muhammad Ashraf DCO Vehari, Ch. Tariq Bashir DOR Vehari for Respondents.

Date of hearing: 11.11.2010.

Order

Through this constitutional petition the petitioners have assailed the legality of proclamation issued in daily "Khabrain Multan" on 23.3.2010 whereby the property allotted to the petitioners was offered for sale to public.

1. Briefly stated the facts of case are that petitioner, District Bar Association, Vehari applied for transfer of state land for establishing a Lawyers Colony at Vehari to Respondent No. 1. The Respondent No. 1 on 22.4.1995 allotted land measuring 242 Kanals 18 Marlas as per register record of rights urban Chak No. 43/WB, Multan Road, Vehari bearing Square No. 9 Khasra No. 1 to 11, square No. 8 Khasra No. 1 to 5, 6 to 15, 16 to 22 and square No. 20 Khasra No. 1 to petitioner. The District Price Assessment Committee in its meeting held on 01.8.1995 approved the sale of land referred to above @ of Rs. 3000/- per Marla but before execution of title document M/s. Faiz Muhammad etc. succeeded to get the property allotted to petitioner surveyed for Kachi Abadi namely Punjab Jinah Abadi. The District Collector Vehari after holding inquiry on 13.4.1991 cancelled the said survey. M/s. Faiz Muhammad etc. filed a constitutional petition No. 916/91 against Respondent No. 1. Another claimant M/s. Muhammad Rafiq etc. also filed Writ Petition No. 7181/95 claiming that they are lessee of land measuring 12 Kanals 19 Marlas. This Court vide order dated 20.3.1997 disposed of these two writ petitions and remanded the case to District Collector Vehari for deciding afresh. The District Collector vide order dated 03.5.1997 decided the matter and confirmed the allotment in favour of petitioner. M/s. Faiz Ahmad etc. and Muhammad Rafiq etc. assailed the order dated 03.5.1997 through two Writ Petition No. 2904/97 and 3958/97 which were allowed vide judgment dated 24.2.1998. The petitioner assailed the order dated 24.2.1998 through ICA No. 61/98 and 62/98. The Divisional Bench of this Court vide order dated 25.1.2000 set-aside the order dated 24.2.1998 directing that two writ petitions shall be deemed to be pending and shall be decided by a single Bench afresh after hearing all the parties and stake holders. Ultimately the two writ petitions were dismissed by order dated 27.1.2004. After that the petitioner requested the Respondent No. 1 to hand over the possession and to execute the title document in their favour. The matter however, remained pending on one reason or the other, the petitioner through impugned proclamation of sale came to know that Respondent No. 2 has invited bids from public for sale of petitioner's land including other land, hence the present petition.

2. Notices were issued to respondents who filed their report and parawise comments. The respondents admitted the assertions of petitioner but alleged that after dismissal of two writ petitions referred to above, Board of Revenue Punjab vide letter dated 13.10.2003 again got the price of petitioner's land assessed through District Price Committee who in its meeting dated 18.10.2003 assessed the price of land Rs. 25000/- per Marla and referred the matter to Board of Revenue on 23.10.2003 for approval and the Provincial Assessment committee rejected the said price and enhanced it from Rs. 25000/- per Marla to Rs. 40,000/- per Marla vide order dated 19.1.2004. The Board of Revenue then referred the matter to Chief Minister who approved the sale of state land measuring 100 Kanals for establishment of Lawyer Cooperative Housing Society at Vehari and the Government of Punjab Colonies Department finally vide Letter No. 3162/2004/2967-CS-V dated 02.9.2004 sanctioned the sale of state land measuring 100 Kanals in favour of Lawyers Cooperative Housing Society Vehari @ of Rs. 40,000/- per Marla plus 10% surcharge through sale by private treaty. The petitioner failed to pay price of land and as such the land was rightly offered for sale to public.

3. Learned counsel for petitioner submits that the land measuring 242 Kanals 18 Marlas as detailed in Para No. 3 of petition was allotted to District Bar Association Vehari on 12.4.1985, the District Price Assessment Committee assessed the value of land on 01.8.1995 @ of Rs. 3000/- per Marla as is evident from Letter No. 190/AC/CC dated 04.3.1996. The matter was dragged into litigation by illegal occupants and claimants, the Collector Vehari vide order dated 03.5.1997 passed the following order:--

"Now dealing with the case of the steel Traders Association this Court has to judge their case viz a viz the claim of the District Bar Association, Vehari. The Steel Traders Association, did not move the District Collector for allotment of the land in question through sale by private treaty for the establishment of steel Market but their case remained under process on the question of assessment of price as the rate assessed by the D.P.A committee was not acceptable to them. The mere submission of an application by the Steel Traders Association does not create any right in their favour. On the contrary, the case of the lawyers of District Bar Association was approved by the then Chief Minister, Punjab. Accordingly, the D.P.A committee assessed the price of the land in question and the same has been forwarded to the B.O.R for its final approval. In this situation, the claim of the Steel Traders Association cannot be allowed as the same is still in preliminary stages but the case of the lawyers has been approved by the then Chief Minister and this Court is not competent to go behind the approval given by the Chief Executive of the province. The case of the Steel Traders Association is devoid of merits and the same cannot be acceded to at this stage."

Further submits that the petitioners were always ready to pay the amount as assessed by the District Price Committee but it is the respondents who failed to hand over the possession of land and to execute the title documents. He further submits that respondents on 26.2.1997 enhanced the sale price of land from Rs. 3000/- to Rs. 6552/- per Marla unilaterally without notice to petitioner. The said price was also in violation of earlier price fixed on 04.3.1996 but the petitioner for resolution of long outstanding dispute accepted the enhanced price. He submits that land was finally allotted to petitioner and price was fixed and as such the respondents have no right to enhance the price of land already agreed and finalized. The land measuring 242 Kanal 18 Marlas is not more available to respondent, for sale through private treaty. Me submits that sale of land in favour of petitioner was with the approval of Chief Minister, the allotment in favour of petitioner still hold field and as such as subsequent decision of Respondent No. 1 qua the petitioner land is malafide and illegal and is not binding on the petitioner. He lastly adds that petitioner has not incepted any cooperative Housing Society and of the said Cooperative Housing Society has negotiated any deal that has nothing to do with the petitioner.

1. Learned AAG submits that petitioner has failed to pay the price assessed by the D.P.A committee on 19.1.2004 @ of Rs. 40,000/- per Marla inspite of respondent's letter of Offer No. 380/DDOC/AHC dated 09.9.2004. The land of 100 Kanals was allotted to Lawyers Cooperative Housing Society Vehari against a price detailed above which was payable within six months, the petitioner has failed to pay the same and as such respondents have decided to auction their land through private treaty. He further submits that it is the discretion of respondents to reduce the land from 242 Kanals 18 Marlas to 100 Kanals and petitioner can not challenge the same as no agreement has been finally concluded between the parties. He adds that amended proposal for transfer of 100 Kanals land to Lawyers Cooperative Housing Society is with the approval of Chief Minister Punjab. He submits that Chief Minister being the Executive Head of the Punjab has every right and authority to cancel or amend his earlier approval.

2. Head Record perused.

3. It is an admitted fact between the parties that land measuring 242 Kanals 18 Marlas was allotted to petitioner on 10.10.1996 for establishing lawyers colony at Vehari. The price of the land was assessed by the District Price Assessment Committee vide order dated 01.8.1995 and on 04.3.1996 Assistant Commissioner Vehari requested the Secretary Colonies Board of Revenue Punjab Lahore for issuance of No Objection Certificate. The issue of payment of price and execution of transfer documents was delayed due to litigation between illegal occupants, illicit lessees and land grabbers with Respondent No. 1. The dispute remained pending in Court and ultimately finalized on 27.1.2004 by a judgment of this Court.

4. The Respondent No. 1 vide meeting dated 26.2.1997 enhanced the price of land from Rs. 3000/- per Marla to Rs. 6552/- per Marla. The petitioner accepted the said price, but due to pendency of litigation the matter remain undecided.

5. It is established on record that allotment in favour of petitioner was duly approved by the Chief Minister and the matter attained finality. The respondents are unable to produce any document showing that Chief Minister has ever withdrawn the allotment of petitioner, the respondents have further failed to prove on record that before passing impugned order, they have issued any notice to petitioner. The Respondent No. 1 has no authority to review the approval given by the Chief Minister confirming the allotment of land measuring 242 Kanals 8 Marlas in favour of petitioner. It is also an admitted fact that approval in favour of petitioner is still intact and has not been withdrawn and if withdrawn that is without notice of the petitioner. It is also not the case of the respondents that original allotment in favour of petitioner has been withdrawn. Case of respondents is that they reduced the petitioner's land from 242 Kanals 18 Marlas to 100 Kanals and fixed the price of reduced land as Rs. 40,000/- per Marla with 10% surcharge. The argument of respondent may have some force if the property measuring 242 Kanals 18 Marlas should have not been allotted to the petitioner in the year 1995 of the petitioner's transfer has been withdrawn.

6. The record shows that petitioner always ready and willing to pay the price agreed on 26.2.1997. It is the respondents who were not able to execute the final transfer deed in favour of petitioner due to litigation initiated by 3rd party against them. After finalization of litigation between third party and respondents, the respondents were bound to issue notice of demand to petitioner for payment of agreed price between the parties i.e Rs. 6552/- per Marla. It is proved on record that respondents have not issued any notice and remain silent. In the year 2003 the petitioner approached the respondents for issuance of final transfer document. The respondents without notice to petitioner themselves decided to reduce the land from 242 Kanals 18 Marlas to 100 Kanals and against Rs. 40,000/- per Marla. The respondents have failed to explain who is the lawyer Cooperative Housing Society Vehari and who floated the said Society. The petitioner is District Bar Association duly elected body of lawyers, the said Bar Association has applied for the allotment of land for Lawyers Colony. It seems that some official of respondent by camouflaging the facts introduced a new applicant under the name and style of Lawyers Cooperative Housing Society and started fresh proceedings for allotment of land and proposed 100 Kanals of land for the said cooperative society @ Rs. 40,000/- per Marla.

7. The allottee of the land in dispute is an District Bar Association and without allowing opportunity of hearing to the said allottee the original allotment could not be amended or reviewed. The respondents have failed to produce any document showing that Chief Minister has withdrawn the allotment in favour of petitioner.

8. The respondents in absence of any withdrawal order by the Chief Minister who alone has the authority to withdraw the approval has no power to amend and review the allotment of land in favour of petitioner.

9. The land was allotted to District Bar Association who (sic) body of lawyers may have their own plan to establish the Housing Colony for lawyers. There is no lawyers Cooperative Housing Society to whom the land of 100 Kanals is proposed to be allotted @ Rs. 40,000/- per Marla. The land was validly allotted to petitioner on 22.4.1995 and they become legal allottee of said land. Any action on the part of respondents for reducing the allotted land or it price is unwarranted and against law. The respondents have no authority to penalize the petitioners for their own fault. If the land was not transferred at the agreed price of Rs. 6552/- per Marla to the petitioner, it is not the fault of petitioner rather it is incapability of respondents to perform their part of commitment which was finalized after the approval of the Chief Minister, Punjab who is the Executive Head of Province and his orders could not be set-aside or amended by the functionaries except the Court of law. The action of respondent to auction the land already allotted to petitioner is mala fide, illegal and without lawful authority. The land already allotted to the petitioner is not available for further sale or allotment to any one except the petitioner.

10. In view of the above, the petition is allowed, the impugned proclamation for inviting the bids for sale of land allotted to petitioner, is declared without any lawful authority. The respondents are directed to issue a demand notice to petitioner in terms of order dated 26.2.1997 and execute title document on receipt of consideration as directed. This petition is allowed.

11. There is no order as to costs.

(R.A.) Petition allowed.

PLJ 2011 Lahore 202

Present: Ch. Muhammad Tariq, J.

MUHAMMAD AFZAL NASIR etc.--Petitioners

versus

CHIEF SETTLEMENT COMMISSIONER/MBR-J-V etc.--Respondents

W.P. No. 92-R of 2010, decided on 23.12.2010.

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

----S. 41--Title vendor was based on fraud--Defective title could not become a perfect title--Validity--The vendee, who was ostensible owner, claiming protection of S. 41 of Transfer of Property Act, for having purchased land from the vendor was not warranted under the law when the title of vendor was based on fraud and in such like matters vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to the vendor because a transferee simply steps into the shoes of transferor so a defective title could not become a perfect title because it was further transferred. [P. 212] C

Fraud--

----Jurisdiction of fraud--Possession of land as reflected from entries of jamabandi and Khasra Girdawri--Previous transactions were based on fraud and forgery--No party should be allowed to take advantage of his fraud--Validity--No rationale or basis for discrimination between the powers endowed to High Court, to a Court of general jurisdiction or to a tribunal of special or limited jurisdiction to probe into the matters of fraud. [P. 212] A

Fraud--

----Effect of fraud--Jurisdiction--Effect of fraud will be the same and the duty to undo that effect must lie on the authority in whose jurisdictional judgment the fraud was practiced. [P. 212] B

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

----S. 41--Ingredients for protection--Applicable to evacuee lands--Protection of S. 41 of Transfer of Property Act, is not applicable to evacuee lands because following are the necessary ingredients for protection u/S. 41 of Act, 1882--The transferor is an ostensible owner, (b) he is so by the consent, express or implied, of the recall owner, (c) the transfer is for consideration and (d) the transferee has acted in good faith, taking reasonable care to ascertain that transfers had power to transfer. [P. 212] D

2002 SCMR 1507 ref.

Power of Suo Moto--

----Fraud--Jurisdiction--Court or a tribunal of special or limited jurisdiction has powers of suo moto, recall or review an order obtained from it by fraud--Preponderance of judicial authority is in favour of such a power to every authority, tribunal or Court on general principle that fraud vitiates the most solemn proceedings and no party should be allowed to take benefit of his fraud. [P. 212] E

Displaced Persons Land Settlement Act, 1958--

----Ss. 10 & 11--Bona fide purchasers of the suit land--Mukhbari application--Litigation was started due to filing a Mukhbari application--Possession of land as reflected from entries of jamabandi and khasra girdawri--Mukhbari application before Additional Settlement Commissioner land--Validity--Addl. Settlement Commissioner on mukhbari application u/Ss. 10 & 11 of Act, 1958 cancelled allotment of land when he found that the suit land had been obtained fraudulently while the petitioner's claim that they were bona fide purchasers of the suit land was not acceptable being contrary to decision of the Supreme Court of Pakistan, in 1984 SCMR 1027--Petition did not have any force. [P. 213] F

Ch. Iqbal Ahmed Khan, Advocate for Petitioners.

Mr. Mahmood A. Sheikh, Advocate/Legal Adviser for CSC.

Ch. Ishtiaq Ahmad, Advocate for Respondent No. 4.

Mr. Ghulam Farid Sanotra, Advocate for Applicants in C.M. No. 3/2010.

Rana Shamshad Khan, Asstt. A.G. Punjab.

Date of hearing: 23.12.2010.

Judgment

This writ petition has been directed against the order dated 20.02.2010 passed by learned Member Board of Revenue (J-V)/CSC.

1. The cause of action as given in the writ petition is that the petitioners are owner of land measuring 313 Kanals-11 Marlas bearing Khewat No. 409, Khatoni No. 1213, 1214 according to the jamabandi for the year 2007-08 of revenue estate Dhingsha, Tehsil and District Kasur. The petitioners are owner in possession of land as reflected from entries of jamabandi for the year 2007-08 and khasra girdawri. The chequered history of this litigation is that vendor of petitioners was Hussain s/o Somaar, a refugee of Junagarh estate, India. He submitted and got registered his claim before Claim Officer South Zone, West Pakistan, Karachi. The verification of claim was carried out by Deputy Claim Commissioner, Karachi Mr. Aitmad-ud-Din Siddiqi, who after hearing the claimant and perusing the gazette record which came from India, passed a judicial order dated 31.01.1960 by giving details of Urban and Rural properties of claimant abandoned in India. The entitlement certificate was issued at Serial No. 49651 QPR, regarding 12512 Produce Index Units. The other entitlement certificate was issued at Serial No. 16382 (UR V) regarding 10556 PIU's dated 03.01.1972, in compliance of order dated 30.12.1971 of Settlement Commissioner Land/OSD, issued for District Sheikhupura and Lahore.

2. Hussain son of Somaar filed a Mukhbari application before the AC/Additional Settlement Commissioner Land, Kasur, under Sections 10 and 11 of Displaced Persons Land Settlement Act 1958 against Wallah son of Kamala caste Dogar, whereupon the report was requisitioned. It was reported by the concerned staff that claim form of Wallah was submitted after target date, i.e. 05.01.1952, therefore, he was not entitled of 25% Peshi but he was allotted more than his entitlement, land measuring 313 Kanals-11 Marlas at RL II Khata No. 168/131. The Assistant Commissioner/Additional Settlement Commissioner Land passed detailed order dated 16.04.1976 and cancelled land measuring 313 Kanals-11 Marla from khata of Wallah Dogar and further ordered for allotment in favour of Hussain son of Somaar as informer.

3. The land was accordingly allotted in favour of Hussain s/o Somaar, who further alienated the land measuring 313 Kanals-11 Marlas vide registered sale deed No. 1441 dated 26.04.1976 against consideration of Rs. 400,000/- in favour of Muhammad Yousaf and Nisar Ahmed Petitioners No. 1 and 2. Accordingly, mutation No. 1236 was sanctioned on 04.06.1985. The sale deed and mutation in favour of petitioners are intact uptill now.

4. Wallah son of Kamala filed a Writ Petition No. 556-R/1976 against the order of AC/ASC, Kasur dated 16.04.1976 before this Court which was rejected on 22.04.1976. He filed a Review Application No. 36/1976 before this Court which was also rejected after hearing both the parties vide order dated 22.05.1985. These two orders were challenged through filing of ICA No. 122/1985 before the Division Bench of this Court which was also rejected on 10.06.1985. The relevant portion of the order is reproduced as under:

"We find that the chief ground urged by the learned counsel for the appellant before the learned Single Judge which went to the root of the jurisdiction was based on the plea that the Mukhbari application had been filed on 17.09.1975 after the repeal of the Displaced Persons Land Settlement Act, 1958. This stands fully belied by the report of the notified officer with the powers of Addl. Settlement Commissioner which clearly brings out that the Mukhbari application had been moved against him on 07.06.1973 before the repeal of Act and the appellant had actually participated in the proceedings on 23.11.1973 and he personally appeared and presented an application which is Annex A to the report. This shows that the chief ground urged by the appellant as to want of jurisdiction in the notified officer from taking the impugned proceedings factually has no basis."

1. All the above said orders were challenged before the Hon'ble Supreme Court through CPLA No. 804/1985. The petitioner Wallah before the Hon'ble Supreme Court raised several objections including that Hussain son of Somaar is a fictitious person and posture. Another objection was taken that at the time of passing of order dated 16.04.1976, the settlement laws had been repealed, hence AC/ASC passed the order without having any jurisdiction. But the Hon'ble Supreme Court while passing the detailed order dated 11.12.1985 upheld the allotment order dated 16.04.1976 in favour of Hussain son of Somaar. The above said all orders have attained finality.

2. Thereafter, the legal heirs of Wallah son of Kamala filed several miscellaneous applications before different forums but they could not succeed to get any order in their favour and against the petitioners. However, the petitioners aggrieved by the proceedings of District Revenue Authorities filed a Writ Petition No. 18148/1995 before this Court, which was accepted vide order dated 02.11.2001. The relevant portion of order dated 02.11.2001 is reproduced as under:

"I have gone through the copies of the documents placed on record of this writ petition. The factual statement made in the writ petition and stated by the learned counsel is born out. I do find in the said state of affairs when Apex Court of the country has upheld the order of Chief Settlement Commissioner which is basis of the said mutation, the Commissioner and Board of Revenue have dismissed the applications for cancellation of mutation and District Collector has dismissed the application of Respondent No. 4 for same relief, the proceedings commenced by the AC-II Grade on the said application of Respondent No. 4 are wholly without lawful authority. This writ petition is accordingly allowed and the impugned proceedings are declared to be without lawful authority. The Member (Revenue) Board of Revenue shall institute an inquiry as to how in the said circumstances AC-II, Kasur, has commenced proceedings. In case it is found that despite knowledge of the said orders passed by the Supreme Court as also High Court, Board of Revenue, Commissioner Lahore Division and District Collector Kasur, AC-II Grade has commenced proceedings, he should be issued a show-cause notice to explain as to how he commenced the proceedings and in case he is unable to explain, further disciplinary proceedings be taken against the said officer. Copy of this order be immediately remitted to the learned Member Board of Revenue, Lahore."

1. The Chief Settlement Commissioner and District Revenue Authorities again started inquiry for cancellation of land of petitioners. The petitioners filed another Writ Petition No. 6434/2005 which was decided vide order dated 16.05.2005. In result whereof, the inquiry was dropped giving the reason that the matter has already been settled upto the level of the Hon'ble Supreme Court. The relevant portion of order dated 16.05.2005 is reproduced as under:

"Respondents No. 1 to 4 have filed the report and parawise comments.

2. Latter stated that both the enquiries pending before his as well as before DCO, have since been dropped, when the Respondents No. 1 to 4 were appraised that the matter has already been settled upto the level of the Hon'ble Supreme Court of Pakistan.

1. Face with this statement, former has not much to say.

2. In view whereof, the present petition has become infructuous and no live issues are left to be decided by this Court.

Petition stands dismissed having become infructuous."

1. Another round of litigation was started when allotment order was passed by Additional Settlement Commissioner in favour of Hussain s/o Somaar. Aggrieved by the order of Additional Settlement Commissioner, Ghulam Rasool filed appeal before ACR/Settlement Commissioner Land, Lahore Division which was rejected vide order dated 29.05.1972 which attained finality.

2. The present round of litigation was started due to filing a Mukhbari application dated 19.06.1972 by Ghulam Rasool against Hussain son of Somaar. Aggrieved by the proceedings, Hussain son of Somaar filed a Writ Petition No. 173-R/1973 against Mian Waheed-ud-Din Rathore Additional SC/CSC to stop the proceedings. This Court issued notice to the parties and finally disposed of the writ petition vide order dated 21.12.1973. This Court directed Hussain to raise the preliminary objections regarding the maintainability of Mukhbari application as the matter has been already decided between the parties by Mr. Zaka Ullah Naik Settlement Commissioner Lahore vide order dated 29.05.1972. Mr. Waheed-ud-Din, Additional SC/CSC rejected the Mukhbari application vide order dated 11.08.1977.

3. Ghulam Rasool etc. informers filed a Writ Petition No. 1388-R/1977 before this Court which was rejected on 28.10.1977. The informers filed ICAs No. 118 and 119 of 1977 which too were rejected on 15.06.1981. Ghulam Rasool filed a Civil Appeal No. 135/1984 before the Hon'ble Supreme Court which was remanded vide order dated 25.05.1991 to the Board of Revenue, Punjab giving direction to the MBR. The relevant portion of order dated 25.05.1991 is reproduced hereunder:

"As the allegations made by the appellants in the Mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for a proper inquiry. The Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka-ud-Din Naik before recording its findings on the Mukhbari application. The appellants shall also have the costs of these appeals."

1. The CSC/MBR (J-V) passed his order dated 20.02.2010 by canceling the land measuring 313 Kanals and 11 Marlas of petitioners situated in Mauza Dhingsha, Tehsil and District Kasur and also the allotment of Revenue Estate of Mauza Charar and Ajodhia Pur of District Lahore from the name of Hussain son of Somaar etc. Hence this writ petition.

2. Learned counsel for the petitioner inter alia contends that the petitioners are owner in possession of the land measuring 313 Kanal and 11 Marlas since 1976 which they purchased through registered sale deed and it was later on incorporated in the revenue record through mutations. The ownership is reflected in the current entries of revenue record but while passing the impugned order, the petitioners were never impleaded as party to the proceedings and no summon or proclamation was made for the attendance of the petitioners. Learned counsel contends that while passing the order dated 20.02.2010, the learned Member Board of Revenue has given reasons in Para 16 of the judgment that settlement laws were repealed at the time of passing of order dated 16.04.1976 by the AC/ASC, hence he was not competent to cancel or allot the land. Learned counsel further contends that the principle of audi alterm partem has been violated. The petitioners are absolute owners in possession of the suit property which in no way falls within the definition of pending cases, so Respondent No. 1 had no jurisdiction to pass the impugned order.

3. Learned counsel for the petitioners has further contended that the petitioners purchased the suit land from Hussain son of Somaar on 03.01.1972, legal entitlement certificate was issued which was never challenged. The petitioner purchased the suit land on 26.04.1976. Before that on 16.04.1976, a mukhbari application was allowed. Wallah filed a writ petition which was dismissed on 22.04.1976. He assailed the said order in review petition which was also dismissed on 22.05.1985. Learned counsel further argues that in compliance of the order of the Hon'ble Supreme Court, the learned Settlement Commissioner also called Mr. Zaka Ullah Naik, Addl. Commissioner Revenue, with the powers of Settlement Commissioner Lahore Division, for recording his statement regarding the authenticity of order passed upon the Appeal No. 7 of 1972 titled "Hussain vs. Settlement Department". Mr. Zaka Ullah Naik categorically admitted that it is correct that Letter No. 322 dated 05.02.1972 written and signed by him giving the reply regarding the above said appeal. He again said that Letter No. 322 was signed by him, as reveals from the record dated 07.02.1972. He further stated "the order dated 08.02.1972 signed by me the interim order dated 16.05.1972 and initial signature dated 11.05.1972 are also same as I was doing and do now a days.

4. Learned counsel for the petitioners further argues that the claim of Hussain son of Somaar was passed through verification order dated 31.01.1960 by the Deputy Claim Commissioner Mr. Aitmad-ul-Haq through a judicial order, which is intact uptill now, hence the CSC/MBR was not competent and had no jurisdiction to declare the claim of Hussain son of Somaar as bogus and fictitious. The observation of CSC/MBR carries no weight in presence of order dated 31.01.1960 of Deputy Claims Commissioner. Learned counsel for the petitioners points out that the matter has been decided in favour of the petitioners upto the level of the Hon'ble Supreme Court of Pakistan but the learned Member Board of Revenue has ignored all the documentary evidence and has passed the impugned order which is not sustainable in the eye of law, therefore, the writ petition be allowed and the impugned order be set aside.

5. Conversely, learned counsel for respondents have vehemently opposed this writ petition. Learned counsel for Respondent No. 1 has vehemently opposed this writ petition and has pointed out that Hussain son of Wallah is a fictitious person, he does not figure anywhere. Learned counsel has pointed out the judgment of the Hon'ble Supreme Court of Pakistan dated 11.12.1998 whereby the Hon'ble Supreme Court has observed as under:

"Finally, it is contended by the learned counsel for the petitioner that in any case the Respondent No. 3 who had moved the mukhbari application under Sections 10 and 11 and for whose benefit the order has been passed has been adjudged to be an imposter and proceedings at his instance could not deprive the petitioner of his proper allotment."

"It is not very material whether the hands of the Respondent No. 3 are clean or not because the land resumed from the petitioners will only go to those who are entitled to it. Leave to appeal is, therefore, refused."

1. Learned counsel has for Respondent No. 1 has pointed out the observation made by the Hon'ble Supreme Court of Pakistan in judgment passed in Civil Appeal No. 135 of 1985 dated 25.05.1991 that the claim against which allottees/respondents obtained allotment were bogus. Learned counsel has further argued that as per direction of the Hon'ble Supreme Court of Pakistan, Mr.Zaka Ullah Naik was examined who categorically denied the version of the petitioners. The writ petition is without any merit as the vendee does not get a better title than the vendor.

2. Similarly, learned counsel for other respondents have also controverted this writ petition and has contended that Hussain son of Somaar does not have any title and the allotment shown in the name of Hussain son of Somaar was obtained on the basis of bogus documents. Learned counsel for the respondents pray that the writ petition be dismissed.

3. Arguments advanced from all corners have been heard and the record to the extent available on file has also been perused.

4. Learned counsel for Respondent No. 1 has brought the original register of claim which was perused/inspected by this Court. One Ibrahim was allowed Machine No. 229482 in the claim register and underneath the same machine number i.e. 229482 was allowed to Ibrahim alongwith cost of land and in between, this column since the space was available, the name of Hussain son of Somaar was written without any machine number. Similarly, there was a cutting in front of Hussain son of Somaar which was a clear proof of manipulation that the department in connivance with somebody has inserted the name of Hassan son of Somaar by manipulation because no spot detail is available in the original claim of register. Record further reveals that vide judgment dated 11.12.1985, the Hon'ble Supreme Court of Pakistan has held that:

"Finally, it is contended by the learned counsel for the petitioner that in any case the Respondent No. 3 who had moved the mukhbari application under Sections 10 and 11 and for whose benefit the order has been passed has been adjudged to be an imposter and proceedings at his instance could not deprive the petitioner of his proper allotment."

1. The Hon'ble Supreme Court of Pakistan has further held that it is not very material whether the hands of Respondent No. 3 are clean or not because the land resumed from the petitioners will only go to those who are entitled to it.

2. The contention of learned counsel for the petitioners is further not tenable in the light of the judgment of the Hon'ble Supreme Court of Pakistan dated 25.05.1991 whereby the Hon'ble Apex Court has observed that "As stated above the case of the appellants was that the claims against which the allottee-respondents had obtained allotment were bogus". In concluding paragraph of the said judgment, the Hon'ble Apex Court has held as under:

"7. As the allegations made by the appellants in the mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for a proper inquiry. The Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka-ud-Din Naik before recording its finding on the mukhbari application. The appellants shall also have the costs of these appeals."

1. Further the matter was agitated by the competent authority as observed by the Hon'ble Supreme Court of Pakistan. Mr. Zaka Ullah Naik was examined who made the statement in Provincial Assembly of Punjab. In the light of the statements made by Mr. Zaka Ullah Naik and others, the Punjab Assembly recommended the following:

"(1) On the basis of the information made available to the Committee, it has been found that bogus allotments of evacuee land in the Urban Area of Lahore have been going on a very large scale with the connivance of the Rehabilitation staff and the staff of the Revenue Departments.

The Committee has observed that the record of the two Departments had been tampered with, pages of the registers have been replaced, figures have been interpolated, fictitious allotment orders have been produced, multiple allotments have been made against bogus claims, and allotments have been made in spite of stay orders of Courts. According to the Statement made by Minister for Revenue and Colonies, Punjab such bogus allotments were being made in other districts of Province as well. After a brief preliminary inquiry area of about 14,000 Kanals worth more than rupees 10 crores had been detected, only in the Urban Area of Lahore. The loss of evacuee property in the province may amount to many more crores of rupees. The Committee found that there was a group of racketeers who indulge in these bogus allotments and unfortunately this group had the backing of very influential persons. The Committee recommends that immediate action should be taken to unearth this group and immediate deterrent action should be taken against them.

(2) Since the law relating to the allotment of evacuee property has been repealed, no action can be taken against the persons responsible for bogus allotments. The Committee understands that Federal Government has agreed to enact a law to enable the cancellation of bogus allotments and to take action against the persons involved in such illegal transactions that the Provincial Government has sent a draft of the requisite legislation to the Federal Government. The Committee recommends that the Federal Government may be approached to pass the legislation in question as early as possible.

(3) The Committee recommends to request the Chief Minister to kindly direct his Inspection Team to conduct a proper detailed enquiry into the bogus allotments and prepare a list of the officers and officials of various departments of Government involved in these shady transactions so that effective departmental action may be taken against them.

(4) The Minister for Revenue and Colonies, Punjab has stopped further allotment of evacuee land in Lahore Urban Area until the enactment of law by the Federal Government. The Committee recommends that similar instructions should be issued by Government to the District Authorities in the Province.

(5) The record of the Rehabilitation Department relating to evacuee property in Lahore Urban Area has been sealed and put under a Police Guard by the Minister for Revenue and Colonies, Punjab. The Committee recommends that district authorities all over the Province should be asked to do like wise."

1. Learned Assistant Advocate General Punjab could not inform this Court about the fate of above recommendations yet from the perusal of record and arguments of learned counsel for the parties, it stands fully established that all the above said previous transactions are based on fraud and forgery. This Court is of the considered view that no party should be allowed to take advantage of his fraud. There can be no rationale or basis for discrimination between powers endowed to this Court, to a Court of general jurisdiction or to a tribunal of special or limited jurisdiction to probe into the matters of fraud. However, whatsoever the case be, the effect of fraud will be the same and the duty to undo that effect must lie on the authority in whose jurisdiction the fraud was practiced. Similarly, allotment in favour of vendor not being based on mukhbari was found to be fraudulent and was liable to be cancelled. The vendee, who was ostensible owner, claiming protection of Section 41 of the Transfer of Property Act for having purchased land from the vendor is not warranted under the law when the title of vendor was based on fraud and in such like matters vendees were to survive or sink with vendor depending upon determination of legal status of the property transferred to the vendor because a transferee simply steps into the shoes of transferor so a defective title could not become a perfect title simply because it was further transferred. At the same time, it is important to point out that protection of Section 41 of Transfer of Property Act is not applicable to evacuee lands because following are the necessary ingredients for protection under Section 41 of Transfer of Property Act, 1882:--

(a) The Transferor is an ostensible owner;

(b) he is so by the consent, express or implied, of the real owner;

(c) the transfer is for consideration; and

(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Therefore, the contentions raised by the learned counsel for the petitioners is without any substance in the light of law laid down in case titled, "Farhat Ullah Khan etc. vs. Additional Commissioner Revenue etc." reported as 2002 SCMR 1507.

1. This Court is also of the considered view that a Court or a tribunal of special or limited jurisdiction has powers of suo moto, recall or review an order obtained from it by fraud. The preponderance of judicial authority is in favour of such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings and no party should be allowed to take benefit of his fraud.

2. This Court further considers that the Additional Settlement Commissioner on mukhbari application under Sections 10 and 11, Displaced Persons Land Settlement Act, 1958 cancelled allotment of land when he found that the suit land had been obtained fraudulently while the petitioners' claim that they are the bona fide purchasers of the suit land is not acceptable being contrary to the decision of the Hon'ble Supreme Court of Pakistan (1984 SCMR 1027). The impugned judgment is based on cogent reasons. Learned counsel for the petitioners has also failed to point out any illegality or infirmity in the impugned judgment. No interference is called for.

F

1. The outcome of the whole discussion is that this writ petition does not have any force. The law relied upon by learned counsel for the petitioners is not applicable in the matter in hand. Hence the writ petition is dismissed and as a consequence, CM. No. 3/2010 under Order I, Rule 10, C.P.C. also stand dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 213 [Rawalpindi Bench Rawalpindi]

Present: Maulvi Anwar-ul-Haq, J.

SABIRA KHATOON etc.--Petitioners

versus

JAMIL AKHTAR etc.--Respondents

W.P. No. 2704 of 2001, decided on 18.1.2007.

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

----O. XXIII, R. 1--Matter of a civil suit--Suit for grant of maintenance was withdrawn--Debarred from claiming maintenance in view of the withdrawal--Validity--Where a civil suit was withdrawn without permission of the Court to file a suit for fresh cause of action then second suit on the same cause of action was barred. [P. 214] A

Punjab Family Court Act, 1964 (XXXV of 1964)--

----S. 17--Application of CPC had been excluded in matter of family Courts suit--No bar in law upon the petitioners to seek the relief which was otherwise available to them--Courts below had acted without jurisdiction in denying the relief to the petitioners--Petition was allowed. [P. 215] B

Ms. Yasmeen Khanum, Advocate for Petitioners.

Nemo for Respondent No. 1.

Date of hearing: 18.1.2007.

Order

Respondent No. 1 was proceeded against ex-parte vide order dated 27.6.2002.

1. On 1.5.2000, the petitioners, who are the ex-wife and children of Respondent No. 1, filed a suit against him for recovery of maintenance. Petitioner No. 1 claimed maintenance at the rate of Rs. 1000/- per month for herself for three years preceding the suit as also Rs. 3000/- for Iddat period while Rs. 1000/- per month per child was claimed for similar period whereas future maintenance was claimed at the rate of Rs. 1500/- per month per child. It was stated in the plaint that the petitioner was married to Respondent No. 1 on 12.3.1990 while Rukhsati took place on 16.8.1991 and out of this wedlock three children were born. She was divorced without any just cause. Respondent No. 2 was stated to be in the service as Squadron Leader in Pakistan Air Force. The respondent filed his written statement stating therein that he is prepared to pay reasonable maintenance to his children but not to his wife. Issues were framed and evidence of the parties was recorded. Vide judgment and decree dated 25.10.2000. Learned trial Court awarded maintenance to Petitioner No. 1 at the rate of Rs. 1000/- per month only for Iddat period whereas the children were awarded maintenance at the rate of Rs. 500/- per month per child with effect from the date of filing the suit. The respondent was also directed to arrange the education of the children and the incidental charges otherwise to pay Rs. 700/- per month per child. Feeling aggrieved, the petitioner filed a first appeal which was dismissed by a learned Additional District Judge, Attock on 8.5.2001.

2. Learned counsel for the petitioners contends that the maintenance to the petitioners with effect from three years prior to the institution of the suit has been refused vide the impugned orders without lawful authority. According to her the petitioners could not have been denied their lawful right on the ground that earlier suit for the grant of maintenance was withdrawn by Petitioner No. 1.

3. I have gone through the copies of the record. I find that it is an admitted position emergent from the evidence on record that the petitioner stands deserted since the year 1995. The only ground on which previous maintenance has been disallowed is that earlier the petitioners filed a suit for the grant of maintenance which was withdrawn on 13.3.2000 and it has been stated that they are debarred from claiming maintenance in view of the said withdrawal. To my mind, in the matter of a civil suit. Order XXIII, Rule 1 CPC lays down that where a suit is withdrawn without permission of the Court to file a suit for fresh cause of action then the second suit on the same cause of action is barred. However, the application of Code of Civil Procedure has been specifically excluded in the matter of family Court's suit vide Section 17 of the Family Courts Act, 1964. This being so there was no bar in law upon the petitioners to seek the said relief which was otherwise available to them. I, therefore, do find that the learned Courts below have acted without jurisdiction in denying the said relief to the petitioners.

4. Writ petition is accordingly allowed and both the impugned judgments and decrees inasmuch as they denied maintenance for a period of three years prior to the institution of the suit are declared to be without lawful authority and are set aside. The result would be that the suit filed by the petitioners on the terms stated in the judgment and decree of the learned Judge Family Court shall stand decreed with effect from the period of three years prior to the institution of the suit with effect from 1.5.1997. No order as to costs.

5. A copy of this judgment be immediately remitted to the learned District Judge Attock, as also to the learned Senior Civil Judge/Judge Family Court, Attock, with a direction to amend the decrees or to prepare fresh decrees in accordance with the terms of this judgment.

(R.A.) Petition allowed.

PLJ 2011 Lahore 215

Present: Tariq Javaid, J.

MUHAMMAD YOUSAF and 2 others--Petitioners

versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE through its Secretary and 2 others--Respondents

W.P. No. 17226 of 2010, heard on 25.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Recruitment of subject specialist--Advertisement was published by P.S.C.--Petitioners were better candidates than the others and their rejection was based on mala fide and ulterior motives to accommodate the other candidates who were lesser qualified--Candidates were short listed for written test--At the time of filing of the applications, the petitioners had taken the examination of B.Ed, however, their result was awaited--Validity--If the petitioners were not qualified according to regulation as enumerated by P.S.C.--Once their applications were entertained and they were invited to sit in the written examination, which both the petitioners passed with distinction and secured first and second position out of the candidates and, therefore, they were invited for interview--Such whole exercise would amount to waiver of the condition prescribed under regulation--Held: The marks granted to the candidates in interview must be commensurate with the marks obtained by them in their academic qualifications--Petition was allowed. [P. 218] A & B

Tipu Suleman Makhdoom, Advocate for Petitioners.

Kh. Suleman Mehmood, AAG with M. Farooq, Dy. Director, PPSC for Respondents.

Date of hearing: 25.10.2010.

Judgment

The grievance of the petitioners is that in response to an advertisement published by the respondents for recruitment of Subject Specialists in BS-17 on 30.8.2009 through press, the petitioners filed their applications for their posting on the above said posts.

1. The learned counsel for the petitioners submits that the petitioners have illegally been ignored while lesser qualified candidates have been selected. According to the learned counsel for the petitioners, all the three petitioners possessed required qualifications. They were all position holders throughout their academic career and also secured first three positions amongst 689 candidates short listed for written test. According to the learned counsel for the petitioners apart from the academic qualifications the petitioners were position holders in extra curriculum activities including debates and essay writing and had excellent academic record. Therefore, they were better candidates than the others and their rejection is based on mala fide and ulterior motives to accommodate the other candidates, who were lesser qualified.

2. On the other hand, the learned counsel for the respondents has submitted that the first two petitioners did not possess the requisite qualifications at the time of filing of applications whereas the third petitioner had failed in interview. Therefore, they were rightly rejected by the respondents.

3. According to the advertisement published in "daily Jang" dated 30.8.2009 Respondent No. 1 invited applications for 16 posts of Subject Specialist Arabic BS-17 (male). The requisite qualifications were at least M.A. Second division with B.Ed. Second Division and the criteria for selection of candidates was laid down as under:--

"2. In case large number of applications are received for post (s), short-listing of the eligible candidates will be done in any of the following methods:

(a) Evaluation of the academic record.

(b) Written test related to the job/qualification or general ability.

(c) Combination of the above two methods."

1. Allegedly, large number of applicants filed applications. On the basis of above criteria 689 candidates were short listed for written test. Admittedly, the petitioners took part in the written test and they were placed at Serial Nos. 1, 2 and 3 respectively, according to the merit list prepared as a result of written test. The petitioners amongst others were invited for interview. The Petitioner No. 1, who stood first in the written test was granted 72 marks out of 100. The Petitioner No. 2, who stood second in the written test was granted 62 marks out of 100. The Petitioner No. 3, who stood third in the written test was granted only 36 marks out of 100 and as such he is said to have failed the interview. The learned counsel for the respondents maintained that the Petitioners No. 1 and 2 although had taken the examination of B.Ed., at the time of filing of their applications, their results had not been declared, therefore, allegedly they were not qualified for the position at the time of filing of applications as such they were not taken into service while the Petitioner No. 3 had failed the interview. Therefore, he was also rejected. With regard to Petitioners No. 1 and 2 regulation 22 of the Punjab Public Service Commission was heavily pressed into service, which is re-produced as under:

"22. Eligibility of a candidate shall be determined in accordance with the advertisement for the post, service rules governing appointments to the relevant post and such other ancillary instructions issued by the Government and/or the Commission from time to time. For this purpose, the age, qualifications, experience and other credentials etc. of the candidates existing on or up to the closing date fixed for such posts as advertised, shall be taken into account. No relaxation in this regard shall be allowed."

1. It was argued that according to the above said regulation the Petitioners No. 1 and 2 ought to have qualified their B.Ed, examination before filing of the applications. According to the learned counsel for the respondents under the above rule at the time of filing applications the Respondents No. 1 and 2 were required to have passed their B.Ed. examination and the fact that they had taken the B.Ed. examination without declaration of result did not qualify them for the post and since the Respondent No. 3 did not qualify in the interview the petition merits to be dismissed.

2. I have heard the arguments advanced by the learned counsel for the parties and perused the record.

3. It is an admitted position that at the time of filing of the applications the Petitioners No. 1 and 2 had taken the examination of B.Ed., however their result was awaited. They filed their applications wherein it was disclosed and the respondents entertained their applications. The respondents invited them for written test wherein Petitioners No. 1 and 2 stood first and second, thereafter they were invited for interview on 22.4.2010. By then the petitioners had passed their B.Ed. examination, the result whereof had been declared on 20.2.2010 and this fact was statedly brought to the notice of the persons interviewing the candidates. If the petitioners were not qualified according to the regulation 22 as enumerated above then their applications should have not been entertained by the respondents. Once their applications were entertained and they were invited to sit in the written examination, which both of the petitioners passed with distinction and secured first and second positions out of 689 candidates and thereafter they were invited to interview. This whole exercise would amount to waiver of the condition prescribed under regulation 22. By that time the petitioners were invited for interview they had already passed B.Ed, examination once again with distinction. Therefore, it was not open for the respondents to raise the plea at the last stage that the petitioners were not qualified for the post. The functionaries are under a legal obligation to raise objections on the applications if any, at the first instance. If the applications are entertained and for all practical purposes the candidates are short listed and then invited to take the written test and after having passed the test they are invited to interview wherein they are declared successful then it is not open for the respondents to turn round and take the plea that the applicants were not qualified and their applications should have not been entertained.

4. Regarding the Respondent No. 3, who had all the requisite qualifications, had passed all his academic qualifications with distinction, had participated in extra curriculum activities and always came out with distinction has more qualifications than required for the post and yet awarding him only 36 marks in the interview does not appear to be justified on the face of it. The respondents have not shown the break up of 36 marks. By now it is a settled principle of law that the marks granted to the candidates in interview must be commensurate with the marks obtained by them in their academic qualifications. It is hard to believe that a candidate, who has got all the qualifications with distinctions, has participated in speech contests, had been awarded gold medal in M.A. Arabic, had been placed at number one position in Urdu essay writing competition, had first position in Shahadat-ul-Aliya Tanzim-ul-Madaris Pakistan could secure only 36 marks in an interview. This speaks of volumes of mala fide in law on the part of the respondents. The respondents have not shown that the candidates, who passed the interview and were selected had any better academic qualifications and that those were placed higher than the Petitioner No. 3 in their extra curriculum activities. An over all view of all of the credentials of each candidate must be taken into consideration while awarding marks in the interview. Therefore, the impugned result is set aside and the respondents are directed to reconsider the petitioners, who appear to be very well qualified for the post. The petition is allowed with cost.

(R.A.) Petition allowed.

PLJ 2011 Lahore 219 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

Syed ASIF RAZA BUKHARI--Petitioner

versus

DISTRICT COORDINATION OFFICER RAJANPUR--Respondent

W.P. No. 834 of 2005, decided on 12.5.2010.

Pakistan Citizenship Act, 1951 (II of 1951)--

----S. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Issuance of domicile certificate--Cancellation of domicile certificate D.G. Khan--Applied for domicile certificate of Tribal Area--After due verification domicile certificate was issued of Rajanpur--Validity--Documentary evidence i.e. voters list, place of posting of his father and I.D. Cards of his parents show that at the time of filing of application for issuance of fresh domicile certificate to the petitioner they were living in Distt. Rajanpur and the petitioner was living with them--U/S. 17 of Pakistan Citizenship Act, the petitioner had become entitled for issuance of domicile certificate of Distt. Rajanpur in his favour--His case was further strengthened by the fact that his sister and brother were issued domicile certificates under directions of High Court passed in the writ petition--Petition was allowed. [P. 221] A

Mr. Amin-ud-Din Khan, Advocate for Petitioner.

Mr. Aurangzeb Khan, AAG for Respondent.

Date of hearing: 9.4.2010.

Order

Petitioner Syed Asif Raza Bukhari son of Syed Mukhtar Hussain Shah has filed this writ petition with the following prayer:

"----order passed by DCO, Rajanpur, dated 06.10.2003 declining to issue domicile certificate to the petitioner be declared illegal, unlawful and without lawful authority and in consequence he be directed to be issued domicile certificate in terms of Section 17 of Pakistan Citizenship Act, 1951 read with rule 23 of the Rules made thereunder.

1. Brief facts leading to the filing of this writ petition are that the petitioner was born in D.G. Khan on 7.3.1983 where his parents were resided at that time; he completed his primary education there and subsequently secured admission in Govt. Cadet College Batrasi, Mansehra (NWFP) where he successfully passed his matriculation examination and cleared his F.SC examination; petitioner's father namely Syed Mukhtar Hussain Shah was transferred as DSP (Legal) in the year 1992 to Rajanpur where the petitioner and other family members shifted along with him to Rajanpur; in order to permanently settle in the area the petitioner's father purchased 5-Marlas of land and raised construction thereon where the family permanently intended to settle on the retirement of petitioner's father; petitioner on the basis of his birth had obtained domicile certificate from D.G. Khan; however, since his father was posted in Rajanpur and the family shifted there since 1992 there was no basis for obtaining domicile certificate of D.G. Khan therefore he applied for cancellation of the said domicile certificate to District Coordination Officer, D.G. Khan on 14.10.2002; the petitioner considered that his domicile of D.G. Khan, had been cancelled therefore he applied for the domicile certificate of tribal area Rajanpur; the DCO Rajanpur after due verification issued domicile certificate to the petitioner; thereafter on the basis of domicile of Rajanpur he applied for nomination against reserved seat of the district in the University of Engineering and Technology, Lahore, therefore, on the basis of recommendation by the DCO Rajanpur endorsed by the DCO, D.G. Khan the petitioner and two others were nominated; while the petitioner was awaiting orders for admission by the UET Lahore, the domicile of the petitioner of D.G. Khan was withdrawn by the DCO DG Khan who also wrote to the DCO Rajanpur for cancellation of his domicile of Rajanpur. The petitioner challenged the said action of the DCOs in this Court by filing Writ Petition No. 9467/2002 and during the pendency of the said writ petition the UET Lahore admitted the other two recommendees in the B.SC Engineering Classes. The said writ petition was dismissed vide order dated 18.12.2002. The I.C.A. No. 207/2002 filed against the said order of the learned Single Judge was also dismissed in limine by the learned Division Bench on 09.01.2003. The petitioner thereafter filed CPLA No. 607/L-2003; the petitioner moved CMA No. 1997-L/2003 in C.P. No. 607-L/2003, wherein the Hon'ble Supreme Court directed that petitioner's name against the reserved seat of Rajanpur in the UET, Lahore be sent provisionally for consideration, and in the meanwhile the DCO Rajanpur was directed to process the petitioners application for issuance of fresh domicile certificate from Rajanpur as, according to him, he had already surrendered the domicile certificate of D.G. Khan. Pursuant to the orders of the Hon'ble Supreme Court in CMA No. 1997-L of 2003 in CP No. 607-L/2003 the petitioner was admitted to the University of Engineering and Technology, Lahore and by now statedly he has completed his B.Sc. Engineering.

2. It is alleged that petitioner's fresh application for issuance of domicile certificate has been rejected by the DCO, Rajanpur vide order dated 6.10.2003. It is further alleged that the DCO also declined to issue domicile certificates to petitioner's sister Miss Saima Bukhari and brother Syed Hassan Raza Bukhari, which orders were challenged before this Court by Writ Petition No. 1192 of 2004. The said writ petition was accepted vide order dated 28.07.2004 and the DCO Rajanpur was directed to issue domicile certificates within 7 days. Through the instant petition the petitioner has challenged the order of the DCO, Rajanpur, dated 6.10.2003 whereby his application for issuance of domicile certificate has been rejected.

3. I have heard the learned counsel for the parties and gone through the material available on the file. It is an admitted fact that since 1992 the petitioner has been living with his father in District Rajanpur, where his father was posted as DSP (Legal) and purchased some piece of land for permanently settling there after retirement. Documentary evidence, i.e. voters list dated 31.10.2002, place of posting of his father and the I.D. cards of his parents show that at the time of filing of application for issuance of fresh domicile certificate to the petitioner they were living in District Rajanpur and the petitioner was living with them. Therefore, under Section 17 of the Pakistan Citizenship Act, 1951, the petitioner has become entitled for issuance of domicile certificate of district Rajanpur in his favour. His case is further strengthened by the fact that his sister and brother were issued domicile certificates under the directions of this Court passed vide order dated 20.7.2004 in Writ Petition No. 1192/2004.

4. For the reasons discussed above, the writ petition is allowed, the order dated 6.10.2003 of the DCO, Rajanpur refusing to issue domicile certificate to the petitioner is set aside. The DCO, Rajanpur, is directed to issue domicile certificate in favour of the petitioner.

(R.A.) Petition allowed.

PLJ 2011 Lahore 222 (DB)

Present: Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ.

Dr. FAISAL MASUD and another--Appellants

versus

GOVT. OF PUNJAB through Secretary, Local Government and Rural Development Department, Civil Secretariat, Lahore and 3 others--Respondents

ICA No. 8 of 2004 arising from W.P. No. 10421 of 2002, heard on 21.6.2010.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Intra Court Appeal--Commercialization Rules 2001 repeal and substituted by Province of Punjab through Commercialization Rules of 2008 & 2009--Scope of--Violation of privacy rights--Policy of LDA--Appellant was running a private clinic--Respondent owns adjacent plot had obtained the sanction of commercial building plan in accordance with building bye laws and rules of LDA--On account of sanctioning of the commercial building, the rights of appellants of enjoying the exclusive privacy of their house raised had been adversely affected--Challenged through constitutional petition which had been dismissed by single judge of High Court--Assailed--Writ petition did not specify as to how the privacy rights of the appellants in the use of their property situated over plots had been affected by commercial use--Appellant was admittedly himself making commercial use of a portion of his property constructed over plot wherein he was running a private medical clinic, therefore, he could not be permitted to raise any objection to the commercial use of the adjacent plots by lawful owners--Building plan had been duly approved by LDA and admitted by official respondents by D.B. of High Court and such sanction of commercial building plan also had not been assailed by the appellant through any proceedings before departmental authority or the instant writ petition--Single judge of High Court while passing the judgment had recorded valid reasons for dismissing the writ petition of the appellants--Intra Court Appeal was dismissed. [P. 226] A & B

Dr. A. Basit, Advocate for Appellants.

Mr. Shakeel-ur-Rehman Khan, Addl.A.G. for Respondent No. 1.

Mian Muzaffar Hussain, Advocate for Respondents No. 2 & 3.

Mr. Akhtar Javed, Advocate for Respondent No. 4.

Date of hearing: 21.6.2010.

Judgment

Nasir Saeed Sheikh, J.--This ICA is directed against the judgment dated 09.12.2003 passed by a learned Single Judge of this Court whereby Writ Petition No. 10421/2002 instituted by the present appellants was dismissed as having no force.

1. Briefly stating the facts of the case are that the appellants owns with possession a house constructed over Plots No. 801 & 803 in Block-C, Faisal Town, Lahore in a portion of which the appellant is running a private clinic. The Respondent No. 4 of the writ petition owns adjacent plot Bearing No. 802-C on the same road and the said respondent had obtained the sanction of a commercial building plan from the LDA, Lahore in accordance with the building bye-laws and rules of the LDA.

2. It is the case of the writ petitioners that on account of the sanctioning of the commercial building plan by the LDA in Plot No. 802-C of the Respondent No. 4, the rights of the appellants of enjoying the exclusive privacy of their house raised in Plots No. 801 and 803 has been adversely affected. The appellants moved objection application before the LDA-respondent against the commercial use of the Plot No. 802-C, Faisal Town, Lahore by the Respondent No. 4, through communication dated 18.1.2002. It was also contended by the petitioners in their application dated 18.1.2002 that the Respondent No. 4 is using the Plot No. 802-C for commercial purposes without obtaining any NOC from the LDA. This objection raised by the appellants was rejected by the LDA through an order communicated on 08.2.2002. The LDA-respondent took the plea that the Maulana Shaukat Ali Road upon which the Plot No. 802-C, Faisal Town, Lahore is situated has already been declared a commercial Road after inviting objections from the public in the press and that the owner of the Plot No. 802-C applied for commercialization of his said plot which request was granted by the LDA on 15.12.2001. Thus the request of the appellants of stopping the Respondent No. 4 from commercial use of the Plot No. 802-C, Faisal Town, Lahore was turned down by the LDA. A Writ Petition No. 10421/2002 was instituted before this Court by the present appellants which came up for hearing before a learned Single Judge. The Respondents contested the said writ petition and vide judgment dated 9.12.2003 the learned Single Judge dismissed the writ petition through the impugned judgment against which the instant ICA has been instituted.

3. It is contended by the learned counsel for the appellants that the policy of the LDA as per Commercialization Rules 2001 is ultra vires of the Constitution and is liable to be struck down. The learned counsel for the appellants elaborated that a general commercialization policy with respect to the entire Maulana Shaukat Ali Road is not sustainable as it deprived the appellants an opportunity of raising objection to the commercial use of the plot situate in their neighbourhood. It is further contended by the learned counsel that these rules of 2001 and the policy of LDA are violative of the provisions of Article 14 of Constitution of Islamic Republic of Pakistan.

4. It is then contended that learned Single Judge has not properly appreciated the privacy rights of the appellants which according to the learned counsel of the appellants have been violated by the Respondent No. 4 and LDA did not consider the objection of the appellants with respect to the violation of their privacy rights. It is further contended by the learned counsel that the judgment passed by the learned Single Judge is not sustainable in the eye of law.

5. The learned counsel for the appellants also has first raised an objection that the original Respondent No. 4 has been substituted by the present Respondent No. 4 and the original owner of the adjacent plot had disappeared from the scene without contesting the instant ICA, therefore the present ICA be accepted against Respondent No. 4

6. The contentions of the learned counsel of the appellants have been controverted by the learned counsel of the respondents.

7. It is first of all stated by the learned counsel for the LDA that the Commercialization Rules 2001 have been repealed and substituted by the LDA Land Use Conversion Rules 2008 through notification dated 17.3.2008 which Rules of 2008 have further been repealed by the LDA Land Use (Classification and Declassification and Re-development) Rules 2009. It is further contended that before declaring Maulana Shaukat Ali Road as commercial road the LDA invited objections through publication in the Press dated 28.8.2001 and the appellants did not raise any objection before the LDA and then vide order dated 6.10.2001 Commercialization Committee of the LDA approver the commercialization of the Maulana Shaukat Ali Road. It was further argued that as per policy of the LDA having been enforced there was no requirement that the owner of the Plot No. 802-C, Respondent No. 4, to have obtained any NOC for the commercial use of his property.

8. It is further argued by the learned counsel for the respondent-LDA that appellant himself by making a commercial use of a portion of his property wherein he is running a medical clinic is estopped from raising any objection upon the commercial use of the plot by the Respondent No. 4.

9. The learned counsel for the Respondent No. 4 has also supported the arguments of the learned counsel for the LDA and has further stated that so far no construction has been raised by the Respondent No. 4 on his Plot No. 802-C, only a room with a boundary wall exists thereon and the Respondent No. 4 has collected some building material and is running a store for the sale of said building material. It is further contended that the Maulana Shaukat Ali Road having been declared a commercial road by the LDA therefore there was no need of any NOC to be obtained by the Respondent No. 4 for the commercial use of his Plot No. 802-C. It is further argued that there is no specification by the appellants in their writ petition as to how their privacy rights with respect to their Plots No. 801-C and 803-C have been adversely affected by commercial use of the Plot No. 802-C by the Respondent No. 4. It is further argued that objections were invited by the LDA through press publication and the appellants did not raise any objection. However the appellants subsequently addressed an application dated 18.1.2002 to the LDA complaining regarding the commercial use of the plot by the Respondent No. 4 which objection was turned down by the LDA vide letter dated 08.2.2002 and which letter has not been assailed by the appellants in their Writ Petition No. 10421/2002 although it was instituted on 15.3.2002 after the passing of the order dated 08.2.2002 by the LDA. It is further contended that the order passed by the learned Single Judge of this Court dismissing the writ petition of the appellants is in accordance with law and the instant ICA has no merits at all.

10. The learned Additional Advocate General has also controverted the arguments of the learned counsel of the appellants and has further stated that in view of the repealed rules of 2001 the ICA of the appellants has become infructuous and the new commercialization rules of the Government of Punjab promulgated and enforced in the year 2008 and later on in the year 2009 as referred to above have not been assailed through the instant writ petition.

11. We have considered the arguments of the learned counsel of the parties and have perused the record.

12. The Respondent No. 4 was impleaded through C.M. No. 486/2006 vide order dated 22.1.2009 and this C.M. was moved by the appellants themselves whereby the successor-in-interest of the original vendee was impleaded in the instant ICA and is contesting the same. After selling out his rights in the Plot No. 802-C the original owner has disappeared from the scene but this does not make any difference as the subsequent vendee who the successor of the original owner has been impleaded as Respondent No. 4 by the appellants themselves in the instant ICA, therefore this contention of the learned counsel for the appellants is not entertainable that on account of disappearance of the original owner of the adjacent Plot No. 802-C, the ICA should be automatically accepted. The successor of the original owner is present before this Court and is contesting the instant ICA.

13. The writ petition was instituted to assail the Commercialization Rules of 2001 which rules have been repealed and substituted by the Province of Punjab through Commercialization Rules of 2008 and later on by Commercialization Rules of 2009. The prayer of the appellants seeking declaration with respect to the Commercialization of Rules 2001 to be declared ultra vires of the Constitution and the law has therefore become in-fructified. However it is also an admitted fact that even during the enforcement of the previous Rules of 2001 the LDA had invited objections on the commercial declaration of the Maulana Shaukat Ali Road and no objection was raised by the appellants at that time to the course being adopted by the LDA with respect to the road in question. The appellants moved an objection application dated 18.1.2002 against the commercial use of the plot by the Respondent No. 4 of the plot owned by the said respondent and this objection of the appellants were turned down through order dated 8.2.2002 which order has not been assailed by the appellants in the writ petition for the reasons best known to them. Even we observe that the writ petition does not specify as to how the privacy rights of the appellants in the use of their property situated over Plots No. 801 and 803 has been affected by the commercial use of the Plot No. 802-C by the Respondent No. 4. The Appellant No. 1 is admittedly himself making commercial use of a portion of his property constructed over Plot No. 803 wherein he is running a private medical clinic, therefore, he cannot be permitted to raise any objection to the commercial use of the adjacent plots by the lawful owners. The building plan of the Respondent No. 4 in respect of Plot No. 802 Block-C, Faisal Town, Lahore has been duly approved by the LDA as stated and admitted by the official respondents before us and this sanction of commercial building plan also has not been assailed by the appellants through any proceedings before the departmental authority or in the instant writ petition. The learned Single Judge while passing the judgment dated 09.12.2003 has recorded valid reasons for dismissing the writ petition of the appellants. We are not persuaded by the arguments of the learned counsel for the appellants to declare the judgment passed by the learned Single judge dated 09.12.2003 to be violative of any principle of law. The instant ICA is without any merits and is accordingly dismissed with no orders as to costs.

(R.A.) I.C.A. dismissed.

PLJ 2011 Lahore 227 (DB)

Present: Nasir Saeed Sheikh & Mian Shahid Iqbal, JJ.

M/s. MALIK MUSHTAQ GOODS TRANSPORT COMPANY--Appellant

versus

FEDERATION OF PAKISTAN etc.--Respondents

ICA No. 951 of 2009, decided on 5.4.2010.

Public Procurement Rules, 2004--

----R. 42(v)--Ensuring a transparent exercise of power by procuring agency in awarding of its contracts--Bids were invited for award of contract of luggage vans running with the trains on specified routes--Award of contract through private negotiator bypassing competitive bidding--Validity of--Public departments could not award valuable rights of its contracts through private negotiations as it defeats the express limitation placed on its power by the relevant rules. [P. 234] A

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Intra Court appeal--Illegal and non transparent awarding of contract--Entitlement to protection--Appellants were running an illegal contract on account of an injunctive order issued by the High Court did not give protection to the illegal and apparently non-transparent method of awarding the contract in-question--I.C.A. was dismissed. [P. 236] B

Kh. Saeed-uz-Zafar, Advocate for Appellant in I.C.A. No. 951 of 2009.

Mr. Muhammad Shahzad Shaukat, Advocate for Appellant in I.C.A. No. 991 of 2009.

Mr. Umer Sharif, Legal Advisor for Pakistan Railways for Respondents No. 1 to 5.

Mr. Salman Aslam Butt, Advocate for Respondents.

Date of hearing: 26.3.2010.

Order

This order will dispose of ICAs No. 951 and 991 of 2009, which have been instituted against the same judgment dated 16.11.2009, passed by a learned Single Judge of this Court disposing of WPs No. 11923 and 12808 of 2009.

1. Briefly stating the facts giving rise to the present ICAs are that Pakistan Railways invited bids for award of contract of luggage vans running with the trains on specified Routes, for a period of three years vide public invitation notice dated 04.12.2008. It is an admitted fact that an auction was conducted for award of the contract of luggage vans attached to various trains divided into six groups running on various routes. The following bids were received with respect to Group `D' route in the said process from six bidders:--

Bidder Bid Amount Ranking (in Rs.) for (according to Group `D' bid amounts)

Javed Iqbal

(Respondent No. 6) 141,035,786 1

M/s. Ittehad Cargo Service (Respondent No. 7). 141,035,500 2

M/s. Mehdi & Co. (Respondent No. 8) 140,000,000 3

M/s. National Cargo Services. (Petitioner) 139,800,000 4

M/s. Gujrat Cargo Services (Respondent No. 9) 138,000,000 5

M/s. Malik Mushtaq Goods Transport Co. (Respondent No. 10). 130,070,000 6

The auction proceedings did not procure satisfactory offers for the contract in question and the auction proceedings thus scrapped and the earnest money/call deposits of the bidders were returned. However subsequently on 10.06.2009, on the basis of some negotiations having been finalized with M/s. Malik Mushtaq Goods Transport Company, Respondent No. 10 of the writ petition, a revised bid from the said respondent for the contract in question was accepted by the Pakistan Railways and the contract was awarded to the said company for Rs.4,95,00,000/- per annum for a period of one year only. This process of inviting the revised bid of the said Respondent No. 10 and awarding of the contract in question to the said company was assailed through WPs No. 11923 and 12808 of 2009, instituted by M/s. National Cargo Service, petitioner of W.P. No. 11923 of 2009 and M/s. Ittehad Cargo Service petitioner of WP.No. 12808 of 2009, both of which writ petitions came up for hearing before a learned Single Judge of this Court on 16.11.2009, who was pleased to accept the writ petitions through a consolidated judgment dated 16.11.2009. In the operative part of the judgment dated 16.11.2009, the learned Single Judge passed the further direction to the following effect:

"10. For the foregoing facts and reasons, the award of contract to respondent #10 being illegal and without lawful authority is declared as such. Pakistan Railways is directed to invite fresh, bids for auction of the luggage vans forthwith and making every effort to avoid cartelization. Copy of this petition be sent to Chairman Pakistan Railways who shall look into the matter so as to ensure that not only the interest of Pakistan Railway are secured and that the contract is awarded in a fair, transparent manner strictly in accordance with law.

Disposed of in terms articulated ibid."

1. The instant two ICAs have been instituted against the said consolidated judgment dated 16.11.2009 of the learned Single Judge of this Court.

2. ICA No. 951 of 2009 came up for preliminary hearing on 26.11.2009 and a pre-admission notice was issued to the respondents for 16.12.2009 and the same day, an order was passed by a learned Division Bench of this Court on C.M. No. 1 of 2009 whereby the operation of the impugned judgment passed by the learned Single Judge was suspended in the meanwhile. A similar order dated 14.12.2009 was passed in ICA No. 991 of 2009 on a preliminary hearing.

3. The learned counsel for the appellant has raised the following contentions in support of his case--

(i) the writ, petitioners are estopped by their words and conduct to institute the writ petitions, because the pay order dated 18.3.2009 forming basis of the private negotiation process was prepared in the name of Sakhawat Ali, who is the petitioner of W.P. No. 11923 of 2009 and having himself participated in the negotiation process and not succeeded in getting the contract could not have instituted the present writ petition;

(ii) the contract was awarded to the appellant on 10.6.2009 for a period of one year and only less than three months time is now left in the contract period and cancellation of the contract at this stage shall cause huge loss to the national exchequer even if the contract awarded to the appellant is in violation of any rules;

(iii) the contracts for the groups A and B were also awarded by the Pakistan Railways through private negotiation which acts were not challenged by the respondents and cancellation of the contract awarded to the appellant shall be an act of discrimination;

(iv) it is the consistent practice of the Pakistan Railway Department that they award contract through private negotiation and this consistent practice of the department has the force of law. The learned counsel relied upon the judgment reported as (PLD 1976 Lahore 453) in this context.

1. The learned counsel for the Pakistan Railways has surprisingly supported the contentions of the learned counsel for the appellant notwithstanding the fact that Pakistan Railways was a Respondent of the writ petitioner and did not opt to prefer an appeal against the acceptance of writ petitions vide judgment dated 16.11.2009. The learned counsel contended that before finalizing the awarding of contract to the appellants, the Pakistan Railways addressed letter dated 27.05.2009 to all the bidders to revise their offers as a result of which only the appellant submitted a revised bid to the tune of Rs. 148.5 million being 10% above the already offer made and was thus awarded the contract in the best interest of the Pakistan Railways. The learned counsel for the Pakistan Railways further argued that a committee for evaluation of the bids offered was constituted, which approved the bid of the appellant.

2. The learned counsel for private Respondents No. 7 and 10 of ICA No. 951 of 2009 and of Respondents No. 7 and 9 of ICA No. 991 of 2009, who were respectively the petitioners in WPs No. 12808 and 11923 of 2009 defended vehemently the impugned judgment dated 16.11.2009, passed by the learned Single Judge and raised the following objections to the maintainability of the instant ICAs:--

(i) The Pakistan Railways is a public department and has to perform its duties in a transparent manner and awarding of the contract in question lacks this transparent exercise by the Pakistan Railways;

(ii) that the grant of contract to the appellant through private negotiation is absolutely illegal and is violative of Public Procurement Rules, 2004 read with Public Procurement Regulatory Authority Ordinance, 2002;

(iii) that the grant of contract by the Pakistan Railways through private negotiation is not at all permissible;

(iv) that the Pakistan Railways did not even execute any agreement with the appellant for the grant of contract in question, which is the necessary requirement of law and awarded the contract to the said appellant through a simple letter dated 10.06.2009;

(v) that the appellant is running the contract on the basis of an ad-interim injunctive order issued by a learned Division Bench of this Court dated 26.11.2009 and the acceptance of ICA shall perpetuate the illegal and mala fide grant of contract to the said appellant;

(vi) that the judgment dated 16.11.2009 passed by the learned Single Judge is perfectly legal and no exception can be taken to the same particularly due to the fact that the learned Single Judge directed the Pakistan Railways to invite fresh bids for granting the contract of the luggage vans forthwith;

(vii) that the contract was awarded to the appellant ignoring the restraining order dated 15.6.2009, passed by the learned Single Judge on CM. No. 1 of 2009, which order reads as follows "Notice for 02.07.2009. In the meanwhile, the respondents shall not sign the contract with the Respondent No. 10;

(viii) that the letter dated 27.05.2009 relied upon by the learned counsel for the Pakistan Railways in support of his contention to the effect that notices for inviting improved bids from the previous bidders were issued, was a subsequently manufactured document;

(ix) that the mentioning of the name of Sakhawat Ali in the pay order dated 18.3.2009 does not conclusively lead to the fact that he participated in the private negotiation process and even if such a fact is presumed, there is no estoppal in law against the said person to challenge the award of contract by the Pakistan Railways on the ground of having been given in an illegal and mala fide manner;

(x) that the ICA is incompetent in view of the fact that a remedy of appeal has been provided in the matter in view of Rule No. 48(5) of Public Procurement Rules, 2004.

1. We have considered the arguments of the learned counsel for the parties and have perused the record.

2. The learned Single Judge in the impugned judgment dated 16.11.2009 has held that the first process of inviting bids for awarding the contract in question shelved and all the bidders were informed accordingly. The learned Single Judge further held that the Pakistan Railways, which was one of the respondents in the writ petitions was asked to show any law, rule, regulation and instructions, which permitted the Pakistan Railways to award contract without inviting bids but no such provision was referred to in reply. This lacuna was the basic rationale for passing the impugned judgment by the learned Single Judge. It was not the case of the Pakistan Railways either during the pendency of the writ petition and also before this Court that any fresh process of inviting bids through proper publication was undertaken by the Pakistan Railways. The said public department was unable to show any such provision of law authorizing it to award the contract in the manner in which it was done.

3. It is obvious that the contract in question was granted by the Pakistan Railways to the appellant through some private negotiation in which process the appellant is said to have improved its earlier bid. In this context, the provisions of Public Procurement Regulatory Authority Ordinance, 2002 are very much relevant. This Ordinance according to Section 1 sub-section (2) and sub-section (3) extends to the whole of Pakistan and came into force on 15th of May, 2002. According to Section 2 Clause (j), procuring agency was given a specific meaning and interpretation in the following manner:--

(j) "procuring agency" means--

(i) any Ministry, Division, Department or any office of the Federal Government;

(ii) any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government."

Applying the definition of "procuring agency" as given in the Ordinance of 2002, the Pakistan Railways, which is a department of the Federal Government falls within the definition of procuring agency. In exercise of powers vested in the Federal Government to make rules, the enabling provision of Section 26 of the Ordinance reads as follows:

"26. Power of the Federal Government to make rules.--The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance."

Resultantly, Public Procurement Rules, 2004 were made and enforced through Gazette publication dated 9th of June, 2004. In order to ensure transparency in the awarding of contracts by a procuring agency, a concept of competitive bidding has been introduced in the said rules and Rules 3 and 4 read as follows:--

"3. Scope and applicability.--Save as otherwise provided, these rules shall apply to all procurements made by all procuring agencies of the Federal Government whether within or outside Pakistan.

1. Principles of procurements.--Procuring agencies, while engaging in procurements, shall ensure that the procurements are conducted in a fair and transparent manner, the object of procurement brings value for money to the agency and procurements process is sufficient and economical."

The term "competitive bidding" was also defined in Rule 2 clause (c), which reads as follows:

"(c) "competitive bidding" means a procedure leading to the award of a contract whereby all the interested persons, firms, companies or organizations may bid for the contract and includes both national competitive bidding and international competitive bidding."

1. Rule 20 provided that the procuring agencies shall use open competitive bidding as the principle method of procurement for the procurement of goods, services and works.

2. Rule 34 sub-rule (2) deals with the situation of re-bidding process to be undertaken by the procuring agency, which requires a revised method of specifications, evaluation criteria to be adopted in the re-bidding process. The awarding of contract through negotiations have been specifically prohibited in Rule 40, which provides as follows:

"40. Limitation on negotiations.--Save as otherwise provided there shall be no negotiations with the bidder having submitted the lowest evaluated bid or with any other bidder:

Provided that the extent of negotiation permissible shall be subject to the, regulations issued by the Authority."

1. Rule 42 enlists alternative methods of procurements of goods, services and works and clause (v) of the said rules reads as follows:--

"(v) in case of an emergency:

Provided that the procuring agencies shall specify appropriate fora vested with necessary authority to declare an emergency.

(d) negotiated tendering.--A procuring agency may engage a negotiated tendering with one or more suppliers or contractors with and without prior publication of a procurement notification. This procedure shall only be used when,--

(i) the supplies involved are manufactured purely for the purpose of supporting a specific piece of research or an experiment, a study or a particular development;

(ii) for technical or artistic reasons, or for reasons connected with protection of exclusive rights or intellectual property, the supplies may be manufactured or delivered only by a particular supplier;

(iii) for reasons of extreme urgency brought by events unforeseeable by the procuring agency, the time limits laid down for open and limited bidding methods cannot be met. The circumstances invoked to justify extreme urgency must not be attributable to the procuring agency

Provided that any procuring agency desirous of using negotiated tendering as a method of procurement shall record its reasons and justification in writing for resorting to negotiated tendering and shall place the same on record."

1. A perusal of the provisions of Ordinance of 2002 and of the Rules of 2004 made there-under make it abundantly clear that they are aimed at ensuring a transparent exercise of power by a procuring agency in the awarding of its contracts. It is a well settled principle of law laid down in the judgment reported as Arsalla Khan vs. Bashir Ahmad Blour and 3 others (PLD 1976 Supreme Court 581) that public departments cannot award valuable rights of its contracts through private negotiations as it defeats the express limitations placed on its powers by the relevant rules. The Public Procurement Rules, 2004 envisage only an emergent situation as provided in Rule 42 clause (v) to bypass the competitive bidding process and it is not the case of the Pakistan Railways that any such situation existed which necessitated the Pakistan Railways to award the contract in question to the appellant in the manner in which it has been awarded through letter dated 10.06.2009. At least the official respondents were unable to point out any document supporting the above eventuality.

2. The superior Courts consistently has insisted upon the transparent exercise of powers by public authorities in awarding the contracts of valuable rights and the following judgments can be referred to as a ready reference:--

(i) Malik Atta Muhammad and another vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others (2007 SCMR 178)

(ii) Mubashar Iqbal Cheema vs. Cantonment Board (PLD 2009 Lahore 506)

(iii) Dr. Tariq Mehmood Memon vs. Province of Sindh through Chief Secretary and another (2007 MLD 1225).

1. The following circumstances seriously reflect upon the transparent exercise of powers by the Pakistan Railways in this matter:--

(i) No public notice of inviting the fresh bidding was undertaken.

(ii) The committee constituted by the Pakistan Railways for processing the bid of the appellant was not shown to have analyzed it nor any document was produced before the Court to show as to whether this revised bid of the appellant was in fact even put up before the said committee, which committee according to the learned counsel for the Pakistan Railways, has been permanently constituted and is functioning.

(iii) The contract was awarded to the appellant only through issuance of letter dated 10.06.2009 and the charge of the contract in question was handed over to the appellant even without signing of any formal agreement.

(iv) There is no document proving the submission of a revised bid by the appellant for one year contract, which was awarded to it through letter dated 10.06.2009.

(v) In the first process of inviting bids, the contract was aimed to be operative for three years and we do not know as to what prevailed with the Pakistan Railways to award the contract for one year only and that too without adopting the process of competitive bidding.

(vi) There is no order passed by any competent authority of the Pakistan Railways to adopt the process of negotiation for awarding the contract in question to the appellant.

(vii) The entire exercise undertaken by the Pakistan Railways in awarding the contract in question to the appellant lacks transparency and good governance.

1. The learned Single Judge has recorded a specific finding to the above effect in Para 8 of the impugned judgment dated 16.11.2009, which reads as under:

"It is thus clear that the process for the award of contract to Respondent #10 is not only without lawful authority but the same have been conducted in a non-transparent manner, hence, cannot be sustained in the eye of law."

1. The learned counsel for the appellant could not point out any illegality in the impugned judgment dated 16.11.2009. We have also scrutinized it very carefully and find it to be a judgment clothed with perfection and propriety. In Paragraph No. 10 of the impugned judgment dated 16.11.2009, the learned Single Judge of this Court also issued further necessary direction to the Pakistan Railways to invite fresh bids for auction of the contract in question making all efforts to avoid cartelization. We are thus not inclined to interfere in the judgment passed by the learned Single Judge.

2. The mere fact that the appellants are running the contract after passing of the impugned judgment in the writ petition and that too on account of an injunctive order issued by a learned Division Bench of this Court dated 26.11.2009 does not justify to give protection to the illegal and apparently non-transparent method of awarding the contract in question by the Pakistan Railways to the appellant.

3. The contention of the learned counsel for the appellant that huge loss is likely to be caused, if the contract awarded to the appellant is cancelled at this stage carries no weight. However, since the appellant is a beneficiary of the illegally awarded contract, therefore, we direct the auditors of the Pakistan Railways to immediately assess the loss, if any, which accrues of the public exchequer Pakistan Railways on account of the illegally awarding of the contract to the appellant and its consequent cancellation by the learned Single Judge of this Court. The audit report shall be put up before the committee which already stands constituted by the Pakistan Railways and if it is found correct then such a financial loss shall be made good by the present appellant and from the personal pockets of the officials of the Pakistan Railways in equal share, who issued the letter dated 10.06.2009 and also contributed towards awarding of the contract in question to the appellant in addition to any other action which such committee direct to be taken against the persons held and found responsible for the loss.

21. The objection of the learned counsel for the private respondent that the ICAs are not maintainable because of the availability of alternative remedy of appeal is not entertainable. Suffice it to say that since no complaint was lodged to the committee as per provisions of Rule 48(2) of Public Procurement Rules, 2004 and no order having been passed in pursuance to Rule 48 in the matter, therefore, the preferring of any appeal as envisaged in Rule 48 clause (5) does not arise so as to attract the prohibitory clause of Section 3 sub-section (2) proviso (1).

1. In view of all the above circumstances, the instant ICAs, have no merits and are DISMISSED with costs throughout.

(A.A.) I.C.A. dismissed.

PLJ 2011 Lahore 237

Present: Muhammad Farrukh Irfan Khan, J.

AKHTAR HAMEED CHEEMA--Petitioner

versus

DIRECTOR OPERATIONS, RING ROAD, LAHORE and 5 others--Respondents

W.P. No. 17673 of 2009, decided on 23.7.2010.

Land Acquisition Act, 1894 (I of 1894)--

----S. 18--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Land was acquired for construction of Ring Road--Determining the compensation the potential value of the land--Alternate land had not been provided--Claimed of compensation for land acquired--Plea cannot be raised in writ jurisdiction of High Court--Report of local commission--Petitioner's Petrol Pump was located at G.T. Road intercharge's Exit linking the main G.T. Road at the turn or curve where exit at interchange meets the main G.T. Road and the G.T. Road throughout comes under the management and control of Provincial Highway Department except 700 meters short of crossing of Ring Road Bridge and 700 meters across the bridge--Held: No petrol pump at the three interchanges except the petitioner's Petrol Pump at G.T. Road interchange--Other two petrol pumps were located on the main G.T. Road under the control of provincial highway department whereas the petitioner's petrol pump was located at the turn or curve where exit at interchange meets the main G.T. Road, therefore, no case of discrimination arises in peculiar circumstances of the instant case--Petition was dismissed. [P. 239] A

2009 SCMR 1034, ref.

Syed Kaleem Ahmad Khurshid, Advocate for Petitioner.

Mr. Ahmad Awais, Advocate and Tipu Salman Makhdoom, Advocates for Respondents.

Mr. Shahid Mubeen, Addl. Advocate General.

Date of hearing: 6.4.2010.

Order

Akhtar Hameed Cheema son of Abdul Hameed Cheema petitioner through this Constitutional petition under Article 199 of the Constitution prays for direct access to his petrol pump from the main road by way of a road-opening-cut.

1. The learned counsel for the petitioner contends that the respondent authorities in the garb of construction of Ring Road have acquired the land of the petitioner and while determining the compensation the potential value of the land has not been considered; that alternate land has also not been provided to the petitioner; that-construction of the petitioner's petrol pump is in progress; that the petitioner's business is at stake; adds that two petrol pumps in the name of Attock Oil Company and PSO have been given access to the G.T Road; that the petitioner's petrol pump is on the same G.T.Road, but the said access to the main road has been denied to the petitioner. Alleges discrimination. Relies on 1980 SCMR 686.

2. Conversely, this petition has been opposed by the learned counsel for the respondents on the grounds that the NOC was issued in favour of the petitioner on 15.04.2004 by the CDG, Lahore; that the petitioner claimed compensation for the land acquired and his claim has been satisfied; that the petitioner's petrol pump has direct approach to the main G.T.Road through service road; that the petitioner's petrol pump is located at the turn of curve where an Exit of an interchange meets the main G.T.Road; that the Ring Road was on the model of the Motorway where vehicles could travel at a speed of over 100 to 120 KM per hour, therefore, giving a road opening in that area would endanger life of people and result in road accidents; that other two petrol pumps are in different portion and situation as they are on the straight G.T.Road, whereas the petitioner's petrol pump is at the curve of the exit, therefore, no discrimination is being caused to the petitioner.

3. Heard and record perused. So far as the first contention of the petitioner that while acquiring the petitioner's land the potential value has not been considered and no alternate land has been provided to the petitioner is concerned the same has no force as the petitioner's claim for compensation in reference to Section 18 of the Land Acquisition Act, 1894 has been satisfied by the respondents and if the petitioner was aggrieved no further steps have been taken by the petitioner on that account, as such this plea cannot be raised in writ jurisdiction of this Court.

4. To resolve the controversy at hand this Court through order dated 29.01.2010 appointed a local commission to apprise the Court as to how many cuts/openings are provided in the vicinity to different persons engaged in the same kind of business. In compliance, Mr.Raza Qureshi Advocate/Local commission has submitted his report which is made a part of the record.

5. It is worth mentioning here that from Harbanspura to Ravi Road there are three interchanges one at Harbanspura i.e. over Lahore Canal, second at G.T.Road and the third is at Ravi Road. The petitioner's petrol pump is located at G.T. Road interchange's Exit linking the main G.T. Road at the turn or curve where Exit at interchange meets the main G.T.Road and the said G.T. Road throughout comes under the management and control of Provincial Highway Department except 700 meters short of crossing of Ring Road Bridge and 700 meters across the bridge. The said 700 meters on both sides come under the management and control of Project Management Unit, Lahore Ring Road Project. The Ring Road is built on the model of Motorway where vehicles could travel at very high speed upto 100 to 120 KM per hour, therefore, any road cut/opening at that place may result in road accidents putting in danger the life of people.

6. In case reported as Province of Punjab through Chief Secretary and another versus Samuel Bhatti and others (2009 SCMR 1034) it has been, ruled that, "Although, under Article 25 of the Constitution of Islamic Republic of Pakistan all citizens are equal before law and entitled to equal protection of law, yet the State is not prohibited to treat its citizens on the basis of reasonable classification and it is not the intention of Article 25 of the Constitution that every citizen is to be treated alike in all circumstances, however, it would be applicable on the persons similarly placed or similarly situated." Admittedly there is no petrol station at the three interchanges except the petitioner's petrol pump at G.T.Road interchange. The other two petrol pumps namely PSO and Attock Oil are located on the main G.T.Road under the control of Provincial Highway Department whereas the petitioner's petrol pump is located at the turn or curve where exit at interchange meets the main G.T. Road, therefore, no case of discrimination arises in the peculiar circumstances of the instant case.

7. For what has been discussed above, this writ petition fails and is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 240 [Multan Bench Multan]

Present: Sagheer Ahmed Qadri, J.

DOCTOR MUHAMMAD TARIQ GILANI--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Health Department, Lahore and 3 others--Respondents

W.P. No. 3068 of 2010, decided on 10.5.2010.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Punjab Service Tribunal Act, 1974, S. 4--Civil servant was transferred--Jurisdiction--Transfers and postings clearly fall within the ambit of terms and conditions of service of a civil servant, therefore, the grievances against the same must be agitated before the Service Tribunal--Petition was dismissed. [P. 250] A

Sheikh Jamshaid Hayyat, Advocate for Petitioner.

Mirza Muhammad Saleem Baig, Addl AG for Respondents No. 2.

Mr. Naveed Hashmi, Advocate for Respondent No. 4.

Ch. Dawood Ahmad Wains, Advocate for Respondent No. 3.

Mr. Ejaz Farrukh, Senior Law Officer on behalf of Respondent No. 1.

Date of hearing: 10.5.2010.

Order

Petitioner Doctor Muhammad Tariq Gilani son of Ghulam Mohyud Din Gilani, EDO (Health), Khanewal vide Notification No. SO(GC)M-31/2003 dated 02.4.2010 was transferred with the direction to report to Health Department for further orders and Respondent No. 4 Dr. Syed Muhammad Hussain Naqvi was posted vice-present petitioner as Executive District Officer (Health), Khanewal.

1. Petitioner through this constitutional petition has challenged the vires of above referred Notification having been issued by Respondent No. 1 on political basis i.e. motivated by Respondent No. 3 who belongs to Muslim League (N) who contested elections for the seat of MPA but was not able to win; that Respondent No. 3 was appointed as District Coordinator vide letter dated 26.6.2009 and he recommended to the Chief Minister of Punjab for the transfer of petitioner; that Respondent No. 3 was demanding from the petitioner to bow before him for the fulfillment of his illegal demands which are reflected from the letters Annexures-E, E/1 and E/2 present on this file, that transfer of a civil servant purely on politically motivation has repeatedly been condemned by the Hon'ble Superior Courts of the Country; that this Court vide order dated 12.4.2010 sought parawise comments from Respondents Nos. 1, 2 & 3, which were submitted respectively. Respondent No. 1 while submitting the parawise comments in Para C of the Preliminary Objections submitted as under:

"The Health Department observed various irregularities on receiving number of complaints, against the petitioner (Annex-"E"-Pages-12-19). The District Coordination Officer Khanewal intimated that prima facie charges of corruption/ maladministration against Dr. Tariq Gillani (Petitioner) have been proved by the probing committee. He recommended disciplinary proceeding under PEEDA Act 2006 against him as he is involved in embezzlement and poor performance of Health facilities of District Khanewal. Accordingly, the Chief Minister/Competent Authority approved his transfer from the assignment of EDO (Health) Khanewal on administrative grounds, irrespective of the observations raised by District Coordinator Rana Irfan Mahmood as alleged by him. It is solemnly affirmed that his transfer orders were issued after independently enquiring into his conduct and post record done personally by Secretary Health who reported the matter to the Chief Minister. He was accordingly transferred vide order dated 02.04.2010 and directed to report to Health Department. In compliance, he submitted joining report on 09.04.2010 (Annex-"F"-Page 20). Amazingly, he again exerted political pressure for cancellation of transfer order dated 02.04.2010 (Annex-G-Pages-21-22). It is apparent that as against his assertions of political victimization, he himself has always benefited from political patronage. This, in fact, is the only time when the Department of Health, Government of Punjab has refused to bow to political pressure at all."

1. Respondent No. 2 in his parawise comments submitted as under:--

"The facts, in brief, of the case are that numerous complaints regarding corruption, misuse of authority and merit less recruitments in the Health Department, Khanewal were received. On receipt of such complaint from the Health Department. Government of the Punjab, an enquiry committee was constituted under the Convenership of Executive District Officer (Literacy), Khanewal. Probes regarding purchase of ambulances for Health Department, drawl of bogus TA/DA and misuse of Government vehicles also under process against the supervisory staff of Health Department, Khanewal. Inspection reports of Monitoring Evolution Assistants, were also showed indiscipline and lack of supervision on part of the Executive District Officer (Health), Khanewal. There were also certain question marks on integrity of the present petitioner who remained posted at Khanewal on various posts for so many years and had established roots with the persons indulging in malpractices.

Rana Irfan Mehmood Khan, the District Coordinator (Health), Khanewal visited various health institutions in district Khanewal and submitted detailed reports regarding embezzlement, poor performance and maladministration on part of the present petitioner. The answering respondent examined these reports, previous complaints against the petitioner and his tenure. The answering respondent was of the view that further stay of the petitioner on his post was not in public interest. Hence, the answering respondent requested the Government for taking necessary action against the petitioner vide Letter No. 2805-7 dated 17.03.2010 (Annexure-R-1). The competent authority transferred the petitioner on 02.04.2010 (Annexure R-2). In compliance of the transfer orders, the Respondent No. 4 assumed the charge Executive District Officer (Health), Khanewal on 03.04.2010 and the petitioner joined Health Department, Lahore on 09.04.2010.

In the meanwhile, an inquiry committee headed by Executive District Officer (Literacy), Khanewal submitted its report on 10.04.2010 with the findings that the allegations were proved. The committee recommended to request the Government of Punjab for constitution of inquiry committee at provincial level The committee also proposed that the record of the Executive District Officer (Health), Khanewal may be taken into safe custody (Copy of the inquiry report is Annexure R-3). In light of recommendations of the inquiry committee, the record pertaining to recruitment and purchases was taken into safe custody through Office Superintendent of DCO Office, Khanewal on 14.04.2010 to avoid tempering, misuse and destruction. The government of the Punjab, Health Department, Lahore was also apprised of this situation vide this office Letter No. 4109-10/Admin-1-2 dated 14.04.2010 (Annexure R-4).

It is also mentionable here that the petitioner instigated the lower staff of the health department to agitate and protest against the answering respondent. They carried out a procession to the office of the District Coordination Officer, Khanewal and raised slogans against the answering respondent which was against the norms of service rules."

1. While Respondent No. 3 in his separate parawise comments refuted all the allegations levelled by the petitioner and in Para 3 of the comments, on facts, it was submitted as under:--

"The Respondent No. 3 rightly wrote a letter dated 04.03.2010 to Chief Minister, Punjab for the interest of Department and Public. The writ petitioner with mala fide intention wrote a letter dated 24.03.2010 to D.C.O Khanewal. The visit Reports of RHC Abdul Hakeem and RHC Sarai Sidhu BHU Jodh Pur, BHU HQ Nawaz Wala, BHU Kokar Hatta, THQ Kabirwala, DHQ Hospital, Khanewal are appended herewith. "

1. All the three respondents in their written reply/parawise comments raised preliminary objection that as transfer and posting basically comes within the ambit of terms and conditions of service of a civil servant, therefore, under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 this Court has no jurisdiction and if the petitioner has any grievance, he may approach the learned Service Tribunal for the redressal of his grievance.

2. After submission of parawise comments by the respondents, learned counsel for the petitioner on 3.5.2010 submitted CM No. 1121/2010 under Order I Rule 10 CPC read with Section 151 CPC mentioning therein that:

"The above-titled writ petition is sub-judice before this Hon'able Court and is fixed for today. The Respondent No. 1 secretary health in his comments (page 3 para-c of comments) has mentioned that applicant-writ petitioner was transferred by the orders of Chief Minister whereas the impugned transfer order dated 02.04.2010 shows that same has been issued by the orders of the Governor, thus, there is contradiction inter se comments and transfer order, thus, to resolve fore-mentioned anomaly it is necessary either to implead province of Punjab/governor through principal secretary as respondent in the writ petition or to requisition comments from the Governor as under Article 129 (as written in the petition) of constitution the executive authority of the province vests in the governor and not chief minister and shall be exercised by him directly or through officers subordinates to him in accordance with constitution."

and it was prayed that Province of Punjab be impleaded as party in the writ petition.

1. Written reply of this application was submitted by Respondent No 1. Para 1 of written reply is hereby reproduced as under:--

"As per Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 the conduct of business of Provincial Government is to express, to be taken in the name of the Governor. The Executive Authority of the province is to be exercised in the name of Governor. Such authority, however, in exercise by the Provincial Government, therefore, Chief Minister, Minister or Officer having power delegated to them by the Provincial Governments. Hence all orders passed by the Provincial Government are to be used to issue in the name of the Governor. However, under Section 23 of Punjab Civil Servants Act, 1974 read with Punjab Civil Servants (Appointment and Condition of Service) Rules 6 of 1974, the Chief Minister is the Competent Authority to appoint/transfer officers of Grade-19 and above. (Annexures-R/1, R/2 & R/3).

and it was agitated that Government of Punjab has already been impleaded as party, therefore, Province of Punjab need not to be arrayed as such.

1. It is further mentioned that during the pendency of this writ petition, petitioner also moved Crl. Org. No. 239-W/2010 mentioning therein that although this Court vide order dated 12.4.2010 in C.M.No. 1-2010 suspended the operation of the impugned Notification but the respondents did not comply with the direction of this Court and created hindrance in his way and he was not allowed to join his place of posting.

2. All the above matters arising out of Writ Petition No. 3068/2010 the main writ petition are being disposed of by this single order.

3. Learned counsel for the petitioner argued that if the impugned Notification dated 02.04.2010 whereby petitioner was transferred is seen, it clearly shows that it was passed by the orders of the Governor of the Punjab, hence, clearly shows some political interference. Learned counsel for the petitioner has specifically referred the documents annexed with the petition as Annexures E, E/1 and E/2 and argued that Respondent No. 3 was appointed by the Government of the Punjab, although he had no official capacity he was just appointed as a Coordinator Health Department, Khanewal under the political influence of Muslim League (N) a ruling political party in the Province of Punjab who was exerting undue influence on the petitioner for fulfillment of his illegal demands and when those were not acceded to he on the basis of his political influence get the petitioner transferred. Learned counsel argued that if the parawise comments submitted by Respondents Nos. 1 & 2 are seen, it has specifically been mentioned in respect of Rana Irfan Mahmood/Respondent No. 3 who recommended for the transfer of the petitioner. Learned counsel argued that it is necessary that Province of Punjab be allowed to be impleaded as party to this writ petition and the comments be sought from the Governor of Punjab as allegedly the impugned order is passed by the said authority; that the respondents have not submitted the true facts before this Court. It was further agitated that transfer of a civil servant purely on political motivation has clearly been condemned by the Hon'ble Superior Courts. Reliance is placed on (Roshan Khan, Set Government High School Kuz Pao, District Shangla Versus Director Schools and Literacy, N.W.F.P., Peshawar and 4 others) 2007 SCMR 599, 2007 PLC (CS) 428, 2009 PLC (CS) 94 and (Federation of Pakistan through Secretary, Cabinet Secretariat, Establishment Division, Islamabad and others Versus Israr-ul-Haque and others) 2005 SCMR 558. Prayed that C.M. No. 1121/2010 be allowed and parawise comments be sought.

4. On merits in the main writ petition it was submitted that in view of parawise comments submitted by the respondents, fact of political intervention is proved, therefore, impugned Notification is void, ab-initio, ineffective upon the rights of the petitioner, therefore, it be declared as null and void and same be set aside. It was further agitated that respondents have not honoured the direction issued by this Court as impugned Notification was suspended and hindrance was caused in the way of the petitioner for performance of his duties, therefore, proper and necessary action be also initiated in this respect.

5. On the other hand, learned counsel for the respondents have vehemently opposed this petition. It was specifically argued on behalf of Respondent No. 1 that under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 it is specifically provided that all the executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor; that under the Punjab Government Rules of Business, 1974 which are framed under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 for the conduct of Business of the Government of Punjab, Rule 11 specifically provides that all executive actions of Government shall be expressed to be taken in the name of the Governor; that under Rule 21 the appointments, postings, promotions and transfers are to be passed under the approval of the Chief Minister and the relevant rule governing these provisions is provided in the 4th Schedule of the said Rules. It was provided that under Sr. No. 11(c) all the other posts in BPS-19 and above are to be submitted for the approval of the Chief Minister before issuance of the orders; that the present Notification actually was issued under the said Rules with the approval of the Chief Minister of Punjab, accordingly under Article 139 of the Constitution and Rules of Business mentioned above the impugned Notification was issued by showing "by the orders of Governor of Punjab"; that no illegality whatsoever was committed. It was further agitated that there were so many complaints against the petitioner and on the basis of those complaints Respondents Nos. 2 & 3 conducted certain inquiries and reports were submitted and on the basis of all the said reports in the best public interest it was found by the competent authority that the petitioner be transferred. Even otherwise transfer and posting basically comes within the ambit of terms and conditions of service of a civil servant and Article 212 specifically bars filing of petition before this Court. If petitioner has any grievance, he may agitate the same before the Provincial Service Tribunal. It was further agitated that petitioner while filing this petition has suppressed material facts; that after issuance of the impugned Notification petitioner has relinquished his charge and assumed the charge of his place of posting and this fact was not disclosed. While relying on (Peer Muhammad vs. Government of Balochistan through Chief Secretary and others) 2007 SCMR 54, (Province of the Punjab through Secretary, Health Department versus Dr. S. Muhammad Zafar Bukhari), PLD 1997 SC 351 and (Secretary to Government of the Punjab Health Department, Lahore and others vs. Dr. Abida Abdul and another) 2009 SCMR 61, it was agitated that application under Order I, Rule 10 CPC was not maintainable as the Government of Punjab has already been impleaded as party through its Secretary; that the impugned Notification has already been acted upon by the petitioner and the Criminal Original No. 239-W-2010 for initiation of contempt proceedings was also moved based on false and fabricated facts. It was prayed that this petition be dismissed.

6. Learned counsel for Respondents No. 2 & 3 reiterated the stand above mentioned by learned counsel for Respondent No. 1. Learned counsel for Respondent No. 4 agitated that impugned notification has already been implemented, therefore, firstly the petitioner has no locus standi to challenge and secondly this petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

7. I have considered the arguments advanced by learned counsel for the parties.

8. The facts in detail have already been mentioned above. Admittedly, petitioner is a civil servant and he remained posted as EDO (Health), Khanewal. The impugned Notification was issued on 2.4.2010 and petitioner was directed to report to the Health Department for further orders. It is worth mentioning here that petitioner in this writ petition has suppressed this fact that he as a result of the impugned Notification has relinquished the charge. If parawise comments submitted by Respondent No. 1 are seen, it is specifically mentioned that in compliance of the above. mentioned Notification petitioner submitted joining report on 09.04.2010 (Annexure-F). The report is present at page 20 of parawise comments submitted by Respondent No. 1 wherein petitioner has specifically submitted the joining report. It clearly shows that at the time of filing of this writ petition the impugned Notification has already been acted upon. The question which was raised initially by learned counsel for the petitioner that as the impugned Notification contains that it was issued by the orders of the Governor of Punjab, therefore, some political influence is there. It has specifically been replied that under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 all the executive actions of Provincial Government shall be expressed to be taken in the name of Governor. Article 139 is hereby reproduced as under for ready reference:--

Art. 139. (1). All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor.

(2). The Governor shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor.

(3). The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government."

1. Under Rule 11 of The Punjab Government Rules of Business, 1974 it has specifically been provided that all the executive actions of the Government shall be expressed to be taken in the name of Governor. Rule 21, ibid, is reproduced as under:

"21. Appointment Postings, Promotions and Transfers:--

(1) Approval of the Chief Minister will be obtained before issue of orders, in cases relating to appointments, promotions, postings and transfers to posts mentioned in Schedule IV.

(2) Transfers of civil servants shown in column 1 of Schedule V shall be made by the Authority shown against each in column 2 thereof."

Schedule IV annexed with the said Rules provides list of cases relating to the appointments, promotions, postings and transfers to be submitted to the Chief Minister before issue of orders. At Sr. No. 11(c) under the heading of "General" it is provided that:

(c) Department concerned. All other posts in BPS-19 and above (except transfers to posts under the High Court).

1. It is clear from the above mentioned discussion that impugned Notification under Article 139 of the Constitution is required to be issued and shown the action taken by the Provincial Government in the name of Governor of the Province, that is why it was specifically mentioned so in the said Notification. Under Rule 11 read with Rule 21 and Schedule IV, ibid, it is the prerogative of the Chief Minister of the Province to pass an order for the transfer of an officer of the Grade-19 and above. Petitioner admittedly is a Grade-19 officer, therefore, transfer order was to be issued by the concerned authority under the approval of the competent authority i.e. the Chief Minister of the Province. The main grievance of the petitioner agitated that his transfer was based on political motivation/influence, could not be substantiated from the record available. In view of the parawise comments submitted by Respondents Nos. 1 & 2 it is specifically mentioned that so many complaints were pending against the petitioner and inquiries were conducted and some actions were required to be taken against him. This controversy i.e. type of inquiries and what were the allegations need not to be discussed while disposing of this writ petition. It is also not necessary to mention the previous history, although it is brought on record that petitioner remained posted at Khanewal for a considerable period on the basis of political considerations of the then ruling political party at that time.

2. So far as C.M. No. 1121/2010 for impleading the Province of Punjab as a party is concerned, it is a belated effort on the part of the petitioner just to prolong the proceedings of this writ petition, otherwise, when Respondent No. 1 Government of Punjab through its Secretary Health Department has been impleaded by the petitioner, which is a proper and necessary party and accordingly comments have already been submitted. Hence, application under Order I Rule 10 CPC being without any lawful justification in the light of above discussion is hereby dismissed.

3. So far as main writ petition is concerned, as it is already discussed that impugned Notification was passed by the competent authority with the approval of the Chief Minister and no illegality could be pointed out by the learned counsel for the petitioner. The judgments cited by learned counsel for the petitioner specially 2007 SCMR 599 (Roshan Khan, Set Government High School Kuz Pao, District Shangla Versus Director Schools and Literacy, N.W.F.P., Peshawar and 4 others) which is a judgment whereby the Hon'ble Supreme Court of Pakistan declared the transfer of a Senior School Teacher on the basis of political influence, is not applicable in the present circumstances of the case. Even otherwise, if the said judgment is seen, it is clear that petitioner in that matter challenged his transfer before the NWFP Service Tribunal and failing which he preferred the civil petition before the Hon'ble Supreme Court of Pakistan.

20. As far as, the other judgments are concerned i.e. 2007 SCMR 54 (Peer Muhammad Vs. Government of Balochistan through Chief Secretary and others) it has different facts thus not applicable to the present controversy. In the Judgment cited by learned counsel for the respondents i.e. 2009 SCMR 61 (Secretary to Government of the Punjab Health Department, Lahore and others Vs. Dr. Abida Iqbal and another) their lordships have specifically held as under:

"We may, however, observe that by virtue of provisions of Section 9 of the Punjab Civil Servants Act, 1974, every civil servant is liable to serve anywhere within or outside the Province in any post under the Government of Punjab."

Another judgment cited as 2007 SCMR 54 (Peer Muhammad Vs. Government of Balochistan through Chief Secretary and others) their Lordships of Supreme Court of Pakistan have held that:

"It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534."

1. In the light of above discussion, firstly, as the impugned Notification is a transfer order passed by the competent authority in accordance with the prevalent rules and secondly the petitioner had acted upon it, as he relinquished the charge and subsequently assumed the charge as directed and later on he opted to prefer this writ petition. This writ petition in view of the above discussion in the light of the judgments cited above and in the light of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. It is now settled law that transfers and postings are clearly fall within the ambit of terms and conditions of service of a civil servant, therefore, if the petitioner had any grievance he must have agitated the same before the Service Tribunal. Resultantly, no merit in this writ petition, which is hereby dismissed.

2. So far as, Criminal Original is concerned, as already mentioned that the petitioner has suppressed material facts from this Court while filing this writ petition and no-doubt the impugned notification was suspended vide order dated 12.04.2010 but actual facts were not submitted before this Court and petitioner perhaps under the garb of orders passed by this Court whereby the impugned Notification was suspended, tried to assume the charge already relinquished and in order to make out a case he filed above mentioned Criminal Original for initiation of contempt proceedings, which was not maintainable. In the circumstances, specially in the light of the above discussion when the main writ petition has been dismissed, Criminal Original No. 239-W-2010 is also hereby dismissed.

(A.A.) Petition dismissed.

PLJ 2011 Lahore 250 [Rawalpindi Bench Rawalpindi]

Present: Kh. Imtiaz Ahmad, J.

KHAWAR MEHBOOB--Petitioner

versus

ABDUL REHMAN and another--Respondents

W.P. No. 1099 of 2010, decided on 15.4.2010.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----S. 22(3)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Application for leave to contest was not accompanied by affidavit--Affidavits of not more than two witnesses--Application to defend the ejectment petition was allowed--Challenge to--Validity--Application for leave to contest shall be accompanied by an affidavit, no penal provision is provided--Rent Tribunal could direct the tenant to file the affidavit even if inspite of direction the tenant did not comply with the order--Rent Tribunal can pass the order for dismissal of the application for leave to contest--Held: Mere on the ground the application for leave to contest cannot be dismissed and the proper direction can be issued in that behalf--Petition was dismissed. [P. 253] A & B

Syed Tanvir Sohail Shah, Advocate for Petitioner.

Malik Khalid Mahmood, Advocate for Respondent No. 1.

Date of hearing: 15.4.2010.

Order

By this single order I intend to dispose of W.P. No. 1099-2010 titled "Khawar Mehboob Vs. Abdul Rehman etc." and W.P. No. 1100-2010 titled Khawar Mahboob Vs. Attique-ur-Rehman etc." since the petitioner in both the petitions is the same and common question of fact and law is involved.

1. Through the present writ petition order dated 23.2.2010 passed by the learned Special Judge Rent Rawalpindi has been challenged whereby he had allowed the application to defend the ejectment petition.

2. The order is challenged on the ground that under Section 22(3) of the Punjab Rented Premises Act, 2009 an application for leave to contest should be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and if desired affidavits of not more than two witnesses.

3. The only ground upon which the impugned order has been challenged is that application for leave to contest was not accompanied by the affidavit of respondent so the leaned Special Judge Rent had committed illegality by allowing the same.

4. Learned counsel for the petitioner contended that in sub-section (3) of Section 22 word used is "shall" i.e. application for leave to contest shall be accompanied by an affidavit and this is mandatory provision of law, so the learned Rent Tribunal had committed illegality in allowing the same. He further contended that the same condition is imposed for filing the ejectment petition under Section 19(4) of the said Act for the landlord. He further contended that almost identical is the case of suit Under Order XXXVII CPC in which the affidavit is mandatory and without affidavit the said suit had been dismissed and placed reliance upon 1998 CLC 1133, PLD 1986 Lahore-124, 1989 CLC 1689, PLD 2009 Lahore-469. He further contended that the case reported in PLD 2009 Lahore-469 relates to the Punjab Rented Premises Ordinance which had been circulated and the Rent Tribunals had been directed to ensure the compliance of mandatory provisions.

5. On the other hand learned for Respondent No. 1 contended that in Section 22(1), the penal clause is provided that the Rent Tribunal shall not allow the respondent to defend the application unless he obtains leave to contest. He further contended that in its sub-section (4) once again the penal provision is provided that the Rent Tribunal shall not allow leave to contest to the respondent unless the application discloses sufficient grounds for production of oral evidence. He contends that in its sub-section (3) it is provided that the application for leave to contest shall be accompanied by the affidavit but no penal provision is provided in the said sub Section so, this is a cureable defect and otherwise the matter should be decided not on technicalities. He contended that even in the suits under Order XXXVII CPC, it had been observed by the Courts that said affidavit could be accepted by the Court later on. In this behalf he had placed reliance upon PLD 1993 Karachi-661 and 2004 CLC-1266.

6. Arguments heard. Record perused.

7. The most relevant law cited by the learned counsel for the petitioner on the subject-matter which relates to Punjab Rented Premises Ordinance, 2007 is reported in PLD 2009 Lahore 469. Even in the said case, only direction was issued in the following words--

"the Rent Tribunal is further to ensure that whether the said statutory provisions stands complied with, the application is filed by the tenant/respondent for leave to contest in the manner prescribed."

Even otherwise for convenience sake Section 22 of the said Act is reproduced as under:--

Leave to contest. (1) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest.

(2) Subject to this Ordinance, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.

(3) An application for leave to contest shall be in the form of a written reply stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, affidavits of not more than two witnesses.

(4) The Rent Tribunal shall not allow leave to contest unless the application discloses sufficient grounds for production of oral evidence.

(5) The Rent Tribunal shall decide the application for leave to contest within a period of fifteen days from the date of its filing.

(6) If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order.

1. A perusal of above section clearly shows that in its sub-sections (1) and (4) the penal provision is provided but it is sub-section (3) where it has been provided that the application for leave to contest shall be accompanied by an affidavit, no penal provision is provided. This clearly implies that this is a cureable defect and the learned Rent Tribunal can direct the tenant to file the affidavit even if inspite of direction the tenant does not comply with the order, the Rent Tribunal can pass the order for dismissal of the application for leave to contest. In the present case it appears that the learned Rent Tribunal has not taken notice of the fact that the application was not supported by the affidavit. Had it taken notice of it, it must have directed the tenant to file the affidavit. However, merely on this ground the application for leave to contest cannot be dismissed and the proper direction can be issued in this behalf.

2. In view of what has been said above, both these writ petitions have no force and the same stands dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 253 [Rawalpindi Bench Rawalpindi]

Present: Muhammad Muzammal Khan, J.

MUHAMMAD AKBAR SHEIKH--Petitioner

versus

ABDUL REHMAN KHAN, LEARNED ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 3 others--Respondents

W.P. No. 40 of 2005, decided on 24.10.2007.

Muslim Family Law Ordinance, 1961 (VIII of 1961)--

----S. 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Divorced without giving notice of divorce to chairman union council--Recovery of maintenance allowance/dower--Suit for recovery of maintenance allowance and dower amount against the petitioner who was employed in Germany--Family Court awarding maintenance allowance at the rate of Rs. 5,000/- per month for her iddat period and for minor child @ of Rs. 3,000/- per month till his custody--Entitled to get maintenance allowance was maintained and appeal filed by petitioner was dismissed--Challenge to--Validity--Amount of maintenance allowance awarded was not excessive or exorbitant in the age of inflation/dearness--In light of admission in the written statement, evidence on the file and submissions made at Bar, it transpired that controversy was correctly put to rest by both the Courts, without committing any error of law--Held: No case for interference in constitutional jurisdiction of High Court was made out--Petition was dismissed. [P. 256] A & B

Mr. Azhar Hussain Malik, Advocate for Petitioner.

Ms. Yasmin Khan, Advocate for Respondents.

Date of hearing: 24.10.2007.

Judgment

Instant constitutional petition assailed the judgments/orders dated 3.1.2004 and 6.11.2004 passed by the learned Judge Family Court and the learned Additional District Judge Rawalpindi, to be declared illegal, void and of no legal consequence, whereby suit filed by Respondents No. 3 aud 4 for recovery of maintenance allowance/dower was decreed and petitioner's appeal was dismissed, respectively.

1. Succinctly, relevant facts are that Mst. Saleema Akbar Respondent No. 3 was married with the petitioner according to Muslim rites on 10.1.1996 against a dower of Rs.5,000/- through a registered Nikah Nama. Respondent No.3 performed her marital obligations but relations between the spouses did not remain cordial, leading to desertion. This wedlock gave birth to a child who was named as Muhammad Faizan and was in the custody of Respondent No.3. Respondents No. 3 and 4 filed a suit for recovery of maintenance allowance and dower amount against the petitioner who was employed in Germany, with the averments that petitioner after living with Respondent No. 3 in Pakistan did not establish contact with her after leaving for Germany. She further asserted that petitioner was already married in Germany and had off shoots from his first marriage but this fact was concealed at the time of marriage with her. She also pleaded that Respondents No.3 and 4 were not being provided maintenance allowance by the petitioner, necessitating filing of suit.

2. Petitioner being defendant in the suit, contested the same by filing his written statement wherein he pleaded that Respondent No. 3 was divorced in March 2000 in accordance with "Shariat-e-Muhammadi" hence she was not entitled to any maintenance. Petitioner also asserted that he is a disabled person and is pulling his life by living hand to mouth in Germany on subsistence allowance of his two children and wife. Controversial pleadings of the parties necessitated training of issues and recording of evidence. The learned Family Judge seized of the suit after doing the needful, decreed the suit of Respondents No. 3 and 4 vide his judgment/decree dated 3.1.2004, awarding Respondent No. 3 maintenance allowance at the rate of Rs.5,000/- per month for her "Iddat Period" and for Respondent No. 4 at the rate of Rs.3,000/- per month from October 1997 till his custody remains with Respondent No. 3. Adjustment of interim maintenance already paid by the petitioner was also allowed.

3. Both the parties were not satisfied with the decision of the learned Judge Family Court and consequently filed their distinct appeals before the learned Additional District Judge where appeal of Respondent No. 3 was accepted and she was held entitled to get maintenance allowance at the rate of Rs.5,000/- per month from October, 1997 to June, 2000 including her Iddat Period and appeal filed by the petitioner was dismissed, through a consolidated judgment dated 6.11.2004. Petitioner, thereafter, filed instant constitutional petition for the relief noted above. Respondent No.3 in response to notice by this Court, has appeared and was represented through his counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioner had admitted in his written statement that he divorced Respondent No. 3 in March 2000 in accordance with "Shariat-e-Muhammadi" without giving notice of divorce to the Chairman Union Council concerned, in terms of Section 7 of the Muslims Family Law Ordinance, 1961 and the dower amount fixed in the Nikah Nama. He also admitted that dowry articles were given to Respondent No 3 at the time of marriage which according to him, were lying in his house and expressed his willingness to return the same. Besides it, Respondent No. 3 had proved that petitioner is living in Germany and has good financial position, as he owned considerable landed property in Pakistan. Respondent No. 3 appeared as her own witness (PW.1) and rendered substantial support to her claim set-forth in her plaint. She was subjected to lengthy cross-examination but veracity of her statement could not be shattered. She produced medical bills/receipts (Ex. P.1 to Ex. P. 30), copy of Nikah Nama (Ex.P. 31) and medical prescriptions (Ex.P.32 to Ex.P.36) in evidence.

5. Petitioner in rebuttal of evidence of Respondent No. 3, examined his attorney Sh. Muhammad Sohaib, Special Attorney as DW.1 who deposed that petitioner is living in Germany where he is married. According to the statement of DW.1 petitioner divorced Respondent No.3 on 10.3.2000, aud that petitioner is sick hence is getting unemployment allowance from the Social Security Department of Germany. He denied suggestions of Respondent No. 3 that petitioner is doing business of Garments and is earning 4000/- Marks per month but at the same time, he did not specify earnings of the petitioner or the amount of unemployment allowance being paid to him by the Government of Germany. Social Welfare Certificate (Ex.D.4) was produced on behalf of the petitioner showing that he was disbursed 2,39,928/- Marks till January, 1999 which if controverted into Pak. Rupee, becomes considerable amount, justifying the impugned judgment/decree concurrently passed by Respondents No. 1 and 2. Even otherwise, the amount of maintenance allowance awarded is not excessive or exorbitant in this age of inflation/dearness. In light of the admission in the written statement; evidence on the file and submissions made at the Bar, it transpired that controversy was correctly put to rest by both the Courts, without committing any error of law/facts.

6. For the reasons noted above, no case for interference in constitutional jurisdiction, of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit, is dismissed with no order as to costs.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 256

Present: Sh. Azmat Saeed, J.

M/s. SHAHEEN COTTON MILLS, LAHORE and another--Petitioners

versus

FEDERATION OF PAKISTAN, MINISTRY OF COMMERCE, PAK. SECRETARIAT, ISLAMABAD through its Secretary and another--Respondents

W.P. No. 4396 of 2010, decided on 18.5.2010.

Constitution of Pakistan, 1973--

----Art. 18--Fundamental rights--Application of--Art. 18 of the Constitution must be read in context of the entire Constitution--Where one fundamental right granted under one particular Article of the Constitution collides with or transgresses upon another fundamental right also guaranteed by the Constitution, the two fundamental rights must be read in such a manner that each is subjected to the other. [P. 267] A

Constitution of Pakistan, 1973--

----Art. 18--Fundamental rights--Limitations--Where it is intended to place any limitation on any fundamental right--Where such limitations are purported to be imposed through a statute promulgated by the federal or provincial legislation, the said law must also stand the test of constitutionality by not being in violation of the Constitution or other fundamental rights guaranteed thereby--If the limitations are purported to be imposed through delegated legislation, the additional test of not being uncertain, not unreasonable or ultra vires the parent statute and not in conflict with any other law would also apply--Petition was dismissed. [P. 270] B

Mr. Athar Minallah, Mr. Salman Akram Raja, Mr. Muhammad Bashir Mirza and Syed Shahab Qutub, Advocates for Petitioners.

Mr. Amir Rehman, D.A.G., Mr. Ali Sibtain Fazli, Advocate, Mr. Arshad Mehmood, Advocate, Mr. Rashid Anwar, Advocate and Mr. Kanwar Muhammad Usman, Director Ministry of Textile, Mr. Hasham Ahmad, Advocate and Mr. Nasar Ahmed, Advocate for Respondents.

Date of hearing: 22.4.2010.

Judgment

Through this judgment, it is proposed to decide the Writ Petitions Nos.4396, 6158, 7760, 7320, 7321, 7577, 7579, 7578, 4833, 5595, 7029, 7030, 5477, 5479, 4831, 6155, 4835, 5495, 4836, 4837, 6157, 4397, 7031, 7272, 7229, 5496, 8023, 8024, 4832, 6154, 6159, 6156, 6160, 6223, 6222, 4834, 4398, & 7032 of 2010 involving identical questions of law and fact.

1. Brief facts necessary for the adjudication of the lis at hand are; that the writ petitioners in all the above-mentioned Constitutional petitions are manufacturers and exporters of cotton yarn who have filed these petitions to call into question the validity of the Order/Notification No. S.R.O. 26(I)/2010 dated 14.01.2010 issued by the Government of Pakistan purportedly under Section 3(1) of the Import and Export (Control) Act, 1950 placing embargo on the export of cotton yarn by imposing a ceiling on the export thereof. It is provided in the said order/notification that cotton yarn shall only be exported up to 50 Million K.G. per month from the date of notification till 30th of June, 2010. The writ petitioners have also challenged the subsequent Order/Notification No. S.R.O. No. 119(I)/2010 dated 25.02.2010 whereby the aforesaid ceiling was further reduced from 50 Million K.G. to 35 Million K.G. per month till the 30th of June, 2010.

2. It is contended by the learned counsels that the petitioners are engaged in the business of manufacturing and or export of yarn for the last many years and prior to the issuance of the notification/order dated 14.01.2010, firm commitments have been made and contracts entered into with various foreign importers by the petitioners. Such commitments have been made in view of the long standing policy of the Federal Government whereby no restrictions were imposed on the export of yarn and as a consequence of the issuance of the two orders/notifications in dispute the present writ petitioners are likely to suffer huge financial losses upon their failure to meet with their foreign commitments. The petitioners also run risk of being embroiled in international litigation with all its attending complications including financial costs and loss of foreign market. It is further contended by the learned counsels that the orders/notifications in dispute are in fact mala fide and have been issued merely to further depress the yarn prices in the local market for the benefit of the local manufacturers of finished goods. In fact, it is contended the sole purpose appears to be to give unfair advantage to one sector of the textile industry at the expenses of the other. It is contended in this behalf that the said order/notifications are not only discriminatory and, therefore, offends against Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 but also in violation of the fundamental rights of freedom of trade and business guaranteed by virtue of Article 18 of the Constitution. In the above context, it is contended that the right guaranteed under Article 18 of the Constitution can only be curtailed or limited either for the benefit of a State monopoly or through a licensing regime and thirdly in order to nurture and promote free competition. The order/notifications on the face of it do not appear to be for the establishment of the State monopoly for the export of cotton yarn nor create a licensing regime. The said order/notifications do not promote free competition, but in fact, curtails competition. The learned counsels further contended that the fundamental rights guaranteed under Article 18 of the Constitution is not illusionary and no interpretation thereof is permitted whereby the same can be taken away by the Government by issuance of a notification or for that matter enactment of a Law. Such right is Fundamental in nature and any unwarranted impediment to freedom of trade is not acceptable to the Constitution. It is added that while interpreting Article 18 the fairness or otherwise of the trade is irrelevant and in this day and age businesses must live or die by the natural rules of universally accepted free market economy. Hence, the order/notifications in question are ultra vires the Constitution and liable to be struck down and in this behalf this Court is vested with the jurisdiction of judicial review to examine the same and also to enforce the fundamental rights.

3. In the alternative, it is further contended that nevertheless the order/notifications in question are delegated legislation, hence, subject to judicial review including by employing the erstwhile test of reasonableness. In this behalf it is the case of the petitioners that promoting one sector of the industry at the expense of the other is not reasonable by any stretch of imagination. It is added that the mode and method employed in practice would cause disruption of the trade, as it does not discriminate between manufacturer and speculators.

4. It is further contended that several of the writ petitioners have established export oriented spinning units for manufacturing and export of yarn under various notifications/S.R.Os. issued by the Government of Pakistan which enjoin the said writ petitioners to export their products and by way of the impugned order/notifications the said writ petitioners would be forced to commit a default of the terms and conditions of the notifications whereunder the units were established having unpleasant and far reaching consequences for the writ petitioners. In fact the order/notifications in issue, it is contended, are in contradiction to the notifications/S.R.Os. whereunder such export oriented units of the writ petitioners have been established. It is the case of the writ petitioners that in fact the notifications would have an adverse effect in this behalf. M/s. Athar Minallah and Salman Akram Raja Advocates, learned counsel for the petitioner in support of their contention relied upon the judgments reported as Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 S.C. 193) Director Food, N.W.F.P. and another v. M/s Madina Flour and General Mills (Pvt.) Ltd. and 18 others (PLD 2001 S.C. 1) Muzaffar Khan and others v. Evacuee Trust Property through Deputy Administrator (2002 CLC 1819) M/s. Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) Saleh Muhammad v. Traffic Manager, Port Trust, Karachi (PLD 1961 (WP) Karachi 349) Hashwani Sales and Service Limited v. Karachi Building Control Authority and 15 others (PLD 1986 Karachi 393) M/s. East and West Steamship Company v. Pakistan, through the Secretary, Government of Pakistan, Ministry of Commerce, Karachi etc. (PLD 1958 S.C. (Pak.) 41) Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 S.C. (Pak) 9) Pakistan Muslim League (N) through Kh. Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2007 SC 642) In re v. Abdul Azeez and another (AIR 1954 Madras 62) Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others (AIR 1986 S.C. 515) The State of Madras v. V.G. Rom (AIR 1952 SC 196) I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) Zaheeruddin and others v. The State and others (1993 SCMR 1718) Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 S.C. 341) Federation of Pakistan and others v. Amar Textile Mills (Pvt.) Limited and others (2002 SCMR 510) M/s. M. Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404).

5. Ch. Aamir Rehman, learned Deputy Attorney General for Pakistan entered appearance pursuant to notice issued by this Court in terms of Order 27-A CPC and also to represent the respondents.

6. The learned Deputy Attorney General for Pakistan has strongly controverted the contentions raised on behalf of the writ petitioners. It is contended that the textile industry is the backbone of the economy of the country, which provides substantial portion of employment and earns substantial foreign exchange. It is the case of the respondents that the orders/notifications were issued in view of the peculiar situation pertaining to yarn. There was a dramatic increase in the export of yarn from Pakistan. It was noticed that yarn export in the month of January 2010 was 50% more than the yarn exported in January 2009. Similarly, it was also noticed that the export of value added textile products declined. The indicators of the export of yarn revealed that unless remedial measures were taken by the Government restricting the export of yarn, the local value added textile industry would be faced with a huge shortage of its raw material i.e., yarn, thereby forcing them out of business. Thus, it was believed the uncontrolled export of yarn would not only adversely effect the balance of payment but would also lead to wide spread unemployment. In the above perspective initially the quantum of cotton yarn permitted to be exported per month was fixed at .50 million Kg. Even with the said ceiling it appeared that the local value added textile industry would run short of yarn, and consequently the said ceiling was further reduced to 35 million Kg per month vide the second order/notification. It is contended that the amount of yarn now being permitted to be exported is more than the yarn that in fact was exported in the preceding year. In the above context, it is further contended that the aforesaid action was taken by the Federal Government after extensive discussion with stakeholders including the APTMA (All Pakistan Textile Manufacturing Association). It was contended that said order/notifications were necessary and in consonance with the best economic and social interest of Pakistan.

7. On the legal plane it is contended that these constitutional petitions are not maintainable as Article 18 of the Constitution only confers rights on citizens and not the companies. It is further added that the said Article protects only the lawful trade or business, and after the issuance of the order/notifications in question, the export of yarn in violation thereof would be unlawful, hence, not protected by Article 18 of the Constitution. The order/notifications are a valid exercise of powers vested in the Federal Government in this behalf which have been exercised by it in accordance with its policy and in the best interest of the people of Pakistan. Learned DAG submits that these notifications are the manifestations of the policy of the Government of Pakistan, hence, perhaps beyond the pale of Judicial Review. It is further contended that said order/notifications issued are not only intra vires the parent statute i.e., the Import and Export (Control) Act 1950 but also withstands the test of reasonableness. In the above perspective, it is prayed that these writ petitions be dismissed.

8. During the course of the hearing of these petitions, various applicants, who are engaged in the manufacturing and export of Value Added Textile, filed civil miscellaneous applications through M/s. Ali Sibtain Fazali and Raashid Anwar Advocates. Both the learned counsels supported the stand taken by the learned Deputy Attorney General for Pakistan in defence of the order/notifications in question. It was contended that fundamental rights guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan 1973, in its application was limited to citizens, and did not extend to companies, hence, the constitutional petitions on behalf of various public and private limited companies were not maintainable, and liable to be dismissed on this short point alone. It was further contended that the rights so granted under the aforesaid Article 18 was limited to the conduct of any lawful trade or business. That Section 3 of the Import and Export (Control) Act, 1950 empowered the Federal Government to issue order published in the official gazette to prohibit, restrict or otherwise control the export of any goods outside Pakistan. In exercise of the said powers, the Federal Government has issued the order/notification under reference. And upon issuance whereof, by virtue of Section 5 of the Import and Export (Control) Act, 1950, any export in violation thereof, would be a crime and therefore also illegal and unlawful. Consequently, upon issuance of the order/notification in question, the export of yarn in violation thereof, would cease to be a lawful business, and therefore, the provisions of Article 18 of the Constitution of Islamic Republic of Pakistan 1973 would cease to be applicable. It is further contended that it is settled law that issuance of order/notifications under Section 3 of the Import and Export (Control) Act, 1950 is a matter of the Policy, which is in the executive domain of the Government. And that this Court cannot sit in appeal upon such policy matters so as to substitute its findings or views for that of the Government, and therefore, these petitions are not maintainable, and any order passed by this Court in favor of the petitioners would transgress into the realm of the Executive and therefore offends against the tracheotomy of powers as envisaged by Constitution of Islamic Republic of Pakistan, 1973. Learned counsels have further added that unlike the parallel Article in the Constitution of India i.e., Article 19, the concept of `Reasonable Restrictions' is conspicuous by its absence in Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the order/notifications in question cannot be subjected to Judicial Review on the ground of Reasonableness as is being canvassed by the learned counsels for the writ petitioners.

9. In the alternative, learned counsels have further argued that even if the test of reasonableness is to be applied in the instant cases, the only aspect thereof which this Court may examine is whether the person making the policy or issuing the order/notifications had the relevant material before him or took any action which a man of ordinary prudence would not have taken in similar circumstances. It is not the subjective test of reasonableness which is to be employed in such a situation. Further added that the obvious purpose of the notifications/order was to ensure that the entire yarn produced in the country is not exported leaving the value added textile sector starved of yarn, and forced to import the same at higher prices, and thereby becoming uncompetitive in the international market. Such a course of action would result in wide spread unemployment reduction in the export of the country further widening the trade deficit. It is contended that about 18.4 million people are employed in the value added textile sector, while in the spinning sector represented by the writ petitioners only 0.2 million people are employed. It is also contended that 1 Kg yarn exported by writ petitioners on an average fetches return of USD 2.03, while on an average finished product exported by value added textile sector earns an average of 5.38 USD per Kg. It is contended that in the last year value added textile exported goods worth 7.72 billion USD, while the spinning sector only earned 1.13 billion USD. In the above context, restrictions imposed by notifications/order in question are not only reasonable in every sense of the word, but also in the national interest. Learned counsels have further argued that the notifications/order did not apply to processed or fine yarn which fetches higher rates in the international market thereby earning foreign exchange for the country. It is also contended that such spinning units that were export oriented and were under obligation to export their product in view of the notifications issued by the Federal Government have been catered for in the order/notifications in issue.

10. That it is the case of the applicants that the notifications/order in question was prompted by sudden increase in the export yarn from Pakistan which forebode an impending shortfall. Said yarn is being exported to countries which compete with Pakistan in the value added textile sector in the international market, hence, the restrictions imposed was imperative.

11. M/s. Ali Sibtain Fazli and Mr. Raashid Anwar Advocates for the applicants also relied on the judgments reported as PLD 1975 SC 667 Government of Pakistan Vs. Zamir Ahmed, PLD 1958 SC 437 The Tariq Transport Company Lahore Vs. Sargodha Bhera Bus Service Sargodha, 1986 SCMR 680 Muhammad Iqbal Rafi Vs. The Province of Punjab, PLD 2002 Lahore 359 Nisar-ul-Haq Vs. Tehsil Municipal Administrator City, 1978 SCMR 327 Zamir Ahmed Khan Vs. Government of Pakistan, 1995 CLC 1687 (Lahore) MD Tahir Vs. Chief Secretary Government of Punjab, 2006 YLR 229 Shehzad Riaz Vs. Federation of Pakistan, 2004 MLD 1372 Rehmat Filling Station Vs. Government of Pakistan, 2003 MLD 1133 (Lahore) Muhammad Saleem Vs. Federal Public Service Commission of Pakistan, 2008 SCMR 17 New Shaheen Trading Company Vs. Government of Pakistan, 2007 PTD 1005 Molasses Trading & Export Co Vs. Government of Pakistan, 2005 PTD 1670 Cynamid Pakistan Ltd. Vs. Collector of Customs, PLD 1988 SC 670 Abdul Rahim Allah Ditta Vs. Federation of Pakistan, PLD 2003 Lahore 752 Ahmad Abdullah Vs. Government of Punjab, 1999 SCMR 412 Collector of Customs Vs. Ravi Spinning Mills Ltd, 1947(2) All ER 680 Associated Provincial Picture House Ltd. Vs. Wednesbury Corporation, 1984(3) All ER 935 In the Council of the Civil Service Unions and others.

12. Heard. Record perused.

13. Learned counsels for the Interveners and the learned Deputy Attorney General for Pakistan relying upon the judgment reported as Progress of Pakistan supra has contended that the right guaranteed under Article 18 is available only to the citizens and does not to companies, hence, the petitioners who are limited companies cannot maintain the instant constitutional petitions. In the instant case and several connected writ petitions citizens i.e., the shareholders of the company also appeared and figured as the petitioners. Moreover in all the connected writ petitions challenge to the orders/notification in question is not limited to the alleged violations of Article 18 but encompasses other grounds pertaining to the vires, legality and validity of the said orders which are available to the companies independent of Article 18 consequently this Court is persuaded to sustain the said objections or dismiss these petitions on account thereof.

14. The main thrust of the arguments of the learned counsels for the petitioners was that the impugned order/notification issued under Section 3(1) of the Import and Export (Control) Act, 1950 offends against the fundamental rights of the petitioners as guaranteed by Article 18 of the Constitution of Islamic Republic of Pakistan. Said Article reads as follows:

"18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this article shall prevent--

(a) the regulation of any trade or profession by a licensing system, or

(b) the regulation of trade, commerce or industry in the interest of free competition therein, or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons."

1. In pith and substance, petitioners' case appears to be that every citizen inter alia has been granted a fundamental rights to carry on any trade or business subject only to regulation either by a licensing system or for the interest of free competition. Said right may be curtailed by creation of State Monopoly for such trade or industry. No other restriction can be imposed upon the conduct of any trade or business by a citizen, and the word `lawful' as mentioned in the said Article is controlled by the (a)(b) and (c) of the Proviso. In the above perspective, it is the case of the petitioners that the offending Order/notification under Section 3(1) of the Import and Export (Control) Act, 1950 neither envisages a licensing system nor creates a State Monopoly for the export of yarn, and also by no stretch of the imagination can be in the interest of free competition, hence are ultra vires Article 18 of the Constitution.

2. If the contentions of the learned counsels for the petitioners are accepted, the expression lawful' in Article 18 of the Constitution would become meaningless and of no legal consequence. If said Article is interpreted without reading the wordlawful', the effect perhaps would be as is being advanced and canvassed by the learned counsels for the petitioners, i.e., that a citizen can carry on any trade or business (lawful or otherwise) subject only to the limitations mentioned in the provisions i.e., the licensing system advancing of free competition and by way of State monopoly. Such an interpretation would make the word lawful' irrelevant and superfluous. It is settled law that surplusage is not to be easily imputed or attributed to any Statutory instrument least of all a Constitutional documents. This Court cannot be persuaded that the wordlawful' in Article 18 is a surplus age and has been inserted therein by the Framers of the Constitution accidentally and not attending it to be read therein. Article 18 must necessarily be interpreted so as to give effect to it in its entirety by giving meaning to every word and expression used therein including the expression `lawful trade or business'.

3. That incidentally the said expression `lawful trade or business' were also mentioned in Article 12 of the erstwhile Constitution of 1956. In fact said Article 12 of the Constitution of 1956 is legally identical to Article 18 of the Constitution of 1973. Said Article reads as under:

"12--Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession, or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent--

(a) the regulation of any trade or profession by a licensing system, or

(b) the carrying on, by the Federal or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.

1. The expression `lawful trade or business' as used in Article 12 of the Constitution of 1956 came up for interpretation before this Court in the case reported as PLD 1958 (WP) Lahore The Progress of Pakistan Co., Ltd. Vs Registrar Joint Stock Companies, Karachi, 2) the Islamic Republic of Pakistan wherein Mr. Justice BZ Kaikaus (as he then was) held as follows:

41. For my part, I have never had any doubt as regards the effect of the word "lawful" in Article 12 and the extent of the guarantee granted by this Article. The Article entitles the citizens of Pakistan to carry on any business, trade, or profession with this condition only that the individual acts involved in it are not unlawful. If an act involved in a business, trade, profession or occupation, is such that if performed otherwise than as a part of a business' trade, profession or occupation, it is unlawful, then it cannot become lawful just because it is performed as a part of a business, trade or profession, that is, as a part of activity indulged in for the purpose of profit or income.......That is the meaning of saying that the citizens can carry on any lawful business etc. It is lawful if the activity involved in it, is not, apart from its being carried on as a profession, unlawful.

1. In another case reported as PLD 1958 (WP) Lahore 929 Mehtab Jan and another Vs Municipal Committee Rawalpindi, this Court while dilating upon the same expression `lawful trade or business' as used in Article 12 of the Constitution of 1956 was interpreted by Mr.Justice MR Kayani (as he then was) in the following terms:

"9. Next in part III, the Constitution laid down the "Directive Principles of State Policy". The State which includes the Legislature, was to guide itself in the formulation of its policy by the provisions of this Part and Article 28(e), which is in this Part provides that "the State shall endeavour to prevent prostitution"

........................

........................

17. .....That is why the matter has been left at the stage of endeavour. And the word `lawful' would be properly interpreted if the ultimate goal of the Legislature to prevent prostitution is not excluded from its meaning.

1. In the aforesaid judgment the learned Judge also interpreted lawful' in contra distinction to the wordlegal' in the following terms:

2. In Roland Burrow's "words and Phrases Judicially Defined" the following is to the same effect:--

"By Section 70 of the Indian Contract Act, three conditions are required to establish a right of action at the suit of a person who does anything for another, (1) the thing must be done lawfully \\\ the term lawful' no doubt has a wider meaning than the termlegal'. Legal is what is in conformity with the letter or rules of the law administered in the Courts; `lawful' is what is in conformity with (or frequently not opposed to) the principal of spirit of the law, whether moral or judicial \\\\"

1. These interpretations further the arguments on which I have primarily relied that every law has a moral or ethical setting.

2. In Zamir Ahmed's case ibid, the Honorable Supreme Court of Pakistan while dealing with the order issued under Section 3 of the Import and Export (Control) Act, 1950 in the context of Article 18 of the Constitution in general expression of the term `lawful trade or business' held as follows:

"it will be appropriate to examine in the first instance, whether the respondent can invoke any provision of the Constitution in the Chapter relating to the Fundamental Rights for the grant of licence for the import of films. Article 18 of the Constitution, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the Interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use or word "lawful" in the relevant provision.

In the aforesaid case, writ of Mandamus seeking issuance of a licence to import films was dismissed in view of order/notification issued under Section 3(1) of the Act ibid.

1. In Arshad Mehmood's case supra Section 69-A of the Motor Vehicle Act crating a franchise was challenged. The Hon'ble Supreme Court of Pakistan concluded that such a franchise is a privileged contract creating a monopoly, whereby the Government had attempted to regulate the business. Such regulation did not pass the test of reasonability and was not in the aid of free competition and created a private monopoly. The impugned provision was struck down for several reasons. However, Zamir Ahemd's case was not over ruled, and in this behalf it was held as under:

"The above judgment was maintained in review petition in the judgment reported as Zamir Ahmed Khan Vs Government of Pakistan and another (1978 SCMR 327). Aforesaid decision seems to be in consonance with the judgment in the case of Municipal Corporation of the City of Toronto (ibid)

1. As has been stated above, the Constitution must be interpreted as one organic complete whole and no part thereof can be read in isolation including the fundamental rights. Thus Article 18 of the Constitution must be read in the context of the entire Constitution. There is a possibility that a fundamental right granted under one particular Article of the Constitution may read in isolation collide with or transgress upon another fundamental right also guaranteed by the Constitution. In such an eventuality the two fundamental rights must be read in a manner that each is subject to the other as has been held in the judgment reported as AIR 1978 Supreme Court 597 Smt. Maneka Gandhi Vs. Union of India and another in the following manner:

"but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom."

1. Fundamental rights do not exist in isolation nor such rights are exercised in a vacuum. Such rights cannot must necessarily be enforced in the context not only of the fundamental rights of other individuals but also the requirements and interests of the State and society at large and need to be harmonized therewith. The Honorable Supreme Court of Pakistan in the case reported as PLD 2007 SC 642 Pakistan Muslim League (N) through Khawaja Muhammad Asif MNA and others Vs Federation of Pakistan through Ministry of Interior and others held as follows:

"The fundamental rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable."

1. Before proceeding further it would perhaps be appropriate at this juncture to the examine the contentions being raised on behalf of the Interveners as well as by the learned Deputy Attorney General for Pakistan to the effect that if any act or omission is prohibited by law it would cease to be lawful for purposes of Article 18 of the Constitution. In this behalf perhaps reference may be made to the observations by the Honorable Supreme Court in the case reported as PLD 1957 Supreme Court (Pak) Jibendra Kishore Achharyya Chowdhury and 58 others Vs The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan. While interpreting Article 12 of the Constitution of 1956 it was observed as under:

"The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law."

1. While interpreting the Constitution and its provisions it must be born in mind that it i.e. the Constitution of Islamic Republic of Pakistan, 1973 is a living document catering for the progress peace, welfare and amity amongst the citizens. The social and economic needs of the country, growing requirements of the society and the ever changing and complex issues faced by the people cannot be ignored. Therefore, the judicial interpretation must necessarily be dynamic rather than strategic, elastic rather than rigid, as has been held by the Hon'ble Supreme Court of Pakistan in the judgments reported as: Government of Balochistan vs. Aziz Ullah Maiman and 16 others (PLD 1993 SC 341), M/s. Ilahi Cotton Mills and others vs. Federation of Pakistan (PLD 1997 SC 582), and Arshad Mehmood vs. Government of Punjab (PLD 2005 SC 193). Consequently, Article 18 of the Constitution must also be examined and interpreted while keeping in mind the above perspective, conscious of evolving nature of the rights guaranteed thereby necessitated by the ever changing problems for increasing complexities.

2. The freedom of trade, business and profession as guaranteed under Article 18 of the Constitution must be interpreted in the light of the aforesaid judgments. It appears that every citizens of Pakistan has been guaranteed a right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. This fundamental right may be exercised subject to qualifications if any imposed and is liable to regulation through a licencing system or for free competition. However, such qualifications and regulations must necessarily be reasonable. The said Article does not prohibit the Government from creating a State monopoly in respect of any trade, business, industry or service to exclusion of the citizens.

3. Fundamental rights should not be treated lightly or permitted to be interfered with in a casual or cursory manner through sub-constitutional measures. In the absence of requirement of qualifications or regulation through licencing or for advancement of free competition, the right guaranteed under Article 18 may be curtailed where the carrying on of such trade or business is not lawful. The expression lawful as employed in Article 18 is not meaningless or surplusage and must be given effect to. The said expression lawful has been used in contradistinction to the expression "legal" and the two words are not synonymous. Any act or omission which otherwise is not prohibited by law may not be treated as unlawful merely because it is undertaken during conduct of any trade, business or profession. However, limitation may be imposed by law on the right to undertake any trade or business in order to harmonize the said right with a competing fundamental right of another person also guaranteed by the Constitution or to fulfil a positive command of the Constitution, say to give effect to Article 3 or in an endeavour to achieve the high goals and aspirations of the people of Pakistan as mentioned in the Constitution including in the Principle of Policy or for public security and safety or for the advancement of public health or morality and for the welfare of the people or to create a balance between the rights of individuals and the interest of the community and the State. Needless to say that such limitations must be rational and proportionate to the end sought to be achieved. The purposes of the offending law, its moral and ethical foundation and its social and economic impact must necessarily be identified and examined in the above context.

4. Where such limitations are purported to be imposed through a statute promulgated by the Federal or Provincial Legislature, the said Law must also stand the test of constitutionality by not being in violation of the Constitution or the other fundamental rights guaranteed thereby. If the limitations are purported to be imposed through delegated legislation, the additional test of not being uncertain, not unreasonable or ultra vires the parent statute and not in conflict with any other law would also apply. In case of executive action, the same must necessarily be taken in exercise of powers vested on it by Law and in accordance therewith without offending any other law or the Constitution or the fundamental rights guaranteed thereby.

5. The learned Deputy Attorney General as well as the learned counsels for the Interveners have taken the plea that the impugned Order/notification issued by the Government under Section 3(1) of the Import and Export Control (Act) 1950 is a policy matter, hence the same are not subject to judicial review by this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. No doubt it is now well settled law that our Constitution is based on trichotomy of power, whereunder it is the right of the Government to lay down a policy and enforce the same. It is an equally well settled principle of law, as has been repeatedly enunciated by the Hon'ble Supreme Court of Pakistan that this Court can neither sit in appeal in respect of any policy matter nor substitute the policy decisions of the Government by its own. Reference in this behalf may be made to inter alia on judgments reported as: Govt. of Pakistan vs. Zamir Ahmad Khan supra, and Muhammad Iqbal Rafi and two others vs. The Province of Punjab, Lahore and others (1986 SCMR 680) and Nisar-ul-Haq vs The Tehsil Municipal Administration (2002 Lahore 2359).

However, it may not be correct to hold that there is an absolute bar to the exercise of judicial review by this Court in all matters pertaining to a policy of the Government. The Hon'ble Supreme Court of Pakistan in the judgment reported as: Muhammad Iqbal Rafi vs. The Province of Punjab (1986 SCMR 680) was pleased to hold as follows:--

"Whatever be the thinking on either side, the Government has the right of laying down the policy and if it chooses to do so and there is no law on the subject which it offends, it is not the right of any Court to throw it out, other than hold, in any genuine case, that the same is unreasonable or arbitrary."

1. In Arshad Mehmood's case the Hon'ble Supreme Court of Pakistan has observed as follows:

If any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

1. Thus, in cases where the policy collides with the Law or the Constitution or it arbitrary or unreasonable, this Court, in view of the afore-quoted judgments of the Hon'ble Supreme Court of Pakistan, can intervene though it may not substitute the policy of the Government by laying down a new policy on the subject. Thus, this Court is not persuaded to hold that it has no jurisdiction to examine the offending Order/notification or the policy of the Government that it manifests. Even in policy matters, this Court can always exercise its powers of judicial review so as to ascertain that the said policy does not violate any law or the Constitution and that the same is not arbitrary or unreasonable.

2. There is yet another aspect of the matter. All Government policies eventually must be translated into Legislative or Executive actions. In order to implement the policy, laws have to be made and/or executive orders passed or direction given. In the absence thereof, the policy would merely remain an intention good or bad of the Government with no real effect on the citizens, hence may not provide any ground for grievance thereagainst. In such an eventuality, any controversy regarding such policies perhaps would only be academic in nature.

3. When, in order to implement or give effect to a policy, the Legislature promulgated a Law, such Statutory Instrument is obviously subject to judicial review. It is a well settled law that its Constitutionality can always be examined and if necessary the same can be struck down inter-alia for offending against the provisions of the Constitution for absence of legislative competence or for being in violation of the Fundamental Rights.

4. In order to implement the policy, the delegated legislation may also require to be resorted to by framing of rules and regulations and issuance of notifications etc. (as has happened in the instant case). It is settled law that the vires of such delegated legislation are subject to judicial review and the grounds available for striking down such delegated legislation have also crystallized.

5. Policies in the ultimate analysis tend to be translated into Executive action. It is equally settled law that Executive has no inherent power to pass any order or take any action, as has been repeatedly held by the Hon'ble Supreme Court of Pakistan including in the judgment reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. and others vs. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) in the following terms:--

"There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power and duty."

....... Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down."

Thus every Executive action must be justified by disclosure of the powers so vested in the Executive under the law and can always be subject to judicial scrutiny. Furthermore, all such actions must not only necessarily be intra-vires the law i.e. the statute, rules or regulations whereunder they are purportedly taken, but also the fair free from mala-fides of fact and law.

1. In the above circumstances, the order/notification in dispute cannot be hidden from the scrutiny of judicial review by creating a smoke screed of Government policy.

2. There can be no escape from the fact that at the end of the day the offending order/notification in generic terms are delegated legislation. It is an order issued by the Government in purported exercise of powers vested in it by Section 3(1) of the Import and Export (Control) Act, 1950 and every piece of delegated legislation can be subject to judicial review by this Court and struck down in the following grounds:--

(a) The statutory procedure prescribed for making them, has not been followed.

(b) They are repugnant to a provision of some other Statute.

(c) They must not conflict with the Parent Act itself.

(d) They are uncertain.

(e) They are unreasonable.

2002 CLC 1819 (Muzaffar Khan and others vs. Evacuee Trust Property).

1. In the instant case, the petitioners have challenged the validity of the order/notificiation inter-alia on the grounds mentioned above including reasonableness. The challenge thrown in this behalf by the petitioners must necessarily be adjudicated upon by this Court.

2. The rationale of the policy decision of the Government which manifested itself in the offending orders/notifications has been examined in the context of the contentions of the counsels, pleadings of the parties and the report and parawise comments furnished by the learned Deputy Attorney General along with the trade policy and the extracts from the economic survey of Pakistan therewith. It appears that Pakistan is currently faced with trade deficit, and in order to bridge those yarning gap between the export and import it is found necessary to increase the proceeds from the goods exported outside Pakistan. The backbone of Pakistan export economy is the textile sector, which alone contributes 55% of Pakistan's total export earnings. The current trade policy endeavours to increase the earnings from textile sector to 25 billion USD which is only possible by increase of export of value added goods. Converting of lint cotton into cotton yarn results a value addition of 59% while its conversion into finished goods, the value addition dramatically increases varying from 142% for towels to 846% for woven goods. It is of necessary not only maintain but increase the production an export of value added textile. It appears that during the early months of the season, the Government noticed a dramatic increase in the export of yarn from Pakistan, which was spured by shortage of yarn in the international market and an unpredicted increase in the import of cotton yarn by China. It appeared that a substantial quantity of cotton yarn would depart from the local market with the result that the requirements of the indigenous value added textile sector would not be met. The primary purpose of the Government of Pakistan appears to be an effort to limit the export of yarn from Pakistan so as to ensure that needs of the value added textile sector are met. The export were initially capped at 5 million Kg per month, but revised projections suggested that said measures were insufficient to achieve the ends of the policy. Consequently, subsequent orders/notification was issued further reducing the export quota to 35 million Kg per month. It is also stated that with the current quota in place the projected export from Pakistan will still be more than the export of cotton yarn during the preceding year and the requirements of value added sector would barely be met. In the absence of such restrictions, there would be a flight of cotton yarn from Pakistan leaving the value added textile sector starved of its raw material. On the one hand, export earnings would be reduced substantially, the cotton yarn obviously will be exported to the countries which use the same for production of value added textile of competitors in the international market. In the above eventuality the value added textile sector would become uncompetitive leading to wide spread closure of units and unemployment. The textile sector is one of the largest industrial employers in the country. Only 8% of workers are employed in the spinning industry while remaining 92% are employed in the value added textile sector.

3. The policy of the Government in the instant case ex-facie appears to be motivated by the need to increase the export earnings so as to decrease/control the trade deficit and to avoid mass unemployment by closure of the units of the value added textile sector. Hence, this Court is not persuaded to hold that the said policy to be arbitrary, and unreasonable.

4. The offending orders/notification have purportedly been issued under Section 3(1) of the Import and Export (Control) Act 1950, which authorizes the Federal Government to issue the orders/notificaiton for limiting, regulating or controlling the export of goods from Pakistan. Thus ex-facie, the powers exercised are intra vires the parent statute, whereunder impugned orders/notification have been issued. The orders/notification impugned are clear and unequivocal and do not suffer from any uncertainty. As already stated above the purpose to be achieved not only appears to be permitted by law but also the reasonable response to an emergent situation. The primary effort was only to secure availability of the needs of the local downstream industry Surplus yarn is permitted to be exported. The restraint imposed is proportionate to the end sought to be achieved. Fine yarn fetches a higher price in the international market has been permitted to be exported. With reference to the anxiety expressed by the petitioners that some of them had imported machinery under various SROs issued by the FBR granting tax exemption to export oriented units it has been clearly stated in the report and parawise comments that the quota policy will respect the obligations of the petitioners to export the yarn in terms of the said SROs. In these circumstances this Court is not persuaded to hold that the orders/notification in question are unreasonable or uncertain or ultra vires the parent statute.

5. Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees to the citizens the right to carry on any lawful trade or business. The restrictions in the instant case have been imposed through orders/notifications issued under Section 3(1) of the Import and Export (Control) Act, 1950 and by virtue of Section 5 thereof any export in violation of any such orders would be liable to prosecution, hence the restrictions in question have been imposed by law. The apparent purpose of the said orders/notifications and its social and economic impact has been discussed in great details above and the right claimed by the petitioners must be examined in context thereof. Article 18 and the right guaranteed thereby cannot be interpreted by excluding or ignoring any other provisions of the Constitution including Article 38 which casts responsibility upon the State to secure the wellbeing of the people and to promote and protect employment. In this behalf, categorical command of Article 3 of the Constitution can also not be ignored. The right claimed by the petitioners must necessarily be exercised in harmony with the overriding needs and interest of the community and the State and its responsibilities under the Constitution. A balance in this regard has to be struck between the rights of individuals and the interest of the community and the State. The petitioners cannot claim to exercise the right under Article 18 in a manner which would result in a dramatic loss to export earnings of the country further widening in trade deficit with all its attending adverse impacts on the economy and resulting in increase of unemployment. The interest of the Sate and the community cannot be ignored or sacrificed for the profits sought to be made by the individual at the cost of great hardship to a significant segment of the population. In the above perspective, this Court is not persuaded to hold that the offending orders/notifications contravene or violate Article 18 of the Constitution of Islamic Republic of Pakistan.

6. It is not the first time that a quota has been imposed on the export of cotton or its products including yarn. Similar quota was imposed in the past. The orders/notifications issued in this behalf u/S. 3(1) of the Import and Export (Control) Act, 1950 were allowed to be enforced by the Hon'ble Supreme Court of Pakistan, vide judgment reported as: Federation of Pakistan and others vs. Ammar Textile Mills (Pvt.) Ltd. and others (2002 SCMR 510).

7. If the contentions raised on behalf of the petitioners are accepted, it may have unacceptable consequences. Restriction on export of wheat and other essential food items imposed to ensure food security for the people of Pakistan may not be possible. Similarly, other law enacted to secure the overriding Right to life of citizens e.g. environmental laws may be exposed to unnecessary challenges.

8. In view of the aforesaid, this Court is not persuaded to hold that the impugned orders/notifications offend against Article 18 of the Constitution or otherwise invalid or illegal. Consequently, these constitutional petitions must fail and are dismissed accordingly.

(A.A.) Petition dismissed.

PLJ 2011 Lahore 276 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

SIRAJ DIN ORFI and others--Petitioners

versus

CIRCLE REGISTRAR OF COOPERATIVE SOCIETIES etc.--Respondents

W.P. No. 2519 of 2010, decided on 1.7.2010.

Cooperative Societies Act, 1925 (VII of 1925)--

----S. 4--Co-operative Societies Rules, 1912, R. 48--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of societies--Care-taker committee was constituted--Powers of Registrar on any person--Power of Registrar under Rule 5(2) of Co-operative Societies Rules, 2004 to appoint an election commission--Question of--Whether power of Registrar u/Rule 48 of Rules 1912 to supersede the management committee and to constitute a care-taker committee--Validity--Deputy Registrar could only be a delegatee of the powers specifically stated in the order--His power cannot further be delegated to or conferred upon any person--When law prescribes a procedure for doing a certain thing in a certain manner, it has to be done in that manner alone--All the steps taken and acts done specifically the issuance of the notification were declared illegal as they had been taken and done without lawful authority--Petition was accepted. [Pp. 278 & 279] A, B & C

1994 MLD 1637 & PLD 1993 Lah. 141, rel.

Mr. Zaheer-ud-Din Usmani, Advocate for Petitioners.

Raja Rizwan Abbasi, Advocate for Respondents No. 1, 2 & 3.

Mr. Asif Azeem Khan, Advocate for Respondents No.5, 6, 7 & 8.

Mr. Rashid Hafeez, learned AAG along with Mr. Aamer Ali, DC/Registrar Islamabad and Mr. Farasat Ali Khan, Deputy Registrar, Islamabad.

Date of hearing: 18.6.2010.

Order

It is contended by the learned counsel for the petitioners that the petitioners are members of the Pakistan Atomic Energy Commission - Employees Cooperative Housing Society (PAEC ECHS). The elections of the society are scheduled to be held on 12.06.2010. The petitioners are the candidates in the election. The Respondents No.7 & 8 from the opponent group are also contesting the election for the posts of Vice President and General Secretary. The Deputy Registrar, Respondent No.2 vide notification dated 26.03.2010 being satisfied that managing committee was not performing its functions properly, dissolved the same and a Caretaker Committee was constituted. The said respondent by another order dated 12.04.2010 constituted the Election Commission.

1. It is contended by the learned counsel for the petitioner that the notification dated 26.03.2010 dissolving the managing committee and appointing the caretaker committee and the notification dated 12.04.2010 constituting the Election Commission for holding the elections of the Society are illegal, since the same have been issued by an authority, not competent to do so. Learned counsel for the petitioner refers to the Bye-Laws of the society. Under clause 31 of the said Bye-Laws, it is the Registrar Co-operative Societies who can appoint a caretaker committee. The reference is also made of Section 4 of the Co-operative Societies Act, 1925. The Provincial Government may appoint a Registrar for the province. He is the authority under the Act. Any other person or person may only assist the Registrar. The Government may however confer on any such person all or any of the powers of the Registrar. Under Rule 48 of Co-operative Societies Rules 1912, only the Registrar can supersede the management committee and under Rule 5(2) of the Islamabad Capital Territory Co-operative Societies Elections (Amendment) Rules 2004, An Election Commission may only be constituted by the Registrar.

2. On the other hand, the learned counsel appearing for Respondents No. 1 to 3, the leaned AAG and the learned counsel for Respondents No.5 to 8 and others contend that by Notification No. 1(19)-Law/2007-4666 dated 22.12.2009 issued by the Chief Commissioner Islamabad Capital Territory, the powers of the Deputy Registrar, Co-operative Societies, have been conferred upon Mr. Farasat Ullah Khan, Addl. Deputy Commissioner (Revenue) Islamabad. Reliance is placed on the judgment dated 09.01.2009 pronounced in WP No. 1617-08 titled "Ch. Abdul Azeem & one another Vs. ADC(G) Deputy Registrar, Cooperative Housing Society ICT, Islamabad Etc" to argue that a party who does not raise objections to the jurisdiction before the forum seized with the matter and takes a chance to succeed, cannot in case of failure challenge the jurisdiction.

3. I have heard the learned counsel for the parties and have also gone through the record. There is no cavil to the proposition that under Section 4 of the Co-operative Societies Act, 1925, the Registrar only is the authority. The other person or persons may only assist the Registrar. The Provincial Government may however by general or special order, confer on any such person all on any of such powers of Registrar. Under Rule 5(2) of Rules 2004, referred above, an Election Commission may only be constituted by the Registrar. Under Rule 48 of Co-operative Societies Rules, 1912 only the Registrar can supersede the Management Committee. The pivotal point that need be resolved is whether the powers of the Registrar under Rule 48 of Rules 1912 to supersede the management Committee and to constitute a care-taker Committee as done by Respondent No.2 vide Notification dated 26.03.2010, and the powers of Registrar under Rule 5(2) of the Rules 2004 to appoint an Election Commission, as have been exercised by Respondent No.2 vide Notification dated 12.04.2010, have by a general or special order been conferred on the said Respondent No.2. The Notification dated 22.12.2009 need be scanned. This Notification does not generally or specially confer these powers of the Registrar on any person as is required under Section 4 of the Act, 1925. It confers the powers of the Deputy Registrar on Mr. Farasat Ullah Khan. In fact the Deputy Registrar could only be a delegatee of the powers specifically stated in the order. His powers cannot further be delegated to or conferred upon any person. The Notification dated 22.12.2009 is of no avail to the respondents. It is meaningless and sterile. When law prescribes a procedure for doing a certain thing in a certain manner, it has to be done in that manner alone. Reliance is placed on 1994 MLD 1637 titled "Ch. Khalil-ur-Rehman Vs. The Registrar Co-operative & two others" and PLD 1993 Lahore 141 titled "Islamia University Bahawalpur Vs. Dr. Muhammad Khan Malik". The judgment dated 09.01.2009 passed in Writ Petition No. 1617/2008 referred by the respondents does not apply in the circumstances of this case. The petitioners have not taken a chance. The moment the Respondent No. 2 exercised the powers of Registrar, they have promptly instituted this constitutional petition.

4. All the steps taken and acts done specially the issuance of the impugned Notifications dated 26.03.2010 and 12.04.2010 by the Deputy Registrar, Respondent No.2 are declared illegal as they have been taken and done without lawful authority. They are set-aside. The Registrar may however, if satisfied that circumstances so require, himself take steps, do the acts and issue notifications afresh for smooth running of the affairs of the PAEC-ECHS. This petition stands accepted.

C

(R.A.) Petition accepted.

PLJ 2011 Lahore 279

Present: Muhammad Farrukh Irfan Khan, J.

MUHAMMAD AFZAL--Petitioner

versus

CANTONMENT EXECUTIVE OFFICER/SECRETARY, LAHORE CANTT. and 2 others--Respondents

W.P. No. 4136 of 2010, decided on 23.7.2010.

Cantonments Act, 1924 (II of 124)--

----S. 60--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Demanded TIP Tax--Notification was issued regarding enhancement of TIP Tax--Challenge to--Question of non-compliance of Ss. 61 & 62 of Cantonment Act--Petitioner was not denying his liability to pay the TIP Tax or authority of Board to recover--Validity--In exercise of its powers under S. 60 of Cantonment Act, whereby Cantonment Board has been authorized to recover TIP Tax at the rate of 3% of the value recorded in the sale or as assessed by cantonment executive officer which ever is higher--Valuation table given in public notice is thus the assessment made by cantonment executive officer viz a viz the market value of such properties--No objection could be raised qua the valuation fixed by C.E.O as it has neither been shown as illegal nor arbitrary--Petition was dismissed. [P. 282] A

Mr. Shakeel Ahmad Bhatti, Advocate for Petitioner.

Mr. Taffazul H. Rizvi, Advocate General for Respondents.

Date of hearing: 1.7.2010.

Order

Muhammad Afzal petitioner through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the notification dated NIL regarding the enhancement of TIP Tax by Respondent No.1.

1. Precise facts of the case are that the petitioner purchased a plot measuring 5 « M comprising in Khasra No.1106, situated at Hadbas Mauza Gohawa, Tehsil Cantt. Lahore and he was required to pay TIP tax according to the notification of Respondent No.3 dated 29.06.2009. When the petitioner approached the Respondent No. 1 for the payment of said TIP Tax, he refused to receive the same and demanded TIP Tax according to public notice which was allegedly not issued by the competent authority.

2. Learned counsel for the petitioner contended that the Respondent No.1 has no authority to revise TIP tax; that only jurisdiction to impose TIP Tax is vested with the Provincial or Federal Government and the respondents have no authority to revise/impose any tax without any legislation; that the impugned public notice is without date and has become operative without observing the legal formalities; that no proper notification regarding enhancement of TIP Tax has been issued; that the Walton Cantonment Board is receiving TIP Tax according to the notification dated 29.06.2009 issued by Respondent No. 3, whereas, Lahore Cantonment Board is demanding TIP Tax according to revised public notice; that impugned public notice is illegal and without lawful authority and liable to be set-aside.

3. On the contrary, learned counsel for the respondents submits that the matter has already been resolved in W.P. No. 19510/04 cannot be raised again and again by invoking Constitutional jurisdiction of this Court; that an alternative remedy of appeal U/S. 84 of the Cantonment Act, 1924 was available to the petitioner and the petitioner has filed the instant constitutional petition without exhausting the same; that U/S. 60 of the Cantonment Act, 1924 Respondent No. 1 has the powers to levy any tax in the Cantonment area with previous approval of the Federal Government; that actually Respondent No. 1 has not revised TIP tax rather revised current market value of the land/property.

4. Arguments heard. Record perused.

5. The validity of public notice according to which TIP tax rates were increased has been challenged on the grounds that Respondent No.1 has no authority to revise the TIP Tax and that the same was issued without observing all the codal formalities. To resolve the controversy, it will be proper to reproduce the relevant provisions of the Act, i.e. Sections 60, 61 and 62 which are as under:--

"60(1) The Board may with the previous sanction of the Federal Government impose in any cantonment a tax which, under any enactment for the time being in force, may be imposed in any municipality in the Province wherein such cantonment is situated;

(2) Any tax imposed under this section shall take effect from the date of its notification in the official gazette.

"61. When a resolution has been passed by the Board proposing to impose a tax under Section 60, the Board shall in the manner prescribed in section 255 publish a notice specifying (a) the tax which it is proposed to impose (b) the persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstances in respect of which they are to be made liable; and (c) the rate at which the tax is to be levied.

62. (1) Any inhabitant of the cantonment may, within thirty days from the publication of the notice under Section 61, submit to the Board an objection in writing to all or any of the proposals contained therein and the Board shall take any objection into consideration and pass orders thereon by special resolution.

(2) If the Board decides to modify its proposals or any of them, it shall re-publish the modified proposals in the manner provided by Section 61 indicating that the proposals are in modification of the proposals previously published; and the provisions of sub-section (1) of this section shall apply to such modified proposals.

(3) When the Board has finally settled the proposals, it shall submit them alongwith the objections, if any, made in connection therewith to the Federal Government through the competent authority.

1. The main contention of the learned counsel for the petitioner is that the impugned public notice was issued without complying with the mandatory requirements of Sections 61 and 62 of the Act.

2. A careful examination of the case put forth in the petition reveals that the petitioner is not denying his liability to pay the TIP tax or the authority of the Board to recover the same. On the contrary, as per Para No. 5 of the writ petition, it has been averred by the petitioner that he approached the respondent/Board for the payment of TIP tax on the basis of valuation fixed by Respondent No.3 i.e. District Officer (Revenue) but a demand was raised as per the valuation notified by the Board (Annexure C to the writ petition).

3. It is manifestly clear that no new tax has been levied by the Board, therefore, the question of non-compliance of Sections 61 and 62 of the Cantonment Act 1924 has no relevance. According to the Gazette Notification dated 03.05.1994 bearing No. S.R.O. 382(I)/94 issued by the Government of Pakistan in exercise of its powers under Section 60 of the Cantonment Act, 1924 whereby the respondent/Cantonment Board has been authorized to recover TIP Tax at the rate of 3% of the value recorded in the sale or as assessed by the Cantonment Executive Officer which ever is higher. The valuation table given in the public notice is thus the assessment made by the Cantonment Executive Officer vis-a-viz the market value of such properties. No objection, therefore, could be raised qua the valuation fixed by the Respondent No. 1, as it has neither been shown as illegal nor arbitrary.

4. Resultantly this writ petition has no force and stands dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 282 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

Haji PERVAIZ KHAN, etc.--Petitioners

versus

PAKISTAN CIVIL AVIATION AUTHORITY, RAWALPINDI etc.--Respondents

W.P. No. 1718 of 2006, decided on 26.10.2010.

Civil Aviation Authority Ordinance, 1982--

----Ss. 4 & 5(4)(v)--Punjab Land Acquisition Rules, 1983, Rr. 14 & 15--Constitution of Pakistan, 1973, Art. 199--Acquired land cannot be used for any other public purpose--Land was acquired for Civil Aviation Authority to be utilized for construction of an Airport which was a public purpose--A part of land was used by Civil Aviation Authority--A big chunk of land was transferred for construction of road linking--Petitioner submitted an application before Board of Revenue--Application was turned down--Validity--Left over land was neither utilized nor was intended to be utilized for any public purpose--Government being a custodian of property of the people can only deprive the citizens of their right to own and possess the land if the same was required for public purpose and for benefit of public at large--Held: Since the remaining land had neither been utilized for any other public purpose nor it was intended to be utilized for any such purpose, therefore, the petitioners were entitled for return of the land--Petition was accepted. [P. 286] A & B

2007 CLC 811, rel. 2010 SCMR 480, 2004 MLD 1604, 1996 MLD 731, PLJ 1984 Kar. 55, 2001 MLD 295, ref. PLJ 2010 Lah. 49 & PLD 1993 SC 455, 2000 MLD 322 & 1990 ALD 658, fol.

Malik Muhammad Kabir, Advocate for Petitioners.

Mr. Anis-ud-Din, Advocate for Respondents.

Date of hearing: 26.10.2010.

Order

Land measuring 08 Kanals, 03 Marlas belonging to the petitioners, besides several hundreds of Kanals of land of other owners, was acquired through a Notification in the year 1965 for Civil Aviation Authority to be utilized for construction of an Air Port which is a public purpose. A part of the said land was used by the Civil Aviation Authority for the purpose mentioned in the Notification. It is averred that after the utilization of the land specified in the Notification, hundreds of Kanals of the surplus land is lying unutilized in the possession of the respondent authority. The respondents transferred a big chunk of land to Rawalpindi Development Authority (RDA) for construction of road linking the newly constructed airport to Murree road. The road has been constructed. Some pieces of land on the other side of the road that fall in Khasras No. 1010, 1011, 541, 542, 543 in village Tahlian Dehati Tehsil and District Rawalpindi are lying unutilized. The said pieces cannot possibly be utilized for the purpose specified in the Notification. Some of the land has been leased out for establishment of the CNG Station. Haji Pervaiz Khan and 03 other land owners submitted an application under Rules 14 and 15 of the Punjab Land Acquisition Rules, 1983 before the Board of Revenue, Punjab, for restoration of the land in question. The Board, of Revenue Punjab, Lahore, vide order dated 11.2.2006 turned down the application of the land owners.

1. It is contended by the learned counsel for the petitioners that the land was acquired for utilization by the Civil Aviation Authority. After utilization of the land for the specified purpose, the remaining land has to be returned to its original owners who in the instant case are the petitioners. It is contended that the land acquired for specific purpose cannot be utilized for any other purpose even if the same is a public purpose; that the petitioners being the original owners are entitled to the return of the land, specially those pieces which are lying on the other side of the road.

2. The claim of the petitioners is resisted by the learned counsel appearing on behalf of the respondents. It is contended that the land acquired for some public purpose may be utilized for other public purpose, the law does not restrict the utilization of the land only to the purpose specified in the Notification; that the land having been transferred to the respondent authority, the original land owners are now strangers to the land in question and they have no locus standi to institute this petition for return of the land. The learned counsel for the respondents relies on the judgments cited as "2010 SCMR 480" titled Mst. Asmat-un-Nisa & another. Vs. Government of N.W.F.P. "2004 MLD 1604" titled Mst. Kishwar Sultana and others. Vs. Province of Punjab and others, and "1996 MLD 731" titled Syed Zainuddin and 9 others Vs. Assistant Commissioner-Cum-Collector, Quetta and 2 others". It is argued that the land acquired for one public purpose could be utilized for any other public purpose as well. He further relies on "PLJ 1984 Karachi 55(DB)" titled Mullah Ghulam Ali and others. Vs. Commissioner of Karachi and two others, and "2001 MLD 295 Supreme Court (AJ&K) titled Ali Shan Vs. Mirpur Development Authority and 6 others, to argue that the land acquired by the Government to its entirety vests in the Government who can use it in any manner in conformity with the declared intention and purpose and it is only

the Government who can dispose the land found in excess in any manner opted by it.

1. I have heard the learned counsel for the petitioners, for the respondents and have also gone through the comments submitted by the respondents.

2. It is averred in the comments submitted by the Civil Aviation Authority, the respondent is at liberty under Sections 4 and 5(4)(v) of the Civil Aviation Authority Ordinance, 1982 to pledge any property vested, in it to raise finances and that the Government may on its option sell the excessive land. The land in question was acquired vide Notification in the year 1965. The purpose as mentioned in the Notification was the utilization of the land by Civil Aviation Authority. A major part of the land acquired having been utilized by the Civil Aviation Authority for the construction of the Airport and the allied facilities. Some land has been left unused. As per the comments submitted by the Civil Aviation Authority, it has the right to utilize the acquired property for the purpose of raising the finances. It is not denied by the respondents that a piece of land has been transferred to Rawalpindi Development Authority for construction of a road and 02 or 03 small pieces of land remain unused on the other side of the road. The stand taken by the Civil Aviation Authority is, that it has the legal right to utilize the remaining land according to its option. Rule 14 of the Punjab Land Acquisition Rule 1983 is as follow:--

"14" (1) Where any land has been acquired for any Department of the Government or a local authority for a public purpose and it is proposed to abandon the same, it shall be handed over to the Collector who shall be responsible for the disposal of the same in accordance with the orders of Government.

(2) The disposal of land under sub-rule (1) shall be made by Government in its discretion, and its possession restored to the persons from whom it was acquired or to their heirs as under:--

(i) Free of cost to the original owners of their heirs if compensation for the acquisition of land has not been paid.

(ii) On refunding the amount paid as compensation less the 15 percent granted for compulsory acquisition, if the original landowners or their heirs have already received cash compensation in respect of their land. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it.

(3) Where the original land-owners or their heirs were provided alternate land in lieu of their acquired land, such land shall not be restored to them, but shall be utilized or disposed of by the Board of Revenue in accordance with the policy of the Government regarding disposal and alienation of lands."

1. The land in question was acquired for utilization by the Civil Aviation Authority. The said authority has constructed the Airport and the allied facilities. A fence has been laid and a wall constructed circumscribing the limits of the Airport. The surplus land specially the piece of land lying on the other side of the 2-way carriage road has neither been nor is proposed to be utilized for any other public purpose allied with the purpose specified in the Notification. The respondents or the Government has no plan to put the same land for any other public purpose. In such a situation, the land mentioned in Paragraph No. 2 of the petition measuring 08 Kanals 03 Marlas lying on the other side of the Airport and the road constructed by the Rawalpindi Development Authority, cannot be retained by the Civil Aviation Authority for an undefined purpose. The land has become surplus and shall be returned to the original owner. In my view, I seek support from the judgment cited as "PLJ 2010 49" titled Rana Ziladar Khan Vs. Province of Punjab through Collector Sialkot and others. "PLD 1993 Supreme Court 455" titled Province of Punjab through Collector, Lahore & another Vs. Saeed Ahmad and 4 others, "2000 MLD 322 Lahore" titled Nazir Ahmad and 8 others Vs. Commissioner, Lahore Division, Lahore & 3 others", and 1990 ALD 658" titled Province of Punjab and others Vs. Mian Saeed Ahmad.

2. With all deference to the judgments cited by the learned counsel for the respondents, I would like to opine that the said judgments are not attracted in the instant case. The question in hand is not that the land acquired for the notified purpose cannot be used for any other public purpose, therefore, the first three judgments cited by the learned counsel for the respondents are not attracted in this case. The left over land is neither utilized nor is intended to be utilized for any public purpose. The latter two judgments referred by the respondents have a great pursuable value but are not applicable in this case. The Government being a Custodian of property of the people can only deprive the citizens of their right to own and possess the land if the same is required for the public purpose and for the benefit of public-at-large. Since the remaining land has neither been utilized for any other public purpose nor it is intended to be utilized for any such purpose, therefore, the petitioners as per the judgments relied by me, are entitled for the return of the land. Now the question arises what should be the quantum of money that is to be returned by the petitioners to the respondent authority. As per the award, the petitioners were paid the compensation for the land besides the compensation for compulsory acquisition at the rate of 15 percent. All the amount has been received by the petitioners. The construction of the Airport the allied facilities and the road leading thereto have attracted the Estate developers. Many housing schemes have erupted there resulting in manifold increase in value and price of the property in question. The petitioners should return twice the original amount of compensation received by them to the Civil Aviation Authority less the 15 percent of the original amount of compensation received by them for the compulsory acquisition. For the determination of this amount, I rely on the Provisions of Section 14(2)(ii) of the Punjab Land Acquisition Rules, 1983 and the judgment cited as "2007 CLC 811" titled Sajjad Ahmad and another Vs. Secretary, Government of the Punjab, Revenue Department/Member Board of Revenue and 2 others. This petition is accepted.

(R.A.) Petition accepted.

PLJ 2011 Lahore 287

Present: S. Ali Hassan Rizvi, J.

BOARD OF INTERMEDIATE & SECONDARY EDUCATION SARGODHA through its Chairman and another--Petitioners

versus

Mst. SURRIYA ANDLEEB etc.--Respondents

C.R. No. 2389 of 2005, heard on 8.4.2009.

Jurisdiction of Civil Court--

----Civil Court is a Court of ultimate jurisdiction and is always competent to examine whether the orders brought before it for judicial scrutiny were in accordance with legal framework and if those did not suffer from malafides. [P. 291] A

PLD 1965 SC 671, 1974 SCMR 356, PLD 1997 SC 3 & 2006 YLR 687, rel.

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

----O. XX, R. 5--Court should state its decision on each issue unless the findings upon anyone or more of the issues is sufficient for the decision of the suit. [P. 292] B

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

----S. 99--Jurisdiction of Court--No decree shall be reversed or substantially varied--On account of any error or defect or irregularity not affecting the merits of the case or the jurisdiction of the Court. [P. 292] C

Dr. M. Mohy-ud-Din Qazi, Advocate for Petitioners.

Ch. Asghar Ali, Advocate for Respondents.

Date of hearing: 8.4.2009.

Judgment

Mst. Surriya Andleeb Plaintiff/Respondent No. 1, had on 21.10.2000 filed a suit for declaration to the effect that the letter dated 17.1.2000 issued by the Board of Intermediate and Secondary Education, Sargodha (defendant/Petitioner No. 1) was illegal and without lawful authority and thus, inoperative against her rights and further that the show-cause notice issued by the Medical Superintendent, DHQ Hospital, T.T.Singh (Defendant No. 3/Respondent No. 2 herein) vide No. 4828/MS dated 30.9.2000 was likewise without any legal consequence. As a consequential relief, the three defendants/two petitioners and Respondent No. 2 herein, were sought to be restrained permanently from giving effect to the aforesaid orders dated 17.1.2000 and show-cause notice dated 30.9.2000.

1. Earlier to the filing of the present suit, Respondent No. 1 had filed Writ Petition No. 15540/1999 challenging the memo. No. 3113 dated 16.3.1991 of the Respondent/Petitioner No. 1 mainly on the ground that she was not heard; that the notices were issued on her previous address and that the Board was obliged to give a proclamation in the newspaper before passing any adverse order against her. The writ petition was accepted vide judgment dated 16.9.1999 rendered by a learned Single Judge of this Court. The decision of the Board dated 16.3.1991 was set aside with the direction that a fresh order be passed after hearing the writ petitioner Mst. Surriya Andleeb. To that extent, the matter presented a fait accompli.

2. In pursuance of the aforementioned judgment of this Court, the petitioner Board passed fresh orders after taking report dated 23.12.1999 (Ex.D.17) from a private handwriting expert, namely, Muhammad Ashraf Mallick. It was thereupon that the present suit was filed by Mst. Surriya Andleeb/Respondent No. 1 as mentioned in Para 1 of this judgment.

3. Defendants Nos.1 and 2 i.e. Board of Intermediate and Secondary Education, Sargodha and the Controller of Examination, Board of Intermediate and Secondary Education, Sargodha, (the petitioners herein) filed a joint written statement on 12.3.2002, pleading estoppel, bad form of the suit, lack of jurisdiction and vexatiousness of the suit as preliminary objections. On facts, it was averred that the Board had received a complaint that the Plaintiff/Respondent No. 1 had appeared in place of Mst. Shahnaz Akhtar Roll No. 5477 in the Matriculation examination held in Autumn 1986 and for Mst. Safia Begum Roll No. 16935 for Matriculation examination held in Spring (Annual) 1987. It was alleged that Mst. Surriya Andleeb had committed impersonation and cheating. However, Defendant No. 3 (M.S. DHQ Hospital, TT Singh) allowed the proceedings of the suit to go ex parte against him. Accordingly, from 12.3.2002 on-wards, the proceedings continued ex parte against him.

4. On the pleadings of the contesting parties, the learned Civil Judge, Sargodha framed the following issues on 22.4.2002:--

"ISSUES:--

1. Whether the plaintiff is entitled to the decree for declaration and permanent injunction as prayed for? OPP

2. Whether the civil Court lacks jurisdiction to try the suit in hand? OPD

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the plaintiff is estopped by her own words and conduct to file the instant suit? OPD

5. Whether the suit of the plaintiff is incorrect and liable to be dismissed? OPD

6. Whether the suit of the plaintiff is quite baseless and answering defendants are entitled to special costs u/S. 35-A CPC and the same is also time barred? OPP

7. Relief."

8. The parties led evidence for and against the above issues. On behalf of the plaintiff Azhar Iqbal Junior Clerk, Government College for Women, Karkhana Bazar, Faisalabad was examined as PW. 1. He produced authority letter Ex.P.1 and the certificate Ex.P.2 showing that Mst. Surriya Andleeb was regular student of Government College for Women, Karkhana Bazar, Faisalabad. Miss Surriya Andleeb Plaintiff/ Respondent No. 1 herself appeared as PW.2 and supported the averments in the plaint. She denied having appeared for Mst. Shahnaz Akhtar or Mst. Safia Begum in the Matriculation examination of Autumn 1986 and Annual examination 1987. She claimed that the Matriculation certificate issued to her under Roll No. 15949 in the year 1986 could not be cancelled anywise. She examined Kh. Iftikhar Hussain as PW.3/Superintendent Board of Intermediate and Secondary Education, Sargodha who stated that he had not found the plaintiff having ever committed impersonation during the conduct of relevant examination and that no inquiry was ever held in that context by way of comparison of the handwriting of the plaintiff (PW.2) with the alleged writings on the papers relating to Mst. Shahnaz Akhtar and Mst. Safia Begum. He further stated that neither the Superintendent Examination nor the Investigators were ever examined.

9. On the other hand, the contesting defendants/petitioners examined Hassan Ali, Senior Clerk Board of Intermediate & Secondary Education, Sargodha as D.W.1. He produced documents Ex.D.1 to Ex.D.19.

8. After his examination, evidence was closed on behalf of the contesting defendants/revision-petitioners.

1. On conclusion of the trial, the learned Civil Judge, Sargodha vide judgment dated 17.5.2004 dismissed the suit with costs. While recording findings on Issue No. 1 he held that impersonation stood proved against the Plaintiff/Respondent No.

2. He found Issues No. 2 to 6 against the contesting defendants for want of "convincing and cogent" evidence.

3. However, in appeal, findings on Issue No. 1 were reversed while those on Issues No. 2 to 6 were upheld. Issues No. 2 and 3 were taken up together and likewise Issues No. 4, 5 and 6 were also dealt with jointly. Consequently, the suit was decreed vide judgment dated 20.6.2005 recorded by Ch. Anwaar Ahmad Khan, learned Additional District Judge, Sargodha.

4. I have heard learned counsel for the petitioners and learned counsel for the respondents. I have also gone through the evidence and the judgments/decrees rendered by the two Courts below.

5. Taking up Issue No. 1, I find that Mst. Surriya Andleeb while appearing as PW.2 had denied having ever appeared for Mst. Shahnaz Akhtar Roll No. 5477 in Autumn 1986 and for Mst. Safia Begum Roll No. 16935 in Annual 1987, as was alleged against her. During cross-examination she stated that she was employed in Health Department. He denied the suggestion that she had appeared for Mst. Safia Begum in the examination, and volunteered that she did not know her. Her case was that complaint against her was actuated by her maternal uncle whose daughter Mst. Shahnaz Akhtar had contracted a love marriage, because he entertained a suspicion that she (the plaintiff) was instrumental to the love affair. No suggestion was put to her during cross-examination as to her appearance for Mst. Safia Begum. To that extent, her statement on oath emerged unscathed. She made a positive statement denying the allegation but she was not cross-examined on material particulars. Kh. Iftikhar Hussain (PW.3) Superintendent, Board of Intermediate and Secondary Education, Sargodha excluded any sort of impersonation on the part of the plaintiff Mst. Surriya Andleeb. He admitted that report of private handwriting expert was obtained on 30.11.1999 after the orders of the Hon'ble High Court.

6. Hassan Ali, Senior Clerk appearing as DW. 1 on behalf of contesting defendants/petitioners had no direct knowledge as to the alleged impersonation. He submitted documents Ex.D.1 to Ex.D.19. Ex.D.1 was a copy of the complaint on the basis of which proceedings were started against the Plaintiff/Respondent No. 1. However, it was only photocopy. He admitted that in his record, too, there was no original of the complaint and that the same contained only a photocopy. He also admitted that it was an anonymous complaint because it did not disclose the name of the complainant. D.W.1 further submitted that it was only under the orders dated 16.9.1999 of the High Court passed in W.P. No. 15540/1999 that opinion of handwriting expert was taken. He admitted that handwriting expert was not summoned while conducting proceedings in their office and that a copy of his report was also never given to the plaintiff. He further admitted that the plaintiff was not given any opportunity to meet the said report.

7. I find that report of the handwriting expert is on record as Ex.D.17. It is a photostat and is indeed not legible. The expert Muhammad Ashraf Mallick was a private person and the report submitted by him cannot be held to have been proved on record particularly when he never appeared before the Board or the Court to testify the same with an opportunity to the plaintiff to cross-examine him. The plaintiff through her evidence as discussed above, had raised a presumption against the alleged impersonation and it then lay upon the contesting defendants/petitioners to have proved the alleged impersonation. In civil matters when entire evidence is recorded, burden of proof does not remain constant. In other words, it remains on being changed. There is no dearth of authority on the point. Except the report Ex.D.17, there was no connecting evidence against the Plaintiff/Respondent No. 1 brought on record by the revision-petitioners. For aforementioned reasons, photocopy of the report Ex.D.17, which was neither testified by its author nor proved by any other method recognized by Qanoon-e-Shahadat Order, 1984, was rightly claimed to have no evidentiary value.

8. The members of the Secondary Board/Petitioner No. 1 had only relied on the report of the expert. Likewise, the learned Civil Judge while non-suiting the Plaintiff/Respondent No. 1 vide judgment dated 17.5.2004 mainly relied on the report Ex.D. 17 of private handwriting expert. They were not justified on placing explicit reliance on Ex.D.17. I have already given reasons for attaching little value to Ex.D.17. The learned Additional District Judge vide his appellate judgment dated 20.6.2005 was right in excluding from consideration the report Ex.D.17 while reversing findings on Issue No. 1. He was final Court of fact and I see no reason to disagree with him in the exercise of revisional jurisdiction.

9. While taking up Issue No. 2, learned counsel for the petitioner referring to the provisions of Sections 29-30 of the Punjab Board of Intermediate and Secondary Education Act, 1976, contended that the Civil Court had no jurisdiction. It may be noted that the learned Civil Judge had decided Issue No. 2 against the Petitioners/Defendants Nos.1 and 2 vide his judgment dated 17.5.2004. The Plaintiff/ Respondent No. 1 had filed appeal but the findings on Issue No. 2 were not challenged by the revision-petitioners by way of cross-objections. Be that as it may, it may be noted that Civil Court is a Court of ultimate jurisdiction and is always competent to examine whether the orders brought before it for judicial scrutiny were in accordance with legal framework and if those did not suffer from mala fides. Reliance may be placed on Abdul Rauf Vs. Abdul Hameed Khan (PLD 1965 SC 671), Hamid Hussain Vs. Government of West Pakistan (1974 SCMR 356), Abbasia Bank Vs. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 3) and Board of Intermediate & Secondary Education Vs. Shahid Javed Shaheen (2006 YLR 687).

10. Reliance on behalf of petitioners on Muhammad Rafiq Vs. Board of Intermediate & Secondary Education (1983 SCMR 1024), Board of Intermediate & Secondary Education Vs. Ch. Anjum Pervaiz (1989 CLC 1964), Muhammad Yasin Vs. Board of Intermediate & Secondary Education (1997 CLC 587) and Mst. Shahida Vs. Board of Intermediate & Secondary Education (PLD 2001 SC 26) was not much apt. Those authorities were in different situations. The jurisdiction of the Civil Court is only barred if the orders impugned before it are within the framework of law passed with due care and attention.

11. I, therefore, hold that the Civil Court had the jurisdiction to adjudicate upon the present case.

12. Issue No. 3. There was nothing wrong with the form of the suit. In any case, no claim can be defeated on mere bad form of the suit.

13. Issues Nos. 4, 5 and 6. In purview of evidence recorded on the aforementioned issues, the plaintiff could not be held estopped by her word and conduct. Her suit could not be dubbed as baseless or false. All procedural laws are framed for advancing justice and genuine claims cannot be smothered on technicalities.

14. Nothing substantial was likely to turn upon the argument that while recording judgment by the learned Appellate Court, provisions of Order XX rule 5 CPC were not followed. It may be noted that Rule 5 ibid only ordains that Court should state its decision on each issue unless the findings upon any one or more of the issues is sufficient for the decision of the suit. In the present case, Issue No. 1 was crucial, which was decided against the petitioners. There being no evidence led on behalf of the Petitioners/Defendants Nos. 1 and 2, monotonous repetition could well be avoided. Moreover, Section 99 CPC directs that no decree shall be reversed or substantially varied ...., on account of any error or defect or irregularity not affecting the merits of the case or the jurisdiction of the Court.

15. It was ruled in Alla-ud-Din Butt Vs. Qamar-ud-Din Butt (2006 CLC 1863) that a Court of appeal being the superior Court of fact could always disagree with the learned trial Court while recording findings on issues.

16. I do not find any illegality or error in the judgment and decree dated 20.5.2005 rendered by the learned Additional District Judge, Sargodha decreeing the suit of Respondent No. 1 in terms of prayers. There appears to be no justification to interfere with the same in the exercise of revisional jurisdiction of this Court. Resultantly, I, while upholding the judgment/decree of the learned appellate judgment/decree dated 20.5.2005, dismiss the revision petition with costs.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 293

Present: Syed Hamid Ali Shah, J.

Mian MUHAMMAD ILYAS MIRAJ--Appellant

versus

S.E.C.P. and others--Respondents

Commercial Appeal No. 1 of 2007, decided on 24.2.2009.

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 158--Non-holding of Annual General Meeting--No departure is permissible from the compliance of the mandatory provisions of Section 158--The company is artificial person and those who manage it's affairs are under legal as well as fiduciary obligation, to run the affairs of the company as the law (Companies Ordinance, 1984) requires corporate democracy of a juristic person--Legislature in it's wisdom was conscious of the importance of holding of Annual General Meeting and that is why a company is made liable to be wound up, if fails to hold two consecutive Annual General Meetings. [P. 301] A

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 158--Non-holding of AGM--Deals with account in an unauthorized manner--The accounts of the company are audited annually and are approved in Annual General Meeting--Carrying financial activities of the company, without proper audit of accounts and it's approval from general body, show that the management of company deals with account in an unauthorized manner. [P. 302] B

Listed Companies (Substantial Acquisition of Voting Shares and Take-over) Ordinance, 2002--

----Ss. 21 & 30--Acquisition of shares in violation of provisions of Ordinance, 2002--No justification for management of a company--Concept of corporate democracy--Elected for a specified period--Terms of office validly exist--Ordinance, 2002, will over-ride only those provisions of Companies Ordinance, 1984, which are in conflict with the former statute--Section 30 of the Ordinance 2002 will prevail which are not in conflict with Ordinance--The Ordinance, 2002 nowhere provides for a different procedure for holding elections of the directors or calling A.G.M. of the target company--A member is only be barred from participating in the meeting (AGM) when his name is removed from the register either in the normal course or through rectification of the register through an order of the Court--The share holder unless he seizes to be a member of the company is vested with the right to participate in the meeting (AGM). [Pp. 302 & 303] C & D

Syed Mansoor Ali Shah, Advocate for Appellant.

M/s. Imtiaz Rashid Siddque and Jawwad Hassan, Advocates for Respondents No. 5 to 7.

Mr. Taffazal Rizvi, Advocate for Respondent 2 to 4 alongwith Mr. Saqlain Arshad, Asstt. Director (Legal) SECP.

Dates of hearing: 17.2.2009, 18.2.2009 and 20.2.2009.

Judgment

Messrs Haseeb Waqas Sugar Mills Limited/Appellant No. 18 is a public company limited by shares, listed Karachi and Lahore Stock Exchanges. The shares of the company were acquired during the year 2004 - 2005 by Respondents No. 5 to 7 and others, to the extent of 39% of it's issued capital, from the Stock market. Transfer of these shares, was effected through Central Depository Company (CDC) and the relevant entries are incorporated in the record of CDC. The appellants assailed, acquisition of these shares by Respondents No. 5 to 7, before the Commission through filing a complaint under Section 21 of the Listed Companies (Substantial Acquisition of Voting Shares and Take-overs) Ordinance, 2002 (hereinafter referred as Ordinance, 2002). Executive Director of the Commission, through order dated 8th December, 2005, dismissed the complaint filed by the appellants. The appellants assailed the order of Executive Director in revision before Appellate Bench of the Commission, invoking the provisions of Section 484 read with Section 477 of the Companies Ordinance, 1984. The appellants through another complaint (Complaint No. 261-2005) under Section 21 of the Ordinance, 2002, in parallel proceedings challenged the acquisition of shares. The Executive Director of the Commission, vide order dated 08.12.2005 dismissed both the complaints and found the impugned acquisition, in accordance with law and dismissed the complaint of the appellants. The order was assailed before Commission in appeal (C.A. No. 84/2006), which was allowed vide order dated 22.2.2007 and the matter was remanded to the Commissioner for decision afresh, after conducting fresh investigation. The Commissioner in the post remand proceedings found that the acquisition is prima facie violative of Ordinance, 2002. The matter is now fixed for hearing. The proceedings are pending with the Commission where parties are contesting their competing claims before the Commission.

1. The company failed to hold Annual General Meeting. Show cause notice under Section 158 of the Companies Ordinance, 1984, was issued on 4.3.2005 by the Enforcement Department of the Commission to the management of the company. The reply to the show-cause notice was filed by the appellants. Respondent No. 4 Director Enforcement passed the order dated 8.12.2005, observing therein that management of the company is responsible for not holding Annual General Meeting of the company, imposed fine for default and directed for holding Annual General Meeting. The complaint filed by the appellants was also dismissed by the Commission through order dated 16.12.2005. The orders of the Director Enforcement and also of the Executive Director of the Commission, were assailed by the appellants in revision, filed under Section 477 read with 484 of the Ordinance, 1984, before the Appellate Bench of the Commission/Respondent No. 1. Show cause notices issued to the management with regard to the failure to hold Annual General Meeting for the years 2005 and 2006 were decided which were also assailed in Revision Petition Nos. 6, 48 and 81 of 2006 before Respondent No. 1. Respondent No. 1, through a consolidated order dated 30.11.2006, dismissed the revisions, upheld and affirmed the order regarding imposition of fine for failure to hold Annual General Meetings and further directed for holding Annual General Meeting. The consolidated order of Respondent No. 1 was assailed by the appellants in Writ Petition No. 77/2007 titled "Messrs Haseeb Waqas Sugar Mills Vs. SECP". During the pendency of the writ petition, instant appeal was filed and thereafter, the writ petition was withdrawn unconditionally.

2. Learned counsel for appellants in order to meet the objection of the respondent as to the maintainability of this appeal, submitted that provisions of Section 34 of SECP Act, 1997 provide for an appeal against an order of the Commission, comprising two or more Commissioners or against the order of the Appellate Bench of the Commission. Order impugned in this Commercial Appeal (order dated 30.11.2006) has been passed by two Commissioners and as such it is appealable under the above provision. Learned counsel emphasized that it is immaterial that order passed by two or more Commissioners, is in their appellate, revisional or original jurisdiction. Learned counsel went on to argue that appeal has been provided by Act, 1997 without distinction that the Commission has passed the impugned order under the provisions of Companies Ordinance, 1984 or SECP Act, 1997. A provision of law has to be interpreted as it is. More so, when the provision is clear and devoid of any ambiguity. He added that the appellant had two options to assail the order of the Director Enforcement, either to assail the order in appeal under Section 485 or in revision as per proviso to Section 484. The appellant has opted the remedy of an appeal instead of revision. Learned counsel went on to argue that law provides remedy of appeal, against the order under Section 485 of Ordinance, 1984 and as such, it cannot be snatched, on technicalities.

3. Learned counsel narrated in detail about the background of the respondent company. The idea of incorporation of the company was conceived by the family who are appellants herein. They established, sugar mill project by investing a sum of Rs.62 millions in the equity of the company. The family at present is holding 57% of the share holdings of the company while the respondents hold 34.35% of the shareholdings in the company. When the complaint was filed, the ratio was 52.28% and 39% of appellants and the respondents respectively. There has never been a complaint, about the mismanagement of the company, ever since it's incorporation. According to learned counsel, the dispute arose when the company, convened it 13th Annual General Meeting on 31.1.2005 and the share holding was closed on 30.1.2005 and the management received letter of consent to act as a director from Respondents No. 5 to 7, with two other individuals. The appellants then found that Respondents No. 5 to 7 hold, in their individual capacity, less than 1% of the equity of the company. It was revealed to the appellants, from letter of consent from Respondents No. 5 to 7 that they have acted in concert with other acquirers and acquired 39% of the shareholdings of the company, illegally, by offending the provisions of Listed Companies (Substantial Acquisition of Voting Shares and Take-Overs) Ordinance, 2002. Learned counsel contended that guided by the provisions of Section 26(2) of the Ordinance, 2002, the appellant postponed the Annual General Meeting, through public advertisement, cited in various newspaper including "Business Recorder", "Nawa-e-Waqt" and "Pakistan" in their prints dated 30.1.2005. Notices were also conveyed to the Securities and Exchange Commission of Pakistan (SECP). The complaint was filed against Respondents No. 5 to 7, under Section 21 of the Ordinance, 2002 on 26.2.2005 regarding acquisition of shares, after seeking approval from the board of directors of the Company. The complaint remained pending before the Commission and was not taken up for hearing for a period of two years. The Executive Director Enforcement viewed the controversy from the angle that it is mandatory requirement of the Companies Ordinance, 1984, that Annual General Meetings be held in each calendar year, within the gap of 18 months and issued show-cause notice to the director regarding non-holding of the meeting. Show cause notice under Section 158 (1) of the Ordinance was replied but learned Commission passed the direction vide order dated 8.12.2005, for holding of the Annual General Meeting.

4. Learned counsel contended that the purpose of promulgation of Ordinance, 2002 was to provide fair and equal treatment to investors and to ensure transparent and efficient system for substantial acquisition of voting shares and take over. Section 30 of the Ordinance, 2002 was referred to contend that Ordinance, 2002 supersedes other laws including Companies Ordinance, 1984. The impugned order has the effect of taking away, the over-riding impact of the Ordinance, 2002. Learned counsel went through the relevant parts of order dated 1.10.2007, passed by the Commissioner (Security market division) whereby, the complaint of the appellant was entertained with certain directions the Commission proceeded to commence proceedings under Section 26(3)(c) of Ordinance, 2002. He added that the respondents were directed vide order dated 1.10.2007 to refrain from declaring in securities of Haseeb Waqas Sugar Mills Limited or dispose of any of securities held by them, during relevant period. Learned counsel added that order remained unchallenged and the shares held by Respondents No. 5 to 7 are under restraint order. The holders of such shares, cannot legally perform their functions as directors of the company. It was then submitted that Respondents No. 5 to 7, acting in concert, acquired more than 10% of voting shares, in the company, without a valid disclosure to the company and the stock exchange, within the meanings of Section 4 of Ordinance, 2002. They acquired more than 20% voting shares, without public announcement as envisaged in Sections 5, 8, 9, 10 and 11 of the Ordinance, 2002. The acquisition being illegal does not confer any right to the acquirer. Allowing them to participate in the board meeting, will amount to paying the prize for illegality. Learned counsel emphasized that by virtue of prohibiting order passed against the acquirer, Respondents No. 5 to 7 cannot deal with security, which means that whatever the rights, the acquirer have with regard to voting shares, are frozen. Learned counsel added that allowing the respondent to remain on board of directors, will result into permitting the outsiders to invade company and creates chaos. Appellants will be blackmailed and Respondents No. 5 to 7 will disrupt the company.

5. Mr.Jawwad-ul-Hassan, Advocate who represents No. 5 to 7 as well, contended that it is the prerogative of the share holders to manage the affairs of the company through board of directors. The corporate democracy is the essence of the corporate personality of the company. Management of affairs of the company vests in the hands of the directors, once elected, the elected body cannot be deprived of their functions. Relevant case law on the subject was referred including the cases of "Rajapalayan Industrial and Commercial Syndicate Ltd. and another Vs. K.A. Vairaprakasam and another (AIR 1989 Madras 139), "Col. (Retd.) Syed Mukhtar Hussain Shah Vs. Wasim Sajjad and 30 others" (1986 SCMR 48), "Muhammad Asim Kurd alias Gailoo Vs. Nawabzada Mir Lashkari Khan Raisani and others (1999 SCMR 689), "Syed Masroor Ahsan Vs. Muhammad Tariq Chaudhry and others" (1991 SCMR 668), "Sheikh Abdul Hameed Vs. Punjab Local Councils Election Authority and 3 others" (1984 CLC 993), "Abdullah Ismail and another Vs. Sindh Industrial Trading Estate" (1997 CLC 783), "Nizam Hashwani Vs. Hashwani Hotels Limited and 14 others" (1999 CLC 1989), "Shamsuddin Ahmad Vs. Charu Chandra Biswas and others" (AIR 1934 Calcutta 621) and "Adamjee Insurance Company Limited and others Vs. Muslim Commercial Bank Limited and others" (2005 SCMR 318).

6. Learned counsel for the respondents, on the other hand, has questioned the maintainability of the instant appeal. He submitted that the complaint, wherefrom the instant proceedings have arisen, was under Section 476 of the Companies Ordinance, 1984. The order passed under Section 476 of the Companies Ordinance is assailable under Section 477 read with Section 484 of the Ordinance, 1984. The appellants, treating the order, passed by Respondent No. 4 as an order under Section 476, has filed revision petition, invoking the provisions of Section 477 read with Section 484 of the Ordinance, 1984. Since the original order of Respondent No. 4 was under Section 476 and the revision against the order was filed under Sections 477 and 484 of the Companies Ordinance, 1984, the remedy of appeal is not available to the appellants under Section 485 of the Ordinance, 1984. While referring to Section 485 of the Companies Ordinance, 1984, learned counsel contended that remedy under Section 485 is available to an aggrieved person against the original order, directive, judgment of the Commission, but no such appeal is available against the order passed by the Commission in a revision under Sections 477 and 484. He further contended that an appeal under Section 485 is competent before Division Bench. The order was, in the first instance, assailed in writ petition, which was subsequently withdrawn. The appellants have the remedy of assailing the order in writ petition by withdrawal of their petition. Learned counsel went on to argue that instant appeal has been filed under Section 34 of the Securities and Exchange Commission of Pakistan Act, 1997 against the order dated 30.11.2006 passed by Respondent No. 1. The provisions of Section 34 of the Act, 1997 provide for the remedy of appeal against the order of two or more Commissioners or the Appellate Bench. The order impugned in this appeal is neither of two Commissioners nor by the Commission as Appellate Authority. The Commission has passed the order in it's revisional jurisdiction and the order is thus not assailable in appeal. He emphasized that order of the Commission under Section 34 is the one passed by the Commission under Section 33 of the Act, 1997, while the original order, which can be made appealable under Section 34, is the original order of the Commission passed under Section 30. Through filing an incompetent appeal, the appellants have succeeded in depriving the elected directors of the company from taking part in the management of the company. In this illegal exercise, the company has not held it's Annual General Meeting, ever since it's election of new board of directors.

7. While touching the merits of the case, learned counsel stood behind the impugned order and submitted that no provision of law exists either in the Ordinance of 1984 or in the Ordinance, 2002, to allow the company avoid to hold it's Annual General Meeting or elections of it's directors or finalization of it's accounts. It is essential and management of the company is bound to hold it's Annual General Meeting, approve it's audited accounts through General Body and get the management of the company run through it's elected body. There is not a single provision in the relevant laws, which provides for restraining the elected directors from participating in the affairs of the company. The proceedings before Respondent No. 4, are not impediment for Respondents No. 5 to 7 to continue and perform their functions as directors of the Company. Even if the matter is decided by the Commission adverse to Respondents No. 5 to 7, it can be according to Section 25 of the Ordinance, 2002. No prohibitory order under Section 25 can be passed restraining Respondents No. 5 to 7 to participate in the members meeting or in the meeting of board of directors of the Company. He went on to argue that acquirer having once been transferred the shares of a listed company, acquires all the rights of a member of the company. The rights of share holder held by such member of the company can neither be restricted nor reduced. The appellants had no right or authority under the provisions of Companies Ordinance, 1984, to either postpone the Annual General Meeting or deprive a share holder or a member of the company from taking part and casting his vote in the Annual General Meeting, likewise his right to decide and take part in the meeting of the Board of Directors. The appellants have violated each and every provisions of law.

8. Mr.Taffazal Rizvi, Advocate on behalf of SECP, stood behind the impugned judgment. He referred to various provisions of Companies Ordinance and submitted that holding of annual general meeting is essential requirement of law. Failure to hold two consecutive meetings entail penal consequences i.e. winding up of company. The accounts require regular audit and approval by the general body. Managing affairs of the company, without validly elected board of Directors and running the business of the company without approved accounts, speak of the fact that the appellants are running the business illegally and in neglect of memorandum and articles of association of the company.

9. Learned counsel contended that responsibility of the Commission was to ensure holding of Annual General Meeting, which was held under the directions of the Commission. The Board was elected in Annual General Meeting, which was held under the directions of the Commission. The Commission has passed the impugned orders in accordance with law. The orders do not suffer from any illegality or legal infirmity and if any order is passed in this appeal, the Commission will proceed further in accordance with the directions of this Court. He has adopted the line of arguments of learned counsel for Respondents No. 5 to 7, qua the maintainability of this appeal. He added that since the matter is pending before the Executive Director of the Commission, the instant appeal is premature at this stage.

10. Heard learned counsel for the parties and record perused.

11. The management of the company has failed to hold it's annual general meetings for the years, 2004, 2005 and 2006.

12. Executive director vide order dated 8.12.2005, imposed upon the management of the company, fine of Rupees five (5) million for not holding the AGM for the year 2004. Appellant assailed the order in Revision No. 6 of 2004, under Sections 477 and 484 of the Ordinance, 1984. Showing cause notice dated 4.3.2005 was issued to the management for not holding Annual General Meeting within the prescribed time under Section 158, before imposition of penalty vide order dated 18.12.2005.

13. Enforcement Department further directed the company to hold Annual General Meeting, under Section 170 within 30 days of direction (vide order dated 8.12.2005). Company's failure to comply with direction, resulted into issuance of another show-cause notice dated 26.1.2005. Executive director vide order dated 4.4.2006 imposed another penalty of Rs.32,200 per day under Section 171 of the Companies Ordinance, 1984. Appellants assailed the order in Revision Petition No. 47 of 2006.

14. The Annual General Meeting for the year 2005, became due in the meanwhile and a third show-cause notice was issued on 6.7.2006, for default in holding Annual General Meeting. Order dated 16.8.2006 was passed and the penalty of Rs.50,000/- on each director and the Chief Executive was imposed, the order was assailed in Revision Petition No. 81 of 2006.

15. The Commission through consolidated order/judgment dated 30.11.2006 dismissed the petitions and upheld the imposition of penalties. The instant appeal assails order dated 30.11.2006 of the Commission. Learned Commission observed in the impugned order that dispute of acquisition of shares, in violation of Take over laws/Ordinance, 2002, should have not been made ground for not holding Annual General Meeting for two consecutive years. Election of directors was one of the agenda in Annual General Meeting. It was further observed in the impugned judgment that act of omission on the part of management to hold meetings within the prescribed time, was violation of law. The finding of the Commission, (under assail), is the correct view and unexceptionable. I will discuss this issue in the succeeding paragraphs.

16. The company is required under Section 158 of Ordinance, 1984, to call at least one meeting (AGM) of it's shareholders in each calendar year, with a gap not more than eighteen (18) months between two meetings. If the company fails to hold annual general meeting, two consequences will follow. Firstly any member can apply to the Commission (SECP) and later will order the calling of meeting. Secondly, the Commission has the power to take suo moto action for such default and pass similar order/direction. Additionally, the failure to call AGM is an offence, punishable with fine. The penalty is imposed upon the company as well as every officer, who is party to such default. Relevant provision in Section 158(4) of the Ordinance, 1984, which reads:--

"158(4). If default is made in complying with any provision of this section, the company and every officer of the company who is knowingly and willfully a party to the default shall be liable--

(a) if the default relates to a listed company, to a fine not less than (fifty) thousand rupees and not exceeding (five hundred) thousand rupees and to a further fine not exceeding two thousand rupees for every day after the first during which the default continues; and

(b) if the default relates to any other company, to a fine not exceeding (one hundred) thousand rupees and to a further fine not exceeding (five) hundred rupees for every day after the first during which the default continues."

1. The above provision of law, in unqualified terms, provides for holding of Annual General Meeting. No departure is permissible from the compliance of the mandatory provisions of Section 158. The company is artificial person and those who manage it's affairs are under legal as well as fiduciary obligation, to run the affairs of the company as the law (Companies Ordinance, 1984) requires Corporate democracy is the essence of the corporate personality of a juristic person. The legislature in it's wisdom was conscious of the importance of holding of Annual General Meeting and that is why a company is made liable to be wound up, if fails to hold two consecutive Annual General Meetings.

2. The accounts of the company are audited annually and are approved in Annual General Meeting. Carrying financial activities of the company, without proper audit of accounts and it's approval from general body, show that the management of company deals with account in an unauthorized manner. The company can lawfully manage it's affairs, when it's members approve the accounts and select among themselves the board of directors to perform the functions on behalf of the company. The exclusion of the directors from the management of the company or exclusion of the share-holders from electing the directors and approving the audited accounts will negate the concept of corporate democracy. The directors, who are elected for a specified period, continue to perform their functions beyond such period will amount to usurp the powers given to the directors. The directors are elected for certain period and they can perform their function during that period only. Their terms of office, validly exist for the period for which they were elected and not thereafter. The management is under an obligation to hold the meeting (AGM) as and when it becomes due.

The appellant has taken refuge from this obligation, on the plea that provisions of Ordinance, 2002, have precedence over other laws including Ordinance, 1984. The acquisition of shares in violation of provisions of Ordinance, 2002, can be no justification for the management of a company to opt for a different course, for management of affairs of the company other than a legal course. Take Over Laws/Ordinances, 2002 has the over-riding impact but to certain limitations. Ordinance, 2002 will over-ride only those provisions of Companies Ordinance, 1984, which are in conflict with the former statute. Section 30 of the Ordinance, 2002 will prevail and those provisions of Ordinance, 1984 which are not in conflict with the Ordinance will hold the field. The Ordinance, 2002 nowhere provides for a different procedure for holding election of the directors or calling the Annual General Meeting of the target company. The provisions of sub-Sections (2) to (5) of Section 178 do not offend the provisions of Ordinance, 2002, therefore, these provisions will apply with all it's force and vigour to the target companies, as well. The members are not required to be deprived of their right to be represented in the company.

1. The acquisition of voting shares in violation of the provisions of Ordinance, 2002, do not render the acquisition of share void and ab initio. It is curable defect and the acquisition can be validated by imposition of fine or directing the acquirers to sell the shares acquired by offending provisions of Ordinance, 2002, or to debar the acquires from the company for the next three years. The provisions of Ordinance, 2002 are enacted in the interest of security market and not to safeguard the interest of existing share holders in the listed company. The member of the company is eligible to vote and participate in the annual general meeting of the company as long as he is on the register of the share-holder. A member is only debarred from participating in the meeting (AGM) when his name is removed from the register either in the normal course or through rectification of the register through an order of the Court. The share holder unless he seizes to be a member of the company is vested with the right to participate in the meeting (AGM), seek from the management or from the commission, direction for calling such meeting.

Respondents No. 5 to 7 were elected as Directors of the company in the annual general meeting. The election of director can be declared invalid through a petition u/S. 179 of the Companies Ordinance, 1984. The appellant has not challenged the proceedings of the Annual General Meeting in which Respondents No. 5 to 7 were elected as Director within the prescribed period of limitation. Depriving these Directors from participating in the management of the company is unfair, inequitable and illegal. The commission has rightly directed the appellant, through impugned order, to hold Annual General Meeting. There is no illegality in the imposition of fine. The impugned order is not open to exception.

1. For the foregoing, this appeal is without any merit and is accordingly dismissed. The impugned decisions qua the imposition of penalties and calling the general meetings are affirmed and upheld.

(M.S.A.) Appeal dismissed.

PLJ 2011 Lahore 303 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Tariq, J.

RAZZAQ AHMAD NADEEM--Petitioner

versus

FEDERATION OF PAKISTAN--Respondent

W.P. No. 2963 of 2003, decided on 2.7.2010.

Pakistan Army Act, 1952 (XXXIX of 1952)--

----Ss. 40 & 55--Constitution of Pakistan, 1973, Art. 199--Conviction and sentence awarded by Summary Military Court--Challenge to--Petitioner was employed in Pakistan Army who committed fraud and prepared forged contingent bills and misappropriated--Conviction made a confession before Summary Military Court--Validity--Petitioner had utilized all the available remedies and order passed by Military Court as well as by Courts of appeals were legal order which were competent having the jurisdiction to decide the criminal cases against the convict--Petitioner had failed to point out any illegality or jurisdictional error in impugned judgment--Petition was dismissed.

[P. 305] B

Constitution of Pakistan, 1973--

----Art. 199(3)--Pakistan Army Act, 1952, Ss. 40 & 55--Constitutional jurisdiction--Bar of jurisdiction of High Court--Conviction and sentence awarded by Summary Military Court--Remedies under law--Validity--By virtue of an expressed bar under Art. 199(3) of Constitution the jurisdiction of High Court is expressly barred unless the impugned/judgment was malafide, without jurisdiction or against the principle of natural justice--After announcement of conviction and sentence the petitioner preferred an appeal before Court of appeals which was dismissed. [P. 305] A

Agha Muhammad Ali Khan, Advocate for Petitioner.

Mr. Atiq-ur Rehman Kiani, Standing Council for Respondent.

Date of hearing: 2.7.2010.

Order

The petitioner has challenged the conviction and sentence of the petitioner awarded by Summary Military Court for nine months R.I., dismissal from service, reduction, in ranks and fine of Rs. 50,000/-.

1. Brief facts of the case are that the petitioner was employed in Pakistan Army as head clerk in S & T Branch of HQ 491 Engineer Group who committed fraud and prepared forged contingent bills dated 22.11.2000 and misappropriated Rs. 2,67,540/- which also falls an offence under Section 40 of the Pakistan Army Act, 1952.

2. Learned counsel for the petitioner contends that conviction and sentence of the petitioner be declared null and void and the petitioner be acquitted because the trial of the petitioner was coram non-judice as the petitioner was posted out from HQ 491 Engineering Group from 22.5.2001, therefore, the trial by Headquarter 491 Engineering Group was without jurisdiction. Learned counsel farther contends that the confession of convict was not recorded in accordance with law as the convict was compelled to make a judicial confession which is a nullity in the eye of law and could not be used against the petitioner. Therefore, writ petition be allowed, impugned conviction order be set aside passed against the petitioner.

3. On the other hand, learned Standing Council has opposed this writ petition and contends that no writ petition lies against an Army personnel. Further contends that the convict has made a voluntarily confession and thereafter it could not be challenged in the writ petition. The petitioner/convict is a habitual offender and previous convict who was convicted and punished for misappropriation in another case. In the circumstances, writ petition be dismissed.

4. Arguments heard. Record perused.

5. Admittedly, the petitioner/convict is an Army personnel who was charged for misappropriation of a huge amount of Rs.2,67,540/-. It is fully established that the convict prepared forged and fabricated contingent bill and received Rs.50,000/- as his share. During the trial, the convict made a confession before the Summary Military Court. The parawise comments submitted by the learned Standing Council further reveals that the petitioner was also previously convicted who was punished under Section 55 of the Pakistan Army Act, 1952. During the trial, while answering to a point question that do you wish to make any statement in reference to the charge or in mitigation of punishment? The convict answered I have committed a mistake and I accept it, I may be pardoned.

6. That by virtue of an expressed bar under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, the jurisdiction of this Court is expressly barred unless the impugned judgment is mala fide, without jurisdiction or against the principles of natural justice. Record reveals that the petitioner/convict was sentenced by a Summary Military Court, which was a competent authority to punish the convict. The petitioner was provided all the remedies under the law. After, announcement of conviction and sentence, the petitioner preferred an appeal before the Court of appeals, which was also dismissed on 24.4.2003.

7. The petitioner has utilized all the available remedies and order passed by Summary Military Court as well as by the Court of appeals are legal orders which are competent having the jurisdiction to decide the criminal cases against the convict. Learned counsel for the petitioner has failed to point out any illegality or jurisdictional error in the impugned judgments. Resultantly, the writ petition has no force, the same is dismissed.

(S.L.) Petition dismissed.

PLJ 2011 Lahore 306

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD NAWAZ--Petitioner

versus

FEDERAL LAND COMMISSION, ISLAMABAD and 9 others--Respondents

C.R. No. 3017 of 1994, decided on 22.4.2010.

Administration of Justice--

----Jurisdiction of Civil Courts--The Civil Court is the Court of competent jurisdiction where the parties are at liberty to produce evidence--Petition allowed. [P. 314] A

Khan Muhammad Vehniwal, Advocate for Petitioner.

Mr. Ahmed Waheed Khan, Advocate for Respondents.

Date of hearing: 25.3.2010.

Judgment

This case has long and complicated history, however, the briefs facts available on record are as under:--

1. The petitioner, Muhammad Nawaz son of Muhammad Rafique, filed a suit for declaration claiming that land measuring 139 kanals 14 marla falling in Square Nos. 116, 117, 119, 120, 127 of Khata No. 147 situated in Village SADVE, Tehsil Chiniot, District Jhang was the ownership of Provincial Government being the surrendered land under the Land Reforms, was purchased by one Muhammad Nawaz son of Fazal Ahmed (hereinafter referred to as Vendor) in public auction held on 05.09.1967 through registered sale-deed. The auction purchaser paid the price and proprietary rights of the auctioned land was transferred in his favour, the possession of the land purchased was handed over to the purchaser by the Respondents No. 3 to 5 (Land Commissioner). The revenue officials intentional or unintentional mistake, described the said land as "LOT" "1" having Khasra No. 2985 in the revenue record. The Khasra No. 2985 is a graveyard. According to law, the graveyard could not be resumed or surrendered nor owned by anyone, neither it can be auctioned. The petitioner purchased the auctioned land on 04.12.1974 through registered sale-deed. In the sale-deed, the description of the property was shown Khasra No. 2985 as this was mentioned in the auction purchaser's documents. According to plaint when the petitioner purchased the land it was "Banjar Qadeem" and there were mud heights of 25/26 feet on the land. The petitioner/ plaintiff developed the said land after investing huge money and the land is now an agriculture land. The petitioner claims that from the date of purchase of land, he is in uninterrupted possession of the suit land. The consolidation proceedings initiated in the village. The consolidation staff with the mala fide intention shown the suit land in the ownership of Provincial Government. One Zakar Hussain got allotted the same land fraudulently in his favour from the Provincial Government and got it mutated in his name on 02.10.1980. The said Zakar Hussain started to blackmail the petitioner and threatened to dispossess him from the land, the petitioner under compelling circumstances purchased the land measuring 84 kanal of the same land from Zakar Hussain against Rs.70,000/- through registered sale-deed for protecting his possession. The Deputy Land Commissioner thereafter cancelled the land from the name of Zakar Hussain. The Respondents No. 4 and 6 declared the land purchased by the petitioner as graveyard and the land in possession of the petitioner is not that which was auctioned in favour of the vendor. The petitioner further claimed that order dated 23.2.1986 passed by Deputy Land Commissioner, Jhang and order dated 31.3.1979 passed by Additional Deputy Land Commissioner (Consolidation) are void, illegal, mala fide and are without any jurisdiction and is inoperative against his rights. The petitioner has sought a decree for declaration to the effect that he is owner in possession of suit land, which is in his possession, the detail of which is given in the plaint and the entries in the revenue record in favour of Provincial Government are illegal and against facts, and as such, are void and in effective qua the petitioner. He also prayed for consequential relief by way of perpetual injunction restraining the respondents from interfering in the ownership and possession of the petitioner qua the suit land.

2. The respondents filed the written statement and raised legal as well as factual objections, especially the preliminary objection about the jurisdiction of Civil Court. The respondents claimed that Muhammad Nawaz son of Fazal Ahmed purchased Khasra No. 2985 measuring 138 kanal 16 marla in public auction which he sold the same to the petitioner and land in the Khasra No. 2985 is graveyard. The respondents controverted the claim of ownership of petitioner.

3. The learned Civil Court on 27.01.1987 framed the following issues:

"ISSUES:

(1) Whether the plaintiff is owner in possession of the suit land? OPP

(2) Whether the orders of Deputy Land Commissioner dated 23.2.1986 and order of Addl: Deputy Land Commissioner (Consolidation) dated 31.3.1979 are illegal, void and without any legal effect? OPP

(3) Whether this Court has no jurisdiction to entertain this suit? OPD

(4) Whether the plaintiff has no locus-standi and cause of action to file the present suit? OPD

(5) Relief?

1. The petitioner examined two witnesses including himself. He also placed on record following documents, Jamabandi for the year 1924-25 (Ex.P.1), copy of Register of record for the year 1958-59 Ex.P.2, Ex.P.3 copy of Register of record of rights, Ex.P.4 copy of notice of confirmation dated 18.04.1968, Ex.P.5 copy of possession letter, Ex.P.6 copy of mutation 232, Ex.P.7 copy of Register of record for the year 1970-71, Ex.P.8 copy of Register of record of rights for the year 1979-80, Ex.P.9 copy of Mutation No. 455, Ex.P.10 copy of register of record of rights 1979-80 of Khata No. 92, Ex.P.11 copy of Register of record of rights for the year 1979-80 of Khata No. 149 village Sadev, Ex.P.12 crop inspection report. Ex.P.13 copy of Khatuni Ishtmal village Sadev, Ex.P.14 copy of order for approval of scheme of Consolidation village Sadev, Ex.P.15 copy of Khatuni of consolidation No. 19, Ex.P. 16.copy of sale-deed by Muhammad Nawaz, Ex.P.17 copy of sale-deed of Zakar Hussain, Ex.P.18 copy of mutation in favour of Zakar Hussain No. 472, Ex.P.19 copy of Parcha Zamindaran consolidation of village Sadev, Ex.P.20 copy of Register of record of rights for the year 1966-67 of village Sadev, Ex.P.21 copy of crop inspection report from Khairif 1980 to Kharif 1982, Ex.P.22 copy of Register

Ex.P.23 copy of Khata No. 77

Ex.P.24 copy of statement of Maqsood son of Ahmad Ali before Assistant Collector, Chiniot, Ex.P.25 copy of list of Field Members, Ex.P.26 copy of Form of supply of copies, Ex.P.27 copy of order dated 17.11.1983, Ex.P.28, Ex.P.29, Ex.P.30, Ex.P.31, Ex.P.32, Ex.P.33, Ex.P.34, Ex.P.35, Ex.P.36, Ex.P.37, Ex.P.38, Ex.P.39, Ex.P.40. The respondents examined Patwari (DW.1). The learned trial Court decreed the suit vide judgment and decree dated 09.09.1991, the Respondents No. 1 to 4 filed an appeal, the appeal was allowed by the learned appellate Court vide judgment and decree dated 24.7.1994. The petitioner assailed the judgment and decree dated 24.7.1994 through this petition.

1. The learned counsel for the petitioner submits that judgment and decree was well reasoned and passed on the basis of record produced by the parties but the learned appellate Court has accepted the appeal without any reason, the learned appellate Court has failed to appreciate that vendor of the petitioner has purchased the land through open auction from Respondents No. 2 to 6 representing Government of Punjab, they handed over the possession of the land sold, the learned appellate Court has failed to consider the most important fact of the case that land, subject-matter of the suit, is a surrendered land under the Land Reforms and graveyard could not be resumed or surrendered according to law. The learned appellate Court has wrongly concluded that the remedy of the petitioner lies with the Federal Land Commission and the Civil Court has no jurisdiction, he adds that Civil Court is the Court of ultimate jurisdiction and the suit was rightly filed with the Civil Court, the learned counsel submits that petitioner has purchased the land from a vendee of Government and the Government cannot commit any fraud with its citizens, the transaction subject matter of suit, is hit by doctrine of promissory estoppal. The learned counsel further submits that, Respondents No. 1 to 6 have failed to establish that they resumed graveyard and sold the graveyard to the vendor of the petitioner against consideration, lastly submits that impugned judgment and decree suffers from misreading and non-reading of the evidence available on record, he submits that learned appellate Court has not considered the admissions of DW. 1 who is the Patwari produced by the respondents Land Commission.

2. Learned Assistant Advocate General, Punjab supports the impugned judgment and submits that Zakar Hussain fraudulently got allotted the part of suit land, and mutation in his favour was attested on the basis of fraudulent allotment and when these facts came into the knowledge of the respondents, his allotment was cancelled and mutation was set aside. The Respondent No. 1 directed to register an FIR against him, and the trial of Zakar Hussain is pending disposal before Special Court. He further submits that petitioner is claiming title under the sale-deed executed by Zakar Hussain hence he is not entitled to get a decree on the basis of fraudulent sale. He further contends that, the FARD NILAM shows that there was no Khasra number and the boundaries of the auctioned land and as such the land in possession of the petitioner was never sold to the vendor of the petitioner. He adds that if the petitioner has any grievance, he should approach the Land Commission which is the proper forum for the redressal of his grievance and the Civil Court has no jurisdiction to decide the issue. He admits that no doubt it was not mentioned in the FARD NILAM, the details of description of Lot No. 1 but when possession was handed over to the vendor of the petitioner, the Khasra No. 2985 was mentioned in the document of confirmation of sale, this shows that he purchased the land fallen in the said Khasra, hence it is proved on record that Muhammad Nawaz (vendor) purchased the land situated in Khasra No. 2985. Mr.A.Waheed Khan, learned counsel for the applicant in C.M. No. 1/1997 supports the impugned judgment and decree, however, he admits that his arguments are subject to acceptance of his civil miscellaneous which was dismissed vide order dated 10.07.1996 but vide order dated, it was ordered that C.M.No. 1/1997 will be decided along with the main petition.

3. Heard and record perused.

4. It is an admitted fact between the parties that the property sold by the Respondent No. 7 was a surrendered land under the Land Reforms. It is also an admitted fact that Muhammad Nawaz son of Fazal Ahmad purchased land measuring 138 kanal 14 marla being the surrendered land through public auction conducted by Federal Land Commission. This is also not disputed by the parties that in "FARD NILAM" (Ex.P.4), no description of property is given and only the name of village is mentioned. It is also not disputed by the parties that vendor of the petitioner was put into possession of the land by the Respondent No. 5 on the day of confirmation of sale. The dispute is that property in possession of the petitioner was not auctioned in favour of vendor and the property purchased by the vendor of the petitioner falls in Khasra No. 2895, which is factually a graveyard. Against this stance of respondents, the claim of the petitioner is that revenue officials have wrongly inserted the Khasra No. 2895 in the revenue record against the property auctioned on 05.09.1967 and purchased by the vendor against valuable consideration. The Khasra number of the land in dispute came into picture first time thorough a confirmation letter of sale (Ex.P.5) which shows the name of purchaser of land, Muhammad Nawaz son of Fazal Ahmed, name of village "SADEV", "Lot No. 1", Khasra No. 2985, measuring 138 kanal 16 marla, price of land Rs.1,015/-, the possession of sold land was handed over by the Respondent No. 4 to the auction purchaser on the day of auction.

5. Letter (Ex.P.6) on behalf of Deputy Land Commission, Jhang to Sub-Assistant Land Commission, Chiniot confirms that auction purchaser has paid the entire price of land, the said letter further confirms that auction purchaser paid the price of land being Lot No. 1 village Sadev, Tehsil Chiniot, District Jhang, and it was directed to the concerned officer to attest the mutation of said land in favour of the auction purchaser and communicate the number of mutation to Deputy Land Commissioner, Jhang for incorporation in Register LC-XI-C maintained by the Assistant Land Commissioner, Jhang. Ex.P.7 shows that mutation attested in favour of purchaser/the vendor of petitioner and the measurement of land is shown as 138 kanal 16 marla, the status of land is shown as "Ghair Mumkin", the Khasra No. 2985 is mentioned, in column of ownership the name of Provincial Government is mentioned and after change in the column of ownership it is mentioned Muhammad Nawaz son of Fazal Ahmad, the reason for transfer the land is shown sale through auction against consideration of Rs.1,015/- vide order dated 17.6.1969 passed by DLC Jhang.

6. It is an admitted fact that petitioner is in possession of that land, the possession of which was handed over to his vendor by the Respondent No. 4.

7. The issue about the identification of the land arose when one Zakar Hussain approached the petitioner and informed that he is the owner of land in his possession as the same has been allotted to him by the Deputy Land Commissioner, Jhang and mutation in his favour has been attested, one Zakar Hussain claimed the possession of the land in dispute on the basis of alleged allotment in his favour. The petitioner resisted his claim against the land but subsequently purchased 87 kanal land from the said Zakar Hussain through registered sale-deed dated 02.06.1981. However, the main claim of the petitioner is on the basis of sale-deed executed by vendor.

8. The issue between the parties is about the description of said land. The Civil Court framed Issue No. 1 on the said controversy. The petitioner examined the Lumberdar of Village No. 144 as PW.1. It is an admitted fact that the Lumberdar in the revenue hierarchy is most important person, he is the person who knows each and every inch of land in the village as well as its owner. PW.1 is the Lumberdar of adjacent village of Sadev, he deposed that Khasra No. 2985 is an old graveyard, the petitioner is in possession of suit land after purchase from one Muhammad Nawaz, Muhammad Nawaz purchased the land through auction from Land Commissioner, Muhammad Nawaz took the possession of the land from Respondents No. 1 and 2 when he was suggested in cross-examination that Muhammad Nawaz purchased graveyard, he denied the suggestion. In fact, the defendants/respondents could not ask this question being the seller of land. If they are suggesting that Muhammad Nawaz purchased the graveyard then they are admitting their guilt. The respondents if are claiming that they sold the graveyard to auction purchaser, then it is their primary duty to prove on record that they resumed the graveyard from the earlier owner in terms of Land Reforms and while auctioning the land through public auction, they have made it clear to the public-at-large that they are selling the graveyard and the purchaser will purchase the graveyard and not the agricultural land. Ex.P.30 is the schedule of auction of land, which shows the detail of surrendered land of three Tehsils of District Jhang i.e. Tehsil Jhang, Chiniot and Shorkot which they put to auction from 5.9.1967 to 9.9.1967. In this schedule the description of land offered for sale is detailed. Tehsil Chiniot, village Sadev, number of Lot-1, number of Khasra 2985, measurement of land 138 Kanal 16 Marla, the status of land is Ghair Mumkin Darya. The other land of the said village is Lot No. 2, Khasra Nos.3050, 3056, 3057, 3059, 3060 and 3074 (6 plots) measurement 52 Kanal 14 Marla, status of land (Nahri). This schedule shows that there were only two pieces of land of the village Sadev which were the part of auction schedule. The suit property remained under River and with the passage of time, when the River changed its way, the suit land come out and in the revenue record, it was shown as "Ghair Mumkin Draya". The question arose how much land was the subject matter of land reforms in the village SADEV. Ex.P.30 gives the detail of land confiscated by the Government under Land Reform Regulation No. 64, Tehsils Jhang, Chiniot, and Shorkot. The land offered for sale are Lot No. 1, Lot No. 2 and Lot No. 3, the detail of land included in each lot is shown separately with the specification of each Khasra No. , for example, in Lot No. 2, the total land offered is 52 Kanal 14 mark, in Column No. 6 "Nahri", in Lot No. 1138 Kanal 14 Marla "Ghair Mumkin Darya". It is no where mentioned that out of two lots, any land is graveyard, meaning thereby no graveyard was surrendered by the earlier owner nor any graveyard was offered for sale and Khasra No. 2985 was wrongly mentioned in the column of Khasra.

9. DW.1 the only witness of the respondents who is Patwari when appeared in witness box, deposed, land measuring 138 Kanal 16 Marla was owned by Tahir Ahmed Shah, who surrendered the same in favour of Land Commissioner, Land Commissioner sold the said land to Muhammad Nawaz son of Afzal Ahmed through auction. In cross-examination, he admits that land under graveyard cannot be surrendered nor sold, the possession of land is given at the time of auction. He admits that possession of land was given to Muhammd Nawaz the auction purchaser and he sold the said land to petitioner. Now the question arose the possession of which land was given to the auction purchaser. According to DW.1, the Land Commission was handing over the possession of auctioned land to every auction purchaser on the day of auction at site as per procedure of the Land Commission. In the present case, the land was sold to one Muhammad Nawaz son of Afzal Ahmed and possession of the SOLD LAND was handed over to him, when the possession of sold land was handed over to the auction purchaser, admittedly that was not the graveyard as the auction purchaser has not complained about the land nor the Land Commission at site observed that land sold is graveyard. It is also an admitted fact that till today, the land is in possession of the petitioner and no one is claiming its ownership except the Land Commission. If the land sold was a graveyard, then how the possession of the present land was handed over to the auction purchaser especially when the respondents are not alleging that petitioner is an illegal occupant or he trespassed the land. Why the Land Commission has not recalled the auction proceedings dated 05.09.1967 and if they were confident that they have sold the graveyard why they have not returned the price of land to the purchaser. If the claim of respondents is that they have sold the graveyard then they should have recalled the auction the moment they came into knowledge that they have sold the graveyard. They are claiming that they sold the graveyard but are not rectifying their mistake, they are just agitating that land under the possession of petitioner was not sold to him. If this is the case then the respondents should have recalled the auction and the price received should have been returned to the purchaser according to law or he should have been offered some alternate land. The respondents have received the entire price of the land and issued sale certificate to the auction purchaser and handed over the possession of the land when the petitioner has developed the suit land they started to claim that land sold by them is a graveyard. Their stance that they have sold the graveyard amounts to fraud with the public as well as Government. If the land surrendered by the original owners was graveyard why the benefit of graveyard was given to declarant and why the actual land was not demanded from the declarant, If it is admitted that declarant surrendered the graveyard, why the action was not taken against the declarant and the officials of Land Commission who accepted the declaration of erstwhile owner. This shows that declarant was allowed to retain cultivated land and the graveyard was adjusted against his valuable land which otherwise was the property of Government under the Land Reforms. The respondents while submitting their written statement, have replied as under in Para No. 1 of the plaint which is read as under:--

URDU

1. The defence of respondents shows that they are admitting the description of land as correct. The possession of the land described in para is that land which was handed over to the auction purchaser, on confirmation of auction as per the procedure of Land Commission (the seller of the land). This admission on the part of respondents shows that the land sold to the auction purchaser was not a graveyard nor it could be for the simple reason that ownership of graveyard could not be termed the property of any one except the Government if it is not a private graveyard. If the declarant managed to surrender the graveyard in favour of Government, that was with the active connivance of respondents official. If we accept the argument of learned counsel for the respondent that petitioner has purchased the graveyard in an open auction conducted by the Land Commission then the onus to prove the said fact shifts on the respondents as they are the sellers, the evidence produced by the respondents goes against them because they have not made known to the petitioner and even to the Court, that they have allowed the declarant to surrender the graveyard and they have sold the graveyard to petitioner, this act of the respondents is sufficient to repel their defence. They confirmed to the prospective buyers that land offered for sale is the surrendered land under Land Reforms by its owner whose entitlement was hit by Land Reforms. It is the petitioner who brought the documents on record pertaining to land.

2. The documents produced by the petitioner prove that he purchased that land which is in his possession from the last 53 years and it is the officials of respondents who wrongly and fraudulently mentioned the Khasra No. 2985 against Lot No. 1 after the sale of land. The argument of learned AAG that Civil Court has no jurisdiction to decide the issue has no force. The Civil Court is the Court of competent Court of jurisdiction where the parties are at liberty to produce evidence. The Respondents No. 2 to 6 are the party to the dispute, hence how the said respondents can be the judge of their own course, it is an established principle of law that no one can be the judge of his own cause, hence this argument of learned AAG is devoid of any meant. Learned civil judge has rightly passed the decree against the respondents.

3. In view of the above, I am of the view that the judgment and decree dated 24.07.1994 passed by the learned appellate Court is against law and facts, the same is hereby set aside. Resultantly, this revision petition is allowed. The net effect of this judgment is that judgment and decree dated 09.09.1991 passed by the learned Civil Court stands restored.

4. C.M. No. 1/1997 has become infructuous as the revision petition has been allowed. There is no order as to costs.

(A.A.) Petition allowed.

PLJ 2011 Lahore 315

Present: Muhammad Khalid Mehmood Khan, J.

PROVINCE OF PUNJAB through Collector District, Lahore--Petitioner

versus

MUHAMMAD LATIF and another--Respondents

C.R. No. 1350 of 1992, decided on 6.5.2010.

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

----S. 115--Limitation for filing of revision petition--Effect of--The true construction of S. 115 would indicate that the High Court may at any time call for the record of any case from the subordinate Courts in order to determine as to whether the sub-ordinate Court has exercised jurisdiction not vested in it or has failed to exercise jurisdiction vested in it or has committed material irregularity while deciding the disputes of the public-at-large--When the revisional powers of the High Court are intact it should not be restricted by any period of limitation--Petition accepted. [P. 321] A

Mr. Tariq Masood, Advocate and Muhammad Sirajul Islam Khan, A.A.G. for Petitioner.

Mr. Maqbool Ahmed Chaudhry, Advocate for Respondent No. 1.

Mr. Talat Farooq, Advocate for Respondent No. 2.

Date of hearing: 9.4.2010.

Judgment

I intend to decide two revision petitions CR No. 1350/92 and CR No. 1351/92 through this judgment as these are filed against same judgment and decree. Through these revision petitions the petitioner, the Province of Punjab, has assailed the judgment and decree dated 14.5.1989 passed by the learned civil judge and judgment and decree passed by the learned appeal Court on 21.3.1990.

1. Briefly stated the facts of this revision petition are that Muhammad Latif respondent filed a suit for declaration and consequential relief on 18.5.1985 claiming that he purchased land measuring 192 Kanals 13 Marlas bearing Khasra No. 1858, 1859, 1849, 1845, 1848, 2012, 1803, 1843, 1990, 1994, 2092, 1864, 439, 543, 541, 1279 and 143 situated in Mouza Charrar Tehsil and District Lahore from its evacuee owners namely Ojagar Singh, Jagir Singh sons of Suran Singh, Pandat Krishan Mall son of Raj Mall, Pala Singh son of Esser Singh and Boota Singh son of Veer Singh by way of 25 unregistered sale-deeds dated 03.5.1945 and 09.6.1946. He claimed that as the price of each sale-deed was less then Rs.100/- so the registration of these sale-deeds were not compulsory under the law. He asserted that in pursuance of the said sale-deed he obtained physical possession of purchased land. On partition of sub-continent and creation of Pakistan, the non-Muslim vendors migrated to India but even after their migration the land was shown in the revenue record in the name of evacuee owners. According to law it was made obligatory under the evacuee laws that any sale entered into before 1947 was to be declared and scrutinized by the Deputy Custodian to the effect that the land is not evacuee property.

2. The respondent applied to the Deputy Custodian U/S 22 of Act, XII of 1957 vide case No. 176 of 1962. The Deputy Custodian after holding the inquiry and recording the evidence vide judgment dated 30.10.1968 allowed the application of respondent declaring that the land, subject-matter of the unregistered sale-deed, is not evacuee property and is owned by the respondent. According to law the said judgment of the Deputy Custodian was confirmed by the Custodian vide order dated 30.8.1969. He filed an application before the Assistant Commissioner/ Collector, Lahore for implementing the orders dated 31.10.1968 and 30.8.1969 passed by the Deputy Custodian and Custodian for attestation of mutation in his favour. The Assistant Commissioner/Collector Lahore after holding inquiry and confirmation from the Custodian office, vide order dated 08.12.1976 directed the Tehsildar to attest the mutation of change of ownership in favour of the respondent. The Tehsildar on receipt of the orders of Collector, attested the Mutation No. 1079 to the extent of land measuing 55 Kanals 13 Marlas comprising Khasra Nos. 1279, 2831/543, 551, and 1994 vide order dated 28.12.1976 in his favour. Although the entitlement of the petitioner was of 192 Kanals 13 Marlas but the circle Revenue Officer attested the mutation of land measuring 55 Kanals 13 Marlas only without assigning any reason. The respondent applied to the Collector for attesting the mutation of entire land but without success. He specifically asserted that some interested persons and inimical parties moved different applications/complaints to the Collector and the Assistant Commissioner/Collector against him. The collector without allowing any opportunity of hearing, cancelled the mutation in his favour. In these circumstances he filed a suit with the prayer that orders dated 30.8.1969 and 31.10.1968 passed by the Custodian and Deputy Custodian be declared to be passed in exercise of their lawful jurisdiction and these two orders have become final. It is further prayed that he is the owner in possession of land, subject-matter of Mutation No. 1079 attested on 18.12.1976 and that the order dated 13.9.1980 for cancellation of Mutation No. 1079 be declared null and void.

3. The petitioners appeared in the suit and submitted their written statement. It was disclosed that the respondent has earlier filed a suit but withdrew it on 19.4.1981 without the permission to file fresh suit. It was also objected that the claim of the respondent is fraudulent and the two orders dated 30.10.1968 and 30.8.1969 have been obtained through fraud. The Mutation No. 1076 is outcome of concealment of facts and practicing of fraud with the petitioners.

4. Out of divergent pleadings of the parties, the following issues were framed by the learned trial Court:--

"ISSUES:

1. Whether the suit is bad for non-joiner of necessary parties? OPD

2. Whether the suit is malicious and vexatious? OPD

3. Whether the plaint does not disclose any cause of action? OPD

4. Whether the suit can not proceed in vide of preliminary Objection No. 5 of the written statement? OPD

5. Whether the plaintiff is owner of the suit land? OPP

6. Relief

7. The respondent completed his evidence on 10.1.1983 and the petitioners continued to obtain adjournments and ultimately the learned Civil Court vide order dated 17.9.1986 passed an order for disallowing the petitioner to lead evidence and decreed the suit vide judgment dated 14.5.1989.

8. The petitioners and Revenue Officer assailed the said judgment and decree through two Appeals No. 290/1989 and 291/1989. These two appeals were ultimately dismissed by the learned appeal Court vide judgment and decree dated 21.3.1990. Hence, the present revision petition. However the other respondent has not filed revision against the judgment and decree dated 21.3.1990.

9. Learned Assistant Advocate General submits that property, subject matter of decree is outcome of fraudulent transaction. The respondent has procured orders dated 31.10.1968 and 30.8.1969 from Deputy Custodian and Custodian by misstating the facts and producing fake documents. He submits that 25 sale-deed in favour of respondent are compulsory registered U/S 17(i)(b) of Registration Act, 1908. He submits that mutation of 55 Kanals 13 Marlas was attested on 28.12.1976 and was cancelled on 13.9.1980, the cancellation order can be challenged within one year but the suit was filed after seven years without any excuse. He raised the objection of limitation on the ground that cause of action firstly arose in favour of respondent in 1946 and lastly on 31.6.1969 but the suit has been filed on 18.5.1985 and as such the suit is barred by time. He further adds that learned Civil Court wrongly struck of the petitioner's right to examine the witnesses on 17.9.1968.

10. Learned counsel for the respondent supports the judgment and decree of both the Courts below and submits that the revision petition is barred by 02 years 04 months and 17 days and no explanation has been given for the delay of 2 years 4 months and 17 days. He further submits that respondent is bona-fide purchaser for value and the learned Civil Court has rightly set-aside the order of cancellation of mutation in his favour. He maintains that he is still in possession of the property as owner of the same and petitioner is wrongly not implementing the decree passed by two Courts below.

11. The Lahore Cantt Cooperative Housing Society, (now DHA) filed an application CM No. 1-C of 2004, Under Order I, Rule 10 CPC claiming that the Lahore Cantt Cooperative Housing Society is a necessary party to the revision as they have purchased the land measuring 93 Kanals out of the land, subject-matter of the decree under challenge, the land purchased by them is comprising of Khasra Nos. 1036, 1849, 1843, 3097, 2092, 1885, 1912, 1990 and 1994 village Charrar, Lahore Cantt. The mutation in their favour has already been attested and they have developed a Housing Society on the said land.

12. The application was opposed by the respondent but consented by the petitioner and the said application is also pending disposal.

13. Heard. Record perused.

14. The claim of the respondent as per averments in plaint is that he had purchased land through 25 unregistered sale-deeds from the evacuee owners on 03.5.1945 and 09.6.1946 and obtained possession of land when the evacuee owners left Pakistan after independence of Pakistan, the evacuee owners were shown the owner of land in revenue record and according to law his sale was subject to confirmation by the Custodian. When the custodian confirmed his sale, he applied to Revenue Officials for attestation of mutation in his favour and the revenue officer only mutated land measuring 55 Kanals 13 marks out of his total land measuring 192 Kanals 13 marlas. According to Respondent No. 1, he purchased land on 03.5.1945 and 09.6.1946 but why he has not got mutation attested in his favour, the evacuation of the evacuees started after 14.8.1947 why he remained silent till 14.8.1947. There is no averments of these facts in the plaint nor has been explained in evidence, the only averment available in the plaint is that according to law promulgated after 14.8.1947, he got confirmed his sale by the Custodian. The prime evidence available with the Respondent No. 1 was his possession, he purchased land in March 1945 and June 1946 but he has not produced any Khasra Girdawri showing his possession on the land. No doubt he has placed on record the two orders of Custodian but these orders show that it is only for confirmation of alleged sale. If Respondent No. 1 has purchased the land from the evacuee owners, it was his duty to get the mutation attested in 1945 and 1946 and the agricultural property can be transferred through mutaton. On the day of independence of Pakistan i.e 14.8.1947, the land was shown to be the exclusive property of earlier owner and as such by operation of law, the said property become the property of Central Government in accordance with the evacuee laws. The learned Court below have not examined this aspect of the case and only relied on two orders of Custodian. It seems that petitioners officials helped the respondent for procuring ex-parte decree from the Court in his favour. The petitioner officials never tried to produce evidence for unearthing the real facts. They continued to obtain adjournments on adjournments and ultimately their right to produce evidence was closed.

15. The objection of learned counsel for Respondent No. 1 is that revision petition is barred by two years 04 months and 17 days.

16. In reply to the said objection learned AAG submits that no doubt the revision petition was filed after the lapse of 02 years 04 months and 17 days but it was due to the unavoidable circumstances, the delay in filing the petition is not intentional. He submits that Under Section 115 of the Civil Procedure Code the High Court enjoys the supervisory jurisdiction and if the High Court comes to the conclusion that trial Court has not acted in accordance with law or failed to exercise the jurisdiction vested it or exercised jurisdiction not vested in it, the limitation will not be bar for rectifying the error of the trial Court. He further submits that it is not practically possible for the petitioner to implement the decree as the land has been allotted to the evacuees against their claim in accordance with law who have sold it to different persons, the DHA is one of the purchaser of land and as such they were the necessary party to suit but the Respondent No. 1 has not impleaded them party to the suit. All the purchasers are necessary and proper party and in their absence no effective decree can be passed. He relied on Section 115 of the Civil Procedure Code and Zahoor Hussain V. Ch. Niaz Ali and others (2006 SCMR 1067), Bank at Machine V. Manzoor Ahmad (2006 SCMR 1068), Evacuee Trust Property Board V. Muhammad Saddique (1995 SCMR 1748), Lahore Cantt Cooperative Housing Society Ltd V. Muhammad Ammar and others (2007 CLC 160) and Hassan Din V. Hafiz Abdus Salam and others (PLD 1971 SC 65).

17. Learned counsel for the respondent has vehemently argued that limitation for filing of Revision petition is 90 days and after the amendment in CPC vide amended Act (iii) 1992, 90 days limitation has been provided for filing the revision. Learned counsel for the respondent submits that respondent purchased the land from the evacuee owners and the land, subject matter of the suit was never been an evacuee land, so transfer of land in favour of DHA and other persons is against law. He opposed the application of DHA U/O I, Rule 10 CPC. The main thrust of arguments of the learned counsel for the respondent is mainly on limitation, his argument is that appeal filed by petitioners against decree was dismissed in their presence and as such, the petitioner can not claim any relaxation in limitation. Before law every one is equal and the respondent Government has no edge against the ordinary citizen of Pakistan. He further submits that the petitioner has not even cared to file any application for condonation of delay. He relies on Ali Muhammad V. Mst. Zahid Perveen (1992 CLC 2328), Abdul Hameed V. Ghulam Muhammad etc. (PLJ 1987 SC 288), M/S Canforce Ltd. V. Syed Ali Shah etc. (PLD 1977 SC 599), Islamic Republic of Pakistan V. M/S Abdul Ghani Abdul Rehman Ltd. (2002 CLC 1039), Ministry of Defence V. Janed and Co. (2005 CLC 1004), Masood Akhtar V. Manzoor Ahmad (2005 CLC 1651) and Haji Muhammad Zaman V. Zafar Ali Khan and others (PLD 1986 SC 88).

18. It is a settled principal of law that revisional jurisdiction primarily intended for correcting errors made by the subordinate Courts. It is available for correction of erroneous decisions. It is correct that provision of Section 151 CPC can not be invoked to defeat the provisions of Civil Procedure Code or to condone gross negligence. But it depends upon the facts of each case, whether the Courts below have acted in accordance with law or not?

19. No doubt the limitation for filing the revision petition provided in the Civil Procedure Amendment Act (iii) of 1992 is 90 days but it has to be seen whether this limitation curtails the powers of High Court in the exercise of its revisional jurisdiction or not. Section 115 Code of Civil Procedure was amended vide an amendment Act (iii) of 1992 and prior to this amendment the limitation for filing the revision petition was not prescribed for the reason that revisional Court has power to examine the illegality or irregularity committed by its subordinate Courts in its supervisory jurisdiction. Infact the jurisdiction U/S. 115 of CPC is a Revisional jurisdiction of the Superior Courts. The bare perusal of the amended Section 115 CPC shows that it has not taken the powers of Revisional Court to supervise administratively and legally the working and other acts of the subordinate Court. The amendment for imposing the limitation for filing the revision petition seems to has been added without examining the legal and true sense of Section 115 CPC. Section 115 CPC is a supervisory jurisdiction of the superior Court of its subordinate Courts and in case the limitation of 90 days is implemented on the supervisory jurisdiction of High Court, how the High Court or Revisional Court can supervise the affairs of subordinate Courts. The powers of Superior Court Under Section 115 are Suo Moto powers and if it is assumed that limitation of 90 days will be applicable then it means that suo moto powers of the revisional Court has been restricted and definitely this is not the intention of amendment of 1992. The true construction of Section 115 CPC would indicate that High Court may at any time call for the record of any case form the subordinate Courts in order to determine as to whether the subordinate Court has exercised jurisdiction not vested in it or has failed to exercised jurisdiction vested in it or has committed material irregularity while deciding the disputes of the public-at-large. It is a matter of common sense and logic that if the revisional powers of the High Court are intact it should not be restricted by any period of limitation. Even if after amendment in Section 115 CPC the embargo of limitation has been placed but the suo-moto powers of the High Court U/S. 115 CPC are still intact. Section 115 CPC is reproduced as under:

115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

{Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate.}

{Provided further that such application shall be made within ninety days of the decision of the subordinate Court "which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months ".}

{(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such-application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court.}

1. The perusal of second proviso of Section 115 shows that embargo of limitation is applicable on a person if he makes application under this Section not the High Court. Hence, it can safely be concluded that if any person filed an application under amended Section 115 CPC, the Court can consider the said application an information and can take action under its suo moto power in appropriate case. In my view even after amendment in Section 115 the suo moto powers of the High Court being revisional are intact and limitation of 90 days is not applicable against these powers.

2. The facts of this case are that impugned judgment and decree was passed on 21.3.1990 and admittedly the limitation was not applicable at that time. Section 115 Civil Procedure Code was amended vide amendment Act (iii) of 1992 and the amendment was made effective on 24.5.1992. The amendment will be applicable prospectively, the revision was filed on 05.8.1992, hence, even if it is assumed that amendment of limitation is effecting the present petition, even then 90 days will be expiring on 23.8.1992 and the present petition was filed on 05.8.1992, meaning thereby the present revision petition is within time on this score also.

3. The above said discussion will show that Section 115 CPC have two parts and the limitation on the first part of this section i.e 115 CPC is not applicable specially where the merits so demand.

4. The learned counsel for the respondent placed his reliance on Conforce Ltd. V. Syed Ali Shah (PLD 1977 Supreme Court 599) and argues that provisions of CPC can not be invoked to suffer injustice or to condone gross negligence. The facts of this case are distinguishable as in this case Section 115 CPC was not in discussion. Learned counsel for the respondent has placed reliance on Hassan Din V. Abdus Salam (PLD 1991 Supreme Court 65) and contends that limitation of 90 days is applicable on all revisions filed before the High Court. No doubt any revision filed U/S. 115 (2), will be subject to limitation but where the High Court exercise its powers U/S. 115 (i) the clog of limitation will not come in the way of High Court in the administration of justice. Lastly the learned counsel for the respondent submits that there is a concurrent findings of two Courts below and High Court even if come to different opinion after scanning the evidence has no powers and jurisdiction to interfere in the concurrent findings of both the Courts below.

5. The record shows that respondent obtained a decree purely on technical ground when the learned Civil Court invoked the provisions of Order XVII, Rule 3 CPC against the petitioner. The respondent/plaintiff has not disclosed to the learned trial Court that the land after cancellation from his name has been transferred to Provincial Government or a number of other persons as the said land was declared an evacuee property. He has not impleaded the persons who have been allotted the land as is evident from the list of mutations submitted by the learned counsel for the applicant in CM 1/2004. The respondent has not placed his documents about his possession on the suit land. All these facts were in the knowledge of the respondent but he intentionally failed to bring those facts in the knowledge of Court and as such the Court proceeded to pass the decree in his favour in the absence of true facts. The petitioner has not produced any evidence, hence the conclusion drawn by the learned Courts below is one sided. Further, it is the intention of law that all the disputes between the parties should be decided on merits and no one should be allowed to take benefits of technicalities.

6. In view of the above, I accept both these petitions and set-aside the impugned judgments and decrees of two Courts below and remand the case to leaned trial Court who will allow the petitioner to produce its evidence and will decide the suit afresh on merits.

7. As far as the CM No. 1/2004 is concerned, at this stage it can not be allowed as the revision has been accepted and decrees of two Courts below have been set-aside. The case has been remanded to the learned trial Court. The petitioners may approach the Civil Court for impleading them as party to the suit if they have any claim in the suit land. There is no order as to costs.

(A.A.) Petition Accepted.

PLJ 2011 Lahore 324 [Rawalpindi Bench Rawalpindi]

Present: Nasir Saeed Sheikh, J.

TASSAWAR RASHEED--Petitioner

versus

ADDITIONAL SESSION JUDGE, CHAKWAL and 3 others--Respondents

W.P. No. 2698 of 2009, decided on 1.10.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540-A & Scope--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Provisions of S. 530-A, Cr.P.C. are to be applied by the Court of law according to facts of each case--Duty of an accused does not come to end by just moving an application before the Court for seeking exemption from appearance but it continues thereafter as will, he must wait till his application is duly allowed because the Court has not to pass a mechanical order of acceding to each such an application whenever moved by an accused--The trial Court has to see the possibility of its ability to enforce the direction of personal attendance of the accused at a subsequent stage if and when so deemed necessary by the Court in case he is granted exemption from attendance. [P. 329] B

Interpretation of Statutes--

----Provisions of law are there to be interpreted and implemented effectively so that the Courts of law remain the authority to enforce it--Petitions dismissed in limine. [P. 330] C

Pendency of Trial--

----Administration of justice--Accused involved in a criminal case who was allowed concession of being released on bail during the pendency of his trial/appeal cannot be allowed to act at will making it impossible for trial Court to exercise reasonable control over his movements--Held: Tendency cannot be encouraged with an open heart by the Courts, otherwise, confidence in administration of justice which is now being tried to be rebuilt seriously by the Courts of law will be shaken. [P. 328] A

Ch. Afrasiab Khan, Advocate for Petitioner.

Date of hearing: 1.10.2009.

Order

This order will dispose of the instant writ petition as well as Writ Petition No. 2699 of 2009, as both these petitions are filed by Tasawar Rasheed/petitioner and common questions of law and facts are involved therein.

1. Brief facts of the case are that petitioner was facing trial in two different cases before the learned Judicial Magistrate, Chakwal, i.e. FIR No. 145, registered at Police Station Dhuman District Chakwal, on 07-09-2007, for offences under Sections 337-A(ii)/ 337-F(vi)/ 337-L(ii)/458/147/149, PPC and FIR No. 75, registered at the same Police Station, on 17-05-2008, for offences under Sections 337-A(i & ii)/337-F (i, iii & v)/337-L(ii)/147/149 PPC. During trial the petitioner sought exemption from his personal appearance under Section 540-A Cr.P.C. Consequently, he moved applications before the learned Trial Court in case FIR No. 145/2007 on 26-09-2008 and in case FIR No. 75/2008 on 30-10-2008 alleging therein that his work visa, which he previously applied in connection with obtaining a job abroad has been received and he has to join his employment in Dubai, therefore, he may be exempted from personal attendance during trial. Learned Trial Court dismissed both the applications through separate orders of even date i.e. 10.11.2008 with following observations:

"Today the accused is absent from the Court and without the permission the accused has been gone abroad. Therefore, the application of the accused for his personal attendance is hereby dismissed."

The petitioner challenged the said orders through two separate revisions and the learned Additional Sessions Judge, Chakwal, dismissed both the revisions vide separate orders of the same date i.e. 17-07-2009 by upholding the orders passed by the learned Trial Court, hence, these writ petitions.

1. Learned counsel for the petitioner while relying upon the cases reported as PLD 2004 SC 160, PLD 1993 Pesh. 155, 2002 P.Cr.L.J. 947, 1989 P.Cr.L.J. 1652 and 1980 P.Cr.L.J. 1 contends that an accused person who is already abroad and is not personally present before the Trial Court in criminal case can seek benefit of Section 540-A Cr.P.C.; that term "incapable of remaining, before the Court" is thoroughly interpreted in the above referred judgments and the case of the petitioner is fully covered by the case-law cited by him; that the learned Courts below have illegally rejected the applications of the petitioner seeking exemption from his personal attendance.

2. The judgment PLD 2004 SC 160 (Haji Aurangzeb vs. Mushtaq Ahmad and another) relied upon by the learned counsel for the petitioner is very important and facts of the said case are reproduced hereunder:--

"Petitioner Haji Aurangzeb alongwith his three sons namely, Abdul Ghaffar, Muhammad Siddique and Liaqat are accused, in case FIR No. 448 dated 26-12-2001 registered at Police Station, KTS Haripur under Sections 337-A(ii)/34, PPC. The challan was presented in the Court on 15-03-2002. It is stated that in the month of July, 2002, Muhammad Siddique co accused left the country to avail the offer of an employment in Abu Dhabi. In his absence on 05-09-2002, an application for exemption was filed on his behalf by the learned counsel, Mr. Fareed Khan Alizai, which was rejected on the same date i.e. 05-09-2002. The learned trial Magistrate was of the view, that accused Muhammad Siddique could not have gone abroad without permission of the Court. On revision, this order was maintained by the Sessions Judge, Haripur. A petition (Cr. M.(Q) No. 48/02) under Section 561-A read with Section 540-A, Cr.P.C. filed in the Peshawar High Court Circuit Bench, Abhottabad to call in question the order of the trial Magistrate and of the Sessions Judge was also dismissed by a learned Single Judge of the High Court. The petitioner Haji Aurangzeb co-accused solicits leave to appeal from the judgment of the Peshawar High Court Circuit Bench, Abbottabad dated 12-05-2003."

The Hon'ble Supreme Court in Para 2 of the said judgment observed as under:

"It is extremely doubtful if the petitioner can maintain this petition in his own name. There is nothing on record indicating that Muhammad Siddiq accused who has been denied exemption, has authorized the filing of this petition. The petition is liable to he summarily rejected on this ground alone."

1. In order to stress for the claim of the petitioner for grant of exemption from appearance before the Trial Court, the learned counsel has made reference to the observations made in the separate judgment written by the Hon'ble Sardar Muhammad Raza Khan, J. in the above reported case, which are as under:--

"8. The points of difference between the legislation in India and that in Pakistan, are, that the section inserted by Act, XVIII of 1923 was still retained in our Code of Criminal Procedure, while some technicalities and requirements were done away with by certain amendments in the Indian part of the sub-Continent. What our law requires the Court to appreciate before the grant of exemption is that: (1) there should be two or more' accused facing the trial; (ii) that the accused asking for exemption should be "before the Court"; and (iii) that, he be represented by a counsel. As already discussed with reference to law of our country, here the words "before the Court" employ the physical presence of an accused before the Court. The words "incapable of remaining before the Court" also give a strong indication of the fact that the accused who at one time was before the Court, has now become, for some reasons or the other, incapable to remain present before the Court for future.

1. In the conditions given above, I believe that on merit the exemption should have been granted to an accused who has gone abroad to earn his livelihood and who, in view of the prevailing delays in the disposal of cases, cannot wait for the commencement and conclusions of trial."

In spite of the separate judgment written by my lords in the cited case, no indulgence was shown to the case of the accused in the said case whose application for exemption from attendance was dismissed by the Trial Court and the leave to appeal was refused to the said petitioner by the Hon'ble Supreme Court of Pakistan. The learned counsel laid emphasis on the other judgments cited by him in order to persuade this Court for setting aside the orders of the two Courts below but the case-law referred to by him is distinguishable from the facts of instant case.

1. Learned counsel for the petitioner has referred to the judgment reported as 1980 P.Cr.L.J. 1 in support of his contention that the petitioner has a right to be granted exemption in view of the fact that he remained before the Trial Court for sufficient period of time and merely because that on the date of passing of the order dated 10-11-2008 by the learned Judicial Magistrate/Trial Court the petitioner was not present and has proceeded abroad would not stand in the way of his seeking the exemption from further presence which he was requesting through separate application moved before the Trial Court. The case-law relied upon by the learned counsel for the petitioner is distinguishable from the facts and circumstances of the present case in the following manner. In the case reported as 1980 P.Cr.L.J. 1, the accused who was seeking exemption from his attendance before the Tried Court was present before it at the time of passing of exemption order. The exemption granted to the petitioner by the Trial Court was set aside by the learned Additional Sessions Judge in a revision preferred against order of the Trial Court and the High Court, set aside the said order of learned Additional Sessions Judge and restored that of the Trial Court, granting exemption to the accused.

2. In the judgment reported as 2002 P.Cr.L.J, 947, the accused was also present before the learned Trial Court/ASJ and was allowed exemption and then he left for abroad and this order was upheld by this Court and was not interfered with while exercising revisional jurisdiction in the revision petition filed by the complainant.

3. In another case 1989 P.Cr.L.J 1652 the accused was involved in a murder case. He was a doctor himself and suffered from some heart disease and left for abroad after seeking an NOC from the police authorities of the country which was placed on record and he moved an application giving a specific authority letter to his brother to move an application on his behalf, seeking exemption from his presence during trial, which trial was pending before the learned Additional Sessions Judge. His application was rejected by the said forum and the High Court set aside the order of the learned ASJ and accepted the application moved by the brother of the accused who was duly authorized to move such application on behalf of the accused and application was moved accordingly. This case is also distinguishable on the basis of the facts stated above. The facts of the case reported as PLD 1993 Peshawar 155 also indicate that at the time of seeking exemption from his presence during trial the accused involved was present before the trial Magistrate when he was granted exemption. Thus, all the reported judgments passed by the High Court and relied upon by the petitioner's learned counsel are distinguishable from the facts and circumstances of the case.

4. This Court has also observed that the revision petitions dismissed by the learned Additional Sessions Judge, Chakwal, do not bear the signatures of the petitioner and as per judgment of Hon'ble Supreme Court of Pakistan (PLD 2004 SC 160) the maintainability of the said revision petition is open to serious objections. The order passed by the learned Trial Court dated 10-11-2008 is in accord with the above to referred authoritative judgment of the Supreme Court of Pakistan, wherein leave to appeal was refused to an accused person who has proceeded abroad in a criminal trial without seeking exemption from his attendance. It would be worth mentioning that Challan in case FIR No. 145/2007 was submitted in the Court on 14-02-2008, while it was submitted in the Court in case FIR No. 75/2008, on 30-10-2008. The accused petitioner moved an application for the grant of exemption and left for abroad without permission of the Trial Court.

5. An accused involved in a criminal case, who is allowed concession of being released on bail during the pendency of his trial/appeal cannot be allowed to act at will making it impossible for the Trial Court to exercise reasonable control over his movements. This tendency cannot be encouraged with an open heart by the Courts otherwise the confidence in administration of justice which is now being tried to be rebuilt seriously by the Courts of law will be shaken. Litigants must have respect for will of law being administered by the Courts and cannot be allowed to jeopardize the authority of the Courts of law making it subservient to their convenience and the procedural supremacy of law is all the more necessary to be ensured in order to bring the system of justice to effective harmony. Had the petitioner been declined bail during the pendendy of the case against him, the petitioner could not have gone abroad notwithstanding that a work visa has been issued in his favour. Concept of release of an accused person on bail is particularly defined in the judgment reported as PLD 1953 Federal Court 170 (The Crown Vs. Khushi Muhammad).

"The basic concept of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce, him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bonds given in Schedule V of the Cr.P.C."

Similarly in the judgment reported as PLJ 1980 SC 318 (Said Mian and another Vs. Mian Said Baghdad and another) the Hon'ble Supreme Court of Pakistan laid down that:

"the word "bail" envisages curtailment of liberties when bail is granted to a person his custody is delivered to his sureties."

1. The provisions of Section 540-A Cr.P.C. are to be applied by the Court of law according to facts of each case. The duty of an accused does not come to end by just moving an application before the Court for seeking exemption from appearance but it continues thereafter as well; he must wait till his application is duly allowed because the Court has not to pass a mechanical order of acceding to each such an application whenever moved by an accused. The Trial Court has to see the possibility of its ability to enforce the direction of personal attendance of the accused at a subsequent stage if and when so deemed necessary by the Court in case he is granted exemption from attendance. It shall be advantageous to read the last operative part of Section 540-A sub-section (1) of Cr.P.C., which is being reproduced below:--

"540-A. Provision for inquires and trial being held in the absence of accused in certain cases.--(1) At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) ......."

1. In order to ensure that this last portion of Section 540-A of Cr.P.C., practically remains available to the Trial Court, the condition of recording of reasons has been incorporated in the section. This recording of reasons may take the form of demand of heavy surety from the accused for his personal re-appearance during the trial in case of his leaving for abroad. Provisions of law are there to be interpreted and implemented effectively so that the Courts of law remain the authority to enforce it. The accused in the writ petition in hand had violated the law twice and two FIRs have been registered against, him and the trial has commenced. It would be in the fitness of the things that his trial be expedited by the learned Trial Court instead of letting him leave the country and then to sit and wait for his return at his will till the tenure of his job in abroad expires, if not further extended, in case the trial ends up in his conviction. The accused/petitioner deprived the learned Trial, Court of a proper opportunity of passing appropriate order on his application for grant of exemption from his personal appearance during the trial. He first moved the application and without waiting for the decision of the learned Trial Court proceeded abroad. This conduct of the petitioner by itself is sufficient to put the Court on some caution in respect of his entitlement to leave the country.

2. It is not the entitlement of the petitioner seeking exemption from presence during trial which is as such controverted but the manner in which he conducts himself in making the prayer and then leaving abroad without grant of said permission by the Trial Court which has resulted into dismissal of his application. He was present before the trial Magistrate when he moved an application for exemption but left the country without any order having been passed by the Trial Court on his application; he did not take Court into confidence about his commitment of job abroad in proper manner. The Trial Court was thus left with no option but to dismiss his application under Section 540-A Cr.P.C. A revision petition dated 02-12-2008 has been instituted in the name of the petitioner showing him as petitioner against the order dated 10-11-2008 of the learned trial Magistrate but the same does not bear his signatures. It is evident that it was signed by somebody else because the signatures of the petitioner in his application dated 30-10-2008 "Annexure-C" are present in his own name whereas the signatures on the revision petition are absolutely different and have no correspondence with the name of the petitioner as well as with his signatures made on his application dated 30-10-2008 moved before the trial Magistrate "Annexure-C". There is nothing on the record to establish the criminal revision having been moved before the learned ASJ dated 02-12-2008 under some written authority duly sent by the petitioner from abroad. The revision could have been summarily dismissed by the learned ASJ on this ground as well.

3. In view of the peculiar facts of the instant case and keeping in view the law laid down by the Apex Court, orders passed by the two Courts below do not call for any interference by this Court in exercise of writ jurisdiction particularly when the petitioner has also misused the concession of bail granted to him while he went abroad without seeking permission from the Court before whom he was facing trial as an accused, therefore, such accused is not entitled to any relief, 15. With the above observations, both these writ petitions are dismissed in limine.

(M.S.A.) Petitions dismissed in limine.

PLJ 2011 Lahore 331

Present: Kh. Muhammad Sharif, C.J.

Rai MUNIR ZAFAR--Petitioner

versus

PROVINCE OF PUNJAB through its Chief Secretary, Punjab Civil Secretariat, Lahore and 7 others--Respondents

W.P. Nos. 17665, 21583 & 22033 of 2009, decided on 23.11.2009.

Punjab Land Revenue Act, 1967 (XVII of 1967)--

----S. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petitions--Challenging the notification issued by Government of Punjab in the Revenue department in exercise of the powers u/S. 6(2) of the Punjab Land Revenue Act, 1967--Through impugned notification, Chiniot was declared as a district with its headquarter at Chiniot and three tehsils, Chiniot, Lalyan and Bhowana--Policy matter--Powers of Judicial Reveiw--Held: It is not a matter of wishes or the views of the Government but the supreme purpose of all laws and enactments is to do public good, welfare and betterment of the people--By issuing the impugned notification, instead of providing facilities and ease to the inhabitants of the villages, their miseries had been increased in as much as distance between their residences to police station and tehsil headquarter had become more--Notification issued by Punjab Government was declared to be ultra vires. [P. 335] A

Powers of Judicial Review--

----Policy decisions of such nature fall with in the ambit of power of the executive government which is expected to take such decisions keeping in view many consideration, that is, public interest administrative, practical convenience and difficulties of the local population but all the same the notifications issued by the provincial government u/S. 6 of Act, 1967 are not immune from being called in question and moreover the power of judicial review is available in appropriate cases of infraction of law or unfairness, un-reasonableness, arbitrariness or mala fide on the part of the government--The impugned notification is a classic example of unfairness and un-reasonableness--Petitions accepted. [P. 336] B

Mr. Ahmad Awais, Mian Muhammad Sikandar Hayat, Malik Rehmat Ullah and Syed Faiz-ul-Hassan, Advocates for Petitioner.

Ch. Muhammad Hanif Khatana, Advocate General, alongwith Arif Shahid Director Board of Revenue for Repsondents.

Mr. Hussain Ahmad Madni, Advocate with Respondent No. 8.

Date of hearing: 20.11.2009.

Judgment

This judgment will dispose of Writ Petition Nos. 17665, 21583 and 22033 of 2009 as the point involved in all these matters is one and the same inasmuch as in all these Writ Petitions declaration has been sought declaring Notification No. 862-2009/U-771/475-DIR (R & G) dated: 19.08.2009 issued by Government of the Punjab in the Revenue Department, as ultra vires, arbitrary and based on mala fide.

1. It is contended by learned counsel for the petitioners that Chiniot was ordered to be a seParate district on 26.1.2009 and in the notification it was stated that it will come into being w.e.f. 1.7.2009; that it was in the notification that Chiniot district will consists of three Tehsils Chiniot, Lalian and Bhawana; that Iftikhar Ahmad Khan Baloch Respondent No. 8 submitted an application before the Chief Minister, Punjab requesting therein that 22 villages are near to Jhang and away from District Chiniot so those villages should be detached from Chiniot and should be attached with District Jhang; that Respondent No. 2 under Section 6 of the Land Revenue Act accepted the application of Iftikhar Ahmad Respondent No. 8 which is available at Page 44 of the petition dated 19th of August 2009; that from 1856 all the 22 villages remained with Tehsil Chiniot pertaining to Union Council Nos. 9 and 11 and he has referred Sections 7 and 11 of Local Government Ordinance, 2001. He read before me Section 7 regarding the delimitation and alteration of local areas; that in fact at the time of notification dated 19th August 2009 the authority did not bother to go through Sections 7 and 11 which are mandatory provisions and special law; that according to report and Parawise comments of Tehsil Nazim Chiniot and the District Co-ordination Officer these revenue estates which have been detached from Chiniot are at a distance of 25 kilometers from Tehsil headquarter and 45 kilometers from district headquarter whereas the distance from Jhang to those revenue estates is 65 kilometers; that Nazim Tehsil as well as DCO Chiniot have fully supported the version of the petitioners; that matter has been taken up by Respondent No. 2 in very arbitrary manner and this should be declared as nul and void.

2. Mian Muhammad Sikandar Hayat, learned counsel for the petitioner submits that Respondent No. 8 in his personal interest has manoeuvred the notification without lawful justification and has referred Page 45 of this petition and submits that four villages were also detached from District Chiniot; that twenty counselors of two union councils had also placed their affidavits with this petition and had appeared on the last date of hearing.

3. Syed Faiz-ul-Hassan, learned counsel for the petitioner in Writ Petition No. 22033 of 2009 submits that Respondent No. 8 has no authority to make application to the Board of Revenue for attaching or detaching the above said villages; that power under Sections 6 and 7 of West Pakistan Revenue Act has been given to the Board of Revenue in order to do so after seeing the convenience of public-at-large; that application of Respondent No. 8 before the Board is based on wrong facts; that prior to the declaration of Chiniot as District it was biggest Tehsil of the area; that due to the act of respondents provisions of Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan have been violated; that petitioner was never given an opportunity to hear his objections; that no reason has been given in the notification for detachment of villages from District Chiniot. He has referred PLD 2001 Karachi 52 and 2005 SCMR 25 and submits that discretion has been used illegally and arbitrarily.

4. Malik Rehmat Ullah, Advocate in Writ Petition No. 21583 of 2009 submits that Chiniot District consists of 44 union councils and District Jhang consists of 84 union councils; that Tehsil Lalian consists of 13 union councils and Union Council Nos. 9 and 10 are within the jurisdiction of Tehsil Lalian; that amongst 13 union councils of Tehsil Lalian, if two union councils are taken out remaining will be 11 union councils; that police station Barana is at a distance of five kilometers from the said union councils; that if these union councils remained in District Jhang Police Station Qadir Pur will be at a distance of 25 kilometers and it will create great inconvenience to the public-at-large; that this all has been done with mala fide intention and the same may be declared as null and void.

5. Respondent No. 8 submits that his constituency consists of 14 union councils; that 12 union councils are from District Jhang while two are from District Chiniot; that this constituency is since 1977; that he belongs to a middle class family and people belongs to Union Councils No. 9 and 10 are living in District Jhang, they have so many facilities which are not available in Chiniot; that even son of Rai Munir Ahmad petitioner namely Laroosh Zafar also taking education in District Jhang; that an application to the Board of Revenue has been submitted by both the Nazim Union Councils stating therein that they want to remain with Jhang and not with Chiniot; that he is representing people of Union Council No. 9 and 10 and he had taken votes from them and no illegality has been committed by him or the Board of Revenue.

6. On the other hand learned Advocate General submits that this district has been notified under Section 6 of West Pakistan Land Revenue Act, 1967; that under sub-clause (2) of said Section 6 it is prerogative of the Government and the Government may, by notification, vary the number and limit of divisions, districts, sub-divisions or tehsils in the province and there is no jurisdictional defect in this notification; that Section 11 of Punjab Local Government Ordinance referred by learned counsel for the petitioner is not relevant in this regard; that in the present matter factual controversy cannot be decided in the writ jurisdiction. He has referred 1999 CLC 430 and PLD 2006 Lahore 627 and submits that in both the judgments notification issued by the Government of Punjab have not been touched by this Court. Lastly submits that this notification is within the jurisdiction of competent authority.

7. I have heard learned counsel for the parties at a great length and have gone through the record and the precedents cited from both the sides.

8. The notifications under challenge have been issued by Government of the Punjab in exercise of the powers under Section 6 (2) of the Punjab Land Revenue Act 1967 (West Pakistan Act, XVII of 1967). To proceed with the matter any further, I may reproduce Section 6 and in particular sub-clause (2) thereof:--

"6. Divisions to be divided into Districts and Districts into Sub-Divisions etc. (1).........

(2) Government may, by notification, vary the number and limit of Divisions, Districts, Sub-Divisions or Tehsils in the Province."

1. The facts of the cases in hand are that Chiniot was declared as a district vide notification dated: 26.01.2009 with its headquarter at Chiniot and three tehsils, Chiniot, Lalyan and Bhowana. The application on the basis whereof the impugned notifications were issued is at Page No. 32 of the file and marked as "Annex-D". This application, which is in Urdu, is reproduced hereunder:

2. The averments of the application made by Respondent No. 8 are belied from a map of District Chiniot an attested copy-whereof has been placed on record, according to which, the villages detached from District Chiniot through the impugned notification fall in Qanoongoi Sheikhan Tehsil Lalian District Chiniot and are about 25 kilometer away from Tehsil headquarter Lalian whereas by inclusion of the villages in District Jhang, the distance between the villages now included in District Jhang is 65 kilometers from Tehsil headquarter Jhang. Moreover, the areas of Qanoongoi Sheikhan in which Union Council Nos. 9 & 10 fall are the part of Chiniot since its creation as Tehsil in 1856. Similarly, Police Station Barana is at a distance of about 5 kilometers from these villages whereas Police station Qadir Pur of Tehsil Jhang is at a distance of 40 kilometers from the said areas. The respondent Government through Board of Revenue had rightly issued notification dated 26th January 2009 but the subsequent notification dated 19.8.2009 on the application of a MPA seems to be issued on political consideration without keeping in mind the factual hardships of the inhabitants of the 23 villages and merely on the wish of Respondent No. 8, issued the impugned notifications, which amounts to non-application of mind by the authority while passing the order.

3. It is not a matter of wishes or the views of the respondents but the supreme purpose of all laws and enactments is to do public good, welfare and betterment of the people. By issuing the impugned notifications, instead of providing facilities and ease to the inhabitants of the villages, their miseries have been increased inasmuch as distance between their residences to Police Station and Tehsil Headquarter has become more.

4. It was hotly objected by the learned Advocate General Punjab that the impugned notification being administrative in nature and writ petition involved factual controversies. There is no denying the fact that the policy decisions of such nature fall within the ambit of power of the Executive Government which is expected to take such decisions keeping in view many consideration, that is, public interest administrative, practical convenience and difficulties of the local population etc. but all the same the notifications issued by the Provincial Government under Section 6 of the Punjab Land Revenue Act, 1967 are not immune from being called in question and moreover the power of judicial review is available in appropriate cases of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of Government. The impugned notification is a classic example of unfairness and unreasonableness.

5. As a result of the above discussion, all the three writ petitions are accepted and the impugned Notification No. 862-2009/U-77/475 dated 19.8.2009 issued by Government of the Punjab in the Revenue Department, is declared to be ultra vires and of no legal effect. There shall however be no order as to costs.

(M.S.A.) Petitions accepted.

PLJ 2011 Lahore 336

Present: Ijaz-ul-Hassan, J.

Ms. PARNIAN AROOJ--Petitioner

versus

MEHMOOD SADIQ & another--Respondents

W.P. No. 17957 of 2009, decided on 7.12.2009.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 7(1)--West Pakistan Muslim Family Rules under the Muslim Family Laws Ordinance, 1961--Rule 3(b)--Pronouncement of divorce--Service of notice of divorce--Change of residence of wife--Question of effectiveness of talaq--Contention of petitioner that service of notice at her current address, are of no legal effect, that should have been filed in union council where at the time of pronouncement of divorce she was residing--Held: Husband proceeded to take steps including pronouncement of divorce afresh and sent intimation to all concerned including the petitioner, her two brothers and Administrator Union Committee--Present petition was yet another attempt on the part of the petitioner to delay what had unfortunately become inevitable. [P. 343] A

Process of Re-conciliation--

----Law provides a mechanism where under the parties are provided an opportunity to reconcile their differences through intermediaries by engaging in the process of re-conciliation through arbitrators--However, where such efforts fail, despite lapse of three months, law presumes that re-conciliation is not possible and there has been an irretrievable break down--Thereupon the parties were allowed to undo the marriage tie and both parties could walk away, if they so wish with dignity and grace. [P. 343] B

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Preamble--West Pakistan Muslim Family Law Rules, 1961, Preamble--Law and rules are not meant to prolonge the agony for one party or the other on the basis of technicalities and hairsplitting, such is not the intention of law. [P. 343] C

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 7(1)--West Pakistan Muslim Family Laws Rules, 1961--R. 3(b)--Scope of--Provisions of S. 7(1) and Rule 3(b) are directory in nature as no penalty is provided for their non-compliance--Non service of notice is a mere irregularity and does not effect validity of a divorce validly pronounced and communicated--Petition dismissed. [P. 343] D

PLD 2005 Kar. 358, 1992 SCMR 1272 & 1994 SCMR 2098 rel.

Sh. Shahid Waheed, Advocate for Petitioner.

Ch. Muhammad Ameen Javed, Advocate for Respondents.

Date of hearing: 16.11.2009.

Judgment

This petition arises from proceedings for dissolution of marriage initiated by Respondent No. 1 against the petitioner. The petitioner and Respondent No. 1 were married on 27.02.1992 at Lahore. They have two sons and a daughter from the marriage. The marriage could not sustain. According to the petitioner, she was thrown out of the home of the respondent on 11.11.2008. The petitioner has close relatives living in Lahore. The Nikah Nama indicates that she was residing at Model Town, Lahore at the time of her marriage. Presently, one of the petitioner's brother's resides at the said address. The younger brother of the petitioner lives in Eden Canal Villas, Thokar Niaz Beg, Lahore. Yet another brother of the petitioner resides at Army Flats (MOQ), Girja Chowk, Tufail Road, Lahore Cantt.

1. It appears from the record that after pronouncement of divorce on the petitioner, Respondent No. 1 signed and executed a divorce deed on 27.02.1992, which was duly signed and attested by two witnesses. A copy of the divorce deed alongwith a cover letter was sent to Chairman Arbitration Council No. 127 Model Town Lahore. The said office sent a notice at the aforesaid address. The notice was received by Mr. Hassan Kamran Bashir, who filed an application before the Chairman Arbitration Council Union Council No. 127, Model Town, Lahore stating that his sister was residing with her younger brother namely Hassan Danial Bashir at Eden Canal Villas, Thokar Niaz Beg, Lahore.

2. While the aforesaid events were occurring, two significant events took place: First, the petitioner filed an application under Section 9 of the Muslim Family Laws Ordinance, 1961 before Union Council No. 119, Shah Pur, District Lahore within whose jurisdiction the property in Eden Canal is situated. The petitioner claimed that at the time of pronouncement of divorce, she was residing at the aforesaid address. The said Union Council has since passed an order directing the respondent to pay a sum of Rs. 100,000/- per month to the petitioner as maintenance from 11.11.2008 to 10.04.2009. A direction has also been issued that since the amount due has not been paid, the same be recovered from Respondent No. 1 as arrears of land revenue. The second significant event was that the petitioner filed W.P. No. 4481/2009 on 06.03.2009 alleging that a notice of divorce had been filed by Respondent No. 1 with Union Council No. 127, Model Town, Lahore. Her older brother had informed them that since the petitioner was not residing in Model Town, the said Union Council had no jurisdiction to proceed with the matter. She alleged that despite having passed an order that Union Council 127 Model Town, Lahore had no jurisdiction in the matter, the said Union Council was going to recall its previous order dated 28.01.2009 and was also planning to issue a Talaq Certificate in favour of Respondent No. 1.

3. The petitioner also filed an application before the District Officer (Revenue), Lahore seeking a restraining order against Union Council No. 127 from recalling its earlier order. The DOR refused to pass an order on her application on the ground that he had no jurisdiction in the matter. W.P. No. 4481/2009 was contested. However, on a statement made on behalf of Union Council No. 127, Model Town, Lahore that the petitioner was not residing within its jurisdiction, and it had no intention of recalling its order in this regard, the learned counsel for the petitioner sought permission to withdraw the petition. The learned counsel representing the respondent submitted that she was earlier residing at Model Town Lahore and if she had changed her residence, her fresh address should be provided to him so that his client (respondent) may proceed with the matter on the correct and existing address. Mr. Hassan Kamran Bashir, brother of the petitioner, who was present in Court informed this Court that the petitioner was residing at 6-Army Flats (MOQ), Girja Chowk, near PSO Petrol Pump, Tufail Road, Lahore Cantt. It was, therefore, recorded by this Court that the respondent could initiate proceedings in the light of the aforesaid address, if so advised. The petition was accordingly disposed of on 22.06.2009.

4. Having authentic knowledge of the residential address of the petitioner by way of statement made before this Court by her brother, Respondent No. 1 issued a fresh letter dated 02.07.2009. Through the said letter the respondent informed the petitioner that he had divorced her vide divorce deed (Talaq Nama) dated 22.11.2008. He nevertheless pronounced Talaq upon the petitioner once again through the aforesaid letter dated 02.07.2009. The letter, which was witnessed by two persons, was sent to the petitioner at 6-Army Flats (MOQ) Girja Chowk, near PSO Petrol Pump, Tufail Road, Lahore Cantt. This is the same address which was provided by the brother of the petitioner in this Court. Copies of the letter were sent to Chairman Arbitration Council, Lahore Cantonment Board, Lahore Cantt, Hassan Kamran Bashir, real brother of the petitioner at his address in Model Town, Lahore as well as Hassan Danial Bashir brother of the petitioner at WAPDA Town, Lahore.

5. The aforesaid notice appears to have been received by the petitioner as well as by Respondent No. 2. On receipt of the said notice Respondent No. 2 summoned the petitioner vide order dated 2.07.2009 for 09.07.2009. The order sheet of Respondent No. 2 indicates that on 09.07.2009, neither the petitioner nor her representative appeared. The record of Respondent No. 2 indicates that the petitioner was served on 02.07.2009 as is evident from the report of Zaheer Ahmad, Process Server of the Cantonment Board Lahore Cantt. Notices were also sent through ordinary post as well as registered post acknowledgment due. It is not clear from the record whether or not notices sent by post were received by the petitioner. Respondent No. 2 nevertheless, vide order dated 09.07.2009, directed that the petitioner be summoned through registered notice and citation in the newspaper. The citation appeared in daily "Jang" on 25.07.2009. It is evident from the record that the petitioner had notice of pendency of the proceedings before Respondent No. 2, as she filed an application for dismissal of the application for issuance of certificate of Talaq on 20.08.2009. The said application is available in the record of Respondent No. 2, which has been summoned and examined by this Court. In view of the fact that the Chairman Arbitration Council was not available on 20.08.2009, the matter was adjourned to 03.09.2009, whereafter it was adjourned to 29.09.2009. It is noticed that either Respondent No. 1 or his duly authorized Arbitrator were available and attended the proceedings on each of the aforementioned dates. Neither the petitioner nor any of her representatives attended the proceedings before Respondent No. 2 despite notice.

6. On 18.09.2009, the petitioner filed the present petition praying that proceedings before Respondent No. 2 regarding issuance of Talaq Certificate in pursuance of application of Respondent No. 1 may be quashed/set aside as the same were illegal and void ab-initio. Vide order dated 18.09.2009, the petition was admitted to regular hearing. Notice was issued to the respondents for 15.10.2009. In the meantime proceedings before Respondent No. 2 were stayed.

7. The main point agitated by the learned counsel for the petitioner is that in terms of Section 7 of the Muslim Family Law Ordinance, 1961 read with Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, Respondent No. 1 was obliged to send a notice/intimation of divorce to Union Council No. 119 Shah Pur within whose jurisdiction, the petitioner was residing at the time the divorce was pronounced. It would be useful to reproduce the provisions of Section 7(1) and Rule 3(b), ibid, which read as follows:--

Section 7(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

Rule 3(b) The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of Section 2 shall be as follows, namely;

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

(b) in the case of notice of talaq under sub-section (1) of Section 7, it shall be the Union Council of the Union or Town where the wife in relation to whom talaq has been pronounced was residing at the time of the pronouncement of talaq:

Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be--

(i) in case such wife was at any time residing with the person pronouncing the talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such person; and

(ii) in any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in West Pakistan;

1. The learned counsel for the petitioner submits that a combined reading of Section 7(1) and Rule 3(b) makes it abundantly clear that notice of divorce is required to be served on Union Council of Union or Town where the wife in relation to whom Talaq has been pronounced was residing at the time of pronouncement of Talaq. It is further submitted that if it is held that Union Council Shah Pur has no jurisdiction in the matter, the decree passed in favour of the respondent shall be rendered null and void. When confronted with the order of this Court dated 22.06.2009, which was not challenged any where, the learned counsel submits that jurisdiction cannot be conferred by consent and points out that if jurisdiction vested in Union Council Shah Pur, the same could not by consent of parties be shifted to Union Council Cantonment.

2. The learned counsel for the Respondent No. 1, on the other hand, points out that he exercised his right to divorce the petitioner on 22.11.2008. He has since then been entangled in a prolonged round of litigation on the basis of one technicality or another. He submits that it was in order to set the matter at rest once and for all, that the address of the place of residence of the petitioner was requested to be incorporated in the order of this Court on 22.06.2009 and the respondent was allowed by this Court to initiate proceedings in light of the aforesaid address. Pursuant to order dated 22.06.2009, the Respondent No. 1 pronounced a fresh Talaq on 02.07.2009, sent the document to the petitioner, her two brothers as well as to Respondent No. 2. He further submits that requirements of Section 7(1) and Rule 3(b) ibid are directory and not mandatory in nature, in view of the fact that no penalty has been provided in the event of violation of the same. Reliance is placed on Batool Tahir through Nominee/ Representative/Special Attorney Mustejab Zehra Vs. Province of Sindh through Secretary Local Government Sindh and 3 others (PLD 2005 Karachi 358), Allah Dad Vs. Mukhtar and another (1992 SCMR 1273) and Mst. Zahida Shaheen and another Vs. The State and another (1994 SCMR 2098).

3. It is further pointed out that even if for the sake of argument and without conceding, it is admitted that the petitioner was residing within the jurisdiction of Union Council Shah Pur at the time of pronouncement of divorce, the same stood superceded by subsequent pronouncement on 02.07.2009, notice of which was sent at the address provided by the petitioner in this Court, as incorporated in order dated 22.06.2009.

12. The learned counsel further submits that the principle that jurisdiction cannot be conferred by consent relates only to pecuniary jurisdiction. However in matters involving family disputes, the jurisdiction can be conferred by the consent of the parties, especially in the present case such jurisdiction stood conferred with consent by reason of order dated 22.06.2009.

1. I have heard the learned counsel for the parties at length. I have also examined the record including the original record relating to this matter produced by Respondent No. 2. Respondent No. 1 had pronounced divorce on the petitioner on 22.11.2008. The requisite notice/intimation were sent to Union Council No. 127 Model Town, Lahore. On receipt of a notice, a brother of the petitioner informed the Chairman Arbitration Council U.C. No. 127 that the petitioner was not residing at the said address. He provided a fresh address to the said Union Council i.e. 116-Eden Canal Villas Thokar Niaz Beg, Lahore. It is, however, evident that the petitioner had notice of pronouncement of divorce on 27.01.2009, when her real brother namely Hassan Kamran Bashir moved an application with the Chairman Arbitration Council U.C. No. 127 and provided him the aforesaid information.

2. Subsequently, she initiated proceedings for recovery of maintenance before U.C. No. 119 Shah Pur on 28.02.2009. While the matter was still in limbo W.P. No. 4481/2009 was filed on 06.03.2009. The said petition finally came up for hearing on 22.06.2009, when the aforesaid order was passed, in which the petitioner's real brother namely Hassan Kamran Bashir provided her residential address at Army Flats (MOQ) Girja Chowk near PSO Petrol Pump Tufail Road, Lahore. It is significant to note that this Court recorded in its order that the respondent could initiate proceedings in light of the aforesaid address, if so advised. No objection to the said order was taken on behalf of the petitioner. Further the aforesaid order was not challenged anywhere and has therefore, attained finality.

3. On the basis of the aforesaid order, Respondent No. 1 pronounced divorce again and intimated the petitioner regarding the same through a written communication dated 02.07.2009. As mentioned above, the said document was sent to the petitioner, her two brothers as well as to Respondent No. 2. It is not the case of the petitioner that the said document was not received. Her only objection to the same is that in terms of provisions of law mentioned above i.e. Section 7(1) and Rule 3(b), subsequent pronouncement of divorce and the service of notice at her current address, are of no legal effect, because these were required to be filed with Union Council Shah Pur, because she was residing within the jurisdiction of said Union Council when the divorce was earlier pronounced.

4. It is apparent from the admitted facts of this case that the petitioner has changed her place of residence a few times. Therefore, the fact that the place of residence and address of the petitioner was provided by her real brother to this Court, which was incorporated in the order dated 22.06.2009, is of vital importance in this lis. On the faith of the information provided to this Court and the observation made by this Court, Respondent No. 1 proceeded to take steps including pronouncement of divorce afresh and sent intimation to all concerned including the petitioner, her two brothers and Respondent No. 2. In my opinion, the present petition is yet another attempt on the part of the petitioner to delay what has unfortunately become inevitable. It is indeed an unfortunate event in family relationships, when the marriage breaks down. While the right of divorce is deprecated at all levels, it has nevertheless begrudgedly been granted, to be exercised where a marriage breaks down irretrievably, as appears to be the case here. When this happens, law provides a mechanism whereunder the parties are provided an opportunity to reconcile their differences through intermediaries by engaging in the process of reconciliation through arbitrators. However, where such efforts fail, despite lapse of three months, law presumes that reconciliation is not possible and there has been an irretrievable break down. Thereupon the parties are allowed to undo the marriage tie and both parties can walk away, if they so wish with dignity and grace. This, to my mind, is the real objective of the Muslim Family Laws Ordinance, The Family Courts Act, as amended from time to time and the Rules framed there under. Laws and the rules are not meant to prolong the agony for one party or the other on the basis of technicalities and hairsplitting, such is not the intention of law.

5. The provisions of Section 7(1) and Rule 3(b) are directory in nature as no penalty is provided for their non-compliance. It has been held that non service of notice is a mere irregularity and does not effect validity of a divorce validly pronounced and communicated. The rationale for providing for notice of divorce to be sent to the Union Council of the area where the wife resides is to facilitate her participation in the proceedings, if she so desires. This purpose, under the facts and circumstances of the present case was adequately served, by service of notice at her current address and the Union Council of the area where she is presently residing, which has taken cognizance of the matter. It is not her case that she has not been served or does not have notice. Even otherwise she is estopped from taking any other position at this stage, having provided her current address during proceedings before this Court. She did not challenge the order dated 22.06.2009 passed by this Court which clearly stated that the "Respondents can initiate proceedings in light of the above address". The said order has attained finality.

6. The divorce pronounced on 02.07.2009 was validly pronounced if one were to look at the case from a purely technical point of view. It was pronounced thrice in the presence of witnesses. It was duly communicated to the petitioner at the address provided by her where she was admittedly residing at the time the said divorce was pronounced. Intimation was sent to Respondent No. 2, who has since initiated proceedings and according to the information provided to this Court, the requisite period of 90 days has expired on 29.09.2009. The petitioner had ample notice and opportunity to participate in arbitration proceedings, which she chose not to attend. There is neither lawful reason nor justification at this stage to quash or set aside the proceedings before Respondent No. 2 or to restrain the said respondent from issuing the requisite certificate on expiry of 90 days.

7. In view of what has been stated above, I do not find any force in this petition. It is accordingly dismissed.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 344 (DB)

Present: Iqbal Hameed-ur-Rehman & Kh. Farooq Saeed, JJ.

SHEIKH ALLA-UD-DIN--Petitioner

versus

ELECTION TRIBUNAL LAHORE HIGH COURT, LAHORE and 12 others--Respondents

W.P. No. 4835 of 2009, decided on 11.5.2009.

Representation of the People Act, 1976 (LXXXV of 1976)--

----S. 55(3)--Civil Procedure Code, (V of 1908) O. VI, R. 15(2)--Verification of election petition--While filing the election petition, respondent failed to comply with such mandatory provisions of the law regarding the verification of pleadings and non-compliance of the same is resultantly fatal, as such, Section 55(3) of the Representation of the People Act, 1976, also entails that every election and every schedule or annex thereto shall be signed by the petitioner and verified in the manner laid down CPC, 1908 for the verification of pleadings. [P. 349] A

2007 SCMR 34, rel.

Constitution of Pakistan, 1973--

----Art. 199--Election disputes--Constitutional petition--Question of--Maintainability--Held: Constitutional jurisdiction u/Art. 199 of the Constitution, can be exercised at any stage in all matters of elections involving questions of law or interpretation of law in respect of an election dispute--Powers of High Court cannot be curtailed on mere fact that question of law brought before the High Court directly or indirectly relates to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the points involved therein. [P. 351] B

PLD 2008 SC 487, PLD 2008 SC 429 & PLD 2008 SC 495, rel.

Mr. Ahmad Waheed Khan, Advocate for Petitioner.

Mr. Sheram Sarwar, Advocate assisted by Ch. Sultan Mehmood, Advocate for Respondents.

Date of hearing: 22.4.2009.

Judgment

Iqbal Hameed-ur-Rehman, J.--Through the instant writ petition, the petitioner has assailed the dismissal of the application filed by him under Section 63 of the Representation of People Act, 1976 read with Order VII, Rule 11 CPC for the rejection of the election petition due to non-compliance of the mandatory provisions as to verification of the petition as well as of the affidavit.

1. Brief facts succinctly required for the determination of this writ petition are that the petitioner and Respondents No. 2 to 13 contested elections to the seat of PP- 181, Kasur held on 18th of February, 2008. The petitioner was declared returned candidate having obtained 20401 votes. Respondent No. 2 called in question the validity of the said election by filing the election petition, which is pending before Respondent No. 1/(Election Tribunal, Lahore High Court, Lahore). The petitioner filed an application under Section 63 of the Representation of the People Act, 1976 read with Order VII, Rule 11, CPC for the rejection of the election petition and the same was dismissed by the learned Election Tribunal (Respondent No. 1) vide order dated 9.2.2009. Being aggrieved of the said order, the petitioner has filed this writ petition.

2. Learned counsel for the petitioner contends that the petitioner moved an application under Section 63 of the Representation of People Act, 1976 read with Order VII, Rule 11 CPC for the dismissal of election petition due to non-compliance of the mandatory provisions of law as to verification of election petition as well as the verification of the affidavit being in violation of Section 55(3) of the Representation of the People Act, 1976 as well as Order VI Rule 15(2) CPC. Further that the affidavit was attested by the Oath Commissioner on 17.3.2008, whereas the election petition and the affidavit were verified by Respondent No. 2 on 18.3.2008, therefore, the verification made by Respondent No. 2 is defective in the eyes of law and as such, the learned Election Tribunal, while passing the impugned order, has overlooked to take into consideration the mandatory provisions of law which entails the rejection of the petitioner under Order VII, Rule 11 CPC due to non-compliance of the mandatory requirements of law under Section 55(3) of the Representation of People Act, 1976. Learned counsel for the petitioner in this regard has firstly drawn our attention towards the verification of the petition at Page 15 of the petition as well as the verification of the affidavit wherein similarly it is so stated as under:

"Verified on oath at Chunian this 18th day of March, 2009 that Paras No. 1 to 4 of the above election petition are correct to the best of my information and Paras No. 5 to 6 are correct to the best of my belief."

Therefore, he has reverted to the mandatory provisions of Section 55(3) of the Representation of the Peoples Act, 1976, wherein it is stated as under:

S. 55(3). "Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act of 1908), for the verification of pleadings."

4. Now for proper appreciation of his contention the learned counsel for the petitioner has read the relevant provision of Order VI Rule 15 CPC which, according, to Section 55(3) ibid, has to be adopted for the verification of the election petition and the same is reproduced below:

Order VI Rule 15. "Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every proceedings shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person provided to the satisfaction of the Court to be acquainted under the foots of the case.

(2) The person verifying shall specific, by reference to the numbered Paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

1. Keeping in view the above provisions of law learned counsel for the petitioner has drawn our attention to the verification made by the Respondent No. 2 on his election petition as quoted above that the same has not been made according to Order VI, Rule 15(2) CPC as also the verification has not been made according to the Respondent No. 2 own knowledge rather on information, whereas the provisions of Order VI Rule 15(2) CPC requires mandatory verification specifying to numbered Paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The perusal of the verification of the Respondent No. 2 shows that he has not verified the petition according to his own knowledge, as such, his absolute own knowledge is missing he is only making the verification according to information, as such, the verification has not been made by Respondent No. 2 in accordance with law and the same being so, the mandatory provision of Section 55(3) of Representation of People Act, 1976 has not been complied with. The deficiency being very visible and non-compliance being fatal, as such the petition was liable to rejection under Order VII, Rule 11 CPC. Reliance is placed on Ch. Muhammad Ashraf Vs. Rana Tariq Javed and others (2007 SCMR 34) and Malik Umar Aslam Vs. Sumera Malik and another (PLD 2007 SC 362).

2. Secondly, the learned counsel for the petitioner reverting to verification of the affidavit attached with the petition states that its perusal further reveals that another illegality has been committed that is that the date of attestation of attestation of both the verification on election petition and the affidavit clearly indicates that Oath Commissioner's seal was affixed on the 17th of March, 2008 while the verification disclosed that the alleged depositions have been made on the 18th March, 2008 and this discrepancy is irreconcilable in nature and renderd the attestation made by the Oath Commissioner, if not illegal and unlawful, but also based on fabrication and concoction of facts. The purpose of administration of Oath stands nullified from the record when on 17th March, 2008, there could not be any document sworn to before the Oath Commissioner. This very vital aspect has not been dealt with by the learned Tribunal while dismissing the application of the petitioner under Section 63 of the Representation of People, Act, 1976 seeking rejection of the election petition when sub-rule (3) of Rule 15 of Order VI CPC makes the attestation obligatory as under:

"The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

In the circumstances to proceed with election petition would be an exercise in futility. Reliance in this behalf is placed upon Malik Umar Aslam Vs. Sumera Malik and another (PLD 2007 SC 362).

1. It is further vehemently stressed that the impugned order dated 9.2.2009 is a complete misreading of record as such reliance is placed on Sardarzada Zafar Abbas and others Vs. Syed Hassan Murtaza and others (PLD 2005 SC 600) and Engineer Jamal Ahmad Malik Vs. Shaukat Aziz and 6 others (2007 CLC 1192). Further contends that the learned Election Tribunal has overlooked the mandatory provisions of law and precedents on the subject in passing the impugned order which is a palpably order contrary to law.

2. On the other hand, it is stated by the learned counsel for the Respondent No. 2 that by virtue of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, there is a complete bar to exercise of constitutional jurisdiction of this Court under Article 199 of the Constitution and in view of the same, this writ petition is not maintainable. Further, all the judgments relied upon by the learned counsel for the petitioner with regard to maintainability of the petition are prior or before the filing of the election petition and not a single judgment relates to an interlocutory order and in the election laws no forum is provided to challenge interlocutory orders arising out of an election petition. Party affected has to wait till it matures into a final order and then to attack it in the proper forums. Reliance is placed on Syed Saghir Ahmad Naqvi Vs. Province of Singh through Chief Secretary, S & GAD, Karachi and another (1996 SCMR 1165). Therefore, this Court cannot exercise jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 and this writ petition merits dismissal. Further contends that no illegality has been committed by the learned Election Tribunal while passing the impugned order.

3. We have heard learned counsel for the parties and also perused the impugned order.

4. Perusal of the election petition along with its verification as well as the verification of the affidavits as elaborated during the course of the arguments of the learned counsel for the petitioner and as reproduced above along with relevant provisions of law finds our appreciation as it is apparent that Respondent No. 2 while filing the election petition did not comply with the mandatory requirements of law regarding verification of petition and affidavit. There is a very significant omission in both the verification of the election petition and also in the affidavit i.e. "verifies of his own knowledge". Respondent No. 2 was required to verify according to his "own knowledge" and not only on information which he believes to be true, as required under the provisions of Order VI Rule 15 (2) CPC, which is reproduced below:

Rule 15(2) "The person verifying shall specificy, by reference to the numbered Paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true".

It appears that while filing the election petition, Respondent No. 2 failed to comply with this mandatory provisions of the law regarding the verification of pleadings and non-compliance of the same is resultantly fatal, as such, Section 55(3) of the Representation of People Act, 1976 also entails that every election and every schedule or annex thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. In this regard we are fortified by dictum laid down by the apex Court in the case of Ch. Muhammad Ashraf Vs. Rana Tariq Javed and others (2007 SCMR 34):

"Election Tribunal was justified in holding that no affidavit was annexed to election petition which admittedly was not verified in accordance with law--Election petition not having been filed in compliance with the provisions of S.55(3) of Representation of People Act, 1976, was liable to be dismissed under S.63 of the Act, as requirement of both the sections were mandatory."

1. Secondly the factum of the affidavit being attested on 17th of March, 2008 by the Oath Commissioner while the verification of the deposition has been made on the 18th of March, 2008 is irreconcilable in nature which nullifies the attestation made by the Oath Commissioner on the 17th of March, 2008 when the same is being sworn a day of the attestation, such affidavit would be deemed not duly verified on oath as has been held by the Honourable Supreme Court of Pakistan in the case of Malik Umar Aslam Vs. Sumera Malik and another (PLD 2007 SC 362). As such the requirements of law including verification of petition in terms of Section 55(3) of Representation of People Act, 1976 for having prescribed a penalty of dismissal of petition for its non-compliance had become mandatory--Such defect in verification, whether pointed out by respondent or not. Tribunal would be bound to ensure compliance of such mandatory provisions.

2. Now coming to question whether this constitutional petition is maintainable or not in view of the bar under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 as well as to the question whether the same is interlocutory order arising out of the election petition, as such, can this Court exercise the jurisdiction under Article 199 of the Constitution.

3. In order to better comprehend this proposition we seek guidance from the dictum of apex Court as elucidated in the following judgments.

In Syed Nayyar Hussain Bukhari Vs. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487), it has been observed that:

"Bar as contained in Art. 225 of the Constitution on the jurisdiction of High Court under Art. 199 of the Constitution and that of Election Commission of Pakistan, Scope and extent--Absolute bar of jurisdiction of the High Court in election matters is based on misconception of law--Power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Art. 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute--In all election matters at all stages, the jurisdiction of the High Court under Art. 199 of the Constitution or that of Election Commissioner of Pakistan, a constitutional forum is not completely ousted by virtue of Art.225 of the Constitution."

In Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429), it has been observed that:

"A dispute concerning with the election, would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict with the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution, no doubt, can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly relied to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein."

In Muhammad Hussain Babar Vs. Election Commission of Pakistan through Secretary and others (PLD 2008 SC 495), it has been observed that:

"Bar of jurisdiction contained in Art. 225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Art. 199, in all matters directly or indirectly concerned with the election--Constitutional jurisdiction of High Court can surely be involved in certain situations, particularly in cases, in which a pure question of law is raised in the constitutional petition and a question of fact or a mixed question of law and fact is not involved--Question relating to exercise of jurisdictions by the High Court under Art. 199 of the Constitution in election matters due to bar contained in Art. 225 of the Constitution must be determined in the light of facts and circumstances of each case as concept of complete bar of jurisdiction of the High Court may not be in the wisdom of the Constitution."

1. Keeping in view the principles laid down in the above cited judgments of the apex Court as well as the determination of question of law involved in the instant writ petition, constitutional jurisdiction under Article 199 of the Constitution as per judgments of the Honourable Supreme Court, can be exercised at any stage in all matters of elections involving questions of law or interpretation of law in respect of an election dispute.

2. It has also been propounded that powers of High Court cannot be curtailed on mere fact that question of law brought before the High Court directly or indirectly relates to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the points involved therein, therefore, relying upon dictum of apex Court laid down in Nayyar Hussain Bukhari Vs. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487), Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and 10 others (PLD 2008 SC 429) and Muhammad Hussain Babar Vs. Election Commission of Pakistan, through Secretary and others (PLD 2008 SC 495), we are inclined to exercise the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and accept this writ petition. Resultantly, the application of the petitioner under Section 63 of the Representation of People Act, 1976 stands accepted and the election petition would be deemed to have been rejected under Order VII, Rule 11 CPC for non-compliance of the mandatory provisions of law as required under Section 55(3) of the Representation of People Act, 1976.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 352 [Multan Bench Multan]

Present: Malik Saeed Ejaz, J.

MUHAMMAD YASEEN and 13 others--Petitioners

versus

DISTRICT CO-ORDINATION OFFICER, MUZAFFARGARH and 4 others--Respondents

W.P. No. 6996 of 2008, decided on 31.3.2009.

Colonization of Government Lands (Punjab) Act, 1912--

----S. 30(2)--Govt. land--Allottment--Application to DOR that Government land was wrongly allotted--D.O.R. on the application ordered the D.D.O.R. to hold inquiry--Order assailed through writ petition--Question of--Whether on any application the collector before referring the same to the M.B.R. is authorized to conduct inquiry himself--Held: According to Section 30(2) of Colonization of Government Lands Act, 1912 no other revenue officer except M.B.R. is empowered to hold inquiry and pass order for resumption of land in cases of close and past transactions--If any complaint is lodged to any other authority in the revenue hierarchy, it can only act as a post officer and its primary and foremost duty is only to transmit the same to the M.B.R. for appropriate orders and it is only the member colonies alone either to inquire into the matter himself or entrust the inquiry to any of his sub-ordinate, and then the member colonies on receipt of such inquiry report, would finally decide the issue after affording opportunity of hearing to all the concerned--Proceedings before D.O.R. and D.D.O.R. were set aside--Petition allowed. [P. 356] A

Mr. Tahir Mehmood, Advocate for petitioners.

Mr. Zafarullah Khan Khakwani, AAG with Malik Fayyaz Hussain, Naib Tehsildar and Saeed Ahmad, Head Clerk, D.O.R Officer, Kot Addu.

Date of hearing: 23.2.2009.

Order

Briefly the facts are that petitioners claim themselves to be bona fide and lawful allottees of certain Government land since long and conveyance deeds had also been executed in their favour, where after, they were in cultivating possession of the said land. But, Respondent No. 5 moved an application to Respondent No. 3 District Officer (Revenue), Muzafargarh to the effect that Government land was wrongly allotted to the petitioners and others. Similar application was moved by the same Respondent No. 5 to Deputy District Officer (Revenue)/ Respondent No. 4. Pursuant to those applications, the District Officer (Revenue) ordered the Deputy District Officer (Revenue) to hold inquiry, which proceedings have been assailed through the instant writ petition.

1. Learned counsel for the petitioners submits that they were granted proprietary rights of the land given under temporary cultivation; that title deeds had already been executed in their favour by the revenue authorities and mutations against said deeds were sanctioned in the year 1986; that since then they are continuously cultivating the said land as owners in possession; that subsequently on the application submitted by Respondent No. 5 wherein it was alleged that the petitioners have obtained the proprietary rights of the said land by way of fraud, the Collector started inquiry against the petitioners, for which he had no authority, as the Civil Court is the forum in which the respondents can agitate their grievance; that when proprietary rights are given through title deeds the same cannot be withdrawn by way of impugned inquiry by the D.D.O(R); and that under Section 30(2) of the Colonization of the Government Lands (Punjab) Act, 1912, the Member Colonies, Board of Revenue, is the only authority to initiate inquiry on such type of complaint.

2. On the other hand, learned AAG contends that undeniably Member Colonies, Board of Revenue, is the authority to pass final order on such complaints after giving full opportunity of hearing to the parties but prior to passing of any order, inquiry can be conducted by the Collector concerned, as there is no bar for such inquiry; that according to Section 30(2), ibid it is for the Collector to hold inquiry or refer the matter to Member Colonies even without such inquiry; however, final order is to be passed by the Member Colonies.

3. After hearing the arguments of learned counsel for the parties and going through the record, without touching the merits of the case in depth, it is resolved that there is no dispute between the parties with regard to the authority of the Member Colonies to resume the land, subject to necessary condition precedent that tenancy rights, etc. had been acquired by means of fraud or misrepresentation, of course after adopting the procedure laid down in Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 and after affording the tenant/allottee reasonable opportunity of being heard. The moot point in this case is whether on any application, the Collector before referring the same to the Member Colonies, Board of Revenue, is authorized to conduct inquiry himself? Learned Law Officer while referring to the case "Muhammad Akhtar versus Senior Member Board of Revenue, Punjab, Lahore" (2008 C.L.C. 825) and "Syed Mazhar Hussain Shah through L.Rs. versus Member, Board of Revenue, Punjab, Lahore and others" (2006 SCMR 959), contends that the Collector could inquire into the matter. The relevant portion from the cited case is to the effect "Board of Revenue was competent to cancel the allotment of land provided the tenant had acquired the land by means of fraud or misrepresentation; or was not eligible to have such rights for any reason." As observed above, the authority of the Board of Revenue to cancel allotment, of course subject to certain conditions, is not under challenge, as such, the cited cases are of no help to resolve the controversy involved herein.

4. Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 is reproduced hereunder for ready reference:--

"If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such person a reasonable opportunity of showing cause, pass an order resuming the land in respect of such land or pass such order as it may deem fit."

The above sub-section (2) was for the first time introduced in the statute book through Punjab Ordinance VII of 1978, for an obvious purpose that prior to that where a case of fraud or misrepresentation was detected, the Civil Court had been authorized to upset such bogus or illegal allotment, and by insertion of this sub-section (2), the authority has now been vested in the Member Colonies, Board of Revenue to take up the matter and pass any order at any stage.

1. The letter and spirit of Section 30(2) of the Colonization of Government Lands Act, is to give discouragement to those allottees who acquired tenancy rights through fraud or misrepresentation by resuming the land allotted to them just after their fraud or misrepresentation is proved at any stage, even after the execution of the conveyance deed in favour of such allottees and its implementation in the revenue record. That is why the Member Colonies is empowered to cancel the allotment and resume the land immediately after the fraud, or misrepresentation, is proved. This provision clearly Indicates that no revenue officer except the Member Colonies is equipped with such powers and even the preliminary inquiry upon any complaint cannot be initiated by such Officer other than Member Colonies. The intention of the legislature to introduce the provision of Section 30(2) is, on the one hand, to safeguard the valuable property of the state from the hands of the usurpers who obtain the same fraudulently or by exerting undue influence, political or otherwise, and, on the other hand, to protect the rights of the genuine allottees by discouraging false and frivolous complaints against them. Unfortunately, it is a common trend in our society to involve genuine allottees in frivolous and baseless litigation either to blackmail them for getting monetary benefits or to slake their animosity and rancor. People living in rural areas easily fall victims of these evils. The Member Colonies should be vigilant before initiating any action or inquiry on the complaint received by him, in this regard, and would be obligated to evaluate the genuineness of the complaint and also to ascertain whether the allegations, leveled in the complaint are supported by any documents or logical evidence so that no citizen is unnecessarily put to hardship.

2. It is also equally true that state land, at a large scale is in the unlawful possession of the grabbers/squatters with backing of both lower and higher staff of the revenue department. Whenever, fraudulent allotment is detected, no action is taken against the delinquent of their false reports on the basis of which such type of allotments are made. The MBR is duly bound to pass strict orders against the delinquent staff, fixing liability upon them so that corrupt and dishonest elements are discouraged before reaping the harvest of their unlawful and morally deprecated acts. It is painfully observed that delinquents are only transferred as a mark of punishment. In my view, such type of punishment, is based on mala fide and is awarded just to complete the formalities. Need not to emphasise, such type of delinquents deserve no leniency but should be awarded exemplary punishments in accordance with law and all the loss of the Government in regard to fraudulent allotment be recovered from them. Section 30(2) empowers the Member Colonies to this effect.

3. Furthermore, as shall be seen from the above reproduced provision, the word "Collector" does not figure any where. With this back-ground, the argument of learned Law Officer that the Collector could inquire into matter before referring the matter to the Member Colonies, Board of Revenue, is nothing but fallacious. On the contrary, this Court in the case "Province of Punjab through Deputy Commissioner/Collector Sargodha, District Sargodha versus Muhamamd Akram" (PLD 1993 Lahore 114), has in unambiguous terms held as under:--

"Board of Revenue being empowered to resume such land, inquiry resulting in the resumption order must be conducted by the Board of Revenue itself"

In the above referred case this Court laid down that Board of Revenue exceeded its powers, where, instead of holding inquiry itself, it based its order on the oral statements of the Secretary, Town Committee and Patwari which were not relevant. It, thus becomes evident from the above quoted case law that only the Board of Revenue itself is authorized to hold an inquiry and insofar as the authority of the Collector is concerned. I am of the view that initiation of proceedings by the Collector before referring the matter to the Board of Revenue, would not be just and proper, rather it would amount to illegal assumption of jurisdiction by him.

1. In the instant case, the allegations leveled against the petitioners are that when the leasehold rights were given to them they were minors. It is an admitted fact that Respondent No. 5 is also the resident of the same locality where the petitioners live. He was fully aware of each and every transaction of allotment to the petitioners; right from the beginning till the date of initiation of the complaint. In this situation, question arises as to why he remained silent for such a long period of 22 years. It is also noted that he did not annex any document in support of his allegations. He filed complaints before DDOR and DOR simultaneously and the latter without applying his mind over it, passed an order to initiate inquiry. The hastiness of the DOR for initiating inquiry proceedings, on such type of complaints, speaks of his irresponsible behavior as well as mala fide on his part as he was not empowered to hold inquiry in such like cases where on the basis of leasehold rights, proprietary rights were given to the allottees through registered conveyance deeds and implementation in the revenue record through various mutations has been made since long, prior to promulgation of amendment in Section 30(2) in 1978. As such, this is a close and past transaction which can normally be reversed through the Civil Court. However, the MBR is empowered to pass any order, at any time, even in such close and past transactions, but this does not mean that the MBR would proceed in an ordinary manner. He is to deal such cases with full care and caution and adopt all measures as discussed above. No other revenue officer except MBR is empowered to hold inquiry and pass order for resumption of land in cases of close and past transactions. If any complaint is lodged to any other authority in the revenue hierarchy, it can only act as a Post Officer and its primary and foremost duty is only to transmit the same to the Member Colonies, Board of Revenue for appropriate orders and it is only the Member Colonies alone either to inquire into the matter himself or entrust the inquiry to any of his subordinates, and then the Member Colonies on receipt of such inquiry report, would finally decide the issue after affording opportunity of hearing to all the concerned. Since Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912, is a special law, it obviously would supersede the general law and according to this section all powers vest in Member Colonies, Board of Revenue to pass any order at any time, if any forgery or misrepresentation in the allotment/leasehold rights is detected, even after registration of conveyance deed and its implementation in the revenue record.

2. The upshot of the above discussion is that the proceedings of DDOR and DOR on the complaint of Respondent No. 5 are set-aside by declaring the same illegal and without jurisdiction. The matter is referred to the Member Colonies, Board of Revenue, for passing appropriate orders in accordance with law while exercising his powers under Section 30(2) of the Colonization of Government Lands Act, 1912, by observing all the above guidelines. With above observations the writ petition is disposed of.

(M.S.A.) Petition disposed of.

PLJ 2011 Lahore 357 [Rawalpindi Bench Rawalpindi]

Present: Asad Munir, J.

NARGIS SHAZIA CHAUDHRY--Appellant

versus

FEDERAL PUBLIC SERVICE COMMISSION, etc.--Respondents

FAO No. 1 of 2010, heard on 17.3.2010.

Federal Public Service Commission Ordinance, 1977--

----S. 7(3)--Reserved Women Quota--Reservation of the ten percent quota for women in all services including central superior services is on account of a policy decision of the Federal Government declared by its memorandum--Memorandum also declared in unequivocal terms that the quota is in addition to the posts that the women candidates may obtain on merit in competition with men--Requirement of recruitment of females on account of the additional women quota cannot be confused with up-gradation but must be satisfied separately as is so unambiguously stated in Federal Government's Memorandum--Appeal allowed. [Pp. 359 & 369] A & B

Abdul Rehman Khan, Advocate for Appellant.

Mr. Babar Ali, Standing Counsel for Respondent.

Date of hearing: 17.3.2010.

Judgment

The brief facts necessary for the disposal of this appeal are that on 23.11.2007, Federal Public Service Commission, Respondent No. 1, through an advertisement in the press invited applications for recruitment to the posts in BS-17 in various Occupational Groups/Services collectively called Central Superior Services. The said posts were to be filled through a competitive examination to be held in March 2008.

1. Being qualified in accordance with the eligibility criteria prescribed by Respondent No. 1, the appellant applied and passed the written test as well as the viva voce of the competitive examination and as per the final result announced on March 11, 2009, by Respondent No. 1, the appellant stood at 344th position in the all-Pakistan merit list of the 684 qualified candidates whereas in the merit list of Punjab, the appellant was placed at 222nd position among the 428 qualified candidates and was 53rd in the order of merit among the 90 qualified female candidates from Punjab.

2. Thereafter on 11th April, 2009, Respondent No. 1 issued a Press Note wherein the number of vacancies of all occupational groups/services on the basis of all-Pakistan open merit, respective Provincial/Regional merit as well as the 10% reserved women quota were announced for the successful candidates of the 2008 CSS Competitive Examination. According to the said Press Note, the number of posts to be filled on merit by successful candidates from Punjab were 160 comprising various Occupational Groups/Services in addition to 19 posts reserved for women candidates from Punjab on account of their reserved quota. The said 19 posts reserved for Punjab women also comprised various Occupational Groups/Services of the Central Superior Services. It may be stated that the said posts were reserved for women pursuant to and in furtherance of the policy decision of the Federal Government announced vide its Memorandum dated 22nd May 2007, "to reserve with immediate effect, 10% quota for employment of women to all posts across the board in the Federal Government Services including CSS to be filled by direct recruitment in addition to their participation in the open merit".

3. On the basis of the selection made by Respondent No. 1, the Establishment Division vide its Press Note dated July 11, 2009, announced the appointment of 357 successful candidates to various Occupational Groups/Services. Having not been selected by Respondent No. 1 for any post after being successful in the CSS Competitive Examination 2008, the appellant felt aggrieved and invoked Section 7(3) of the Federal Public Service Commission Ordinance, 1977, by means of a representation dated 5.8.2009 to persuade Respondent No. 1 that she was entitled to be selected on merit against the women quota but Respondent No. 1 rejected her representation vide its letter dated 4.11.2009 for being devoid of merit. Thereafter on 19.11.2009, the appellant filed a review petition under Section 7(3)(b) ibid which was also rejected by Respondent No. 1 by its letter dated 4.12.2009.

4. According to her learned counsel, the appellant has every right to be appointed against one of the 19 women quota posts for Punjab as after filling 160 vacancies in Punjab on open merit, the petitioner, being at serial number 222 in the merit list of the Punjab candidates, holds the 13th position on merit among the female candidates.

5. The learned Standing Counsel, while accepting that 19 posts have been reserved against the women quota, has contended that 13 of these vacancies have been filled in accordance with their order of preference by female candidates who had qualified to be appointed on merit for being among the top 160 successful candidates from Punjab while the remaining 6 have been allocated to females who had not so qualified. According to the learned Standing Counsel, only 6 of the 19 posts reserved for women quota were available for the female successful candidates below the 160th position in the merit list and the said 6 posts were filled in order of merit and the appellant has no right to be appointed to any post as admittedly she holds 13th position in the said merit list.

6. I have given due consideration to the respective arguments of the counsel for the appellant as well as the learned Standing Counsel.

7. The sole issue that needs to be resolved is as to whether or not the ten per cent women quota reserved for Punjab has been given effect to by Respondent No. 1 through allocation of posts to the qualified female candidates. As stated earlier the reservation of the ten per cent quota for women in all services including Central Superior Services is on account of a policy decision of the Federal Government declared by its Memorandum dated May 22, 2007. The said Memorandum also declared in unequivocal terms that the said quota is in addition to the posts that the women candidates may obtain on merit in competition with men. In furtherance of the policy, Respondent No. 1's Press Note dated April 11, 2009, announced the number of posts reserved for women for each province on the basis of their ten per cent quota. In the case of the province of Punjab, the number of posts reserved for women were 19 which were split into 11 Occupational Groups/Services. These 19 posts were declared to be in addition to the 24 posts on all-Pakistan merit and 160 posts for Punjab out of which the females candidates could also take posts on merit in contest with the male candidates.

8. According to the final result declared by Respondent No. 1, a number of female candidates from Punjab succeeded in securing some posts on all-Pakistan merit. As regards the 160 posts earmarked for the candidates from Punjab, 120 male candidates and 40 female candidates according to their merit became entitled to the said posts in different occupational groups/services. Thus, the female candidates as per their merit among Punjab candidates secured 40 posts which was in addition to the quota of 19 posts reserved for them. The grievance of the petitioner is that instead of allocating them a total of 59 posts, the female candidates from Punjab have been offered 6 posts only which means that they have been deprived of their quota to the extent of 13 posts.

9. Mr. Babar Ali, the learned Standing Counsel, was called upon to explain as to how and why the entire reserved quota of 19 posts was not allocated to the women candidates from Punjab. While insisting that the entire women quota has been duly observed, the learned Standing Counsel stated that out of the 19 posts reserved for the female candidates, 13 posts were allocated by upgrading the female candidates who had qualified on merit for being among the top 160 successful candidates in Punjab. According to him, the upgrading in posts to accommodate such female candidates has been brought about on merit according to their order of preference.

10. The explanation offered by the learned Standing Counsel, if accepted, would only make the provision of the women quota an illusion rather than a reality. Such an explanation needs to be rejected as it implies that no additional jobs are to be provided to females against women quota if the ones, who have qualified on merit, are upgraded. The requirement of recruitment of females on account of the additional women quota cannot be confused with upgradation but must be satisfied separately as is so unambiguously stated in Federal Government's Memorandum dated Memorandum dated May 22, 2007 and Respondent No. 1's Press Note dated April 11,2009.

11. However, there seems to be a misconception on the part of Respondent No. 1 that the women quota of 19 posts can be observed by upgrading the females without having to appoint an additional number of 19 of them against the said quota. Such a misconceived view has resulted in denying the successful female candidates from Punjab their entire share of the quota of 19 posts reserved and assured to them. Only 6 posts have been allocated to the females against their quota of 19 posts while the remaining 13 posts are being accounted for by upgrading the females who had already qualified to be appointed on merit. Resultantly, 13 females have been appointed under the women quota even though they had qualified on merit. There is no cavil to the proposition that females with higher merit had to be upgraded according to their order of preference. However, the benefit of upgrading has gone to the male candidates most of whom did not qualify on merit to secure any post as they were below the 160th position in the order of merit for Punjab. A scrutiny of the Establishment Division's Press Note confirms that 8 men in the Information Group and 4 men in the Postal Group have been appointed when they had failed to qualify on merit. The induction of these 12 men has been made possible only because the women quota has been treated in such a manner that men rather women have become its main beneficiaries. Such men have filled the posts of the upgraded female candidates to the prejudice of the female candidates who became eligible to the said posts on account of the women quota. This could have been avoided if the 13 posts held on merit and vacated by the upgraded females had been allocated against women quota to the female candidates in order of merit. More appropriately, the 40 posts earned by the females on merit should have been clubbed together with the 19 women quota posts reserved in the Press Note dated April 11, 2009, whereafter all these 59 posts should have been allocated among the successful female candidates in accordance with merit and after giving due regard to their order of preference.

12. In the light of the above discussion, there is no doubt that Respondent No. 1 has failed to observe the women quota of 19 posts as only 6 females have been appointed leaving 13 of them out in the cold. As a result, I find that the appellant is qualified to be appointed to a post in CSS as admittedly she holds 13th position on merit among the 19 females who became entitled to be appointed against the women quota.

13. I, therefore, allow this appeal filed against Respondent No. 1's orders dated 4.11.2009 and dated 4.12.2009 which are declared to be unlawful and are set aside for being violative of law, policy and Respondent No. 1's own Press Note dated April 11, 2009. Allowing the appellant's representation dated 5.8.2009, I also direct the Federal Public Service Commission, Respondent No. 1, to forthwith select the appellant for a post in the Central Superior Services against reserved women quota so that she is appointed to a post in an Occupational Group/Service she is entitled to in terms of the observations made above.

(M.S.A.) Appeal allowed.

PLJ 2011 Lahore 362

Present: Iqbal Hameed-ur-Rehman, J.

MUHAMMAD RAFI KHAN--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 4 others--Respondents

W.P. No. 1919 of 2010, decided on 27.5.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Breach of trust--Mis-appropriation and embezzlement by issuing bogus receipt and issued a fake receipt, violated the procedure, rules and regulations of the bank and committed breach of trust--Allegation of--Denies the affixation of stamp of bank on the document and in findings of inquiry officer--Neither amount was deposited in account nor receipts of remaining amount received by him were given to him by petitioner--No mention of stamp being affixed by petitioner--Question of committing breach of trust--Validity--Petition had not violated the Rules & Regulations of the Bank as he had not issued the receipt with official stamp of the bank to the complainant--No question of committing any breach of trust and the same is apparent in the absence of any claim from the complainant against the petitioner--In view of affidavit of the complaint and application made by complainant to the effect that he had made the complaint against the petitioner due to misunderstanding--There was nothing left to prove the allegation of mis-appropriation or embezzlement--Held: Neither any loss had been caused to the bank on that account nor the petitioner had gained any profit therefrom--Petition was accepted. [P. 368] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Breach of trust--Issuing of fake receipt--Violation the procedure Rules and Regulations of Bank--Monthly installments were handed over to petitioner--Neither the amount was deposited in his account nor the receipt were given to him--Regular inquiry was conducted and inquiry report proved the petitioner guilty--Punishment of compulsory retirement from service was imposed--Grievance petition was accepted by Punjab Labour Court--Reinstated in service with all back benefits--Punjab Labour Appellate Tribunal set aside the impugned order--Challenge to--Question of violation of Rules and Regulation of bank--Inquiry against the petitioner was not conducted in accordance with law and the charge of receiving amount was not proved as complainant had not appeared in inquiry proceedings and besides this, complainant had withdrawn the application against the petitioner--Allegation against the petitioner was not proved--No question of any violation of Rules and Regulations of bank and of committing any breach of trust and imposing of penalty of compulsory retirement upon the petitioner will be considered as illegal--Petition was accepted. [P. 369] B

2001 SCMR 256, 2008 PLC (CS) 267, 2002 PLC 307, 2008 SCMR 214, 2007 SCMR 1617 & 2008 PLC 40, rel.

Mr. Talib H. Rizvi, Advocate, for Petitioner.

Syed Fazal-e-Mehmood, Advocate for Respondents.

Date of hearing: 27.5.2010.

Order

Through this writ petition, the petitioner prays that the judgment of the Punjab Labour Appellate Tribunal, Lahore, dated 2.11.2009 may be set aside and the judgment dated 17.12.2008 passed by the Labour Court, Lahore, may be restored.

1. Brief facts giving rise to this writ petition are that Muhammad Rafi Khan petitioner had joined the service as Cashier in Habib Bank Limited and subsequently, he was promoted as Officer Grade-III on 1.1.1994 at Pattoki Branch at Habib Bank. One Muhammad Sibtain son of Bashir Ahmad submitted an application on 27.10.2006 to the Regional Manager, Habib Bank Limited, Sahiwal, to the effect that he intended to obtain a car financing facility from the Habib Bank Limited Pattoki Branch on monthly installments. The monthly installments of Rs. 18,000/- each were handed over by him on 15.7.2006, 15.9.2006 and Rs. 1,27,000/- on 15.8.2006 to Muhammad Rafi Khan, petitioner. According to the said Muhammad Sibtain, the petitioner gave him a fake receipt of Rs. 1,27,000/- whereas in fact neither the amount of Rs. 1,27,000/- was deposited in his account nor the receipts of the remaining amounts received by him were given to him by the petitioner. The said Muhammad Sibtain also appended with the application a copy of the receipt of Rs. 1,27,000/- issued by the petitioner with round stamp of the bank. The Regional Officer of the Bank forwarded the said application to the Manager of the Pattoki Branch who called explanation of the petitioner. In response to the said letter, the petitioner submitted his reply dated 30.10.2006 stating that the said Muhammad Sibtain came to the bank on 15.8.2006 and expressed his desire to book a vehicle and asked for the details of the car finance facility. According to the petitioner he prepared the detail in this regard and received the amount of Rs. 1,27,000/-. On 16.8.2006, the said Muhammad Sibtain made a telephonic call to him and asked him not to deposit the said amount in the bank as he wanted to procure the vehicle on his own. The petitioner further explained that the said Muhammad Sibtain had changed his mind many a time. Thereafter, the petitioner asked the said Muhammad Sibtain to take back the amount. The petitioner further explained that when the said Muhammad Sibtain received the said amount, he took oath in the presence of some persons that the original receipt had been lost and that a photo-stat of the receipt was available with him and afterwards the said Muhammad Sibtain started blackmailing the petitioner and submitted the said application to the bank. He further explained that the Manager and some other respectables of the Town convened a Punchayat in the matter wherein the said Muhammad Sibtain admitted his fault and gave in writing on 30.10.2006 that the misunderstanding has been cleared and the original receipt was returned to the Manager and the said Muhammad Sibtain requested that his application dated 27.10.2006 be returned to him. Thereafter, the petitioner was suspended and investigation was conducted and then show cause notice dated 24.1.2007 was served upon the petitioner. In response to the said show cause notice, the petitioner had submitted his written reply repeating his earlier version. As the same was not found satisfactory, the petitioner was proceeded against for violation of the Rules and Regulations of the bank and for breach of trust. Thereafter, a regular inquiry was conducted and inquiry report dated 15.7.2007 proved the petitioner guilty and as a result thereof, vide order dated 27.6.2007, the petitioner was awarded punishment of compulsory retirement from service. Against the said order, the petitioner filed departmental appeal on 25.7.2007 but the same was never responded. Thereafter, the petitioner filed a grievance petition before the Punjab Labour Court, Lahore, (Respondent No. 2) and the said grievance was accepted by the Punjab Labour Court, Lahore, vide judgment dated 17.12.2008 and the order dated 27.6.2007 was set aside and the petitioner was ordered to be reinstated in service with all back benefits from the date of the compulsory retirement i.e. 27.6.2007. Being aggrieved with the said order dated 17.12.2008, the respondent bank filed an appeal before the Punjab Labour Appellate Tribunal, Lahore, (Respondent No. 1) and the same was accepted by the Punjab Labour Appellate Tribunal, Lahore, (Respondent No. 1) vide judgment, dated 2.11.2009 and the order dated 17.12.2008 passed by the Punjab Labour Court was set aside. Against the said judgment dated 2.11.2009, the petitioner has filed this writ petition.

2. It is contended by learned counsel for the petitioner that the money received by the petitioner from a prospective client of the bank namely, Muhammad Sibtain, was not received as a trustee of the bank and thereafter the same was returned to Muhammad Sibtain and by returning the said amount, the petitioner has not committed any breach of trust and has not violated the Rules & Regulations of the bank. It is further contended that Muhammad Sibtain (complainant) had sworn affidavit that he had made complaint due to misunderstanding and that he had no grievance against the petitioner or against the respondent bank and that he had withdrawn his complaint and had supported the version of the petitioner as was taken in his defence but the said affidavit had been ignored while punishing the petitioner as compulsory retirement from service. It is further contended that there is no evidence to prove that the petitioner violated any rule and regulation of the bank and committed breach of trust. It is further contended that the learned Appellate Tribunal Lahore proceeded with material irregularity and while passing the impugned judgment has not taken into consideration that the allegation against the petitioner was that he committed mis-appropriation and embezzlement of Rs. 1,27,239/- by issuing bogus receipt and he issued a fake receipt, violated the procedure, rules and regulations of the bank and committed breach of trust but when the inquiry was conducted, the said allegation was not proved as no witnesses were produced and the said alleged receipt was filed but the said receipt had no connection with any transaction in the bank. It is further contended that in the inquiry proceedings, Muhammad Tariq Javed appeared as the solitary witness and claimed that he was authorized by Head Office vide letter dated 20.2.2007 Ex.P/01 as being nominated Prosecutor whereas Ex. P2 is the inquiry notice issued by Respondent No. 5 to the petitioner whereby Talib Hussain was appointed as inquiry officer, thus, both these documents prove that Muhammad Tariq Javed was not appointed as Prosecutor and as such, his appearance as the sole witness in the inquiry was illegal but Respondent No. 1 Punjab Labour Appellate Tribunal failed to take into consideration this aspect of the matter therefore, the inquiry proceedings as well as order of Respondent No. 1 are illegal, without jurisdiction and deserve to be quashed. It is further contended that after the withdrawal of the complaint, the inquiry officer could not proceed against the petitioner as the facts proved that the respondent bank was neither defrauded nor suffered any monetary loss, therefore, no proceedings could be held for the alleged offence of breach of trust or violation of any rules and regulations. It is further contended that Respondent No. 1, while passing the impugned judgment, has committed illegality and irregularity as retirement from service is a major penalty, which under the facts and circumstances of the case, does not commensurate with the allegations, therefore, the impugned judgment deserves to be set aside. It is further contended that in the absence of the complainant or any other evidence/witness, no conviction on the basis of the unproved document, which was not tendered by any competent witness in the inquiry, could be taken into consideration for passing any order against the petitioner, as such, the impugned judgment is not based on judicial consideration and proper appreciation of evidence on record, therefore, the same be set aside. In support of his contention, learned counsel for the petitioner has relied upon Allah Yar Vs. General Manager, Railways Headquarters, Lahore and (2001 SCMR 256), Fayyaz Hussain vs. Director Excise and Taxation, Lahore (2008 PLC (C.S.) 267), Muslim Commercial Bank Ltd. Vs. Waheed Murad (2002 PLC 307), The State of Uttar Pradesh vs. Muhammad Nooh (AIR 1958 SC 86), Muhammad Ali Bukhari vs. Federation of Pakistan (2008 SCMR 214), Muslim Commercial Bank Vs. Shams Alulia (2007 SCMR 1617) and Muslim Commercial Bank Vs. Ghulam Muhammad Memon (2008 PLC 40).

3. On the other hand, learned counsel for the respondents, while supporting the impugned judgment and the comments submitted on behalf of the respondents, has stated that according to the petitioner, the amount of Rs. 1,27,000/- was returned to Muhammad Sibtain (complainant) on 16.8.2006 and the complaint was filed on 28.10.2006 and if the said amount was returned, then why the complainant had filed the complaint, therefore, allegations levelled against the petitioner are correct. It is further contended that the petitioner was served with a show cause notice dated 24.1.2007 for his acts of misconduct as he received an amount of Rs. 1,27,239/- from one Muhammad Sibtain (complainant) without any authority and also issued a receipt under his signatures and affixed branch's stamp on it and the amount received by the petitioner was also not accounted for in the bank record and the petitioner also prepared computerized forms and delivered the same to the complainant to falsely show regarding grant of loan facility, as such, the petitioner had committed fraud and mis-appropriation when the petitioner falsely denied the charges and in view of the same, the respondent initiated inquiry against the petitioner for violation of rules, regulations and for breach of trust. It is further contended that in the inquiry proceedings, Tariq Javed appeared as Prosecutor and submitted documents in proof of the allegations against the petitioner and the contention of learned counsel for the petitioner that the Prosecutor submitted in evidence documents which were neither executed by him nor was any witness produced to prove the said document is misconceived and against law as the Prosecutor was duly appointed by the competent authority of the bank. It is further stated that the allegations against the petitioner were duly proved in the inquiry proceedings through unimpeachable evidence. It is further stated that the act of misconduct by the petitioner was duly proved in the inquiry and the withdrawal of the complaint by the complainant has no bearing on the misconduct and breach of trust committed by the petitioner. It is further stated that the petitioner has committed grave mis-conduct as he not only illegally received cash from the complainant but also issued a receipt thereof under his signature and affixed the branch's stamp on it and the amount received by the petitioner was never accounted for in the books of the bank and the petitioner also prepared bogus computerized loan application forms and delivered the same to the complainant, as such, the petitioner rightly deserved punishment of dismissal from the bank's service, however, the bank authorities treated him leniently and he was only compulsorily retired from the service of the bank. It is further contended that in view of the above facts and circumstances, Respondent No. 1 Punjab Labour Appellate Tribunal, Lahore, has rightly accepted the appeal of the respondent bank and set aside the judgment of Respondent No. 2 Punjab Labour Court, Lahore. In support of his contention, learned counsel for the respondents has placed reliance upon Government of Punjab through Secretary, Labour and Manpower, Civil Secretariat and others Vs. Shahid Mehmood Butt (2006 SCMR 443), Nazir Ahmad Pathan and another Vs. Muslim Commercial Bank Ltd. and others (2008 SCMR 899) and United Bank Limited through Power of Attorney Vs. Sindh Labour Court No. 5, Karachi and another (2010 PLC 114).

4. I have heard learned counsel for the parties and have also perused the impugned judgment as well as other material available on the file.

5. The allegation against the petitioner is that he had received amount of Rs. 1,27,000/- from one Muhammad Sibtain, the prospective client of the bank, towards car loan and he had issued receipt with his signatures but the amount was not accounted for in the bank record and had not been deposited in the account of the said customer. According to the petitioner, on 15.8.2006, the complainant Muhammad Sibtain had come to him in the bank branch and had expressed his desire to avail the facility of car loan and he had prepared details of the car finance facility and had signed the same but had denied the affixation of the stamp of the bank on the said details. He further stated that the amount of Rs. 1,27,000/- was handed over to him at his residence by the complainant and the same was to be deposited in the bank account of the complainant on the next day and the next day on 16.8.2006 at about 9.00 a.m. the complainant had telephonically informed him that he did not want to avail the facility of car loan, as such, the said amount was returned to the complainant but the complainant did not hand over the original receipt to the petitioner, stating that the same had been lost. Thereafter with mala fide intention to black mail the petitioner, the complainant made false complaint dated 27.10.2006. However, the matter was settled between the complainant and the petitioner on the intervention of the respectables of the locality. On 30.10.2006, the complainant filed an application to the Manager Habib Bank Pattoki, stating that the complaint was made by him due to mis-understanding and the petitioner has removed mis-understanding and there is no grievance against the petitioner and the respondent bank and requested for the withdrawal of his application. On 22.11.2006, the complainant had sworn affidavit, supporting the version of the petitioner and further stated that he had received the amount of Rs. 1,27,000/- which was paid by him to the petitioner. The complainant Muhammad Sibtain had also not appeared in the inquiry proceedings. Sohail Majeed Branch Manager of Habib Bank Ltd. while appearing in the inquiry proceedings as RW3, had stated in his statement that the complaint made by the complainant Muhammad Sibtain was received from Regional Office and he had summoned the complainant, who had made a written application that he had made the complaint due to mis-understanding and he wanted to withdraw his complaint. It appears that the said Manager (RW3) had also supported the version of the petitioner that the complaint made by Muhammad Sibtain had been withdrawn. The petitioner also denied the issuance of Form-E meant for Car Leasing Facility to the complainant and the complainant had neither mentioned the said document in his affidavit dated 22.11.2006 nor his application dated 30.10.2006 for the withdrawal of the application filed against the petitioner. Perusal of Ex.P10 produced from the Prosecution side in the inquiry proceedings appears to be a detail of an amount provided by the petitioner to the complainant who visited the bank branch on 15.8.2006 and the petitioner also admits the issuance of the said receipt with his signatures to the complainant but denies the affixation of the stamp of the bank on the said document and in the findings of the Inquiry Officer, there is no mention of the stamp being affixed by the petitioner on Ex.P10. Although account of the complainant Muhammad Sibtain was opened in Pattoki Branch, as is mentioned in the answer of the Prosecutor to the cross-examination of the petitioner, perusal of Ex.P10 also does not show any account number. All this shows that the same was simply a detail of amounts required for Car Finance Facility, as such, the petitioner has not violated the Rules & Regulations of the Bank as he has not issued the receipt of Rs. 1,27,239/- with official stamp of the bank to the complainant Muhammad Sibtain. Therefore, there is no question of committing any breach of trust and the same is apparent in the absence of any claim from the complainant Muhammad Sibtain against the petitioner. In view of the affidavit of the complaint and the application made by the complainant to the effect that he had made the complaint against the petitioner due to mis-understanding, there was nothing left to prove the allegation of mis-appropriation or embezzlement. Moreover, neither any loss had been caused to the bank on this account nor the petitioner had gained any profit therefrom.

6. In the inquiry proceedings, Muhammad Tariq Javed Officer Grade-I, RHQ Sahiwal, appeared as the solitary witness and claimed that he was authorized by Head Office vide letter dated 20.2.2007 Ex.P/01 as being nominated Prosecutor whereas the said document shows that Talib Hussain Officer/Member IDI Unit, RHQ, Multan, was appointed as Inquiry Officer to conduct the inquiry. Thus, the statement of the Prosecutor dated 13.3.2007 falsifies the said document Ex.P1. In view of the same, it is not established from the record that Muhammad Tariq Javed Officer Grade-1, RHQ Sahiwal, was appointed only as Prosecutor, therefore, he could not appear as a witness in the inquiry.

7. From the facts and circumstances of the case, it appears that the inquiry against the petitioner was not conducted in accordance with law and the charge of receiving amount was not proved as the complainant Muhammad Sibtain had not appeared in the inquiry proceedings and besides this, the complainant Muhammad Sibtain had withdrawn the application against the petitioner. Since the allegation against the petitioner is not proved, therefore, there is no question of any violation of Rules & Regulations of the bank and of committing any breach of trust and the imposing of penalty of compulsory retirement upon the petitioner will be considered as illegal.

8. In view of the above perspective and while relying upon Allah Yar Vs. General Manager, Railways Headquarters, Lahore and another (2001 SCMR 256), Fayyaz Huysain Vs. Director Excise and Taxation,. Lahore (2008 PLC (C.S.) 267), Muslim Commercial Bank Ltd. Vs. Waheed Murad (2002 PLC 307), The State of Uttar Pradesh vs. Muhammad Nooh (AIR 1958 SC 86), Muhammad Ali Bukhari Vs. Federation of Pakistan (2008 SCMR 214), Muslim Commercial Bank Vs. Shams Alulia (2007 SCMR 1617) and Muslim Commercial Bank Vs. Ghulam Muhammad Memon (2008 PLC 40), I am of the considered view that Respondent No. 1 (Punjab Labour Appellate Tribunal, Lahore) has illegally passed the impugned judgment dated 2.11.2009 by accepting the appeal of the respondent bank. Resultantly, this writ petition is accepted and the impugned judgment dated 2.11.2009 passed by Respondent No. 1 (Punjab Labour Appellate Tribunal, Lahore) is set aside while the judgment dated 17.12.2008 passed by Respondent No. 2 (Punjab Labour Court, Lahore) is restored.

(R.A.) Petition accepted.

PLJ 2011 Lahore 370

Present: Iqbal Hameed-ur-Rehman, J.

MAJOR (RETD.) JAVED ARSHAD KHAN MANJ--Petitioner

versus

PAKISTAN CRICKET CONTROL BOARD--Respondent

W.P. No. 4481 of 2007, decided on 13.10.2010.

Pakistan Cricket Board Employees Service Rules, 2007--

----R. 9.3--Constitution of Pakistan, 1973--Art. 199--Services of the petitioners were regulated under Service Rules, 1988 which were replaced by Service Rules, 2002 & 2007--Question of applicable--Petitioner was appointed by P.C.B. on regular basis--Powers and functions of P.C.B--Rules of Pakistan Cricket Board were non-statutory and in absence of statutory Rules, relationship between the petitioners and P.C.B. was that of master and servant--Remedy available the suit for damages and not a relief of reinstatement into service--Service were terminated on recommendation of a well-known Charted Accountant Firm--During tenure of employment of the petitioners, Service Rules were amended or replaced--Amendments and replacements were never challenged--Validity--Pakistan Cricket Board had power to make rules regarding appointments and termination of the employees and in the absence of any statutory service rules, relationship between the employer and employee was that of master and servant and relief of reinstatement in service was not visualized for such relationship nor the same can be granted--Services of the petitioners were rightly terminated by the Board--If there was a violation of any statutory rule, constitutional petition was competent but if there was any violation of non-statutory rules, remedy was available to sue for damages--Service Rules, 2007 which were framed by Board were considered to be non-statutory, whereunder the services of the petitioners was to sue for damages--Petitioners were not maintainable. [Pp. 374 & 375] A

PLD 1992 SC 531, PLD 1961 SC 531, 1979 CLC 391, 1994 SCMR 2232, 1995 SCMR 453, PLD 1984 SC 194, 1998 SCMR 68, PLD 2010 SC 676 & 2010 SCMR 1484, rel.

Mr. Jahanzaib Khan Bharwana, Advocate for Petitioners.

Mr. Tafazzul H. Rizvi, Advocate and Miss Saba Latif, Advocate for Respondents.

Date of hearing: 6.10.2010.

Judgment

This judgment shall dispose of W.P. No. 4481 of 2007 and W.P. No. 4602 of 2007, which have arisen out of the same order and in both these writ petitions, same question of law and fact is also involved.

1. Succinct facts in both these writ petitions are that Major (Retired) Javed Arshad Khan Manj Petitioner No. 1 was appointed by the respondent Board on regular basis as the Manager Estates and Recoveries with effect from 15.12.1999 vide letter dated 2.12.1999 and subsequently, he was promoted as General Manager Administration, whereas Major (Retired) Ahmad Anwar was initially appointed Manager Cricket Operations (Domestic) on regular basis by the respondent Board vide letter dated 13.6.2000 and thereafter he was appointed PSO to the Chairman Pakistan Cricket Board with additional duties of Protocol and Liason with Legal Advisors vide letter dated 19.10.2004. Col.(Retired) Muhammad Parvaiz petitioner in W.P. No. 4602 of 2007 was appointed as Administrator Pakistan Cricket Board on regular basis with effect from 1.12.1999 vide letter dated 20.11.1999 and subsequently, he was appointed as Administrator of the National Cricket Academy. Thereafter, the petitioner had been performing his duties as General Manager Cricket Special Projects. Vide letter dated 16.4.2007 issued by the Chief Operating Officer, Pakistan Cricket Board,, services of all the three petitioners in both these writ petitions were terminated. Against the said order, all the three petitioners have filed both these writ petitions.

2. At the very outset, learned counsel for the petitioners has emphasized that according to notification dated 22.2.1995 (SRO.55(KE)/95), which has been published in the Gazette of Pakistan on 16.3.1995, the Board has duly been constituted for the purpose of promotion, development and regulating the game of cricket in Pakistan and powers and functions of the Board have also been determined by the Federal Government, as such, the status of the respondent Board is statutory in nature and the constitutional petitions are maintainable. It is further contended that vide notification dated 20.9.2007 (S.R.O. 64 (KE)/2007), which has been published in the Gazette of Pakistan on 18.10.2007, the constitution of the Board came into force for the creation of certain posts, i.e. Chief Operating Officer and according to the said notification, objects and functions of the Pakistan Cricket Board were to make appointment of managers, coaches and other officials of the national teams. It is further contended that as per Para 36 of the said notification, the Patron was provided with the powers to order supersession of the management of PCB and appoint ad hoc committee consisting of a Chairman and as many members as he may consider appropriate for performance of the functions of PCB while under Para 37, an ad hoc committee appointed under the rules could perform all the function of an ad hoc committee in accordance with the provision of the rules and in view of the same, restructuring was not to be carried out by M/s. Ferguson Associates as they had no authority to undertake the restructuring of the PCB, as such, the impugned order dated 16.4.2007, which has been issued on the recommendations of M/s. Ferguson Associates, illegal, ultra vires of the law and of no legal consequence. It is further contended that neither reason has been given for the termination of services of the petitioners nor the post has been abolished. It is further contended that neither show cause notice has been given to the petitioners nor an opportunity of hearing has been afforded to them, therefore, the termination of the petitioners is not only violative of the Service Rules of the respondent-Board but also the well-known established principle of audi alteram partem. It is further contended that if there was any allegation against the petitioners, proper inquiry should have been conducted and the petitioners be afforded a proper opportunity of hearing and thereafter the impugned order should have been passed but neither proper inquiry has been conducted nor proper opportunity of hearing has been given to the petitioners, therefore, mala fides of the respondent Board are apparent while passing the impugned order. It is further contended that the respondent Board had deposited certain amounts in the accounts of the petitioners at the time of the issuance of the impugned order and the said amounts were returned by the petitioners to the respondent Board. It is further contended that 80 employees were terminated and on the very next day, orders of 71 employees were withdrawn, as such, the petitioners are being discriminated and the same has not been controverted by the respondent Board. It is further contended that after the issuance of the impugned order, the respondent Board vide advertisement dated 25.4.2007, advertised for the said post of the petitioners, which completely belies the stance of the respondent Board that the termination has been made on the basis of any restructuring, as such, the prayer does not pertain to the terms and conditions of service rather the same has been challenged on the premises of illegality and against the rules and even the principles enunciated in Section 24-A of the General Clauses Act have not been adhered to while passing the impugned order. It is further contended that in the order dated 24.11.2008, this Court had held that "the petitioners were, appointed on their respective posts on regular basis; the petitioners were appointed by the Chairman, Pakistan Cricket Board; the Pakistan Cricket Board is a statutory body..........the petitioners were not provided an opportunity of hearing by issuing any notice, show cause notice neither an inquiry was conducted, therefore, prima-facie the respondent-Board has violated the minimum requirement of well-known settled principle of audi alteram partem" and in view of the same, the constitutional petitions are maintainable. In support of his contentions, reliance has been placed upon Muhammad Dawood and others Vs. Federation of Pakistan and others (2007 PLC (C.S.) 1046), Sultan Ali and 8 others Vs. Akesp North Office, Gilgit and 6 others (2007 PLC (C.S.) 1085), Asadullah Mangt and others Vs. Pakistan International Airlines Corporation and others (2005 SCMR 445), Arshad Jamal Vs. N.W.F.P. Forest Development Corporation and others (2004 SCMR 468), Independent Newspapers Corporation (Pvt.) Ltd. Vs. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533) and Zain Yar Khan Vs. The Chief Engineer, C.R.B.C. WAPDA D.I. Khan and another (PLJ 1999 SC 1105).

3. On the other hand, learned counsel for the respondent Board, while opposing the contentions of learned counsel for the petitioners, raised an objection as to the maintainability of these writ petitions on the ground that Service Rules of the respondent Board are non-statutory and in the absence of the statutory Rules, relationship between the petitioners and the respondent Board is that of master and servant and the remedy for the petitioners, if aggrieved of the termination, can at the most be a suit for damages and not a relief of reinstatement into service, therefore, both these writ petitions are not maintainable. It is further contended that services of the petitioners were terminated on the recommendation of a well-known Chartered Accountant Firm namely M/s. Fergusan Associates and those recommendations were also approved by the Adhoc Committee of the respondent Board and the Chief Operating Officer simply conveyed the decision taken by the respondent Board, therefore, the services of the petitioners were terminated in accordance with the Employees Service Rules, 2007. It is further contended that the contention of learned counsel for the petitioners that 80 employees were terminated and on the very next day, orders of 71 employees were withdrawn, has no force as all the lower cadre employees have been reinstated on humanitarian grounds keeping in view their extremely poor financial condition. It is further contended that substantial amounts were transferred in the accounts of the petitioners which they accepted without objection, therefore, no illegality or violation of the Rules was committed in terminating the services of the petitioners. It is further contended that the tenure of the petitioners was spoiled with inefficiencies and mismanagement and there was complete failure in developing standard operation procedures and it was due to negligence and failure of the petitioners which resulted in breakdown of flood lights at Gaddafi Stadium during one day international match between Pakistan and West Indies on 10 December, 2006 which caused great embarrassment to the country in general and to PCB in particular, therefore, the services of the petitioners were rightly terminated and in view of the same, these writ petitions be dismissed. In support of his contentions, the learned counsel has relied upon Roziuddin Vs. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Messers Malik and Haq and another Vs. Muhammad Shamsul Islam Chowdhury and two others (PLD 1961 SC 531), S. Atiqad Hussain Naqvi and 5 others Vs. Chief Officer, Karachi and another (1979 CLC 391), Mst. Anisa Rehman Vs. P.I.A.C. and another (1994 SCMR 2232), Muhammad Umar Malik Vs. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453), Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), United Bank Limited and other Vs. Ahsan Akhtar and others (1998 SCMR 68), Pakistan International Airline Corporation and others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676) and Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs. M. Tufail Hashmi (2010 SCMR 1484).

4-A. I have heard learned counsel for the parties and have also gone through the impugned order as well as other material available on the file.

1. The appointments of the petitioners in both these writ petitions were made in the years 1999 and 2000 and at that time, their services were regulated under the Service Rules, 1988 which were later on replaced by the Service Rules 2002 and currently Service Rules 2007 are applicable. It appears from the file that during the tenure of the employment of the petitioners, Services Rules were amended or replaced on numerous occasions and the said amendments and replacements were never challenged by the petitioners. Service Rules, 2002 were replaced by Service Rules 2007 which were duly approved by the Ad-hoc Committee of PCB in its meeting held on April, 10, 2007 which were applicable to all employees with immediate effect. All the employees of the respondent Board including the petitioners were officially informed on the same date about the Services Rules 2007 vide letter dated 13.4.2007 and in view of the same, the services of the petitioners were terminated under the Employees Service Rules, 2007 and according to rule 9.3 of the Service Rules, 2007, the Board has the power to terminate the services of a regular employee. Both the Service Rules, 2002 and Service Rules, 2007 are non-statutory as the Pakistan Cricket Board has the power to make rules regarding appointments and termination of the employees and in the absence of any statutory service rules, relationship between the employer and the employee is that of master and servant and relief of reinstatement in service is not visualized for such relationship nor the same can be granted. Since services of the petitioners were governed by the Service Rules, 2007, therefore, they would be governed by the principle of Master and Servant and in view of the same, the services of the petitioners were rightly terminated by the respondent Board vide order dated 16.4.2007. It is necessary to mention here that if there is a violation of any statutory rule, constitutional petition is competent but if there is any violation of non-statutory rules, remedy is available to sue for damages. In this case, Service Rules, 2007, which were framed by the Board, are considered to be non-statutory, whereunder the services of the petitioners were terminated, therefore, remedy for the petitioners is to sue for damages, as such, both the constitutional petitions are not maintainable. In this respect, reliance is placed upon Roziuddin Vs. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Messers Malik and Haq and another Vs. Muhammad Shamsul Islam Chowdhury and two others (PLD 1961 SC 531), S.Atiqad Hussain Naqvi and 5 others Vs. Chief Officer, Karachi and another (1979 CLC 391), Mst. Anisa Rehman Vs. P.I.A.C. and another (1994 SCMR 2232), Muhammad Umar Malik Vs. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453), Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), United Bank Limited and other Vs. Ahsan Akhtar and others (1998 SCMR 68), Pakistan International Airline Corporation and others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676) and Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs. M. Tufail Hashmi (2010 SCMR 1484). Even otherwise, services of the petitioners were terminated and some amounts were paid to them and they accepted the same without any objection at the relevant time. Learned counsel for the respondent Board has in this regard adverted to W.P. No. 7571 of 2008, which had earlier been dismissed as withdrawn vide order dated 3.12.2008 and in the said writ petition, the respondents had taken an objection that the amounts have been received by the petitioners without any objection and in view of the same, the petitioners in the instant writ petitions tried to overcome their lacunas by-submitting the Pay Orders of the said amounts already paid to the petitioners by filing CM No. 3/08 along with Pay Orders and placing the same on the file of this Court after the filing of these writ petitions as an after thought, as such, the principle of estoppel is fully attracted to the case of the petitioners.

2. In view of the above perspective, this writ petition and W.P. No. 4602 of 2007 are dismissed.

(R.A.) Petitions dismissed.

PLJ 2011 Lahore 376

Present: Mansoor Akbar Kokab, J.

KHALID MAZHAR and 5 others--Petitioners

versus

ZAFAR HUSSAIN--Respondent

C.R. No. 208-D of 1996, heard on 27.4.2010.

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

----O. III R. 4--Qanun-e-Shahadat Order, (10 of 1984), S. 95--Wakalatnama and special power of attorney executed in foreign country--Effectiveness--Held: The only question which renders the effectiveness of both of these documents to no effect at all, is a question of fact that at the time of attestation by notary public, the lady who put her signatures was never identified by any third witness nor from the stamp or the signature of the notary public, it is evident that the said notary public was to identify the executant as the plaintiff--Mere notarizing a document never exempts it from being signed by the attesting witnesses after executant put his/her signatures, because the notary public can never assume the role of subscribing witness--The attesting witnesses are nothing to do with the contents or the subject matter of the document rather they only attest the signing of the document by the maker of the same, while the notary public before the document is subscribed and sworn at attest the embodiments of the document--Petition dismissed. [Pp. 378 & 379] A & B

Mr. Aamir Altaf Khan Alizai, Advocate for Petitioner.

Mian Shamas-ul-Haq Ansari, Advocate for Respondent.

Date of hearing: 27.4.2010.

Judgment

The present revision petition is to assail the judgment of learned Additional District Judge, Multan, dated 04.12.1995, whereby the appeal preferred by the present petitioners was dismissed while confirming the judgment and decree dated 10.11.1990 passed by learned Civil Judge, Multan as he had rejected the plaint of the plaintiffs/present petitioners for suit for specific performance of a contract. Allegedly an agreement to sell having been arrived at between the predecessor in interest of present petitioners and the respondent on 31.12.1978 (admittedly an oral one), was subsequently renewed on 31.12.1983, executed in writing between the present petitioners, as their predecessor in interest had already died and the vendor Mazhar Hussain, the respondent, for the sale of the house, mentioned in the plaint, hereinafter to be called the disputed house, for sale consideration of Rs. 12000/-. Upon the application of the defendant, the learned trial Court vide its order dated 08.10.1990 observed that the then Plaintiff No. 5, present Petitioner No. 5, Mst. Shehnaz Nizami, was not being represented before the Court either by any attorney or by pleader duly appointed as she was residing abroad and no power of attorney was tendered before the Court, therefore, the Court directed that the power of attorney of the Plaintiff No. 5 might have been submitted before the Court within a period of one month, failing which the plaint would have been rejected. Consequentially on 10.11.1990, no power of attorney was tendered before the Court nor any written explanation in that respect i.e., with regard to direction to file the suit on her behalf, which was also asked by previous order of the same Court, was tendered, hence the plaint was deemed defective for having been proceeded upon, therefore the same was rejected.

1. The appeal was preferred against the said order before learned Additional District Judge, who endorsed the judgment and decree awarded by the learned trial Court with explanatory observation that in the suit of specific performance, the transaction as a whole could only be sought and the relief to the extent of one of the plaintiff i.e. Plaintiff No. 5 could not have been set apart as the partial transaction would have defeated the whole of the sought claim with regard to other plaintiffs also.

2. Admittedly initially one pleader (advocate) filed the said suit what bore no signature of any of the parties and the suit was only signed by the Plaintiff No. 1, thereafter upon the application of defendant the order dated 08.01.1990 was passed for tendering of Wakalat Nama, hence on 04.02.1990 the same was submitted but that power of attorney was not signed by then Plaintiff No. 5, Mst. Shehnaz Nizami that's why the above narrated proceedings were made into effect. Leaving apart, for the time being the question of fact and law with regard to power of attorney and Wakalat Nama subsequently filed before the appellate Court, it is observed that the observation made by the learned appellate Court with regard to defeat of whole of the claim sought by the plaintiff in toto was correct as part of the sale consideration was allegedly made by the plaintiffs collectively in lump sum making no difference or distinction pertaining to entitlement of share of any of the plaintiff seParately. In such like cases where the divisibility of transaction of a sale is not evident or patent and the sale consideration is paid in lump sum collectively by all of the plaintiffs then in case one of the plaintiff is non suited or refuses to join in with rest of the plaintiffs, the whole of the suit is liable to be defeated. Reliance in this respect can be placed upon PLD-1958-SC-140.

3. During proceeding uptill now two documents allegedly executed by the Plaintiff No. 5, having been placed on the file need deliberation and legal appreciation for validity for the purpose of present revision petition. The first one, is the Wakalat Nama of one Muhammad Abrar Ansari, Advocate and jointly accepted by Altaf Khan Alizai, Advocate. This Wakalat Nama was sent to Plaintiff/Petitioner No. 5 at America who signed it before Notary Public of Michigan, Wayne County and the said Notary Pubic embossed it s signature and seal thereupon, then the same was remained to the said counsel, who presented it alongwith the envelope before the first appellate Court. The second document is a special power of attorney which was also drafted on a stamped paper duly purchased in Pakistan and so was probably made into writing here at Pakistan and the executant Mst. Shehnaz Nizami appears to have signed the same in the presence of two witnesses, admittedly present at Multan at the time of putting their signatures as a witnesses on a deed. Anyhow this document was also sent to Plaintiff No. 5 at America, who put her signatures on the back of both of the stamped papers in the presence of the Notary Public who also put his signature as well as the stamp worded, "subscribed and sworn before me a Notary Public, in and for the country of Oakland, Michigan, this 15th day of December, 1993."

4. Thereafter the said special power of attorney was posted back to the alleged appointed attorney, Khalid Mazhar, the Plaintiff No. 1. Undoubtedly Section 95 of Qanun-e-Shahadat provides a presumption with regard to authenticity of document which is attested by a Notary Public of a foreign country. But the only question which renders the effectiveness of both of these documents to no effect at all, is a question of fact that at the time of attestation by Notary Public, the lady who put her signatures as Mst. Shehnaz Nizami was never identified by any third witness nor from the stamp or the signature of the Notary Public, it is evident that the said Notary Public was to identify the executant as the Plaintiff No. 5 Mst. Shehnaz Nizami. As per Order III, Rule 4 CPC, no pleader can act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized or under a power of attorney to make such appointment. As the signing of both of the documents i.e. Wakalat Nama and the power of attorney by the Plaintiff No. 5 are never authenticated by any of the two entities i.e. the pleader (advocate), or the Notary Public as the former was not present to identify the lady who signed her Wakalat Nama and the latter was not made sure with regard to identity of the said lady because of absence of subscribing witness of document before him. It is further observed that mere notarizing a document never exempts it from being signed by the attesting witnesses after the executant put his/her signatures, because the Notary Public can never assume the role of subscribing witness. The attesting witnesses are nothing to do with the contents or the subject matter of the document rather they only attest the signing of the document by the maker of the same, while the Notary Public before the document is subscribed and sworn at attests the embodiments of the document.

5. In the wake of above circumstances, as it is now 22nd years after filing of the original suit but no valid power of attorney or the Wakalat Nama has been made available to the Court including this one, hence now even if the Plaintiff No. 5/the Petitioner No. 5 is ready to rectify and ratify the omission to make the irregularity good, the permission cannot be granted inspite of the fact that there would be no question of limitation vis-a-vis filing of the suit or making the defect good, because the long slumber by the Plaintiff No. 5 over her own right defeats the limited scope of revisional Court for grant of relief at the first instance and secondly, the estopple by conduct is patently manifested. The request of the learned counsel for the Plaintiff No. 1 to 4/the petitioners, in terms observed hereinabove is accordingly declined and the revision petition is dismissed.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 379

Present: Maulvi Anwar-ul-Haq, J.

NAZIR AHMAD--Petitioner

versus

MEMBER (JUDICIAL-IV) BOARD OF REVENUE PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 15464 of 2009, decided on 4.8.2009.

Punjab Land Revenue Rules, 1968--

----Rr. 19(2) & 17--Constitution of Pakistan, 1973, Art. 199--Appointment of successor lumberdar--Rule 19(2) of Punjab Land Revenue Rules 1968 was not declared to be repugnant to injunctions of Islam as a whole by Supreme Court--Petitioner was recommended for appointment as lumberdar by Tehsildar--Neither deceased lumberdar nor respondent as sarbrah were ever dismissed and no default at the time the lumberdar file was initiated--Held: Appointment of a lumberdar is not a right--It is an administrative measures Officers appointed under Land Revenue Act, 1967--Interse Revenue Hierarchy, choice of collector is to be respected--Petition was dismissed. [Pp. 380 & 382] A & B

PLD 1999 SC 484 at P. 502, ref.

Muhammad Zaheer Butt, Advocate for Petitioner.

Date of hearing: 4.8.2009.

Order

On the death of Muhammad Ismail Lumberdar of Chak No. 756/G.B Tehsil Kamalia, file for appointment of successor Lumberdar was initiated. Inter alia, the petitioner and Respondent No. 4 were also candidates for the appointment to the said Office. The Tehsildar recommended the name of the petitioner vide his Report dated 06.08.2007. It was forwarded to the District Collector by the D.D.O.R Kamalia, who vide order dated 26.08.2008 appointed Respondent No. 4 as Lumberdar, who is younger son of Muhammad Ismail deceased Lumberdar. The appeal filed by the petitioner was allowed by the E.D.O.R Toba Tek Singh on 21.01.2009 and he was appointed as a Lumberdar. The revision filed by Respondent No. 4 has been allowed by Respondent No. 1 vide order dated 13.07.2009, who has restored the order of D.O.R Toba Tek Singh appointing Respondent No 4 as a Lumberdar.

1. The learned counsel for the petitioner contends that the impugned order is violative of judgment in the case of Maqbool Ahmad Qureshi Vs. The Islamic Republic of Pakistan (P.L.D 1999 S.C. 484). Further contends that the respondent was a defaulter while acting as a Sarbrah of his father. Also states that two other candidates had also filed revision petitions, which are still pending but the revision petition filed by Respondent No. 4 has been decided.

2. I have gone through the several reports and orders passed by the revenue hierarchy. The age of the petitioner is stated to be 42 years while that of Respondent No. 4 is 60 years. The land ownership is almost equal. Both of them own 85 Kanals of land. Both are matriculate. Admittedly, Respondent No. 4 had been acting as Sarbrah of the deceased Lumberdarr. So far as, the said judgment of Maqbool Ahmad Qureshi (supra) is concerned, the relevant rule i.e. Rule 19 (2) of the Punjab Land Revenue Rules. 1968 was not declared to be repugnant to the Injunctions of Islam, as a whole. I may reproduce here the relevant portion of the judgment at Page 502 of the report:--

"The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to be made on merit of a person who is honest, trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship of descent cannot be made basis for claiming preference in the matter of appointment. Thus the provisions contained in sub-rule (2) of Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment successor, though interpreted by the Supreme Court as directory rule designed to select a most fit person from amongst eligibles who is free from any of the disqualifications, is violative of the afore noted principle deducible from Injunctions of Islam. The objection with regard to provision of hereditary claim amongst other factors to be considered in matter of appointment under Rule 17 is without merits as this rule provides the relevant considerations which the collector is to keep in view while making selection of the most suitable persons amongst the candidates. The cause to raise objection in respect of this Rule arose as the officer in the graded hierarchy of the Revenue Administration in their judgments came to accord "hereditary claims", overriding effect, as against other considerations of area, tribe, community etc. If "hereditary claim'" is taken only as one of the relevant considerations, as contemplated in the rules, in favour of a candidate whose other merits are favourable comParable with other contestants, no cause of grievance will arise, rather it will meet the plea of the administration that by appointing a person from amongst the nearest eligible heir of previous Lumberdar continuity in the work and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam."

1. The impugned order, therefore, cannot be said to be violative of said judgment. So far as, the matter of default is concerned, the E.D.O.R noted that the respondent deposited the Government dues during the pendency of the proceedings to strengthen his Lumberdari claim. The said observation is factually incorrect. The E.D.O.R has noted in the earlier part of his order dated 21.01.2009 that the deposit was made by Respondent No. 4 on 28.11.2005. In fact, the proceedings were initiated against the deceased Lumberdar, whose Sarbrah, the respondent was. This is matter of record that the Lumberdari file was initiated on 04.10.2006 after the death of Muhammad Ismail Lumberdar. The fact remains that neither the deceased Lumberdar nor the respondent as Sarbrah were ever dismissed and there was no default at the time the Lumberdari file was initiated. Nothing terns on the last contention as in the revision filed by respondent, the only parties were the petitioner and the said respondent and so is the case with the appeal No. 6-C/2008 filed by the petitioner before E.D.O.R. The case, therefore, could have been decided in the presence of the said concerned parties.

2. The settled legal position is that the appointment of a Lumberdar is not a right. It is An administrative measures and the best judges are the Revenue Officers appointed under the Land Revenue Act, 1967. Interse the Revenue Hierarchy, the choice of the Collector is to be respected. In the circumstances, when the petitioner has no edge over the respondent no ground is made out for exercise of Constitutional jurisdiction. The writ petition is accordingly dismissed in limine.

(Sh.A.S.) Petition dismissed.

PLJ 2011 Lahore 382 [Rawalpindi Bench Rawalpindi]

Present: Mamoon Rashid Sheikh, J.

FARRUKH AHMAD--Petitioner

versus

Dr. FAZAL-UR-REHMAN and others--Respondents

W.P. No. 2101 of 2006, decided on 24.12.2010.

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

----O. IX, R. 2 & O. XLVIII, R. 1--Constitution of Pakistan, 1973, Art. 199--Non-deposit of process fee and talbana form--Suit was dismissed for non-prosecution as for non-deposit of the process fee--Suit was restored--Challenged by way of a civil revision which was also dismissed--Assailed--Validity--Whilst ordering issuance of summons in the name of the petitioner the trial Court at no stage fixed the time period for depositing the process fee--Fixation of time is a mandatory requirement of law--If the process fee in is not deposited penal consequences follow under Order IX, Rule 2 of CPC in that the suit of a party was liable to be dismissed for non-deposit of process fee--Held: Trial Court erred in not fixing a time for deposit of process fee, therefore, could not have been non-suited--Law favours adjudication of cases on merits and technicalities should not be allowed to stand in the way of substantiate justice--Petition was dismissed. [Pp. 384 & 385] A, B, C & D

Mr. Sana Ullah Zahid, Advocate for Petitioner.

Sh. Zameer Hussain, Advocate for Respondent No. 1.

Date of hearing: 2.11.2010.

Order

With the consent of the parties this petition is being treated as a pacca matter and shall be disposed of on the basis of the available record.

1. The brief facts giving rise to this petition are that Respondent No. 1 filed a suit for declaration and cancellation of documents against the petitioner and the proforma Respondents No. 4 to 6 in the Civil Courts at Attock. On 23.09.2003, the learned Civil Judge, Attock dismissed the suit for non-prosecution as also for non-deposit of the process fee. On Respondent No. 1's application the suit was restored. The suit was again dismissed on 18.10.2003 for non-deposit of process fee and "Talbana Form". Respondent No. 1 filed an application for recall of the order dated 18.10.2003 and restoration of the suit. On the said application, the learned Civil Judge, Attock directed that notice be issued to the defendants in the suit i.e. the petitioner and Respondents No. 4 to 6. The petitioner and one Fayyaz Shah entered appearance and contested the application for restoration of the suit. Respondent No. 1's application was accepted and the suit was restored by the learned Civil Judge, Attock, through order dated 02.03.2006. Feeling aggrieved the petitioner challenged the order dated 02.03.2006 by way of a civil revision. The revision petition of the petitioner was, however, dismissed by the learned Addl. District Judge, Attock on 13.07.2006, with the result that the order dated 02.03.2006 of the learned trial Court remained intact.

2. The petitioner has assailed the impugned orders dated 02.03.2006 and 13.07.2006, inter alia, on the grounds that the said orders are against the law and facts of the case; Respondent No. 1 has been negligent in pursuing his case hence he was not entitled to any discretionary relief; the application of Respondent No. 1 for restoration of the suit was time barred; the learned Courts below have ignored the provisions of law as enshrined in Order IX of the C.P.C; there is misreading and non-reading of the material available on the record; the learned Courts below have committed illegality and material irregularity in passing the impugned orders.

3. The learned counsel for the petitioner besides agitating the above grounds has argued that under the provisions of the High Courts Rules and Orders, Volume-V, Chapter 1-E, Paras 2 & 4 applications in which averment of facts is made is to be duly supported by an affidavit. Respondent No. 1 did not support his application for restoration of the suit with any affidavit; as such there was no application in the eye of the law. Further submits that the application was hopelessly time barred as under Article 163 of the Schedule to the Limitation Act, 1908, only 30-days are provided to a party to have its suit restored in case of dismissal in default and/or dismissal for non-deposit of process fee. No application for condonation of delay as envisaged under Section 5 of the Limitation Act, 1908, has been filed. Even otherwise, the application does not conform to the law on the subject no sufficient cause has been shown. The order of the learned trial Court was contingent in its nature. The suit of Respondent No. 1 had been restored subject to payment of costs, Respondent No. 1 to date has not paid the costs as such the order has lapsed hence question of restoring the suit does not arise.

4. The learned counsel for Respondent No. 1 controverts the stance of the learned counsel for the petitioner. Submits that the order of the learned trial Court was void ab initio. It is settled law that if the basic order is illegal then the superstructure built thereon automatically fails to submit that limitation does not run against void orders. Even otherwise no provision of the Limitation Act applies to the case. No vested right has accrued to the petitioner. Contends that since the suit was dismissed in default at the stage where the petitioner was yet to enter appearance hence it was a matter between the Court and Respondent No. 1. The learned trial Court erred in giving notice to the petitioner at the time of restoration of the suit.

5. Contends that the orders whereby the suit of Respondent No. 1 was dismissed was illegal and void also for the reason that the provisions of Order XLVIII, Rule 1 of the C.P.C. were not followed by the learned trial Court whilst ordering issuance of summons to the petitioner. The learned trial Court was required under the law to fix a time limit for deposit of the process fee. In the instant case it was not done. Contends that this is a mandatory provision as in case of failure of deposit of process fee penal consequences are to follow. As the learned trial Court has not followed the mandatory provision hence the order is void. Relies on AIR 1924 Nagpur 298 & AIR 1924 Nagpur 271.

6. The learned counsel for Respondent No. 1 defends the impugned orders on the above premise.

7. I have heard the arguments of the learned counsel for the parties and have also examined the record with their able assistance. One fact is crystal clear that whilst ordering issuance of summons in the name of the petitioner the learned trial Court at no stage fixed the time period for depositing the process fee. The provisions of Order XLVIII, Rule 1 of the C.P.C. envisage that:--

"1. Process to be served at expense of party issuing.--(1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

Costs of service--(2) The Court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued."

I, therefore, agree with the arguments of the learned counsel for the respondents that fixation of time is a mandatory requirement of law. If the process fee is not deposited penal consequences follow under Order IX Rule 2 of the C.P.C., in that the suit of a party is liable to be dismissed for non-deposit of process fee. The learned counsel for the respondents has relied on the judgments reported as "Ayodhyaprasad v. Secretary of State" AIR 1924 Nagpur 298 & "Pandu and another v. Rajeshwar and others" AIR 1924 Nagpur 271, wherein it has been, inter alia, held that an order of a Court adjourning a case without fixing a time for depositing of process fee followed by an order of dismissal for want of prosecution is bad and would be liable to be set aside.

1. By following the above precedents I hold that the learned trial Court erred in not fixing a time for deposit of the process fee, Respondent No. 1, therefore could not have been non-suited. In view thereof the order of the learned trial Court dated 18.03.2003 being illegal and void, no limitation would run in the case. Even otherwise, the law favours adjudication of cases on merits and technicalities should not be allowed to stand in the way of substantial justice.

2. As to the contention of the learned counsel for the petitioner that no affidavit was appended to the application in question suffice it to say that in his reply the petitioner also did not file a counter affidavit.

3. Under the circumstances, I do not find any infirmity in the impugned orders. This petition, therefore, fails and is dismissed accordingly.

4. Before parting with the judgment, it is observed that the suit of the Respondent No. 1 is still pending. The learned trial Court is directed to expeditiously dispose of the same but no later than 30.04.2011. Respondent No. 1 is directed to pay the costs as determined by the learned Courts below before any further proceedings are held before the learned trial Court.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 386 [Multan Bench Multan]

Present: Tariq Javaid, J.

YOUSAF HAROON etc.--Petitioners

versus

I.G. PUNJAB etc.--Respondents

W.P. No. 9050 of 2010, decided on 16.9.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Judgment of superior Courts--Seniority list was not formulated according to the judgment passed by Punjab Public Service Commission--Entitlement of promotion as their case was at par with the case of persons whose appeals were confirmed by Supreme Court--Once a judgment has been upheld by Supreme Court than undoubtedly it should be treated as judgment of Supreme Court and authorities were under constitutional obligations to implement the same--Any attempt to wriggle out of the judgment by making crafty invasion and in roads therein has serious consequences, therefore, it was in the interest of justice as well as in all propriety that judgment of superior Courts must not be taken lightly and must be implemented in letter and spirit--Petitions were allowed. [P. 388] B

Civil Servant--

----Seniority list--Judgment of superior Court--Distinction between the persons who assailed an order and who had not assailed--Effect of--Validity--No distinction can be made between the persons who assailed an order and were given a judgment in their favour and between the persons who had not assailed the same but were equally effected by same order--Rational of the judgment was that since the order was declared illegal, therefore, it was nullity and did not operate against any other employees who might be effected by the same. [P. 387] A

1996 SCMR 1185, fol.

Mian Tanveer Iqbal Arian, Advocate for Petitioners.

Mr. Javaid Saeed Pirzada, AAG for Respondents.

Date of hearing: 16.9.2010.

Order

This order shall dispose of Writ Petition No. 8949 of 2010, Writ Petition No. 9050 of 2010 and Writ Petition No. 7674 of 2010.

1. The petitioners were inducted into police service as Inspectors of Police through the Punjab Public Service Commission w.e.f. 29.6.1998. The grievance of the petitioners is that the seniority list prepared by the respondents has not been formulated according to the judgment passed by the Punjab Public Service Tribunal, Lahore in Appeals No. 239/06, 917/06. 1961 to 1967, 1969, 1970, 3113, 2115, 2116 and 1980 of 2005, titled "Raza Safdar Kazmi and others vs. Shahzada Saleem and others". According to the petitioners they are entitled to promotion as their case is at par with the case of persons whose appeals were decided by the learned Punjab Services Tribunal and the judgment was confirmed by the Hon'ble Supreme Court in Civil Appeals No. 2017 to 2031 of 2007 titled "Shahzada Saleem and others vs. Raza Safdar Kazmi and others". It is further maintained that in case of "Hameed Akhtar Niazi vs. Secretary Establishment" (1996 SCMR 1185), it has been established that no distinction can be made between the persons who assail an order and are given a judgment in their favour and between the persons who have not assailed the same but were equally effected by the same order. The rational of above judgment was that since the order is declared illegal, therefore, it is nullity and does not operate against any other employees who may be effected by the same.

2. The learned Law Officer has vehemently opposed this petition and maintained that the impugned seniority list was formulated in accordance with the directions approved by the Hon'ble Supreme Court which were passed in the above said case by the Hon'ble Tribunal. However, he has not been able to show that the same was strictly in accordance with the rules as the list suffers from serious infirmities and it includes the persons who were junior to the petitioners and they are shown as seniors from them. In Raza Safdar Kazmi's case the Hon'ble Tribunal laid down the following criteria for promotion:--

3. "It will grant personal hearing to appellants (directly, recruited Police Inspectors) whose original dates of appointment as Police Inspector were likely to be rendered meaningless in consequence of issuance of impugned seniority lists and will record reasons including any specific judgment of the Tribunal in favour of the respondents if the authority thought that ante-dation of promotions was justified.

4. Grant of ante-dated confirmation to respondents as Inspector etc. shall not be considered to have automatically conferred right of promotion upon any of the private respondents unless his case for promotion from back date was considered on merits and an opportunity was also given to those likely to be affected in seniority, to place their case before the said authority in each such case.

5. None of the private respondent shall be considered to have been promoted as DSP on regular basis and they shall not be allowed seniority as DSP unless they had completed atleast seven years working as police Inspectors in terms of notification dated 19.12.2001 and thereafter when they had completed seven years experience, they will get seniority as such from the date of regular promotion.

6. Private respondents who had been allowed promotion as DSP without resolving the dispute of seniority shall be considered to be working as such in their won pay scale (liable to reversion) and their regular promotion shall be subject to settlement of dispute of seniority viz-a-viz appellants in the first instance."

7. The said criteria was fully approved by the Hon'ble Supreme Court in "Shahzada Saleem and others vs. Raza Safdar Kazmi and others"; therefore, no departure can be made from the dictum laid down by the Hon'ble Tribunal. It goes without saying that once a judgment has been upheld by the Hon'ble Supreme Court then undoubtedly it should be treated as judgment of the Supreme Court and authorities are under Constitutional obligations to implement the same. Any attempt to wriggle out of the judgment by making crafty invasion and in roads therein has serious consequences, therefore, it is in the interest of justice as well as in all propriety that the judgment of the superior Courts must not be taken lightly and must be implemented in letter and spirit.

8. With the above observations these petitions are allowed and the respondents are directed to formulate the seniority list strictly in accordance with the criteria laid down by the superior Courts. However, no order for cost is being passed.

(R.A.) Petition allowed.

PLJ 2011 Lahore 388 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

MUHAMMAD NASRULLAH and 2 others--Petitioners

versus

MUHAMMAD NAWAZ SHAH--Respondent

C.R. No. 155 of 2010, decided on 13.5.2010.

Punjab Pre-emption Act, 1991--

----S. 24(1)--Civil Procedure Code, (V of 1908), S. 115--Suit for possession through pre-emption--Dismissed by trial Court under Section 24(1) of the Punjab Pre-emption Act, 1991 for not depositing in the Court 1/3rd of the sale price (Zar-e-Soem) within 30 days of the filing of the suit--On appeal, ADJ accepted the appeal and remanded the case to trial Court--Held: Zar-e-Soem could be deposited after 30 days from 3.9.05 the date when the suit was registered as period for 30 days was to be calculated from the said date and not from 12.8.05 when the suit was submitted before the duty Judge as it was not numbered on that date rather it was numbered on 3.9.05--Revision dismissed. [P. 391] A

Ch. Ghulam Muhammad, Advocate for Petitioners.

Mr. Anwar Ali Chaudhry, Advocate for Respondent.

Date of hearing: 12.4.2010.

Order

Through the instant civil revision petition under Section 115, CPC, petitioners Muhammad Nasrullah and 2 others, call in question the judgment dated 21.12.2009, passed by the learned Additional District Judge, Sahiwal, whereby he remanded the case to the learned Civil Judge by accepting the appeal filed by respondent Muhammad Nawaz Shah against the order dated 30.6.2009 of the learned Civil Judge, Sahiwal, whereby he had dismissed the suit of the respondent for possession through pre-emption.

1. Brief facts of the case are that one Mst. Amina Bibi, who was owner of 7-Kanals and 6 Marlas of agricultural land in Chak No. 55/4/R, Tehsil and District Sahiwal, sold away the same to the petitioners for a consideration of Rs. 2,70,000 vide Mutation No. 830 dated 30.06.2005; respondent Muhammad Nawaz Shah exercising his right of pre-emption filed a suit for possession of the said land through pre-emption under Section 13 of the Punjab Pre-emption Act, 1991 against the present petitioners in the Court of Civil Judge, Sahiwal on 12.08.2005. The petitioners on receipt of summons appeared before the trial Court and filed a joint written statement on 18.03.2009. Under Section 24(1) of the Punjab Pre-emption Act, 1991 the plaintiff was bound to deposit in the Court 1/3rd of the sale price (Zar-e-Soem) within 30 days of the filing of the suit and if he fails to deposit the same within 30 days his suit was to be dismissed by the Civil Court. The first proviso to said Section 24(1) of the Act stipulates that period of 30 days shall not be extended at any cost.

2. On 02.12.2008, an objection was raised on behalf of the defendants-petitioners before the learned Civil Judge that 1/3rd of the sale price of the land had not been deposited by the plaintiff and this failure on his part was fatal for the suit of pre-emption which should be dismissed in accordance with the provisions of Section 24(2) of the Act ibid. The case was adjourned on many dates. However, the learned trial Court came to the conclusion that the respondent-plaintiff failed to deposit the 1/3rd sale price within 30 days of the filing of the suit. It was further held by the trial Court that the plaintiff-respondent filed the suit on 12.08.2005 and the Court passed an order on 03.09.2005 requiring the plaintiff to deposit 1/3rd of the sale price amounting to Rs. 90,000/- within 30 days. The plaintiff/respondent in compliance of the said order dated 3.9.2005 deposited 1/3rd of the sale price on 23.09.2005. However, keeping in view all the circumstances, the learned trial Court vide order dated 30.06.2009 dismissed the suit of the plaintiff-respondent and this order of dismissal of the suit was assailed in appeal before the learned District Judge on 22.07.2009 and the learned Additional District Judge, who was entrusted the matter, accepted the appeal of the respondent on 21.12.2009, hence this civil revision.

3. Learned counsel for the petitioners contends that the trial Court rightly dismissed the suit of the respondent/plaintiff filed on 12.08.2005 as the learned trial Court had ordered the plaintiff to deposit 1/3rd of the sale price till 3.09.2005 and according to the provisions of Section 24(2) of the Punjab Pre-emption Act last date of deposit sale price was 11.9.2005 as in the said provision 30 days limitation was prescribed. However, the plaintiff had deposited the same on 11.9.2005 which was delayed by 17 days. Further contended that a certified copy of the decree sheet was not filed along with appeal before the District Judge so the appeal was not competent as it is the decree which is always assailed and not the judgment. The learned counsel for the petitioners has placed reliance on the cases reported as Ghulam Muhammad vs. United States Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCMR 907), Abdul Majeed and 6 others vs. Mst. Haleema and 18 others (1987 CLC 2331-Lahore), Imam Gul vs. Mst. Begum Ji (1980 CLC 530 (SC-AJ & K), Faquir Muhammad and 48 others vs. Province of Punjab through Collector/Deputy Commissioner and 4 others (PLD 1993 Lahore 439).

4. On the other hand, the learned counsel for the respondent-plaintiff supported the judgment of the learned Additional District Judge dated 21.12.2009 by contending that the learned trial Court was competent to extend time for deposit of Zar-e-Soem. Placed reliance on the cases reported as Malik Hadayat Ullah and 2 others vs. Murad Ali Khan (1972 SC 69) and Ghulam Hassan vs. Jamshaid Ali and others (2001 SCMR 1001). Further contended that in case of rejection of the plaint, it is not necessary to file certified copy of the decree along with the memo. of appeal as the learned trial Court had rejected the plaint and not drawn the decree so the decree sheet was not filed along with appeal before the District Judge. Filing of certified copy of the decree sheet along with memo. of appeal is not necessary as held in the case reported as Manzoor Ahmad vs. Syed Mushtaq Ahmad and another (PLD 1990 Lahore 390), relevant portion from the said judgment is reproduced hereunder:

"As for certified copy of the decree, the case of Zahid Bashir, relied upon by the learned counsel for the respondent, is very clear on the point that in case of rejection of plaint, it is not necessary to file certified copy of the decree along with the memorandum of appeal directed against such rejection. This view is based on Feroz Shah v. Kalu Ram and another (AIR 1936 Peshawar 155) referred to in the case of Zahid Bashir. Since no authority to the contrary has been relied upon by learned counsel for the petitioner, I, with respect, follow the view taken in the cases of Zahid Bashir and Feroz Shah and hold that the respondent was not obliged to file certified copy of decree along with the memorandum of appeal."

1. I have heard the learned counsel for the parties and perused the record. The learned Additional District Judge in his judgment dated 21.12.2009 has given cogent reasons that deposit of Zar-e-Soem was within time. In this respect the learned appellate Court observed that:

"The observation of the learned trial Court that the time for deposit of 1/3rd sale price will be reckoned from the filing of the suit but on the day when the file was submitted before the learned duty Judge on 12.5.2005 the file was not numbered and not admitted for regular hearing because these were days of summer vacations and on 12.8.2005 order about the temporary injunction was passed by the learned Duty Judge. The case was thus presented before the learned Court to whom it was marked on 3.9.2005 by the learned duty Judge and that was registered treating it fresh suit filed by the appellant and on the said date, the learned trial Court ordered to deposit Rs.90,000/- 1/3rd sale price which was deposited on 28.9.2005 well within time allowed by the Court."

No doubt the suit was filed on 12.08.2005 but the first time the trial Court on 03.09.2005 required the plaintiff to deposit the 1/3rd amount of sale price. From this date period of thirty days will not expire on 11.9.2005. The deposit on 28.9.2005 by the plaintiff-respondent was well within time allowed by the Court. The Zar-e-Soem could be deposited after 30 days from 03.09.2005 the date the suit was registered as period for 30 days was to be calculated from the said date and not from 12.08.2005 when the file of the suit was submitted before the learned Duty Judge as it was not numbered on that date rather it was numbered on 3.09.2005. Therefore the finding of the learned trial Court in this regard is not tenable.

1. For the reasons discussed above, the civil revision petition is dismissed, the judgment and decree of the learned Additional District Judge is upheld and the parties are directed to appear before the learned trial Court on 07.06.2010, as ordered by the learned Additional District Judge in his judgment dated 21.12.2009.

(M.S.A.) Revision dismissed.

PLJ 2011 Lahore 392

Present: Syed Mansoor Ali Shah, J.

Dr. GHAZANFFARULLAH, MEDICAL SUPERINTENDENT, TEHSIL HEAD QUARTER HSOPITAL, BHALWAL and 2 others--Petitioners

versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 6 others--Respondents

W.P. No. 18551 of 2009, decided on 12.10.2009.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Punjab Service Tribunal Act, 1973, S. 4--Civil servants--Aggrieved of the transfer order--Malafide, political considerations--Jurisdiction of High Court--Bar contained in Art. 212 of the Constitution--Held: Art. 199 is "subject to the Constitution" while Art. 212 being a non-obstante article prevails over Art. 199 of Constitution--Art. 212 Constitution clearly states that "No Court shall grant an injunction, in respect of any matter to which the jurisdiction of such Administrative Court of tribunal extends"--Therefore, High Court has no jurisdiction to entertain a matter that stands barred under Art. 212 of the Constitution. [P. 394] A

Punjab Service Tribunal Act, 1974 (IX of 1974)--

----S. 4(i)(a)--Filing of the representation before a departmental authority is itself initiation of the remedy u/S. 4(1)(a) of the Service Tribunal Act, 1974--Pendency of the representation for a maximum period of 90 days is a part of the procedure/remedy prescribed for a civil servant which then culminates into right to file an appeal--Pendency of representation before departmental authority cannot be taken to mean that civil servants had been left remedies. [P. 394] B

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Constitutional jurisdiction cannot be put to use to frustrate statutory remedial process--Once High Court has no jurisdiction under Art. 212, the same cannot be conferred on it just because after filing the representation u/S. 4 of Punjab Service Tribunal Act, 1973--Petitioner had been rendered "remediless" it is not the question of alternate remedy but of bar of jurisdiction--In fact Art. 199 cannot be set in a motion due to the jurisdictional bar, therefore, the question of alternate remedy or malafide or political consideration or the nature grievance does not even begin to arise. [P. 395] C

Constitution of Pakistan, 1973--

----Art. 212--Jurisdiction--The importance of the jurisdictional bar in Art. 212 is not to be conveniently ignored and, therefore, the distinction between judicial power and jurisdiction is to be kept in right--If there is no jurisdiction, the question of exercise of judicial power does not arise--Petition was dismissed. [P. 395] D

2007 SCMR 54, rel.

Syed Ijaz Qutab, Advocate for Petitioners.

Khawaja Suleman Mahmood, Asstt. A.G. for Respondents.

Date of hearing: 12.10.2009.

Order

C.M. NO. 5 OF 2009

This is an application to place documents on the record.

1. Allowed.

MAIN PETITION

1. Brief facts of the case are that the petitioners are admittedly civil servants and posted as Medical Superintendents and Dispenser at Tehsil Headquarter Hospital Bhalwal District Sargodha.

2. The petitioners are aggrieved of the order dated 19.09.2009 where under they were transferred from DHQ Hospital Bhalwal District Sargodha to report to the Health Department for further orders. It has been alleged by the petitioners that the said transfer order is tainted with mala fide and based on political and extraneous considerations. The question that needs to be determined by this Court before going into the merits of the case is whether in a matter pertaining to TRANSFER of a Civil Servant, this Court has jurisdiction in the light of the bar contained in Article 212 of the Constitution.

3. Counsel for the petitioners vehemently argued that they have no alternate remedy because once they have filed Representation before the competent authority under the Punjab Service Tribunals Act, 1974 they have to wait for 90 days before they can file an appeal Therefore, the petitioners are left "remediless" for 90 days and it is in this period that the writ petition can be maintained.

4. Counsel for the petitioners relied upon the analogy of Section 4(1)(b) of the Punjab Service Tribunals Act, 1974 which states that no appeal shall lie to a Tribunal where there is a question of fitness........ The counsel states that a similar window is available to the petitioners during the period of 90 days of filing the representation till the petitioners are able to prefer an appeal under Section 4(1)(a) of the aforesaid Act, the counsel relied upon re. Muhammad Saleem Asim vs. Secretary Schools Education, Government of Punjab, Lahore and 4 others (2009 PLC (C.S) 44), re. Muhammad Saleh Asim vs. Secretary Schools Education, Govt. of Punab Lahore etc. (NLR 2009 Service 33), re. Dr. Tasnim Tahira Rehman vs. Government of the Punjab etc. (NLR 2009 Service 56) and re. Khalid Mahmood Wattoo vs. Government of Punjab and others, (1998 SCMR 2280) in support of his contentions.

5. The learned Assistant Advocate General argued that the bar in Article 212 of the Constitution is absolute. The only exception being Section 4(1)(b) of the Punjab Service Tribunals Act, 1974 where a question of fitness in matters of appointment and promotion is concerned. The counsel stated that the view of the august Supreme Court of Pakistan is clear on the issue and relied upon re. Peer Muhammad vs. Government of Balochistan through Chief Secretary and others, (2007 SCMR 54).

6. Arguments heard. Article 199 is "Subject to the Constitution", while Article 212 being a non-obstante article prevails over Article 199. Article 212 clearly states that "no Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrate Court of Tribunal extends". Therefore, this Court has no jurisdiction to entertain a matter that stands barred under Article 212 of the Constitution. The arguments of the counsel that he has been left remediless after filing his representation under Section 4 of the Punjab Service Tribunals Act, 1974 is without any force. The filing of the representation before a departmental authority is itself initiation of the remedy under Section 4(1)(a) of the Service Tribunals Act, 1974. The pendency of the representation for a maximum period of 90 days is a part of the procedure/remedy prescribed for a civil servant which then culminates into right to file an appeal. In fact the pendency of the representation before the departmental authority cannot be taken to mean that the petitioners have been left remediless. In fact the petitioners have invoked the remedy and the remedial process has been set in motion. For the sake of arguments even if a writ is issued during this period of 90 days it will make a mockery of the statutory process provided under Section 4(1)(a) rendering the final right to appeal in 90 days totally meaningless. Constitutional jurisdiction cannot be put to use to frustrate statutory remedial process as in the present case. In any case this argument is totally fallacious. Once this Court has no jurisdiction under Article 212, the same can not be conferred on it just because after filing the representation under Section 4 of Punjab Service Tribunals Act, 1974 the petitioner has been rendered "remediless" it is not the question of alternate remedy but of bar of jurisdiction. In fact Article 199 cannot be set in motion due to the jurisdictional bar, therefore the question of alternate remedy or malafide or political consideration or the nature of grievance does not even begin to arise. This distinction between bar of jurisdiction and exercise of judicial power must be clearly understood.

7. I am reminded of the statement of Chief Justice Joha Marshall in Cohen v. Virginia [19 US (16 Wheat) 264]:

"We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."

1. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court (The State v. Zia-ur-Rehman, PLD 1973 S.C. 49). In short, jurisdiction denotes the authority for the Courts to exercise judicial power (Fauji Foundation v. Shamim-ur-Rehman, PLD 1983 S.C. 457). It is important to note that where jurisdiction cease to exist the Court cannot proceed to pronounce judgment (on the merits) and the only function remaining to the Court is that of announcing the fact and dismissing the case. (Judicial Review of Public Action - Justice (R) Fazal Karim quoting Ex Parte Mc Cardle 74 US (7 Wallace) 506).

2. It is often argued before this Court that either the order which pertains to the terms and conditions of a Civil Servant is mala fide, based on political consideration or against policy and prayer is made that a writ be issued setting aside such an order. The importance of the jurisdictional bar in Article 212 is conveniently ignored and therefore, the distinction between judicial power and jurisdiction is not kept in sight. If there is no jurisdiction, the question of exercise of judicial power does not arise.

3. Reference to Section 4(1)(b) of the Act and reference to the window available in the matters of fitness has no co-relationship with Section 4(1)(a) of the Act.

4. In view of the above, I am fortified by the judgment of the august Supreme Court of Pakistan in 2007 SCMR 54. Therefore, the cases cited by the counsel for the petitioner are not relevant. I quote with advantage:

"It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such mattes and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534."

14. In view of the categorical pronouncement of the august Supreme Court of Pakistan and the jurisdictional bar contained in Article 212 of the Constitution, this Court has no jurisdiction to even entertain proceedings that fall within the domain of Punjab Service Tribunals Act, 1974 as per Article 212 of the Constitution.

1. For the said reasons, this petition is dismissed in limine.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 396

Present: Ijaz-ul-Ahsan, J.

RAFIQ SHAHID and another--Petitioners

versus

PAKISTAN CRICKET BOARD through its Chairman, Gaddafi Stadium, Lahore and 2 others--Respondents

W.P. No. 18874 of 2009, heard on 15.2.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Employee of P.C.B,. on contract basis--Termination from service--Challenge to--Question of maintainability--Jurisdiction--High Court had declined to interfere in the cases of similarly placed employees of PCB by relying on the law in the judgments of Supreme Court--Petition was not maintainable. [P. 397] A

PLD 2010 SC 676 & 2010 SCMR 1484, rel.

Mr. Muhammad Aurangzeb Gillani, Advocate for Petitioners.

Miss Saba Latif, Advocate for Respondents.

Date of hearing: 15.2.2011.

Judgment

Petitioner was an employee of the respondent/Board on contract basis, his services were terminated. He challenged such termination before this Court through a Constitutional Petition.

1. At the very outset the learned counsel for the respondents has raised a preliminary objection relating to the maintainability of this petition. He submits that the services of the petitioners were not governed by any statutory rules. Consequently, in the light of a number judgments rendered by the Honourable Supreme Court of Pakistan as well as this Court, this petition is not maintainable. In this regard the learned counsel has placed reliance on PIAC Vs. Tanveer-ur-Rehman and others (PLD 2010 S.C. 676), Executive Council Allama Iqbal Open University Islamabad Vs. M.Tufail Hashmi (2010 SCMR 1484); Chairman State Life Insurance Corporation etc. Vs. Hamayuon Irfan etc (2010 SCMR 1495). The learned counsel has also placed on record copy of an order passed by the Honourable Supreme Court of Pakistan in C.P. No. 1258-L/2006 in the case of Zahid Bashir Vs. PCB etc, where a similar matter involving the respondent/Board was disposed of by the Honourable Supreme Court of Pakistan on the question of jurisdiction. The learned counsel has also placed on record orders passed on 6.10.2010 in W.P. No. 4481/2007 and order dated 8.11.2010 passed in W.P. No. 17825/2008, in which this Court has declined to interfere in the cases of similarly placed employees of the respondent/Board by relying on the law laid down in the aforesaid judgments of the Honourable Supreme Court of Pakistan.

2. The learned counsel for the petitioner has not been able to distinguish the aforesaid judgments. Consequently, this petition is not maintainable. It is accordingly dismissed with no order as to costs.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 398

Present: Ch. Shahid Saeed, J.

MOOSA and another--Petitioners

versus

GHULAM YASEEN & another--Respondents

C.R. No. 971-D of 1994, heard on 18.6.2010.

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

----S. 115--Suit for declaration challenging the gift mutation as illegal, void, against law and for correction of revenue record--Trial Court decreed the suit with cost--Preferred appeal--Appeal was accepted--Civil revision--Appreciation of evidence--Judgment at varience--Held: All the PWs produced by the plaintiffs had fully supported the version of the plaintiffs--Defendant/respondent failed to shatter the evidence of the plaintiffs--It was admitted that defendant wass his father in law and he was not present at the time of transaction and he did not know anything regarding the transaction/execution of sale-deed--Defendant/respondent himself did not appear and had failed to rebut the version of the plaintiffs since the execution of the sale deed--Impugned judgment and decree passed by the appellate Court was not based on cogent reasons--Revision allowed. [P. 401] A

Mian Muhammad Bashir, Advocate for Petitioners.

Malik Muhammad Hanif Ghaffari, Advocate for Respondent No. 1.

Hafiz Muhammad Asghar, Advocate for Respondent No. 2.

Date of hearing: 18.6.2010.

Judgment

Through this civil revision the petitioners have challenged the judgment and decree dated 09.05.1994 passed by the learned Addl: District Judge, Bahawalpur by way of which appeal filed by the respondent/defendant Ghulam Yaseen was accepted and suit for declaration filed by the present petitioners was dismissed.

1. Brief facts of the case are that Mst. Rabia alias Raiban daughter of Ghulam Qadir was owner of agricultural land measuring 18-Kanals situated in Mouza Budduh Tehsil Ahmadpur East District Bahawalpur. In the year 1978 the plaintiffs purchased 10-Kanals out of the said land measuring 18-Kanals from Mst. Rabia alias Raiban in consideration of Rs.7500/-. The remaining land measuring 08-Kanals was purchased by Mst. Ayesha etc. As the plaintiffs themselves purchased land 10-Kanals from their own pocket but in the registered sale-deed dated 17.04.1978 the name of their father Nizam Din was entered. In fact the plaintiffs were real owners in possession whereas the said Nizam Din was "Be-Namdar". Afterwards taking advantage of the entry regarding name of Nizam Din as `Be-Namdar' in the revenue record, the defendants got mutated 08-Kanals of land in their own names vide gift Mutation No. 1797 dated 06.05.1987. In fact the said Nizam Din was mere "Be-Namdar" regarding the said 10-Kanals of land and he did not have any authority to alienate the said land. Therefore the gift Mutation No. 1797 dated 06.05.1987 is illegal, void, against law and facts and inoperative upon the rights of the plaintiffs. The defendants were asked to get the revenue record corrected in view of the aforesaid facts but they refused to do so. Hence, suit for declaration was filed against them.

2. The Defendant No. 2 submitted her compromise mark A and got recorded statement on 07.11.1989 to the extent of her share in the Gift Mutation No. 1797 dated 06.05.1987 and it was settled between the plaintiffs and Defendant No. 2 that Plaintiff No. 2 Essa would be entitled to the share of Defendant No. 2. While the suit was contested by the Defendant No. 1 alleging therein that Nizam Din was actual owner in possession of suit land and the disputed gift mutation was legal, valid and correct He further alleged that the plaintiffs have no concerned with the suit land. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame five issues including relief. Thereafter both the parties were put to adduce their respective evidence. The petitioners/plaintiffs produced five witnesses including Essa one of the plaintiffs and also produced documentary evidence Ex.P-1 to Ex.P-4. While on behalf of the Respondent/Defendant No. 1 two witnesses were produced and in documentary evidence he produced Ex.D-1 and Ex.D-2.

3. Learned trial Court decreed the suit in favour of the plaintiffs with costs to the extent of 08-Kanals vide judgment and decree dated 08.09.1992. Feeling aggrieved thereby, appeal was preferred by the Defendant No. 1/respondent before the learned appellate Court which was accepted vide judgment and decree dated 09.05.1994 and decree passed by the learned trial Court was set aside. Hence, this civil revision.

4. Learned counsel for the petitioners argued that both the judgments passed by the learned Courts below are at variance. Learned trial Court passed a detailed judgment after going through the record and the whole evidence, while the learned appellate Court erred in law as well as in the facts. He further stated that in the sale-deed dated 17.04.1978 name of Nizam Din was shown as "Be-Nami" when the consideration amount was paid by the petitioners/plaintiffs and the Mutation No. 1797 dated 06.05.1987 was liable to be corrected which was against the rights of the petitioners/plaintiffs. Learned counsel further argued that the learned trial Court has rightly passed the decree in their favour. The decree passed by the learned appellate Court is illegal, void, against law and facts on record, inoperative upon the rights of the plaintiffs. Hence, the same is liable to be set aside.

5. Learned counsel for the Respondent/Defendant No. 1 argued that the judgment and decree passed by the learned appellate Court is based on cogent reasons and the same is outcome of the evidence on record. The instant civil revision is liable to be dismissed.

6. Arguments heard. Record perused.

7. After going through the whole record it reveals that no doubt the sale-deed executed on 17.04.1978 which was challenged by the plaintiffs is Ex.D-2 and the other important document is Ex.D-1 wherein it has been specifically stated that Nizam Din is the donor. Mushtaq Ahmad Clerk of Imtiaz-ul-Haq Advocate appeared as P.W-1 who is the marginal witness of the Ex.P-1 registered sale-deed. In his statement he stated that he signed the document Ex.P-1 and also identified before the Sub-Registrar. He further stated that total land was 18-Kanals out of which 06-Kanals was given to Mst. Ayesha, 02-Kanals to Khuda Bakhsh and rest of the land 10-Kanals was purchased by Essa and Moosa. The payment was made by the plaintiffs and name of their father Nizam Din was written in Ex.P-1 but their father was not present at that time. He also stated that the other P.W Qadir Bakhsh also signed the document in his presence and Mst. Rabia alias Raiban thumb marked on Ex.P-1.

Mst. Rabia alias Raiban appeared as P.W-2. She categorically stated that the land was sold to the plaintiffs and the consideration amount was paid to her by the plaintiffs. Ex.P-1 was executed and signed by her and she also thumb marked thereon. She further stated that the possession was given to Essa and Moosa plaintiffs but only for the respect the name of their father Nizam Din was written on Ex.P-1.

Qadir Bakhsh the marginal witness appeared as P.W-3 who also stated that he knows both the parties. P.W-2 sold the land to the plaintiffs and amount was given to her by the plaintiffs. He stated that consideration amount was paid in the office of stamp vendor who wrote Ex.P-1, however, he admitted that his niece was wife of Essa plaintiff but she was divorced.

Noor Muhammad appeared as P.W-4 who stated that the plaintiffs are in possession of land in dispute.

Essa one of the plaintiffs appeared as P.W-5 who supported the version of the plaintiffs and stated that the consideration amount was paid to Mst. Rabia alias Raiban by the plaintiffs, however, the sale-deed was executed in favour of their father Nizam Din only for his respect. The possession of suit property was also handed over by Mst. Rabia alias Raiban.

1. In rebuttal Ghulam Hussain appeared as D.W-1 who stated that the land was purchased by Nizam Din from Mst. Raiba and paid consideration amount to her at the time of execution of sale-deed and no objection was raised throughout in the life of Nizam Din father of the plaintiffs. In cross-examination he stated that the defendant is his son in law, however, he failed to explain that who wrote the registered sale-deed and who were the marginal witnesses. He also admitted that he did not appear before the Sub-Registrar. He failed to give any substantial statement in rebuttal of the plaintiffs.

Khuda Bakhsh appeared as D.W-2 who also supported the document Ex.P-1 which prepared in favour of Nizam Din. He stated that the possession was given to the plaintiffs since the sale-deed was made. He admitted in his cross-examination that the land in dispute is being cultivated by the plaintiffs since its purchase.

1. Learned trial Court discussed the whole evidence and decided Issue Nos. 1 and 2 in favour of the plaintiffs. Ultimately suit of the plaintiffs was decreed. Learned appellate Court vide its judgment dated 09.05.1994 decided Issue Nos. 1 and 2 against the plaintiffs and held that the plaintiffs failed to produce confidence inspiring evidence, that Nizam Din was `Be-Nami' owner of the suit land.

2. In the light of what has been discussed above, this Court comes to the conclusion that all the P.Ws produced by the plaintiffs have fully supported the version of the plaintiffs. The defendant/respondent failed to shatter the evidence of the plaintiffs. D.W-2 Khuda Bakhsh admitted that defendant is his father-in-law and he was not present at the time of transaction and he did not know anything regarding the transaction/execution of sale-deed Ex.P-1. The defendant/respondent himself did not appear and D.W-1 and D.W-2 failed to rebut the version of the plaintiffs even they have admitted that possession of land in dispute is with the plaintiffs since the execution of sale-deed. The impugned judgment and decree dated 09.05.1894 passed by the learned appellate Court is not based on cogent reasons. Thus, I allow the instant civil revision by setting aside the impugned judgment and decree dated 09.05.1994. The suit of the petitioners/plaintiffs for declaration is decreed. Parties are left to bear their own costs.

(M.S.A.) Revision allowed.

PLJ 2011 Lahore 402

Present: Ijaz Ahmad Chaudhry, J.

MUHAMMAD ANWAR and 8 others--Petitioners

versus

STATION HOUSE OFFICER, P.S. ATA-SHAHEED, DISTRICT SARGODHA and another--Respondents

W.P. No. 23286 of 2009, decided on 15.12.2009.

Constitution of Pakistan, 1973--

----Art. 199--Quashing of FIR--Only allegation against the petitioners was that they were standing while armed with lethal weapons for the purpose of committing dacoity--There was no touchstone with the police or the Court to read the mind of an accused that he had committed the offence--Intention of an accused for the commission of an offence was only ascertainable from the acts which the accused performed before the commission of the offence--Law does not make the person having such intention guilty of an offence unless he takes some positive steps towards the commission of the crime because there is a possibility of change of mind at subsequent stage--Even if the impugned FIR in such circumstances is allowed to be proceeded with there is hardly any chances of conviction of the petitioners and at the end it will be a mere abuse of process of law and sheer wastage of precious time of the Court--FIR was quashed. [P. 403] A & B

Mian Muhammad Ismail Thaheem, Advocate for Petitioners.

Mr. Imtiaz Ahmad Kaifi, Additional Advocate-General for Respondents.

Date of hearing: 15.12.2009.

Order

Through, the present constitutional petition, Muhammad Anwar etc., petitioners seek, quashing of FIR. No. 245/2009 dated 4.8.2009, registered under Sections 399/402 PPC at Police Station Ata Shaheed District Sargodha.

1. Briefly the facts of the case are that the aforesaid case was registered by the respondents against the petitioners with the allegations that they while being armed with different weapons were standing, at Pull Chak No. 112/ Janubi for committing dacoity and on seeing the police raiding party they tried to flee away but they were overpowered.

2. Learned counsel for the petitioner contends that the petitioners are law abiding respectable citizens of the country and the family of petitioners has a great respect in the vicinity but the local police on the instigation of adversaries of the petitioners' family who are unhappy over respect of family of the petitioners is bent upon to ruin prestige of petitioners and their entire family; that on 3.8.2009 at 8.00 p.m. when Petitioner No. 7 was present alongwith his other family members including, other petitioners in his house Respondent No. 1 alongwith 15/16 police officials while armed with lethal weapons forcibly entered the house of Petitioner No. 7 after breaking, the doors and started beating the inmates of the house. They also maltreated and humiliated the petitioners and while going they took alongwith them motor car bearing registration No SGP-1313 XLI Toyota Corolla and 10/11 mobile phones and cash amount and also detained the petitioners in the Police Station. Facing the above situation, one Muhammad Yousaf a relative of the petitioners approached the learned Justice of Peace for the recovery of petitioners from the illegal and unjustified custody of respondents wherein a bailiff was deputed by the learned Additional Sessions Judge and before reaching of the bailiff at the Police Station all the petitioners were involved in different criminal cases and that due to the aforesaid reasons the impugned FIR was registered against the petitioners which is totally false and fabricated. It is further contended by the learned counsel for the petitioner that even if the challan in the impugned FIR is submitted before the Court and the petitioners are tried no incriminating material would be available with the prosecution for conviction of the petitioners and in such, circumstances continuation of the proceedings in the impugned FIR would be a sheer abuse of process of law and wastage of precious time of the Court.

3. Learned Additional Advocate General has vehemently opposed this petition.

4. I have heard the learned counsel for the parties and have also perused the contents of the FIR in which the only allegation against the petitioners is that they were standing while armed with lethal weapons for the purpose of committing dacoity. There is no touch stone with the police or the Court to read the mind of an accused that he was to commit the offence. The intention of an accused for the commission of an offence is only ascertainable from the acts which the accused perform before the commission of the offence. Here in this case it is the allegation against the petitioners that they were standing while armed with weapons.. It is very surprising that how the complainant was able to read the minds of the petitioners that they were to commit dacoity. Law does not make the person having such intention guilty of an offence unless he takes some positive steps towards the commission of the crime because there is a possibility of change of mind at subsequent stage. Even if the impugned FIR in such circumstances is allowed to be proceeded with there is hardly any chances of conviction of the petitioners and at the end it will be a mere abuse of process of law and sheer wastage of precious time of the Court.

5. In the above circumstances, I do not find any probability or chance of conviction of the petitioners. Accordingly, I accept this petition and quash the impugned FIR No. 245/2009 dated 4.82009, registered under Sections 399/402 PPC at Police Station Ata Shaheed District Sargodha.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 404

Present: Jamila Jahanoor Aslam, J.

MUHAMMAD ALI--Petitioner

versus

JUDGE FAMILY COURT, DEPALPUR and 2 others--Respondents

W.P. No. 14799 of 2009, decided on 23.7.2009.

Constitution of Pakistan, 1973--

----Art. 199--Suit was dismissed on technicality--Amendment of plaint--Suit for maintenance was dismissed for plaintiff, being a major, she had filed the suit through her mother as her next best friend--Validity--Technicality could have been fixed by directing him to file an amended plaint by deleting her mother's name--Thus, the suit was held to have been wrongly dismissed. [P. 405] A

Res Judicata--

----Principle of res-judicata--Applicability on maintenance suits--In matter of maintenance the principle of res-judicata was not applicable--The only time off-spring cannot claim maintenance was, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her--In case of divorce the father again puts on the matter of a guardian and is bound to provide for her. [P. 405] B

Marriage--

----Essential conditions--Free will--It was directed by Islam that both parties to a marriage should be amenable to trying the marital knot--A girl could not be compelled into a marriage against her will. [P. 406] C

Maintenance--

----Period of maintenance--Qanoon-e-Shahadat Order--Applicability--Powers of Family Court--Proceedings under the Muslim Family Court Act, 1964 were not bound by the provisions of the Qanoon-e-Shahadat--Family Court could allow all evidence, to arrive at a just conclusion. [P. 406] D

Ch. Tanvir Ahmad Hanjra, Advocate for Petitioner.

Date of hearing: 23.7.2009.

Order

This W.P. No. 14799/2009 has been filed impugning judgments/decrees dated 20.03.2008 and 17.06.2009. The latter of the two is a consolidated judgment which also pertain to matters between the Petitioner and his ex-spouse. However, the matter agitated before me pertains to the quantum and period of maintenance allowed in favour of Respondent No. 3 who is the Petitioner's daughter. The petitioner is aggrieved that maintenance granted in favour of Respondent No. 3 is excessive and the period, too long.

1. The counsel for the petitioner contends that Respondent No. 3's first suit for recovery of maintenance was dismissed on merits therefore the principle of res judicata is applicable.

2. It is further contended that maintenance cannot be granted for six years to Respondent No. 3, who is his daughter. It is also asserted that he was paying maintenance for her till she attained the age of majority and that now being a major she is not entitled to any further maintenance from him. Apart from this ground another one has been agitated and that is that Respondent No. 3 is not accepting a marriage proposal suggested by him, thus she disentitles herself to any maintenance. The last contention is that the evidence produced by Respondent No. 3 was not relied upon and produced later and that the Trial Court has erred in allowing it.

3. Arguments heard. Record perused.

4. The contention of the petitioner that Respondent No. 3's previous suit was dismissed on merits is incorrect because the suit was dismissed on a technicality, which was that being a major she had filed the suit through her mother as her next best friend. This technicality could have been fixed by directing Respondent No. 3 to file an amended plaint by deleting her mother's name. In my opinion it was wrongly dismissed.

5. The other contention that the principle of res judicata is applicable is again wrong as in matters of maintenance for progeny the principle of res judicata is not applicable. The only time off-spring cannot claim maintenance is, in the case of a boy, on attaining the age of majority and for a girl on getting married because after her marriage her husband becomes her guardian and is bound to provide for her. In case of divorce the father again puts on the mantle of a guardian and is bound to provide for her.

6. As far as the contention of the petitioner, that Respondent No. 3 has attained the age of majority thus is not entitled to maintenance is concerned, I do not find it tenable. A father is bound to provide for his daughters till they get married.

7. Where the petitioner contends that Respondent No. 3 is not entitled to maintenance because she has refused the marriage proposal suggested by him, I am not inclined to agree at all. The petitioner has neglected Respondent No. 3 all these years. She has been reared and nurtured by her mother, the petitioner cannot now waltz into her life and impose his will on her. In any case it is directed by Islam that both parties to a marriage should be amenable to tying the marital knot. A girl cannot be compelled into a marriage against her will.

8. Where the period of maintenance is concerned, the Courts below observed, the petitioner has failed to prove that he had been paying maintenance. The mother of Respondent No. 3 has been tending to all her needs without any financial assistance. The Courts below, I feel have decided the period of maintenance after assessing all the facts in the right perspective.

9. The last contention of the petitioner that the Trial Court erred in allowing Respondent No. 3 to produce evidence not relied upon in her list of reliance is not tenable at all. Proceedings under the Family Courts Act, 1964 are not bound by the provisions of the Qanun-e-Shahadat Family Court can allow all evidence, to arrive at a just conclusion.

10. I find all the contentions raised by the petitioner not tenable. Moreover both the Courts below are in consonance that Respondent No. 3 is entitled to recover maintenance from her father, the Petitioner, the only difference is in the quantum of maintenance granted. I feel that in these days of double digit inflation the Appellate Court has lightly enhanced the maintenance to Rs.5000/- per month as opposed to Rs.1500/- per month granted by the Trial Court, which is a pittance. Finally, I am not inclined to interfere in the facts as ascertained by the Courts below.

The writ petition is devoid of merits. It is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 407 (DB)

Present: M. Bilal Khan & Zubda-tul-Hussain, JJ.

Sheikh ALI JAFFAR, EX-CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE, KASUR--Appellant

versus

REGISTRAR LAHORE HIGH COURT, LAHORE--Respondent

Service Appeal No. 12 of 2006, heard on 10.10.2008.

Issue of fact--

----Issue of fact arise only when the material proposition of fact is affirmed by one party and denied by the other but where the allegation of fact is made by one party and that allegation is either admitted or is not denied by the no issue as to that effect would arise and on the principle of what is admitted need not be proved, no proof of that fact would be needed applying this principle to the fact of the instant case. [P. 413] A

Principles of Natural Justice--

----Principles of natural justice imply various rights such as the right of being heard, right of a show-cause notice before imposition of a penalty, the right of explaining ones position on the matter agitated against it. [P. 413] B

Punjab Civil Servants Act, 1974--

----S. 10--Appointment as civil judge on probation period--Termination from service--No specific reason was given except the "Public interest" Non serving of show-cause notice--Effect--Termination of the appellant was not terminated simplicter during the probation but for all intents and purposes it was a dismissal or removal from service for the misconduct allegedly committed by him--He was entitled to a show-cause notice and could be proceeded against through inquiry on questions of fact before he could be stigmatized with the termination of service which in reality was an ouster by dismissal--Impugned order was, therefore, not sustainable in law--Appellant was reinstated into service. [P. 414] C & D

Syed Ijaz Qutab, Advocate assisted by Mr. M. S. Safdar Shaheen, Advocate for Appellant.

Mr. Farooq Zaman Qureshi, Advocate for Respondent.

Date of hearing: 10.10.2008.

Judgment

Justice Zubda-tul-Hussain, Member.--Pursuant to his qualifying the competitive examination held for the selection/ appointment of Civil Judges, the appellant-Sheikh Jafar Ali was appointed as Civil Judge, vide Lahore High Court, Lahore Notification No. 178/R.HC/P.30, dated 4th October, 2002. It was stipulated that he would remain on probation under Rule 8 of the Punjab Judicial Service Rules, 1994 but would have no right of confirmation after expiry of probation period till permanent vacancy became available and he was not otherwise ineligible for confirmation as well. By virtue of the terms and conditions, the appointment of the officer was purely temporary and his services were liable to be terminated at any time of one month notice or on payment on one month salary in lieu of notice, without assigning any reason irrespective of the fact whether he was holding a post other than the one to which he was originally recruited.

1. The officer served as such at Sheikhupura and on the creation of the new District of Nankana Sahib he stood designated as Civil Judge Nankana Sahib. He was still on probation when his services were terminated under Section 10 of the Punjab Civil Servants Act, 1974, vide Lahore High Court Lahore's Notification No. 65/RHC/CJJ dated 17.3.2006. The operative part of the Notification reads as under:

"The Chief Justice and Judges are pleased to terminate the services of Sheikh Jaffar Ali Civil Judge-cum Magistrate, Nankana Sahib, under Section 10 of the Punjab Civil Servants Act, 1974, in the public interest, with immediate effect."

1. As is obvious from the above, no specific reason, as such, was mentioned for the termination of the services of the officer except the "public interest". Apparently this was of course in line with what was envisaged under the terms and conditions laid down in the letter of appointment.

2. But that may not be the whole truth. It is alleged by the appellant, and it is clear from the admitted facts and available record, that the real cause for the termination of the service had its inception in the performance of duties by the appellant as Returning Officer during the elections to Local Council held in the year 2005.

3. During the Local Councils Elections 2005, through a formal Notification, the appellant was also assigned the duties of and appointed by the Election Commission of Pakistan as Returning Officer for the Union Councils No. 12 to 21 of Tehsil Shah Kot District Nankana Sahib. The Poll was held and the result was declared on 27.8.2005, which was duly incorporated in the relevant Form No. XIII, XIV and XV. The result was accordingly conveyed to the concerned quarters by virtue of which one Asghar Ali Asghar was declared Returned candidate for the office of Nazim, Union Council No. 19.

4. It, however, so happened that one Maqbool Ahmad Javed submitted an application before the appellant as Returning Officer, for rectification of the result alleging that the result declared on 27.8.2005 which ought to have been based on the result given by Presiding Officer in Form XIII was not properly tabulated and the candidate declared "Returned" was not in fact entitled to be declared so.

5. On receiving this application, the appellant-Returning Officer, as claimed by him, scrutinized the original record, compared it with the copy attached with the application of the said Maqbool Ahmad Javed and found that the application was based on true facts. He therefore, issued corrigendum-dated 24.9.2005 and declared the said Maqbool Ahmad Javed as Returning Candidate in place of Asghar Ali Asghar. This Corrigendum was sent to the Secretary Election Commission of Pakistan. According to the appellant, the copy of the corrigendum was submitted to the District Returning Officer / District and Sessions Judge Nankana Sahib, the Provincial Election Commissioner Punjab and the Assistant Election Commissioner, Nankana Sahib.

6. The situation was obviously retaliated by the said Asghar Ali Asghar and he contested it, moved an application to the District Returning Officer impleading all the relevant candidates and prayed for restoration of the status quo-ante.

7. It appears from the record and the pleading of the parties that on the basis of the said application the District Returning Officer sent a report No. A-77/E-I dated 17.10.2005 to the Secretary, Election Commission of Pakistan as well as to the Registrar, Lahore High Court Lahore, wherein besides the other matters he also maintained that copy of the aforesaid disputed corrigendum issued by the appellant was not sent to his office. On the basis of the report of the District Returning Officer, the operation of the corrigendum was withheld by the Election Commission of Pakistan with a direction to administer the Oath of office to Asghar Ali Asghar, the candidate earlier declared successful.

10. The matter did not end up here and certain further proceedings were taken in the matter as well as against the appellant the relevant aspect of which is that as a result of disciplinary action, his services were terminated through the impugned order under Section 10 of the Punjab Civil Servants Act, 1974, though this factor as such was not mentioned in the impugned order.

1. While the learned counsel for the appellant did not dispute the jurisdiction of the competent authority to terminate the services of an incumbent, under Section 10 (ibid), who is on probation, yet his main thrust was that Section 10 ibid in essence did not provide unlimited or uncontrolled discretion to the competent authority to oust an incumbent from the service in all circumstances simply in the name and under the garb of "public interest". He emphasized that the justification or otherwise of the corrigendum of result of election issued by the appellant could be found only through a regular inquiry. Whether the appellant was in fact guilty of misconduct and, if so, whether the same was bona fide or it was mischievous one and this issue of pivotal importance remained untouched and unattended throughout the proceedings against the appellant. According to learned counsel the factum of adverse remarks in the A.C.Rs is also to be seen in the same context but as the same have no direct nexus with the election could not independently be treated sufficient and a valid basis for an action under Section 10 ibid. The learned counsel for the appellant tried to draw a line between the cases of termination under Section 10 of the Act, which were based on mis-conduct involving factual controversy and the simple cases of unsatisfactory performance. He was of the view that where the opinion of the competent authority for the purpose of Section 10 was to be formed on the basis of satisfactory or un-satisfactory performance, the evaluation of the authority was unquestionable and could be a valid exercise of jurisdiction under Section 10 but where serious controversy of fact was involved and its determination was a prerequisite for holding the incumbent guilty of serious allegation, the summary proceedings could not be taken for his ouster from the service. Rather, in such a situation not only a show-cause notice was inevitable but formal inquiry was also necessitated.

2. Relying upon the cases of Riaz Ali Khan Versus Pakistan (PLD 1967 Lahore 491), Muhammad Siddique Javed Chaudhry versus The Government of West Pakistan (PLD 1974 Supreme Court 393). The Secretary Government of the Punjab, through the Secretary Health Department Lahore and others Versus Riaz-ul-Haq (1997 SCMR 1552) Abdul Qayyum Versus D.G. Project Management Organization J.S H.Q Rawalpindi and two others (2003 SCMR 1110), it was maintained by him that even in the case of a probationer if the accused-civil servant was charged with misconduct of the nature which could not be proved without regular inquiry, the removal or dismissal from service of such a civil-servant on the basis of summary inquiry or on the basis of summary assessment of performance, was not sustainable in law. With reference to the case of the appellant, the learned counsel emphatically argued that by admitted facts and by the spirit of the proceedings it was not a simple case of unsatisfactory performance which could be found summarily but it had inception in a serious allegation pertaining to change of result of election involving the controversy of fact necessitating factual inquiry and it could not by any stretch of imagination be resolved without holding a regular inquiry. His service in such a situation could not be terminated straightaway by a simple and plain order under Section 10 of the Civil Servant Act, 1974.

3. The learned counsel for the respondents has also taken us through history of the service of the appellant and the details of the facts which became the reason for his termination from service. These details are also incorporated in the written reply/comments submitted on behalf of the respondents. In the light of it, the learned counsel was of the view that Section 10 of the Civil Servants Act, 1974 was meant, for coping with a situation where a civil servant was not found worthy of continuance in service during the initial probationary period. It may also be mentioned that it is admitted between the parties that by virtue of law applicable to the case of the appellant, the appellant was not confirmed into service on completion of two years period of probation and as such the same stood extended by the operation of law to the period of further two years. As the appellant was admittedly a probationer the learned counsel for the respondents, adopted the argument that by virtue of Section 10 of the Punjab Civil Servant Act, 1974 his services could be terminated without assigning any reason and if the competent authority did it in "public interest", this by itself was a valid reason for his termination.

4. He continued to argue that the order could be passed even without assigning any reason and as such the contention that because of failure to assign reason for termination the impugned order is bad in law, is totally misconceived. The learned counsel added that the termination of service had not put the appellant under the vestige of a stigma because order of termination of service having been passed without assigning any reason, it was simple and harmless in nature and that the contention of the appellant in that behalf was more imaginary than the real. In this behalf the learned counsel referred to the dictum laid down in the case of Muhammad Iqbal Niazi Versus Lahore High Court Lahore through Registrar (2003 PLC (CS) 285, and reiterated that the alleged or apprehended stigma, did not flow from an innocuous order of termination of service. The learned counsel vehemently argued that, firstly, during the period of probation only performance of evaluation of a civil servant was sufficient for the purpose of Section 10 but in the present case there was huge irrebuttable material before the competent authority for formulating its opinion in terms of the satisfactory/ unsatisfactory completion of the probation period and therefore, the order in question was unexceptionable from every angle. In support of his contention the learned counsel also relied upon the judgments of the Honourable Supreme Court in Civil Petitions No. 2100-L, 2101-L. 2102-L and 2103-L of 1998 titled Liaqat Ali Shahid and others Versus Government of the Punjab through Chief Secretary, Punjab, Lahore and Civil Petition No. 1056-L of 1999 titled Muhammad Suleman versus Lahore High Court Lahore and another and Civil Petition No. 173-L of 2001 Chaudhary Muhammad Hussain Naqashbandi Versus Government of the Punjab others.

5. So far as the judgments relied upon by the learned counsel for the respondents are concerned, the ratio and the dictum thereof cannot be disputed but as would be seen later, the fate of the case of the appellant hinges upon the reasons and the factors which the real cause of his ouster from the service. If it was a simple termination in the light of the circumstances as envisaged by Section 10, the proposition adopted by the learned counsel for the respondents and would prevail in the light of the judgments relied upon by him and the appellant would have no case in his favour but if it come out other way round and the expulsion of the appellant is some thing more than the simple "termination", then the proposed action shall have a different complexion and a different context.

6. As already stated, the petitioner was still running the extended period of probation when his services were terminated. The appellant has alleged that the impugned order of termination in its true sense is not based upon performance evaluation needed for the purpose of confirmation or otherwise of the probationer but it has originated from the complaint in an election matter dealt with by him as a Returning Officer according to the appellant the result had not yet been notified after the poll when Maqbool Ahmad Javed brought forwarded some record to show that the tabulation of the result was contrary to the factual position whereupon not only the contention of the said Muhammad Maqbool Javed had been examined but the original record of the election had also been scrutinized which led to irresistible conclusion that tabulation/declaration of the result was patently false. The appellant, therefore, proceeded to rectify the mistake in a bona fide manner and it was not the solitary instance of the nature but he as well as many other officers had carried out various rectifications. This was an allegation and description of the fact which had to be established by some sort of evidence but besides what the appellant relied upon, the contentions raised on behalf of the respondent also seem to have come to his rescue at least to the extent of establishing the fact that there existed serious controversy of fact between the parties.

7. In the written statement the broad and specific details of the circumstances on which the impugned action is based, has been given which also leads to show that the impugned order, was not simple and plane evaluation of the performance of the appellant but in its theme and spirit it was caused by the allegation that the officer had with mala fide intention, or extraneous considerations altered the result of election relying upon the document which other wise could not be sufficient for the purpose. From counter contentions, and with reference to the correspondence and its denial by the authority/officer who according to the appellant, had depicted the wrong side of the situation, it is almost established that the parties were at variance from the very beginning of the issue.

8. It is of course true that a party and for that matter the appellant in this case, is required to prove his own case. Primarily it has stand by its own leg yet it cannot be denied that where a fact is alleged and is either admitted or is not denied the appellant is legally entitled to take its benefit because the fact admitted need not be proved. The Court or a tribunal has to inquire about the facts on which the parties are at issue, not those on which, they are agreed. The reason is very simple that issue of fact arise only when the material proposition of fact is affirmed by one party and denied by the other but where the allegation of fact is made by one party and this allegation is either admitted or is not denied by the no issue as to that effect would arise and on the principle of what is admitted need not be proved, no proof of that fact would be needed applying this principle to the facts of this case one has not to strive hard for arriving at an irresistible conclusion that there existed a serious factual controversy between the parties because when the appellant alleged that his termination proceeded on certain allegations of fact and the same is pleaded by the respondent as a justification for his termination from service, then it is simply obvious that the issue on which or the reason for which the service of the appellant was terminated, it involved determination of the factual controversy which in no case could be liquidated without formal or proper inquiry.

9. Now when it is established that the termination of the service of the appellant during the period of probation was not a simplicitor performance evaluation but was rather for the allegations leveled against him leading to certain un-inquired conclusion, the only thing that remains to be seem where in such as situation the provisions of Section 10 ibid could be plainly invoked straightway for his ouster from the service or a complaint which forms the basis of his ouster needed to be looked into through a process based upon principles of natural justice.

10. The principles of natural justice imply various rights such as the right of being heard, right of a show-cause notice before , imposition of the penalty, the right of explaining ones position on the matter agitated against it etc. In the afore cited judgment namely Riaz Ali Khan Versus Pakistan (PLD 1967 Lahore 491) it has been held in unequivocal terms that even the temporary employees or the probationers are also entitled to show-cause notice it was observed by their Lordships that if the termination of a civil servant was not a termination simplicitor in the sense in which termination, is used as distinguished from the dismissal or removal, but is tantamount to removal or dismissal then it cannot be brought about without the formality of a show-cause notice. It was added that a probationer is as much in service or as much holds a civil post as any other employee, the only difference was that his appointment has not yet got a sure footing from the very beginning. Further added that case of his simple termination of his service the incumbent is not eligible for a show-cause notice but if by its nature it is a dismissal or removal for misconduct, or for unsatisfactory work, then he shall be eligible at least for a show-cause notice.

11. The performance evaluation record in the ACRs which embodies adverse remarks was also an emancipation of the election complaint against the complainant. Every thing started against him with that complaint and the facts constituting the details of it. It also ended in the same context though apparently in the form of termination during the probation period. Thus from the facts and the circumstances alleged by the appellant and endorsed by the respondent (through in its own style) as well as ultimate result lead to the only one conclusion that the termination of the appellant was not termination simplicter during the probation but for all intents and purposes it was a dismissal or removal from service for the misconduct allegedly committed by him as Returning Officer in relation to the result of election of the local council referred to in the above. If that be the case, and it is essentially so, the dictum laid down in the judgment relied upon by the learned counsel for the appellant is on all fours to his case and as such he was entitled to a show-cause notice and could be proceeded against through inquiry on questions of fact before he could be stigmatized with the termination of service which in reality was an ouster by dismissal. The impugned order is, therefore, not sustainable in law. The appeal is allowed and the impugned order of termination is set aside. The appellant is reinstated into service with immediate effect.

12. We are also conscious of the fact that the appellant has already suffered agony of protracted termination and thus, also suffered sufficient punishment for the alleged delinquency but keeping in view the reasons for which the appeal has been allowed namely absence of show-cause notice, we leave it to the discretion of the competent authority to take or not to take fresh proceedings against the appellant but if it takes a decision for proceeding against the appellant the payment of back benefits shall depend upon the conclusion and fate of such proceedings, otherwise he shall be reinstated into service with all back benefits. For the present there shall be no order as to costs.

(M.S.A.) Appeal allowed.

PLJ 2011 Lahore 415 [Multan Bench Multan]

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD FAISAL KHAN and another--Petitioners

versus

GOVT. OF PUNJAB through Secretary Health Department, Lahore and 2 others--Respondents

W.P. No. 13073 of 2010, heard on 14.12.2010.

Constitution of Pakistan, 1973--

----Art. 199--Contitutional petition--Petitioners were employeed on daily wages and were not regularized despite having rendered services of more than 2 years as contract employee renewed from time to time--Appointment on others posts under a political pressure without fulfilling the legal requirements--Entitled for regularization of their service--Reasons for non-regularization of petitioners--Trying to accommodate the member of parliament who had no authority or right to recruit any person being legislature--Question of recruitment of staff in a hospital which was dire need of hospital but officials i.e. EDO was consulting the recruitment of the employees with all MPAs in Distt. What was the need for consulting with MPAs who were not expert in the subject and had no authority to appoint any person on Govt. job--Validity--No denial of the fact that petitioners were daily wages employees of Hospital, no complaint against them--They were working for the last more than two years--Held: Recruitment was not the job of legislator nor legislator had any expertise which might be fruitful for well being of the institution--Petitioners were being discriminated, departments were trying to recruit fresh employees in place of petitioners with consultation of legislators against the law and fundamental rights of petitioner--Respondents were directed to issue appointment letters to petitioners within one month. [Pp. 419 & 421] B, C & E

Constitution of Pakistan, 1973--

----Arts. 2-A, 4 & 25--Appointments were on daily wages--Posts for recruitment for class IV in hospital--Entitlement for regularization of their service--Violation of fundamental rights of petitioners chalked out a policy for employment on daily wages--Validity--Petitioners were performing their duties like other permanent employees--Respondents had regularized the services of number of contract employee but the petitioners had been denied of their legitimate right of permanent employment, as such the action of respondent was violative against their guaranteed right under Arts. 2-A, 4 & 25 of Constitution. [P. 418] A

Civil Servant--

----Contract of service of civil servant--Validity--Contract of service of civil servant with Govt. is contract which has been entered into between the parties knowingly and with free consent. [P. 420] D

Mr. Fakhar Raza Malana and Rana Muhammad Nazir Khan Saeed, Advocate for Petitioners.

A.A.G. and Dr. Fazal-ur-Rehman, Advocate for Respondents.

Date of hearing: 14.12.2010.

Judgment

Through this single judgment I propose to dispose of writ petitions No. 13073/2010, WP.No. 12499/2010, WP.No. 12545/2010, W.P.No. 12500/2010, W.P.No. 12460/2010, W.P.No. 12496/2010, W.P.No. 12498/2010, W.P.No. 12494/2010, W.P.No. 12192/2010, W.P.No. 12493/2010, W.P.No. 12497/2010, W.P.No. 12495/2010, W.P.No. 13334/2010 and W.P. No. 12463/2010 as common question of law and fact is involved in all the above writ petitions.

1. The petitioners are daily wages employee of Clause-IV in Ch. Pervaiz Elahi Institute of Cardiology, (CPEIC) Multan, the Respondent No. 2. They are performing their duties for more than 2 years and the respondents are extending their contract of service from time to time after every 89 days and lastly vide order dated 06.11.2010 they were directed to work in CPEIC at contingent basis. There is no complaint against them and they are performing their duties according to the entire satisfaction of their employer. On 09.4.2009 Respondent No. 2 advertised different posts for recruitment for class-IV in the hospital and the petitioners were directed to apply fresh for their respective posts. The respondents appointed on all other posts under a political pressure without fulfilling the legal requirement but on hue and cry of petitioners they refrain from appointing the persons of their choice on the petitioners posts. The petitioners claims that they are entitled for regularization of their service as they are working on their respective posts from the last two years without any break and prayed that respondents be directed to confirm the petitioners on their respective posts.

2. Notices were issued to respondents. The respondents submitted their report and parawise comments, in their parawise comments Respondent No. 2 in reply to para No. 2 of petition submitted as under:--

"Para No. 2 is not correct.

The orders for regularization of service were issued to those who were already working on contract basis according to the Govt. of the Punjab Policy. As the petitioner is working on daily wages so he is not entitled for regularization of his service as per Govt. of the Punjab policy."

1. With the consent of learned counsel for the parties these petitions are decided as "Pacca Case" as both the parties have submitted their documents.

2. Learned counsel for the petitioners submits that appointment of petitioners like other employees was made against permanent post as is evident from the fact that respondents have advertised the said posts through the impugned advertisement. He submits that respondents have wrongly and illegally in violation of fundamental rights of petitioners chalked out a policy for employment of petitioners on daily wages on a fix salary, with short breaks in service after every 89 days they are issuing fresh letters of appointment. He referred Letter No. 23244/Admin/CPEIC, Multan issued by Medical Superintendent Ch. Pervaiz Elahi Institute of Cardiology Multan dated 22.11.2010 which is a proposal and in Para No. 15 of the said proposal it is mentioned as under:--

"It is important to mention that the services of these personals who are working on daily wages are the dire need of this sensitive cardiac Institute."

Submits that petitioners are entitled to be regularized. He has relied on Ikram Bari and others V. National Bank of Pakistan through president and others (2005 PLC (C.S) 915), and Pakistan Telecommunication Company Limited through General Manager and other V. Muhammad Zahid and 29 others. (2010 S.C.M.R 253).

1. Learned A.A.G opposed the petitions and submits that the respondents have every right to employ the persons of their own choice. The daily wager are temporary staff and at the time of offering employment to them it was made clear that their services will be on daily wages. The petitioners were never inducted in service of Govt. of Punjab and they were agreed to be paid as fixed salary which includes all allowances etc. Further submits that petitioners were not hired against permanent posts. The petitioners were hired from time to time for specified period and each time the appointment was essentially on a temporary basis and there is no continuity in the petitioner's service. He adds that mere fact that temporary/daily wages appointees continue for several years, does not mean that those would automatically be considered to be permanent or they have acquired any right to become a permanent employee. Reliance is placed on Federation of Pakistan and another V. Hashim Shah Qureshi (1987 SCMR 156), Government of Pakistan through Establishment Division, Islamabad and 7 others (PLD 2003 S.C 110) and Managing Director, SUI Southern Gas Company Ltd., Karachi V. Ghulam Abbas and others (PLD 2003 SC 724).

2. Heard. Record perused.

3. The precise proposition of law as canvassed by learned counsel for the petitioner is that petitioners were employed on daily wages and are not regularized despite having rendered services of more than 2 years as contract employee renewed from time to time. The petitioners are performing their duties like other permanent employees in the same grade. The respondents have regularized the service of number of contract employee but the petitioners have been denied of their legitimate right of permanent employment, as such the action of respondents is violative against their guaranteed rights Under Article 2.A, 4 & 25 of the Constitution of Islamic Republic of Pakistan. The respondents while filing the report and parawise comments have raised the objection that the petitioners are working on daily wages, hence their services could not be regularized. It is an admitted fact that petitioners are performing their duties on daily wages. Respondent No. 2 vide letter No. 23244 dated 22.11.2010 requested the Secretary, Govt. of the Punjab, Health Department, Lahore for regularization of the contingent paid staff/daily wages. According to said letter 176 posts are for Grade 1-5, 84 posts are for Grade 6-16, 62 posts are for Grade 17 & 18 and as such total 322 posts are available. In this proposal it has been mentioned as under:-

"13. As no recruitment has been made since June 2009, therefore, 149 posts of BPS 1 to 4 could not recruited. Moreover, Govt. of the Punjab has already imposed ban on the recruitment of Naib Qasid and Malis, though these were essentially required for the smooth functioning of the Hospital.

1. Due to all these constrains 180+57=237 personals of BPS 1 to 16 have been engaged as daily wages worker for proper and smooth functioning of the new established departments. Out of total 237 personals of 1-16, 180 personals of BPS 1-4 are hired on daily wages.

2. It is important to mention that the services of these personals who are working on daily wages are the dire need of this sensitive cardiac Institute.

3. This Cardiac Institute needs the services of these personals who have now become proficient and experienced in their respective fields for the smooth functioning of the hospital and in the larger interest of the critically ill cardiac patients whose number is progressively increasing.

4. It is, therefore, requested that the 180 posts of grade 1-4 of these persons may kindly be sanctioned and their services may kindly be got regularized from the competent authority.

5. It is further added that 57 employees working on daily wages are of grade 6 to 16. The fate of these employees working on daily wages may be decided by the Department.

Sd/ Medical Superintendent, Ch. Pervaiz Elahi Institute of Cardiology, Multan.

The said proposal is pending disposal with Secretary Health. The argument of learned counsel for the petitioner is that respondents are not regularizing the petitioners inspite of the fact that their services are the dire need of hospital which is a hospital of special nature providing medical facility to the Cardiac patients in Multan. Reasons for non regularization of petitioners as argued by learned counsel for the petitioners is that respondents are trying to accommodate the member of parliament who have no authority or right to recruit any person being the legislature. Their job is of legislation only and no more. He has pointed out a letter available at page 69 of the petition, written by Executive District Officer (F & P), Multan to all the MPAs in Multan District, all the E.D.Os, the District Officer (Colleges), Multan, The Medical Superintendent, Nishtar Hospital, Multan, the Medical Superintendent, Cardiology Center, Multan, the Town Municipal Officer, TMA, Shujabad and the Town Municipal Officer, TMA, Jalalpur Pirwala. The subject of this letter is consultative meeting regarding recruitment against vacant posts. This letter shows that the allegation of learned counsel for the petitioner has some force. It is a question of recruitment of staff in a hospital which is the dire need of hospital but the respondents/officials i.e EDO is consulting the recruitment of the employees with all MPAs in Multan District, what is the need for consulting with the MPAs who are not expert in the subject and have no authority to appoint any person on Govt. job. Letter dated 22.11.2010 is pending disposal with Secretary Government, Health Department, Lahore and no action has been taken so far. Learned counsel has stressed that in case political pressure was allowed to be prevailed upon the entire system for recruitment will be destroyed. There is no denial of the fact that petitioners are daily wages employee of respondents, there is no complaint against them. The respondents are renewing their daily wages contract after every 89 days. They are working for the last more than two years.

1. The matter of temporary employees of National Bank of Pakistan came before Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court of Pakistan held as under:--

"An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have aces to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the statute. A policy of pick and choose was adopted by the Bank in the matter of absorption regularization of the employees. By Article 2-A of the Constitution which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earning of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the dimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work. "

This is the judgment of Hon'ble Supreme Court of Pakistan which is complete answer of the argument of learned Assistant Advocate General. The Respondent No. 1 is duty bound to treat the petitioner equally and without any reservation. The recruitment is not the job of legislator nor the legislator has any expertise which may be fruitful for the well-being of the institution.

1. A dispute contract of service of civil servant came before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and it was argued that contract of service of civil servant with the Govt. is contract which has been entered into between the parties knowingly and with free consent and it was held as under:--

"It was argued that the impugned provisions of law amounts to a contract between the Government and the civil servant and this involves his consent. Infact it is not the nature of free consent between free agents. On the one hand state power is projected in the form of the statute and on the other, the civil servant has no choice of a bargain on these provisions when joining the service. He can not get it changed."

Hence, the argument of learned AAG that petitioners have accepted the contract of service is not tenable. The petitioners are poor citizens of Pakistan and the time of accepting the contract they were not in a position to negotiate the terms of service with the respondent.

1. It is an admitted fact on record that 176 posts of Grade 1-4 are available which are the dire need of the hospital which is providing a very sensitive medical facilities of heart patients. The petitioners are working with Respondent No. 2 on daily wages, the respondents are extending their contract after every 89 days. This type of policy has been held by the Hon'ble Supreme Court of Pakistan as fraud to statute.

12. The dispute of temporary employee and daily wages employee was came to consideration before Hon'ble Supreme Court of Pakistan in case Pakistan Telecommunication Company Limited through General Manager and other V. Muhammad Zahid and 29 others (2010 SCMR 253) and the Hon'ble Supreme Court of Pakistan has held as under:--

"Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4 and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc., described in Paragraph No. 2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para No. 16 (Supra)."

1. In the circumstances of the case in hand it is proved beyond any shadow of doubt that petitioners are being discriminated, the respondents are trying to recruit fresh employees in place of petitioners with the consultation of legislators against the law and fundamental rights of petitioners. The petitioners are performing their duties as per satisfaction of their employer, hence they have acquired the right to be confirmed on their posts.

2. The upshot of the above discussion is that respondents are directed to regularize the petitioners in service with effect from their initial appointment. The respondents are directed to issue appointment letters to petitioners within one month from today. However they will not be entitled for payment of difference of any arrears in their salary for the date of their initial appointment till the issuance of letter of appointment under the agreement. All the petitions are allowed with no order as to costs.

(R.A.) Petitions allowed.

PLJ 2011 Lahore 422

Present: Kh. Farooq Saeed, J.

AVARI HOTELS LTD. through Controller Avari Lahore Hotel--Petitioner

versus

DEPARTMENT OF EXCISE AND TAXATION, GOVERNMENT OF PUNJAB through its Secretary, Lahore and 5 others--Respondents

W.P. No. 11094 of 2003, decided on 29.4.2009.

Interpretation of Statutes--

----Where a particular word is not interpreted by a statute the ordinary dictionary meanings are applicable, is the widely applied principle of interpretation--The Courts while interpreting the provision of a statutes are required to remain within the intention of law makers and remaining with the literal meanings is the golden principle in this regard. [P. 428] A & B

Constitution of Pakistan, 1973--

----Arts. 148 & 149--To ensure the due compliance of the enforcement of Federal laws--Item which is neither mentioned in the Federal legislative list nor in concurrent, the same is in the exclusive domain of provincial parliament the property tax is the item--Constitution has provided full authority to all the provinces to charge the same and to make laws and rules for the said charge and recovery--Provisions of Arts. 148 and 149 have no bearing on its un-bridled right of charging the property tax. [Pp. 431 & 432] C, D & E

M/s. Aitzaz Ahsan & Faisal Hassan Naqvi, Advocates for Petitioners.

Ch. Rizwan Mushtaq, AAG, Rana Amir Ahmad Khan, AAG, Mr. M. Nawaz Waseer, Standing Counsel, Mr. Akram Ashraf Gondal, Director Excise, Lahore Region-A, Syed Riaz Hussain, Incharge Legal Cell, Excise Deptt. Lahore for Respondents.

Date of hearing: 10.4.2009.

Judgment

This judgment will dispose of Writ Petition No. 11094/2003 and Writ Petition No. 14349/2003 as the common questions of law are involved in both the writ petitions.

1. The Writ Petition No. 11094/2003 has been filed by the petitioner challenging the order dated 18.6.2001 decided by the Excise and Taxation Officer.

2. The petitioner, Avari Hotel Limited, is the owner of Five Star deluxe hotel situated on Shahrah-e-Quaid-e-Azam, Lahore. It has statedly been established to attract foreign and domestic tourism. In addition to the rooms for its clients, other offices and rooms have also been constructed and are given on lease.

3. The facts narrated by the petitioner are that the Government of Pakistan through its Circular No. 1-129/99-INV-IV dated 2.8.1999 through Ministry of Industries and Production declared tourism as an industry with all such facilities / concessions which were and are available to the industries. The said Circular was subsequently followed by the Board of Investment through its policy publicized and enforced in the following manner--

. Tourism shall continue to be treated as an industry, contributing more aggressively towards socio-economic growth.

. A paradigm shift from promoting seasonal tourism to year rounds tourism.

. A qualitative improvement/development in environment, human resources, tourist services and the tourist product.

. Federal and Provincial Governments to bring all legislation in consonance with demands of the tourist industry.

. Stimulate private sector involvement in tourism through provision of industry support constructs.

. ------------------------

. On the recommendations of the Ministry of Tourism, land for hotels, motels, recreation parks, fun lands, athletic clubs, cultural centers etc, to be provided on non-commercial rates and on long lease basis by the development authorities at the Federal and Provincial levels.

1. Various other Federal Ministries including Central (Federal) Board of Revenue has declared tourism project as "Priority Industry" through SRO No. 439(I)/2001 dated 18.6.2001. The petitioner later has been brought under charge under The Urban Immovable Property Tax Act, 1958, on the basis of the annual value' of the relevant properties within its scope. The charge has been created on the holding of the property, but, however, for the purpose of ascertainment of theannual value' of the property in terms of Property Tax Act vide Notification No. SO-Tax-E-T-3-38/99/PI dated 13.10.2001, issued a schedule of the properties. This schedule has been divided into different categories for calculation of Property Tax. These categories include general residential properties, general commercial properties as well as a residual category termed as "Other than General Residential and Commercial properties".

2. Still further the residential category has been sub-divided into a number of different categories. The industrial unit of a particular industry is charged to industrial rates while the hotels are taxed under a separate hotel formula. As per the said formula not only total area of land occupied by the hotel is taken into account but also the average rental cost of each room of the hotel is added.

3. The petitioner has received certain notices from the Property Tax department which were challenged before the competent authority, however, being aggrieved and dis-satisfied from the respond, a writ petition was filed before this Court on 26.5.2003 which was registered as W.P. No. 6931/2003. The said writ petition was disposed of on 1.7.2003 with the directions to the Excise and Taxation Officer to decide the case of the petitioner and to restrain from recovering the tax imposed for the period of 30 days.

4. The said E.T.O. vide his order dated 14.7.2003 concluded that:--

(a) hotels and tourism are not synonymous;

(b) that the levy of property tax is in the interest of the province of the Punjab;

(c) that even if hotels are considered as an industry, the petitioner has not been discriminated against through the adoption of a specific method of assessment; and

(d) that the scheme and methods of the assessment as notified by the Government of Sindh through Notification No. SO (TAXES) E&T/3/310/97/Pt-II are different from those adopted by the Punjab Government and hence any relief made available by the Sindh High Court to hotels in that province would not be applicable to hotels in the Punjab."

1. It is now these observations which are challenged by the petitioner on the basis of inter alia following arguments:--

(i) That the Federal Government through its various organs/limbs have declared tourism to be as an industry and hotel to be as a necessary ingredient of the same, hence, the same are industrial unit for all practical purposes;

(ii) That the Ministry of Tourism has provided land for hotels, motels, recreation parks, fun lands, athletic clubs, cultural center etc, on non-commercial rates and on long lease basis;

(iii) That the tourism is a now universal phenomena and every hotel is an industry. Furthermore, tourism is universally known as tourist industry;

(iv) That the provinces by virtue of the provision of Article 149 of the Constitution of the Islamic Republic of Pakistan are bound to make their policies in harmony with the directions of the Federal Government.

1. In support of the above claim, learned counsel has relied upon the various Circulars and policy decision of the Federal Government already mentioned earlier. The arguments remained that it is now universally recognized that for the growth of economy in a country tourism plays a vital role. It is for the said reason that now each and every state of world is making such arrangements in their countries to cater for accelerated investment in which the role of the hotel industry cannot be ruled out.

2. In all forms of tourism, the hotel industry is a necessary and rather primary requirement. Thus, if the Federal Government comes out with a policy and declares it as an industry with all the benefits attached to the same, the provincial legislation if does not come at par with the same, would amount to disregard of the said policy direction and damaging for the reputation of the country.

3. Even otherwise, it does not create a good impression to the foreign investors. Once a foreign investor is made to believe that the establishment of hotel in Pakistan is entitled to all the benefits of a hotel industry as are in the certain other countries of the world, later creating a charge on them by surprise through provincial legislation by calling it as a commercial organization does not give a pleasant picture of the policies of the country.

4. Learned counsel is fair in his arguments. It is commented that he being aware of the judgments of this Court as well as of the Hon'ble Supreme Court of Pakistan in terms of (2006 SCMR 1738) re: "Messrs Tures Hotel, Islamabad and others Vs. Capital Development Authority and others" would not take much time. However, he insisted that Article 149 being in the nature of a binding requirement should not have been ignored by the Punjab Government. By re-emphasizing on the language of the said Article 149 it was repeated that the Provincial Government is bound by the language thereof, and since presently there is an apparent contradictions between the policies and the language of the law in respect of Property Tax, he would like to register his arguments that disregard of the Federal policies and consequent laws should not be permitted by the Courts.

5. Mr. Rizwan Mushtaq, Addl. A.G. started his case by reading the relevant provisions. He after exhaustive discussion of Sections 3, 3-A, 5 & 5-A commented that there is no separate charge in respect of industry, commercial or residential units. The law has provided for only two classifications (i) residential units (ii) commercial unit. It is while determining the Annual Letting Value' that the commercial units have been further classified. There is a separate method for calculation of the Property Tax in respect of factory, a shop, plaza or other multi story building. Hence, it is only the method for determination of theAnnual Letting Value' which is separate in respect of various commercial properties, but all of them as per Property Tax remained commercial properties. There is nothing in law like industrial unit as a classified unit but there is definitely separate method for each unit namely hotel, shop, multi story building, plaza etc.

6. Learned A.A.G. remarked that for all practical purposes the present method adopted by the Property Tax department for calculation of the hotel tax is more in favour of the petitioner than his claim that he should be treated as an industrial unit equal to factory. The formula which he has placed before this Court speaks of a vacancy allowance of 90% and additional rebate of 2 % (Approx) in respect of open area like lifts etc. and the other statutory rebate.

7. It was remarked that he has already mentioned the formula in his comments at Para-15. However, the treatment in respect of the shops and offices being a full-fledged commercial unit is equal to shops/plazas etc. On the whole, he repeated that the Article 149 has not been disregarded. The Government by providing a reasonable calculation and rebate has tremendously reduced the tax.

8. Learned A.A.G. added that the right of charging the property tax is within the domain of Provincial Government which it has exercised constitutionally and this has already been approved by various Courts of this country including Hon'ble Supreme Court. The main judgment has already been referred by the learned counsel for the petitioner. However, his reliance remains on the judgments reported as (2003 PTD 577) re: "Commissioner of Income Tax, Companies-II, Karachi, Vs. Messrs Muhammad Usman Hajrabai Trust Imperial Courts, Karachi", (2007 CLC 1215) re: "Arabian Sea Enterprises, Ltd. Vs. Government of Sindh through Chief Secretary, Karachi and 3 others", (2006 SCMR 1738) re: "Messrs Tures Hotel, Islamabad and others Vs. Capital Development Authority and others".

9. The judgments referred above are in support of the following arguments :--

(i) That the definition given in a statute is not applicable on the other statute unless adopted through legislature by incorporation or reference therein. "Commissioner of Income Tax, Companies-II, Karachi, Vs. Messrs Muhammad Usman Hajrabai Trust Imperial Courts, Karachi" (supra), (ii) That the direction in terms of policy decision by the Federal Government was only to provide such concession to tourism including hotel etc, but it cannot be said that it also changes the status of the property form commercial to industrial for the purposes of assessment of the property tax. "Arabian Sea Enterprises Ltd. Vs. Government of Sindh through Chief Secretary, Karachi and 3 others" (supra).

(iii) The orders or notification of Federal Government under other laws declaring business of hotel as industry would not effect the factory, building or use of the plot as defined under the Regulation 3 of Islamabad Land Disposal Regulation" Messrs Tures Hotel, Islamabad and others Vs. Capital Development Authority and others" (supra).

1. An accumulative reading of all the three judgments as above gives the impression that the directions given by the Federal Government as a policy decision or assigning one nomenclature to a particular asset by one law would not necessarily bind the other to treat the same with the same status and meaning while dealing with the other statute. Each statute is introduced with a specific and particular purpose. It is framed to apply for the purpose and reasons of its introduction.

2. The law of interpretation with that regard is very clear and leaves no doubt that an interpretation given in one statute of a particular connotation is not to be used or made applicable for other laws unless it has been so adopted in the said laws.

3. Furthermore, the principle that where a particular word is not interpreted by a statute the ordinary dictionary meanings are applicable, is the widely applied principle of interpretation. The Courts have never considered it save to import the meaning from the other statutes while dealing with some issues under another statute. There is, therefore, obviously no question of treating a hotel to be an industry for the purpose of the determination of property tax for the reason that the same has been so treated by the Federal Government through its circular referred above.

4. A particular formula approved by the legislature takes the shape of a mandatory charge. It cannot be awarded a different treatment then what the law has proposed for it. In this regard one gets further support from the famous and the most adopted principle of interpretation of remaining within the literal meanings of a statute. The Courts while interpreting the provision of a statute are required to remain within the intention of law makers and remaining within the literal meanings is the golden principle in this regard. In support of above reliance can be placed on (2005 P.L.C (CS) 216) re: "Mst. Farah Zahra Vs. Board of Governors of the Area Study Centre for Africa and North and South America, Quaid-i-Azam University Islamabad through Chairman Vice-Chancellor and another" and (1996 P.T.D 1138) re: "Commissioner of Income Tax, Zone-8, Lahore Vs. Muhammad Shahbaz Khan".

5. This leaves the Court to the other argument of the learned counsel Mr. Aitzaz Ahsan that Article 149 of the Constitution of the Islamic Republic of Pakistan binds the provinces to follow the executive authority of the federation.

6. This Court would readily agree with the respondent's comments that the Articles 148/149 of the Constitution applies on the laws which are in Federal list and in the concurrent list as a domain of the Federation. However, the property tax is a provincial law and not in conflict with Federal law. There cannot be any doubt about the vision that the legislation especially when it deals with the foreign investors should be attractive and rather luring and provincial as well as local laws should also be harmonious to the Federal laws. However, since the issue before this Court is application of the provisions of The Urban Immovable Property Act, 1958, the principle that the law should be applied in its literal meanings is applicable with full force. This is where the famous verse by Mr. J. Rowilet in "Cape Brandy Syndicate Vs. Inland Revenue Commissioner" (1921 K.B 69), needs reference. He ruled:

"It simply means that in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."

The hotel declared as industry by the Federal Government if is not being given the said treatment under the property tax law obviously it is the provisions of the said Act which shall prevail.

1. Regarding force of the policy under Federal directions, the two judgments referred above in terms of (2007 CLC 1215) re: "Arabian Sea Enterprises Ltd. Vs. Government of Sindh through Chief Secretary, Karachi and 3 others" as well as (2006 SCMR 1738) re: "Messrs Tures Hotel, Islamabad and others Vs. Capital Development Authority and others" have infact clinched the issue. The findings therein are very clear and un-equivocal. The relevant para where from shall be reproduced in the subsequent part.

2. At this stage, this Court would only like to add that it is not mandatory for the provincial legislature to declare the hotel as an industry in all its legislation in pursuance to the policy decision of the Federal Government. However, if within its jurisdiction certain special privileges and exemptions/rebates are allowed, this would also amount to an appropriate compliance. For example, the treatment given to hotel in respect of its residential rooms is exceptional with special reference to the rebates provided for the calculation. However, something more is required to be done in this field.

3. The very fact that the rate is to be adopted on the minimum room rent with 90% vacancy allowance conveys the intention of the provincial legislature of giving it a different treatment than the industry itself. However, there are still certain assets like shops owned by hotel where Government of Punjab may need to review its policy regarding determination of Annual Letting Value. The reason being that the said shops in many cases are held by tourist operators and for sale of other items connected with tourism.

4. In any case, since tax has been created as a result of the charge under Urban Immovable Property Tax Act, 1958, no exception can be made. This is where reproduction of the relevant para from the judgment of Hon'ble Supreme Court of Pakistan shall be of help:--

"The question with regard to legality of imposition of property tax in Islamabad has already been determined by this Court in case of Mst. Bilquis referred (supra). Several Office Memorandums or notifications being relied upon by the appellants would show that concerned authorities like WAPDA, Ministry of Oil and Gas or the Ministry of Tourism have included the hotel/motels in the term industrial' for the application of relevant laws. On the other hand it is also evident that no statutory enactment has been made in the C.D.A. rules whereby hotels/motels situated in the jurisdiction of C.D.A. have been included in the termindustry', industrial' orinstitution', as such appellants cannot claim such relief. The appellants were allotted commercial plots for the construction of hotels. The orders or notifications issued by Federal Government under other laws declaring business of hotel as industry would not affect the nature of building or use of plot as defined in the Regulation No. 3 of C.D.A. Irrespective of above, an amendment has also been made in Notification No. 24(I)/ 2001, dated 11.1.2001 through Notification No. 783(I)/2003, dated 9.8.2003 whereby non-residential properties outside commercial areas have been included in the heading, `Commercial'. Thus, finding of learned High Court that until no statutory enactment declaring hotel/motels and restaurant located in Islamabad Capital is made by competent authority, appellants cannot as a matter of right claim to be charged at that rate, is quite unexceptionable." (Messrs Tures Hotel (supra).

1. The above judgment practically has clinched the issue. However, further reliance is placed on the judgment reported as (P.L.D 1996 Karachi 267) re: "Farooq Ahmed Siddiqi Vs. The Province of Sindh".

2. The judgment now referred has discussed Articles 148/149 of the Constitution. In its final verdict the Sindh High Court held that the Federal Government can give a direction to the provincial government in respect of laws which are listed in Federal and concurrent list. The prohibition order being a provincial law is not in conflict with the Federal laws. As such, no direction can be given by the Federation to the Province in respect of implementation of law. In the same judgment it has further been held that in any case the circular is a policy decision and policy can be changed by the Government as the circumstances may require.

31. Similarly, the Hon'ble Supreme Court of Pakistan in "Mohtarma Benazir Bhutto Vs. President of Pakistan" (PLD 1998 Supreme Court 388) noted as under:--

"It is thus clear that the above mentioned provisions in the Constitution regulate relationship between the Federation and a Province in a situation in which Federal law is applicable in the Province and a situation has arisen in which it is to be considered as to how the Federal law is to be made applicable so that it should bring about the desired result and be effective so the proper remedial measure are adopted to contain and control the situation in which the Federal Government has to adopt supervisory role and give directions to the Province in which is being applied the Federal law."

1. As already discussed above, the executive authority under Article 149 is to ensure the due compliance of the enforcement of Federal laws and in fact it is not an authority to regulate the provincial laws.

2. In case of "Iftikhar Hussain Shah Vs. Pakistan through Secretary, Ministry of Defence, Rawalpindi" reported as (1991 SCMR 2193), the learned Court has given following findings:--

"Article 149 empowers the Federal Government to give directions to the Provincial Government so as to protect and advance its own executive authority in discharging its responsibilities under the Constitution and the laws, obliging thereby the Provincial Government to comply with such directions."

The Court also observed as under:--

"The Constitutional supremacy and pre-eminence of the Federal Government over the Provincial Government in matters governed by Articles 149, 152 and 173 of the Constitution is not dispute. All the same these provisions of the Constitution have not the effect of creating of their own force locus standi of the Federal Government in proceedings under the Act relating an acquisition of land at the request and for the purposes of the Federal Government. The amplitude of this power does not as canvassed extends to supplanting, substituting or taking over the functioning of the Provincial Government in matters on which power to give directions has been recognized, preserved and where the Provincial Government proceeds to Act on such directions in accordance with and subject to the law of the land. The locus standi of the Federal Government should be looked for not in these Constitutional provisions but in the Provisions of the Act."

1. The upshot of the above discussion is obvious. The need of harmony in the Federal and Provincial laws obviously does not require any debate. It is true that for an attractive business environment tax exemptions and reductions do play a very vital role. It is equally true that the same are not the only factors and obviously the security is a bigger concern than any other consideration, but the role of the favourable tax structure cannot be ignored.

2. For an ideal situation providing facilities to tourist industry at all levels can be supported, but obviously the laws of the land cannot be interpreted in the manner it is argued as the language otherwise does not so permit.

3. Articles 148 and 149 have been placed to keep harmony in the executive authorities of the Federation and provinces and in fact it does provide some upper hand to the former authorities. However, exercise of such authority cannot be extended on laws which are subject matter of the provinces. It is now settled that the item which is neither mentioned in Federal legislative list nor in concurrent, the same is in the exclusive domain of provincial parliament. Reliance is placed on (P.L.D 2009 Karachi 69) re: "Sanofi Aventis Pakistan Limited and others Vs. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others". The property tax is one of them. The Constitution has provided full authority to all the provinces to charge the same and to make laws and rules for the said charge and recovery. The provisions of Articles 148 and 149 have no bearing on its un-bridled right of charging the property tax. The arguments of learned counsel for the petitioner, therefore, are not accepted.

4. However, the request of learned counsel for the petitioner for an interim respite is allowed. No coercive measures for recovery of the arrears of property tax shall be adopted for fifteen days. Reliance of this Court for this direction is placed on (2003 YLR 1450) re: "Zawar Patroleum Vs. O.G.D.C and others" and (PLD 2009 Karachi 69) re:- "Sanofi Aventis Pakistan Limited and others Vs. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others".

5. Dismissed.

(M.S.A.) Petition allowed.

PLJ 2011 Lahore 433 (DB) [Bahawalpur Bench Bahawalpur]

Present: Mazhar Iqbal Sidhu and Muhammad Qasim Khan, JJ.

ISLAMIA UNIVERSITY OF BAHAWALPUR--Appellant

versus

DR. ABDUL QADUS SIAL, etc.--Respondents

I.C.A. No. 78 of 2010, decided on 10.3.2011.

General Clauses Act, 1956--

----S. 26--Law Reforms Ordinance, 1972, S. 3(2)--Intra Court Appeal--Inspite of issuing of notice respondent was not appeared before the Court--Validity--If a notice was issued and even if it was not returned un-served, after passage of reasonable time between date of issuance and date of hearing, it will be presumed that notice had been served--An important case was fixed before the Court in which university was defending the case, it was not believable that appellant/respondent was not aware of such an important matter, which ultimately could even affect his own future prospects--Intra Court Appeal was dismissed. [P. 436] A

Islamia University of Bahawalpur Act, 1975--

----Ss. 15(4) & 42--Right of appeal against the order passed by Vice Chancellor--Syndicate or right of review before chancellor--Interpretation of--Vice-Chancellor had been excluded from the definition of officer for the purposes of filing of appeal before syndicate--Validity--If there was intention of the legislation to exclude the teacher or other employees of university from filing an appeal any conjunctive words like "and" could be used between the two phrases in order to join the teachers or other employees of the university with vice-chancellor, but after the V.C. comma had been used, which separate it from teacher and other employees of the University--While interpreting statute the word should be read in their plan meaning and no word should be added or deleted to interpret it--If such an interpretation is adopted it will be harmful for the employees/officers/teachers of the university, as they would be deprived of a remedy against the order passed by V.C. u/S. 15(4) of University Act--S. 42 only excludes the V.C. from the word "Officer" and other officials, teachers and employees of university, have a right of appeal before syndicate. [Pp. 437 & 438] B, C & E

2006 PTD 386, 2006 PTD 204 & 2006 PTD 515, rel.

Interpretation of Statutes--

----It is settled principle of interpretation of statutes "Interpretatio talis in ambiguis simper fienda est ut evitetur inconveniens et absurdum" that in case of ambiguity, a construction should always be found such that what is unsuitable and absurd may be avoided and law is the science of what is good and just, the words have to be taken so as to have effect and in all affairs indeed especially in those that concern the administration of justice, equity should be regarded. [P. 438] D

Mr. Muhammad Ashraf Sheikh, and Bilal Ahmad Qazi, Advocates for Appellants.

Mr. Ejaz Ahmad Ansari, Advocate for Applicant in C.M. No. 2398/2010.

Malik Mumtaz Akhtar, Additional Advocate General for Respondents.

Date of hearing: 10.3.2011.

Order

This Intra Court Appeal No. 78/2010 "The Islamia University, etc. versus Dr. Abdul Quddus Sial etc." I.C.A. No. 79/2010 "The Islamia University, etc. versus Muhammad Arshad Khakwani and I.C.A. No. 81/2010 "Professor Dr. Shams-ul-Bashar versus Islamia University Bahawalpur, etc." have been directed to assail the order dated 18.05.2010 passed by learned single Judge in chamber accepting W.P. Nos. 4213/2009 and 4836/2009, respectively.

1. During the pendency of these I.C.As, Muhammad Arshad Khakwani filed a contempt petition Crl. Org. No. 212/2010 and also filed C.M. No. 3417/2010 in ICA No. 79/2010 under Order VII, Rule 11 CPC and similar C.M. No. 4372/2010 was brought in I.C.A. No. 81/2010. So far as applications under Order VII, Rule 11 CPC are concerned, it has been asserted that the original impugned order dated 13.10.2009 against which Writ Petitions had been filed and then I.C.As were preferred, has subsequently been recalled vide another order dated 06.01.2009 passed by the University authorities. At this stage the learned counsel for the appellant contended that original order was not recalled during pendency of writ petitions, rather, it was withdrawn on 06.01.2010. In this view of the matter, we find no substance in these Civil Miscellaneous Applications No. 3417 and 4372 of 2010 and both are dismissed, whereas, the main I.C.As and other allied petitions are being decided by this single judgment.

2. The learned counsel for the respondent/ application referred to Section 42 of the Islamia University of Bahawalpur Act and contended that a right of appeal against the order passed by the Vice Chancellor is available, as the impugned order is covered by the word "disadvantage" to the prescribed terms and conditions of service in the light of para 3(1) and amended para 3(2) of 1st Schedule of the statute framed under Section 48 of the Act, ibid, as such I.C.As are not maintainable. Even after the decision of appeal by the syndicate a right of review before the same forum i.e. Syndicate or right of review before the Chancellor under Sections 11(3) and 11(a) of the Act is available, hence, I.C.As are liable to be dismissed on this score alone.

3. The learned counsel for appellant on the other hand argued that impugned order was passed under Section 15(4)(vi) of the Islamia University Bahawalpur Act, 1975 and according to Section 42 of the said Act, the case of the appellant is not covered, as this Section excludes Vice Chancellor, Teacher as well as employees and moreover, as the impugned order was passed under special powers of the Vice Chancellor under Section 15(4)(vi), therefore, the said order was not reviseable before the Chancellor. The learned counsel in this respect referred to Section 11 sub-section (3) and Section 11 (a) of the said Act and contended that Vice Chancellor alone does not fall within the definition of authority as defined in Section 21, ibid. The learned counsel further argued that Section 48 provides that statutes set out in the Schedule appended to the Act shall be deemed to be the Statues framed under Section 48 of the Act to regulate and prescribe the provisions of Section 30 of the Act and any legislation under Section 48 thereof is delegated legislation and has no overriding effect on the main statute, hence, it could not be said that the impugned order passed by the Vice Chancellor is covered by the word "disadvantage" to the prescribed terms and conditions of service, hence, objection raised by learned counsel for the applicant has no force and is liable to be thrown out of consideration. The learned counsel further contended that although impugned order has been withdrawn by the University Authorities but as interpretation of statute is involved and it may materially affect the future prospects of the individuals, therefore for this reason also the I.C.As are required to be decided on merits.

4. The learned counsel for appellant in I.C.A. No. 81/2010 argued that writ petition was in the nature of quo-warranto and petitioner has been condemned unheard, neither any notice was issued nor served upon him. The learned counsel took the stance that as the impugned order has been withdrawn by the University authorities, therefore, he would not assail the said order on merits, however, remarks recorded in the impugned order of learned single Judge in chamber qua the present appellant may be hazardous to his future career, same according to the learned counsel even otherwise are not sustainable, as such, the same may be ordered to be expunged.

5. Heard. Record explored.

6. We have given our anxious consideration to the contentions of learned counsel for appellant in I.C.A. No. 81/2010 and have gone through the record, which shows that a notice was issued to Professor Dr. Shams ul Bashar appellant/ respondent in the writ petition, despite that he did not appear before the Court. Under Section 26 of West Pakistan General Clauses Act, 1956, if a notice is issued and even if it is not returned un-served, after passage of reasonable time between date of issuance and date of hearing, it will be presumed that notice has been served. Moreover, an important case was fixed before the Court in which University was defending the cause; it is not believable that appellant was not aware of such an important matter, which ultimately could even affect his own future prospects. Therefore, we fine no force in his plea.

7. For ready reference the relevant sections of The Islamic University of Bahawalpur Act, 1975 are reproduced hereunder:

"Section 3(1) of Schedule to Section 48.--There shall be a teaching Department for each subject or a group of subjects, as may be prescribed by Regulations and each teaching department shall be headed by a Chairman."

In Paragraph 3-above, for sub-paragraph. (2), following amended was inserted:--

"The Chairman of a Teaching Department and the Director of an Institute shall be appointed by the Syndicate on the recommendation of the Vice-Chancellor from amongst the three senior most Professors of the Department for a period of three years and shall be eligible for re-appointment:

Provided that in a Department where there are less than three Professors the appointment shall be made from amongst the three senior most Professors and Associate Professors of the Department:

Provided further that in a Department, in which there is no Professor or Associate Professor, no such appointment shall be made and the Department shall be looked after by the Dean of the Faculty with the assistance of the senior most teacher of the Department."

Section 30 of the said Act, settles that subject to other provisions of the Act, statutes may be made to regular or prescribe all or any of the matters, specified there-under:

"Section 48.--Notwithstanding anything to the contrary contained in this Act, the Statutes set out in the Schedule appended to this Act shall be deemed to be the Statutes framed under Section 30 of this Act and shall continue to remain in force until amended or repealed."

Now, Section 42 of The Islamia University of Bahawalpur Act, 1974 is reproduced, the interpretation of which is in fact the moot point in these Intra Court Appeals:

"Where an order is passed, punishing any officer, other than the Vice-Chancellor, teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate against the order and where the order is made by the Syndicate have the right to apply to that Authority for review of that order. The appeal or applications for review shall be submitted to the Vice Chancellor and he shall lay it before the Syndicate with his views."

1. A bare reading of paras 3(1) and 3(2) as amended in 1st schedule prepared under Section 48 of the Islamia University of Bahawalpur Act, 1975 would make it clear that impugned order was covered by the word "disadvantage" to the prescribed terms and conditions of service to the respondent. In the light of case reported in MLD 2003 Lahore 507, it could not be said that 1st schedule is delegated schedule and could not create any right. Use of commas in Section 42-ibid needs to be considered carefully for interpretation of this section. In Oxford Advanced Learner's Dictionary (7th edition), use of comma has been explained so as to separate phrases or clauses. A plan reading of Section 42 would show that after the 1st phrase "where an order is passed", by inserting comma it has been separated from the entire remaining sentence and then comma has been used after the phrase "punishing any officer", thereafter the phrase "other than the Vice-Chancellor" has been used by inserting commas before and after this phrase. As such, the phrase "other than the Vice-Chancellor" begins after comma and ends with comma, making it clear that in this Section the Vice-Chancellor had been excluded from the definition of officer for the purposes of filing of appeal before the syndicate. After the phrase "other than Vice Chancellor", there is coma and then phrase "teacher or other employees of the University" appears. If there was intention of the legislation to exclude the teacher or other employees of the University from filing an appeal any conjunctive words like "and" could be used between the two phrases in order to join the teachers or other employees of the University with Vice-Chancellor, but in this section after the Vice-Chancellor comma has been used, which separate it from teacher and other employees of the University. While interpreting statute the words should be read in their plan meaning and no word should be added or deleted to interpret it. Reliance in this respect is placed on the case reported in 2006 PTD 386, 2006 PTD 204 and 2006 PTD 515. In this section the language used is very much clear and declare the intention of the legislation, hence, the interpretation advanced by learned counsel for the appellant has no force. Moreover, if such an interpretation is adopted, it will be harmful for the employees/ officers/ teachers of the University, as they would be deprived of a remedy against the orders passed by the Vice Chancellor under Section 15(4) of the Islamia University of Bahawalpur Act, 1975, whereas, there is consensus amongst the jurists that right of appeal must be provided so to add check and balance against the illegal orders or the actions taken in sheer abuse of jurisdiction by the concerned authorities sitting on the helm of affairs or for correct application of law. It is settled principle of interpretation of statutes "Interpretatio talis in ambiguis simper fienda est ut evitetur inconveniens et absurdum" that in case of ambiguity, a construction should always be found such that what is unsuitable and absurd may be avoided and the law is the science of what is good and just, the words have to be taken so as to have effect and in all affairs indeed, especially in those that concern the administration of justice, equity should be regarded. Therefore, we are of the considered view that Section 42-ibid only excludes the Vice Chancellor from the word "officer" and other officials, teachers and employees of the University, have a right of appeal before the Syndicate.

2. For what has been discussed above, all these I.C.As are dismissed and other allied miscellaneous applications are disposed of accordingly.

(R.A.) I.C.As. dismissed.

PLJ 2011 Lahore 438

Present: Mian Shahid Iqbal, J.

MUHAMMAD ASIF--Petitioner

versus

ADDITIONAL DISTRICT JUDGE etc.--Respondents

W.P. No. 8969 of 2009, heard on 21.7.2010.

Punjab Family Court Act, 1964 (XXXIV of 1964)--

----S. 18--Suit for recovery of dowery articles--Question, whether in view of Section 18 of the Muslim Family Court Act 1964, written statement can be filed and statement given by special attorney can be looked into--Held: Written statement as well as statement given by the special attorney could have been looked into and on the basis of same, matter could have been settled. [P. 441] A

PLD 2009 SC 757, rel.

Punjab Family Court Act, 1964 (XXXIV of 1964)--

----S. 17--Objection that list of dowery articles was exhibited without any formal proof--Section 17 of Family Court Act, 1964 makes it abundantly clear that Civil Procedure Code as well as Qanoon-e-Shahadat Order 1984, are not applicable to the proceedings in the Family Court where it has been left with the Judge Family Court to determine its procedure while allowing the parties to suits to produce evidence--Once a document is exhibited no power of review is available with the Family Court--Once a document is exhibited the same cannot be de-exhibited. [P. 442] B, C & D

PLJ 2003 Lah. 280 rel. 2002 CLC 1801 Lah. ref.

Mr. Muhammad Ejaz Anwar, Advocate for Petitioner.

Mr. Mehdi Khan Chohan, Advocate for Respondents.

Date of hearing: 21.7.2010.

Judgment

This writ petition is directed against the judgment and decree dated 18.02.2009 and 04.04.2009 respectively passed by learned Judge Family Court and Learned Additional District Judge whereby appeal titled "Muhammad Asif Vs. Zubaida Latif" was dismissed vide order dated 04.04.2009.

1. Brief facts of the case are that on 22.07.2008 Respondent No. 3 filed a suit for recovery of dowry articles or in lieu of its value of Rs. 10,50,500/-, written statement was filed on 01.12.2008. Out of divergent pleadings of the parties, three issues were framed by the learned trial Court. After recording evidence and hearing the parties, the learned trial Court decreed the suit by holding that plaintiff is entitled to recover the dowry articles as per list Ex-P2 or in alternative Rs. 7,00,000/- as its price from the defendant. Being aggrieved by judgment and decree dated 18.02.2009, both parties filed appeals. The learned lower appellate Court after hearing arguments of parties, vide judgment and decree dated 04.04.2009 dismissed the appeal filed by petitioner and partly allowed appeal filed by Respondent No. 3. Against the said consolidated judgment and decree dated 04.04.2009 petitioner has filed instant writ petition.

2. Learned counsel for the petitioner submits that list exhibited before the learned trial Court was prepared after marriage or at the time of filing of suit which cannot become a part of evidence for deciding the claim. Though no objection was raised at the time of exhibition of said list but subsequently on the next date he did file application raising objection. Learned counsel further submits that at the time of statement of DW-1 (Special Attorney) all the articles were so mentioned in his statement alongwith the list which were given to Respondent No. 3 was placed on record. In that context learned counsel placed reliance on PLD 2009 SC 757 and 2006 MLD 752.

3. On the reverse, learned counsel for respondent has opposed arguments advanced by learned counsel for petitioner, submits that at the time of placing on record list of articles there was no objection, subsequently raising of objection was an after thought and an application was filed on the day of final arguments; in this context learned counsel for respondent placed his reliance on "Malik Din and another Vs. Muhammad Aslam" PLD 1969 SC 136 and "Abdullah and three others Vs. Abdul Karim and others" (PLD 1968 S C 140).

4. Learned counsel further submits that dowry articles which were transferred to the petitioner's house were in three intervals out of which two transfers of dowry articles is being admitted by the petitioner. As far as clothing of the respondent is concerned, there is no specific denial about this fact. Finally submits that points urged by petitioner relates to factual controversy which has been finally settled by both the Courts below hence they cannot be gone into, if gone into would amount to reopening of the whole case which fact has not been appreciated by the Apex Court. Lastly submits that even if all the submissions are ignored for the sake of arguments even then the written statement/statement of DW-1 as Special Attorney cannot be taken into consideration in the light of the following judgments reported as "Mst. Shamim Akhtar Samina Vs. Jaffar Hussain and two others" (2006 CLC Lahore 852) and "Mazhar Iqbal Vs. Falak Naz and two others" (PLD 2001 Lahore 495).

5. I have given anxious consideration to the arguments advanced by both sides. It is settled law that when a factual controversy has been settled by the two Courts below unless and until there are compelling reasons shown for mis-reading and non-reading of evidence in the said order passed by Courts below, is without jurisdiction or there was a visible irregularity while deciding the same, the Court may interfere. In the present case number of articles given by respondent has been admitted by the present petitioner on the basis of which learned trial Court pass judgment and subsequently on appeals filed by both the parties, petitioner's appeal was dismissed whereas appeal filed by respondent was partially accepted and amount of dowry articles were enhanced after appreciating the evidence of parties on record. Not only this learned counsel for petitioner very strongly argued that list on the basis of which learned trial Court decreed the suit and subsequently it was enhanced (Ex-P2) was prepared at the time of filing of suit and same would not be made basis for decreeing the same unless and until so proved.

6. On the reverse, it is contended that list which DW-1 submitted before the Court was based on proper narration of dowry articles, as such both the lower Courts ought to had appreciated the same and decide the case in light of articles mentioned in the list produced by DW-1. A bare reading of both the lists shows that one was prepared at the time of filing of plaint and other was prepared at the time of filing of written statement. If arguments of learned counsel for the petitioner are accepted then I am afraid that in what conditions and under what law learned counsel stresses that judgment is bad as both the Courts below did not consider the list provided by DW-1 which was also prepared at the time of filing of written statement. This argument of learned counsel amounts to blowing hot and cold at the same time which law do no permit. Thus his arguments even on this point were not to hold the field.

7. The other point raised by learned counsel for respondent was that neither written statement nor the statement of DW-1 could have been looked into for the reason that under Section 18 of the Muslim Family Court Act, 1964, except a female no other person (husband) can appoint attorney or represent the same. In that context learned counsel for the petitioner had argued that as per latest judgment, the law finally settled was that husband can file written statement through his attorney and can be represented through the same which matter was finally settled in a judgment reported as "Naeem Iqbal and 2 others Vs. Noreen Saleem and others" (PLD 2009 SC 757).

"No party could be non-suited merely for the reasons because a plaint/written statement as the case may be, had not been filed by concerned party in person rather through her/his attorney."

In view of latest judgment pronounced in 2009, I hold that written statement as well as statement given by the special attorney could have been looked into and on the basis of same matter could have been settled.

1. The other objection raised by learned counsel that list of articles was exhibited without any formal proof, even the said point cannot be taken care of as in view of Section 17 of Family Courts Act, 1964, which makes it abundantly clear that Civil Procedure Code as well as Qanuoon-e-Shahadat Order 1984, are not applicable to the proceedings in the family Court where it has been left with the judge family Court to determine its procedure while allowing the parties to suits to produce evidence. Reliance is placed on a judgment reported as "Abdul Majeed Vs. Judge Family Court Kehroor Pacca District Lodhran and 2 others" (PLJ 2003 Lahore 280) which says as under:

----Mere facts that plaintiff did not formally prove specified documents was of no legal consequence, particularly when no objection was raised by petitioner defendant when said documents were in evidence before Family Court--

1. It is also the case of learned counsel that once a document is exhibited no power of review is available with the family Court which arguments are further strengthen in view of a judgment reported as "Mst. Faiza Firdous Vs. Ghulam Sabir" (2002 CLC Lahore 1801) wherein it has been so held that as the family Court has no power to review its own orders hence once a document is exhibited the same cannot be de-exhibited. Hence, this objection of learned counsel for petitioner does not hold the field.

2. In view of above observations, this writ petition cannot sustain, thus the same is dismissed with no orders as to costs.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 442 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

CH. MUHAMMAD TAHIR RANDHAWA--Petitioner

versus

ARSHAD ALI and 2 others--Respondents

W.P. No. 5510 of 2006, decided on 22.3.2010.

Pakistan Legal Practitioners and Bar Councils Rules, 1976--

----R. 175--Appointment Advocate as lambardar--Question, whether an advocate can be appointed as lambardar in view of bar contained in Rule 175 of Legal Practitioners and Bar Councils Rules, 1976--Objection raised in writ jurisdiction for the first time--Estoppel--Held: Such plea was never raised by the respondents before District Officer (Rev), E.D.O. (Rev.) or M.B.R., respondent is estopped to raise such objection now in writ jurisdiction--Post of lambardar does not fall within the prohibited arena, prescribed in Rule 175(1). [P. 447] A

Sh. Muhammad Rafique Goreja, Advocate for Petitioner.

Mr. Aurangzeb Khan, A.A.G. for Respondent.

Mr. Mushtaq Ahmad Chaudhary, Advocate for Respondent No. 2.

Date of hearing: 11.2.2010.

Order

Through this constitutional petition petitioner has called in question the order dated 20.6.2006 passed by learned Member (Judicial-III), Board of Revenue, who accepted the revision petition against order dated 31.3.2005 passed by Executive District Officer (Revenue), Khanewal and appointed Arshad Ali Respondent No. 1 as Lambardar of the above said patti.

1. The brief facts of the instant case are that consequent upon death of Bashir Ahmed son of Barkat Ali, Lambardar of Chak No. 108/10-R, Tehsil Jahanian, District Khanewal, the post of Lambardar in the said village had fallen vacant. On this, the District Officer (Revenue), Khanewal, on 12.7.2003, granted permission for preparation of Jadeed Missal Lambardari. The Tehsildar Jahanian invited applications from the residents of said Chak for appointment of Lambardar against the said vacant post. 91 candidates filed their applications before the Tehsildar within the given time, who also heard them. 18 candidates withdrew their candidatures in favour of petitioner Muhammad Tahir son of Muhammad Shafi, whereas, 23 candidates withdrew their candidature in favour of Respondent No. 2, Asghar Ali son of Khan Muhammad and 46 candidates withdrew their candidatures in favour of Respondent No. 1 Arshad Ali son of Bashir Ahmed. In this way 4 candidates remained in the field to contest the post of Lambardar. After considering the respective claims of the contesting candidates Tehsildar Jahanian recommended the name of Arshad Ali, being the real son of the former incumbent of said post and forwarded the file to the Deputy District Officer (Revenue), Jahanian, who did not agree with the recommendations of the Tehsildar and he recommended the name of Muhammad Tahir petitioner for appointment of Lambardar against the said post and forwarded the same to the District Officer (Revenue) Khanewal. During hearing of the said matter one Muhammad Asif withdrew his candidature in favour of Muhammad Tahir petitioner. In this way, three candidates were in the field and after hearing the said candidates the District Officer (Revenue) vide his order dated 15.9.2004 appointed Arshad Ali son of Bashir Ahmad as Lambardar against the said vacant post. Against that order, two appeals were filed before the Executive District Officer (Revenue), Khahewal, who accepted the appeal of Muhammad Tahir Randhawa petitioner and rejected the appeal of Asghar Ali and appointed Muhammad Tahir Randhawa petitioner as Lambardar against the said post, vide order dated 31.3.2005. Arshad Ali Respondent No. 1 challenged this order in appeal while Asghar Ali Respondent No. 2 challenged it in revision before Board of Revenue which came up for hearing before Mr. Sibghat Mansoor, learned Member Judicial-III, Board of Revenue, who vide his order dated 20.6.2006 decided the same in favour of Respondent No. 1.

2. Learned counsel for the petitioner contends that District Officer (R), Khanewal had appointed Respondent No. 1 Arshad Ali as Lambardar on 15.9.2005. This order was questioned in appeal before the Executive District Officer (R), Khanewal who accepted the appeal of the petitioner on 31.3.2005. Arshad Ali Respondent No. 1 challenged this order in appeal while Asghar Ali Respondent No. 2 challenged it in revision before Board of Revenue which came up for hearing before Mr. Sibghat Mansoor, learned Member Judicial-III, Board of Revenue, who vide his order dated 20.6.2006 decided the same in favour of Respondent No. 1. Learned counsel contends that since order dated 31.3.2005 was not the result of material irregularity and there was no wrong exercise of jurisdiction; therefore, the mere fact that Respondent No. 3 holds different opinion is not sufficient to justify the learned Member Board of Revenue, Respondent No. 3 to upset the findings recorded by the Executive District Officer (R); that the learned Member Board of Revenue, Respondent No. 3 does not at all adhere to the reasons advanced by Executive District Officer (R) Khanewal, for appointing the petitioner as Lamberdar and failed to appreciate the fact that the petitioner is highly qualified, practicing lawyer of the same area, had been General Secretary and vice President of the Jahanian Bar Association, besides having qualities of co-operative co-villager and participation in rural activities as noted down by the Executive District Officer (R) in his order dated 31.3.2005; that the learned Member Board of Revenue, Respondent No. 3 ignored the fact that Respondent No. 1 made mis-statement about his educational qualification and thereby committed perjury which is heinous offence and disliked in all civilized societies and such a person does not deserve impugned appointment in which capacity he is to keep accounts and coordinate between the local administration. In this context, it will not be out of place to add that as gleaned out by the certificate issued by Allied Bank Bashir Ahmad father of the Respondent No. 1 was a defaulter and this position is continuing even after his death which by itself negates the satisfactory financial position of Respondent No. 1 and repel the reason advanced in his favour in the impugned order. Learned counsel contended that the mere fact that Respondent No. 1 has kept the `dhal bach' for some period does not by itself create a right to be appointed as Lumberdar; that the Respondent No. 1 has no other qualification except that he is son of deceased Lumbardar with education of primary level, whereas the Respondent No. 2 has not been recommended at any level, the impugned order tantamount to revive the rule of primogeniture which has been declared void and against the injunctions of Quran and Sunnah and, thus, circumvent the law declared un-lslamic in Maqbool Ahmad Qurershi vs. The Islamic Republic of Pakistan" (PLD 1999 SC 484), which order does not deserve to be maintained; that learned Member, Board of Revenue, was not legally justified to exercise his revisional jurisdiction in favour of Respondent No. 1. Learned counsel makes reliance on "Rehmat Ali vs. Sultan Muhammad" (PLD 1958 W.P.(Rev.29) and "Mst. Hayat Begum and others vs. Mst. Kaniz Shahr Bano and another" (PLD 1958 (W.P.) Rev. 90). Learned counsel further contended that since order dated 20.6.2006 has been passed by learned Member Board of Revenue in favour of Respondent No. 3 in illegal exercise of jurisdiction, therefore, it cannot be maintained and is liable to be set aside. Reference in this respect is made to "Muhammad Rahim and 6 others vs. Board of Revenue, Sindh and 4 others" (1992 CLC 1040). Learned counsel submitted that the learned Member Board of Revenue, Respondent No. 3 has circumvented the situation to apply the rule of primogeniture against law, whereas Respondent No. 1 had no other solid/sound qualification to be given preference for his appointment. Lastly learned counsel contended that the learned Member Board of Revenue, Respondent No. 3 has transgressed his authority and acted beyond his jurisdiction while passing the impugned order dated 20.6.2006 in favour of Respondent No. 3.

3. Conversely learned counsel for Respondent No. 1 has supported the order of Executive District Officer by submitting that choice of District Collector for the appointment of Lambardar is to be maintained. He placed reliance on "Muhammad Rafique vs. Nazir Ahmad and others" (2007 SCMR 287). He submitted that in the present case District Officer (Revenue) vide his order dated 15.9.2004 after dealing with the matter comprehensively and taking into consideration all the aspects appointed Respondent No. 1 Arshad Ali. Executive District Officer (Revenue) on 31.3.2005 wrongly accepted the appeal of Muhammad Tahir and set aside the order dated 15.9.2004 passed by District Officer (Revenue) in favour of Arshad Ali Respondent No. 1. He further submitted that learned Member Board of Revenue has rightly set aside the order dated 31.3.2005 of Executive District Officer (Revenue) and confirmed the order dated 15.9.2004 of the District Officer (Revenue). Learned counsel submitted that order dated 15.9.2004 of the District Officer (Revenue) was rightly confirmed vide the revisional order dated 20.6.2006 passed by Member Board of Revenue which is quite just, legal and rational order. He further submitted that Board of Revenue is a Tribunal; an order passed by Tribunal cannot be set aside in writ jurisdiction. Learned counsel further argued that petitioner is a practicing lawyer, and under Rule 175(1) Pakistan Legal Practitioners and Bar Councils Rules, 1976; an Advocate should not join or carry on any other profession, business, service or vocation or shall not be an active partner or a salaried official or servant in or be subject to the terms and conditions of service of the Government, semi-Government or autonomous body or any other organization or institution, public or private. He argued that petitioner being an advocate cannot hold the post of Lumberdar, as it would be violative of the above quoted rule.

4. I have heard the learned counsel for the parties at length and perused the record.

5. District Officer (Revenue), Khanewal vide order dated 15.9.2004 after obtaining reports from the Revenue Officer in the light of recommendations made by them although appointed Respondent No. 1 as Lambardar of Chak No. 108/10-R, District Khanewal. The said appointment order of District Officer Revenue was assailed in appeal. The Executive District Officer Revenue vide order dated 31.3.2005 accepted the appeal of Muhammad Tahir Randhawa, present petitioner. In this appellate order dated 31.3.2005 detail discussion has been made on the merits and demerits of the petitioner and Respondent No. 1 for appointment of Lamberdar. The Executive District Officer (Revenue) has discussed pros and cons of each and every aspect of the case with regard to education, efficiency, and family background. The E.D.O.R. in his order dated 31.3.2005 has held that petitioner Muhammad Tahir Randhawa son of Muhammad Shafi is permanent resident of Chak No. 108/10-R District Khanewal. He is owner of agricultural land Measuring 66 Kanals 14 Marlas and Arshad Ali Respondent No. 1 is owner of agricultural land measuring 9 Kanals 6 Marlas. The petitioner Muhammad Tahir Randhawa is B.A.L.L.B. and Respondent No. 1 is primary and Respondent No. 2 is middle. It is further observed by the E.D.O. (Revenue) that Muhammad Tahir Randhawa is fully equated with the affairs of Lambardar and he is owner of sufficient land for `Zar-e-Birth'. On these grounds the EDOR accepted the appeal of the petitioner.

6. The order dated 20.6.2006 passed by learned Member, Board of Revenue is mechanical order, by which, order dated 31.3.2002 passed by Executive District Officer (Revenue), Khanewal, is set aside. Learned Member, Board of Revenue has not given cogent reasons for upholding the order dated 15.9.2004 and has not applied his judicial mind to the facts of the case. The learned Member, while accepting the revision petition did not point out any illegality or mistake in the order dated 31.3.2005 passed by Executive District Officer (Revenue). Further, the Respondent No. 1, for the first time has raised objection in the light of Rule 175 of Pakistan Legal Practitioners and Bar Councils Rules, 1976 which is reproduced as under:

"An Advocate shall not join or carry on any other profession, business, service or vocation or shall not be an active partner or a salaried official or servant in or be subject to the terms and conditions of service of the Government, semi-Government or autonomous body or any other organization or institution, public or private."

Learned counsel for the respondent submits that an advocate cannot be appointed as Lumberdar in the light of above said rule. This plea is never raised by the respondents before District Officer (Revenue); E.D.O. (Revenue), or Member, Board of Revenue, Respondent No. 1 is estopped to raise this objection now in writ jurisdiction. The post of Lumberdar does not fall within the prohibited arena, prescribed in Rule 175 (1). It is my considered opinion that order dated 31.3.2005, passed by E.D.O.(R), Khanewal is well reasoned, rational and convincing for appointment of Lumberdar in favour of the petitioner. In the light of above discussion this writ petition is allowed; order dated 20.6.2006, passed by Member, Board of Revenue, Punjab Lahore is set aside declining it without lawful authority; as a consequence of which order dated 31.3.2005 passed by E.D.O.(R), Khanewal, in favour of petitioner is restored. No order as to costs.

(M.S.A.) Petition allowed.

PLJ 2011 Lahore 447

Present: Mian Shahid Iqbal, J.

MUHAMMAD ASLAM--Petitioner

versus

SENIOR MEMBER BOARD OF REVENUE PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 15257 of 2010, decided on 8.7.2010.

Punjab Land Revenue Rules, 1968--

----R. 17--Appointment of lambardar--Held: Appointment of lambardar is not a vested right, as such it cannot be claimed. [P. 450] A

Punjab Land Revenue Rules, 1968--

----R. 17--Appointment of lambardar--Recommendation--A patwari and its hierarchy who had recommended the name of the person so making him entitled to be appointed for the said post are the best neutral official functionaries to make the recommendations--Petition dismissed. [P. 450] B

Mian Shahzad Siraj, Advocate for Petitioner.

Date of hearing: 8.7.2010.

Order

Brief facts of the case are that one Abdul Ghafoor was Lambardar of Chak No. 151/G.B. Toba Tek Singh. On his death applications through publication were invited in the slot for appointment of Lambardar. On proclamation of notice 12 candidates filed their applications but during the process Muhammad Sarwar son of Murad, Babar Hussain son of Fazal Khan, Ali Hassan son of Fazal Khan and Ali Akbar son of Abdul Ghafoor withdrew their applications and only 8 persons remained in field.

1. After observing all the codal formalities on recommendation of the revenue staff finally on 12.07.2005 District Officer Revenue (Collector) ordered for appointment of Respondent No. 4 as Lambardar for the said patti under Rule 17 of the Punjab Land Revenue Rules 1968.

2. Against order of appointment of Respondent No. 4 as Lambardar, Appeal No. 7-L of 2005 by one Ghulam Hussain, Appeal No. 8-L of 2005 by one Muhammad Afzal, Appeal No. 9-L of 2005 by one Muhammad Aslam, Appeal No. 10-L of 2005 by one Iftikhar Ali and Appeal No. 16-L of 2005 by one Nasir Ali were filed before Respondent No. 2 who vide his detailed order dated 31.10,2006 finally set aside the appointment of Respondent No. 4 Asghar Ali and remanded the case back to District Revenue Officer for further proceedings in the matter with a direction that same may be completed within three months from date of receipt of this order.

3. Against order dated 31.10.2006 Asghar Ali filed appeal which has been numbered as ROR No. 74 of 2006 whereas Muhammad Aslam and Iftikhar Ali preferred Revision Petitions Nos. 231 & 354 of 2007. The learned Senior Member Board of Revenue/Respondent No. 1 after final adjudication of the matter accepted appeal of Asghar Ali whereas revisions filed by Iftikhar Ali and present petitioner were dismissed, by virtue of said order dated 12.07.2005. Resultantly Asghar Ali once again was declared as Lambardar of the said patti.

4. Instant writ petition has now been filed by petitioner impugning order dated 17.03.2010 alleging that impugned order is not sustainable as Respondent No. 1 has restored order dated 12.07.2005 ignoring the fact that rule of primogeniture has been declared un-lslamic. Reference is made to Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan, (PLD 1999 S.C. 484) He further submits that the order impugned is not sustainable firstly on the ground that Respondent No. 4 is not permanent resident of the patti, rather he is resident of Faisalabad, as such cannot look after interest of the patti which factor has been ignored by Respondent No. 1. He further submits that on the basis of remand order dated 31.10.2006 matter was sub-judice before Respondent No. 2, hence Respondent No. 1 could not finally settle the same. It is also alleged that it has been wrongly observed that Rajputs are more in number than Awans in the said patti. It is further contended by learned counsel that while passing order Respondent No. 1 has factually erred in holding that petitioner is owner of 31-Kanals whereas he is owner of 50-Kanals 4-Marlas. He also alleges that his father was Lambardar of Mauza Muhammadopur before partition, which factor has not been taken into consideration by the learned Court while passing the impugned judgment. Reliance is placed on Nazar Hussain and others v. The State and others, (2005 CLC 1228).

5. I have considered arguments of the learned counsel for petitioner and have gone through the record.

6. The grounds taken for calling into question and rejection of the order dated 17.03.2010 are mostly of factual nature, as such cannot be gone into through this petition as the same have been thoroughly considered firstly by the revenue staff, on the basis of which District Revenue Officer (Collector) / Respondent No. 3 after considering all the facts and recommendations has passed the order which has been upheld up to the Apex Court i.e. Board of Revenue. The only legal ground submitted by the learned counsel was that rule of primogeniture has since been declared as un-lslamic, as such the order under attack is not sustainable and liable to be set aside.

7. I am afraid that even this ground is not available to the learned counsel, for the reason that instant order passed by Respondent No. 3 was under Rule 17 of the Punjab Land Revenue Rules 1968, criteria given in the said rule were taken into consideration while passing the impugned order dated 12.07.2005. Thus in the given circumstances the writ petition on this score cannot be maintained. The other reason for non-maintainance of writ petition is that a bare reading of order passed by Respondent No. 3 and impugned order clearly convey that the instant order has been passed keeping in view the provisions of Rule 17 of the Punjab Land Revenue Rules 1968. Operative part of the order passed by Respondent No. 1 is re-produced as under:

"3.......In the matters of appointment of Lambardar, District Collector is the best judge to select Lambardar suited for the purpose. It has been repeatedly held by the Board of Revenue that choice of District Collector in selection of Lambardar should not ordinarily be interfered with unless there is a glaring irregularity or miscarriage of justice. After going through the record, it is observed that order of the District Officer is in accordance with law and rules on the subject. Asghar Ali who has been appointed as Lambardar is matriculate, aged 55 years, owns 57 kanals of land and is elder son of deceased Lamberdar and above all belongs to majority community of Rajputs. Therefore he fulfills all pre-requisites of appointment of Lambardar and out weights all other candidates in his credentials. The District Officer (Revenue) after observing codal formalities and appreciating all the facts of the case has rightly appointed Asghar Ali as Lambardar of the Chak ...."

1. The order conveys and affirms the fact that impugned order has been passed while only considering Rule 17 of the Punjab Land Revenue Rules 1968 and not Rule 19 which has been declared un-lslamic, as such the judgment referred to by the learned counsel is not applicable to the present case on all four corners.

2. As per settled law the appointment of Lambardar is not a vested right, as such it cannot be claimed. Reference is made to Muhammad Afzal v. Senior Member, Board of Revenue, Punjab, Lahore and 6 others, (2003 MLD 157) and Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another, (1971 SCMR 719) wherein it has been so held that concerned authorities were the best Judges under law to consider suitability of candidates for appointment of Lambardar of the concerned village. It would obviously mean the patwari and its hierarchy who have recommended the name of the person so making him entitled to be appointed for the said post are the best neutral official functionaries to make the said recommendations.

3. The reasons weighed for accepting recommendations were that his father was earlier a Lambardar in the said patti and he had good interaction with the government officials concerned in the said revenue estate, unless and until they do not have a good understanding with each other the interest of the government cannot be properly served. Reliance is placed on Abdul Ghafoor and another v. Akbar Ali, (1992 CLC 617) and Subedar (Rtd.) Muhammad Ali v. Muhammad Anwar and 3 others, (1985 CLC 668).

4. The other consideration weighed before the Respondents No. 1 & 3 was that Respondent No. 4 belongs to the majority community as such in order to keep a better harmony and good relation, so keeping in view the interest of the government and the link with the populace the impugned order was passed. Reliance is placed on Ilam Din v. Dost Muhammad, (1992 CLC 1630).

13. It has further been held in Abdul Karim v. Member, Board of Revenue, Punjab and 2 others, (1993 MLD 1628) that appointment of Lambardar could only be interfered in constitutional jurisdiction if there was any jurisdictional error in recommendation made by the concerned authority. Selection of Lambardar as discussed in the present judgment was, the executive responsibility of the Revenue Officers up to the Board of Revenue. The Hon'ble Supreme Court of Pakistan in a reported judgment Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another, (1971 SCMR 719) has held that the matter of appointment of a Lambardar is essentially an administrative measure and the claim to that office could not be laid as of vested right. In the present case after recommendation of the concerned staff up to District Officer Revenue while observing all the requirements as provided under Rule 17 (ibid), the appointment of Respondent No. 4 was preferred by Respondent No. 1, hence there is no legal infirmity or jurisdictional error pointed out in the appointment of the Lambardar. Reference is also made to Muhammad Jameel v. Member, Board of Revenue, Punjab, Lahore and others, (2004 YLR 440), Shahbaz Khan v. Muhammad Umar and another, (1985 MLD 366) and Fateh Maseih v. Member, Board of Revenue, Punjab, Lahore and others, (1996 SCMR 377).

1. Learned counsel further relied upon Nazar Hussain and others v. The State and others, (2005 CLC 1228), though this judgment has been referred to by the learned counsel for the petitioner but the contents of the judgment and the law laid down do not help him in any circumstance. The relevant portion of the judgment is reproduced as under:

"Choice of the District Collector in appointment of Lambardar, should not be interfered with unless it was found to be patently perverse. During pendency of case, District Collector had submitted his reports thrice and had shown his satisfaction with performance of petitioner being representative of major community and he was considered to be the most suitable person in job of Lambardar. Order passed by District Collector with regard to appointment of petitioner was restored and order of Commissioner was accordingly set aside."

1. As the case of the petitioner is not that the application of Rule 17 of the Punjab Land Revenue Rules has not been properly applied and codal formalities were not met, therefore in absence of any other illegality, infirmity or jurisdictional error pointed out by the learned counsel, this writ petition is dismissed with no orders as to costs.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 452 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

Mst. QAMAR SULTAN etc.--Petitioners

versus

Mst. BIBI SUFAIDAN etc.--Respondents

C.R. No. 69 of 2002, heard on 26.5.2010.

Determination of Sect.--

----Sect of deceased--Great majority of the muslims in Indo-Pak subcontinent being sunnies, the presumption would be that the parties to the suit were sunnies, unless its proved otherwise--Burden to rebut the presumption would lie heavily on the one who attributes the faith of Shia to any person. [P. 454] A

PLD 1965 SC 134, 2009 SCMR 644 & PLD 2006 SC 1476 & 2009 SCMR 644, rel.

Mr. Ayub Bukhari, Advocate for Petitioners.

Maulvi Ijaz-ul-Haq, Advocate for Respondents.

Date of hearing: 26.5.2010.

Judgment

The summary of facts of this case is that predecessor-in-interest of the respondents instituted suit for possession in respect of land Measuring 3888 Kanals and 01 Marla, mentioned in the plaint, for partition of 1/6th share out of Haveli and for rendition of accounts being legal heirs of Fateh Khan son of Allah Dad. Fateh Khan died on 3.6.1970. Mst. Anwar Sultan, Defendant No. 1 being the mother; Mst. Qamar Sultan being sister and Mumraiz Khan being collateral were legal heirs of Fateh Khan. As per averments of the plaint, Fateh Khan was Sunni by faith, therefore, Mumraiz Khan, plaintiff being a collateral was entitled to 1/6th share. It was further averred that Mutation Nos.1764 and 433 having been sanctioned on 14.8.1970 in accordance with Shia law were illegal. In the Written statement filed by present petitioners/defendants, it was averred that the deceased Fateh Khan professed Shia faith, therefore, estate of Fateh Khan devolved upon the petitioners in toto. In view of the pleadings of the petitioners, the learned trial Court framed Issues. The parties led their oral as well as documentary evidence. DW-1 to 5 supported the averments made in the written statement and contended that Fateh Khan was unmarried and died issueless. Mst. Anwar Sultan was his mother and Mst. Qamar Sultan was her sister. He professed Shia sect and used to participate in the Tazia Procession'. Mst. Anwar Sultan appeared as DW-6 and stated that Fateh Khan was Shia by faith from the time of his predecessor. The defendants also produced copy of Mutation No. 1764 sanctioned on 24.8.1971, as Exh.D1 and copy of Mutation No. 433 as Exh.D2, sanctioned on 24.8.1971. The respondents-plaintiffs produced nine witnesses who deposed that Fateh Khan wasSunni' by faith and his Fatiha prayer' was led by aSunni Sect Scholar'. The plaintiffs also produced documentary evidence. The learned Civil Judge, Attock, who vide judgment and decree dated 23.10.2000 dismissed the suit of the plaintiffs-respondents. The appeal filed by the respondents was accepted by the learned Additional District Judge, Attock, who vide judgment and decree dated 22.12.2001 decreed the suit of the respondents.

1. It is contended by learned counsel for petitioners that the learned appellate Court has suffered from misreading and non-reading of evidence that has led to the erroneous conclusions. It is further contended that Mst. Anwar Sultan, mother of Fateh Khan/deceased, appeared as DW-6 and stated that Fateh Khan was Shia by faith since his birth and from the time of his forefathers, but her statement has not been given importance due to it. The best evidence about the faith of a person can be that of its close relatives and none other than mother would be a better cognizant of a person's faith. Her statement could not be discarded and brushed aside in the absence of any other more convincing proof. DW-1, Sher Dil was Sunni by faith. He has stated that Fateh Khan was Shia and used to participate in Tazia' Procession. Komal Shah, President of Ahl-e-Tashee Community, Talagang also stated that Fateh Khan was a Shia by sect. Being a President of Ahlay Tashee, the statement of DW-2 deserves a better appreciation. Similarly, DW-3 to 5 had also deposed in the same manner.

2. On the other hand, learned counsel for the respondents supports the judgment passed by the learned Additional District Judge, Attock and contends that statement of Maulvi Muhammad Faazal that Fateh Khan was a Sunni' by faith and the former had led the latter'sFateha Prayer', is of real significance PW-2, Mohy-ud-Din has also corroborated the deposition made by PW-3, Muhammad Khan son of Nawab Khan and PW-8, Allah Yar, who themselves were Shias by faith had stated that Fateh Khan was Sunni by faith. PW-5, Muhammad Khan son of Ghulam Muhammad, Numberdar of the village has also deposed in the same line. The learned counsel for the respondents has referred to two documents. Exh.P11 is an application dated 03.03.1966 made by Allah Yar, PW-8, who was Shia by faith, for holding Azadaari, Procession Exh.P.10 is a joint statement of Fateh Khan and numerous other residents of the village, which contests the above said application. The resistance offered by Fateh Khan is borne out on the order passed by the Deputy Commissioner on the above said application. He has further argued that theSunnis' were in majority where Fateh Khan resided, therefore, presumption about him would be that he professed `Sunni' faith unless contrary is established by the evidence. Reliance is placed on Pathana Vs. Mst. Wasai and other (PLD 1965 Supreme Court 134).

3. I have heard learned counsel for the parties and have also gone through the record. The plaintiffs claiming Fateh Khan Sunni by faith have produced the witnesses from Shia and Sunni communities. They have categorically stated that Fateh Khan was Sunni by faith and his funeral prayer was led by Maulvi Muhammad Faazal/PW-1, who was a Sunni Sect Scholar. On the other hand the defendants have also produced witnesses from both Sunni and Shia Sect, who have categorically stated that Fateh Khan professed Shia faith and used to part in Tazia Procession. The only edge to the defendants/petitioners in the oral evidence is the statement of Mst. Anwar Sultan, who is mother of Fateh Khan. She has stated that Fateh Khan professed Shia faith.

Although in either eventuality whether Fateh Khan is held to be a Shia or Sunni her 1/3 share remains unchanged but the share of Mst. Qamar Sultan, sister of Fateh Khan daughter of Anwar Sultan increases from « to 2/3, if Fateh Khan is declared Shia and resultantly Mumraiz Khan the predecessor of the respondents is deprived of his 1/6 share as a collateral. Mst. Anwar Sultan is an indirect beneficiary. Her daughter's share is increased and her rivals' share extinguishes. Moreover, the petitioners cannot escape a big hump in their way. Exh. 10 an application by the `Sunni' inhabitants of the village including Fateh Khan was filed to thwart an effort of Allah Yar, PW-8, a Shia by faith to get permission to take out Tazia procession. This application betrays strong abhorrence against those who were trying to hold the procession. These sentiments are a proof of the faith of the applicants including that of Fateh Khan. Did he change his faith from Sunni to Shia after that application and statement? There is neither an assertion in the written statement nor any proof of that in evidence. The principle laid down by the superior judiciary is that great majority of the Muslims in Indo-Pak Subcontinent being Sunnis, the presumption would be that the parties to the suit are Sunnis, unless its proved otherwise. The burden to rebut the presumption would lie heavily on the one who attributes the faith of Shia to any person. Reliance is placed on Pathana Vs. Mst. Wasai and other (PLD 1965 Supreme Court 134) and Ghulam Shabbir and others Vs. Mst. Bakhat Khatoon and others (2009 SCMR 644). As far the dictum laid down in (PLD 2006 S.C 1476) titled (Mst.Ghulam Ayesha and another Vs. Sardar Sher Khan) and (2009 SCMR 644) titled (Ghulam Shabbir and others. Vs. Mst. Bakhat Khatoon and others), that leading the funeral prayer by a Sunni Imam is no proof of the faith of the deceased; that reduces the strength of the arguments of the respondents only to that extent. The evidence led by the plaintiffs/respondents to this extent may be excluded from their credit. The documentary evidence referred above weighs heavily in favour of the respondents/plaintiffs and against the petitioners/defendants. The only conclusion that may be drawn is that Fateh Khan was a Sunni by faith. I find neither any illegality in the concurrent findings of both the Courts below nor any irregularity in the proceedings.

For what has been discussed above, this revision petition stands dismissed.

(M.S.A.) Petition dismised.

PLJ 2011 Lahore 455

Present: Syed Mansoor Ali Shah, J.

MAQBOOL AHMAD and 4 others--Petitioners

versus

DISTRICT OFFICER (REVENUE)/DISTRICT COLLECTOR, FAISALABAD and 3 others--Respondents

W.P. No. 20305 of 2009, decided on 16.3.2010.

Constitution of Pakistan, 1973--

----Art. 4--Due process clause--Protection of law or to be treated in accordance with law--Basket of legal principles--Principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Art. 4, which is, therefore, a citadel of administrative and judicial governance in the country--Art. 4(2)(A) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law" Art. 4 is a Constitutional reminder especially for the government and its functionaries to treat everyone in accordance with law. [P. 457] A

Constitution of Pakistan, 1973--

----Art. 4--Fundamental law--Public functionaries while exercising discretion or taking administrative action must be constantly reminded of the principles so that their discretion and administrative actions are aligned with the basic fundamentals of Constitution.

[P. 459] B

Colonization of the Government Land Act, 1912--

----S. 32--Constitution of Pakistan, 1973, Art. 4--Notice of dispossession issued by DOR--Assailed--Writ petition--When action proposed is detrimental to life and property of a person--Held: Section 32 of Colonization of Government Land Act, cannot even begin to be put in motion unless the test of procedural due process provided in Art. 4 of the Constitution alongwith all its concomitant principles are first exhausted--Notice of dispossession under Section 32 of Colonization of Government Land Act has been issued in blatant violation of Art. 4 of the Constitution and cannot be permitted--Petition allowed. [P. 460] C

NLR 1991 Rev. 21, NLR 1991 Rev. 99, NLR 2003 Rev. 90 & PLJ 2003 Lah. 1273, rel.

Mr. M.A Ghaffar-ul-Haq, Advocate for Petitioners.

Malik Abdul Aziz Awan, Asstt. Advocate General for Respondents.

Date of hearing: 16.3.2010.

Order

Brief facts of the case are that the petitioners are admittedly encroachers of land Measuring 4 Kanal 1 Marla 8 Sirsai in Chak No. 252-RB Tehsil & District Faisalabad, however they are in possession of the said land since 1947 and have raised construction thereon since the year 1995. When, earlier, the Revenue Department tried to demolish the said construction, petitioners filed W.P. No. 10594/1995 wherein on 29.10.95 interim relief was granted to the petitioners to the effect that their possession should not be disturbed. The said petition was disposed of on 15.09.1997 with the direction to decide the claim of the petitioners in accordance with law and rules expeditiously. This direction was not complied with. Despite the same, Deputy District Officer (Rev) vide impugned order dated 11.04.2009 under Sections 32 and 34 of the Colonization of Government Land Act, 1912 passed the following order:

"Now, therefore, I Deputy District Officer Revenue/Collector, Tehsil Sadar, Faisalabad in exercise of the powers vested on me u/S. 32/34 of the Colonization of Government Land Act of 1912, hereby authorize Tehsildar/Naib Tehsildar Faisalabad to forthwith re-enter upon the land and resume possession of it and take possession of the crops, trees or building material, without payment of any compensation, whatsoever, the case may be."

1. The learned Asstt. Advocate General submitted that an alternative remedy against the said order is available under Section 164 of the Land Revenue Act, 1967. He further submits there is a civil suit pending regarding the same subject matter filed by Petitioner No. 1.

2. Arguments heard. In the earlier round of litigation between the same parties the Collector was directed vide order dated 15.09.1997 passed in Writ Petition No. 15094/1995 to decide the claim of the petitioners in accordance with law and rules expeditiously latest by 30.10.1997. This order admittedly has not been complied with to date. Inspite of the said direction Respondent No. 2 without issuing notice and affording opportunity of hearing to the petitioners and without complying with the above mentioned order in the earlier round of litigation passed the impugned order under Sections 32 & 34 of the Colonization of Government Land Act, 1912. The impugned order is therefore in violation of order dated 15.09.1997 of this Court.

3. Even if the petitioners are encroachers, trespassers or squatters they have the inalienable right to enjoy equal protection of law and to be treated in accordance with law. This right is constitutionally guaranteed to them (every citizen) under Article 4 of the constitution and they cannot be deprived of the same. Article 4 of the constitution is our DUE PROCESS CLAUSE. Protection of law or to be treated in accordance with law carries in it a basket of legal principles. Therefore the principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Article 4, which is, therefore, a citadel of administrative and judicial governance in the country.

4. Article 4(2)(a) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that: "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 4 is a constitutional reminder especially for the Government and its functionaries to treat everyone in accordance with law.

5. As explained above "law" carries all the principles of law including principles of natural justice including the maxim audi alteram partem. Reliance is placed on "Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 SC 14), "New Jubilee insurance Company Ltd., Karachi v. National Bank, of Pakistan, Karachi" (PLD 1999 SC 1126), "Aftab Shahban Mirani v. President of Pakistan and others" (1998 SCMR 1863) and "Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid" (2009 PLC (CS) 966).

6. Justice (Retd) Fazal Karim writes in his book Judicial Review of Public Actions, (Volume-2, Page 1331) that "Nevertheless, the general consensus of the judicial opinion, seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of allegations against him, he should be given a fair opportunity to make relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. In order to act justly and to reach just ends by just means the Courts insist that the person or authority should have adopted the above elementary and essential principles unless the same had been expressly excluded by the enactment empowering him to so act."

Lord Reid in Ridge v Baldwin (1963) 2 All ER 66 said:

"Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void.......I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision unless it has afforded the person affected a proper opportunity to state his case."

In A.G. v. Ryan (1980) AC 718 Lord Diplock held:

"It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of decision making authority."

8. In "Collector Sahiwal v. Muhammad Akhtar" (1971 SCMR 681) the Supreme Court of Pakistan held:

This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice, that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal.

Reliance is placed with advantage on University of Dacca through its Vice Chancellor etc. v. Zakir Ahmad (PLD 1965 SC 90), Chief Commissioner Karachi and another v Mrs. Dinao Sohrab Katrak (PLD 1959 SC 45) Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678).

1. Article 4 of the Constitution carries more. "Law" under the said article must reflect the constitutional ethos of a welfare sate. The principles of democracy, freedom, equality, tolerance and social justice given in the Objective Resolutions and the Preamble of the Constitution are essential ingredients of "Law" under Article 4 of the Constitution. It is obvious that our Constitution does not envisage a "Law" i.e. un-democratic, against freedom of the people, intolerant or opposed to equality and social justice. Therefore, public functionaries while exercising discretion or taking administrative actions must be constantly reminded of the principles mentioned above, so that their discretion and administrative actions are aligned with the basic fundamentals of our Constitution. To be treated in accordance with law and to enjoy the protection of law under Article 4 should be all embracing fully engulfing the spirit and fundamental principles of the Constitution of our welfare state.

2. In the present case a pre partition law i.e., Colonization of Government Lands (Punjab) Act, 1912 has been given effect to as if this land is still a colony of the British and the public functionaries are officers of the British Raj. The public functionaries enforcing the said law forgot that colonial legacies of the past have been thrown to the wind and we are now an independent democratic country with robust and dynamic fundamental rights and watchful constitutional Courts to ensure their enforcement. PEOPLE of Pakistan and their well-being is at the heart of our Constitution and therefore the top and foremost constitutional obligation of the Government. Constitution of 1973 is, therefore, people-centric and the daily functioning of the Government can have no other goal more sacrosanct than to improve the well being of its people.

3. Justice Bhagwati in Ramana Shetty vs. International Airport Authority (AIR 1979 SC 1628) speaking for the Court said:

It is "unthinkable that in a democracy governed by the rule of law, the executive government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive government must be informed with reason and should be free from arbitrariness. This is the very essence of the rule of law and its bare minimum requirement".

1. Section 32 of the Colonization of Government Land Act, 1912 states:

32. Power of re-entry in case of squatters and trespassers.--When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of Government without payment of any compensation whatsoever.

1. The word "SATISFIED" in this section will be incomplete if the satisfaction arrived at by the public functionary is behind closed doors without hearing the person against whom the action is being proposed. Participation and inclusiveness is an essential part of decision making in any democratic state. Without hearing the other side, the officer cannot be said to have been SATISFIED. In particular when the action proposed is detrimental to life and property of a person. Therefore, Section 32 of the Act cannot even begin to be put in motion unless the test of procedural due process provided in Article 4 of the Constitution alongwith all its concomitant principles are first exhausted. In this case notice of dispossession under Section 32 of the Act has been issued in blatant violation of Article 4 of the Constitution and cannot be permitted. Reliance is placed on "Muhammad Sharif etc. v. A.C. Samundri, etc" (NLR 1991 Revenue 21) "Madad Ali Shah v. Revenue Minister, etc" (NLR 1991 Revenue 99), "Muhammad Zafar etc. v. Yousaf Ali, etc", (NLR 2003 Revenue 90) and "Muhammad Zafar and 23 others v. Yousaf Ali and others" (PLJ 2003 Lahore 1273).

2. The other aspect of the matter entails the concept of HEARING. Hearing is not a mere mechanical and perfunctory ritual or a desultory cosmetic requirement that has to be hurriedly complied with. There is a deeper meaning to a hearing. Hearing first of all requires that the person against whom the action is proposed is made a part of the decision making process and the officer exercising discretion has given due weightage to the submissions made during the hearing. Additionally, in built in a hearing is the wisdom that there might be alternative choices available to resolve the problem, which can surface once the hearing takes place. As every law is in the public interest and made for the welfare of the people, this inherent and intrinsic welfare embedded in every law necessitates that alternatives or options are be deliberated upon in the public interest. For example, in this case, dispossession might not be the only option. Once the public functionaries keep the welfare of the people supreme, they can consider a host of possibilities and alternates. In this case alone dispossession need not be the only answer. Allotment of alternate land, sale or at least grant of time to vacate the land can be possible options. It is with such sensitivity and passion that public administration wins the heart of the people and builds ownership amongst the people. However, if the public functionaries are fully satisfied after the hearing that there is no other alternative but to invoke Section 34 of the Act, the officers have all the right to proceed further subject to compliance of due process under the law.

3. Without going into the question of the current status of the possession as the learned Law Officer submits that after the impugned orders, the possession of the land in question was taken over by the respondents. This fact is controverted by the counsel for the petitioner, who submits that the petitioners are in possession. Be that as it may, the impugned orders have been passed without due process of law as enshrined under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the same are set aside, Respondents are directed to grant petitioners a fair hearing and then pass a speaking order under the Colonization of Government Land Act, 1912 and the scheme prepared there under especially policy circulated vide No. 426-94/1677-CLIV, dated 25.05.1994, so that the long standing claim of the petitioners be decided within a fortnight from the receipt of this order strictly in accordance with law.

4. This petition is therefore, allowed and the impugned orders are set aside in the above terms.

(M.S.A.) Petition allowed.

PLJ 2011 Lahore 461

Present: Shahid Hameed Dar, J.

MAHMOOD ALI--Petitioner

versus

KHADIM HUSSAIN @ BAGH ALI and 3 others--Respondents

W.P. No. 11268 of 2010, decided on 28.5.2010.

Medico Legal Report--

----Request for constutition of a special medical board for re-examination of injuries--Allegation of cross-version--Request for re-examination was dismissed--Administrative order--Challenge to--Description of injury--Injury did not show blackening, burning of edges, smudging of hair or tattooing around the margins of the wound--In absence of any such features, injury, according to the medical jurisprudence shall be deemed to have been caused from a distance, exceeding 3-4 feet. [P. 463] A

Injury--

----Medico legal report of an injured can exhibit the number of injuries, seat of injuries, the weapon used for infliction of injuries, duration of injuries but it cannot disclose the identity of the author of such injuries. [P. 463] B

Administrative Order--

----Order of judicial magistrate, refusing to constitute special medical board for re-examination of the injuries was an administrative order, not prone to revision u/S. 435, Cr.P.C. which should have been dismissed by Sessions Judge on the solitary point of its maintainability--Dismissed in limine. [P. 464] C

Shahzada Muhammad Zeeshan Mirza, Advocate for Petitioner.

Date of hearing: 28.5.2010.

Order

Muhammad Ali-petitioner is aggrieved of order dated 03.04.2010 passed by the learned Judicial Magistrate, Pakpattan Sharif and order dated 14.04.2010 passed by the learned Sessions Judge, Pakpattan Sharif whereby his request for constitution of a special medical board for re-examination of the injuries of Muhammad Razzaq-Respondent No. 2, has been turned down.

1. The brief facts, leading to the filing of the instant petition are, that the petitioner and others were nominated accused in FIR 37/2010 registered on 24.03.2010, for offences under Sections 324, 148, 149 PPC, at Police Station Pakpattan Sharif, but subsequently, a cross version on the complaint of Riaz had been recorded under Sections 324, 148,149 PPC on 25.03.2010 against Respondents No. 1 and 2. Liaquat Ali and Hota received firearm injuries as per allegations of cross version, at the hands of Khadim Hussain etc., whereas Razzaq received firearm injuries at the hands of Mehmood Ali and his co-accused. The petitioner moved an application before learned Judicial Magistrate Pakpattan Sharif for re-examination of the injuries of Razzaq-Respondent No. 2, which was dismissed on 03.04.2010; whereafter he filed a revision petition against the administrative order of the learned Magistrate, which was again dismissed on 14.04.2010 by the learned Sessions Judge Pakpattan. Hence instant petition.

2. Learned counsel for the petitioner contends that both the impugned orders are fanciful which are based upon surmises and conjectures; that the impugned orders do not encompass all the legal aspects of the case and have been passed in an arbitrary and perverse manner; that the learned Judicial Magistrate as well as learned Sessions Judge, Pakpattan Sharif have erred in law by not exercising their judicial authority in favour of the petitioner; the medico legal report of Muhammad Razzaq-Respondent No. 2 indicates that the injuries mentioned therein were fabricated and doubtful, which required re-examination by the members of special medical board, Pakpattan Sharif but the request of the petitioner in this regard has been turned down by the said learned Courts injudiciously.

3. I have heard the learned counsel for the petitioner and have perused the MLR of injured Muhammad Razzaq, Respondent No. 2 and other documents, annexed with this petition. The main contention of the learned counsel for the petitioner is that two persons had received grievous firearm injuries in the occurrence as alleged in the cross case and MLR of Hota, one of the injured PWs of cross case, showed a firearm entry wound on the frontal chest of the injured, but the MLR of Razzaq-Respondent No. 2, an injured PW of FIR case, did not show any firearm injury on a vital part of his body. He has further contended that MLR of Razzaq had been manoeuvred by the complainant side of FIR case, in connivance with the Medical Officer, and the police so, firearm injuries should have been re-examined by a team of medical officers constituting special medical board.

4. I have gone through the MLR of Razzaq, which shows one firearm entry wound on outer side of right leg, 25 cm above the lateral mellectus. This wound was bleeding and going deep towards inner side and caused an exit wound (Injury No. 2) on inner of back of right leg, above the medial mellectus. The Medical Officer also found corresponding holes in the Shalwar of the injured. The above said entry wound does not bear any characteristics of close range firing or point-blank range firing as the description of Injury No. 1 does not show blackening, burning of edges, smudging of hair or tattooing etc. around the margins of the wound. In absence of any such features, Injury No. 1, according to the medical jurisprudence shall be deemed to have been caused from a distance, exceeding 3-4 feet. From none of the descriptions of the injuries mentioned in the MLR of Razzaq-Respondent No. 2, it can be found that these were fabricated injuries or caused with friendly hands. The medico legal report of an injured can exhibit the number of injuries, seat of injuries, the weapon used for infliction of injuries, duration of injuries etc, but it cannot disclose the identity of the author of such injuries.

5. It has been contended by the learned counsel for the petitioner that Hota injured PW of cross case, had received two firearm injuries (entry and exit) on the front and back of his chest at the hands of Khadim Hussain etc., the accused of cross case, so Razzaq-Respondent No. 2 could not have been authored an injury on non-vital part of his body, therefore, his medical re-examination, in attending circumstances, was essential. This particular argument of the learned counsel for the petitioner is hardly entertainable as it necessarily relates to deeper appreciation of the evidence which can only be done during the course of the trial by the learned trial Court. It is also observed that the impugned order, passed by the learned Judicial Magistrate was an administrative order, not prone to revision under Section 435 Cr.P.C. still, the petitioner preferred a revision petition before the learned Sessions Judge, who dismissed the same on 14.04.2010, deeming it as a revision petition, which should have been decided by the learned Sessions Judge on the solitary point of its maintainability, under the law.

6. For what has been discussed above, I do not find any merit in this petition, which stands dismissed in limine.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 464

Present: Muhammad Khalid Mahmood Khan, J.

MUHAMMAD INAYAT--Petitioner

versus

Mst. SARDARAN BIBI--Respondent

C.R. No. 1170 of 2010, decided on 2.8.2010.

Limitation--

----Interpretation of--Limitation is a matter of statute and provision of Limitation Act are mandatory but the question of limitation has to be decided according to the circumstances of each and every case. [P. 468] A

PLD 2006 Lah. 365 ref.

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

----O. VI, R. 5--Plaintiff was bound to give particular of fraud in plaint--Parties to the suit cannot be ordered to reveal his evidence--Order VI, Rule 5 of CPC is enacted only for clarification of any ambiguity in the pleadings of the parties--Trial Court was if of the opinion that particulars of fraud were not given in the plaint or some material facts were not clear and were ambiguous, the trial Court should ask the parties for a better statement under Order 6 Rule 5 instead of rejecting the plaint. [P. 468] B

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

----O. VII, R. 11--Rejection of plaint--While deciding the application under Order VII Rule 11, CPC the Court has to see only the contents of plaint and even not the written statement and other material filed by the defendant. [P. 468] C

Mr. Baleegh-uz-Zaman, Advocate for Petitioner.

Mr. Muhammad Arif Raja, Advocate for Respondents.

Date of hearing: 8.7.2010.

Order

The respondent filed a suit declaration against the petitioner before learned Civil Judge Phalia declaring mutation of Sale No. 801 attested on 6.6.1987 being outcome of fraud, mis-representation and without lawful authority. The petitioner filed written statement as well as an application under Order VII, Rule 11 CPC raising objection that suit is barred by time. Learned Civil Court vide order dated 9.9.2009 accepted the application under Order VII Rule 11 CPC and rejected the plaint. The respondent assailed order through an appeal. The appellate Court allowed the appeal and remanded the case to the learned Civil Court for deciding the same after framing the issues and to record the evidence vide order dated 24.2.2010, hence, the present petition.

1. Learned counsel for the petitioner submits that learned appellate Court while passing the impugned order has failed to advert to the record of the case and passed the same completely on erroneous grounds. The impugned order suffers from material illegality and irregularity. The learned appellate Court has wrongly held that under Article 120 of `Qanun-e-Shahadat' Order the trial is necessary to be conducted for ascertaining the real facts and on law. He further submits that long silence of respondent was not taken into account by the learned appellate Court while passing the impugned order. He further submits that learned appellate Court has wrongly held that facts if were not clear, the learned trial Court should have record the better statement of the parties.

2. Learned counsel for the respondent controverted the arguments of learned counsel for petitioner and submits that learned appellate Court has rightly held that application under Order VII, Rule 11 CPC was not maintainable. The petitioner is real brother of respondent and respondent is in possession of property as co-owner with the petitioner. He further submits that without recording evidence and framing issues the plaint could not be rejected as the question of limitation is a mixed question of law and facts.

3. The respondent filed a suit for declaration to the effect that she is owner in possession being co-sharer of land measuring 13 kanals 7 marlas detailed in the head note of plaint being the share of 40 kanals 2 marlas with the petitioner and Mutation No. 801 attested on 6.6.1987 being the oral sale in favour of petitioner is the outcome of fraud committed by the petitioner with the collusion of Revenue Officials. The respondent in its plaint specifically averred as under:--

4. The petitioner filed written statement and in reply to these paras he replied as under:--

5. The pleadings of parties show that petitioner is denying the specific allegation of fraud and collusion levelled by the respondent. He has not specifically denied the transfer of property in his favour on 6.6.1987. He has alleged that he has purchased the property against consideration. His reply to the assertion of respondent are evasive and categorical. He has failed to deny that respondent has demanded the cancellation of mutation in his favour prior to the institution of suit. He has not denied that two weeks ago the respondent has not asked him about the return of her property. In these state of affairs the argument of learned counsel for the petitioner that the detail of fraud has not been alleged in the petition is devoid of any merit. Respondent has specifically alleged in his plaint that Mutation No. 801 dated 6.6.1987 is an outcome of fraud and is with the collusion of revenue officials. She has given the particulars of fraud that how the petitioner cheated her when on her refusal to lend him Rs. 50,000/- he asked that loan may be arranged from Agricultural Bank and in these circumstances she signed blank papers and obtained the photo copy of her identity card. The assertion of respondent was not specifically denied by the petitioner. He has not stated in his written statement that he purchased the property against consideration of Rs. 7,000/- as mentioned in the mutation specifically when the assertion of respondent is that mutation of sale is without consideration.

6. Argument of learned counsel for the petitioner that suit is barred by limitation is also not substantiated by pleadings of parties. The respondent has specifically asserted that two weeks before filing the suit the petitioner has refused to transfer her property in her name. The arguments of learned counsel for the petitioner is that the suit for cancellation of mutation of sale has been filed after lapse of 23 years but no particulars of fraud have been given and as such the suit is hit by Section 39 of the Limitation Act. He further argues that non-mentioning of particulars of fraud in plaint is fatal and as such the plaint was rightly returned by the Civil Court. He has relied on Chiragh Din Vs. Bakhat Bhari (2007 YLR 2941), Manzoor Ahmed Vs. Mst. Hanifan Bibi (1985 MLD 1255), Muhammad Ilyas Vs. Muhammad Bashir (PLD 2006 Lahore 365) Mian Muhammad Amin and another Vs. Mst. Khursheed Begum alias Naseem Begum through Legal heirs (PLD 2006 Lahore 371) Noor Bibi and 6 others Vs. Fazal Hussain and others (1998 SCMR 230) and also relied on Order VI, Rule 4 Code of Civil Procedure. The judgment referred by the learned counsel for the petitioner have distinguishable facts. The judgment referred by the learned counsel for the petitioner (2007 YLR 2941) and (1985 MLD 1255) shows that these were passed after recording evidence and question of Order VII, Rule 11 was not involved in these cases. Likewise in a judgment PLD 2006 Lahore 371 pertains to under Order VII, Rule 11 CPC, but in this case the jurisdiction of Civil Court arose was under challenge as the property subject matter of the suit was Evacuee property and declaration from the custodian to the effect that property in dispute is not an Evacuee property was required. In these case the property was auctioned and the plaintiff was not in possession of property, so the Hon'ble Supreme Court of Pakistan has come to the conclusion that original order of auction was not challenged and as such the limitation was applicable. No doubt the limitation is a matter of statute and provisions of Limitation Act are mandatory but the question of limitation has to be decided according to the circumstances of each and every case. The judgment referred by the learned counsel for the petitioner (PLD 2006 Lahore 365) pertains to a suit for pre-emption.

7. In the present case the contents of plaint shows that particular of fraud has been given by the respondent when she states that her brother asked a loan of Rs. 50,000/- from her, she informed that she has no money then her brother asked her to raise loan from Agricultural Development Bank and then she signed blank papers. She further asserted in her plaint that she is in possession of property being the owner as co-sharer with his brother, the petitioner has even failed to allege in his written statement that he has purchased the land against consideration of Rs. 7,000/- which is mentioned in the plaint. No doubt Order VI, Rule 4 provides that the plaintiff is bound to give the particulars of fraud in his plaint, but the term particulars reference to the detail vary on case to case basis, it is also an established principle of law that parties to the suit cannot be ordered to reveal his evidence. Order VI, Rule 5 is enacted only for clarification of any ambiguity in the pleadings of the parties. The learned trial Court was if of the opinion that particulars of fraud are not given in the plaint or some material facts are not clear and are ambiguous, the learned trial Court should ask the parties for a better statement under Order VI, Rule 5 instead of rejecting the plaint.

8. It is also an established principle of law that while deciding the application under Order VII Rule 11 CPC the Court has to see only the contents of plaint and even not the written statement and other material filed by the defendant/respondent. The learned appellate Court has rightly held that petitioner has filed the written statement and raised the objections which he has taken in his application under Order VII, Rule 11 CPC, the learned trial Court should have framed the issues and after recording the evidence should have decided the suit.

9. In view of above the impugned order does not suffer from any illegality or irregularity which can be interfered in the revisional jurisdiction of this Court. This petition fails and is dismissed.

(M.S.A.) Petition dismised.

PLJ 2011 Lahore 469 (DB)

Present: Nasir Saeed Sheikh & Mian Shahid Iqbal, JJ.

RANG ILAHI and 3 others--Petitioners

versus

BORDER AREA COMMITTEE FARID KOT HOUSE, LAHORE and another--Respondents

W.P. No. 66-R of 2003, decided on 16.4.2010.

West Pakistan Border Area Regulations, 1959--

----Regul. 4, 10, 12 & 13--Displaced Persons (Compensation and Rehabilitation) Act, 1958, Scope--Border Area Committee--Land was transferred by the deputy settlement commissioner under the settlement scheme--Border Area Committee declared the transfer order as void and illegal--Validity--Border Area Committee is a committee, which is constitution by the Provincial Government, whereas, the office of constituted under the provisions of a Federal Statute known as the Displaced Persons (Compensation and Rehabilitation) Act, 1958. [P. 472] A

West Pakistan Border Area Regulations, 1959--

----Regul. 10(a)--Allotment of land--Question of eligibility for allotment of land--Jurisdiction--Border Area Committee exercise its powers vested in it by virtue of Regulation 10(a) of the West Pakistan Border Area Regulation--Border Area Committee can only decide the question of eligibility of any person for allotment of land by itself or cancel any allotment made by it of land and direct the allottee to surrender forthwith the cancelled property to the deputy commissioner within whose jurisdiction the property is situated. [Pp. 472 & 473] B & C

Displaced Persons (Compensation and Rehabilitation) Act, 1958--

----Scope of--West Pakistan Border Area Regulations, 1959, Regul. 9 & 10--Constitutional petition--Allotment of land--Reading of the provisions of Regulations No. 9 and 10 do not envisage any power for the Border Area Committee to interfere with or adjudicate upon any order passed by a deputy settlement commissioner under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958--Petition accepted. [P. 473] D

Sh. Muhammad Hanif, Advocate for Petitioner.

Mr. Aamir Zahoor Chohan, Advocate for Respondent No. 1.

Mr. Muhammad Sajjad Afzal, Advocate for the Applicant in CM No. 816 of 2008.

Date of hearing: 12.4.2010.

Judgment

Nasir Saeed Sheikh, J.--The petitioners were transferred land Measuring 5 Kanals 8 Marlas situated in Khasra No. 6548, situated in Kasur Androon, Tehsil and District Kasur by the Deputy Settlement Commissioner vide order dated 04.08.1976 under the Settlement Scheme No. VI on a claim form submitted and registered at Serial No. 556, dated 28.11.1959 (Annexure-E) under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). This transfer of the land was subject-matter of an inquiry by the Border Area Committee, in pursuance to an order passed by a learned Single Judge of this Court dated 22.03.1994 in WP No. 850-R of 1980. The Border Area Committee vide order dated 08.04.2003 declared the transfer order in favour of the petitioners passed by the Deputy Settlement Commissioner dated 04.08.1976 as void and illegal.

1. This order dated 08.04.2003, passed by the Border Area Committee has been assailed in the instant writ petition.

2. The writ petition has been contested by the Border Area Committee. The Respondent No. 2, who claimed to be the auction purchaser of the subject land, which according to him is a Karkhana Burf, moved CM No. 1 of 2004 for being impleaded in the writ petition and vide order dated 19.03.2004, he was directed to be impleaded in the writ petition subject to all just exceptions. No body appeared on behalf of the Respondent No. 2, therefore, he is proceeded ex-parte.

3. It is contended by the learned counsel for the writ petitioners that the transfer order made in favour of the petitioners was duly passed by the then Deputy Settlement Commissioner vide Transfer Order dated 04.08.1976 under the Settlement Scheme No. VI in exercise of powers vested in him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) and the Border Area Committee-Respondent No. 1 has no lawful authority to cancel the order passed by the Deputy Settlement Commissioner of transferring the land in favour of the petitioners. The learned counsel for the petitioners elaborated that the observations made in the judgment dated 22.03.1994 passed in WP No. 850-R of 1980 relied upon by the Border Area Committee "that Border Area Committee will be at liberty to proceed with matter in accordance with law or institute proper proceedings in this behalf in case it is of the view that the transfer obtained by Respondents No. 3 to 6 is illegal or without jurisdiction" does not ipso facto confer a jurisdiction upon the Border Area Committee, which is not otherwise vested in it as there was no law which authorized the Border Area Committee to adjudicate upon the question of determining the legality or otherwise of the Deputy Settlement Commissioner's order dated 04.08.1976 what to say of cancelling it. It is argued that the impugned order dated 08.04.2003 passed by the Border Area Committee is absolutely illegal and without lawful authority. The learned counsel submitted that the application for obtaining of the subject property, which was an urban property in the form of a building was moved on 28.11.1959 and was registered with the Deputy Settlement Commissioner's office at Serial No. 556, which document is annexed with the writ petition. The learned counsel further argued that the Deputy Settlement Commissioner was a statutory officer empowered under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) and the order passed by the Deputy Settlement Commissioner was not at all amenable to the power of cancellation exercisable by the Border Area Committee-Respondent No. 1, thus, it was prayed that the impugned order dated 08.04.2003 be declared illegal, void and without lawful authority.

4. The learned counsel for the Respondent No. 1-Border Area Committee has contended that by virtue of the provisions of West Pakistan Border Area Regulation, 1959, it is within the exclusive jurisdiction of the Border Area Committee to allot or not land situated within the Border Area to any person and any order passed by the Deputy Settlement Commissioner with respect to such land is void ab-initio, illegal and without lawful authority and can be declared so by the Border Area Committee. The learned counsel in this context relied upon the judgment reported as Province of Punjab and others versus Member (Colonies), Board of Revenue, Punjab and others (1986 SCMR 529).

5. We have considered the arguments of the learned counsel for the parties and have perused the record.

6. The Border Area Committee is constituted by virtue of Regulation No. 4 of the West Pakistan Border Area Regulation, 1959, which reads as follows:--

"4. (a) The Provincial Government shall, for the purpose of this Regulation, constitute a committee or such number of committees as it considers necessary for the border area.

(b) A committee constituted under sub-paragraph (1) shall consist of two members, one to be appointed by the Board of Revenue and the other a representative of the Pakistan Army to be nominated by the General Headquarters.

(c) The Member of the Committee from the Pakistan Army shall be incharge of the office of the Committee.

(d) Any one of the members of the Committee present at the Headquarters may dispose of any routine matter relating to the functions of the Committee other than the allotment or cancellation of land and hearing of cases."

A bare reading of Regulation No. 4 highlights that the Border Area Committee is a committee, which is constituted by the Provincial Government, whereas, the office of the Deputy Settlement Commissioner was constituted under the provisions of a Federal statute known as the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958).

1. The writ petitioners applied for the transfer of the subject property vide form dated 28.11.1959, which was registered at Serial No. 556, copy of which is annexed with the writ petition as Annexure-E and the Deputy Settlement Commissioner vide order dated 04.08.1976 transferred the subject property to the writ petitioners. The Border Area Committee exercises its powers vested in it by virtue of Regulation 10 (a) of the West Pakistan Border Area Regulation, which reads as follows:--

"10 (a) A Committee may scrutinize allotment of any State land or immovable evacuee property within any border area and may, on being satisfied that any allotment was made to a person not eligible for allotment, cancel such allotment and direct the allottee to surrender forthwith the property to the Deputy Commissioner within whose jurisdiction the property is situated, failing which the Deputy Commissioner or the Committee may take possession of the property by evicting any person therefrom with such force as may be necessary for the purpose."

Regulation No. 12 of the West Pakistan Border Area Regulation further provides that all properties surrendered or taken possession of under this Regulation shall vest in the Provincial Government free from all encumbrances.

Regulation No. 13 of the West Pakistan Border Area Regulation provides that any property surrendered or taken possession of in pursuance of this Regulation shall be allotted by the Committee in such manner and on such terms and conditions as are prescribed in the Schedules annexed to this Regulation. Schedule-7 provides a list of eligible persons, who can be allotted land by the Border Area Committee for the purpose of Regulation No. 9.

1. A study of the above provisions thus provides that the Border Area Committee can only decide the question of eligibility of any person for allotment of land by itself or cancel any allotment made by it of land and direct the allottee to surrender forthwith the cancelled property to the Deputy Commissioner within whose jurisdiction the property is situated. Similarly, Regulation No. 9 provides that the Border Area Committee may scrutinize any case of unauthorized occupation of any State land or immovable evacuee property in any border area, and after giving an opportunity of being heard to the person likely to be affected, direct the person in unauthorized occupation of such property to surrender such property to the Deputy Commissioner within whose jurisdiction such property is situated.

The reading of the provisions of Regulations No. 9 and 10 do not envisage any power for the Border Area Committee to interfere with or adjudicate upon any order passed by a Deputy Settlement Commissioner under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). The acceptance of the arguments of the learned counsel for the respondent Border Area Committee will amount to reading something which is not provided for in the West Pakistan Border Area Regulation, 1959.

1. The judgment relied upon by the learned counsel for the Respondent No. 1-Border Area Committee does not help his case at all rather it lends support to the proposition that the two parallel departments i.e. Board of Revenue and the Border Area Committee have independent powers and spheres of working. In the said case, Border Area Committee passed an order of allotment of land and the Board of Revenue reviewed the said order of the Border Area Committee which order of the Board of Revenue was challenged before the High Court and the matter was decided with the observation that the order passed by the Board of Revenue of exercising power of second review in respect of the land, subject-matter of the said writ petition, which was allotted by the Border Area Committee to a particular claimant, was without jurisdiction and was set-aside. It was observed in the said judgment that the Board of Revenue does not figure anywhere in Paragraph No. 10 of the Schedule-3 of the West Pakistan Border Area Regulation, 1959, therefore, no jurisdiction can be exercised by the Board of Revenue to cancel the allotment made by the Border Area Committee of the land, subject-matter of the writ petition. The said judgment operates to lay down the law that if an allotment/ transfer has been made by a particular authority under a particular provision of law, then the machinery provided in the said law for enforcing the remedy against such an order has to be adopted. As the Border Area Committee, which is a Provincial Authority has no jurisdiction itself to adjudicate upon a matter and cancel the transfer order passed by the Deputy Settlement Commissioner under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), therefore, it has no power to declare as illegal an allotment of a property made by a Deputy Settlement Commissioner. If the Border Area Committee considers itself aggrieved of the correctness and authenticity of the transfer made in favour of the writ petitioners, it has to have recourse a Court of law for getting the decision on this point.

2. We under the exercise of Constitutional jurisdiction cannot give protection to the impugned order dated 08.04.2003, passed by the Border Area Committee, which exceeds the limits prescribed by the West Pakistan Border Area Regulation, 1959.

3. In view of all the above circumstances, the W.P. N0.66/R of 2003 is accepted and the impugned order dated 08.04.2003 is declared to have been passed illegally and is, therefore, without lawful authority and is set-aside without any orders as to costs.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 474

Present: Ch. Muhammad Tariq, J.

Mst. AZRA BIBI--Petitioner

versus

CHIEF SETTLEMENT COMMISSIONER PUNJAB, LAHORE and 7 others--Respondents

W.P. No. 33-R of 2009, decided on 28.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Evacuee Property--Allotment by settlement authorities--Jurisdiction of High Court--Validity--Where the allotments relied upon were made by the settlement authorities were illegal and without jurisdiction and were based on fraud and forgery, in that eventuality, even if, board of revenue which exposed the fraud and forgery and set-aside illegal transfer of properties by its own orders, High Court would not in exercise of its discretionary jurisdiction annual the order of board of revenue even though it was clearly without jurisdiction--Civil litigation between rival claimants and other, complicated question of title, possession and allotment were involved which cannot be looked in the constitutional jurisdiction of High Court--Order accordingly. [P. 479] A

PLD 1991 SC 691, rel.

Ch. Muhammad Jahangir Wahla, Advocate for Petitioner.

Ch. Muhammad Latif Khan Sara, Advocate for Petitioner.

Mr. Shahzad Mahmood Butt, Advocate for Petitioner.

Rana Shamshad Khan, AAG for Respondents.

Date of hearing: 28.4.2010.

Order

These are three Writ Petitions No. 33-R of 2009, 35-R of 2009, 93-R of 2009, in which the subject matter as well as parties are same so all these three writ petitions are being decided through this single consolidated judgment.

1. Brief facts as narrated in Writ Petition No. 33-R of 2009 are that suit land Measuring 01 Kanal 16 Marla Bearing Khasra No. 134 situated in Revenue Estate of Mouza Mozang, Shanan Road, GOR-I, Lahore which was originally evacuee property and after partition of sub-continent one Mustansar Atta deceased along with Respondent No. 3 Ghulam Qadir son of Shah Muhammad took over the possession of suit land and constructed a partition wall dividing the aforesaid plot in two different portions of 18 Marlas (approximately) each. Respondent No. 3 raised the construction of three rooms in the portion of the plot in his possession and Mustansar Atta deceased constructed two rooms and a kitchen in the remaining 18 Marlas possessed by him. On the advent of settlement operation, Mustansar Atta deceased and the Respondent No. 3 made a joint application BS Form Bearing Registration No. 1138 dated 11.1.1971 for the transfer of the total plot in their joint names.

2. The notified officer vide order dated 18.12.1976 found Mustansar Atta deceased and Respondent No. 3 (Ghulam Qadir) entitled to the transfer of the said plots in equal share. The terms of the transfer order transferee owners paid the price of the plot, amount of rent and settlement fee etc. by depositing the same in government treasury whereafter transfer order No. 92610 dated 23.5.1990 was issued by the Settlement Authorities in their favour.

3. The said Mustansar Atta transferee died on 28.1.2003 and was succeeded by the Respondents No. 5 to 8 as his legal heirs. On 02.3.2005, Respondents No. 5 to 8 transferred all their rights and title in respect of land Measuring 18 Marla Bearing Khasra No. 134 vide sale deed No. 2510 dated 02.3.2005 registered with sub-Registrar Data Ganjh Baksh Town, Lahore to the petitioner.

4. That on 10.1.2006 in the absence of the petitioner, the Respondent No. 3 removed the gate, demolished the dividing wall and rooms and forcibly and illegally dispossessed the petitioner from the property who feeling aggrieved filed complaint under Illegal Dispossession Act for the restoration of possession against Respondent No. 3 which was decided in favour of the petitioner up to High Court. Meanwhile on 21.11.2006, the petitioner in order to complete her record made an application to the Excise and Taxation Department who directed the petitioner to get the order verified by the Respondent No. 2 who vide order dated 22.12.2008 returned the case on the ground that the case property is of very valuable nature and Verification Committee is of the view that after hearing both the parties the state land may be resumed in favour of state on merit. This order was assailed before Member Board of Revenue/Chief Settlement Commissioner who finally decided the matter and gave the following findings vide order dated 19.2.2009:

"Plot Measuring 01 Kanal and 16 Marlas which is open and un-constructed is the property of the Provincial Govt. (formerly Evacuee). It is situated on the canal adjacent to Danepur Lane and Shanan Road, GOR-I, Lahore. This is the area which carries the highest value for residential plots in Lahore. In the event of disposal by open auction at site after due publicity, this property be sold to the highest bidder or it can be used for the construction of Bungalow of GOR-I. District Officer (Revenue) Lahore is directed to protect this property from encroachment and illegal occupation. A copy of this order shall also be delivered in the office of Chief Secretary, Punjab and Senior Member, Board of Revenue, Punjab for information. The decision in this case was reserved on 26.1.2009 and it is being announced today. Parties should be informed of the decision immediately."

1. Learned counsel for the petitioner contends that the petitioner is bona fide purchaser for consideration without notice and her rights are very much protected under the Transfer of Property Act, 1876. The property in dispute was validly transferred to Mustanser Atta deceased by the settlement authorities. Transfer Order No. 92610 dated 23.5.1990 was issued to the deceased on payment of price, settlement fee and other dues which was deposited in the government treasury. The petitioner at the time of entering into the bargain for the purchase of the property was handed over the original transfer order along with other documents including site plan etc. Therefore, impugned order dated 19.2.2009 passed by the Chief Settlement Commissioner, Punjab, Lahore for cancellation of transfer Order No. 92610 dated 23.5.1990 and to annual subsequent transaction i.e. sale-deed No. 2510 with regard to the property Khasra No. 134 Measuring 134 Measuring 18 Marla situated in Revenue Estate Mouza Mozang, Shanan Road GOR-I be declared illegal without lawful authority and is liable to be set aside.

2. Learned counsel for the Writ Petition No. 35-R contends that property comprising on Khasra No. 134 Shanan Road, situated in Mouza Mozang measuring 01 kanal 16 Marla was allotted to one Muhammad Bashir Son of Daulat Ali against PTO No. 400776 dated 14.3.1961 by the Deputy Settlement Commissioner-I, Lahore and later on PTD was issued to him. The said allottee transferred one half of the said property measuring 18-Marlas from Khasra No. 134 in favour of the petitioner Rao Muhammad Safdar Khan against the consideration price of Rs. 3650000/- vide registered sale-deed No. 5750 Book No. 1 Volume No. 1501 dated 22.8.2008 and possession of the same was also handed over to the petitioner where the petitioner constructed a house comprises of two bed rooms, attach bathrooms one servant quarter etc. On verification, verified committee unanimously decided that since there are as many as four contestants for property Bearing Khasra No. 134, therefore, the matter be referred to the Member Board of Revenue/Chief Settlement Commissioner for decision who vide order dated 19.2.2009 decided the matter as above.

3. Learned counsel for the petitioner has frankly admitted that civil litigation between Muhammad Bashir and rival claiminants is pending in the Civil Court with respect of above property. Further learned counsel for the petitioner contends that Chief Settlement Commissioner is no more in existence of order so impugned order passed by the Chief Settlement Commission is no more existence so impugned order passed by the Chief Settlement Commissioner is void abinitio and is liable to be set aside. He further contends that petitioner was condemned unheard, therefore, impugned order dated 19.2.2009 is not sustainable in the eyes of law and is liable to be struck down on this ground alone.

4. Learned counsel for the Writ Petition No. 93-R-2009 contends that the petitioner migrated from East Punjab, India on the partition of the Sub-Continent in the year 1947 and in the year 1965, the petitioner occupied 01 Kanal 16 Marla land belonging to the evacuee owner. The petitioner in the first instance used to for fethering his cattle, like buffaloes and cows and he was engaged in selling milk to earn his livelihood. The petitioner remained in continuous possession of the suit property till 19.7.2006. The petitioner after the occupation of said area, raised pacca construction of four rooms, high boundary wall and gate etc and obtained electricity connection and also applied for providing sui-gas.

5. Learned counsel further contends that in the year 2005, one Maqsood Ahmed Son of Feroze Din who falsely claimed to be owner of the portion of said evacuee land tried to dispossess the petitioner and on the report of petitioner, a case F.I.R No. 196/2005 under Sections 448, 511 PPC against the said Maqsood Ahmed was registered in Police Station Racecourse, Lahore. Learned counsel for the petitioner further contends that Maqsood Ahmed, Mustansar Atta, Azra Bibi, Bashir Ahmed, Rao Safdar, Javed Ahmed were active members of group of land grabbers. They tried to take over possession of the plot from the petitioner on the false claim of being owners and ultimately on 20.1.2006, the respondent Azra Bibi filed complaint under Illegal Dispossession Act, 2005 in respect of 18 Marlas of suit land seeking the dispossession of petitioner with the false plea that she is owner in possession of property to the extent of 18 Marla in Khasra No. 134 and obtained the order of petitioners dispossession.

6. The petitioner approached the Member (Settlement and Rehabilitation), Board of Revenue through the petition stating therein that the aforesaid persons were active members of a notorious gang of land grabbers and that the petitioner had been in occupation of said plot since 1965 and he also applied for transfer of area on 29.9.2003 of the evacuee property Measuring 01 Kanal 16 Marlas and sought grant of ownership rights according to the terms of the department on the basis of long possession but request of petitioner was turned down vide order dated 19.2.2000 passed by the Member (Judicial-V) / Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore. Learned counsel for the petitioner contends that Ghulam Qadir is in possession of suit land since 1965 who has also constructed four rooms and boundary wall and obtained utility connections in the suit land. He is entitled to be granted propriety rights under the law and the impugned order be declared as illegal, void, without lawful authority and liable to be set aside. In support of their contentions, learned counsel for the petitioners relied on PLD 1991 SCMR 84, PLD 1993 Supreme Court 1047, 2009 YLR 1255 and PLD 2009 Lahore 78.

7. On the other hand, learned Assistant Advocate General, Punjab appeared on behalf of the respondents has vehemently opposed all the writ petitions and has contended that Board of Revenue enjoys the power to declare the document as forged document. He has supported the impugned order and has contended that writ petitions be dismissed.

8. Arguments heard. Record perused.

9. Admittedly, Civil litigation is pending between the petitioners who are revival contestants in respect of same property which is admittedly the area caries the highest value in Lahore. In Writ Petition No. 35-R of 2009, the petitioner in ground-F of his petition has categorically conceded that civil litigation between Muhammad Bashir and rival claiminants is pending in the Civil Court with respect to the suit property. Similarly in Writ Petition No. 93-R of 2009 filed by Ghulam Qadir, petitioner, in sub-Para No. 2 of Para No. 11 of his writ petition, Ghulam Qadir has frankly conceded that the transfer Order No. 92610 in his name and Mustansar Atta was forged and fabricated document and both were never in possession of plot and there was no permanent construction thereon. In a situation, where the allotments relied upon are made by the Settlement Authorities were illegal and without jurisdiction and were based on fraud and forgery, in that eventuality, even if, board of revenue which exposed the fraud and forgery and set aside illegal transfer of properties by its own orders, High Court would not in exercise of its discretionary jurisdiction annul the order of board of revenue even though it was clearly without jurisdiction. Relied on law laid down in case titled "Muhammad Baran and others Vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others reported as PLD 1991 Supreme Court 691. In addition, civil litigation between rival claimants and other, complicated question of title, possession and allotment are involved which can not be looked in the Constitutional jurisdiction of this Court. Admittedly, civil litigation is already pending between the parties and in such like matter, civil Court has jurisdiction to entertain in the matter and the jurisdiction of Civil Court cannot be ousted. Relied on 2009 SCMR 1233. In the light of above discussion, no interference is called for. Order accordingly.

(M.S.A.) Order accordingly.

PLJ 2011 Lahore 479

Present: Ch. Muhammad Tariq, J.

Mst. KHURSHID BIBI and others--Petitioners

versus

LIAQAT ALI and others--Respondents

C.R. No. 1114 of 2005, decided on 20.4.2010.

West Pakistan Land Revenue Act, 1867--

----S. 161--Appeal could be preferred to the collector/DOR (r) within a period of thirty days from the date of original order passed by the Assistant Collector of either grade. [P. 482] A

Daily Diary of Patwari--

----Daily Diary of Patwari is not a part of revenue record--Such diary is kept and maintained by patwari just to show his activities and diligence. [P. 482] B

Mutation--

----Mutation is not a proof of title but it is an oral sale and it is not essential that vendor shall put his signature/thumb impression on proceedings mutation. [P. 482] C

Jurisdiction of Revenue Courts--

----Summary Proceedings before the revenue officer or before the revenue Court is of summary nature and whenever there is complicated question of law or fact is involved--Exclusive jurisdiction vests to the Civil Court to decide the same--Long standing entries qua the allegation of fraud should be dealt by the Civil Court because revenue authorities have no jurisdiction to interfere in such like matters--Mutation being summary proceedings revenue authorities could not clinch complicated matter in summary proceedings. [P. 482] D & E

1990 CLC 1968 & 1994 MLD 2254, ref.

M/s. Liaqat Ali Bhatti and Muhammad Ghani, Advocates for Petitioners.

Mr. Salman Afzal Malik, Advocate for Respondents.

Date of hearing: 20.4.2010.

Order

Brief facts of the case are that the suit land Measuring 134 Kanal situated in village Dhonday, Tehsil and District, Lahore was transferred in the name of Taleh Mand vide Mutation No. 185 dated 16.5.1974. The said Taleh Mand died leaving behind him one son Farzand Ali and one daughter Mst. Khurshid Bibi. The estate of deceased Taleh Mand was devolved upon his son and daughter vide mutation of Inheritance No. 186 on the same day and another mutation of sale Bearing No. 187 was also attested on the same day i.e. 16.5.1974 whereby Mst. Khurshid Bibi sold her share in the suit land to Farzand Ali, her real brother. Farzand Ali died in the year 1994. After the death of Farzand Ali, the said Mst. Khurshid Bibi challenged the mutation of Sale No. 187 whereby the share of Mst. Khurshid Bibi was transferred by way of sale to her brother Farzand Ali. On 14.12.1999, Additional Deputy Commissioner (G)/ Collector Lahore City accepted the appeal of Mst. Khurshid Bibi and cancelled the mutation of Sale No. 187 in favour of his brother Farzand Ali. While dictating the order, the question of limitation was decided in the manner that since the mutation of sale Bearing No. 187 was result of fraud, therefore, limitation do not run against a void order and with this observation, Mutation No. 187 was reviewed and cancelled.

1. The legal heirs of Farzand Ali filed appeal against the order dated 14.12.1999 before the Commissioner Lahore Division which was also dismissed on 17.4.2001. The legal heirs of Farzand Ali further assailed the order of Commissioner, Lahore in the revision petition before the Board of Revenue which met the same fate and vide order dated 30.9.2009, Mr. Muhammad Ayub Malik, learned Member (Judicial-IV), Board of Revenue, Lahore dismissed ROR No. 668/2001. Feeling aggrieved, the legal heirs of Farzand Ali filed a suit for declaration before Civil Court on 28.10.2002. The suit was contested by the parties and on 08.12.2004, learned Civil Judge dismissed the suit. The legal heirs of Farzand Ali further assailed the judgment and decree dated 08.12.2004 passed by the learned trial Court in appeal which was accepted by Mr. Shoukat Iqbal Ahmed, learned Additional District Judge, Lahore vide judgment and decree dated 01.4.2005. Hence, this Civil Revision.

2. Learned counsel for the petitioner contends that impugned judgment and decree dated 01.4.2005 is against law and facts. The learned Appellate Court misread the record of case and went beyond his jurisdiction. The learned Appellate Court has failed to apply its judicial mind. The impugned judgment and decree is nullity in the eyes of law and is not sustainable. He has emphasized more on the cross-examination of PW-1 who is Lamberdar who deposed that Mst. Khurshid Bibi put her thumb impression in his presence while on the mutation, there is no mark of thumb impression of Mst. Khurshid Bibi which shows that Mutation No. 187 was result of fraud and mis-representation and concealment of fact and the same is liable to be set aside. The learned counsel for the petitioner has further contended that civil Court has no jurisdiction to entertain and disturb the concurrent findings of facts by the Revenue Authorities, therefore, Civil Revision be allowed and impugned judgment and decree passed by the learned Appellate Court be set aside and the judgment and decree passed by the learned trial Court be restored.

3. On the other hand, learned counsel for the respondent has supported the judgment and decree passed by the learned Appellate Court and has contended that Civil Revision be dismissed with cost.

4. Arguments heard. Record perused.

5. In the instant case, the question of jurisdiction and limitation are of paramount importance.

6. Admittedly, Mutation No. 185, 186, 187 were sanctioned on 16.5.1974. Mst. Khurshid Bibi filed appeal on 14.1.1998 after about twenty four years of sanction of mutation. Section 161 of Land Revenue provides that appeal could be preferred to the Collector/ DOR (R) within a period of thirty days from the date of original order passed by the Assistant Collector of either grade. It further provides that appeal against the order of collector/DOR (R) to the Executive District Officer (Revenue) could be filed within a period of sixty days from the date of announcement of order and finally appeal to the Board of Revenue could be filed within 90 days of the announcement of order. There is no concept that Revenue authorities can exercise their power in appeal after period prescribed under Section 161 of Land Revenue Act. Although Section 5 of Limitation Act to condone delay is applicable in the revenue matter but no such application was filed by Mst. Khurshid Bibi nor plausible grounds for condonation of delay were brought before the Revenue authorities and simply on appeal filed after lapse of twenty four years it do not confer jurisdiction upon the Revenue Authorities to decide the share and title of the parties.

7. Record further reveals that Mst. Khurshid Bibi never challenged the mutation of sale in favour of Farzand Ali, Predecessor of Respondents Nos. 1 to 11 till he remained alive. Farzand Ali was died in the year 1994 and thereafter, Mst. Khurshid Bibi challenged the mutation of Sale No. 187. The objection of learned counsel for the petitioner that Mutation No. 187 was not entered in the daily diary of patwari will have no adverse inference because daily diary of partwari is not a part of Revenue record. This diary is kept and maintained by patwari just to show his activities and diligence. Similarly, non-appearance of signatures or thumb impression of Mst. Khurshid Bibi on pirth sarkar is not fatal because the mutation is not proof of title but it is an oral sale and it is not essential that vendor shall put his signature /thumb impression on mutation. Admittedly, the possession is with the respondent.

8. It is pertinent to mention here that Mutation Nos. 185 and 186 were also sanctioned on the same day i.e. 16.5.1974. There examination and attestation has never been challenged by the petitioner.

9. It has been repeatedly held by the superior Courts and similarly law itself provides that proceedings before the Revenue Officer or before the Revenue Court is of summary nature and whenever there is complicated question of law or fact is involved. The exclusive jurisdiction vests to the Civil Court to decide the same. The Revenue Authorities have exceeded from their jurisdiction and have erred while interfering in the complicated question of title. Longstanding entries qua the allegation of fraud should be dealt by the Civil Court because Revenue Authorities have no jurisdiction to interfere in such like matters. Mutation being summary proceedings Revenue authorities could not clinch complicated matter in summary proceedings. As at the time of attestation of mutation, no detail evidence is recorded by Revenue Officer and it is the function of civil Court to decide matters after framing of issues and recording of evidence of both the parties. Reference is placed on case law reported as 1990 CLC 1968, 1994 MLD 2254. Another important aspect of the case is that Mst. Khurshid Bibi miserably failed to produce any corroborative evidence in support of her version. Even she herself did not appear as a witness. The impugned judgment passed by the learned Appellate Court is in accordance with law and facts. There is no illegality or infirmity in the impugned judgment. Resultantly, this Civil Revision is devoid of merit. No interference is called for. Hence same is dismissed. No order as to costs.

(M.S.A.) Revision dismissed.

PLJ 2011 Lahore 483

Present: Shahid Hameed Dar, J.

Mst. TAYYABA KIRAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others--Respondents

W.P. No. 2030 of 2007, decided on 5.5.2010.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Constitutional petition--Challenging the validity of order passed by Ex-officio Justice of Peace--Directing to get the cheques returned to the petitioner--Validity--Ex-officio Justice of Peace appears to have been swayed away by the excesses, committed by the police, therefore, some element of harshness has crept in the impugned order, whereby, the Ex-officio Justice of Peace has directed to get the cheques returned to the petitioner--Validity of the cheque shall be best assessed by the trial Court, seized with the trial of the case--Order accordingly. [P. 487] A & B

Mr. Naseer Ahmad Awan, Advocate for Petitioner.

Mr. Abdul Ghaffar Khan, Advocate for Respondent No. 3.

Mr. Aamir Jalil Siddiqui, AAG for Respondents.

Date of hearing: 5.5.2010.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the validity of order dated 06.02.2007 passed by the learned Ex-Officio Justice of Peace/Add:Sessions Judge, Gujranwala, Respondent No. 1, wherein certain observations and directions have been made, which according to the contention of the petitioner, are uncalled for, unlawful and beyond the scope and authority/powers of the learned Ex-Officio Justice of Peace.

1. The brief facts, necessitating institution of the instant writ petition are that Zahid Mehmood alias Gosha, Respondent No. 3, filed a petition under Sections 22-A/22-B Cr.P.C before the learned Ex-Officio Justice of Peace, Gujranwala against DPO, Gujranwala, SHO, Police Station Gakkhar Mandi, Tayyaba Kiran (the petitioner) and Sohail Aziz (the husband of Mst. Tayyaba Kiran) contending therein that cheques, forcibly obtained from him by the police may be ordered to be returned to him and that proceedings should be conducted against the respondent-accused.

2. The learned Ex-Officio Justice of Peace called for the comments of SHO, P.S Gakkhar Mandi, District Gujranwala, Respondent No. 2 who submitted his report dated 18.01.2007 to the effect that nobody had extended threats to Zahid Mehmood nor the cheques were forcibly taken from him; the SHO further submitted that Mst. Tayyaba Kiran (the petitioner) and the wife of Respondent No. 3 were real sisters who had amicably settled their dispute through notables of the area.

3. The learned Ex-Officio Justice of Peace, on receipt of the said police report, passed the impugned order, whereby, he observed as under:

"Perusal of record reveals that the local police in its report dated 18.11.2007 had admitted that both the parties were summoned at P.S Gakkhar Mandi. The said cheques were got delivered from the petitioner amicably on the intervene of respectables of both the parties. The dispute going on between the parties was admittedly of civil nature and under the law the local police could not interfere in it without registration of a criminal case. The action taken by the Respondent No. 2 in obtaining the aforementioned cheques from the petitioner was an excess committed by him in relation to his functions and duties within the meaning of Section 22-A(6) clause III Cr.P.C. The present petition is, therefore, accepted and Respondent No. 2 is directed to get the aforementioned cheques returned to the petitioner."

1. Learned counsel for the petitioner contends that the impugned order dated 06.02.2007 passed by Respondent No. 1 is illegal, void ab-initio and unlawful which is liable to be set aside; that the impugned order has been passed in disregard to the relevant law and facts of the case; that a civil suit had been filed by Zahid Mehmood, Respondent No. 3 in the Civil Court, Gujranwala alongwith an application for temporary injunction but the learned Civil Judge refused to award interim injunction by holding that monitory loss was no loss; that the impugned order has been passed on the back of the petitioner who has been condemned unheard; that one of the three cheques Bearing No. 0058211 is the case property of case FIR No. 145 of 2007 dated 01.02.2007 under section, Police Station, Model Town, Lahore against Zahid Mehmood, Respondent No. 3; that the learned Ex-Officio Justice of Peace had assumed the charge of an Investigating Officer by passing the order qua return of cheques to Zahid Mehmood, Respondent No. 3, through SHO, Police Station Gakkhar Mandi; that the impugned order is patently illegal without jurisdiction and is not sustainable in the eyes of law; that the impugned order has resulted in grave miscarriage of justice.

2. On the other hand, learned counsel for the Respondent No. 3 contends that Tayyaba Kiran, the petitioner, presented an application before DPO, Gujranwala, who, in violation of all provisions of law summoned Zahid Mehmood, Respondent No. 3 to the Police Station Gakkhar Mandi and made him issue three cheques Bearing No. 0058210, 0058211 and 0058212, duly signed by him, under coercion and delivered these cheques to Tayyaba Kiran (petitioner) and her husband Sohail Aziz; that Zahid Mehmood, Respondent No. 3 having been disgraced and harassed by the DPO, Gujranwala, moved an application before the DIG, Gujranwala, who entrusted the matter for inquiry to Addl. DIG, Gujranwala who after detailed inquiry formulated his report to the effect that a pecuniary dispute existed between wife of Dr. Zahid Mehmood, Respondent No. 3 and the wife of Professor Sohail Aziz but Zahid Mehmood had been forced to issue the cheques, whereas, he was not supposed to do so as everyone was responsible for one's own deeds, therefore, he recommended that the act of obtaining cheques from Dr. Zahid Mehmood was illegal and unlawful and that the cheques should be declared as invalid; The Addl: DIG further held in inquiry that the wife of Sohail Aziz (Tayyaba Kiran, the petitioner) could receive her money from the wife of Dr.Zahid Mehmood through a legal recourse; that Mst. Tayyaba Kiran had instituted a civil suit for cancellation of exchange agreement which was dismissed by the learned Civil Judge on 12.10.2009; that the inquiry report formulated by the Addl: DIG, had been challenged by Mst. Tayyaba Kiran through a separate Writ Petition No. 889 of 2007 which is also pending adjudication for today; that in the light of the findings of the Addl. DIG, Gujranwala, the learned Ex-Officio Justice of Peace had passed the impugned order dated 06.02.2007; that Zahid Mehmood, Respondent No. 3 did not owe any amount at all to Mst. Tayyaba Kiran, the petitioner, so, the act of obtaining cheques from him by the DPO, Gujranwala and passing it over to Mst. Tayyaba Kiran etc. was absolutely illegal, uncalled for and a worst example of abuse of process of law and authority; that the order of learned Ex-Officio Justice of Peace, has been passed correctly who, has not traversed beyond scope of his authority; lastly contends that the instant petition may be dismissed.

3. Arguments heard. Record perused.

4. The petitioner admittedly has a monitory dispute with Mst. Mubashara Iram, the wife of Zahid Mehmood, Respondent No. 3. Zahid Mehmood, Respondent No. 3 did not owe even a single penny to Mst. Tayyaba Kiran, the petitioner or to her husband Professor Sohail Aziz yet, he was compelled by the DPO, Gujranwala and SHO Police Station, Gakkhar Mandi to come to Police Station Gakkhar Mandi where he was forced to issue three aforesaid cheques with his signatures, which were handed over to the petitioner Mst. Tayyaba Kiran and her husband. There cannot be a worst example of abuse of process of authority and law by a senior Police Officer like the DPO, Gujranwala and under his subordination by the SHO Police Station Gakkhar Mandi. If Mst. Tayyaba Kiran, the petitioner had any pecuniary dispute with the wife of Zahid Mehmood, Respondent No. 3, she could resolve the matter firstly at the family level being the close relatives and in case of failure, she could agitate the matter before a competent civil Court for redressal of her grievance. The learned counsel for the petitioner has repeatedly argued that Zahid Mehmood, Respondent No. 3 was responsible for all the acts and deeds of his wife and if any wrong had been done by Mubashara Iram, it was necessarily Zahid Mehmood, Respondent No. 3 to be taken to task. This submission of the learned counsel for the petitioner is patently illegal and militates against the basic principles of law and equity, as, every body is liable for one's act and deed. The wife of Zahid Mehmood, Respondent No. 3 is an independent entity like any other individual. In both the inquires, first conducted by S.H.O, Police Station Gakkhar Mandi, District Gujranwala and Addl. DIG, Gujranwala, the conclusion drawn is common, which relates to the fact that Mubashara Iram, the wife of Zahid Mehmood, Respondent No. 3 owed a sum of Rs. 3,50,000/- to Tayyaba Kiran, the petitioner and in none of the two inquiries it has been opined by the Inquiry Officers that Zahid Mehmood had ever received any amount of money from Mst. Tayyaba Kiran. In this eventuality, to pressurize and overawe Zahid Mehmood, Respondent No. 3 for issuance of the aforesaid cheques, is unjustified and undesirable.

5. So far as the impugned order passed by learned Ex-Officio Justice of Peace is concerned he appears to have been swayed away by the excesses, as discussed above, committed by the police, therefore, some element of harshness has crept in the impugned order, whereby, the learned Ex-Officio Justice of Peace has directed the Respondent No. 2 to get the aforementioned cheques returned to the petitioner. Besides, the other observations made in the impugned order are absolutely on the legal plank.

6. What can be the validity of the Cheque No. 0058211, the case property of case FIR No. 43 of 2007 supra shall be best assessed by the learned trial Court, seized with the trial of the said case. The petitioner has all the legal remedies available at her disposal to get her grievance redressed by approaching the competent civil Court, if so advised. I do not find any illegality in the impugned order barring the one, as discussed above.

7. For what has been discussed above, the instant petition stands disposed of in the aforementioned terms.

(M.S.A.) Petition disposed of.

PLJ 2011 Lahore 487

Present: Muhammad Khalid Mahmood Khan, J.

SHAUKAT ALI KHAN--Appellant

versus

MUHAMMAD HUSSAIN--Respondent

S.A.O. No. 29 of 2008, decided on 10.5.2010.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 147--Under Art. 147 of the Qanoon-e-Shahadat Order, the statements and pleadings between the parties in earlier litigation are relevant and can be read in the subsequent litigation. [P. 493] A

Punjab Rent Restriction Ordinance, 1959--

----S. 13-A--Ejectment petition--Proceedings--Notice was not received--Ejectment petition itself was a notice--Validity--It was proved that respondent was tenant in shop but had failed to tender the rent in accordance with law in terms of demand of notice, hence he was enable to be rejected. [P. 493] B

Mr. Muhammad Yasin Chughtai, Advocate for Appellant.

Mr. Zaheer Zulfiqar, Advocate for Respondent.

Date of hearing: 1.4.2010.

Judgment

Through this second appeal the appellant has assailed two orders dated 16.9.2006 and 11.1.2008 passed by Rent Controller and Additional District Judge Lahore.

1. This appeal has a long history of litigation, briefly stated the facts of the case are that appellant filed an ejectment petition against respondent from a shop situated at 8-Hal Road Lahore bearing property No. S-50-R-8/1, detailed in Para No. 1 of the petition. The petitioner claimed that in the year 1960 his grand father Qamar Din purchased the shop in dispute from Settlement Department in open auction and P.T.O was issued to him. Qamar Din died in the year 1961 and after his death the property was transferred in the name of his uncles namely Khalid Ali Khan with the consent of other claimants. Final Transfer Order was issued to Khalid Ali. Khalid Ali Khan died and his son Sohail Khalid become the owner of shop by virtue of decree dated 05.7.1984. The petitioner on 06.6.1998 purchased the above said shop from Sohail Khalid S/O Khalid Ali Khan through a registered sale-deed.

2. The petitioner and Sohail Khalid prior to the instant ejectment petition filed an ejectment petition against the respondent in the year 1986 which was dismissed on 17.5.2001 as a suit for specific performance of agreement was pending disposal between the parties.

3. The history of the suit for specific performance of the agreement as narrated by the parties and available on record is, the respondent filed a suit for specific performance of agreement dated 20.8.1960 against Qamar-u-Din claiming that he agreed to sell the shop to him against consideration of Rs. 7050/- and received Rs. 100/- as earnest money. The balance amount was payable in installments of Rs. 50/- per month. According to respondent, he continued to pay the agreed installments to Qamar Din till his death (February 1961) and on the refusal of legal heirs of deceased Qamar Din to honour the alleged agreement to sell, he filed a suit for its specific performance. The suit remained pending adjudication and on 03.11.2001 it was finally dismissed from Honourable Supreme Court of Pakistan.

4. The petitioner after purchasing shop on 16.9.2002 served a notice U/S. 13-A of Punjab Rent Restriction Ordinance to respondent and claimed tenancy by operation of law. The petitioner then filed ejectment petition on two grounds, default in payment of rent and personal need.

5. The respondent denied the relationship of landlord and tenant and claimed that notice U/S. 13-A of the Rent Restrict Ordinance came into action only when the relationship of landlord and tenant between the occupant and vendor of the petitioner exists. In addition to this he claimed to be the purchaser of shop under an agreement to sell with Qamar Din and as such he claimed the possession of shop as owner.

6. Out of divergent pleadings of the parties, the learned Rent Controller framed the following issues:--

"ISSUES:

1. Whether there exists relationship of landlord and tenant inter se between the parties? OPA

2. Relief.

3. Both the parties adduced their respective evidence. The learned Rent Controller vide order dated 16.9.2004 dismissed the petition holding that earlier owner Mr. Sohail Khalid filed an ejectment petition against the respondent, the petition was dismissed on 16.9.2004 a suit for specific performance is pending between the parties. The appellant assailed the dismissal order through an appeal, which too was dismissed on 07.6.2007. The appellant filed second appeal which was allowed on 17.7.2007 with the consent of parties in the following terms:

"After arguing the matter at some length, the learned counsel for the parties agree and concur that the impugned, order dated 07.6.2007, whereby the proceedings were remanded to the trial Court, be set aside on the following terms:--

(i) The learned appellate Court itself consider the impact and import of the contents of the paper book filed in CPLA No. 200/2005 in the Honourable Supreme Court of Pakistan and permit both the parties to raise all questions of law and facts to the admissibility of the documents contained therein, or otherwise.

(ii) The matter thereafter be decided in accordance with law by passing a speaking order, after hearing both the parties.

(iii) The proceedings be remitted to the learned District Judge, Lahore to either hear the matter himself or refer it to any other Court of competent jurisdiction, except Mr. Abdul Nasir, Additional District Judge, Lahore for adjudication. The appeal therefore, allowed in the terms agreed, the impugned order is set-aside, the parties are directed to appear before the District Judge Lahore on 27th July 2007."

1. The appellant in terms of orders dated 17.7.2007 filed an application for producing additional evidence. The learned appeal Court vide order dated 24.10.2007 dismissed the application and also dismissed the appeal through an order dated 11.1.2008, hence the second appeal.

2. Learned counsel for the appellant submits that first appellate Court has failed to appreciate that application for additional evidence was filed in terms of consent order dated 17-7-2007 hence it was not open for the appellate Court to dismiss the application. He submits it is an admitted fact that suit for specific performance remain pending between the vendors/transferee and the respondent and as such the agreement to sell available at the page 138 of the paper book of CPLA No. 202-L/2005 should have been taken into consideration by the first appellate Court. He submits that first appellate Court has failed to appreciate that after dismissal of suit for specific performance of agreement the status of respondent stand restored as tenant and the requirement of notice U/S. 13-A of the Punjab Rent Restriction Ordinance 1959 stand complied with. He adds that learned appeal Court has failed to examine the page 138 of paper book with reference to the orders dated 17.7.2007 passed by the High Court in Appeal No. 81/2007.

3. Learned counsel for the respondent supports the impugned judgment and submits that he is not the tenant of any person including the petitioner and maximum it can be said that he is an illegal occupant but is not a tenant and if the appellant is claiming the ownership of shop he should file a suit for possession against the respondent. He adds that respondent is occupying the shop as owner of the same.

4. Heard. Record perused.

5. Certain facts are admitted between the parties, that Qamar Din was the transferee of property, after his death Khalid Ali became the owner of property, Khalid Ali sold the property to appellant through registered sale-deed on 10.6.1998 (Exh.A-5), the petitioner issued notice U/S. 13-(A) of the Punjab Rent Restriction Ordinance, 1959, the respondent filed a suit for specific performance of agreement dated 20.8.1960 against Qamar Din through his legal heirs and ultimately the suit was laid to rest on 06.11.2008.

6. Both the Courts below are in agreement that no doubt notice under Section 13-(A) of the Punjab Rent Restriction Ordinance, 1959 was served but this notice is only helpful if it is proved that respondent is in possession of property as tenant of the vendor. The final conclusion of both the Courts below is that relationship of landlord and tenant does not exist between the parties.

7. The learned second appellate Court vide order dated 17.7.2007 remanded the case with the consent of parties and ordered that learned appeal Court will itself consider the impact and import of the contents of the paper book filed in CPLA No. 200/2005 in Honourable Supreme Court of Pakistan, both the parties were permitted to raise all questions of law and facts to the admissibility of the documents contained therein, or otherwise. The remand order shows that both the parties agreed that learned first appellate Court will examine the effect of page 183 of the paper book. Page 183 is an agreement to sell dated 20.8.1960. The CPLA No. 202/L had arisen out of a judgment and decree passed by the civil Court in a suit for specific performance of agreement dated 20.8.1963 claimed by the respondent to be executed by Qamar Din. The claim of respondent in the said suit was that deceased Qamar Din had agreed to sell the property to him against consideration of Rs. 7050/- and he paid Rs. 100/- being the earnest money, the balance amount is payable in installment of Rs. 50/- per month. The deceased vendors defence was that agreement to sell dated 20.8.1960 is fake and forged document.

8. The clause 3 of the agreement is reproduced as under:

The above referred clause shows that respondent has admitted his possession of shop as tenant and further agreed to pay the rent of Rs. 6/- per month till the final payment is made in 138 months.

1. Now the question arose whether the respondent can resile from his own document on the basis of which he is justifying his possession on the property as owner and that the said agreement can be read in ejectment proceedings.

2. It is an admitted fact between both the parties that suit for specific performance was finally laid to rest by the orders of Honourable Supreme Court of Pakistan and the following finding of High Court was affirmed:--

"Under these circumstances, it stand clear that the plaintiff did not make any payment of remaining sale, consideration in any installment after 1960, therefore plaintiff himself has been failed to specifically perform the contract on his part and the plaintiff is not entitled to any relief of specific performance Under Section 24(b) of the Specific Relief Act."

1. The above referred findings of the Honourable Supreme Court of Pakistan shows that respondent failed to pay the balance sale price after 1960 and as such his suit is hit by Section 24(b) of the Specific Relief Act. The finding of Honourable Supreme Court has settled the issue once for all to the effect that there was an agreement to sell between the respondent and Qamar Din and the non performance of the agreement is on the part of respondent. The final judgment of Supreme Court of Pakistan is binding between all the parties. It is pertinent to mention here that appellant shoukat Ali is Respondent No. 3 before the Honourable Supreme Court of Pakistan. The stance of appellant vendor that agreement is forged and fake, was finally repelled by the Honourable Supreme Court of Pakistan. The Honourable Supreme Court's judgment dated 06.11.2008 is based on the documents, legal proceedings and statement of parties available in the paper book and is binding of all parties to the appeal. Clause 3 of the agreement is very clear, the respondent is admitting himself to be the tenant of vendor of the appellant and after the final judgment of Supreme Court of Pakistan the respondent's status as a tenant stand restored. The bare reading of Clause-3 shows that respondent come into possession of shop as tenant of Qamar Din.

2. The respondent has not denied the receipt of notice U/S. 13-A of Punjab Rent Restriction Ordinance, 1959 but is claiming that he was not the tenant of any one. The true interpretation of Section 13-A has been dilated upon by the Hon'able Apex Court in Major (Retd) Muhammad Yousaf V. Mehraj-u-Din and others (1986 SCMR 751), Syed Azhar Imam Rizvi V. Mst. Salma Khatoon (1985 SCMR 24) and Mst. Huma Bilal V. Ghulam Farid (2005 CLC 983). In the above said judgments it is held that even if it is proved that notice U/S. 13-A was not served, the receipt of ejectment petition by the tenant is sufficient to establish the service of notice U/S. 13-A of the Punjab Rent Restrict Ordinance provided he came into possession of property as tenant by an agreement or through statute.

3. The earlier ejectment petition was defended by the respondent on the sole ground that his suit for specific performance is pending against the appellants. In the present ejectment petition the respondent has taken same defence but his defence came to end when his suit for specific performance stand finally decided by the Honourable Supreme Court of Pakistan. The argument of learned counsel for the respondent that paper book and its contents are not binding on the respondent has no force for the simple reason that this book was submitted by respondent before the Honourable Supreme Court of Pakistan. The respondent has given his consent on 17.4.2007 before the appellate Court that appellate Court can consider the impact and import of page No. 138. In terms of order dated 17.7.2007 the first appellate Court was only to assess the impact and import of agreement to sell available at page 138, but the first appellate Court wrongly interpreted the order dated 17.7.2007 while holding that agreement has come first time in the ejectment proceedings and as such it could not be looked into and dismissed the application of additional evidence. The perusal of order dated 17.7.2007 shows that there was no need for allowing and recording additional evidence. The paper book of CPSLA was an admitted document between the parties and the first appellate Court was to examine the impact and import of the document i.e agreement to sell. The status of agreement to sell has been finally settled between the parties and the entire litigation between the parties revolves around the said agreement to sell. The appellant was claiming through out the litigation that agreement to sell is fake and forged document whereas the respondent was claiming that agreement to sell is genuine and deceased owner has executed the said document. Honourable Supreme Court of Pakistan finally settled that agreement is genuine but the nonperformance is at the part of respondent. The agreement between the parties is an admitted document and first appellate Court was bound to read the said document in evidence while deciding the appeal.

4. Under Article 147 of Qanun-e-Shahadat order, the statements and pleadings between the parties in earlier litigation are relevant and can be read in the subsequent litigation, further in this case the respondent has given the consent for considering the impact and import of the said document. The said document is relied upon by the respondent himself and as such it is readable in evidence in the ejectment proceedings. The net effect of the said evidence is that it is proved that status of the respondent is that he is a tenant in the shop. He has admitted the receipt of notice U/S. 13-A of the Punjab Rent Restriction Ordinance, 1959 and even if not received, the ejectment petition itself is a notice. From the above said discussion it is proved that respondent is tenant in shop but has failed to tender the rent in accordance with law in terms of demand of respondent notice, hence, he is liable to be ejected.

5. In view of the above, the ejectment petition is accepted and the order dated 16.9.2004 and 11.1.2008 are set-aside. The respondent is directed to hand over the vacant possession of the shop within one month from the date of announcement of judgment.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 494 (DB)

Present: Nasir Saeed Sheikh & Mian Shahid Iqbal, JJ.

PROVINCE OF PUNJAB through Secretary Colonies Punjab, Lahore--Petitioner

versus

Mst. WAZIRAN BIBI through Legal Heirs and 4 others--Respondents

W.P. No. 2280 of 2004, heard on 21.4.2010.

Constitution of Pakistan, 1973--

----Arts. 184 & 199--Applicability of Constitutional petition--Question involved to the interpretation of the provisions of Art. 184(1) of Constitution--Dispute between Govt. of Punjab and Federal Land Commission--Maintainability of writ petition and jurisdiction of High Court--Held: Art. 184 of the Constitution 1973 is fully applicable where the dispute arises as to which of the Governments was the owner of the disputed property subject matter of the writ petition--Dispute squarely fell within the exclusionary jurisdiction of the Supreme Court. [P. 499] A

Constitution of Pakistan, 1973--

----Art. 184--Exclusive jurisdiction of Supreme Court--Question of--Maintaibility--Province of Punjab was deprived of the benefit of resumption of land equivalent units by the order passed by M.F.L.C.--Validity--Controversy certainly qualifies as a dispute between the province of Punjab and Member Federal Govt. of Pakistan as envisaged in the provisions of Art. 184 of the Constitution because the M.F.L.C. was a delegatee of Federal Govt. of Pakistan by virtue of Para 29 of Martial Law Regulations 115 of 1972--Writ petition was not competent--Appeal was dismissed. [P. 501] B

Khawaja Haris Ahmad, A.G. Punjab, with Mr. Muhammad Hanif Khatana, Addl. A.G. for Petitioner.

Syed Murtaza Ali Zaidi, Advocate for Respondents.

Date of hearing: 21.4.2010.

Judgment

Nasir Saeed Sheikh, J.--Government of Punjab through Colony Department through Govt. of Punjab has instituted this writ petition seeking setting aside of the order dated 4th of August 2003 passed by Member Federal Land Commission, Islamabad.

1. Mst. Waziran Bibi deceased Respondent No. 1 made declaration of her land under MLR 115 of 1972 and vide order dated 08.09.1977 passed by Deputy Land Commissioner, 5683 P.I. units were found in excess of her entitlement and land equivalent to said units was resumed in favour of Provincial Government. The Chief Land Commissioner vide order dated 17.07.2000 directed resumption of more land equivalent to 2149 P.I. units from said Mst. Waziran Bibi and the Deputy Land Commissioner Vehari vide order dated 25.07.2001 directed the completion of resumption process of said land equivalent to these 2149 P.I. units from the holding of Mst. Waziran Bibi. A revision petition was instituted by Mst. Waziran Bibi before the Member Federal Land Commissioner who vide order dated 04.08.2003 set aside the orders dated 17.07.2000 of Chief Land Commissioner, Punjab and order dated 25.07.2000 of Deputy Land Commissioner, Vehari directing the resumption of additional land equivalent to 2149 P.I. units from the holding of Mst. Waziran Bibi. Province of Punjab was thus deprived of the resumption of land equivalent to 2149 P.I. units from Mst. Waziran Bibi vide order dated 04.08.2003 passed by Federal Land Commissioner, therefore, instant writ petition was instituted seeking setting aside of the said order.

2. The question involved in this petition relates to the interpretation of the provisions of Article 184 (1) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the learned Advocate General was asked to address the Court on the point as to whether the dispute raised by the Province of Punjab in the writ petition fell within the ambit of provisions of Article 184 of the Constitution of Islamic Republic of Pakistan, 1973 so as to be entertainable exclusively by the Hon'ble Supreme Court of Pakistan.

3. The learned Advocate General has contended that the question raised in the writ petition pertains to the entitlement or otherwise of Mst. Waziran Bibi, the private respondent, particularly to the allegedly excess land equal to 2149 P.I. Units and it does not constitute a dispute between two governments i.e. Government of Punjab and the Federal Government of Pakistan.

4. The attention of the learned Advocate General was drawn towards the judgment dated 08.04.2010 delivered by this Court in Writ Petition No. 2961/2008 and other connected writ petitions, whereby this Court has already held that a similar dispute between Government of Punjab and Federal Land Commission does constitute a dispute within the ambit of Article 184 of the Constitution of Islamic Republic of Pakistan, 1973, the adjudication of which dispute is entertainable only by the Hon'ble Supreme Court of Pakistan.

5. The learned Advocate General has argued while relying upon the judgments reported as Union of India and others Vs. State of Mysore (AIR 1977 S.C.127), The State of Bihar Vs. The Union of India and another (AIR 1970 S.C. 1446), Mrs. Jamila B. Naimat Vs. Mian Abdul Waheed (PLD 1981 Karachi 138), Pakistan Railways, Headquarters Office, Lahore through Chairman and another Vs. Border Area Allotment Committee Lahore through Chairman and another (2005 C.L.C. 905), and Union of India Vs. State of Rajasthan (1984 (4) S.C.238) that the instant writ petition has rightly been instituted before this Court as it was not covered by scope of Article 184 (I) of the Constitution of Islamic Republic of Pakistan, 1973. It was further argued by the learned Advocate General that view expressed by this Court in the judgment dated 08.04.2010 in Writ Petition No. 2961/2008 needs reconsideration and requested accordingly.

6. We have considered the arguments of the learned Advocate General.

7. The case law cited by the learned Advocate General comprises two sets. One set of cases is from the law reports of Indian Jurisdiction which are The State of Bihar Vs. The Union of India and another (AIR 1970 S.C. 1446) Union of India and others Vs. State of Mysore (AIR 1977 S.C. 127), and Union of India Vs. State of Rajasthan (1984 (4) S.C. 238). Other set of cases is decided by the superior Courts of Pakistan which are Mrs. Jamila B. Naimat Vs. Mian Abdul Waheed (PLD 1981 Karachi 138) and Pakistan Railways, Headquarters Office, Lahore through Chairman and another Vs. Border Area Allotment Committee Lahore through Chairman and another (2005 C.L.C. 905).

8. In the judgment reported as State of Bihar Vs. The Union of India and another (AIR 1970 S.C. 1446), suits were instituted by the State of Bihar against the Union of India before the Hon'ble Supreme Court of India with the contention that due to the negligence and deliberate action of the employees of Union of India and Hindustan Steel Ltd, short delivery of iron and steel material was caused which delivery of material was ordered by the State of Behar in connection with construction work of Gandak Project and decree was prayed for a specific sum of money as damages to be awarded against the defendants of the suit. The question arose therein to the interpretation of Article 131 of Constitution of India, which reads as under:--

"Article 131.--Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute--

(a) between the Government and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or executed before the commencement of the Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute."

While interpreting Article 131 of Constitution of India, the Hon'ble Supreme Court of India held that the dispute between State of Behar and Hindustan Steel Mills cannot be considered to be a dispute between Government of India and one or more States of Indian Union. The contents of Paras 19 to 20 are very relevant and are reproduced here:--

"19. It was argued by counsel on behalf of the State of Bihar that so far as the Hindustan Steel Ltd, is concerned it is State' and the suits in which the Government of India alongwith Hindustan Steel Ltd. have been impleaded are properly filed within Article 131 of the Constitution triable by this Court in its original jurisdiction. Reference was made to the case of Rajasthan State Electricity Board V. Mohan Lal (1967) 3 SCR 377=(AIR 1967 SC 1857). There the question arose between certain persons who were permanent employees of the Government of the State of Rajasthan and later placed at the disposal of the State Electricity Board and one of the questions was whether the appellant Board could be held to beState' as defined in Article 12. This Court by a majority held that the Board was "other authority" within the meaning of Article 12 and therefore was a State to which appropriate directions could be given under Articles 226 and 227 of the Constitution. It will be noted that under Article 12 all local or other authorities within the territory of India or under the control of the Government of India areState' for purpose of Part III which defines and deals with the Fundamental Rights enshrined in the Constitution. The expression "the State" has the same meaning in Part IV of the Constitution under Article 36. No reason was shown as to why the enlarged definition of `State' given in Part III and IV of the Constitution would be attracted to Article 131 of the Constitution and in our opinion a body like the Hindustan Steel Ltd. cannot be considered to be "a State" for the purpose of Article 131 of the Constitution.

20. In the result we hold that the suits do not lie in this Court under Article 131 of the Constitution and Issue No. 2 must be answered in the negative. It is not necessary to give any answer to Issue No. 1 nor to Issue No. 3. On the view we take the plaints must be returned for the purpose of presentation to Courts having jurisdiction over the disputes. Let the plaints be returned for presentation to the proper Court after endorsing on them the date of presentation of the plaints this Court and the date on which they were returned. We make no order as to costs of these applications. Plaints returned."

1. The facts of the next cited case Union of India and others Vs. State of Mysore (AIR 1977 SC 127) are that State of Mysore was moved under Article 226 of the Constitution of India for quashing the demand notice issued by the Inspector Central Excise for payment duty on the products dispatched by the State's Implement Factory. The demand was raised under Central Excise and Salt Act, 1944. The objection raised before the High Court was that the dispute involved in the petition was between the Govt. of India and State Government of Mysore, therefore, Article 131 of the Constitution of India was applicable and it was contended that the jurisdiction of the High Court for entertaining the matter was ousted. The High Court repelled this contention and quashed the demand notice. The appeal was preferred by the Hon'ble Supreme Court of India, wherein the observations of the High Court were upheld. Para 6 of the reported judgment is reproduced as follows:--

"Mr. Raman tried to argue that the High Court erred in not applying Article 131 of the Constitution to the controversy even though the writ petition was barred thereunder as it fell exclusively within the jurisdiction of this Court under Article 131 of the Constitution as a dispute between the Government of India and the State of Mysore. The argument is however futile because there is nothing on the record to show that there was any such dispute between the Central and the State Government. As the High Court has pointed out, the Union of India was made a party to the writ petition merely because it had dismissed the revision application of the State Government."

The third case cited by the learned Advocate General from Indian Jurisdiction Union of India Vs. State of Rajasthan (1984) 4 Supreme Court Cases 238 was based upon the facts that a suit was filed by State of Rajasthan for the recovery of damages due to the loss caused to the goods dispatched through the Indian Railways. The question was raised as to whether this suit was entertainable by the ordinary Civil Court or fell within the exclusive jurisdiction of the Hon'ble Supreme Court of India under Article 131 of the Constitution. In Paragraph No. 13, the Hon'ble Supreme Court of India held as under:--

"In the instant case, the legal rights of the State of Rajasthan to sue for damages for the loss suffered by it on account of damages caused to the goods transported through Railway Administration as such is in dispute between the Union Government and the State of Rajasthan. The State Government has made a claim like any other consignee of goods dispatched through the Railway for compensation and its success or failure in the suit depends upon proof of facts which have to be established in the same way in which a private person would have to establish. This is not even a case where a formal contract is entered into between the Union of India and the State of Rajasthan in accordance of requirements of Article 299 of the Constitution. It is just a commercial contract under which an officer of the State of Rajasthan was entitled to claim delivery of the goods consigned as any ordinary consignee."

In Paragraph No. 14, the Hon'ble Supreme Court of India held that the High Court and the District Judge were right in holding that the suit was entertainable by the District Court.

1. The case law reported as Mrs. Jamila B. Naimat Vs. Mian Abdul Waheed (PLD 1981 Karachi 138) is not relevant to the legal controversy raised in the instant writ petition as it is a judgment to the effect that there is no constitutional bar in the way of this Court to express a view different from that taken by it in an earlier occasion. The judgment reported as Pakistan Railways, Headquarters Office, Lahore through Chairman and another Vs. Border Area Allotment Committee Lahore through Chairman and another (2005 CLC 905) does not help the contention of the learned Advocate General but supports the proposition that Article 184 of the Constitution of Islamic Republic of Pakistan, 1973 is fully applicable where the dispute arises as to which of the Governments was the owner of the disputed property subject matter of the writ petition. In the said case, the dispute concerning a big piece of land Measuring 762 Kanal situated in Border Belt Area cropped up and Border Area Committee through an order dated 21.8.2000 declared the land to be within the ownership of the Provincial Government. Pakistan Railways a Federal Department in the Federation instituted a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impleading the Board of Revenue and Border Area Committee as respondents and the writ petition was dismissed by a learned Single Judge of this Court by holding that the dispute squarely fell within the exclusionary jurisdiction of the Supreme Court as envisaged in Article 184 of the Constitution of Islamic Republic of Pakistan, 1973. It is important to note that in the last reported judgment a reference was also made to another D.B. Judgment reported as PLD 1976 Lahore 1135, wherein also it was held that if a question between the Provincial Government and the Central Government in the context of its business activities is involved, the dispute fell within the exclusive jurisdiction of the Hon'ble Supreme Court of Pakistan and in this case an earlier judgment reported as The Punjab Province Versus The Federation of Pakistan (PLD 1956 Federal Court 1972) was relied also upon.

2. The reported judgments from the Indian Jurisdiction cited by the learned Advocate General are distinguishable from the facts of the instant cases. There is also substantial difference between the provisions of Article 131 of the Constitution of India and of the Article 184 of the Constitution of Islamic Republic of Pakistan, 1973. Article 184 (I) of the Constitution of Islamic Republic of Pakistan, 1973 is more comprehensive and wider to cover the dispute agitated in the instant writ petition. We have already held in the judgment dated 08.04.2010 passed in Writ Petition No. 2961/2008 in Paragraph No. 8 as follows:--

"The dispute involved in the present writ petitions is certainly a dispute between the provincial Government of Punjab and the Federal Land Commission. The exercise of powers by the Federal Land Commission in allotting the land claimed to have been resumed by the Province of Punjab has been specifically assailed in the writ petitions and even status of the allottees of the land have been seriously disputed by the Provincial Government in the writ petitions."

In Paragraph No. 9 of the judgment dated 08.04.2010, the point was further elaborated in the following words:--

"The power of passing an order by the Federal Land Commission is provided for in Paragraph No. 29 of the Land Reforms Regulation, 1972, which is reproduced as follows:--

29. Revisional power of the Federal Government.--The Federal Government, or any person authorized by it in that behalf, may at any time of its, or his own motion or otherwise, call for the record of any case or proceedings under this regulation or under the repealed Regulation 4 which is pending or in which a Commission or any other authority appointed this Regulation or under the repealed regulation other than the Federal Land Commission contributed under Paragraph 4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit.

A reading of Paragraph No. 29 also clarifies that basically the power envisaged by paragraph No. 29 is the power of Federal Government, which the Federal Government may exercise directly or authorize any person in that behalf to exercise that power. So the Member Federal Land Commission while passing the impugned orders of allotment in favour of the private respondents was in fact exercising the power of Federal Government as provided for in Paragraph No. 29 above."

1. We are not persuaded by the learned Advocate General to differ with our judgment earlier announced on 08.04.2010 referred to above. In the present case, the province of Punjab was deprived of the benefit of resumption of land equivalent to 2149 PI units from Waziran Bibi by the order dated 4.8.2003 passed by Member Federal Land Commission. It was thus prayed in the writ petition that order dated 4.8.2003 passed by Federal Land Commissioner be set aside. This controversy certainly qualifies as a dispute between the province of Punjab and Member Federal Government of Pakistan as envisaged in the provisions of Article 184 of the Constitution of Islamic Republic of Pakistan, 1973 because the member Federal Land Commission was a delegatee of Federal Government of Pakistan by virtue of Para 29 of Martial Law Regulation 115 of 1972. The instant writ petition is therefore not competent before this Court and is accordingly dismissed with no order as to costs.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 501

Present: Rauf Ahmad Sheikh, J.

ABDUL HAMEED--Petitioner

versus

Mst. RUBINA BIBI and 2 others--Respondents

W.P. No. 3230 of 2009, heard on 7.7.2010.

Punjab Family Court Act, 1964 (XXXV of 1964)--

----S. 10(4)--Suit for dissolution of marriage on the principle of khula, decreed on failure of pre-trial reconciliation proceedings subject to return of dower received by her--Earlier such a suit was withdrawn due to compromise--Subsequent suit--Maintainability--Held: Withdrawal of earlier suit due to compromise was no bar on the institution of the subsequent suit as the hatred and other contentions made in the plaint gave rise to the fresh cause of action--Provisions of Order XXIII, Rule 1(3), CPC are not applicable on the proceedings under the Family Courts Act and as such the subsequent suit was not barred by any provisions of law and was maintainable. [P. 503] A & B

Punjab Family Court Act, 1964 (XXXV of 1964)--

----S. 10(4)--Barred by provision of law--Applicability--Question, whether the proviso to Section 10(4) of the Family Courts Act, 1964, is against the injunctions of Islam--Held: The Holy Quran in verse No. 229 of Surah Al-Baqarah provides basis and legality of Khula--To keep the husband and wife in a hateful and unwanted union leads to many social evils--If the spouses cannot live amicably and in complete harmony and the wife categorically asserts that she wants divorce then the Court may safely presume that they cannot live within the limits of God--Petition was dismissed. [P. 504] C

Rana Muhammad Sarwar, Advocate for Petitioner

Mr. Fiza Ullah, Advocate for Respondent No. 1/Plaintiff in person.

Date of hearing: 7.7.2010.

Judgment

The petitioner has challenged the orders dated 27.6.2008 & 5.9.2008 and judgment and decree dated 27.9.2008 passed by learned Judge Family Court, Faisalabad, and also the Proviso to sub-section (4) of Section 10 of the Family Courts Act, 1964 as amended through Ordinance No. LV of 2002, contending that the same are ridiculous, absurd, ultra vires of the Constitution, violative of the fundamental rights and against the Injunctions of the Holy Quran and Sunnah and as such the same are void, ineffective and non-existent in the eyes of law.

1. The Respondent No. 1/plaintiff filed a suit for dissolution of marriage on principle of Khula, recovery of articles of dowry and recovery of maintenance. The suit was contested by the defendant/petitioner. The learned trial Court on failure of pre-trial reconciliation proceedings passed the decree for dissolution of marriage on principle of Khula on return of the dower received by her and framed the issues regarding other material propositions of fact and law. During the proceedings, the petitioner/defendant had moved an application for dismissal of the suit on the ground that the same was not maintainable in view of the withdrawal of earlier suit due to compromise, which was dismissed vide order dated 27.6.2008 and another miscellaneous application seeking decision on the remaining contents of the said application, which was also dismissed on 5.9.2008. Finally the decree for dissolution of marriage was passed on 27.9.2008.

2. It is contended that Respondent No. 1 had earlier filed a suit for the dissolution of marriage and recovery of articles of dowry, which was dismissed as withdrawn due to compromise because the parties had joined hands and started living together so the subsequent suit for the same relief was not maintainable. It is also contended that the learned trial Court did not make a concrete effort to patch up the matter and failed to afford an opportunity to effect compromise and has thus failed to act in accordance with the spirit of law. It has been urged that Proviso to Section 10(4) of the Family Courts Act, 1964, is against the Injunctions of Islam as without recording the evidence regarding contention of the wife that she cannot live within the limits of God, the marriage cannot be dissolved. It is also urged that this provision has given the wives undue advantage and the husbands are being deprived of fundamental right of fair trial under due process of law. It is also contended that the insertion of the Proviso to Section 10(4) of the Family Courts Act, 1964, is absurd as the scheme of the Family Courts Act regarding recording of evidence and post-trial re-conciliation have become meaningless. It is also contended that this provision is against the Injunctions of the Holy Quran so could have not been enacted in view of the Enforcement of Shari'ah Act, 1991 (Act No. X of 1991). It is further contended that the suit was not properly instituted as the Plaintiff/Respondent No. 1 had not put her signatures on the plaint.

3. The learned counsel for the petitioner has vehemently reiterated the above contentions. The learned counsel for the Respondent No. 1 has contended that Respondent No. 1 did join hands with the petitioner in good faith after withdrawal of the earlier suit but he did not mend his ways and as such she was forced to file the fresh suit. It is urged that in spite of the decree passed on 27.9.2008 her fate is hanging in the smoke of uncertainty. The Respondent No. 1 has stated that she herself filed the suit and had categorically stated before the learned trial Court that she did not want to live with the petitioner due to aversion and hatred. The learned counsel for the respondent has contended that no illegality was committed and that the contention regarding the legal provisions mentioned above is without force.

4. The withdrawal of the earlier suit due to compromise was no bar on the institution of the subsequent suit as the hatred and other contentions made in the plaint gave rise to the fresh cause of action. She has specifically stated that even after compromise the defendant did not pay her maintenance and turned her out of the house after beating and abusing her so she had developed hatred and was not ready to live with him under any circumstance. The provisions of Order XXIII Rule 1(3) CPC are not applicable on the proceedings under the Family Courts Act and as such the subsequent suit was not barred by any provisions of law and was maintainable. The dismissal of miscellaneous applications vide orders dated 27.6.2008 and 5.9.2008, therefore, was not open to any exception.

5. The main contention of the learned counsel for the petitioner is that sufficient opportunity was not given to the petitioner to make effort for reconciliation and the Court also did not take any effective step in this regard. The order dated 27.9.2008 shows that the Court gave them some time by effecting compromise and thereafter took up the file. The respondent/plaintiff categorically stated that she had developed extreme hatred and was not ready to live with him within the limits prescribed by Allah Almighty. Her insulting attitude towards the petitioner/defendant was also taken notice of by the learned trial Court. As she was adamant to get the decree for dissolution of marriage on principle of Khula and was not ready for effecting compromise, the Court passed the impugned judgment and decree.

6. The contention of the learned counsel for the petitioner that insertion of the Proviso to Section 10(4) of the Family Courts Act has rendered the subsequent provisions meaningless is without force because the subsequent provisions are applicable on the trial of those suits only in which the proceedings are required to be recorded after the stage of reconciliation proceedings.

7. The main contention of the learned counsel for the petitioner is that the Proviso to Section 10(4) of the Family Courts Act, 1964, is against the Injunctions of Islam and also violative to the fundamental right as provided under Article 10-A of the Constitution of Pakistan, 1973. It is true that the right of fair trial is inalienable but the proceedings in accordance with law were conducted so the petitioner cannot claim that his right was infringed.

8. The other contention raised by the learned counsel for the petitioner is that the passing of the decree on principle of Khula is against the Injunctions of Islam and Shari'ah so this amendment in the Act could have not been made in view of the Enforcement of Shari'ah Act, 1991. The Holy Quran in Verse No. 229 of Surah Al-Baqarah provides basis and legality of Khula. To keep the husband and wife in a hateful and unwanted union leads to many social evils. If the spouses cannot live amicably and in complete harmony and the wife categorically asserts that she wants divorce then the Court may safely presume that they cannot live within the limits of God. The contention of the learned counsel for the petitioner, therefore, is without force.

9. It has then been contended that the suit was not properly instituted as the plaint did not bear the signatures of the Respondent No. 1/Plaintiff. The copy of the plaint available at pages 135 to 138 shows that it was signed by her. She had categorically stated before me that she had filed the suit so the contention is totally false. It is then contended that the Respondent No. 1 has not returned all benefits derived by her during marriage. The Respondent No. 1 was ordered to return the dower and if anything else was given to her as benefit of marriage, the petitioner should have claimed the same in the written statement and specifically insisted on return of the same. As in the written statement, he has not specifically claimed return of any other alleged benefits of marriage, so implied waiver is attracted on his part.

10. For the reasons supra, the writ petition is without merits and the same is hereby dismissed with costs.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 505

Present: Muhammad Farrukh Irfan Khan, J.

ABDUL RASHEED BHATTI--Petitioner

versus

GOVT. OF PUNJAB through Chief Secretary, Secretariat, Lahore and 6 others--Respondents

W.P. No. 5576 of 2010, decided on 1.7.2010.

Constitution of Pakistan, 1973--

----Arts. 4, 9, 10 & 15--Punjab Maintenance Public Order Ordinance, 1960, S. 3(i)--Liberty of citizens--Constitutional petition--Impugned detention order passed by DCO in exercise of powers conferred on it u/S. 3(i) of the Punjab Maintenance of Public Order Ordinance, 1960 for a period of 30 days--Constitutional protections to liberty of citizen--Validity--Constitution of Pakistan 1973 lays down a very broad concept of liberty of an individual which demands a very high level of respect and observance of such rights from the state and its functionaries--In additional to the rights of an individual to enter into a valid contract, join a profession of choice and to worship according to the dictates of his/her own religion, a firm commitment to his/her liberty has also been emphasized by guaranteeing the freedom from bodily restraint and from illegal prosecution. [P. 513] A

PLD 1999 SC 504, PLD 2006 Kar. 584, PLD 1969 SC 14, 2010 SCMR 27 & PLD 2009 SC 709, ref.

Punjab Maintenance of Public Order Ordinance, 1960--

----S. 3--Constitution of Pakistan, 1973, Arts. 10 & 12(1)(b)--Provisions of Section 3 of the Ordinance 1960 does not give a "carte blanche" to the provincial Govt. to use it against curtailing the liberty of ordinary citizens--Without proceeding to apply due process of law or to act in accordance with law--The use of the said provision is restrictive in nature and its application is subject to the requirements laid down in Art. 10 of the Constitution--Use of Section 3(1) against a person against whom some criminal proceedings are pending already, is also violative of Art. 12(1)(b) of the Constitution--DCO was required to apply his mind, consider the material placed before him, and record the reasons for issuance or decline of the issuance of the order--Even if only one of the grounds was found to be bad or non-existence, the detention order would be rendered invalid. [Pp. 516, 519 & 520] B, C, F, G & H

1990 P.Cr.L.J. 948, rel.

Interpretation of Statutes--

----It is a well settled principle of interpretation that an explanation does not enlarge the scope of the original provision of statute that it is supposed to explain. [P. 516] D

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Detention order--Validity--It is a settled preposition of law that in exercise of powers of judicial review under Art. 199 of the Constitution, the High Court can examine the validity of the detention order--Petition was allowed. [P. 518] E

PLD 1968 SC 313, rel.

Malik Muhammad Ahmad Khan, Advocate for Petitioner.

Mr. Shahid Mubeen, Addl. Advocate General for Respondents.

Date of hearing: 29.3.2010.

Judgment

Abdul Rashid Bhatti son of Bashir Ahmad petitioner through this Constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks direction that the impugned detention Order No. RDM/006 dated 05.03.2010 passed by Respondent No. 2 District Co-ordination Officer Lahore in exercise of powers conferred on it under sub-section (1) of Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 through which it has been ordered that the petitioner shall be detained for a period of 30-days with immediate effect be declared to have been passed without lawful authority and of no legal effect.

1. The grounds of the detention order are as under:

(i) That he is a desperate and dangerous person and his being at large would render security hazards to the community, danger to human life, health and safety;

(ii) That he will resort to harassment and commission of illegal acts and heinous offences thus posing a grave threat to public safety;

(iii) That his activities are likely to create unrest amongst public at large which may result in disturbance of public tranquility thus posing grave threat to maintenance of public order;

(iv) That his above said activities are prejudicial to public safety and maintenance of public order.

1. It is the case of the petitioner that he is a political figure and was elected twice as member of the Punjab Provincial Assembly for the years 1993-97 and 2002 to 2007 on PML(Q) ticket. Due to political rivalry, the petitioner and his family members were involved in a case registered vide F.I.R. No. 435/2006 at Police Station Faisal Town. However, they were found innocent by the Investigating Officer during the investigation. Later on the petitioner and his brother were again involved in case F.I.R. No. 148/08 registered at Police Station Town Ship, Lahore. The petitioner and his brother were granted pre-arrest bail in the said criminal case. Despite bail the petitioner and his brother were detained by the local police and were sent to the judicial lock up on 06.08.2008 in earlier case F.I.R. No. 435/2006. Thereafter, they were released on bail. A similar detention order against the brother of the petitioner was passed which was set aside by this Court vide order dated 25.08.2008 in W.P. No. 10353 of 2008. Earlier a detention order dated 05.09.2008 was passed against the petitioner during the period of incarceration of the petitioner. Again the impugned detention order has been passed against the petitioner which is almost identical to the previous one, hence this writ petition.

2. On 22.03.2010 the respondents were directed to file report and parawise comments before next date of hearing. The needful has been done. According to the parawise comments submitted on behalf of the Respondent No. 2 seven F.I.Rs. have been registered against the petitioner and the petitioner is involved in a number of heinous criminal cases. That the impugned detention order has been passed on the request and material provided by the CCPO, the SSP Lahore and Security Branch. According to the report submitted by the SSP Lahore, the case was forwarded for issuance of detention order on the ground that the petitioner is involved in a case of murder, murderous attack, abduction and rioting/firing with illicit arms registered at various police stations of Lahore District, formed a gang of Qabza group and deprived many poor people of their properties by illegal possession at gunpoint. He is the mastermind in planning the murder of innocent people for the purpose of Jagha tax and illegal possession of properties.

3. Learned counsel for the petitioner submits that the impugned detention order is not sustainable because no material in relation to the grounds of the detention order was communicated to the petitioner; that there was no material with the respondent authority to pass the impugned detention order; that the criminal cases have been registered against the petitioner and his family members by the "Provincial High ups" who are the political rivals of the petitioner; that the involvement of the petitioner in a number of criminal cases could not form basis for preventive detention of the petitioner. The learned counsel adds that the respondent DCO has mechanically accepted the reports of the police and other agencies without applying his own independent mind to the material placed before him; Further that if one of the grounds was found bad or non-existent, the detention order would be rendered invalid. Finally, the learned counsel submits that the impugned detention order passed by the respondent DCO is without lawful authority and of no legal effect; that the petitioner has filed a representation before the Respondent No. 1 which has not been decided so far.

4. On the other hand, learned Addl. Advocate General has opposed this petition on the grounds that there was sufficient material available with the detaining authority for its satisfaction to pass the impugned detention order against the petitioner; that the petitioner has been involved in a number of cases of murder, murderous attack, abduction and rioting/firing with illicit arms registered at various police stations of Lahore District; that the petitioner has formed a gang of Qabza group and deprived many poor people from their properties by illegal possession at gunpoint. Further that the activities of the petitioner are prejudicial to public safety and the maintenance of public order, therefore, the instant petition is liable to be dismissed. That the petitioner has availed the alternate remedy of filing a representation before the competent authority, therefore, this petition is pre-mature.

5. I have heard the arguments of the learned counsel for both parties and perused the record minutely. Apparently no material in relation to the grounds of detention order has been provided to the petitioner, therefore, in the absence of any material it would have been difficult for the petitioner to defend himself by filing a representation. Despite this the petitioner has filed a representation before Respondent No. 1 Bearing Diary No. 77 dated 17.03.2010 on which no action seems to have been taken by the said respondent.

6. This case relates to curtailing the liberty of an individual, therefore, prior to embarking upon the examination of the provisions of Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 and discussing the merits of the case let me examine the guarantee(s) of liberty of a citizen provided and restriction(s), if any, imposed, thereupon under the Constitution of the Islamic Republic of Pakistan, 1973.

7. Articles 4, 9 and 15 inter alia, deal with the liberty of a person while Article 10 provides in detail the rights of a person, who has been arrested or detained in the circumstances in which preventive detention laws are to be made. It further elaborates, inter alia, the rights of a person so detained. It is appropriate to reproduce the said Articles (ibid) hereunder:--

Article-4 Right of individuals to be dealt with in accordance with law, etc.---

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan

(2) In particular--

(a) no action" detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do.

Article-9.

Security of Person.--No person shall be deprived of life or liberty save in accordance with law.

Article-10

Safeguards as to arrest and detention--

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding [three months] unless the, appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of [three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation I.--In this Article, "the appropriate Review Board" means--

(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a judge of the Supreme Court or a High Court; and

(ii) in the case of a Person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.

Explanation II.--The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, [within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:

Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.

(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:

Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy [or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity.]

(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.

Article-15

Freedom of Assembly.--Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.

1. From the perusal of the aforesaid Articles of Constitution, inter alia, it transpires that--

(i) to be treated in accordance with law is the unalienable right of every citizen, wherever, he may be;

(ii) no action detrimental to liberty of any person shall be taken except in accordance with law;

(iii) no person shall be deprived of liberty save in accordance with law;

(iv) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the (a) integrity (b) security or defence of Pakistan or any part thereof (c) or external affairs of Pakistan (f) or public order, (g) or the maintenance of supplies or services.

(v) the authority making the order shall within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the orders.

1. Preamble of the Punjab Maintenance of Public Order Ordinance, 1960:

"Whereas it is expedient to amend and consolidate the law providing for preventive detention and control of person and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of West Pakistan."

Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960:

Power to arrest and detain suspected persons.--

(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention (for a period not exceeding six months at a time)

(Explanation I)--For the purposes of this section--

(i) dealing in the black-market or hoarding as defined in the Hoarding and Black Market Order, 1948; or

(ii) an act of smuggling punishable under the Sea Customs Act, 1878, or the land Customs Act, 1924, or under any other law for the time being in force; or

(iii) An act which is an offence under the Drugs Act 1976 (XXXI of 1976).

shall be deemed to be an act prejudicial to the maintenance of public order

(Explanation II)--Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful shall be deemed to be acting in a manner prejudicial to public safety and the maintenance of public order for the purposes of this section.

(2) If a District Coordination Officer or a public servant authorized in this behalf by the Government has reasons to believe that a person, within his territorial jurisdiction has acted, is acting or is about to act in a manner which is prejudicial to public safety or maintenance of public order, he shall immediately refer the matter to the Government.

(3) (a) An order of arrest under subsection (1) may be addressed to a Police Officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person, as the case may be, shall commit the arrested person to such custody as may be prescribed under subsection (7).

(b) A Police Officer not below the rank of Sub-Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him, "and thereupon commit the arrested person to such custody as may be prescribed under subsection (7); or if he receives any requisition in this behalf from the police officer or other person to whom the warrant, of arrest for the person arrested is addressed, make over the custody of the arrested person to such police officer or other person."

1. A bare perusal of the above Articles shows that the Constitution of the Islamic Republic of Pakistan, 1973 lays down a very broad concept of liberty of an individual which demands a very high level of respect and observance of such rights from the State and its functionaries. In addition to the rights of an individual to enter into a valid contract, join a profession of choice and to worship according to the dictates of his/her own religion, a firm commitment to his/her liberty has also been emphasized by guaranteeing the freedom from bodily restraint and from illegal prosecution. The purpose of such guarantees is to enable an ordinary citizen to live a more meaningful and fulfilling life in pursuit of goals which may result in the progress of the country and happiness, peace and tranquility of the citizen. Such rights have been religiously upheld by our Courts and for guidance extracts from a few decisions of the High Courts and the Apex Court are reproduced as follows:--

(a) Sh. Liaquat Hussain and others V. Federation of Pakistan (PLD 1999 S.C. 504).-- It will not be out of context to mention that clause (1) of Article 4 provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right to every citizen, wherever he may be, and of every other person for the time being within Pakistan. Whereas clause (2) thereof lays down that in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The above Article is to be read with Article 9 of the Constitution which postulates that no person shall be deprived of life or liberty save in accordance with law. If a person is to be deprived of his life on account of execution of death sentence awarded by a Tribunal which does not fit in within the framework of the Constitution, it will be violative of above Fundamental Right contained in Article 9. However, the learned Attorney-General contended that in fact terrorists who kill innocent persons violate the above Article 9 by depriving them of their lives and not the Federal Government which caused the promulgation of the impugned Ordinance with the object to punish terrorist. No patriotic Pakistani can have any sympathy with terrorists who deserve severe punishment, but the only question at issue is, which forum is to award punishment, i.e. whether a forum as envisaged by the Constitution or by a Military Court which does not fit in within the framework of the Constitution. No doubt, that when a terrorist takes the life of an innocent person, he is violating Article 9 of the Constitution, but if the terrorist, as a retaliation, is deprived of his life by a mechanism other than through due process of law within the framework of the Constitution, it will also be violative of above Article 9."

(b) Abdullah Baloch versus Federation of Pakistan through Defence Ministry, Secretary, Islamabad and 5 others (PLD 2006 Karachi 584).--Whenever any person being a citizen of this country, or even if he is not a citizen but is for the time being within the country, is required by any agency, it is the constitutional responsibility of the Federal and Provincial Governments to deal with such a person in accordance with law, meaning thereby that if any such person is required in connection with any matter he can be arrested, interrogated upon, inquiry/investigation can be held and thereafter if found guilty can be prosecuted before the competent Court of law, or if there we sufficient circumstances, a detention order can also be passed in accordance with law, which is to be placed before the review boards from time to time in accordance with law. However, no agency of the government has any right to prosecute anybody and to deprive anybody of his life or liberty without due course of law. If custody of any person is required in connection with an inquiry/investigation, he must be produced before a Court of competent jurisdiction. Request for police custody be made and person required be kept in the manner authorized under the law. Whisking away of citizens in clandestine and surreptitious manner by any agency/authority is the negation of the rule of law. Whenever any person is missing, it is the responsibility of the Federal and Provincial Governments to search and locate such person even if he is not in their custody and produce him before the Court to show their bona fides and to demonstrate that they are alive to their responsibility under the Constitution and law."

(c) Government of West Pakistan and another versus Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 S.C. 14).--"It is in this sense that an action which is mala fide or colourable is not regarded as an action in accordance with law. Similarly, action taken upon extraneous or irrelevant consideration is also not an action in accordance with law. Action taken on no ground at all, or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being an action in an unlawful manner."

(d) Ismaeel versus The State (2010 SCMR 27).--This is particularly so where the fundamental rights of a citizen such as his liberty, are involved. The right of personal liberty of a citizen is enshrined in Article 9 of the Constitution and has been jealously guarded by the Courts in Pakistan. If the petitioner is to be deprived of his liberty, this should only happen in accordance with law."

(e) Muhammad Sharif versus The State (PLD 2009 S.C. 709).--Collective reading of Article 9 of the Constitution and Police Rules, 1934, R.25.2 demanded collection of some incriminating material against an accused person before effecting his arrest. Automatic arrest without bringing some incriminating material against accused on the record was deprecated."

1. From the above, it is clear that superior Courts have held that the liberty of every citizen of this country is to be protected and guaranteed under Articles 4, 9, 10 and 15 of the Constitution. In fact, it is the duty of the State to jealously safeguard the liberty of every citizen "wherever he may be". The Constitution provides safeguards against the violation of the fundamental rights of every citizen to life and liberty from illegal and mala fide acts of omission or commission of any governmental authority or person. Therefore, any action without sufficient cause depriving or restricting the liberty of a citizen is not envisaged by the Constitution of this country and any such action taken by the Government or any of its functionary will not be immune from scrutiny of this Court in exercise of its power under Article 199 of the Constitution.

2. In the aforesaid backdrop, let me now examine the preamble and Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960, which have been reproduced supra for ease of convenience. The preamble indicates that the law for preventive detention and control of person is being amended and consolidated for reasons connected with public safety, public interest and the maintenance of public order.

3. Keeping in view the repeated guarantees of liberty provided in the Constitution of the country the provisions of Article 3(1) of the Punjab Maintenance of Public Order Ordinance, 1960 does not give a "carte blanche" to the Provincial Government to use it against curtailing the liberty of ordinary citizens, anti-social elements, political rivals, petty thieves and ordinary criminals etc. without proceeding to apply due process of law or to act in accordance with law. The use of the said provision is restrictive in nature and its application is subject to the requirements laid down in Article 10 of the Constitution. It will become operative when the government is

"satisfied"

(a) to prevent any person from acting in a manner prejudicial.

(b) to public safety or

(c) the maintenance of public order.

"It is necessary to direct the arrest and detention."

1. The term "public safety" has not been defined in the legislation (ibid), however, Explanation-II of Section 3, clearly defines that for the purposes of this section whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful, shall be deemed to be acting in a manner prejudicial to public safety and the maintenance of public order for the purposes of this section. It is pertinent to note that the Government of Punjab having felt the need of expanding the scope of the meaning of the term "maintenance of public order" added item (iii) in the ambit of Explanation-I through an amendment in 1999 vide Punjab Maintenance of Public Order (Amendment Act) 1998 (I of 1999). It is further to be noted that an "Explanation" to a statutory provision is a clever device used by the legislation to facilitate the proper interpretation of the provision, so as to remove any possible confusion and misunderstanding. It is a well settled principle of Interpretation that an Explanation does not enlarge the scope of the original provision of statute that it is supposed to explain.

2. Therefore, keeping in view the above discussion there can be no doubt that the scope of "public order" or "public safety" is restricted to the conditions stated in Explanation I and II of the law ( ibid ) and cannot be expanded to any other situation/scenario.

3. As has been held after thorough discussions by the Apex Court and the various High Courts of the country that the provisions of Section 3 (ibid) cannot be invoked in the following cases.

(a) (Muhammad Khalid versus District Magistrate Jehlum (NLR 1980 U.C.434)

Grounds general in nature and merely containing allegations about criminal, anti-social activities, notorious character and past criminal history of detenu - Executive also choosing to proceed against detenu on punitive side by prosecuting him for his alleged criminal activities - Contended that it is not permissible to detain a person on basis of very allegations which are sub judice before criminal Courts.

(b) Bashiran Bibi versus The District Magistrate, Kasur (1990 P.Cr.L.J. 913)

Detention order was based on the ground that detenu was involved in a number of criminal cases and also on the basis of a secret inquiry--Conducting of secret inquiry was challenged by the detenu and the Advocate-General was not in a position to substantiate same--District Magistrate appeared to have acted mechanically--Criminal charges for which the detenu was facing trial or in which he was convicted or acquitted, could not form the basis for preventive detention and even one bad ground or non-existent ground would render the detention order as invalid--Detention order being without lawful authority was thus ineffective--Detenu was ordered to be set at liberty in circumstances.

(c) Muhammad Mushtaq versus District Magistrate, Sheikhupura and another (1997 MLD 1658)

Involvement of the detenu in a number of criminal cases, per se, was not a valid ground for his preventive detention as he could not be vexed twice on the basis of the same criminal charge due to the pendency or disposal of the said criminal cases and his detention was nothing but punishment depriving him of his liberty--Report submitted by the police against the detenu being of general type was not sacrosanct and no material was available with the District Magistrate to justify the passing of the impugned order for his detention which was declared to be without lawful authority and of no legal effect--

(d) There should be material before the detaining authority for its satisfaction that the activities of the petitioner are prejudicial to public safety and maintenance of public order. In the case reported as Mrs. Majeeda Fatima versus District Magistrate and Deputy Commissioner, District Central Karachi and 3 others (PLD 1990 Karachi 470) while interpreting the word "satisfaction" appearing in the Ordinance (XXXI of 1960) ibid it was held that "satisfaction" is to be objective in nature and not subjective of such nature as to allow the Authorities to act on whims and caprices without there being material before them in support of grounds of detention."

1. It is a settled preposition of law that in exercise of powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the High Court can examine the validity of the detention order. In the case reported as Mir Abdul Baqi Baluch versus the Government of Pakistan through the Cabinet Secretary, Rawalpindi and others (PLD 1968 S.C. 313) it was held that, "High Court can insist on disclosure of materials on which executive authority had acted subject to right of State to claim privilege in respect of an appeal against decision of executive authority." It was further held that, "mere production of order of detaining authority in proof of "satisfaction" is not sufficient." The respondent DCO has failed to provide any material in relation to the grounds of the detention order to the petitioner and he has not applied his mind in order to satisfy himself while-passing the impugned detention order against the petitioner.

2. So far as the material/reports forming the basis of passing the impugned detention order are concerned, the same show that certain criminal cases have been registered against the petitioner and the petitioner is involved in criminal cases. It is pertinent to mention here that out of the seven criminal cases the petitioner has been granted bail in two cases registered vide F.I.Rs. Nos. 435/2006 and 148/200 at Police Station Faisal Town and Town Ship respectively, therefore, the petitioner's alleged criminal activity, was already a subject matter of various criminal cases and on the same allegations his detention was not justified in law, as this amounts to vexing the petitioner twice. Article 12 (1) (b) of the Constitution states as follows:--

Protection against retrospective punishment.--(1) No law shall authorize the punishment of a person--

(a) --------

(b) for an offence by a penalty greater than, or of a kind different from the penalty prescribed by law for that offence at the time of offence was committed.

Therefore, the use of Section 3(1) against a person against whom some criminal proceedings are pending already, is also violative of Article 12(1)(b) of the Constitution.

1. The Respondent No. 2 has accepted mechanically the recommendations of the police without applying his own independent mind to the recommendations and material placed before him. The mechanical nature of the impugned order of the respondent DCO is apparent from the fact that the same has been initiated on the basis of a report of Incharge Security Branch to the SSP Operation Lahore, who vide letter No. 1189/DSP-L.Ops dated 15.02.2010 forwarded a letter to the Capital City Police Officer, Lahore which was copied verbatim and forwarded by him to the DCO Lahore through Letter No. 4892/9B dated 16.02.2010 who has also copied it faithfully and issued the impugned detention order of the petitioner. The respondent/DCO was required to apply his mind, consider the material placed before him, and record the reasons for issuance or decline of the issuance of the order. Nothing has been brought on record of this writ petition to show that the DCO acted in such a manner prior to the issuance of the impugned detention order. Even if only one of the grounds was found to be bad or non-existent, the detention order would be rendered invalid. Reliance is placed on the case of Umer Din alias Umroo versus S.H.O. Bhai Pheru (1990 P.Cr.L.J.948).

2. For what has been discussed above, the respondent has failed to justify as to how the petitioner was acting in a manner prejudicial to the integrity, security or defence of Pakistan, or public order or the maintenance of supplies or services. The liberty of the citizens cannot be curtailed merely on presumptions. As such the impugned order of detention passed by the Respondent No. 2 is declared to have been passed, without lawful authority and is of no legal effect.

3. Let a copy of this judgment be sent to all the District Co-ordination Officers of the Province of Punjab for their guidance and compliance. A copy of this judgment be also sent to the Chief Secretary, Punjab and Secretary to Government of the Punjab, Home Department, Lahore for issuing appropriate directions to the concerned functionaries in the light of observations made hereinabove.

(M.S.A.) Order accordingly.

PLJ 2011 Lahore 520 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

PETROSIN GAS PAKISTAN (PVT.) LTD.--Petitioner

versus

PAKISTAN STATE OIL and another--Respondents

W.P. No. 3221 of 2010, decided on 12.7.2010.

Constitution of Pakistan, 1973--

----Art. 199--High Court, in its constitutional jurisdiction shall not embark upon the enforcement of the contractual liabilities between the parties--Performance of the contract has to be adjudicated by the Court of the first instance in a law suit--High Court in exercise of its constitutional jurisdiction is possessed with power to examine the validity of order in regard to grant of a concluded contract and to strike it out if the same be made in a mala fide manner by arbitrary exercise of discretionary powers provided the challenge is made promptly--Companies which are funded by the federal and provincial Governments and which are under the dominative control of State and provide amenities of life to citizens, and in substance are instrumentalities of the state and discharge the function which fall within the area of the state, sctions taken and the orders passed by the such institutions are subject to judicial review of High Court under Art. 199 of the Constitution. [Pp. 523, 524 & 525] A, C & D

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

----S. 21--Bar contained in S. 21 of Act, comes into play when the loss sustained is arithmetically calculable. [P. 523] B

PLD 2001 SC 116, rel.

M/s. Miangul Hassan Aurangzeb and Hassan Ali, Advocates for Petitioner.

Raja Zaheer-ud-Din Babar, Advocate for Respondents.

Date of hearing: 2.7.2010.

Order

The petitioner is a company incorporated under the laws of Pakistan, engaged in the business of marketing and distribution of Liquefied Petroleum Gas (LPG) under license from Oil and Gas Regulatory Authority (OGRA) Ordinance 2002. The Respondent No. 1 is a public limited company incorporated under the provisions of the Companies Ordinance, 1984. Control and 54% of the shares Respondent No. 1 vest in the Federal Government which appoints its Managing Director and members of the Board of Directors. The Respondent No. 1, in pursuation of long term association with potential private business, partners in Auto gas business having requisite infrastructure and capability, contacted the petitioner. An agreement dated 25.03.2010 was executed between the petitioner and the Respondent No. 1 whereby the Respondent No. 1 agreed to place reliance on the petitioner for the supply and delivery of LPG to the Auto Gas Stations and to assist in the establishment or, where specified by the Respondent No. 1, to establish and operate the LPG Auto Gas Stations. The agreement stipulated independent business relationship between the parties. The agreement was to continue for a period of 10 years. The agreement could be terminated under Article 7 of the said agreement.

1. It is contended by the learned counsel for the petitioner that in pursuance of the execution of the said agreement, the petitioner spent Rs. 10000/- Million between 25.3.2010 that is the date of signing of the agreement till 20.04.2010.

2. It is further argued that the petitioner learnt of some development on the end of the Respondent No. 1 that it was preparing for the recession of the contract. The Respondent No. 1 in a letter dated 06.05.2010, addressed to the petitioner, communicated the latter about the decision made by its Board of Management in its 188th, 189th and 190th meetings that it had decided not to carry forward the business relationship with the petitioner. Primary reason assigned to reaching this decision was that the petitioner was involved in multiple cases of litigation. The Respondent No. 1, as the next step vide letter dated 11.05.2010, rescinded the agreement dated 25.3.2010 between the parties. The reason assigned in this letter was that the petitioner had made misrepresentation as to its financial health to induce the Respondent No. 1 to execute the agreement in question.

3. When questioned about the maintainability of the petition, the learned counsel for the petitioner contends that the Respondent No. 1 is a public limited company incorporated under the provisions of the Companies Ordinance, 1984. Its control and 54% of the shares vest in the Federal Government, Respondent No. 2 which appoints the Managing Director and members of the Board of Directors and the said respondent is performing the functions in connection with the affairs of the Federation. He places reliance on 1998 CLC 1890 titled Messers Huffaz Seamless Pipe Industries Ltd. Vs. Sui Northern Gas Pipelines Ltd. and others", 2009 CLD 937 titled "Echo West International (Pvt.) Ltd. Lahore Vs. Government of Punjab through Secretary and 4 others" 2001 CLC 681 titled "Network Television Marketing Ltd. Vs. Government of Pakistan and another", 1998 CLC 1178 titled "Messers Wak Orient Power and Light Limited through Chief Executive, Lahore Vs. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others" and PLD 2001 Supreme Court 116 titled "Messers Ittehad Cargo Service and 2 others Vs. Messers Syed Tasneem Hussain Naqvi and others" and argues that in such like cases where the majority of the shares, administration and control vest in the Government, even in contractual matter, a writ petition is maintainable. It is further argued that after having entered into contract whereby the mutual rights and duties of the parties were fully determined and ascertained, the Respondent No. 1 could not unilaterally rescind the agreement and the rescission, if at all permissible, could only be done if the grounds mentioned in Para No. 17 of the agreement were available and that the letter of rescission does not specify the reasons for so doing, which according to him were none existent. It is further contended that having resort to the course of law for resolution of the dispute does not disentitle one of the parties from continuation of the agreement and does not equip the other party with a pretext for rescission of the contract.

4. On the other hand, the learned counsel appearing for Respondent No. 1 contends that the alleged agreement between the petitioner and Respondent No. 1 in its letter and spirit is, in fact, a license which does not, create any right in favour of the petitioner. A licensee thus has no right to insist the implementation of the terms of the license. Reliance is placed on PLD 1965 Supreme Court 83 titled "M.A. Naser Vs. Chairman Pakistan Eastern Railways and others". The learned counsel further argues that this Constitutional petition is not maintainable as the Respondent No. 1 is a public limited company, it is not funded by the Federal Government and its affairs are governed by its own independent Board of Governess, therefore is not amenable to the Constitutional jurisdiction of this Court. Reliance is placed on PLD 1990 Supreme Court 452 titled "Printing Corporation of Pakistan Vs. Province of Sindh and others". It is further argued that even if the document dated 25.03.2010 termed by the petitioner as an agreement, is so construed, the same is not enforceable even by institution of the suit because Section 21 of the Specific Relief Act, 1877 bars a legal action for enforcement of the agreement where the loss caused or apprehended to be caused, be measurable in terms of money. Reliance is placed on 1986 SCMR 820 titled "Messers Pakistan Associated Construction Ltd. Vs. Asif H. Kazi and another", 2007 Supreme Court 298 "Zonal Manager U.B.L and another Vs. Mst. Perveen Akhtar" and 1999 SCMR 467 titled "Nizam Din and another Vs. Civil Aviation Authority and 2 Others". It is further argued that in cases where contractual obligation between two parties is in question, this Court cannot be resorted to for its enforcement.

5. On the other hand, learned counsel for the petitioner argues that in such like cases, this petition is competent and this Court can set aside the order of rescission made unilaterally in violation of the terms of the agreement.

6. I have heard the learned counsel for the parties and have also gone through the record.

7. I would like to address the first point, first. Ordinarily, this Court, in its Constitutional jurisdiction shall not embark upon the enforcement of the contractual liabilities between the parties. The performance of the contract has to be adjudicated by the Court of the first instance in a law suit. However the contention of the Respondent No. 1 on the premises that the instant petition is not maintainable in view of Section 21 of the Specific Relief Act, 1877 is not acceptable. The bar contained in the said section comes into play when the loss sustained is arithmetically calculable. This pre-condition is not available in the instant case. This argument of the learned counsel is, therefore, repelled. The case law cited by the learned counsel for the Respondent No. 1 does not apply to the instant case. In PLD 1990 SC 452 titled "Printing Corporation of Pakistan Vs. Province of Sindh and others", the Honourable Supreme Court of Pakistan refused to accept the argument that owning the 60% shares by the government will, in all circumstances, lead to the conclusion that the corporation is controlled by the government. This is not the sole argument advanced by the learned counsel for the petitioner to establish that the Constitutional petition against the respondent is maintainable. In case cited as 1986 SCMR 820 titled "Messers Pakistan Associated Construction Ltd. Vs. Asif H. Kazi and another", it was held that resurrection of contract, in its full form and effect, could not be allowed through an interim injunction. The cited case deals with an altogether different situation. The ratio in this case is that the whole relief cannot be granted by way of interim injunction. In case cited PLD 2007 Supreme Court 298 titled "Zonal Manager, U.B.L and another Vs. Mst. Perveen Akhtar", it was held that contractual rights and obligations had to be enforced through Courts of ordinary jurisdiction; High Court exercising its Constitutional jurisdiction would be loath to interfere with such matters. There is no cavil to this proposition. The Apex Courts in exercise of their Constitutional jurisdiction have to be slow in interfering with such matters. The same judgment postulates that when obligation or duty vested in a public functionary or the public body is in question, even contractual rights and obligations might be enforced in exercise of the Constitutional jurisdiction. The judgment cited as PLD 1965 Supreme Court 83 titled "M.A. Naser Vs. Chairman Pakistan Eastern Railways and others" deals with the determination of rights conferred under licence, it is held that a licence does not confer any right enforceable through Specific Relief Act, 1877.

8. For what has been discussed above, I am of the view that the respondent PSO is controlled and principally owned by the Federal Government. Its Managing Director and Members of the Board of Directors are appointed by the Federal Government. It is engaged in the business of processing distribution and marketing of petroleum products and LPG. All of these functions are as vital to the economy of the country as the blood for keeping a man alive. Exploiting, processing and supplying of energy are one of the vital and most important functions of the State. The Respondent No. 1 although sitting behind a corporate veil, is infact performing the functions in connection with the affairs of the federation, so it is amenable to the constitutional jurisdiction of this Court.

9. The High Court in exercise of its Constitutional jurisdiction is possessed with power to examine the validity of order in regard to grant of a concluded contract and to strike it out if the same be made in a malafide manner by arbitrary exercise of discretionary power, provided the challenge is made promptly. Reliance is placed on PLD 2001 Supreme Court 116 titled "Messers Ittehad Cargo Service and 2 others Vs. Messers Syed Tasneem Hussain Naqvi and others" 1998 CLC 1178 titled "Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore vs. Government of Pakistan Ministry of Water and Power through Secretary, Islamabad and 2 others" In order to determine whether a person could be treated as "performing functions in connection with affairs of Federation or the Province the criterion" must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State. As I have already discussed the exploitation, processing and supply of the fuel in a developed industrialized state or a developing state are as vital the activities and functions of the state as is supply of the fresh blood for the living being. The companies which are funded by the Federal or Provincial government and which are under the dominative control of State and provide amenities of life to citizens, and in substance are instrumentalities of the State and discharge the function which fall within the area of the State, the actions taken and the orders passed by the such institutions are subject to judicial review of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. Such functionaries are bound to follow the rules of fairness and neutrality while awarding and rescinding contracts. The reliance is placed on 1998 CLC 1890 titled "Messers Huffaz Seamless Pipe Industries Ltd. Vs. Sui Northern Gas Pipelines Ltd. and others", 2009 CLD 937 titled "Echo West International (Pvt.) Ltd. Lahore Vs. Government of Punjab through Secretary and 4 others" and PLD 2001 Karachi 30 "Pak Shaheen Containers Services (Pvt.) Ltd. Vs Trustees of Port of Karachi and others".

10. The contention of the learned counsel for Respondent No. 1 that the transaction in question is infact grant of licence is not supported by the record. The agreement dated 25.03.2010 executed between the parties (Annexure-D) terms itself an agreement which under the ordinary law casts rights and duties on both the parties. The recital of the document leaves no room to term it a licence or a unilateral award of some concession. The document in question is an agreement and not a licence. The fourteen-days progress report published in routine by the petitioners shows a huge investment made towards the execution of the contract. The media reports exhibit the expression of complete satisfaction of the Respondent No. 1 over the credibility and the competence of the petitioner to undertake and execute the contract. Clause 17 of the agreement, stipulates the breach of agreement or becoming insolvent as condition for termination of the contract. None of these conditions were available to justify the recession of the contract by Respondent No. 1. The Respondent No. 1 in its letter dated 06.05.2010 (Annexure-P) has informed the petitioner that after due deliberation and consideration during the meeting of the Board of Management, it was decided not to carry forward any business relations with the petitioner. The primary reason ascribed to this decision is that the petitioner is involved in multiple cases of litigation. In my view, the litigation is a mode of the resolution of the disputes. The recourse for resolution to a Court of law is a permissible activity. It does not render the petitioner incapable of performing the contract. Reliance is placed on 2007 MLD 2010 titled "Messers Maxim Advertising Company (Pvt.) Ltd. Vs. Province of Sindh and 4 others". The respondent in its order dated 11.05.2010 deviated from its earlier stand that the petitioner was involved in litigation and opted to rescind the contract on the ground that the petitioner had made misrepresentation as to its financial health. The proposals were made, negotiated, deliberated and ultimately the agreement was signed on 25.03.2010. The litigation assigned to the petitioner did not abruptly crop up between the signing of the agreement and issuance of the letter dated 06.05.2010 and the rescission letter dated 11.05.2010. It seems to be the wolf and the lamb story, where the predator had every pretext to devour and the latter had no argument to escape.

11. This petition has been filed promptly. No factual controversies are involved in the matter. It is a clear cut case of nepotism, favouritism, arbitrariness, capriciousness and unfair play on the part of the respondent, which earlier was advocating the case for the grant of contract to the petitioner and abruptly woke up and came out to rescind the contract. The impugned letter rescinding the contract will deal a severe blow on the efforts of the nation made for earning the confidence of expatriate corporations for making investment in Pakistan. At this juncture, such like acts as the one done by the Respondent No. 1 cannot be tolerated and excused. Letter dated 11.05.2010 issued by the Respondent No. 1 rescinding the contract is held to be illegal and is set-aside. This petition is accepted.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 526 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

TARIQ HUSSAIN and another--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, BUREWALA, DISTRICT VEHARI and 2 others--Respondents

W.P. No. 8886 of 2009, decided 17.3.2010.

Constitutional of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dowery articles--Decreed by family Court--Appeal was dismissed--Writ petition--Maintainability--Jurisdiction--Held: There are with regard to the list of dowery articles--Writ jurisdiction cannot be exercised as an appeal--Findings of two Courts below about the facts and law cannot be disturbed in writ jurisdiction unless petitioner succeeds in establishing any error or jurisdictional defect in the judgments of two Courts below--Petition was dismissed. [P. 529] A

Mr. Saghir Ahmad Bhatti, Advocate for Petitioners.

Malik Sajjad Haider Maitla, Advocate for Respondents.

Date of hearing: 18.2.2010.

Order

Through This writ petition, petitioners seek setting aside of judgments and decrees dated 27.06.2009 and 05.10.2009 passed by learned Judge Family Court, Burewala and learned Additional District Judge, Burewala District Vehari respectively.

1. Brief facts of the case are that marriage of the plaintiff was solemnized on 08.03.2002 with the defendant according to Shariah. The plaintiff went to the house of Defendant No. 1 in Faisalabad alongwith her dowry articles. The plaintiff started performing marital obligations towards Defendant No. 1. Defendant No. 1 is residing in Saudi Arabia in connection with his job. In his absence the articles of dowry of plaintiff are lying with Defendant No. 2. The Defendant No. 2 is the special power of attorney of Defendant No. 1. After marriage, in the beginning behaviour of Defendant No. 1 remained cordial with the plaintiff but changed later on. He used to beat the plaintiff. The behaviour of Defendant No. 2 not remained cordial with the plaintiff. The Defendant No. 1 went to Saudi Arabia after one year of the marriage. He did not send any maintenance to the plaintiff from Saudi Arabia. Defendant No. 2 expelled the plaintiff alongwith her minor daughter in 2006. She came to Burewala alongwith the minor. The Defendant No. 2 came to Pakistan in December 2007 and took the plaintiff with him to Faisalabad but expelled the plaintiff alongwith her daughter from his house in three clothes on the night of 27/28-01-2008. After that the Defendant No. 1 never tried to rehabilitate the plaintiff. She has developed strong aversion against the Defendant No. 1 and cannot reside within the limits ordained by Almighty Allah.

2. The petitioner contested the suit by filing written statement wherein defendant/petitioner raised some preliminary objections that the suit is not maintainable in its present form. Suit is false and frivolous. Plaintiff/respondent is estopped by her words and conduct to file this suit. Further stated that Defendant No. 1 is residing with his aged parents; plaintiff came to Burewala happily just to meet her parents; Defendant No. 2 extremely loves the plaintiff and his minor daughter. Plaintiff is "Ghairabad" without any rhyme and reason. Defendant No. 1 is ready to return the dowry articles of the plaintiff. Defendant No. 1 produced list of dowry articles Ex.D.2.

3. On 11.05.2009 the case was fixed for pre-trial reconciliation and the same failed. Suit for dissolution of marriage of the plaintiff was decreed under Section 10(iv) of the Family Court Act, 1964. Out of divergent pleadings of the parties, following issues were framed:--

4. Whether plaintiff is entitled to recover the dowry articles according to the list annexed with her plaint or in lieu its price Rs. 4,67954/-? OPP

5. Relief.

6. The plaintiff produced her evidence consisting of her own statement as PW-1 and statement of Muhammad Iftikhar as PW-2. In documentary evidence, she produced list of dowry articles Ex.P.1 and receipts of purchase of Furniture Mark-PA. Defendant himself appeared as DW-1 and produced Iftikhar Ahmad as DW-2 and produced the list of dowry articles of the plaintiff as Ex.D.1. After hearing both the parties, in the light of appraisal of the evidence on record learned Judge family Court vide judgment and decree dated 27.06.2009 decreed the suit of plaintiff for dowry articles according to the list of dowry articles Ex. P.1.

7. Being aggrieved from the judgment and decree of the learned Judge Family Court, plaintiff, Afia Almas filed an appear assailing the judgment and decree dated 27.6.2009 on 28.07.2009. Petitioner/ defendant also filed an appeal before the learned Additional District Judge assailing the judgment and decree passed by the learned Judge Family Court on 27.6.2009 praying the dismissal of the suit. She has also filed an appeal against the judgment and decree dated 27.06.2009 on 28.07.2009. Learned Additional District Judge, Burewala disposed of both the appeals by consolidated judgment and decree dated 05.10.2009 modified the judgment and decree of the learned Judge Family Court dated 27.06.2009 and decreed the suit for full claim of Rs. 4,67,954/-, accepted the appeal of Afia Almas and set aside the observations made by learned Judge Family Court. Placing reliance on Muhammad Habib versus Mst. Safia Bibi (2008 S.C.M.R. 1584).

8. Learned counsel for the petitioner, Tariq Hussain etc. contends that judgment of both the Courts below are against law and facts of the case; both the Courts below committed material illegality and irregularity ignoring the evidence of the petitioner/ defendant and both the Courts below wrongly preferred the documentary as well as oral evidence; learned lower appellate Court while giving the finding have not appreciate oral as well as documentary evidence; there are material contradictions in oral evidence as well as in documentary evidence; learned lower appellate Court have wrongly modified the findings of the learned trial Court, list of dowry articles Ex.P.1 is wrongly exhibited by the learned trial Court.

9. Conversely learned counsel for the respondent fully supported the judgment of the learned Additional District judge, Burewala; further submits that learned Additional District Judge rightly placed reliance on caste titled Muhammad Habib versus Mst. Safia Bibi (2008 SCMR 1584) rightly modified the judgment and decree of the learned Judge Family Court; respondent/plaintiff fully proved her case she appeared herself as PW-1 and narrated each and every article given to her by her parents in dowry. The said articles are mentioned in the plaint and in the statement of PW-1, plaintiff herself. Both the Courts below rightly appreciated the evidence produced by the plaintiff/ respondent; further submits that evidence produced by the plaintiff/respondent was convincing, rational and believable.

10. I have heard the learned counsel for the parties and perused the record.

11. There are concurrent findings of two Courts below with regard to the list of dowry articles. Learned Judge Family Court after discussing at length the evidence produced by both the parties had decreed the suit of the plaintiff/respondent to the extent of dowry articles as per list Ex.P.1 while the Additional District Judge placing reliance on same evidence rightly decreed the suit of plaintiff/petitioner for Rs. 4,67,954/-. Learned counsel for the petitioner could not point out any illegality or irregularity or jurisdictional defect/error in the judgments passed by the learned Additional District Judge and the Judge Family Court. The writ jurisdiction cannot be exercised as an appeal. The findings of two Courts below about the facts and law cannot be disturbed in writ jurisdiction unless petitioner succeeds in establishing any error or jurisdictional defect in the judgments of two Courts, below. It is observed that dowry articles were received from the parents of the plaintiff/ respondent, Afia Almas by Respondent No. 1, who has not appeared himself in the witness box. The respondents have admitted the receipt of dowry articles but have contended that the dowry articles as per list Ex.D-1 were received by them. While appearing as PW-1 the respondent/plaintiff Afia Almas stated in her cross-examination that the list of dowry articles was prepared by her brother and the same was delivered to Respondent No. 1 alongwith articles of dowry. The Respondent No. 2 while appeared as DW-1 had affirmed in cross-examination that a copy of list of dowry articles was given to them at the time of marriage but stated that Ex. P.1 was not that list which was prepared and given to petitioner alongwith dowry articles, respondents must have produced list which was admittedly given to them at that time but no such list has been produced by them. It gives rise to an adverse presumption against the claim of the respondents. It can be safely gathered that dowry articles given to the respondents were as per list Ex. P.1. When it is proved that list Ex. P.1 is correct, non-production of receipts of purchase of dowry articles is not fatal. The articles of dowry as per list Ex. P.1 are of such a nature that such articles are ordinarily given to a bride by her parents at the time of marriage.

11. In the light of above discussion, this writ petition being meritless is dismissed in limine.

(M.S.A.) Petition dismissed.

PLJ 2011 Lahore 536 (DB) [Multan Bench Multan]

Present: Sagheer Ahmad Qadri & Syed Akhlaq Ahmad, JJ.

ABDUL RAHEEM--Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO. II, MULTAN and 19 others--Respondents

W.P. No. 2600 of 2008, decided on 19.5.2010.

Interpretation of Statutes--

----No provision of law can be interpreted on the basis of "pick and choose" of a new words and in case of any confusion, the relevant provisions of law should be read into alongwith the preamble of the statute coupled with the objects and reasons thereof to remove the confusion if, any. [P. 541] A

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----Ss 6 & 7--Scope of--Terrorism, thus, means the use or threat of "action" where the "action" falls within the meaning of S. 6(2) of the Act and creates a serious risk to safety of public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupt civil life--Such action shall amount to terrorism as enumerated in Section 6 of the Act--For determining the jurisdiction of the Anti-Terrorism Court--If action of the accused had got the tendency to create a sense of insecurity in the minds of the people or section of the society, the case would fall within the jurisdiction of the Anti-Terrorism Court--Petition was allowed. [Pp. 541 & 542] B & C

PLD 2005 SC 530, rel.

Mr. Zia-ur-Rehman Randawa, Advocate for Petitioner.

Ch. Faqir Muhammad, Advocate for Respondents.

Mehr Nazar Abbas Chawan, A.A.G. for State.

Date of hearing: 5.5.2010.

Judgment

Syed Akhlaq Ahmed, J.--Through this writ, Abdul Raheem petitioner/complainant has challenged the order dated 25.02.2008 passed by Judge Anti-Terrorism Court No. II Multan/Respondent No. 1 whereby he accepted the transfer application moved by the respondents/accused u/S. 23 of Anti-Terrorism Act, 1997, deleted the charge u/S. 7(b) of ATA and sent the file back to the Illaqa Magistrate PS: Dehli Gate Multan for its trial in the Court of ordinary jurisdiction.

1. At the instance of Malik Abdur Rahim/petitioner/ complainant case FIR No. 147/07 dated 03.08.2007 under Section 324/452/337-L(i)/F(v)/L(ii)/448/148/149 PPC and under Section 7-ATA was registered as PS: Dehli Gate Multan alleging therein that he purchased 5-Kanals of land vide Sale-deed No. 4391 dated 15.05.2001 where a boundary wall was constructed and Abdul Rauf S/o Naik Muhammad was residing there along with his family. On 03.08.2007, at about 1 a.m. he along with Maqsood Yameen S/o Naik Muhammad, caste Dogar, r/o Ahmadabad, his brother Abdul Rehman, Muhammad Mujahid S/o Shaukat Ali, caste Butt, r/o Ahmadabad, Muhammad Iqbal alias Aslam S/o Noor Muhammad, caste Dogar, r/o Manzoorabad Multan and Abdul Rauf S/o Naik Muhammad were present in their plot situated in Chah Khameesaywala, Mohallah Ahmadabad Multan when a white colour Corolla Car No. 5/MLF, a Suzuki Carry Bearing No. 873/MNN and white Corolla Car No. 8316/RLC, came there. Some persons also reached there on foot whose names are:--

(1) Muhammad Sharif S/o Gulab Din, caste Dogar, armed with Sota, (2) Kamran S/o Muhammad Umar, caste Dogar, r/o BCG Chowk Multan armed with 222 bore rifle, (3) Muhammad Idress S/o Gulab Din, caste Dogar, r/o Sultanabad armed with Sota, (4) Manzoor Hussain S/o Gulab Din, caste Dogar, r/o Rasoolpur armed with .32 bore, (5) Qurban S/o Muhammad Akram armed with .12 bore r/o Ahmadabad, (6) Muhammad Anwar S/o Muhammad Hanif, caste Dogar r/o Kotheywala armed with Sota, (7) Abdul Hakeem alias Gogi S/o Muhammad Jaaber alias Abdul Rashid, caste Dogar, r/o People Colony armed with pistol .30 bore, (8) Muhammad Umar S/o Naik Muhammad, caste Dogar, r/o BCG Chowk armed with .222 bore rifle, (9) Muhammad Saleem S/o Muhammad Jameel, caste Pathan, r/o Gulzeb Colony armed with Sota, (10) Ashiq Ali S/o Rukan Din, caste Dogar, r/o Basti Maswan armed with Sota, (11) Muhammad Sharif S/o Naik Muhammad, caste Dogar, r/o Kotheywala armed with Sota, (12) Muhammad Rizwan S/o Muhammad Umar, caste Dogar, r/o BCG armed with pistol .30 bore, (13) Muhammad Farooq S/o Mardan Ali, caste Dogar, r/o Basti Maswan armed with Sota, (14) Farhan S/o Muhammad Saleem, caste Pathan, r/o Mumtazabad armed with Sota, (15) Muhammad Sardar S/o Javed Akhtar, caste Dogar, r/o Ahmadabad armed with Sota, (16) Abdul Samad S/o Muhammad Hussain, caste Dogar, r/o Ahmadabad armed with Sota, (17) Muhammad Umar S/o Ahmad Yar, caste Dogar, r/o Chongi No. 14 armed with Sota, (18) Muhammad Amin S/o Muhammad Ilyas, caste Rajpute, r/o Tataypur armed with Sota, (19) Faheem Rustam Aslam S/o Muhammad Aslam, caste Chatha, r/o Ahmadabad armed with Hunter, (20) Muhammad Imran S/o Muhammad Umar, caste Dogar, r/o BCG Chowk armed with Kalashnikov, (21) Abdul Hameed S/o Muhammad Jabir alias Abdul Rasheed, caste Dogar, r/o Peoples Colony Multan armed with .222 bore, (22) Muhammad Irfan S/o Muhammad Aslam, caste Dogar, r/o Ahmadabad armed with .12 bore, (23) Muhammad Bilal S/o Muhammad Hussian, caste Dogar, r/o Ahmadabad armed with pistol .30 bore, (24) Furqan S/o Muhammad Akram, caste Dogar, r/o Ahmadabad armed with pistol .30 bore, (25) Bashir alias Mithoo S/o Gulab Din, caste Dogar, r/o Sultanabad armed with pistol .30 bore, (26) Sardar S/o Amir Hamza, caste Dogar, r/o Basti Maswan armed with .222 bore came there and raised lalkara that they will not be left alive and will be taught a lesson for purchasing the land. Muhammad Imran made a straight fire with Klashnikov which hit Maqsood Yamin S/o Naik Muhammad on his left leg. Kamran S/o Muhammad Umar made a fire with .222 bore which landed on both the legs of the complainant Muhammad Umar S/o Naik Muhammad made straight fire with .222 bore which landed on the right leg of Abdul Rehman, brother of the complainant. Muhammad Rizwan S/o Muhammad Umar made a fire with .30 bore pistol which landed upon the left leg of Muhammad Iqbal. Muhammad Imran gave a blow with butt of .222 bore on the forehead of abdul Rauf as a result of which he was injured. He again gave blow with the butt of rifle which landed on his right shoulder. Muhammad Sharif S/o Naik Muhammad, Muhammad Sharif S/o Gulab Din and Idress S/o Gulab Din gave Sota blows on Muhammad Mujahid which hit on his left thigh, left shoulder and left writs. On hue and cry and on hearing the noise of firing Muhammad Yousaf S/o Naik Muhammad, Rana Muhammad Abid S/o Hafiz Noor Muhammad and other Mohalladars attracted at the spot. It is alleged that the above mentioned accused persons belong to Qabza Group. Earlier he had also got registered against them case FIR No. 80/07 dated 21.04.2007 u/S. 511/442/148/337-H(ii)/149 PPC at PS: Dehli Gate Multan. The firing of the accused persons created terror in the area. They also left three vehicles at the spot and succeeded in running away with their arms while making aerial firing. The complainant and others removed the injured to the Nishtar Hospital Multan.

1. On receipt of challan, Judge Anti-Terrorism Court No. II Multan/Respondent No. 1 framed the charge against the respondent/ accused for the offences mentioned above. Statements of PW-1 Abdul Raheem petitioner/complainant and PW-2 Dr. Mushtaq Ahmad Chaudhary were recorded whereafter respondents/accused moved an application u/S. 23 of Anti-Terrorism Act, 1997 before Judge Anti-Terrorism Court No. II Multan/Respondent No. 1 who after deleting the offence u/S. 7 ATA sent the case back to the learned Illaqa Magistrate for its trial in the Court of ordinary jurisdiction.

2. Learned counsel for the petitioner/complainant contends that according to the FIR and the statements of the PWs, 26 persons armed with different lethal weapons wile boarding in three vehicles came at the place of occurrence. They launched attack upon the complainant party. Four persons including complainant received fire-arm injuries while two persons received blunt weapon injuries from the side of respondent/ accused. Evidence produced by the prosecution namely PW-1 Abdul Rahim fully corroborates the medical evidence of PW-2 Dr. Mushtaq Ahmad Chaudhary and other available material on the record. During the occurrence, Abdul Rahim received two injuries from Kamran accused, Muhammad Iqbal received two fire-arm injuries and Maqsood and Abdul Rehman received one fire-arm injury each. Respondents/ accused initially fired 6/7 aerial shots and also made indiscriminate firing at the place of occurrence. 47 fire-arms empties were recovered from the place of occurrence. After the occurrence respondents/accused ran towards the street while making indiscriminate firing and due to this act of the respondents/accused sense of fear and panic spread all over the area. During cross-examination, no suggestion was made by the defence about the said facts. In this way it is admitted by the defence that the occurrence created sense of fear and panic. Defence also admitted the presence of the respondents/accused, recovery of vehicles and firing at the place of occurrence which is situated in a thickly populated area.

It is the consistent view of the Supreme Court of Pakistan that if the act/crime committed by the accused creates sense of fear in the society or section of public, then the offence falls within the jurisdiction of ATA Court. Section 7 ATA was added by the police during investigation of this case. 26 respondents/accused of this case while armed with lethal weapons made unlawful assembly, fired 50 shots in the thickly populated area and also in the street and injured six persons. In this way material available on record, clearly proves that Section 7 ATA is made out. It is, therefore, prayed that the impugned order dated 25.02.2008 passed by Judge Anti-Terrorism Court No. II Multan/ Respondent No. 1 be set-aside and the case be ordered to be heard and decided by Judge Anti-Terrorism Court No. II Multan.

1. On the other hand, learned counsel for Respondents No. 2 to 20 contends that Section 7 ATA is not attracted in the present case. A civil suit was filed by the respondents/accused regarding cancellation of sale-deed. This fact caused annoyance to the complainant party who became inimical towards the respondents/accused. Since there is a dispute regarding land between both the parties, therefore, present case has no nexus with the Anti-Terrorism or with secretarial hatred etc. This being so, Judge Anti-Terrorism Court No. II Multan rightly deleted Section 7-b of ATA on the application of the respondents/accused and sent the case back to the learned Area Magistrate for its trial in the Court of ordinary jurisdiction.

2. We have heard the learned counsel for the parties and have also gone through the record.

3. Section 6 of the Anti-Terrorisms Act, 1997 provides the definition of "terrorism". In order to appreciate the legal position, Section 6 of the Act is reproduced as under:--

"6. Terrorism.--(1) In this Act, "terrorism" means the use or threat of action where--

(a) the action falls within the meaning of sub-section (2), and

(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear and insecurity in society; or

(c) the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause, or intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, Government officials, installations, security forces or law enforcement agencies.

1. An "Action" shall fall within the meaning of sub-section (1), if it--

(a) involves the doing or anything that causes death;

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

(c) involves grievous damage to property, including Government premises, official installations, schools, hospitals, offices, or any other public property;

(d) involves the doing of anything that is likely to cause death or endangers a person's life;

(e) involves kidnapping for ransom, hostage-taking or hijacking;---"

1. A bare reading of the above quoted provisions of law makes it crystal clear that Section 6 of Anti-Terrorism Act, 1997 is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in Section 6(1)(b) of the Act or mens rea but the key word is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of Section 6 of the Act or otherwise. The significance and the import of word "action" cannot be minimized and requires interpretation in a broader perspective.

2. No provision of law can be interpreted on the basis of "pick and choose" of a few words and in case of any confusion, the relevant provisions of law should be read in toto along with the preamble of the statute coupled with the objects and reasons thereof to remove the confusion, if any.

It must not be lost sight of that the provisions of Section 6(1)(a) and (b) of the Act are not independent and the word "action" as used cannot be restricted within a limited sphere which has been further clarified in Section 6(2) of the Act to remove all the doubts and ambiguities, if any, clause (i) of Section 6(2) of the Act is very significant which cannot be kept aside being an integral part of Section 6 of the Act which shall be read in toto to see what in fact the terrorism is?

1. Terrorism, thus, means the use or threat of "action" where the "action" falls within the meaning of sub-section (2) of Section 6 of the Act and creates a serous risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupt civil life. Such action shall amount to terrorism as enumerated in Section 6 of the Act. (Mirza Shaukat Baig and others vs. Shahid Jamil and others, PLD 2005 Supreme Court 530 relied upon).

2. As in this case, 26 persons armed with different lethal weapons while riding on three vehicles came at the place of occurrence which is situated in a thickly populated area in the odd hours of night and launched attack on the complainant party in which four persons including the complainant received fire-arm injuries while two persons received blunt weapons injuries from the hands of the respondents/ accused. According to record, about 47 fire-arms empties were recovered from the place of occurrence. After the occurrence respondents/accused ran towards the street while making indiscriminate firing. Due to this act and conduct of the respondents/ accused sense of fear and panic must have spread all over the area.

Supreme Court of Pakistan in case reported as `Muhammad Mushtaq vs. Muhammad Ashiq and others' PLD 2002 SC 841 held that physical harm to the victim is not the sole criteria to determine the question of terrorism. Relevant portion of the said judgment reads as under:

"7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single mindedness of purpose. But nevertheless the impact of the same may be to terrorize thousands of people by creating a panic or fear in their minds."

Similar view has been taken by the Supreme Court of Pakistan in cases reported as Sh. Muhammad Amjad vs. The State' PLD 2003 SC 704,Mst. Najam-un-Nisa vs. Judge, Special Court constituted under Anti-Terrorism Act, 1997' 2003 SCMR 1323, Abdul Ghafoor Bhatti vs. Muhammad Saleem and others' 2003 SCMR 1934 andZahid Imran and others vs. The State and others' PLD 2006 SC 109.

In all the above mentioned judgments by the Supreme Court of Pakistan, for determining the jurisdiction of the Anti-Terrorism Court, much emphasis has been laid on the point that if action of the accused had got the tendency to create a sense of insecurity in the minds of the people or section of the society, the case would fall within the jurisdiction of the Anti-Terrorism Court. It has also been held that it is not necessary that the said act must have created the panic rather the Courts are obliged to see only as to whether the crime had or had not the effect of striking terror or creating fear and insecurity in the people or any section of the people.

1. The upshot of the above discussion is that the acts of Respondents No. 2 to 20 created sense of fear and insecurity in the minds of public, and thus, same falls within the ambit of Sections 6 & 7 of the Anti-Terrorism Act, 1997. As such the learned trial Court was not justified in accepting the application of the respondents/accused and sending the case for trial to the ordinary Court after deleting Section 7(b) ATA from the charge. It is further observed that the findings of this Court would not prejudice the case of either party. We, therefore, accept this writ, set-aside the impugned order dated 25.02.2008 passed by Judge Anti-Terrorism Court No. II Multan with the result that this case will be heard and tried by Judge Anti-Terrorism Court No. II Multan.

(M.S.A.) Petition accepted.

PLJ 2011 Lahore 543

Present: Habib Ullah Shakir, J.

RANA NADEEM--Petitioner

versus

SHO POLICE STATION CITY HAFIZABAD and others--Respondents

W.P. No. 1771-Q of 2009, decided on 3.7.2009.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Prevention of Gambling Act, 1978, S. 5/7/1978--Quashing of FIR--Selling the gambling parchies--Neither any purchaser of gambling parchies could be arrested nor any local witness was brought forward in FIR--Not possible for an alone man who deal as in thorough fares gambling parchies to himself arrange for huge amount of cash prize to pay his purchasers in shape of prize money--Validity--It was not possible for an alone man to gamble especially a parchi seller as he requires the purchasers of the parchies to be sold too--Prosecution story seemed doubtful when a man in a thorough fare deals in such like business there is definitely open or hidden resistance in different shapes but in instant case the police had failed to brought any such evidence to prove its version taken in alleged FIR--FIR was quashed. [Pp. 544 & 545] A & B

Rai Zameer-ul-Hassan, Advocate for Petitioner.

Mr. Izhar-ul-Haq Toor, AAG and Mr. Muhammad Iqbal Ghani, Advocate for Respondent.

Date of hearing: 3.7.2009.

Order

Through this constitutional petition quashment of FIR No. 56/2009, dated 21.1.2009, registered under Section 5/7/78 of the Punjab Prevention of Gambling Act, 1978, at Police Station, City Hafizabad has been sought for.

1. Briefly stated facts giving rise to the filing of this constitutional petition are that on 21.1.2009, at about 6.10. p.m. having received a spy information that the petitioner was selling the gambling "Parchies" in a thoroughfare the raid was conducted but the petitioner on seeing the police ran away throwing eight gambling Parchies and a cash amount of Rs. 410/-. The petitioner was allowed ad interim bail by the learned Additional Sessions Judge, Hafizabad on 22.1.2009 and the same was stood confirmed on 28.1.2009 the petitioner joined the investigation and the challan in the case was submitted on 7.2.2009.

3. Conversely, learned AAG vehemently opposes this constitutional petition on the ground that though the petitioner could not be arrested on the spot, yet it is a matter of fact that he was selling gambling Parchies and on seeing the police he fled away throwing an amount of Rs. 410/-, in cash, and eight gambling Parchies. Further the challan of the case has been submitted the matter is sub-judice before the learned trial Court, it would be better to wait for the judgment of the learned trial Court before quashing the instant FIR.

1. I have heard learned counsel for the petitioner as well as the learned AAG and perused the available record. It has been brought to the notice of this Court that the present petitioner, seeking quashment of the FIR under reference, was selling the gambling Parchies pertaining to a draw holds in India the result of which is shown live on T.V. at the channel named as Sur-Sangeet. And the allegation against the petitioner is that he was selling gambling Parchies. Had he been selling the Parchies in a thoroughfare then the police had failed to know for whom of the dealer he used to worked or the collected money i.e. in respect of the selling gambling Parchies to whom of the dealer/his employer, he used to deliver the same for having his commission's amount or salary being an agent or servant; there is nothing on record nor the learned AAG has been able to satisfy this Court on confrontation by this Court in this regard. Above all, as per allegation the petitioner had sold Parchies amounting to Rs. 410/- meaning thereby he had already dealt with a few purchasers of the Parchies on the day of conducting of raid and that too in a thoroughfare but neither any purchaser of the gambling Parchies could be arrested nor any local witness(s) had been brought forward, especially in the FIR. Prima facie, it is also not possible for an alone man, who deals in the thoroughfares the gambling Parchies to himself arrange for huge amount of cash prize to pay his purchasers in the shape of prize money. Meaning thereby that if the version of the prosecution is correct then there would/must be some instigative/supportive element to back him (petitioner) up or to provide financial or authoritative support to carry on this heinous business but non-production of such an evidence definitely shatters the prosecution story.

2. As far as the argument of the learned AAG as well as the learned counsel for the complainant that challan of the case has been submitted, therefore, the matter should now be left for a decision of the learned trial Court. In this regard it has already been settled by the Hon'ble apex Courts that mere submission of challan before a Court of competent jurisdiction does not bar the proceedings to quash an FIR.

3. Therefore, in view of above discussion it is crystal clear that it is not possible for an alone man to gamble especially a Parchi seller, as he requires the purchasers of the Parchies to be sold too. Furthermore, prosecution story seems doubtful when a man in a throughout deals in such like business there is definitely open or hidden resistance in different shapes but in this case the police has failed to brought any such evidence to prove its version taken in the alleged FIR. The same is, therefore, stands quashed.

(R.A.) FIR quashed.

PLJ 2011 Lahore 545 [Rawalpindi Bench Rawalpindi]

Present: Hassan Raza Pasha, J.

MEER DAD--Petitioner

versus

INSPECTOR GENERAL POLICE--Respondent

W.P. No. 1406 of 2010, heard on 23.4.2010.

Police Order, 2002 (22 of 2002)--

----Art. 18(6)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Recommended for re-investigation--Change of second investigation was approved--Challenge the legality and validity of order--Recommendation of P.S.B were approved by I.G. Police and investigation was entrusted (RIB)--Question of--Whether Police authorities were empowered to initiate re-investigation of the same crime for which they had already filed report u/S. 173, Cr.P.C.--Validity--Under Art. 18(6) of Police Order, the law bestows a power on duly constituted board to recommend for re-investigation and if the Board recommended for re-investigation of the case then even after submission of the challan the re-investigation could not be debarred--Petition was dismissed. [P. 550] A

Duty of Investigating Officer--

----Administer justice--To collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the parties--Held: An investigating officer is not to render any opinion regarding guilt or innocence of an accused person and statutory provisions contained in Cr.P.C. Police Order and Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the magistrate so that magistrate can form their own independent opinion regarding sufficiency or otherwise of the evidence and material order to decide whether to take cognizance of offence or not to summon any person to face a trial. [P. 550] B

PLD 2002 Lah. 470, rel.

Constitution of Pakistan, 1973--

----Art. 199--Police Order, 2002, Art. 18(6)--Constitutional petition--Change of second investigation--Submission of subsequent challan--Not barred--Discretion of Court to admit additional evidence--Alternative remedy--Validity--Holding of successive investigations were deprecated by the Court with intent to avoid undue lingering on the case--How a subsequent challan which almost was completed for submission in the Court of competent jurisdiction can be withheld or brushed aside--Even submission of subsequent challan was not debarred under the provisions of Cr.P.C.--It was entirely discretion of the Court to admit additional evidence if the cognizable of the case submitted to it by the police has already been taken--Complainant can avail an alternative remedy of filing a private complaint--Petition was dismissed. [P. 551] C

Raja Rizwan Abbasi, Advocate for Petitioner.

Syed Zafar Ali Shah & Syed Ali Shah Bukhari, Advocates for Respondents.

Mr. Abdul Wahid Babar, AAG for State.

Date of hearing: 23.4.2010.

Judgment

Through this constitutional petition, the petitioner has challenged the legality and validity of order dated 14.1.2010 passed by Inspector-General of Police Punjab, Lahore-Respondent No. 1 whereby "second change of investigation" was approved and investigation of the case was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Branch Punjab.

1. Brief facts of the case, giving rise to the filing of this petition are that the petitioner got registered F.I.R. No. 140 dated 9.4.2009 under Sections 302, 324, 427, 148, 149 PPC read with Section 7 Anti Terrorism Act at Police Station Murree District Rawalpindi with the allegation that on 9.4.2009 at 5.30 p.m. petitioner along with his brother Arshad, Muhammad Irfan and Rashid Sarwar, a taxi Driver were taking tea at Hotel Express Way situated in the area of Samli Bera and were waiting for Faisal to receive money. Imtiaz Bhola, owner of the hotel was also present there. In the meanwhile, Naseer Mehfooz, Waheed Mehfooz, Bashi Khan along with some other accused person came there on one Parado, one double cabin and two corolla cars. They alighted from the vehicles and started indiscriminate firing with their respective weapons and started demolishing the hotel. When Arshad forbad them not to demolish the hotel. Naseer Mehfooz fired a shot with Kalashnikov which hit him on his mouth who fell down and succumbed to the injuries at the spot. Waheed Mehfooz also fired a shot with Kalashnikov which hit on right wrist of Rashid Sarwar-Driver who fell down. Thereafter the accused while boarding the vehicles left the place of occurrence.

2. Learned counsel for the petitioner submitted that after submission of challan before the trial Court the Inspector-General of Police could not transfer the investigation of the case. Learned counsel has argued that superior Courts have many a times disapproved the practice of successive investigation, thus action of Respondent No. 1 being a nullity in the eyes of law is liable to be quashed. Further argued that after Ist change of investigation, the investigation was conducted by the Superintendent of Police and now the investigation was entrusted to the Deputy Superintendent of Police. This fact smacked of mala fide on the part of the police. The act of Respondent No. 1 is nullity in the eyes of law and that the accused party is very much influential and the investigation was transferred to the Deputy Superintendent of Police by giving special task to favour the accused party. Learned counsel further argued that the purpose of the investigation is to collect evidence, which has already been collected and, therefore, no useful purpose would be served by further delaying the matter. In support of his submission, the learned counsel has relied upon Muhammad Nasir Cheema v. Mazhar Javaid and other (PLD 2007 SC 31).

3. Learned counsel for Respondents No. 5, 6 & 7 as well as learned Assistant Advocate-General, have submitted that there is no statutory bar for the police authorities to embark upon investigation of the case even after submission of complete challan, that the petitioner has only challenged the order dated 14.1.2010 for 2nd change of investigation. He has not challenged the recommendations of the Provincial Sanding Board; that the police has only to collect evidence far and against of either party and the trial Court will decide regarding the innocence or guilt of the accused; that the police can investigate the matter at any stage of the trial on the availability of fresh material and evidence. They have relied upon Ashiq Ali v. Deputy Inspector-General of Police, Punjab, Lahore and 4 others (2009 PCr.LJ 830), Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others (PLD 2008 Lahore 488), Muhammad Naseem v. S.H.O. Police Station Thikriwala, District Faisalabad and 2 others (1997 MLD 1555) and Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others (PLD 2009 Lahore 585) Muhammad Yousaf v. The State and others (2000 SCMR 453).

4. I have heard the arguments of learned counsel for the parties and have gone through the record carefully. After registration of the case, the investigation was conducted by the S.H.O. who arrested Muhammad Pervez alias Bashi Khan and challaned to Court whereas Naseer Mehfooz and Waheed Mehfooz accused were declared innocent by the local police. The complainant feeling aggrieved of the investigation carried out by the local police applied to the C.P.O. Rawalpindi for Ist change of investigation and investigation was entrusted to Regional Investigation Branch (RIB) Rawalpindi Region, Rawalpindi. During investigation, conducted by Regional Investigation Branch Rawalpindi, both the accused namely Naseer Mehfooz and Waheed were found guilty. Being dissatisfied with the investigation conducted by Regional Investigation Branch Rawalpindi, an application was moved on behalf of Naseer Mehfooz and Waheed Mehfooz for 2nd change of investigation. Upon the said application a Provincial Standing Board comprising of Deputy Inspector General of Police. Investigating Branch Punjab (Chairman), Senior Superintendent of Police Investigating Branch Punjab (Member) and Deputy, Superintendent of Police Investigating Branch Punjab was constituted under Provisions of Article 18(6) of Police Order, 2002. The Provincial Standing Board recommended the above said case for 2nd change of investigation on the following grounds:--

(i) As per report of complainant Meer Dad, he along with his brother Arshad Ali, Muhammad Irfan and Taxi Driver Muhammad Arshad were sippling tea at a Tea Stall on main road Murree and waiting for their friend when the accused Muhammad Pervez alias Bashi Khan, Waheed Mehfooz and Nasir Mehfooz along with some other persons came on cars and jeeps, made indiscriminate firing and started demolishing the tea stall. Arshad forbade them to do so on which Nasir Mehfooz fired at Muhammad Arshad killing him at the spot, Waheed Mehfooz fired at Rashid Sarwar injuring him seriously;

(ii) The local police arrested Muhammad Pervez alias Bashi Khan sent him to judicial lock up and challaned him. The other two accused were declared innocent on the basis of their alibi.

(iii) During investigation of RIB, the I.O. belied the alibi of two accused, held them guilty, arrested them and sent them to judicial lock up without recovery as the Court declined to remand the accused further.

(iv) It has been noted that there is difference of opinion between local police and RIB regarding innocence/guilt of two accused.

(v) There is no solid motive brought on record against the deceased.

(vi) The owner of tea stall who was witness to the occurrence resiled from his stance.

(vii) The I.O. also could not trace the accused other than nominated in the F.I.R.

1. The recommendation of the Provincial Standing Board were approved by the Inspector-General of Police Punjab and the investigation was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Breach Punjab. The main grievance of the petitioner is that the re-investigation of the case is motivated. The pivotal issue in the field is whether the police authorities are empowered to initiate re-investigation in respect of the same crime for which they have already filed report under Section 173 Cr.P.C.

2. To resolve the present controversy the provisions of Article 18(6) of the Police Order, 2002, is reproduced as under:

"18(6) Investigation shall not be changed except after due deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendent of Police, one being incharge of the investigation of the concerned district:

Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation:

Provided further that the second change or investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."

1. Under Article 18(6) of the Police Order, 2002, the law bestows a power on the duly constituted Board to recommend for re-investigation and if the said Board recommends for reinvestigation of the case then even after the submission of the challan the re-investigation cannot be debarred. The job of an Investigating Officer, is thus only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the relevant Court to Administer Justice between the parties. I may clarify here that an Investigating Officer is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the relevant Magistrate so that the Magistrate or the trial Court can from their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence or not to summon any person to face a trial. Reliance is placed on Khizar Hayat and others v. Inspector General of Police Lahore and others (PLD 2002 Lahore 470).

2. Nevertheless, the re-investigation of a case after submission of the challan cannot be debarred. Reliance is paled on "Atta Muhammad v. Inspector General of Police" reported in PLD 1965 Lahore 734, wherein it has been held as under:

"There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It maybe due to non-availability of the evidence, or the successful induction of false evidence during the investigation, or the reason may be, the corrupt behaviour of the police officer concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed whether by design or by inadventence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent Tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The facts that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and had himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigation and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. There is no bar to the investigation by the police after the submission of a final report under Section 173 of the Criminal Procedure Code, 1898, nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case."

1. No doubt that holding of successive investigations are deprecated by the superior Courts with the intent to avoid undue lingering on the case but how subsequent challan which almost is complete for submission in the Court of competent jurisdiction can be withheld or brushed aside, even otherwise submission of subsequent challan is not debarred under the provisions of the Criminal Procedure Code, however, it is entirely the discretion of the Court to admit additional evidence if the cognizance of the case submitted to it by the Police has already been taken. Moreover, in case of any grievance, the complainant can avail an alternative remedy of filing a private complaint.

2. In view of what has been discused above, I find no merit in this writ petition, which is accordingly dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 552 [Rawalpindi Bench Rawalpindi]

Present: Asad Munir, J.

ZIA MOHYUDDIN--Petitioner

versus

ADDL. DIRECTOR (EMIGRATION FEDERAL INVESTIGATING AGENCY AIRPORT, KARACHI etc.--Respondents

W.P. No. 3273 of 2009, decided on 4.12.2009.

Exit from Pakistan (Control) Ordinance, 1981--

----S. 2(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Power of Federal Government to prohibit any person from proceeding abroad--Petitioner was selected and awarded a scholarship by HEC for pursuing a master degree programme in South Korean University--Agreement deed was executed between the parties--Surety bond was also executed to effect that all the expenses incurred on his education shall be repaid to HEC if after successful completion of office studies training he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by HEC and sough employment outside Pakistan without prior approval of HEC--Grievance in breach of agreement failed to pay him the last two month stipend US Dollar and forced him to return to Pakistan without letting him undergo the training in a South Korea which was necessary after obtaining the degree as per deed of agreement--After successful completing the degree, petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC but no effort was made by HEC to find a job for him in a public sector--Petitioner challenged his inclusion in watch list for being arbitrary and violative of his fundamental rights of movement and education and also in breach of deed of agreement--Validity--Power to prohibit any person from leaving Pakistan must be exercised by means of an order which would be communicated to affected person as soon as the order was passed u/S. 2(1) of Ordinance--If any order was passed by same was not communicated to the person, it would be a case of arbitrary exercise of power if the order was kept secret only to surprise the person later the moment he was leaving the country--Held: High Court had occasion to go through the SOP issued by FIA which includes a list of person who can be kept on the watch list and stopped from leaving Pakistan--List includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they had acted in breach of their contrast with HEC or were leaving the country in breach of the condition which obliges them to stay in Pakistan for a period of time--Further held: High Court was unable to understand as to what lawful authority or lawful reason HEC had to have the name of petitioner placed in watch list which led to off-leading of the petitioner from the plane when he was on his way to South Korea--HEC as well as FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to korea--Acts of placement of the petitioner in the watch list/E.C.L and disallowing petitioner to proceed to south korea were declared to be unlawful and without lawful authority--Respondents were directed to remove the name of petitioner from watch list and to allow him to proceed abroad without any let or hindrance and without any delay. [Pp. 554, 555, 556 & 557] A, B, C, D, G, H & J

Watch List--

----Words and Phrases--Watch list is a mere euphemism for E.C.L. as in either case FIA exercises its authority to ensure that the person in-question does not leave the country. [P. 556] E

Exit Control List--

----Placement of a person on watch list or E.C.L. curtails the freedom of movement of a citizen--Held: A person cannot be placed in watch list/E.C.L. unless a show-cause notice and opportunity of hearing is provided to him before the adverse action is taken against him. [P. 556] F

Higher Education Commission--

----Agreement deed between petitioner and H.E.C.--Civil remedy of damages--In case petitioner failed to serve in Pakistan as directed by HEC for a period of two years--Money spent on the petitioner by HEC for education would become payable--Even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages--HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan. [P. 557] I

Mrs. Raila Sabohi, Advocate for Petitioner.

Mr. Attiq-ur-Rehman Kiani, Advocate for (Standing Counsel).

Malik Anwar Mukhtar, Advocate for Respondent No. 3 alongwith Mr. Asif Kaleem (Project Manager).

Date of hearing: 4.12.2009.

Order

Brief facts giving rise to this petition are that the petitioner, Zia Mohyuddin vide letter dated 23.6.2006 was selected and awarded a Scholarship by Higher Education Commission, Respondent No. 3, for pursuing a Masters Degree Programme in a South Korean University. After the award of Scholarship to the petitioner, a deed of agreement dated 21.7.2006 was executed between the petitioner and Respondent No. 3.

1. Clauses 5, 8 and 10 of the said agreement, being relevant, are reproduced below:-

2. "During two years of Master Programme the Scholar shall not undertake employment whether paid or otherwise without approval of the HEC. After completion of MS Programme, the six months training at Korean Industries is not the subject of this clause."

3. "after the completion of master programme (in approved filed) and on the job training in one of the leading Korean Industry. The Scholar shall serve public sector Universities/R & D Organization in Pakistan for two years."

4. "If an awardee after completion of masters programme, gets a Ph.D. Scholarship from sources other then HEC, he may do so, getting approval from HEC, subject to the undertaking given by him in writing and HEC prescribed format, that after completion of Doctorate Programme, he/she will return to Pakistan and serve any University/R & D Organization from 2 years.

5. Simultaneously, a surety bond was also executed by the petitioner to the effect that all the expenses incurred on his education in South Korea shall be re-paid to the Higher Education Commission if after successful completion of office studies/training, he did not return to Pakistan and served within Pakistan for a minimum period of two years as may be directed by the Higher Education Commission and sought employment outside Pakistan without prior approval of Higher Education Commission.

6. The petitioner did go to Korea for the two years Masters course but his grievance is that the Respondent No. 3 in breach of the agreement failed to pay him the last two months stipend i.e. 1400 US Dollars and forced him to return to Pakistan without letting him undergo the training in a South Korea Industry, which was necessary after obtaining the degree as per clause 5 of the deed of agreement. After successfully competing the Masters degree, in a Korean University, the petitioner informed HEC about his return to Pakistan and waited for a job placement by HEC, but no effort was made by HEC to find a job for him in a Public Sector University or R & D Organization in the country.

7. Having found no job on his own or through Respondent No. 3, the petitioner felt frustrated till he was offered a scholarship by a South Korean University for Ph.D. in the field of Bio Medical Engineering. The petitioner joined the Ph.D. Programme in South Korea and came back to Pakistan to meet his parents but on 19.8.09 when he took the flight to return to South Korea, he was off loaded by FIA, who arrested him and put him in FIA Jail, Saddar Karachi. As it transpired later, the petitioner was off-loaded because he was put on the watch list by FIA at the behest of HEC. After getting released from FIA Jail, the petitioner requested the Chairman HEC to allow him to proceed abroad for completion of his Ph.D. but there has been no response.

8. Through the present writ petition, the petitioner has challenged his inclusion in the Watch List for being arbitrary and violative of his fundamental rights of movement and education and also in breach of the Deed of Agreement between the parties.

9. Learned Standing Counsel as well as Mr. Asif Kaleem (Project Manager), Malik Anwar Mukhtar (Law Officer) of HEC, have opposed the petition on the ground that the petitioner must not leave in the country as under clause 8 of the Deed of Agreement and the Surety Bond he is bound to serve in Pakistan for two years even if no job is available for him.

10. A reference to the Exist from Pakistan (Control) Ordinance, 1981, would be necessary to see in what circumstances, the authorities have the power to stop a person from leaving the country. Section 2(1) of the Ordinance empowers the Federal Government to prohibit any person from proceeding abroad. As per list published by the Ministry of Interior, the following categories of persons can be placed in Exit Control List:--

a. Persons involved in mass corruption and misuse of power/authority causing loss to the Government funds/property.

b. Government employees involved in economic crime where large Government funds have been embezzled or institutional funds committed.

c. Hardened criminals involved in acts of terrorism/conspiracy, heinous crimes and threatening natural security.

d. Key directors of firms having tax default/liabilities of Rs. 10 Million or more.

e. Only 2-3 Key directors of firms having more than Rs. 100 Million loan default/liabilities.

f. Names of persons if recommended by the Registrar, High Courts/Supreme Court of Pakistan and Banking Courts only.

However, the power to prohibit any person from leaving Pakistan must be exercised by means of an order which should be communicated to the affected person as soon as the order is passed under Section 2(1) of the Ordinance. This means that if any order is passed but the same is not communicated to the person concerned, it would be a case of arbitrary exercise of power if the order is kept secret only to surprise the person later the moment he is leaving the country. It appears that the phrase "Watch List" is a mere euphemism for Exit Control List as in either case the FIA exercises its authority to ensure that the person in question does not leave the country. Since the placement of a person on the Watch List or Exist Control List curtails the freedom of movement of a citizens, it is settled law that a person cannot be placed in the said list unless, a show cause notice, and opportunity of hearing is provided to him before the adverse action is taken against him. In this regard, reference can be made 2008 CLD 1607. So far as the facts of the present case are concerned, the inclusion of the petitioner's name in the watch list was done secretively as the petitioner was never served with any notice that his name was included in the watch list let alone providing him an opportunity of hearing before placing him in the Watch List. On these grounds alone, the acts of Ministry of Interior/FIA culminating in the off loading of the petitioner from the plane is without unlawful authority.

1. I have also had occasion to go through the SOP issued by FIA, which includes a list of persons, who can be kept on the Watch List and stopped from leaving Pakistan. The subject list includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travelers or deportees with fake documents, but no where does the list provide for preventing students from proceeding abroad even when they have acted in breach of their contract with HEC or are leaving the country in breach of the condition, which obliges them to stay in Pakistan for a certain period of time.

2. I am unable to understand as to what lawful authority or lawful reason HEC had to have the name of the petitioner placed in the watch list which led to the off-loading of the petitioner from the plane when he was on his way to South Korea. It may be stated here that along with the Deed of Agreement, the petitioner also submitted a bond to the HEC on the prescribed performa, which was to the effect that in case the petitioner failed to serve in Pakistan as directed by HEC for a period of two years, the money spent on the petitioner by HEC for his education in Korea, would become payable. As such even if, it is presumed that the petitioner acted in breach of agreement with HEC the maximum that the HEC could do so was to enforce the bond to recover the amount spent on him by availing the civil remedy of damages. However, HEC had no right or authority to take or initiate any coercive or criminal proceedings against the petitioner by arresting him and preventing him from leaving Pakistan. It is also to be kept in view that admittedly, the petitioner could not find a job in Pakistan nor one was found for him by HEC. In the circumstances, HEC could not reasonably have any objection to let the petitioner go abroad to improve his qualifications by acquiring a Ph.D. Degree instead of sitting idle in Pakistan.

3. In view of the aforesaid discussion, HEC as well as Ministry of Interior/FIA had no lawful authority to place the petitioner in the watch list and stop him from proceeding to Korea. Therefore, the acts of placement of the petitioner in the Watch List/Exist Control List and disallowing the petitioner to proceed to South Korea are declared to be unlawful and without lawful authority. The respondents are directed to remove the name of the petitioner from the Watch List and to allow him to proceed abroad without any let or hindrance and without any delay.

(R.A.) Petition allowed.

PLJ 2011 Lahore 557

Present: Waqar Hassan Mir, J.

MUHAMMAD NADEEM--Petitioner

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. Nos. 9230 and 9864 of 2010, decided on 17.5.2010.

Punjab Maintenance of Police Order, 1960--

----Ss. 3 & 26--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Detenue was ordered to be arrested and detained for a period of 30 days--Challenge to--Preventive detention nature--Grounds of detention--DCO was not authorized to implement the Federal Law--Validity--Grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the person to make representation against his detention to the authority prescribed by law that the grounds of detention, i.e. they are not irrelevant to the aim and object of the law and that detention should not be for extraneous considerations or for purposes which might be attacked on the ground of malice--High Court can also see whether the satisfaction of detaining authority about the existence of requisite condition is a "satisfaction really and truly" existing in the mind of detaining authority--Order of detention which is really passed for an ulterior purpose and not because the detaining authority is really satisfied that it is necessary to detain the intended prejudicially to certain objects will be void--Held: DCO was not authorized to implement the Federal law in his way according to his whims and caprice and when one is to be suspected person only, then one considering the registration of previous cases or present cases--Detention order cannot be passed--Petitions were allowed. [P. 572] A & B

PLD 1973 Kar. 78, PLD 1978 Kar. 530, 1988 PCr.LJ 1790, NLR 1980 UC 434, PLD 1988 Lah. 611, 1990 PCr.LJ 948, 1990 PCr.LJ 913, 1995 MLD 1748, 1995 PCr.LJ 587, PLD 1997 Pesh. 148 & PLJ 1997 Lah. 1652, ref.

Mr. S.M. Nazim, Advocate for Petitioner.

Mr. Allah Bakhsh Gondal, Advocate for Petitioner (in W.P. No. 9864 of 2010).

Mr. Arshad Qayyum, Asstt. A.G. for Respondent.

Mr. Khizar Hayat Chatta, Law Officer, Office of the District Co-ordination Officer, Nankana Sahib.

Date of hearing: 17.5.2010.

Order

The noted Writ Petition No. 9230/2010 and Writ Petition No. 9864/2010 are being decided together as both involve the common questions of law and facts.

The noted writ petition has been filed against the detention order dated 19.04.2010 passed by the District Coordination Officer, Nankana Sahib/Respondent No. 2 against Saleem, brother of the petitioner, (hereinafter referred to as "the deteneu") whereby in exercise of the powers conferred upon the DCO under Section 3 of Punjab Maintenance of Police Order, 1960 read with Section 26 of the Ordinance, the detenu was ordered to be arrested and detained in District Jail, Sheikhupura for a period of 30 days.

1. The facts of the case (W.P. No. 9230/2010) as stated in the writ petition are that in the year 2005 on the repeated pressing demands of outstanding amount of the detenu from the police officer posted at Police Station Lundianwala District Faisalabad, the detenu was abused and threatened of dire consequences, resultantly five imaginary and false cases of theft and under the Arms Ordinance were registered against the detenu within a period of one month in Police Station Lundianwala District Faisalabad; that reading of the FIRs would lead a prudent man to an irresistible conclusion that the same are the creation of a fertile evil imagination, devoid of truth and reasoning; anyway, the detenu was released on bail in all the cases and the challans in all the cases thereafter never seen light of the day; that the detenu is educated grownup man having three children coming of highly respectable peace loving family and except May, 2005, the unfortunate month, neither there was any case against him in his 37 years of life nor he was ever convicted.

2. Learned counsel for the petitioner submits that the law being contrary to the constitutional provisions casts very heavy duty on the issuing and arresting authority of being satisfied from such material before it to the effect that the person is acting in a manner which is prejudicial to the public safety or the maintenance of public order; that simple registration of false, fictitious, imaginary cases within a month time at one Police Station of District Faisalabad cannot be a good ground for the issuance of detention order; that the intention of the legislature is that the authority issuing the detention order should apply its mind to the facts and material placed before it forming basis for the issuance of the order and there being nothing tangible in the impugned order, it is clear that mechanical order has been passed in all illegal manner demonstrating misuse of power; that the detenu has an inalienable right under the Constitution of freedom of liberty and movement, which cannot be taken away except in due course of law.

3. Learned counsel for the petitioner in W.P. No. 9864 of 2010 submits that the District Coordination Officer, Sargodha unauthorizedly issued the detention orders dated 08.05.2010 for preventive detention of Muhammad Nawaz, first cousin of the petitioner, Muhammad Akram, nephew of the petitioner and Mazhar Iqbal, son of the petitioner, for 30 days with same substance but different numbers on the grounds that they are criminals and protectors of criminals, hence their activities are prejudicial to public safety and maintenance of public order; that the District Coordination Officer has no authority to issue such order under Section 3(1) of the MPO, Ordinance, 1960 without delegation of powers under the Ordinance; that Respondent No. 2 (District Coordination Officer) who has issued detention orders of the detenus on false report of Respondent No. 3 (District Police Officer) has failed to mention the provision of MPO, Ordinance, 1960 which empowers him to issue such orders; that Respondent No. 2 has assumed jurisdiction of Respondent No. 1 (Government of Punjab), unlawfully, arbitrarily and without just cause; that the grounds or reasons on the basis of which order for preventive detention may be issued under the MPO Ordinance, 1960 are altogether different from the grounds/reasons given in the impugned order and the purpose of impugned orders is only to disgrace the detenus and to inflict injury upon them; that the report made by Respondent No. 3 (DPO) is false and exaggerated one and the detenus are neither protector nor harbourer of criminals, in cases registered against them.

4. Learned Assistant Advocate-General submits that the writ is not maintainable as an alternate remedy is provided under sub-clauses (6)(a) of Section 3 of Punjab Maintenance of Public Order Ordinance, 1960 of filing a representation to the Government; that after promulgation of Police Order, 2002, a duty has been cast upon every District Coordination Officer to issue detention orders; that in view of the powers conferred by Section 26 of the Punjab Maintenance of Public Order Ordinance, 1960 the Governor of Punjab has delegated powers to District Coordination Officers and the District Coordination Officer may exercise the power of the Government under sub-section (1) of Section 3 of the Ordinance within the territorial limits of the District. Further submits that the detention orders purportedly are issued on the reports prepared by respective District Police Officers by following the procedure and the report is sought for from the concerned SHO who in turn submits his report to the DPO and the DPO concerned for the issuance of detention order sends his recommendation to the DCO, therefore, the impugned orders are not ultra vires, which also contain the grounds upon which the necessity has arisen for issuance of the same. The learned AAG further submits that the names are placed in Register No. 8 by the concerned SHO, which is called "Red Book" as a secret one maintained under Rule 22.29, Part-IV, of the Police Rules, 1934; that sub-clause (2) of Section 3 of the Ordinance ibid., brought an amendment which deals not only with the present and future but also the past acts of a detenu, that the exercise undertaken for the "satisfaction" is that the DPO writs to the concerned DCO for the issuance of detention order and whatever report may be, mechanical detention order is issued irrespective of the fact whether this exercise comes within the word "satisfaction" or not and whether the DCO can pass any detention order in perfunctory manner.

5. Heard. Record perused.

6. "Preamble" of West Pakistan Maintenance of Public Order Ordinance, 1960 is as under:

"An Ordinance to amend and consolidate the law relating to preventive detention and control of persons and publications connected with the maintenance of public order in West Pakistan.

Whereas it is expedient to amend and consolidate the law providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of West Pakistan."

The relevant portions of Sections 3 & 26 of the Ordinance are also reproduced below, for facility of reference:

"3. Power to arrest and detain suspected persons.--(1) Government, if satisfied that within a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention [for a period not exceeding six months at a time].

Explanation I.--For the purposes of this section:--

(i) dealing in the black-market' orhoarding' as defined in the Hoarding and Black-Market Act, 1948; or

(ii) an act of smuggling punishable under the Sea Customs Act, 1978, or the Land Customs Act, 1924, or under any other law for the time being in force; or

[(iii) an act which is an offence under the Drug Act 1976 (XXI of 1976)].

shall be deemed to be an act prejudicial to the maintenance of public order.

[Explanation II.--Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being inforce in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful shall be deemed to be acting in a manner prejudicial to public safety and the maintenance of public order for the purposes of this section."]

(2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for order."

Subs. (2) as substituted by Punjab Ordinance X of 2008 (PLJ 2008 Pb. St. 455)"

(2) If a District Coordination Officer or a public servant authorized in this behalf by the Government has reasons to believe that a person, within his territorial jurisdiction has acted, is acting or is about to act in a manner which is prejudicial to public safety or maintenance of public order, he shall immediately refer the matter to the Government. ------------------- ------------------------------------

Section 26 as substituted by Punjab Ordinance X of 2008 (PLJ 2008 Pb. St. 455):

26. Delegation of Power to District Coordination Officers. The Government may, by order in writing, direct that a District Coordination Officer may, subject to such restrictions as the Government may specify, exercise the power of the Government under sub-section (1) of Section 3 within the territorial limits of the District."

1. The case laws relevant for the proposition in hand with their significant head-notes are reproduced below:--

Liaquat Ali vs. Government of Sindh through Secretary, Home, Department and another (PLD 1973 Karachi 78).

"An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document , the validity of which claim shall be within the competence of the Court to decide.

In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with, that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no much period is prescribed, then "as son as may be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."

Fakir Imdad Ali vs. District Magistrate and 2 others (PLD 1987 Karachi 530).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)-----

----S. 3.--Detention--Mala fide intention--Mala fide and malice, held, could be established on grounds that there was so much anxiety and persistence on part of authorities concerned to detain detenu that same material was relied upon by them as was repeatedly relied in previous proceedings against him."

Gulzar Ahmad vs. District Magistrate and another (1988 PCr.LJ 1790).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3--Constitution of Pakistan (1973), Art. 199--Detention--Memorandum of grounds delivered to detenu containing grounds for his detention which were vague, relating to involvement of detenu in cases pending in Court, which could not form basis of detention or were palpably wrong.

----S. 3--Detention--When one of the grounds was vague, it would prove fatal to entire detention order--Mere fact that some other grounds was lawful could not validate an invalid detention order."

Muhammad Khalid vs. District Magistrate, Jhelum and another (NLR 1980 UC 434).

"Preventive Detention--

----Detention under Maintenance of Public Order Ordinance (1960)--Grounds general in nature and merely containing allegations about criminal anti-social activities, notorious character and past criminal history of detenu--Executive also choosing to proceed against detenu on punitive side by prosecuting him for his alleged criminal activities--Contended that it is not permissible to detain a person on basis of very allegations which are subjudice before criminal Courts--Contention found to be of considerable force--Impugned detention order declared as unlawful on view that grounds conveyed were vague and did not meet requirement of law."

Mst. Shazia Perveen vs. District Magistrate, Okara (PLD 1988 Lahore 611).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--

----Ss. 3(1)(2)(7) & 26--Delegation of powers by District Magistrate--Provisions of S. 3(1) do not make a reference by a District Magistrate, a statutory condition precedent to the making of an order under S. 3(1)--Interpretation that District Magistrate has to follow requirement of S. 3(2), in respect of the delegation of powers under S. 3(1) would have the effect of rendering provisions of S. 26 redundant.

----S. 26--Criminal Procedure Code (V of 1898), S. 10(3)--Delegation of powers can be to the District, Magistrate and not to a person who has been vested with the powers of a District Magistrate under Criminal Procedure Code."

Umer Din alias Umroo vs. S.H.O., Bhai Pheru and 3 others (1990 PCr.LJ 948).

----"Criminal charges for which the detenu was facing trial or was convicted/acquitted could not form basis for preventive detention and even if one of the grounds was found bad or non-existent, the detention order would be rendered invalid ------"

Jalal alias Jala vs. District Magistrate, Kasur and 2 others (1990 PCr.LJ 1529).

----"Cases relating to past years could not be construed as a sufficient ground for taking a preventive action and cases relating to current year had been challaned before Courts of competent jurisdiction--------"

----Law encroaching on the liberty of citizens must be construed strictly."

Bashiran Bibi vs. The District Magistrate, Kasur (1990 PCr.LJ 913).

"----Detention order was based on the ground that detenu was involved in a number of criminal cases and also no the basis of a secret enquiry--Criminal charges for which the detenu was facing trial or in which he was convicted or acquitted, could not from the basis of preventive detention and even one bad ground or non-existent ground would render the detention order as invalid----"

Ahmad Ali vs. The State (1995 MLD 1748):

"----When a person has been prosecuted on a criminal charge, the same material should not in fairness be taken as reasonable basis for ordering his detention."

Muhammad Ayaz Khan and 6 others vs. The District Magistrate Batagram and another (1995 PCr.LJ 587).

"----No reason or occasion was available for the passing of the detention order in respect of the past transactions regarding which separate cases had already been duly registered against the accused--Detention order was held to be void in circumstances and was quashed."

Masal Khan vs. District Magistrate, Peshawar and 3 others (PLD 1997 Peshawar 148):

"----Constitutional petition against the detention order was maintainable, firstly because the freedom and liberty of the detenu was involved which was his constitutional right and secondly High Court had got the supervisory jurisdiction over judicial, quasi-judicial and executive functionaries of the Provincial and Federal Government and Art. 199 of the Constitution--Remedy provided to the detenu by way of representation to Provincial Government was not an adequate remedy--Impugned detention order had been based on the registration of petty criminal cases and no case showing the indulgence of the detenu in activities prejudicial to public peace and law and order situation or establishing him to be a desperate or dangerous criminal, could be cited against him by the prosecution----"

Muhammad Azim vs. District Magistrate, Rahimyar Khan and another (PLJ 1997 Lahore 1652).

"----Availability of alternative remedy of making representation to Government against detention order does not fetter this Court."

----Involvement of detenu in seven criminal cases of theft ended in acquittal at trial, it cannot be said the detenu is having any blot on his character----".

Nasrullah vs. The District Magistrate R.Y. Khan etc. (1997 UC 508).

"----S. 3. Mere production of order of detaining order in proof of "satisfaction" is not sufficient when allegations have been formulated by District Magistrate in a perfunctory manner. Detention order u/S. 3 in such case would be void ab initio and liable to be stuck down by High Court in exercise of its writ jurisdiction."

Muhammad Ishaq vs. District Magistrate, Sheikhupura (PLD 1978 Lah 223).

"District Magistrate passing order on satisfaction of Superintendent of Police and not on his own satisfaction--Satisfaction envisaged by S. 26 being that of authority passing order of detention and not that of any other authority, order of detention, held, not passed according to law and set aside as being without lawful authority."

Shahbaz Afghan vs. The District Magistrate and 2 others (1990 PCr. LJ 274).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3--Constitution of Pakistan (1973), Art. 199--Detention order was passed by District Magistrate against petitioner on three grounds--No proof whatsoever was produced to prove first ground that petitioner was a desperate, hardened and notorious criminal and narcotic peddler--Neither any report by police nor any complaint was made that petitioner was involved in such like activities--Second ground related to involvement of petitioner in 22 criminal cases, out of which he had been acquitted in one case while remaining cases were still pending in different Courts, although simple pendency of criminal cases could not from any basis for detention order--Third ground being that despite repeated warnings petitioner did not refrain from activities creating discord and feelings of hatred between public ----"

Muhammad Mushtaq vs. District Magistrate, Sheikhpura and another (1997 MLD 1658).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3(1)--Constitution of Pakistan (1973), Art. 199--Constitution petition--Preventive detention--Involvement of the detenu in a number of criminal cases, per se, was not a valid ground for his preventive detention as he could not be vexed twice on the basis of the same criminal charge due to the pendency or disposal of the said criminal cases and his detention was nothing but punishment depriving him of his liberty--Report submitted by the police against the detenu being of general type was not sacrosanct and no material was available with the District Magistrate to justify he passing of the impugned order for his detention which was declared to be without lawful authority and of no legal effect ------"

Inayat Ullah vs. District Magistrate/Deputy Commissioner, Bannu and another (1998 PCr.LJ 3).

"West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--

----Detention order against detenus was issued on the grounds that they had been charged with printing of fake/bogus certificates for Deeni Board and a case under Ss. 406/419/ 420/468/471 to 475, PPC had been registered against them and due to involvement of detenus in criminal case religious circle of district had shown resentment ------"

1. Subjective study of the subject-matter in hand is required to be undertaken by this Court for laying down the parameters for issuance of detention orders avoiding complication in future and for the matter, one has to resort to scheme of West Pakistan Maintenance of Public Order Ordinance, 1960 to seek proper legal guidance. First, this Court is to look into the "preamble" of the Ordinance. As many as four conditions have been incorporated, which are to be read conjointly as the word "and" is used and not "or" and these conditions are (i) Preventive detention and (ii) control of persons and (iii) publications for reasons connected with public safety, public interest and (iv) the maintenance of public order in the Province of West Pakistan. Section 2 (as amended upto date) of the Ordinance, 1960 contains the definitions and clause (c) thereof reads as under:--

"(c) "District Coordination Officer" means the District Coordination Officer of a District appointed under Section 28 of the Punjab Local Government Ordinance, 2001 (XIII of 2001)."

In Section 28 of the Punjab Local Government Ordinance, 2001, District Coordination Officer is defined as under:

"District Coordination Officer.--In every District, the Government shall appoint a District Coordination Officer who shall, be a civil servant of the Federation or of the province, as far as possible in Basic Scale 20:"

Provided that in a City District the District Coordination Officer may be a Civil Servant of the Federation of Province in Basic Scale 21.

(2) The District Coordination Officer shall be coordinating head of the District Administration and shall--

(a) ensure that the business of the District Coordination Group of Offices is carried out in accordance with the laws for the time being in force;

(b) coordinate the activities of the groups of offices for coherent planning, synergistic development effective and efficient functioning of the District Administration;

(c) exercise general supervision over programmes, projects, services, and activities of the District Administration;

(d) coordinate flow of information required by the Zila Council for performance of its functions under this Ordinance;

(e) act as Principal Accounting Officer of the District Government and be responsible to the Public Accounts Committee of the Provincial Assembly;

(f) act and perform functions of collector under Sections 54, 68, 70(2), 71, 72, 92, 93, Rule 18 of Order XXI Order XL and for similar other provisions of the Code of Civil Procedure, 1908 (Act V of 1908);

(g) assist the Zila Nazim in accomplishment of administrative and financial discipline and efficiency in the discharge of the functions assigned to District Administration;

(h) prepare a report on the implementation of development plans of the District Government for presentation to the Zila Council in its annual budged session; and

(i) initiate the performance evaluation reports of the Executive District Officers and shall be countersigning officer of such reports of the District Officers initiated by the Executive District Offices.

Whereas, functions and powers of the Executive District Officer are detailed in Section 29 of the Ordinance, which is as under:

"Functions and Powers of Executive District Officer. The functions and powers of the Executive District Officer shall be to--

(a) ensure that the business of the group of offices under his administrative control is carried out in accordance with law and the rules and the human and material resources placed at his disposal are optimally utilized to improve governance;

(b) co-ordinate and supervise the activities of the offices and ensure efficient service delivery by the functionaries under his administrative control;

(c) supply information to the Monitoring Committees of the Zila Council and Union Councils;

(d) take appropraite corrective actions based on the information received from Monitoring Committees;

(e) enforce relevant Federal, Provincial laws and rules, including tax laws;

(f) prepare devolvement plans and propose budgetary allocations for their execution;

(g) implement approved plans and policies;

(h) authorize disbursement of performance bounces to the employees;

(i) prepare proposals for expenditure necessary for the proper conduct of programs, projects, services, and other activities;

(j) propose relevant bye-laws on service delivery to the District Coordination Officer; and

(k) act as Departmental Accounting Officer for his respective group of offices and be responsible to the District Accounts Committee of the Zila Council.

Clause-(e), underlined above, shows that the Executive District Officer is supposed to enforce relevant Federal, Provincial laws and rules including tax laws.

As far as Section 29 of the Punjab Local Government Ordinance, 2001 was concerned, it being fiduciary law for the appointment of DCOs and Section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960 specifies the delegation of power to District Coordination Officers and I hold that the provisions of Section 29(e) of the Punjab Local Government Ordinance, 2001 are subject to Section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960.

1. As far as Section 3 of the Ordinance, 1960 was concerned, it contains the heading "Power to arrest and detain suspected persons" and also contains two explanations exhaustive in nature containing different categories of persons to be brought under the Ordinance, 1960. The same section was substituted by Punjab Ordinance X of 2008 (PLJ 2008 Pb. St. 455) that instead of District Magistrate, the word "District Coordination Officer" has been brought in with the effect that how is the matter to be referred to the Government following by issuance of the order and detention of the person coupled with the fact that how would the Government reject the reference as well. A lot of new things have been brought in by way of making amendments in Section 3 including, Subs. (2) as substituted by Punjab Ordinance X of 2008, Sub-sections (5), (5-a), (5-b), (5-c), (5-d), (5-e), and (5-f), Sub-sections (5-g), (5-h), and (5-i), Sub-sections (6), Sub-section (10), Sub-section (11), wherein consulted efforts have been made and detailed. Section 4 is about "Powers of photographing, etc. of suspected persons". Section 5 deals with the "power to control suspected persons". Section 6 is about "Power to control publications". Section 7 is "Power to prohibit entry into West Pakistan of Newspapers, etc." Section 8 is "power to secure reports of public meetings". Section 9 is "Service of orders in writing". Section 10 is "power to issue search warrants". Section 11 is "General power to search". Section 12 is "power to give effect to orders etc". Section 13 is "Penalty". Section 14 is "Abetment of offences". Section 15 is "offence committed by corporation or association". Section 16 is "Dissemination of rumours etc". Section 17 is "Possession or conveyance of prescribed or prohibited documents". Section 18 is "Wearing or display of uniforms or emblems". Section 19 is "Tempering with public servant". Section 20 is "Sabotage". Section 20-A is "Representation against certain orders". Section 21 is "Procedure for trial of offences". Section 22 is "offence under Ordinance to be cognizable and non-bailable". Section 23 is "Jurisdiction barred". Section 24 is "Effect or orders". Section 25 is "Operation of other penal laws not barred".

Sections 23, 24 and 25 are not found in accordance with the touchstone of fundamental rights as postulated and guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Section 26 is "Delegation of power to Deputy Commissioners". Section 27 is "Power to make rules" and Commissioners". Section 27 is "Power to make rules" and Section 28 deals with "Repeal and saving".

1. As I have already observed that Sections 23, 24 and 25 although infringe the fundamental rights as guaranteed by the Constitution, but the saving clause vide Section 28 reveals the parallel enactment of public safety and order of different. Provinces and States, which nevertheless shows that the legislature wanted application of other laws in the presence of West Pakistan Maintenance of Public Order Ordinance, 1960. But even then one can revisit and refocus the provision contained in this Ordinance and can find that there are clutches placed upon the powers of the DCOs of not using unbridled powers. Firstly, the DCO is to apply his own mind i.e. by way of word "satisfied" used in Section 3(1) of the Ordinance, 1960 which indicates that the authority issuing detention order should apply its mind to the fact forming basis of the same and until and unless there is something tangible in the detention order, the authority issuing it cannot be said to have applied its mind objectively and that his opinion is based on reasons. The second being that in whole of the scheme, for the offender the word used is "suspected", which is futuristic in nature and one is to be put not only on the caution but on the guard as well to protect a subject against the detention order. The present Ordinance being in contravention to the fundamental rights as guaranteed by the Constitution, therefore, the Ordinance, 1960, itself provides safeguard, which are not being observed by the present authority for issuance of detention orders. One may add to it that a post commission of offence proceedings i.e. commission of crime, registration of FIR and challan etc. cannot be futuristically considered as one of the basis for the issuance of detention orders as I have also tried to draw out a line in national upheaval and public order. The persons involved in hoarding, misinformation, mischievous publication, processions, public meetings, for which they are suspected and not some cases having been got registered against them, are envisaged by this Ordinance to be taken into consideration for timely detention and then release, but if suspicion persists then comes involvement of the board for the purpose of further detention.

2. Besides the above, an order of preventive detention has to satisfy the following requirements:-

(i) The Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention.

(ii) That satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid.

(iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and

(iv) That the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privileges with respect to any document, the validity of which claim shall be within the competence of the Court to decide.

In addition to the above requirements, the Court has to be further satisfied, in cases falling within the preventive detention nature, that the order of detention was made by the authority prescribed in the law relating to preventive detention, that each of requirements of the law, relating to such preventive detention should be strictly adhered to and complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the person, that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be", that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the person to make representation against his detention to the authority prescribed by law; that the grounds of detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice. The Court can also see whether the satisfaction of the detaining authority about the existence of the requisite condition is a "satisfaction really and truly" existing in the mind of detaining authority or "one merely professed by the detaining authority". The order of detention which is really passed for an ulterior purpose and not because the detaining authority is really satisfied that it is necessary to detain the intended person with a view to preventing him from acting prejudicially to certain objects will be void.

1. For what has been discussed above, it now becomes clear that the DCO is not authorized to implement the Federal law in his way according to his whims and caprice and when one is to be suspected person only, then on considering the registration of previous cases or present cases, the detention order cannot be passed. Therefore, these petitions are allowed and the impugned detention orders are hereby set aside and quashed.

(R.A.) Petitions allowed.

PLJ 2011 Lahore 572

Present: Muhammad Anwar Bhaur, J.

Mst. BASHIRAN BIBI--Petitioner

versus

DISTRICT COORDINATION OFFICER, HAFIZABAD and 3 others--Respondents

W.P. No. 11576 of 2010, heard on 4.6.2010.

Constitution of Pakistan, 1973--

----Arts. 4, 9, 10, 25 & 199--Constitutional petition--Fundamental rights--Derogatory to--Detenu was involved in a criminal case--Order of detention on ground of involvement in nefarious criminal cases--Validity--Where the police had already registered a case against the detenue under various provisions of PPC that clearly showed that detenue was accused of substantive offences and therefore, his preventive detention on the allegations could not be justified in law--If alleged detenue was involved in an activity, which was prejudicial to public safety and maintenance or in any criminal case, then the law would take its own course for his arrest and in such manner--Detenue was directed to be released from custody, if not required in other case--Petition was allowed. [P. 574] A, B & C

Ch. M. Lehrasib Khan Gondal, Advocate for Petitioner.

Mr. Arshad Qayyum, A.A.G. for Respondents.

Date of hearing: 4.6.2010.

Judgment

The petitioner, namely, Mst. Bashiran Bibi wife of Gulzar Ahmad, by filing this constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has assailed the order of detention of her husband, namely, Gulzar Ahmad son of Anwar, passed by District Coordination Officer, Pakpattan (Respondent No. 1) on 25.5.2010.

1. The grounds urged by learned counsel for the petitioner in support of this petition are that the impugned order is based upon mala fide on the part of the police; that although the detenu was involved in a criminal case in the year 2006, but there is no conviction against him till date; that the impugned order being derogatory to the fundamental rights enshrined by Articles 4, 9, 10 and 25 of the Constitution of Islamic Republic of Pakistan is liable to be declared illegal and may be quashed.

2. Report and parawise comments submitted by Respondent No. 2 reveals that husband of the petitioner, i.e. Gulzar Ahmad, the detenu, along with eight others were involved in certain criminal cases of cattle lifting and were still active in their nefarious activities and despite their involvement in criminal cases, they had not desisted from their ill activities.

3. After hearing the learned counsel for the petitioner as also the learned Law Officer and going through the record available on the file, I am of the view that order of detention of the detenu merely on the ground that he is involved in nefarious criminal cases of cattle lifting and is also active in other nefarious activities also likely to act in such manner which may be a threat to the public peace and that to prevent him from acting in a manner prejudicial to public safety and peace, it is necessary to prohibit him from acting in such a way, is illegal, inasmuch as no such activities is explained in the impugned order except registration of some criminal cases, which has been pointed out in the report submitted by Respondent No. 1. It is settled principle that where the police had already registered a case against the detenu under various provisions of Penal Code that clearly showed that the detenu was accused of substantive offences and therefore his preventive detention on the same allegations could not be justified in law. Reliance in this-behalf can profitably be made to the case of Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home (1994 SCMR 1532).

4. In these circumstances, I am of the view that the order of detention is result of mala fide on the part of the police because earlier to this order, the detenu had served out detention of thirty days vide order dated 17.4.2010 and after ten days of his release, the impugned order was passed on the same grounds and has been passed without fulfilling the requirements of law and criteria laid down by the superior Courts to keep a citizen of the country under detention for a certain or indefinite period. If the alleged detenu is involved in an activity, which is prejudicial to the public safety and maintenance or in any criminal case, then the law will take its own course for his arrest and not in this manner.

5. Resultantly, this petition is allowed and the order, dated 25.5.2010, passed by Respondent No. 1 is declared to be unlawful and is accordingly quashed. The detenu is directed to be released from custody forthwith, if not required in any other case. No order as to costs.

(R.A.) Petition allowed.

PLJ 2011 Lahore 574 [Multan Bench Multan]

Present: Hassan Raza Pasha, J.

ABDULLAH--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, ALIPUR, DISTRICT MUZAFFARGARH and 4 others--Respondents

W.P. No. 2816 of 2010, decided on 24.11.2010.

Illegal Dispossession Act, 2005 (XI of 2005)--

----Preamble--Illegal Dispossession Act, 2005 is a special enactment which has been promulgated to discourage the land grabbers and to protect the rights of owners and lawful occupants of the property, as against the illegal and unauthorized occupants. [P. 577] A

Constitution of Pakistan, 1973--

-----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Illegal Dispossession Act, 2005--S. 3--Quashing of proceedings--Joint property were purchased by the parties from the same owner and every co-sharers was in possession of his share--Distinction between strangers and co-sharers--If a person has no nexus with the property either as occupant or the owner and still occupies any property or its portion he would be considered as stranger and illegal occupant--If a co-sharer of the joint khata occupies some portion of un-partitioned land, whether that act can be considered as illegal occupation--Proceeding u/S. 3 of Illegal Dispossession Act was quashed. [P. 577] B

Excess of Share--

----Occupation of some portion of precious land from the joint property or possession in excess of his share--It can always be the desire of every co-sharer to occupy the most precious land--Proper forum to redress the grievance of all co-sharers would be partition of the property through revenue department. [P. 577] C

Mr. Ghulam Murtaza Malik, Advocate for Petitioner.

Mr. Qaisar Ahmad Bhatti, Advocate for Respondent No. 3.

Date of hearing: 24.11.2010.

Order

The petitioner has preferred instant writ petition for quashing of proceedings u/S. 561-A of Cr.P.C. conducted by the learned ASJ, Alipur upon application filed by Respondent No. 3 wherein he stated that he is owner of the land measuring 12 Kanals in Khata No. 47 situated in Dakhli Mauza Beti Sillanwali. He had cultivated wheat crop in the said land and paid Rs. 40,000/- to Nazar Hussain Patwari to incorporate his name as cultivator but now he is demanding further amount of Rs. 30,000/-. On 24.04.2009 Respondents No. 2 to 8 of that application while armed with fire-arms came there and took possession of 08 Kanals owned by the petitioner. They also harvest the wheat crop and put the same to cattle while the remaining wheat crop was thrown away and the land has been ploughed and irrigated. Said application was presented before the learned ASJ on 28.04.2009, who summoned the report of SHO police station concerned for following day. On the said date report was not submitted by the SHO and the matter was adjourned to 30.04.2009. The learned Court also deleted his designation as Justice of Peace mentioning the fact that it was inadvertently written by the Reader and thereafter recorded statement of Respondent No. 3 while converting that application into private complaint u/S. 3 of Illegal Dispossession Act. Thereafter, on 12.10.2009, he framed the formal charge against the accused.

1. Learned counsel for the petitioner contends that during the proceedings the SHO concerned submitted comments before the learned Court that it is a joint property having been purchased by both the parties from the same owner and every co-sharer is in possession of his respective share in the disputed land. It is next contended that the learned Court committed illegality by converting the application into private complaint, which falls under the special law for which specific procedure is provided. Both the parties are co-sharers and it is settled principle of law that each co-sharer is supposed to be owner in possession of each and every inch of the land. He referred the order dated 17.11.2009 passed by the learned trial Court wherein he directed the Tehsildar Alipur to conduct the partition proceedings of the said Khata as per shares of the parties and submit his report in the Court. An application for partition of joint land was filed as per direction of the learned trial Court on 12.11.2009 and Respondent No. 3 also joined the proceedings before Tehsildar who finally partitioned the land as per share of the parties, which is also being challenged by Respondent No. 3 before DO(R) Muzaffargarh. Further contends that no offence u/S. 3 of Illegal Dispossession Act is made out against the petitioner. Reliance has been placed upon 2007 PCr. LJ 1347, 2008 YLR 462, 2007 PCr. LJ 297 and 2007 SCMR 1884.

2. On the other hand learned counsel for the Respondent No. 3 has vehemently opposed the contentions raised by learned counsel for the petitioner with the submissions that the application was filed by Respondent No. 3 before learned trial Court in person and being illiterate person he could not mention the relevant provisions of law. The learned trial Court rightly converted the application of Respondent No. 3 into private complaint. From bare reading of contents of the application as well as cursory evidence of complainant/Respondent No. 3 offence u/S. 3 of Illegal Dispossession Act is made out. Although property has been partitioned by the revenue officer but that too after the filing of application so the petitioner cannot take benefit of it. Reliance is placed on PLD 2009 Karachi 17 and PLD 2009 Lahore 220.

3. Arguments heard. Record perused.

4. Admittedly, both the parties purchased the land of joint Khata from the same owner. It is also admitted by both the parties that they purchased un-partitioned land. Even no one raised plea of family partition. However, it was subsequently partitioned by the order of learned trial Court and at present the partition proceedings are presently impugned before the appellate Court of revenue department. This fact has also been verified by the learned counsel for Respondent No. 3. It is true that Illegal Dispossession Act, 2005 is a special enactment, which has been promulgated to discourage the land grabbers and to protect the rights of owners and lawful occupants of the property, as against the illegal and un-authorized occupants but there is a distinction between the strangers and co-sharers. If a person has no nexus with the property either as occupant or the owner and still occupies any property or its portion he would be considered as stranger and illegal occupant. Now coming to the other angle that if a co-sharer of the joint Khata occupies some portion of un-partitioned land, whether this act can be considered as illegal occupation, the answer would be in negative. The only question, which remains in field would be the occupation of some portion of precious land from the joint property or possession in excess of his share. It can always be the desire of every co-sharer to occupy the most precious land, however, the proper forum to redress the grievance of all the co-sharers would be the partition of said property through revenue department so the learned trial Court rightly directed the parties to get partitioned the disputed land. The report of SHO clearly mentioned the land in dispute as joint and un-partitioned.

5. Keeping in view the above discussion, I, hereby, order to quash the proceedings u/S. 3 of Illegal Dispossession Act 2005. However, the learned ASJ is directed to look into the other allegations levelled in the application submitted by the Respondent No. 3 and if any cognizable offence is made out, act strictly in accordance with law.

6. Disposed of accordingly.

(R.A.) Order accordingly.

PLJ 2011 Lahore 578 [Multan Bench Multan]

Present: Asif Saeed Khan Khosa, J.

M. MUSTAFA SALEEMI--Petitioner

versus

PAKISTAN STATE OIL COMPANY LIMITED through its Managing Director and 4 others--Respondents

W.P. No. 1269 of 2001, decided on 22.2.2001.

Constitution of Pakistan, 1973--

----Art. 199--Scope of--Writ of certiorai--Constitutional jurisdiction of High Court--Dealer of P.S.O Company--Cancellation of licence regarding Filing Station--Relationship of principal and agent--Remedies available to invoke arbitration clause--Validity--No occasion for High Court to interfere in matter of writing of such a letter by General Manager (PSO) to ministry of industries--Petitioner had failed to point out as to how the writing of such a letter can be declared by High Court to be without authority and of no legal effect for purpose of issuing a writ of certiorari u/Art. 199 of Constitution--Matter regarding constitutional obligations between petitioner and P.S.O. company cannot be enforced through constitutional jurisdiction of High Court especially when it involves disputed question of fact regarding petitioner's performance--Petition was dismissed. [P. 579] A & B

Mian Mushtaq Ahmad, Advocate for Petitioner.

Ch. Muhammad Shafiq and Mr. Ajmal Hussain Qureshi, Legal Advisors to the Pakistan State Oil Company Ltd.

Date of hearing : 22.2.2001.

Judgment

The petitioner is a dealer of the Pakistan State Oil Company Limited and has established a Filling Station at Chak No. 172/W.B, Multan-Delhi Road near Thingi, Tehsil & District Vehari. Through the present constitutional petition the petitioner has called in question a letter dated 22.1.2001 written by Respondent No. 2 to Respondent No. 4 requesting the latter to cancel Respondent No. 1's licence regarding the petitioner's Filling Station. It is not disputed that the Pakistan State Oil Company Limited had obtained a licence to establish a Filling Station at the petitioner's there-mentioned sits from the Federal Government, and now the Pakistan State Oil Company Limited wishes to surrender the said licence and seeks its cancellation by Respondent No. 4/the Federal Government. In these circumstances if the licensee wishes to surrender its licensee then it is not understandable as to how the present petitioner can stand in the licensee's way vis-a-vis such a surrender of its license. The relationship between the petitioner and the Pakistan State Oil Company Limited is that of Principal and Agent and their relationship is governed by a contract which also contains an arbitration clause. Thus, if the petitioner is likely to suffer a financial set-back on the basis of the proposed surrendering of licence by the Pakistan State Oil Company Limited then the petitioner has remedies available to his either to invoke the above-mentioned arbitration clause or to sue the Pakistan Oil Company Limited for damages, if so advised.

1. Apart from what has been observed above the impugned letter dated 22.1.2001 written by Respondent No. 2 to Respondent No. 4 is just a letter of request on which no formal action has been takes by Respondent No. 4 so for. In these circumstances at this stage there is no occasion for this Court to interfere in the matter of waiving of such a letter by Respondent No. 2 to Respondent No. 4. The learned counsel for the petitioner has failed to point out as to how the writing of such a letter by Respondent No. 2 to Respondent No. 4 can be declared by this Court to be without lawful authority and of no legal effect for the purposes of issuing a writ of certiorari under Article 199 of the Constitution. Even otherwise, any matter regarding contractual obligations between the petitioner and the Pakistan State Oil Company Limited cannot be enforced through the Constitutional jurisdiction of this Court especially when it involves disputed questions of fact regarding the petitioner's performance.

2. For what has been observed above no occasion has been found by this Court for interference with the impugned letter written by Respondent No. 2 to Respondent No. 4 and this petitioner, therefore, dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 579 [Rawalpindi Bench Rawalpindi]

Present: Rauf Ahmad Sheikh, J.

MUMTAZ KHAN--Petitioner

versus

ADDL. INSPECTOR GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB, LAHORE etc.--Respondents

W.P. No. 48 of 2011, heared on 9.2.2011.

Constitution of Pakistan, 1973--

----Art. 199--Police Order, 2002, Art. 18(6)--Criminal Procedure Code, (V of 1898), S. 512--Constitutional petition--Proclaimed offender--Application for re-investigation was filed by father of accused--Applicant was neither an accused nor complainant in the case--Investigation could not transfer--Validity--Application for transfer of investigation on any ground whatsoever could have not been entertained as it was specifically mentioned in the report of Board that he was father of proclaimed offender--Held: Such orders show that someone was interested in providing a shield to a proclaimed offender--Applicant was neither a necessary nor proper party and there was non-joinder of the parties--Impugned order was not sustainable in the eyes of law and was hereby set aside by allowing the petition--If accused surrenders or appears and himself moves the application, the same be dealt with purely on merits and strictly in accordance with law--Petition was allowed. [Pp. 583 & 584] B & C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 512--Police Order, 2002, Art. 18(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Proclaimed offender--Transfer of investigation--Without surrender before competent authority--Proclaimed offender against whom the challan had been submitted u/S. 512, Cr.P.C. so without his appearance or surrender before the competent authority, request for transfer of investigation from him or anyone acting on his behalf could have not been entertained. [P. 583] A

Mr. Muhammad Bashir Paracha, Advocate for Petitioner.

Mr. Abdul Wahid Babar, Sh. Ahsan-ud-Din, Advocate and Sardar Zaheer Ahmed Khan, Advocate for Respondents.

Date of hearing: 9.2.2011.

Judgment

The petitioner, who is complainant in case FIR No. 28 dated 20.1.2010 under Sections 302/324/148/149 PPC, P.S. Fateh Jang, District Attock has assailed the vires of order dated 01.01.2011 passed by the Additional Inspector General of Police (Investigation), Punjab, Lahore (Respondent No. 1), whereby the investigation of the said case was transferred and entrusted to RIB, Rawalpindi Region, Rawalpindi.

1. One Mehmood Khan father of Mubashar Mehmood Khan alias Gory khan accused had submitted an application for transfer of the investigation with the contention that the said accused person was at Lahore on the day of occurrence to look after his ailing sister-in-law and remained there till 25.01.2010. He contended that he was not seen by the persons present at the spot and was falsely implicated. It was further contended that Shahzad son of Sher Zaman had made firing due to which Khalid Javed, etc., were injured. After obtaining the report from the Board, the Additional Inspector General of Police (Investigation Branch), Punjab, passed the impugned order.

2. The learned counsel for the petitioner has contended that the first challan was submitted in the Court on 21.1.2010 and the second challan was submitted in June, 2010, so an order for fresh investigation could have not been passed. It is also urged that the reasons for transfer of investigation have not been given in the impugned order so the same is violative to the provisions of Article 18(6) of the Police Order, 2002. It is finally urged that Mubashar Mehmood Khan alias Gory Khan is a proclaimed offender, who has mis-used the process of law and moved about 10/12 applications for grant of pre-arrest bail/protective bail and after availing of the relief, had been disappearing and as such without surrendering before the Court or the Police authorities, no request for transfer of the investigation could have been entertained on his behalf or anybody acting for him. It is further contended that his father was neither an accused nor complainant in the case so the investigation could have not been transferred on his application. In support of the contentions raised, reliance is placed on Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539), Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31), Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others (PLD 2010 Lahore 224) and an unreported judgment dated 11.5.2010 of his Court passed in ICA No. 76 of 2010.

3. Controverting these arguments, the learned counsel for Mubashar Mehmood Khan alias Gory Khan accused has contended that the investigation of the case is aimed to collect necessary evidence to find the truth and there is no bar on re-investigation even after submission of challan, if cogent reasons are available in this regard. It is contended that the version of the accused was not correctly brought on the record and the case was not impartially investigated so there was no option left for him but to seek re-investigation and as such Mehmood Khan, his real father moved the application. It is urged that no doubt he had been moving the applications for grant of pre-arrest/protective bails before different Courts but this cannot be considered as a ground to set aside the impugned order because he had the right to approach the Courts of competent jurisdiction. If is further contended that he was wrongly declared as proclaimed offender although he was always available for investigation as he had been extended concession of pre-arrest bail/protective bail from different Courts. It is vehemently contended that the Board while considering the application of his father had given cogent reasons in its report and the same were approved by the competent authority i.e. Additional Inspector General of Police (Investigation), Punjab, while ordering the transfer of investigation so the order cannot be interfered in writ jurisdiction. In support of the contentions raised, reliance is placed on Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373), Javaid Iqbal v. Additional Inspector-General of Police, Lahore and 4 others (PLD 2008 Lahore 488), Saddar Din v. Deputy Inspector General of Police (Investigation), Capital City Police, Lahore and 6 others) PLD 2009 Lahore 585) and Muhammad Iqbal v. The State (2010 PCr.LJ 888).

4. Sardar Zaheer Ahmed Khan, Advocate has filed power of attorney on behalf of Mehmood Khan father of Mubashar Mehmood Khan accused today and prayed that he be allowed to address the arguments as the application for transfer of investigation was moved by his client. In the larger interest of justice, he was allowed to assist the Court. Relying on Allah Bakhsh and another v. Settlement Commissioner and another (1986 MLD 467) and Water and Power Development Authority/Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupura v. Messers Bhatti Ice and Rice Mills, Buchiki through Proprietor and another (2004 YLR 1263) he has maintained that as Mehmood Khan was not impleaded in the writ petition so the same is liable of dismissal on this score alone.

5. There is no legal bar on re-investigation of a criminal case after submission of the final report under Section 173 Cr.P.C. if new event/incident takes place warranting re-investigation or further investigation. In this respect, reliance is placed on Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373). It is true that the August Supreme Court of Pakistan in Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) had held that the order for change of investigation after submission of the challan was an exercise unsustainable in law but the judgment reported as 2006 SCMR 373 was pronounced by a larger Bench of the Apex Court so the same would be followed under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. However, the yard stick given in the judgment of the Apex Court has to be followed in letter and spirit. In this case the final report under Section 173 Cr.P.C. has yet not been submitted and only interim challans were submitted and further investigation would be required on arrest of the remaining accused or any other lawful reason so legally speaking there was no bar on transfer of the investigation. The impugned order was passed on the basis of the report submitted by the Board comprising of S.P. (Investigation), Chakwal, S.S.P. (Regional Investigation), Rawalpindi, Members and Dr. Muhammad Akhtar Abbas, District Police Officer, Attock, Chairman. The detailed reasons have been mentioned therein. The Additional Inspector General of Police (Investigation). Punjab, had held that the reasons given by the Board were cogent and warranted change of the investigation. The Proviso to Article 18(6) of the Police Order, 2002, does contain a condition that the head of Investigation in the general police area would give reasons for change of the investigation but it does not mean that if the reasons given by the Board are found to be reasonable and cogent then the same should be reproduced in the order.

6. However, there is an important aspect of the matter. The report of the Board shows that Mubashar Mehmood Khan is a proclaimed offender in the case. As per record proclamation under Section 87 Cr.P.C. was issued against him and served. The learned counsel for the petitioner has contended that the accused has been seeking protective bail from different Sessions Courts of Haripur, Mardan, Charsada, Peshawar, Abbotabad and also has been granted interim pre-arrest bail by different Courts including High Court from time to time but had been absenting himself at the time of hearing and his applications were dismissed so he has been mis-using the concession of bail for the last more than one year. The learned counsel for Mubashar Mehmood Khan could not deny the correctness of this assertion but urged that it was his right to move the applications and seek relief from the Courts of law. He has not produced the copies of the bail petitions and orders moved from time to time before different Courts to show that he had been disclosing the fate of earlier applications. The fact remains that he is the proclaimed offender against whom the challan has been submitted under Section 512 Cr.P.C. so without his appearance or surrender before the competent authority, the request for transfer of investigation from him or anyonce acting on his behalf could have not been entertained. It is true that while disposing of W.P. No. 802/10 filed by Khalid Javed his co-accused, this Court had directed that he may move an application before concerned authorities for transfer of the investigation but it is stated that he moved an application but did not succeed in obtaining the transfer orders. Mehmood Khan was neither the complainant nor the accused in the case. His application for transfer of the investigation on any ground whatsoever could have not been entertained as it was specifically mentioned in the report of the Board that he is father of the proclaimed offender. Respondent No. 1 ignored this all important aspect of the matter. In fact, he could have not entertained the application of a third person, who was representing none else than a proclaimed offender of the case. Such orders show that someone is interested in providing a shield to a proclaimed offender. Mehmood Khan is neither a necessary nor proper party and there is no non-joinder of the parties. The case law relied upon by his learned counsel is not applicable on the facts of this case.

7. For the reasons supra, the impugned order is not sustainable in the eyes of law and is hereby set aside by allowing the instant writ petition. However, if Mubashar Mehmood khan alias Gory Khan accused surrenders or appears and himself moves the application, the same be dealt with purely on merits and strictly in accordance with law as admittedly the final report under Section 173 Cr.P.C. has yet not been submitted.

(R.A.) Petition allowed.

PLJ 2011 Lahore 584 [Bahawalpur Bench Bahawalpur]

Present: Ch. Shahid Saeed, J.

TEHSIL MUNICIPAL ADMINISTRATION YAZMAN through Tehsil Municipal Officer, Bahawalpur--Petitioner

versus

SPECIAL JUDGE, ANTI-CORRUPTION BAHAWALPUR and another--Respondents

W.P. No. 400 of 2007, decided on 3.6.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Direction to anti-corruption establishment to submit supplementary challan--Order was recalled--Allegation of--Embezzlement against contractor and respondent--Maintainability of petition--Question of--Held: Petition was not maintainable in its present form because trial Court made observation for submitting supplementary challan against respondents while acquitting--Petition was dismissed. [P. 585] A

Ch. Riaz Ahmed, Advocate for Petitioner.

Mr. Shamsher Iqbal Chugtai, Advocate for Respondent.

Date of hearing: 3.6.2010.

Order

The instant writ petition is directed against the order dated 15.06.2006 passed by Respondent No. 1 by way of which application filed by Muhammad Ashraf Respondent No. 2 for re-calling the order regarding the submission of supplementary challan was re-called.

1. Brief facts of the case are that Abdul Qayyum etc. filed an application before Assistant Deputy Director Anti-Corruption Bahawalpur levelling allegations of embezzlement against Sardar Ali contractor and Muhammad Ashraf Respondent No. 2. The matter was probed into by the Anti-Corruption Department and FIR No. 43/1999 was registered against the Sardar Ali and Respondent No. 2. During the investigation Respondent No. 2 was found innocent. But during the trial of the said case learned trial Court held that Respondent No. 2 has committed the offence, therefore, the said Court directed the Anti-Corruption Establishment to submit supplementary challan against Respondent No. 2. Thereafter upon the application of Respondent No. 2 the said order was re-called by the Respondent No. 1. Hence this writ petition.

2. Learned counsel for the petitioner argued that the order passed by the Respondent No. 1 is against law and facts and also based upon surmises and conjectures.

3. Arguments heard. Record perused.

4. Without discussing the merits of the case I observed that the instant writ petition is not maintainable in its present form because the learned trial Court made the observation for submitting of the supplementary challan against Respondent No. 2 while acquitting the accused Qazi Shams-ud-Din and Muhammad Arshad. Thereafter the Respondent No. 1 re-called the said order. Writ petition is not lie against the said order. The petitioner should have filed the appeal against the said order. Therefore instant writ petition is dismissed being not maintainable.

(S.L.) Petition dismissed.

PLJ 2011 Lahore 585 [Multan Bench Multan]

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD HUSSAIN and 2 others--Petitioners

versus

GHULAM QADIR and 9 others--Respondents

C.R. No. 218 of 1994, heard on 29.11.2010.

Shia Law of Inheritance--

----Deceased was shia by faith--Entitlement of inheritance of widow in movable property--Validity--As such under shia law of inheritance widow being issueless was not entitled to inherit any share in the immovable property of deceased. [P. 589] A

Inheritance--

----Suni Muslim by faith--Repeal of Customary Law--It was an admitted fact on record that widow inherited the property as limited owner under customary law and even if it is assumed that deceased was Suni Muslim by faith after repeal of Customary Law, widow will only be the owner of her share under Islamic law. [P. 589] B

Customary Law--

----Hanfi faith--Inherited property be reverted back to last male owner--Mutation under customary law and in case of second marriage of widow--Validity--Widow contracted second marriage and as such on that score, legal heirs of widow was not entitled to her entire estate--Land inherited in her name had to be reverted back to the last male owner less her share according to Hanfi faith. [P. 590] C

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

----S. 115--Civil revision--Repeal of customary law--Property of deceased was reverted back to last male owner--Issueless widow was not entitled to his state--Question of entitlement of inherit the estate of deceased--Suit for declaration and perpetual injunction was dismissed--Appeal was allowed by Lower Appellate Court--Challenge to--Validity--Deceased was Shia Muslim by faith, he died issueless and as such widow was not entitled of any estate according to shia law and as such any transfer or alienation on part of widow was against the rights of respondents--Revision was dismissed. [P. 590] D

Mian Habib-ur-Rehman Ansari, Advocate for Petitioners.

Mirza Aziz Akbar Baig, Advocate for Respondents.

Date of hearing: 29.11.2010.

Judgment

The respondents filed a suit for declaration and perpetual injunction with consequential relief claiming that Nemat Ali and Ahmad Ali are real brothers and were the owners of land measuring 100-K 1-M detailed in the plaint; Ahmed Ali married with Mst. Hajran Bibi, who happened to be the sister of defendants/petitioners; Ahmad Ali after 6 months of his marriage died issueless and his land/property was devolved upon his widow Mst.Hajran Bibi as limited owner and Mutation No. 108 was attested on 3.6.1945 in her favour; the respondent claims that he and his brother are Shia by faith and according to Fiqa Jafria, widow was not entitled to inherit the estate of deceased Ahmad Ali; Mst. Hajran Bibi contracted second marriage with Abdul Hameed and after the repeal of customary law, the property of Ahmad Ali deceased was reverted back to Ahmad Ali, the last male owner and, as such, Mutation No. 9 attested on 3.7.1964 is against law and is void; Mst. Hajran Bibi died in the 1979 and her property devolved upon defendants No. 2 to 4 and Mutation No. 309 to this effect was attested on 24.6.1985. The legality of these two mutations has been assailed through the suit.

1. The defendants appeared and controverted the assertions of plaint. The learned trial Court out of the divergent pleadings of the parties, framed the following issues:--

"ISSUES:

(1) Whether the suit is time-barred? OPD

(2) Whether the suit is not correctly valued for the purpose of Court fee and jurisdiction? OPD

(3) Whether the suit is not maintainable in its present form? OPD

(4) Whether the plaintiff has no locus standi and cause of action?

(5) Whether the plaintiff is estopped to file the suit by his own act and conduct? OPD

(6) Whether the plaintiff filed this suit only to harass the defendants and after dismissal of this suit whether the defendants are entitled to special cost under Section 35-A CPC? OPD

(7) Whether Mutation No. 9 dated 23.07.1964 and Mutation No. 309 dated 24.6.1985, are void, based on mis-representation, collusive and ineffective against the rights of the plaintiff and are liable to be set aside? OPP

(8) Whether the Defendant No. 1, Sardar Muhammad is a man of sound mind? OPP

(9) Relief"

1. Both the parties adduced their respective evidence both oral as well as documentary and the learned trial Court vide judgment and decree dated 31.7.1991 dismissed the suit. The respondents assailed the said judgment and decree through an appeal which was allowed vide judgment and decree dated 15.11.1993. Hence the present revision petition.

2. Learned counsel for the petitioners submits that all Muslims residing in undivided Indo-Pak sub-continent are presumed to be Sunni Hanfi Muslims under Mahomedan Law. He relies upon Mahomedan Law by D.F.Mulla's revised by Zafar Hussain Chaudhry and specifically Section 28 of Mohammadan Law. Further submits that Mutation No. 9 (Ex.P.5) was attested on 3.7.1964 in the presence of Nemat Ali, hence the suit was barred by time; learned counsel specifically attacks on finding of appellate Court to the affect that suit of the plaintiffs was hopelessly barred by time and the learned appellate Court was not justified to reverse the finding of learned trial Court on this issue.

3. Learned counsel for respondents supports the impugned judgment and submits that it has been proved on record that deceased Ahmad Ali was Shia Muslim and after his death his issueless widow is not entitled to his estate. The respondents are admittedly the legal heirs of deceased Ahmad Ali and as such they are entitled to inherit the estate of deceased.

4. Heard and record perused.

5. The main dispute between the parties is, the respondents are claiming that Ahmad Ali was Shia Muslim, he died issueless and as such his wife was not entitled to inherit his estate.

6. It is an admitted fact on record that Mutation No. 9 was attested in favour of Mst. Hajran Bibi as limited owner being issueless. Under the Shia Law, the inheritance of childless widow as per Shia Scholars is regulated as under:--

"the issueless Shia widow does not take any share from immovable property of her husband but she is entitled to her proper share in the value of household effects, trees, buildings and movable property including debts due to the deceased. The exact meaning of expression `childless widow' is in doubt. Does it mean a woman who has had no children, or does it merely imply that the widow has no children living at the time of death of her husband? This question has not yet been finally settled".

1. Syed Ameer Ali, in his book "Muhammadan Law", Volume-II discussed this preposition as under:--

"The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child "born of her womb", or child's child. But when she has no child, or when a child was born to her, but died before death of her husband, then she is entitled to fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property."

1. N.J. COULSON in his book on "Succession in the Muslim Family" opines as under:--

"`Childless' here means, according to the texts, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the prepositus who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a larger degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her deceased."

1. The above said definition of issueless widow shows that Justice Ameer Ali's definition is acceptable to the Shia Muslim as he is the eminent/Shia Muslim Scholar.

2. There is no dispute between the parties in the present case that Mst. Hajran Bibi was the wife of Ahmad Ali and Ahmad Ali died issueless. After death of Ahmad Ali, immovable property of deceased Ahmad Ali was mutated in favour of Mst.Hajran Bibi as limited owner. PW-1 appeared in witness-box and confirmed that Ahmad Ali was Shia Muslim by faith; Ahmad Ali was his disciple; Ahmad Ali got married with Mst. Hajran Bibi in 1943; Ahmad Ali died in 1944; Nemat Ali and Ahmad Ali, both brothers are professing Fiqqa Jafaria. He performed his funeral prayer; both the brothers were participating in Moharram procession; Nemat Ali completed the burrial ceremony of the deceased Ahmad Ali. This witness is the only witness who is known to both the parties i.e Ahmad Ali and Nemat Ali. It is not disputed by the petitioners that Nemat Ali was not the disciple of PW-1. The other witnesses may be called the interested witnesses but PW-1 has no interest in the affairs of the family of the parties. Both the parties accepted him as their spiritual leader and both the parties are his disciples. Statement of PW-1 is more reliable as he completed the funeral ceremony of deceased Ahmad Ali and performed his funeral prayer and as such it is proved on record that Ahmad Ali was Shia by faith.

3. Ahmad Ali was Shia by faith as discussed above and as such under the Shia Law of inheritance, Mst. Hajran Bibi, her wife being issueless was not entitled to inherit any share in the immovable property of deceased Ahmad Ali. Learned counsel for the petitioner argued that Nemat Ali was present at the time of attestation of mutation in favour of Mst. Hajran Bibi and as such he is estopped from raising the question of inheritance of Ahmad Ali. It is an admitted fact on record that Mst. Hajran Bibi inherited the property as limited owner under the Customary Law and even if it is assumed that Ahmad Ali was Suni Muslim by faith after repeal of Customary Law, Mst. Hajran Bibi will only be the owner of her share under the Islamic Law. The dispute between the parties is that Mutation No. 9, is not the mutation under Customary Law and in case of the second marriage of Mst. Hajran Bibi has to return the property to the last mail owner. It is proved on record that Mst. Hajran Bibi contracted second marriage and as such on this score, the legal heirs of Mst. Hajran Bibi are not entitled to her entire estate. As the land inherited in her name has to be reverted back to the last male owner less her share according to Hanfi faith. But in this case, it has been proved that Ahmad Ali was Shia by faith and as such Mst. Hajran Bibi was not entitled to any share in the estate of deceased Ahmad Ali. It is also admitted on record that Nemat Ali, the respondent is real brother of Ahmad Ali, as such he is entitled to the estate of deceased Ahmad Ali. The learned appellate Court has rightly held that Mst. Hajran Bibi being Shia Muslim was not entitled to the estate of Ahmad Ali.

4. As far as arguments of learned counsel for the petitioner that the suit was barred by time has no force, it is an admitted fact that legal heirs of deceased become the owner of share in the estate of deceased, the moment succession opens and there is no need of any declaration from any Court of law, as the respondents become the shareholder in the estate of deceased Ahmad Ali, so no question of any limitation arose.

5. Learned counsel for the petitioner has argued with vehemence that the suit was not maintainable, however, this argument again has no force as it is established on record that Ahmad Ali was Shia by faith, and was issueless and as such, the respondents become the legal heirs/legal representatives of Ahmad Ali. It is also proved on record that land subject-matter of suit remained in possession of respondents since the death of Ahmad Ali. The arguments of learned counsel for the petitioner that the respondents have earlier filed a suit challenging the mutation in favour of Mst. Hajran Bibi and the same was withdrawn, again has no force as the respondents have withdrew the suit with the permission to file afresh.

16. The arguments of learned counsel for the petitioner that Nemat Ali was present when the mutation in favour of Mst. Hajran Bibi was attested, has not been proved on record. The witnesses of the said mutation have not been examined even the Revenue Officer who attested the mutation has not been produced and as such in the absence of any evidence, the petitioner could not claim that mutation in dispute was with the consent and knowledge of Nemat Ali.

1. The upshot of above said discussion is that it is proved that Ahmad Ali deceased was Shia Muslim by faith, he died issueless and as such Mst. Hajran Bibi was not entitled of any estate according to Shia Law and as such any transfer or alienation on the part of Mst. Hajran Bibi is against the rights of respondents. The learned appellate Court has rightly accepted the appeal.

2. This civil revision fails and is dismissed accordingly.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 591 (DB)

Present: Mian Shahid Iqbal and Nasir Saeed Sheikh, JJ.

PROVINCE OF PUNJAB through Secretary--Petitioner

versus

MEMBER FEDERAL LAND COMMISSION, ISLAMABAD and 6 others--Respondents

W.P. No. 2961 of 2008, heard on 8.4.2010.

Constitution of Pakistan, 1973--

----Arts. 199 & 184(1)--Contitutional petition--Question of law--Order of allotment of land--Maintainability of writ petition before High Court in view of provisions incorporated in Art. 184(1)--Controversial between Provincial Govt. and Federal Govt.--Land was resumed by Govt. of Punjab in exercise of powers vested in by virtue of Punjab Land Reforms Act--Jurisdiction and power of F.L.C.--Status of allottees of land had been disputed in constitutional petition--Validity--If any dispute between two govts. either inter two or more provincial governments or one or more Provincial Govts. on one side and Federal Govt. on other side is involved, then original jurisdiction of entertaining such a dispute for purpose of decision had been conferred upon Supreme Court--Member Federal Land Commission while passing the impugned orders of allotment in favour of private respondents was in fact exercising the power of federal government--Writ petitions were not competent before High Court. [Pp. 593 & 596] A, B & C

Mr. Muhammad Hanif Khatana, Addl. A.G. for Petitioner.

Mr. Muhammad Ashraf Khan, D.A.G. for Respondents.

Date of hearing: 8.4.2010.

Judgment

Nasir Saeed Sheikh, J.--Through the instant judgment, we propose to dispose of WPs No. 2961 and 2962 of 2008, WPs No. 2023, 2024, 2025 and 2026 of 2009 and WP No. 5002 of 2010 as common question of law is involved in the matter.

1. All the above mentioned writ petitions have been instituted by the Province of Punjab through Secretary, Government of the Punjab, Colonies Department, Lahore and are aimed at seeking the setting aside of orders passed by the Member Federal Land Commission, whereby the land subject-matter of the writ petitions was allotted by the Member Federal Land Commission to the private respondents in exercise of powers under para 18 (3) of MLR No. 115. In all the writ petitions, the Federal Land Commission is arrayed as the main respondent, whose member has passed the orders of allotment of the subject land. It is important to submit that the land allotted by the Federal Land Commission through the impugned orders is claimed by the Province of Punjab to be vested in it.

2. As the interpretation of the Article 184(1) of the Constitution of Islamic Republic of Pakistan concerning the Government of Punjab, was involved, therefore, vide order dated 29.03.2010, this Court directed the learned Advocate-General to assist the Court on the maintainability of the writ petitions before this Court in view of the provisions incorporated in Article 184(1) of the Constitution. The learned Additional Advocate-General has appeared to address the arguments on the point and the learned Deputy Attorney-General has appeared to assist the Court on behalf of the Federal Land Commission.

3. The main contention of the learned Additional Advocate-General, who has appeared to argue the writ petitions is that the land subject-matter of the writ petitions vested in the Provincial Government and it is the privilege and entitlement of the Province of Punjab to allot or not to allot the land in question through its department/official of Provincial Land Commission to any person and that the Federal Land Commission or its officials are vested with no authority to exercise any power of allotting of the land to the private respondents, thus, the orders of allotment were prayed to be declared unlawful, void and without jurisdiction. It is contended by the learned Additional Advocate-General that Article 184 (1) of the Constitution applies only if some legal right with respect to any property becomes controversial between the Provincial Government and the Federal Government. The learned Additional Advocate-General elaborated that the controversy involved in the writ petitions is with respect to the rights of private parties, who are impleaded as private respondents, to hold the allotment as granted by the Federal Land Commission in their favour, which is sought to be set aside in the writ petition and that there is no clash in between the Government of Punjab and the Federal Land Commission as such so as to attract the bar of jurisdiction created by Article 184(1) of the Constitution.

4. The learned Deputy Attorney-General has contended that the writ petitions have been instituted by the Government of Punjab in which the orders passed by the Member Federal Land Commission allotting the land to private respondents, which land is claimed by the Provincial Government of Punjab to vest in it, is involved, therefore, this matter constitutes a dispute between the Government of Punjab and a Federal Government department, therefore, the exclusive original jurisdiction has been conferred upon the Hon'ble Supreme Court of Pakistan by virtue of Article 184(1) of the Constitution on the matter and that the writ petitions are not entertainable by this Court.

5. We have considered the arguments of the learned counsel for the parties and have perused the record.

6. The writ petitions instituted by the Government of Punjab are based upon the basic contention that the land subject-matter of the writ petitions was resumed by the Government of Punjab in exercise of powers vested in it by virtue of Punjab Land Reforms Act, 1977, which fact is specifically narrated in grounds of the writ petitions. The jurisdiction and power of the Federal Land Commission u/S. Para 18(3) of MLR 115 of 1972 has been specifically challenged by the Government of Punjab through the instant writ petitions. The Member Federal Land Commission in the impugned orders of allotment found the private respondents eligible for allotment of land on the ground of they being the tenant in occupation of the land, which status of the private respondents has also been challenged in the writ petitions by the Government of Punjab.

7. The provisions of Article 184(1) of the Constitution of Islamic Republic of Pakistan, 1973 read as follows :--

"Article 184. Original jurisdiction of Supreme Court.--(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments."

A bare reading of the above mentioned Constitutional provision sufficiently manifests that if any dispute between the two Governments either inter two or more Provincial Governments or one or more Provincial Governments on the one side and the Federal Government on the other side, is involved, then the original jurisdiction of entertaining such a dispute for the purpose of decision has been conferred upon the Hon'ble Supreme Court of Pakistan. In this context, a judgment reported as the Punjab Province versus The Federation of Pakistan (PLD 1956 Federal Court 72) is very relevant wherein an Income Tax Officer served a notice under Section 35 of the Income Tax Act upon a factory at Jallo Rosin and Turpentine Factory, which factory vested in the Province of Punjab after partition of the sub-continent. The Province of Punjab assailed the notice issued by the Income Tax Officer by filing suit before the Federal Court invoking the original jurisdiction of the said Hon'ble Court and the Federation of Pakistan raised a preliminary objection upon the maintainability of the suit in view of Section 204 of the Government of India Act, 1935, which provisions were analyzed by the Hon'ble Chief Justice Muhammad Munir in the judgment at Pages No. 77, 78 and 79 and the following observations were made:--

"The first issue to be determined before we proceed further is whether we have jurisdiction to hear the suit. The original jurisdiction of this Court is defined by Section 204 of the Constitution Act which is in these terms:--

"Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other Court, have an original jurisdiction in any dispute between any of the following parties, that is to say, the Federation, or any of the Provinces, if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends".

Thus the necessary conditions of the existence of this jurisdiction are--

(1) that there should exist a dispute between the Federation or any province or between the provinces themselves;

(2) the dispute should involve a question on which the existence or extent of a legal right depends; and

(3) there must not be any repugnant provision in the Act.

In the present case, undoubtedly a dispute exists; this dispute is between a province and the Federation; and it involves a question of law on which the existence or extent of a legal right, namely, the right of the Federation to assess the province to tax depends. On the plain words of the section, therefore, this Court has exclusive jurisdiction in the matter, and it was admitted by Mr. Faiyaz Ali that if the Income Tax Officer were a "Court", and the objection to his jurisdiction to assess the province were taken before him, he could not have adjudicated upon the merits of the dispute, because in that case the dispute would have been exclusively cognizable by this Court. We do not consider it necessary to decide whether an Income Tax Officer is a Court, because it appears to us to be perfectly plain that keeping in view the essential nature of the dispute and the parties to it the case falls within the four corners of Section 204, and we have exclusive jurisdiction in the matter. The principle underlying that section which creates a special jurisdiction is that all disputes, whether of law or of fact, on which the existence or extent of a legal right depends must be determined by this Court if the parties to the dispute happened to be the Federation on the one side and any one or more of the provinces on the other or if two or more provinces are arrayed against one another, because it is in the highest degree undesirable that the Federation and the provinces should be fighting out their battles in ordinary course like common litigants. Mr. Faiyaz Ali admitted that the dispute prima-facie fell within the terms of Section 204, but relying on the words with which the section opens "Subject to the provisions of this Act" he contended that these words must be taken to mean "subject to the provisions of this Act or any other Act passed by a legislature in exercise of the powers conferred on it by this Act or any law recognized by this Act as being in force after the passing of the Act". The learned Advocate General had the resort to this construction in a desperate effort to support the argument that because the Income Tax Act provides a complete machinery for the adjudication of disputes relating to income tax, being an exhaustive code not only governing rights and liabilities arising out of assessments to such tax but also the procedure for obtaining the determination of disputes relating to such rights and liabilities, Section 204 must be read subject to the provisions of the Income Tax Act, with the result that any dispute relating to income tax, even through it may be between the Federation and a province, must be determined by the appropriate authority mentioned in the Income Tax Act and not by any other Court including the Federal Court. We see no warrant in the words of the section for this forced interpretation, particularly when by giving effect to such contention we should not only be reading in the section what is not there but also arriving at the absurd conclusion that while the original jurisdiction of all other Courts including the High Court to decide disputes between the Federation and the province are taken away, an ordinary official like the Income Tax Officer should have been intended to be constituted the sole arbiter of disputes relating to his own jurisdiction to tax, whose decisions subject to a right of appeal or revision, were to carry an absolute finality. We see no reason for any such forced construction of the section and taking it to mean what its plain words say we hold that in the present case the necessary conditions of our exclusive jurisdiction are satisfied and that the dispute is cognizable by us alone."

The provisions of Section 204 of the Government of India Act, 1935 are almost the same except the rider clause, which has been placed in Section 204 in the words "subject to the provisions of this Act" is not included in Article 184(1) of the Constitution.

1. The dispute involved in the present writ petitions is certainly a dispute between the Provincial Government of Punjab and the Federal Land Commission. The exercise of powers by the Federal Land Commission in allotting the land claimed to have been resumed by the Province of Punjab has been specifically assailed in the writ petitions and even status of the allottees of the land have been seriously disputed by the Provincial Government in the writ petitions.

2. The power of passing an order by the Federal Land Commission is provided for in Paragraph No. 29 of the Land Reforms Regulation, 1972, which is reproduced as follows:

"29. Revisional powers of the Federal Government.--The Federal Government, or any person authorized by it in that behalf, may at any time of its, or his own motion or otherwise, call for the record of any case or proceedings under this regulation or under the repealed Regulation 4 which is pending or in which a Commission or any other authority appointed this Regulation or under the repealed regulation other than the Federal Land Commission contributed under Paragraph 4-A, has passed an order, for the purpose of satisfying itself or himself about the correctness, legality or propriety of such an order, and may pass such order in relation thereto as the Federal Government or, as the case may be, such person thinks fit."

A reading of Paragraph No. 29 also clarifies that basically the power envisaged by Paragraph No. 29 is the power of Federal Government, which the Federal Government may exercise directly or authorize any person in that behalf to exercise that power. So the Member Federal Land Commission while passing the impugned orders of allotment in favour of the private respondents was in fact exercising the power of Federal Government as provided for in Paragraph No. 29 above.

1. By instituting the instant writ petitions, the Provincial Government has thus raised a dispute, which has arisen between the Provincial Government of Punjab and the Federal Government, which exclusively is entertainable by the Hon'ble Supreme Court of Pakistan in view of Article 184(1) of the Constitution of Islamic Republic of Pakistan, 1973.

2. The instant writ petitions are, therefore, not competent before this Court and are DISMISSED as such without any orders as to costs.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 597 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

SHEIKHAN WALA CITIZEN COMMUNITY BOARD UNION COUNCIL through Chairman--Petitioner

versus

EXECUTIVE DISTRICT OFFICER (COMMUNITY DEVELOPMENT) and others--Respondents

W.P. No. 13897 of 2010, decided on 25.1.2011.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Govt. Ordinance, 2001, S. 193--Pakistan Penal Code, (XLV of 1860), S. 21--Constitutional petition--Jurisdiction of investigation Govt. exchequer--Definition of public servant--Allegation of embezzlement--Notice was issued to appear and join the inquiry--Petitioner approached EDO to withdraw inquiry but it was refused--Challenge to--Petitioner was assigned a job and for that purpose out of Govt. exchequer were paid to him, therefore, petitioner clearly for purposes of such job falls under category of a public servant as provided definition/description to S. 21 of PPC--Held: In exercise of extra-ordinary writ jurisdiction investigation until and unless it is being done by public functionary, without any jurisdiction or any lawful authority, it cannot be hampered--EDO had submitted an inquiry report for conducting an inquiry and initiation of necessary action in such respect, therefore, such inquiry cannot be hampered while exercising the extra ordinary writ jurisdiction--Petition was dismissed. [Pp. 600 & 601] A & B

Rao Muhammad Arif Khan, Advocate for Petitioner.

Mr. Mubashir Latif Gill, AAG, Mr. Maqsood Ahmad, District Officer, Social Welfare and M. Sarfraz Malik, Dy. Director, ACE for Respondent.

Date of hearing: 25.1.2011.

Order

Petitioner Muhammad Aslam Asif, Chairman Sheikhan Wala Citizen Community, Union Council No. 13, Chak No. 3/9-R Khanewal has moved this writ petition against the respondents mentioning the facts that petitioner Sheikhan Wala Citizen Community Board is registered with Community Development Department, Khanewal having Registration No. DOR-CCB(KWL)242/04; that in March, 2007 petitioner submitted a proposal for the project of construction of metalled road from Chak No. 3/9-R to Shakoor Chowk along with 20% Citizen Community Board's contribution (CCB) amounting Rs. 5,75,000/- and this proposal was processed by EDO(C&D)/ Respondent No. 1 and it was approved; that an agreement was signed between the parties and petitioner was provided first installment of 80% share to be contributed by Respondent No. 1; that petitioner was paid the first installment and petitioner completed its job to that extent, however, in spite of repeated applications subsequently the share i.e. the contribution by the respondents was not provided in the shape of second installment, therefore, further progress in respect of the project could not be done; that now it is revealed that Respondent No. 1 has moved before Respondents No. 3 & 4 with a report showing and alleging embezzlement allegedly committed by petitioner CCB and Respondents No. 3 & 4 in this respect issued notice to the petitioner to appear and join the inquiry, which is illegal and without any lawful justification; that petitioner approached Respondent No. 3 to withdraw any such inquiry but it was refused, hence, this writ petition.

1. Parawise comments/report was called, which is submitted on behalf of Respondent No. 1 and same is hereby reproduced:

"The Citizen Community Board was registered with Registration Authority in accordance with the Local Government Ordinance 2001 and CCB rules 2003. In Local Government, 25% development budget of the Local Govt. was bounded to be utilized through the Citizen Community Board with the remarks that 20% out of total cost of any development project would be shared by the CCBs while remaining 80% would be provided by the Local Governments."

The petitioner is office bearer i.e. Chairman of the Sheikhan Wala Citizen Community Board Union Council No. 13 Chak No. 3/9-R Tehsil & District Khanewal. The CCB submitted project proposal titled "Construction of Metalled Road" to Executive District Officer Community Development Khanewal/CCB official, which was forwarded to Zila Council, Khanewal for approval as per procedure. The Zila Council Khanewal in its session held on 28.05.2007 approved the project at a total cost of Rs:2875000/-. The CCB was to be contributed Rs:575000/- for construction of metalled road while District Govt. Khanewal share was Rs:2300000/-. The office bearer of the CCB signed agreement on 07-07-2007 of the project and agreed to complete the same within a period of three months commencing from 07-07-2007. Out of District Govt. share an amount of Rs:920000/- (Ist Installment), was released to the CCB through Bank draft in July 21st, 2007.

It is submitted that in Khanewal District 447 projects were approved and funded by District Govt. On receipt of complaints regarding embezzlement in Government funds, the District Govt. Khanewal decided to verify physical status of the projects. The cases of those CCBs who embezzled the released funds/amount were forwarded to Anti-Corruption Establishment, for registration of case under relevant provisions of law.

The Petitioner's-CCB (Sheikhan Wala CCB) did not complete the project within stipulated period as per agreement. During enquiry conducted by Sectoral Office, it was proved that the office bearers of the CCB embezzled the total amount (District Govt. share & Community Share) and even the project was not completed despite lapse of more than 5-years. On account of embezzlement, the case matter forwarded to Anti-Corruption Establishment for registration of case, which is reportedly under investigation."

1. Learned counsel for the petitioner contends that petitioner CCB is not public servant rather it is a non-profitable organization to join hand with the respondent Local Government to complete certain projects for uplifting of the locality/local areas; that the respondent according to the agreement was obliged to provide 80% of share in the project which was not done due to which the project mentioned above could not be completed; that the action initiated by Respondent No. 1 whereby a report was sent to Respondents No. 3 & 4 for alleging certain allegations of embezzlement is without any lawful justification; that petitioner is not public servant as defined under the provisions of any of the law applicable on the subject, therefore, Respondents No. 3 & 4 are not authorized to initiate any action against the petitioner or any of the members of the CCB. Prayed that this writ petition be allowed and respondents be restrained from initiating any action/inquiry rather Respondent No. 1 be directed to provide the petitioner its share of the installment so that the project be completed.

2. Learned AAG on the other hand has vehemently opposed the arguments advanced by learned counsel for the petitioner on the grounds that under Section 193 of the Punjab Local Government Ordinance, 2001 petitioner-CCB falls within the definition of a public servant as provided under Section 21 of Pakistan Penal Code, 1860. It was agitated on the basis of record as well as comments that the first installment of Rs:920000/- was provided to the petitioner-CCB but no construction work as assigned to the petitioner through the project approved was done; that an inquiry was conducted in this respect and report was submitted before Respondent No. 3 for initiation of action on criminal side; that no such inquiry or investigation can be hampered in any way; that had the petitioner any grievance he may join the inquiry by submitting his point of view. While relying on 2010 YLR 643 (Nida-e-Millat, Citizen Community Board, Multan through Chairman Vs. Director, Anti-Corruption Establishment, Multan Region, Multan and 8 others) submitted that as petitioner is a public servant as defined under Section 21 of the P.P.C., 1861, therefore, this writ petition be dismissed.

3. I have considered the contentions raised by learned counsel for the parties and have gone through the record.

4. Under Section 193 of the Punjab Local Government Ordinance, 2001 it has specifically been provided that:--

"Members and servants to be public servants.--All Nazims, Naib Nazims, members of the Councils, functionaries of the Local Government and every other person duly authorized to act on behalf of the Local Government shall be public servants within the meanings of Section 21 of the Pakistan Penal Code (Act, XLV of 1860)."

Admittedly if the agreement executed between the petitioner-CCB and Respondent No. 1 is seen, petitioner submitted a project for approval, which was approved and an amount of Rs. 23,00,000/- was sanctioned for that purpose. The first installment of Rs. 9,20,000/- was paid to the petitioner. According to Clause (iv) of the agreement under the heading of "GENERAL" the petitioner had to complete the work within two months commencing from 7.7.2007. Nothing material was done by the petitioner at the site of the project as revealed from the report, reproduced above, submitted by Respondent No. 1. Admittedly, petitioner had been assigned a job and for that purpose out of Government exchequer Rs. 9,20,000/- were paid to him, therefore, petitioner clearly for the purposes of this job falls under the category of a public servant as provided under 9th definition/description annexed to Section 21 of P.P.C. wherein it is specifically provided that:

"Public Servant. The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:--

(Ninth) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter effecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the fraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty;

Explanation-I.--Persons falling under any of the above descriptions are public servant, whether appointed by the Government or not."

This question has already been decided by this Court in the judgment cited by learned law officer.

1. As far as the prayer submitted by learned counsel for the petitioner is concerned whereby it was agitated that Respondents No. 2 & 3 be restrained from conducting any inquiry, is concerned, it is now settled that in exercise of extra-ordinary writ jurisdiction investigation/ inquiries, until & unless, it is being done by a public functionary, without any jurisdiction or any lawful authority, it cannot be hampered. Respondent No. 1 has submitted an inquiry report to Respondent Nos. 2 & 3 for conducting an inquiry and initiation of necessary action in this respect, therefore, such inquiry cannot be hampered while exercising the extra ordinary writ jurisdiction. Petitioner, if so advised, may join the inquiry, submit his point of view before the Inquiry Officers/Respondents No. 2 & 3, who are directed to look into his point of view and proceed further in accordance with law. Resultantly, finding no merit in this petition, same is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 602

Present: Syed Mansoor Ali Shah, J.

IMRAN HUSSAIN--Petitioner

versus

WAPDA through its Chairman WAPDA, Lahore and others--Respondents

W.P. No. 6210 of 2010, heard on 15.7.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment for the posts of A.L.M., Meter Reader, and Naib Qasid in FESCO--Direct quota and employees, children quota--Requirement of written test was dispensed with--Violation of Recruitment Policy, 1992--Contention--Appointment through a lawful process of interview--Question absence of prefixed uniform and shared objective criteria for awarding marks to candidates who appeared for walk in interview--Validity--No objective criteria for evaluation of candidates during walk in interviews was chalked out by PEPCO, FESCO or Selection Board--Public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as its acts as a trustee for the people of Pakistan--Trusteeship of members of Boards of Directors of PEPCO create sacred obligation to ensure that PEPCO is run and managed through the Board, which is an independent and autonomous body constituted to safeguard the interest of public and of PEPCO and at all times to firewall against political or bureaucratic opportunism--FESCO is an independent public company with its autonomous Board of Director--Autonomy of FESCO and independent of Board of Directors of FESCO is merely fictional if directions issued by individuals are carried through by management of FESCO without having received the blessing of its Board of Directors--PEPCO and FESCO had played fraud with legitimate expectations of the people who innocently applied desiring a decent lawful employment--Chairman WAPDA was directed to inquire into unlawful appointments and to identify the beneficiaries of said unlawful recruitment process--Petitions were allowed. [Pp. 617, 618, 628 & 631] B, C, K, L, N & Q

Locus Poenitentiae--

----Appointment through lawful process of interview--Contention--Once appointment had been made any lapse or irregularity committed by department cannot affected the appointments. [P. 608] A

2006 SCMR 285, rel.

Administration of Justice--

----Administrative discretion has to be structured, reasoned, rational logical and objective--One of the ways to arrive at such structured exercise of discretion is to fashion it on a well-thought out, carefully deliberated objective standard. [P. 621] D

Good Governance--

----Good governance and institutional building--Essential--Requirements demands and needs of institution are tailored into objective criteria so that the best suited human resource is selected for the post--Proposed criteria can sub-divide total marks into areas like experience, skill, aptitude, educational background, intellect, extra curricular, personality, ethics, so interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivety from clogging them minds. [P. 621] E

Recruitment Policy--

----Interview as major component of recruitment favour and corruption--Recruitment policy framed by WAPDA--Validity--Interviewing for two to three minutes per candidate cannot help judge the candidate and is no more than an eye wash--Cursory interview can be abused to achieve oblique ends. [P. 623] F

Oral Interview--

----Deficiencies in oral interview test--When there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of high percentage of marks for oral interview as compared to marks allocated for written test, is not free from the vice of arbitrariness. [P. 624] G

Constitution of Pakistan, 1973--

----Art. 4--Administrative discretion--Due process and mandates be treated in accordance with law--Failed to pass the test of due process--Administrative discretion which is structurally unfettered and unchecked cannot be said to have been exercised in accordance with law and therefore fails to pass the test of due process under Art. 4 of Constitution. [P. 625] H

Walk in Interview--

----Unconstitutional and unlawful--Objective criteria--No right--Walk in interview are devoid of an objective criteria and therefore, violative of due process and fundamental rights of petitioner--Walk in interview were declared to be ab initio unconstitutional and unlawful creating no right in the successful candidates--Interview must always be a small component of recruitment process and primary be given to written test as it involves less subjectively and is better test of abilities. [Pp. 625 & 627] I & J

General Clauses Act, 1897--

----S. 24-A--Public sector companies--PEPCO, FESCO--Collective decision in Board Meeting--Validity--Only in grave emergency, which has no room for delay, CEO may act singly in welfare of the company and in public interest--Board of directors must give reasons for allowing CEO to take such decision and must give reasons for its ratification. [P. 629] M

Public Institutions--

----Contribute to national interest and welfare of the people--In order to ensure independence autonomy, national interest and interest of institution members of governing bodies will have to vigilantly and actively play their roles--To be on Board of public sector company is to perform a public duty in the public interest of the people--Public institutions can proper and progress and materially serve the people only of public functionaries incharge of running these institutions fearlessly guard their powers and remain undeterred by extraneous pressure and influence. [P. 630] O & P

2006 SCMR 1630, 2006 SCMR 783, 2006 SCMR 470, 2006 SCMR 285, PLD 2010 SC 676, PLD 1990 SC 1092, PLD 1991 SC 14, PLD 2001 SC 1, 2006 SCMR 1876, 2009 SCMR 1354, ref.

Mr. Ameer Abdullah Khan Niazi, Advocate for Petitioner.

Mr. Nasim Kashmiri, Dy. A.G., M/s. Muhammad Ilyas Khan, Aurangzeb Mirza, Shahid Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz, Advocates for Respondents.

M/s. Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt, Azhar Iqbal and Zia Shahid, Advocateas for appointees.

Mr. Tanveer Safdar Cheema, Chief Executive FESCO.

Ch. Muhammad Ashraf, Director (HR) FESCO.

Mr. Shabbir Ahmad, Senior Manager L&W PEPCO.

Dates of hearing: 29.4.2010, 8.7.2010, 12.7.2010, 13.7.2010 and 15.7.2010.

Judgment

This Consolidated jugdgment shall also decide writ petitions mentioned in Schedule A along with the titled petition. Petitioners had applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid. All these petitions are the same grievance and raise identical questions of law and facts and are, therefore, being decided through this consolidated judgment.

1. Brief facts of the case are that Faisalabad Electric Supply Company ("FESCO") publically advertised vacancies in 22 different categories of posts, including the above posts, in Urdu and English dailies namely: "Jang" and "Daily Express" on 2.11.2008. The said public advertisement was restricted for candidates domiciled in Districts Bhakkar, Faisalabad, Toba Tek Singh, Mianwali, Sargodha and Khushab.

2. Petitioners eagerly applied for the abovementioned posts under Direct Quota and Employees' Children Quota alongwith their testimonials. Petitioners were issued Interview Call Letters and thereafter they appeared to be interviewed by the concerned Selection Board of the area. The requirement of written test was dispensed with, as is described more fully later in the judgment. Principal grievance of the petitioners is that the Selection Boards simply marked their presence as they went in for the interview. No question was asked and they were told that the interview has been concluded. The mode and manner of conducting interviews lead the petitioners to assume that FESCO is not interested to fill the said vacancies. However, the petitioners later on found out to their dismay that all the posts had been filled. Petitioners allege that they have been deprived of their long awaited chance to a lawful employment and what has aggravated their injury is the skewed and selective appointments based solely on political favourtism, disregarding merit. It is vehemently and somewhat poignantly contended by the petitioners that appointments were even made from outside the group of districts mentioned in the advertisement. It was submitted that the entire recruitment process was the work of a hidden political hand, which successfully orchestrated the recruitment process to its own advantage by dictating autonomous public sector companies to violate their own recruitment policy. It was argued that the appointments were made in violation of the Recruitment Policy, 1992 which was heartlessly and unlawfully modified to achieve the desired benefit for the concerned quarters.

3. M/s. Muhammad Ilyas Khan, Khawaja Tariq Rahim, Aurangzeb Mirza, Shahid Karim, Mian Abdul Qudoos, and Muhammad Shahzad Shaukat, Advocates interchangeably appeared on behalf of FESCO, as well as, Pakistan Electric Power Supply Company ("PEPCO"). Muhammed Ilyas Khan Advocate, one of the counsel for FESCO, vehemently, raised preliminary objections to the maintainability of the instant petition.

4. His objections were that writ petition against FESCO does not lie as it is merely a company incorporated under the Companies Ordinance, 1984. He further submitted that the principle of "master and servant" applies in the present case as the petitioners are not governed by any statutory rules of service and lastly, the instant matter involves factual inquiry and therefore, writ is not an appropriate remedy. Learned Counsel placed reliance on "Executive District Officer Schools and Literacy, District Dir Lower and others vs. Qamar Dost Khan and others" (2006 SCMR 1630), "Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing and Physical Planning Development, Lahore and another" (2006 SCMR 783) and "Maqbool Ahmad v. Pakistan Agricultural and others" (2006 SCMR 470).

5. On merits, counsel for PEPCO/FESCO submitted that as the last date for receipt of applications was 15.3.2009. On the said date 86,102 applications were received, however, only 44,656 candidates appeared in the interview under the Direct Quota out of which 1306 were appointed and only 1100 joined the said posts. Under the Employees' Children Quota, 3,477 candidates applied, 2,464 appeared in the interview and only 313 candidates were appointed while only 247 joined the service. Therefore, a total number of 1,347 candidates joined the posts and out of this 101 candidates were not domiciled from the group of advertised districts.

6. It was submitted that the recruitment was initiated on the basis of Recruitment Policy, 1992 framed by WAPDA and adopted by the Board of Directors of PEPCO and FESCO independently. The Recruitment Policy, 1992 was prepared in line with the "GOP [Government of Pakistan] Policy Parameters like open advertisement of the vacancies in the National Press and conducting written tests and interviews of the eligible candidates." After the public advertisement for the vacant posts on 2-11-2008, Managing Director ("M.D.") PEPCO issued Letter dated 15-10-2009 on the direction of the Minister for Water and Power, whereby deviation was made in the Recruitment Policy, 1992 and the requirement of written test was dispensed with, replacing it with only a WALK-IN INTERVIEW.

7. The marks for the written test (65 marks) were added into the interview marks making the total marks allocated for the WALK IN intended to be 90, while 10 marks were to be awarded for higher qualifications. Counsel for FESCO/PEPCO submitted that 11 (eleven) Selection Boards were constituted to conduct the WALK-IN INTERVIEWS at various centres located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha. It is contended that the appointments were made strictly in accordance with law and on the basis of merit.

8. When counsel for the respondents were asked whether there was any objective criteria framed for the purposes of carrying out interviews by PEPCO, FESCO or the Selection Boards, the counsel candidly submitted that no objective criteria was framed and the interviews were conducted purely on discretionary basis. Chief Executive Officer ("CEO"), LESCO appeared in person and was directed to place on record the interview proceedings/workings of the Selection Boards so that the Court could assess and satisfy itself regarding the uniform basis and parameters employed by all the Selection Boards while interviewing candidates for the posts. Chief Executive Officer categorically submitted that no record of proceedings of the Selection Boards was available. Chief Executive Officer made a statement to this effect in writing before the Court, which is dated 12.7.2010 and has been placed on the record as mark "A" which states:

"The undersigned had checked from the head of all Selection Boards constituted for selection of FESCO employees in various categories. They informed that after the induction/consolidation of the selection results at FESCO Headquarters, Faisalabad, the officer incharge of selection board of various centres did not retain the record of the proceedings of Selection Board, since they had signed consolidated computerized results and as a record was not required to be retained under any rules."

1. The CEO also confirmed that no objective criteria was framed for the purposes of the interviews by FESCO or the Selection Boards.

2. Counsel for PEPCO was asked how MD, PEPCO single handedly modified Recruitment Policy, 1992, dispensing with the requirement of the written test which is provided for in the Government of Pakistan Policy parameters for recruitment ? and whether the Board of Directors of PEPCO had authorised the MD, PEPCO to issue letter dated 15.10.2009 ? Counsel for PEPCO sought time and on the next date of hearing placed on record the extracts of the Board Resolution passed by the Board of Directors of PEPCO dated 24.5.2010 whereby ex-post facto ratification was granted to the letter dated 15.10.2009 issued by MD, PEPCO. He further submitted that PEPCO has to follow the Government Instructions, which have been noted in letter dated 15.10.2009.

3. On 8.7.2010, Mr. Abid Ali Chaudhry, Assistant Registrar (Criminal-II) of this Court was appointed as a Local Commissioner who was directed to immediately leave for the Head Office of FESCO, Faisalabad and to undertake the following tasks:--

"1. To obtain a copy of the Recruitment Policy/notification followed by FESCO for the present appointments.

1. To obtain a copy of the notification/letter through which Selection Boards were appointed, showing the names of the members of the said Selection Boards.

2. Letter/notification showing the objective criteria framed by FESCO for the purposes of carrying out interviews or the appointments in the present cases.

3. The local commission will take up 10 cases at random of the petitioners (maintained by respondent FESCO) and place his stamp and signatures on all the pages of the said files. He will do the same by taking 10 cases at random of the persons appointed by FESCO and place his stamp and signatures on all the pages of the said files.

4. In case any of the above is missing and FESCO fails to furnish the same to the satisfaction of the local commission, he will record the statement of Director, HR&A to that effect and procure the signatures of the said Director on the said statement."

5. The Report of the Local Commission dated 12.7.2010 has been placed on record. No written objections have been filed against the said Report and none of the counsel controverted the contents and findings of the said Report during their arguments.

6. On 29.4.2010, FESCO was directed to issue notices to all the candidates who were appointed as Assistant Lineman, Meter Readers, Commercial Assistants and Naib Qasids so that their presence before the Court is ensured. Notices were duly issued to all the appointees in the above category out of which 65 appointees appeared before this Court through counsel. Counsel for the appointees submitted that they have been appointed through a lawful process of interview and once the said appointment has been made, any lapse or irregularity committed by the department cannot affect the appointments of the said persons and placed reliance on "Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others" (2006 SCMR 285). They further argued that the principle of locus poenitentiae also applies in the present case. They contended that they were appointed after fulfilling all the requirements and the procedure laid out by respondent FESCO and, therefore, cannot be deprived of their rightful appointment. It was also contended that the said appointments were for a period of one year and already six months had elapsed, therefore, interference by this Court at this stage would be harsh and will unduly affect the appointees.

7. Arguments heard. Record perused.

8. I shall first address the preliminary objections raised by Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of FESCO. Admittedly, FESCO is owned by the Federal Government and is therefore a State owned company and hence an instrumentality of the State performing functions in connection with the affairs of the Federation. It is now settled and trite law that State owned companies are amenable to writ jurisdiction. Reliance is placed on "Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others" (PLD 2010 SC 676).

9. The second preliminary objection regarding application of the principle of "master and servant" is misconceived as it is not the terms and conditions of service which are under challenge in the instant petitions but the mode and manner of recruitment followed by a public sector company which is in question. It is an obligation of a public institution to act fairly, justly, reasonably and transparently. In the present case, it has been agitated that the Recruitment Policy, 1992 has been violated. Inspite of public advertisement, sham interviews have been conducted without any common and prefixed objective criteria to transparently judge and evaluate the candidacy of the applicants. It is submitted by the petitioners that the process adopted by FESCO and its Selection Boards is blatantly devoid of due process; it deprives the petitioners of their right to lawful employment and livelihood and discriminately ousts the petitioners from the recruitment process in violation of Articles 4, 18 and 25 of the Constitution. Therefore, the objection regarding "master and servant" is misplaced and without force.

10. The last preliminary objection is regarding factual controversy involved in the present case. This objection also has no force as it has been admitted by the counsel, as well as, the Chief Executive Officer and the Director, Human Resource (later in the judgment) that no objective criteria was framed for the purposes of conducting interviews. Further, the authority of MD, PEPCO to issue Letter dated 15.10.2009 and the blind implementation of the same by FESCO is a legal question that can be easily addressed in the present constitutional proceedings. I, therefore, reject all the three preliminary objections raised by respondent FESCO as being frivolous and misconceived.

11. On merits these petitions raise the following questions of public law and institutional importance:

(a) Can appointments be made on the basis of WALK-IN interviews without a pre-fixed objective criteria shared amongst all the Selection Boards (interviewers) by FESCO or PEPCO to maintain a uniform objective selection process? Whether failure to do so offends articles 4, 18 and 25 of the Constitution besides affronting the principles of social and economic justice?

(b) Whether in the absence of any record, minutes or notes of the proceedings, it could be inferred that discretion was not lawfully and transparently exercised by the interviewing members of the Selection Boards?

(c) Whether M.D, PEPCO could single handedly on the "advice" of the Minister for Water & Power, temporarily amend the Recruitment Policy framed by WAPDA under the guidelines of the Federal Government?

(d) Whether Board of Directors of a public sector company is competent to grant ex post facto ratification without giving reasons?

(e) Whether, management of FESCO could blindly implement the decision of M.D. PEPCO without first placing the same (Letter dated 15-10-2009) before the Board of Directors of FESCO and getting their approval ?

1. To answer these questions, it will be useful to sketch the chronological sequence of events:--

(i) PEPCO (Human Resource Directorate) communicated to FESCO vide letter dated 30-10-2008, that Cabinet Secretariat, Establishment Division has been pleased to grant NOC for "advertisement only" of 1195 vacant positions spread over 22 different posts from BPS 1 to 14.

(ii) Through the same letter FESCO was directed to ensure that advertisement appears in two daily URDU newspapers having wide circulation preferably for 2-11-2008 (Sunday).

(iii) The advertisement appeared in "Jhang" and "Daily Express," Faisalabad on 2-11-2008. The public advertisements were for 22 different posts and specifically stated that the posts had to be filled by residents domiciled in Districts: Faisalabad, Bhakkar, T.T.Singh, Sargodha, Mianwali and Khushab (the geographical service region of FESCO). The present petitioners applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid.

(iv) Vide Letter dated 10-11-2008 with the subject: EXEMPTION FROM BAN ON RECRUITMENT, PEPCO informed FESCO that selection process of the advertised posts "is restricted at this stage till further instructions." This was perhaps due to the Ban on Recruitment as the title of the Letter suggests.

(v) Vide Letter dated 16-12-2008 of PEPCO, last date for submission of applications was extended till 15-1-2009. FESCO vide its Letter dated 17.1.2009 reported to PEPCO that 80,173 applications had been received in all 22 categories in response to advertisement dated 2-11-2008 with the closing date of 13-11-2008 and more applications were expected as the date was extended.

(vi) PEPCO vide Letter dated 12-2-2009 wrote to all the corporatized entities (including FESCO) the following:

"Corporatized Entities may complete the recruitment process in a fair and transparent manner at their own strictly in line with the applicable instructions rules and recruitment policy .....

PEPCO, however, as a part of its mandate, will continue its routine and normal surveillance, covering selection process through in-house arrangements.

This is issued with the approval of the Managing Director PEPCO"

(vii) Vide Letter dated 19-2-2009 issued by PEPCO, the last date for the receipt of applications was once again extended to 15-3-2009. This was done in view of letter of Ministry of Water and Power dated 19-2-2009 whereby the ban on recruitment was lifted.

(viii) On 26-3-2009 PEPCO informed the DISCOs (including LESCO) that "The competent authority has been pleased to allow for further proceeding with Recruitment Process for the posts, cleared for advertisement only. Please ensure strict compliance with laid down procedures/recruitment policies and all applicable Service Rules and instructions issued from time to time."

(ix) At the time of the Public Advertisement dated 2.11.2008 till the issuance of Letter dated 15.1.2009, the New Recruitment Policy for WAPDA Employees Grade 1-15 (settled vide Office Memorandum dated 25-01-1992) was in vogue. The said Recruitment Policy states:

NEW RECRUITMENT POLICY FOR WAPDA EMPLOYEES GRADE 1-15

Adopting the new Recruitment

1. Policy of the Federal Government, WAPDA has accordingly modified its own Recruitment Policy. The new policy adopted by WAPDA is at annexure "A" covering all grades of employees, with special emphasis on merit, elimination of discretion and including the monitoring role of Public Representatives.

2. Previously merit was determined with the help of subjective/trade tests. Now only objective test has been introduced for grade 3-15 recruitment, specimen of which is enclosed depending upon the specific recruitment of each trade. Papers for objective tests may be prepared on these lines.

3. The new Recruitment Policy is to be followed strictly in letter and spirit.

Authority: Director General (S&GA) Wapda's Circular No. DG/AD(E.IB)/7225-Re-5045-5203 dt. 25.01.1992.

Annexure "A"

GUIDELINES FOR RECRUITMENT OF STAFF IN BPS 1-15

1. In supersession of all previous instructions on the subject a new Recruitment Policy has been approved by WAPDA on the basis of the one announced by the Federal Government, laying emphasis on elimination of discretion and the monitoring role of Public Representatives. Salient features of the new Recruitment Policy are as under:--

a. All recruitment will be made in February and August every year.

b. Advertisement in the electronic media/National Newspapers (at least in 2 dailies) will be made with 30 days notice and on Sundays only.

c. Posts in BPS 1-2 will not be advertised. Whenever there is a need to fill in these vacancies concerned formation will ask for application from Secretary WAPDA in addition to applications available in the concerned office.

d. Posts for various Grade i.e. (BPS 1-15) will be advertised.

e. Qualifications where prescribed in Service Rules for various grades will be strictly adhered to.

f. All appointments are to be made strictly on Merit basis on experienced / academic /technical qualification.

g. No weghtage will be given to interview, unless essential for the post.

h. No adhoc appointments will be made.

i. Age relaxation will not be allowed when candidates of correct age are available. However, candidate who may become over age as a result of ban imposed by the Government since November 1990 the age limit may be relaxed by 1 1/2 years till 31.12.1992.

1. Procedure for Recruitment

Objective/Trade test will be organized for all advertised post by the respective formations, where considered necessary.

1. Selection Board

Posts of BPS 1-4 Members not below the rank of BPS 17 officer.

For all advertised posts: Selection Board will be as per WAPDA Service Rules.

1. Appointing Authority

As per existing delegation of administrative powers laid down in Service Rules.

1. Domicile

2. All direct recruitees should be domiciled of the Region (Area Electricity Board/Province) where the posts exist, as per existing policy.

3. BPS 3-15: As far as possible, recruitment in Head Office, Power Stations and Dams is made on all Pakistan basis according to the Provincial Quota prescribed by the Federal Government.

4. Quota

The quota reserved for various categories is given below:

• Employees Children 33.1/3 %

• Disabled 1%

• Ex-Servicemen 10%

• Dest-i-tute/ Orphan 5%

(x) Office Memorandum dated 19-11-2003 issued by PEPCO states:

PAKISTAN

WATER AND POWER DEVELOPMENT AUTHORITY SERVICES & GENERAL ADMINISTRATION

DIRECTOR GENERAL 332-WAPDA House, (S&GA) Shahrah-I-Quaid-I-Azam, Lahore.

Vo.DG(S&GA)/D(Rules)/07453/30/III/55906-27206

Dated 19.11.2003.

OFFICE MEMORANDUM

Subject: QUALIFICATION PARA-METERS FOR RECRUIT-MENT OF STAFF.

Authority in its meeting held on 04.11.2003 has decided as under:--

1. The prescribed qualification to appointments in BPS 1 to BPS 4 and Sanitary Workers will be as under:-

(a) BPS 3 and BPS 4 Matric

(b) BPS 1 and BPS 2 Middle except Sanitary Worker

(c) Sanitary Worker Literate (who can read newspaper and write a simple letter in any language)

1. All Service Rules instructions of such categories will stand amended to the above extent.

2. Merit list for appointments upto BPS-15 will be prepared as under:--

(a) Weightage to Written Test 65 Marks

(b) Weightage in Interview 25 Marks

(c) One step higher qualification 10 Marks and above than the prescribed qualification in the relevant Service Rules (No weightage to above One step higher qualification) (emphasis supplied)

Recruitment policy will stand amended to the above extent.

Sd/-

(Muhammad Akbar Choudhary)

Director General

(xi) However, quite abruptly, vide letter dated 15.10.2009, M.D, PEPCO issued the following letter:

PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD.

Ref: Managing Director/D/A 4200-4218 Dated October 15,2009

Chief Executive Officer DISCOs, GENCOs & NTDC

Subject: PRIORITY CONSIDERATION FOR CRITICAL VACANCIES /CLEARANCE OF OPERATIONAL ISSUES.

Further to communications on subject, priority redressal of Technical/Operational and Revenue problems has become more pronounced now and thus cannot be left to procedural handling. Of course, these can be resolved to a great extent through improving on governance and supplementing the deficient HR base of the Companies on immediate basis, presently touching critical levels for skilled/semi-skilled categories like ALMs, ASSAs, LSs, Meter Inspectors, Meter Readers, Bill Distributors and other ministerial staff. Whereas Companies have advertised the vacant posts procedural requirements still mars the sincere efforts for early inductions.

It has been brought to the notice of Ministry of Water & Power that PEPCO is following Recruitment Policy adopted from WAPDA, that is based on GOP Policy Parameters like open advertisement of the vacancies in the National Press and conducting the written tests and interviews of the eligible candidates, a process not likely to complete within 4-5 months even if given straight going. The job has become difficult on account of overwhelming response of the candidates for the advertised vacancies i.e. running in hundred thousands. Still another very serious concern is on the law and order situation as prevalent in the country, where holding of written test in congregation of thousands of candidates is not without serious life threats. There is a rising trend of the insurgency and terrorism where mass gatherings are the obvious and easy targets for the miscreants. It has been deemed appropriate to avoid providing any chance to terrorists by avoiding holding of gathering of candidates for written tests on certain placed and venues.

The position has been discussed and brought in the notice of Minister of Water & Power and in the view of the aforementioned circumstances, it has been advised to fill 50% of the vacancies in BPS 1 - 16 on immediate basis in accordance with the Recruitment Policy with unavaoidable exception, where required. Additionally, the Minister of Water and Power has also been kind to allow recruitment against vacancies for Engineers and Officers of Common Cadre (BPS-17) including those pertaining to Revenues, Accounts and Audit etc.

Accordingly, Entities are required to immediately start the selection process against 50% of the vacancies for BPS 1-16 from amongst the candidates who have applied against the advertised vacancies and also meet minimum prescribed criteria in the relevant Service Rules, by curtailing the selection process given in Recruitment Policy to the extent that all other steps will be strictly complied, but for the entrance test exception. The candidates will be called for walk in interviews and marks reserved for written test shall be added in the interview marks. The successful candidates shall then be issued offer of appointments. It is further clarified that CEOs may consider relaxation in age as already authorized to them and change the short listing criteria, where warranted, but otherwise not in conflict with the Service Rules to provide equal chances to all in view of persistent ban on recruitment.

The above-mentioned measures are interim arrangements to cater for the special circumstances, called for by immediate staffing requirements, overwhelming response of candidates and security concerns for holding written tests in large congregation of candidates running in thousands, applicable to only 50% of the vacancies of BPS 1-16. The full process will stand restored automatically on completion of instant recruitment against allowed 50% vacancies as prevalent heretofore without any notice thereby, including the provision of written test.

The Recruitment Policy, however, will remain applicable as such for induction in Officers category where arrangements are possible for comparatively lesser number of candidates. The date, time and venue for examination against the Officers Cadre (both Technical and Non-Technical), if not already taken up, should be initiated for 50% of such vacancies on immediate basis in observance of prescribed criteria in Recruitment Policy and Service Rules.

All concerned may note to ensure induction of staff against the vacancies to the level allowed on Fast Track basis so as to supplement the deficient HR Base for alleviating the operational problems of the Companies.

Sd/-

Engr. Tahir Basharat Cheema

Managing Director

(xii) Thereafter 11 Selection Boards were constituted and "WALK IN" interviews were held in five Centre located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha and as a result the 1,347 vacant posts were filled. Details are as follows:

Total No. of Total number Total No. of Total No. of Candidates of Candidates successful candidates applied who candidates who joined appeared in the posts the Walk in Interview

89,579 47,120 1,619 1,347

1. On the basis of the above facts, I take up the first question i.e., the absence of a pre-fixed uniform and shared Objective Criteria for awarding marks to candidates who appeared for the WALK IN interview, out of a total of 90 marks. Mr. Shahid Karim, Advocate appearing on behalf of PEPCO, submitted at the bar, that no Objective Criteria was framed by PEPCO or FESCO for assessing the candidates in the interview. CEO, FESCO in his statement tendered in writing before this Court dated 12-7-2010 (placed as Mark "A") admitted that the record of the proceedings of the Selection Boards is not available as it was not retained by the Selection Boards. When asked if an objective test or criteria was prepared and handed over to the Selection Boards so that a uniform interviewing process could be carried out, he submitted that no such criteria existed. No such objective criteria has been placed on the record or finds mention in the parawise comments filed by FESCO.

2. Statement of Muhammed Ashraf Chaudhry, HR & Admin Director, FESCO recorded on 09.07.2010 by the Local Commissioner states that: "........Assessment of the candidates in interview was not segregated in terms of different traits of character, personality, etc. but overall assessment was evaluated by the Selection Board as no such written instructions exist......"

3. It is therefore an admitted position that no Objective Criteria for evaluation of candidates during the WALK IN Interviews was chalked out by PEPCO, FESCO or the Selection Boards. The Office Order through which 11 Selection Boards for various areas where constituted having a convenor and two members were given the following instructions. Office Order dated 28-10-2009 constituting Selection Board for the Sargodha Centre, which is similar to the others, is reproduced hereunder:

Faisalabad Electric Supply Company Limited

(WATER AND POWER DEVELOPMENT AUTHORITY)

Tel #041-9220370 OFFICE OF THE Fax # 041-9220445 CHIEF EXECUTIVE OFFICER FESCO (WAPDA) FAISALABAD

No. 8235/DDA/E-Il/ DATED 28.10.2009

OFFICE ORDER

1. A Board of following Officers will conduct walk in interviews of candidates for appointment on contract basis in FESCO, for the categories mentioned below on the dates mentioned against each at 0900 hrs in Sargodha Centre:--

2. Mr. Abdul Razzaq, - Convenor Manager (L&L) FESCO

3. Mr. Aamil Hussain Siddiqi, - Member Deputy Manager (Operation) 1st Divn. Sargodha

4. Mr. Javed Hussain, - Member Deputy Manager (Operation) 2nd Div. FESCO Sargodha

5. Mr. Riaz Hussain Block - Member Deputy Manager (Commercial)

6. Malik Ashfaq Ahmed, - Member Deputy Manager (Technical) FESCO Sargodha

7. Mr. Saeed Ahmed Qureshi - Member Deputy Manager (MIS) FESCO Sargodha

8. Mr. Shahbaz Mehmood - Member Assistant Manager (CTC) FESCO Sargodha

9. Mr. Javed Anwar Sandhu - Member Assistant Manager (Operation) Tariqabad Sub-Division FESCO Sargodha

10. Mr. Maroof Ahmed - Member Assistant Manager (Operation) City Sub-Division FESCO Sargodha

11. Mr. Imran Ali, - Member Assistant Manager (Operation) Civil Lines Sub-Division FESCO Sargodha

12. Mr. Muhammad Tariq - Member Assistant Manager (Operation) Rural Sub-Division FESCO Sargodha

13. Mr. Ghulam Murtaza - Member Assistant Manager (Operation) Kot Farid Sub-Division FESCO

14. Mr. Raza Ali Nawaz - Member Assistant Manager (Construction) FESCO Sargodha

15. Mr. Muhammad Rashed - Member Assistant Manager (SS&T) FESCO Sargodha

16. Mr. Yasir Farooq - Member Assistant Manager (P&I) SS&T FESCO Sargodha

Category Date

UDC 29.10.2009

LDC/TCC 30.10.2009

Chowkidar 30.10.2009

Naib Qasid 31.10.2009

Commercial Assistant 01.11.2009

ASSA 02.11.2009

Bill Distributor 03.11.2009

ALM 04.11.2009

Meter Reader 05.11.2009

Lorry Driver 06.11.2009

Assistant/Head Clerk 07.11.2009

Note:

a. Arrangements will be made at Sargodha Centre by Manager (Operation) Sargodha Circle FESCO Sargodha.

b. Convenor will further constitute Sub-Committees of the above Board.

c. The officials already earmarked will be deputed for document checking and getting attendance of candidates. The Convenor in consultation with the Officers of the board will specify their assignment.

d. The Convenor of the board himself will be present at the Venue well before the start of the interview and till completion.

e. No unauthorized/irrelevant Officer/official will be allowed to enter at the place of Venue in any case except the Officers specifically detailed for the purpose.

f. No candidate without original Call letter and National Identity Card will be allowed.

g. No photocopy of the Board proceedings will be retained in any case by any member / official.

h. Board Proceedings and attendance sheets will be provided by this Headquarters.

i. The Board members will report to Convenor well before 30 minutes of the prescribed time on the date of interview.

1. This is issued with the approval of Chief Executive Officer, FESCO.

Sd/-

MUHAMMAD GULZAR SHEIKH

MANAGER (ADMN)

The most fundamental component i.e, the basis of assessment and evaluation during the interview is starkly missing in the instructions at the fag end of the Office Order under the heading "Note" (reproduced above).

1. Assuming for the sake of argument, that PEPCO lawfully modified the well settled Recruitment Policy, 1992 framed by WAPDA by morphing written test into a WALK-IN interview with total marks of 90 (as per Recruitment Policy: 65 marks were allocated for written test and 25 marks for interview, the marks for written test were added into the total marks for the interview), what needs to be seen is whether the Selection Boards constituted for the purpose of holding WALK IN interviews could have exercised lawful discretion in the absence of an objective criteria.

2. It is settled law that administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought out, carefully deliberated objective standard. This helps test various faculties of the interviewee especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc. which forms a uniform yardstick, gauge, scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully illogical. The administrative compulsion and wisdom to structure discretion (in this case by providing a well thought out objective criteria/test or a score card) is to remove human subjectivity from exercise of discretion. In the present case, this was not done.

3. Good governance and institutional building requires that the requirements, demands and needs of the institution are tailored into the objective criteria/test so that the best suited human resource is selected for the post. The proposed criteria can sub-divide total marks into areas like; experience, skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds.

4. The downside of not having a clear formula or criteria is supported by the following facts: Local Commission was directed to collect, at random, application forms/files of selected and rejected candidates. This was duly done. A bare perusal of the files placed on the record and attached to the Report of the Local Commission reveal as follows:

Post Name of the Academic Name of an Academic Applied REJECTED qualifications APPOINTED qualifications for candidate candidate

METER Atteeq-ur Matric 51% Ghulam F.A 50.72% READER Rehman F.A 61% Mustafa Matric 40% CNIC B.A 65% 33104- 38301- 8953930-7 188522-3

The appointed candidates has less qualification that the rejected one. The above comparative chart is self-explanatory.

1. On an institutional level, structuring the discretion is to protect the institution and the public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility attached to human behaviour, translated into human dissection. These vices are a breeding ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to exist, weaken the foundations of democratic public institutions. Reference at this stage is made to the case of Aman Ullah Khan and others V. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092 at Page 1147), relevant part of Para 62 reads as under:

"Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times". (emphasis supplied)

1. The above principles have been consistently reiterated in the cases of Chairman, Regional Transport Authority, Rawalpindi V. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food, N.W.F.P. and another V. Messrs Madina Flour & General Mills (Pvt.) Ltd. & 18 others (PLD 2001 SC 1), Chief Secretary Punjab and others V. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab and another V. Secretary, Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation V. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101).

2. Interview as the sole or major component of any recruitment or appointment process is open to error, arbitrariness, favour and corruption. It is for this reason that Recruitment Policy framed by WAPDA on the guidelines of the Federal Government allocated 25% marks out 100 for interview, while 65 marks were allocated for written test and 10 marks for higher qualifications. The midstream sudden and shift to WALK IN interview is therefore irrational and opposed to public policy. In case of large number of candidates interviews become even less effective. Interviewing for two to three minutes per candidate cannot help judge the candidate and is no more than an eye wash, not to mention how such rushed and cursory interview can be abused to achieve oblique ends. In the present case, according to the record, 44,656 candidates were interviewed in 11 days by 11 Selection Boards. This means that on an average 377 candidates were interviewed per day by each Selection Board, which is humanly impossible and turns the interview and recruitment process into a cruel joke. I rely with advantage on the under-mentioned cases for demerits of an appointment process solely based on interview.

3. In "B. Ramakichenin Alias Balagandhi vs. Union of India and others" (2008(1) SCC 362) it was held:

"It is well settled that the method of short-listing can be validly adopted by the Selection Body....Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement .... As observed by this Court in Ramana Dayaram Shetty vs. The International Airport Authority of India and others (AIR 1979 SC 1628): "It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in "William Vincent Vitarelli vs. Fred A. Seaton" 359 US 535; 3 L Ed 2nd 1012 (1959) where the learned Judge said: "An executive agency must be rigorously held to the standards by which it professes its actions to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that binds such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword". (emphasis supplied)

1. In "Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar and another" (AIR 1995 SC 77) it was held:

"But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the Courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate ...... If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview". (emphasis supplied)

1. In "Ajay Hasia etc. vs. Khalid Mujib Sehravardi & others, etc." (AIR 1981 SC 487) where in it was held that interview of each of the candidates lasting only two or three minutes asking formal questions relating to the candidates parentage and residence and without any relevance to the subject for which marks were allocated.... "The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates". Having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, is not free from the vice of arbitrariness.

2. In "Ashok Kumar Yadav and others etc. v. State of Haryana and others." (AIR 1987 SC 454 at page 473)

".....candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the Constitution of the interview Board....Glenn Stahl has pointed out in his book on Public Personal Administration that the viva voce test does suffer from certain disadvantages such as the difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test as a channel for the exertion of political influence and as pointed out by this Court in Ajay Hasia's case (AIR 1981 SC 487) (supra), also of other corrupt, nepotistic or extraneous considerations....."

1. Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals. Absence of an objective criteria in exercise of discretion especially in the present case where thousands of candidates had applied is therefore discriminatory and hence violative of Article 25 of the Constitution.

2. Petitioners, hailing from different districts of Punjab, with modest means and humble background, desperately seeking appointment to public service (86,000 candidates applying for 1347 posts highlights the noticeable elasticity of demand). To subject their career and future prospects of employment and perhaps their only hope of livelihood to an unstructured, unchecked, unguided and unfettered exercise of discretion, puts the fragile career of the petitioner hostage to corruption, political opportunism and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution.

3. Article 4 of the Constitution provides for due process and mandates that everyone is to be treated in accordance with law. Administrative discretion which is structurally unfettered and unchecked cannot be said to have been exercised in accordance with law and therefore fails to pass the test of due process under Article 4 of the Constitution.

4. The WALK IN interviews in this case are devoid of an objective criteria and therefore violative of the due process and the fundamental rights of the petitioners. The WALK IN interviews are therefore declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the successful candidates.

5. Coming to the Letter issued by MD PEPCO and its ex post facto ratification. It is important to note that the public advertisement for the vacancy of the posts in question were allowed by PEPCO and it was directed that recruitment be made as per Recruitment Policy framed by WAPDA vide Letters dated 12-2-2009 and 26-3-2009 (above). Still, M.D., PEPCO without the approval of its Board of Directors, under the political diktat of the Minister, Water and Power issued Letter dated 15-10-2009. The relevant extracts of the letter are reproduced, hereunder for ready reference:

It has been brought to the notice of Ministry of Water & Power that PEPCO is following Recruitment Policy adopted from WAPDA, that is based on GOP Policy Parameters like open advertisement of the vacancies in the National Press and conducting the written tests and interviews of the eligible candidates, a process not likely to complete within 4-5 months even if given straight going. The job has become difficult on account of overwhelming response of the candidates for the advertised vacancies i.e. running in hundred thousands. Still another very serious concern is on the law and order situation as prevalent in the country, where holding of written test in congregation of thousands of candidates is not without serious life threats. There is a rising trend of the insurgency and terrorism where mass gatherings are the obvious and easy targets for the miscreants. It has been deemed appropriate to avoid providing any chance to terrorists by avoiding holding of gathering of candidates for written tests on certain placed and venues.

The position has been discussed and brought in the notice of Minister of Water & Power and in the view of the aforementioned circumstances, it has been advised to fill 50% of the vacancies in BPS 1-16 on immediate basis in accordance with the Recruitment Policy with unavaoidable exception, where required. Additionally, the Minister of Water and Power has also been kind to allow recruitment against vacancies for Engineers and Officers of Common Cadre (BPS-17) including those pertaining to Revenues, Accounts and Audit etc.

Accordingly, Entities are required to immediately start the selection process against 50% of the vacancies for BPS 1-16 from amongst the candidates who have applied against the advertised vacancies and also meet minimum prescribed criteria in the relevant Service Rules, by curtailing the selection process given in Recruitment Policy to the extent that all other steps will be strictly complied, but for the entrance test exception. The candidates will be called for walk in interviews and marks reserved for written test shall be added in the interview marks. The successful candidates shall then be issued offer of appointments. It is further clarified that CEOs may consider relaxation in age as already authorized to them and change the short listing criteria, where warranted, but otherwise not in conflict with the Service Rules to provide equal chances to all in view of persistent ban on recruitment.

1. The said letter dispensing with the written test and adding the marks for the same into the total score for the WALK IN interview has poorly masked the political caprice visible between the lines. It has been reasoned, with little logic, that if written tests are held the process will not be concluded within 4 to 5 months due to large number of applications. Secondly, the rise of insurgency and terrorism require that mass gathering ought to be avoided, hence the WALK IN interviews. It maybe noted, that in such an eventuality, where candidates hugely out-number the limited number of vacant posts, recourse to short-listing is the made. By setting a standard based on academic qualifications, candidates can be short-listed and the small number of shortlisted candidates be subjected to the recruitment process comprising a written test and an interview.

2. Clause 1(g) of the Guideline for Recruitment of Staff BPS 1-15 states: "No weightage will be given to the interview unless essential for the post." It is now settled on good authority, as discussed earlier in the judgment, that interview must always be a small component of the recruitment process and primacy be given to the written tests as it involves less subjectivity and is a better test of abilities. It is, therefore, surprising that M.D. PEPCO on the behest of the Minister, Water and Power, without placing it before its own Board of Directors, hurriedly issued letter dated 15-10-2009 deleting the requirement of a written test and hinging the recruitment process on to the weakest modes of assessment i.e., interview.

3. The urgency and the compelling reasons that coaxed MD PEPCO to modify an established Recruitment Policy and that too after the process of recruitment had begun is not forthcoming from Letter dated 15-10-2009. The said arrangement is also temporary and for the remaining 50% seats the original recruitment policy will be adopted.

4. Further, the ex post facto ratification by the Board of Directors fails to give reasons of urgency, failing to explicate why ratification was allowed. The Board of Directors of PEPCO also failed to inquire why the established Recruitment Policy had to be modified and whether short listing was an option that was not placed on the table. The decision of Board of Directors dated 25-4-2010 blandly states:--

Item 15.

RATIFICATION OF PRIOITY CONSIDERATION FOR CRITICAL VACANCIES/CLEARANCE OF OPERATIONAL ISSUES

Through an Item Note on the subject and in the ensuing discussion piloted by the General Manager (HR), PEPCO, the Board meeting, ex post facto Ratification No. MD/GM(HR) /HRD/A-551(09)4200-4218 dated 15-10-2009. Concerning the need for supplementing the deficient HR base on a fast track basis alleviating the operational problems of the Companies.

The Board of Directors ratified the aforesaid instructions, as requested.

1. The Board item note (above) fails to mention why the decision had to be taken by M.D., PEPCO without the approval of the Board and the Board also miserably failed to review the reasons why such a decision was taken and failed to deliberate whether the decision was correct. It is important to note that decision dated 15.10.2009 is ratified by the Board of Directors on 25-4-2010, while the decision of the MD, PEPCO stood implemented and impugned appointments were made on 6-1-2010.

2. Even though ex post facto ratification is permissible under the Companies Ordinance, 1984 for companies, however, in the case of autonomous bodies/sector, the use of ex post facto ratification needs a revisit. A public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company. The trusteeship of the members of the Board of Directors of PEPCO create a sacred obligation to ensure that PEPCO is run and managed through the Board, which is an independent and an autonomous body constituted to safeguard the interest of the public and of PEPCO and at all times to firewall against political or bureaucratic opportunism. A Minister under the Rules of Business is to provide the macro policy and fashion the vision of the Department according to the political agenda of the Government in power. It is not the role or the business of the Minister, (in this case Minister for Water and Power) to interfere with the operational working of autonomous body like PEPCO. In this case the Minister could have stressed the urgency to employ manpower in various power companies but could not have gone further to suggest and direct the temporary modification of the Recruitment Policy unless PEPCO after due deliberation at the Board level and after giving reasons felt that such a modification is required in the larger interest of PEPCO and in pubic interest. Government and its autonomous institutions are spread out in layers, every tier having its own independent role and scope of operations and there is no room for dictation or pressure. Unless the structure of governance laid out in the Rules of Business read with the constitutional principles, is protected, the system of public administration will come crashing down, replacing public interest with personal avarice and greed. This cannot be permitted.

3. I, therefore, hold that public sector companies (e.g. PEPCO, FESCO) shall take collective decision in their Board Meetings, giving reasons as required under Section 24-A of the General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only in grave emergency, which has no room for delay, the CEO may act singly in the welfare of the company and in public interest, supported by written reasons for its urgency and the same must be ratified by the Board of Directors within the shortest possible time. Board of Directors must also give reasons for allowing the CEO to take such a decision and must give reasons for its ratification.

4. The Letter issued by Managing Director PEPCO changing the Recruitment Policy at the behest of Minister besides offending fundamental right (as discussed above) reflects of poor and reckless governance.

5. As per the website of WAPDA i.e., www.wapda.gov.pk, "Since October 2007, WAPDA has been bifurcated into two distinct entities i.e. WAPDA and Pakistan Electric Power Company (PEPCO). WAPDA is responsible for water and hydropower development whereas PEPCO is vested with the responsibility of thermal power generation, transmission, distribution and billing.

WAPDA is now fully responsible for the development of Hydel Power and Water Sector Projects. PEPCO has been fully empowered and is responsible for the management of all the affairs of corporatized nine Distribution Companies (DISCOs), four Generation Companies (GENCOs) and a National Transmission Dispatch Company (NTDC). These companies are working under independent Board of Directors (Chairman and some Directors are from Private Sectors). The Companies are administratively autonomous and leading to financial autonomy by restructuring their balance sheets by bringing their equity position to at least 20 percent, required to meet the prudential regulations and to facilitate financing from commercial sector (approved by ECC)."

1. FESCO is an independent public company with its autonomous Board of Directors. Decision of M.D. PEPCO or the Board of Directors of PEPCO are required to be placed before Board of Directors of FESCO in order to take a decision regarding the recruitment process employed at FESCO. No such Board meeting took place. The autonomy of FESCO and the independence of the Board of Directors of FESCO is merely fictional if directions issued by individuals namely: M.D PEPCO (without seeking the approval of the Board of PEPCO) are carried through by the management of FESCO without having received the blessing of its Board of Directors.

2. Public Institutions can only contribute to national interest and welfare of the people if they are run as an institution and in the public interest without any fear or favour. If the Board Members are bypassed and are simply used to ratify orders passed single handedly behind closed doors and without any plausible reason, the future of public institutions is bleak. In order to ensure independence, autonomy, national interest and interest of the institution, the members of the governing bodies will have to vigilantly and actively play their roles. To be on the Board of a public sector company is to perform a public duty in the public interest of the people of Pakistan. This role has to be performed with full responsibility, vigilance, courage, wisdom and for no other reason. Sadly, this is not the case here.

3. The arguments raised by the counsel for the appointees have no force. Reliance placed on "Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others" (2006 SCMR 285) is misconceived. In the present case prospective candidates have brought the process of recruitment under challenge and it is not a case where the departmental authority has cancelled appointment due to some irregularity in the process with no third party interest. The facts of the present case are very different. The judgment cited has no application to the present case.

4. Before parting with the judgment I wish to reemphasize that public institutions can prosper and progress and materially serve the people of Pakistan only if the public functionaries incharge of running these institutions fearlessly guard their powers and remain undeterred by extraneous pressure and influence. The words of the founder of our nation Muhammed Ali Jinnah are a timely reminder:

"The first thing that I want to tell you is this, that you should not be influenced by any political pressure, by any political party or individual politician. If you want to raise the prestige and greatness of Pakistan, you must not fall a victim to any pressure, but do your duty as servants to the people and the State, fearlessly and honestly. Service is the backbone of the State. Governments are formed, Governments are defeated, Prime Ministers come and go. Ministers come and go, but you stay on, and, therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader - this is not your business ...While impressing this upon you on your side, I wish also to take the opportunity of impressing upon our leaders and politicians in the same way that if they ever try to interfere with you and bring political pressure to bear upon you, which leads to nothing but corruption, bribery and nepotism - which is a horrible disease and for which not only your Province but others too, are suffering - if they try and interfere with you in this way, I say, they are doing nothing but disservice to Pakistan.[1]

1. For the above reasons, the impugned recruitment and appointment of candidates to the posts of ALM, Meter Readers, Commercial Assistants and Naib Qasids by FESCO is declared to be unconstitutional, illegal, without lawful authority and therefore set aside. All the said posts shall be deemed to be vacant and filled again in terms of this judgment and the Recruitment Policy of WAPDA unless the same is lawfully amended or modified by PEPCO or FESCO.

2. From the above facts and the record placed before this Court it is clear that the PEPCO and FESCO have played fraud with the legitimate expectations of hundreds of people who innocently applied desiring a decent lawful employment. However, instead of carrying out transparent recruitment process and giving meaningful employment to the youth of this country, these institutions failed to perform their public duty and have abused the public trust reposed in them by the people of Pakistan. This calls for strict accountability of the public functionaries involved in the process including the Board Members of PEPCO and FESCO who seem to have taken no note of this large-scale breach of trust. I, therefore, direct Chairman WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of this unlawful recruitment process. Chairman, WAPDA shall also hear and incorporate the views of the candidates who were rejected as well as the ones whose appointment has been set aside through this judgment. This report shall be placed before this Court within five months from today.

3. Office is directed to place the Report before this Court on the judicial side as a REPORT CASE.

4. For the above reasons, these petitions are allowed with costs of Rs. 10,000/- per petitioner, which shall be paid equally by PEPCO and FESCO within a month from today.

Sd/- Syed Mansoor Ali Shah Judge

SCHEDULE A

Sr. # Writ Petition No. Title

1. W.P. No. 14921/2010 Syed Muhammad Waris Shah vs. WAPDA etc.

2. W.P. No. 6212/2010 Muhammad Mushtaq vs. WAPDA etc.

3. W.P. No. 6214/2010 Abdul Wahed Khan vs. WAPDA etc.

4. W.P. No. 6215/2010 Sikandar Hayat vs. WAPDA etc.

5. W.P. No. 6216/2010 Muhammad Nazir vs. WAPDA etc.

6. W.P. No. 6217/2010 Shujat Ali Shah vs. WAPDA etc.

7. W.P. No. 2693/2010 Aman Ullah vs. WAPDA etc.

8. W.P. No. 4985/2010 Hafiz Junaid Latif vs. WAPDA etc.

9. W.P. No. 4987/2010 Aamir Hayat Khan vs. WAPDA etc.

10. W.P. No. 4989/2010 Ghulam Abbas vs. WAPDA etc.

11. W.P. No. 4990/2010 Muhammad Rehan Faisal vs. WAPDA etc.

12. W.P. No. 4991/2010 Adnan Raza vs. WAPDA etc.

13. W.P. No. 4992/2010 Natiq Ali vs. WAPDA etc.

14. W.P. No. 4993/2010 Nazir Mukhtar vs. WAPDA etc.

15. W.P. No. 4994/2010 Muhammad Saqib vs. WAPDA etc.

16. W.P. No. 4995/2010 Muhammad Kamran Shehzad vs. WAPDA etc.

17. W.P. No. 4996/2010 Sajid Khan vs. WAPDA etc.

18. W.P. No. 4997/2010 Muhammad Amjad vs. WAPDA etc.

19. W.P. No. 6794/2010 Muhammad Afzal vs. WAPDA etc.

20. W.P. No. 6795/2010 Basit Saeed vs. WAPDA etc.

21. W.P. No. 6796/2010 Muhammad Asif Khan vs. WAPDA etc.

22. W.P. No. 6798/2010 Saqib Javid etc. vs. WAPDA etc.

23. W.P. No. 6799/2010 Zulqarnain vs. WAPDA etc.

24. W.P. No. 6800/2010 Muhammad Mumtaz vs. WAPDA etc.

25. W.P. No. 6801/2010 Shahid Amin vs. WAPDA etc.

26. W.P. No. 8455/2010 Muhammad Saleem vs. WAPDA etc.

27. W.P. No. 8456/2010 Zafar Iqbal vs. WAPDA etc.

28. W.P. No. 8457/2010 Zafar Hayat vs. WAPDA etc.

29. W.P. No. 8459/2010 Ghulam Jaffar vs. WAPDA etc.

30. W.P. No. 8460/2010 Mujahid Hussain vs. WAPDA etc.

31. W.P. No. 8461/2010 Muhammad Imran vs. WAPDA etc.

32. W.P. No. 8463/2010 Muhammad Waris vs. WAPDA etc.

33. W.P. No. 8559/2010 Hafiz Muhammad Azam vs. WAPDA etc.

34. W.P. No. 5831/2010 Shahid Waheed vs. Govt. of Pakistan etc.

35. W.P. No. 6717/2010 Rehan Ali vs. Govt. of Pakistan etc.

36. W.P. No. 11901/2010 Muhammad Farooq vs. WAPDA etc.

37. W.P. No. 11902/2010 Hadayat Ullah Khan vs. WAPDA etc.

38. W.P. No. 11903/2010 Muhammad Farooq vs. WAPDA etc.

39. W.P. No. 11905/2010 Muhammad Hayat Khan vs. WAPDA etc.

40. W.P. No. 11907/2010 Sikandar Hayat vs. WAPDA etc.

41. W.P. No. 11908/2010 Sikandar Hayat vs. WAPDA etc.

42. W.P. No. 11910/2010 Zulfiqar vs. WAPDA etc.

43. W.P. No. 11911/2010 Sana Ullah vs. WAPDA etc.

44. W.P. No. 11912/2010 Muhammad Saleem vs. WAPDA etc.

45. W.P. No. 11913/2010 Azam Hussain vs. WAPDA etc.

46. W.P. No. 11916/2010 Hadayat Ullah Khan vs. WAPDA etc.

47. W.P. No. 11917/2010 Muhammad Nazir vs. WAPDA etc.

48. W.P. No. 11942/2010 Kamran vs. WAPDA etc.

49. W.P. No. 14922/2010 Rizwan Qamar vs. WAPDA etc.

(R.A.) Petitions allowed.

[1]. [Informal talk to Civil Officers at Government House, Peshawar 14-4-1948 from Jinnah - Speeches and Statements 1947-1948- Oxford].

PLJ 2011 Lahore 635 [Multan Bench Multan]

Present: Ch. Muhammad Tariq, J.

AHMAD SAEED--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others--Respondents

W.P. No. 995 of 2011, decided on 27.1.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Ejectment petition was filed on ground of rent default and the ground that period of tenancy had expired--Denied the execution of agreement to sell--Occupied the suit property as tenant--Thereafter he cannot be allowed to deny the relationship of landlord and tenant when the landlord had denied the execution of agreement to sell--A tenant can not be allowed to retain his possession simply on ground of agreement to sell when landlord deny the execution of agreement to sell. [P. 637] A

Ejectment Petition--

----Execution of agreement to sell--Eviction on ground of rent default and period of tenancy had expired--Denied the relationship of landlord and tenant--Not denied that petitioner entered into premises and occupied the possession as a tenant--Validity--Execution of agreement to sell by landlord without termination of relationship of landlord and tenant does not absolve the tenant from paying the rent because once a tenant admits title of his landlord could not subsequently deny the same. [P. 637] B

Qazi Mansoor Ahmad, Advocate for Petitioner.

Date of hearing: 27.1.2011

Order

This writ petition has been directed against the judgment dated 17.1.2011 passed by the learned Additional District Judge, Multan.

1. Brief facts of the case are that Respondents No. 3 and 3-A filed an eviction petition against the petitioner with regard to suit property fully described in the head-note of eviction petition in which it was alleged that Respondents No. 3 and 3-A were owners of property through exchange deed No. 5042/1 executed on 29.3.1982. It was rented out through a written agreement on 18.5.1999 to the petitioner. The terms and conditions were settled in the written agreement. The landlords filed an eviction petition on the ground of rent default and also on the ground that the period of tenancy has expireds. He further alleged that the petitioner/tenant has used the premises in a manner which has impaired its value.

2. The petitioner/tenant was summoned who filed an application for leave to contest and denied the relationship of landlord and tenant on the ground that the petitioner has purchased the suit property on 21.11.2008 through an agreement to sell. Thereafter the relationship of landlord and tenant does not exist between the parties.

3. The matter was heard and perused by the Special Judge (Rent), Multan who vide his order dated 12.6.2010 accepted the eviction petition and directed the petitioner to handover the possession of premises within thirty days from the announcement of order.

4. Feeling dissatisfied, the petitioner filed an appeal which was also dismissed on 17.1.2011 by the learned Additional District Judge, Multan, hence this writ petition.

5. Learned counsel for the petitioner contends that he has purchased the suit property on 21.11.2008 through an agreement to sell duly signed by the landlord, petitioner and the witnesses. There is no relationship of landlord and tenant between the parties after 21.11.2008 when the agreement to sell was executed but both the Courts below have neither considered the agreement to sell nor the payment of Rs. 20,00,000/- which was made to respondents on account of earnest money. He has further contended that the petitioner has already filed a suit for specific performance of agreement to sell which is pending before the competent Court for adjudication, therefore, writ petition be allowed, impugned judgments/orders passed by both the Courts below be set aside and the eviction petition against the petitioner be dismissed.

6. Arguments heard. Record perused.

7. The petitioner claims that he has purchased the suit property from one Mst. Azizan Begum and has become a co-sharer of the suit property which is comprising of a number of small rooms. The suit property is a joint property between the petitioner and answering respondent. In this regard, both the Courts below have held that the property which was purchased from Mst. Azizan Begum is a separate property. Without going into controversial question that who is owner of property at present, important document for the disposal of this writ petition is the written agreement which was executed between the landlords and the tenant/petitioner. There is no cavil in it that the petitioner occupied the suit property as tenant. Thereafter he cannot be allowed to deny the relationship of landlord and tenant particularly when the landlord has denied the execution of agreement to sell. A tenant could not be allowed to retain his possession simply on the ground of agreement to sell particularly when the landlord deny the execution of agreement to sell. It is also not denied that the petitioner entered into premises and occupied the possession a tenant. Execution of agreement to sell by a landlord without termination of relationship of landlord and tenant does not absolve the tenant from paying the rent because once a tenant admits title of his landlord could not subsequently deny the same. The judgments/orders passed by both the Courts below are well reasoned and elaborate orders. Learned counsel for the petitioner has failed to point out any illegality, jurisdictional error or infirmity in the impugned judgments. No interference is called for. Writ petition is without any substance, same is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 637

Present: Syed Kazim Raza Shamsi, J.

MUHAMMAD AZAM BAJWA--Appellant

versus

WALI ULLAH GHAZANVI and another--Respondents

S.A.O. No. 01 of 2011, heard on 24.5.2011.

Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

----Ss. 13(6) & 5-A--Ejectment petition--Direction to deposit of rent--Appellant failed to comply with order by not depositing the increased rent u/S. 5-A of Ordinance, 1959--According to provision of S. 5-A tenant was required to increase the rent automatically at rate of 25% after lapse of every three years--Appellant did not increase the rent nor paid same to respondent when his order of eviction was recorded as period of three years had lapsed--On failure of tenant to comply with direction of Rent Controller recorded u/S. 13-A, the Court has to proceed forth with and record the final order immediately--Appellant was allowed two months time for handing over the vacant possession of rented premises to respondent--Appeal was dismissed. [P. 639] A, B & C

Haji Abdul Waheed Butt, Advocate for Appellant.

M/s. Rai Shahid Saleem and Muhammad Hamad Munir, Advocates for Respondents.

Date of hearing: 24.5.2011.

Judgment

This second rent appeal is directed against the order dated 26.11.2010 passed by Mr. Aziz Ullah, learned Additional District Judge, Lahore whereby the order of eviction passed against the appellant on 19.5.2010 by Raja Jahanzaib Akhtar, learned Special Judge Rent, Lahore was maintained.

1. The respondent instituted petition under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 on various grounds which was contested and the learned Rent Controller on 13.10.2006 passed an order under Section 13(6) of the said Ordinance (ibid) directing the respondent to deposit the rent from January, 2005 to onward at the rate of Rs. 10,373/- per month and also past rent from January, 2005 to September, 2006 total amount of Rs. 1,96,087/- before the next date of hearing and further directed that under Section 5-A of the said Ordinance, the automatic increase in the payment of rent at the rate of Rs. 25/- shall be paid in accordance with law. Later on, the appellant failed to comply with the direction of the learned Rent Controller who proceeded to pass an eviction order on 19.5.2010 which order was maintained by the learned first appellate Court vide impugned order. Both the orders have been assailed in the instant appeal.

2. Learned counsel for the appellant contended that the respondent had amended his ejectment petition with the permission of the Court by which whole complexion of the ejectment petition was changed but no right to file the amended reply was granted to the appellant; that an Issue No. 1 regarding default was framed by the trial Court thus, the eviction of the appellant without recording evidence on the said issue could not be passed and that both the Courts below did not apply their judicial mind to the facts and circumstances of the case.

3. In rebuttal, the learned counsel for the respondent stated that the appellant failed to comply with the orders of the learned Rent Controller dated 13.10.2006 by not depositing the increased rent under Section 5-A of the Ordinance as directed in the said order as well as the rent for the period from January, 2005 to January, 2008 was also not properly complied with, as such, the orders of eviction recorded by the learned Rent Tribunal and maintained by the learned first appellant Court are proper and in accordance with law.

4. The submissions made by the learned counsel for the parties have been considered and record has been examined.

5. It is not a question of amendment of the ejectment petition and refusal to grant opportunity to file amended reply. It is a matter of the compliance of the order of the Court dated 13.10.2006. The learned Rent Controller had candidly directed the appellant to deposit arrears of rent amounting to Rs. 1,96,087/- for the period of January, 2005 to onwards and also to pay the increased rent under Section 5-A of the Ordinance (ibid). The appellant did not comply with the direction and thus, face the eviction order According to the provision of Section 5-A added through Ordinance VIII of 1990, the tenant was required to increase the rent automatically at the rate of 25 % after lapse of every three years. The appellant did not increase the rent nor paid the same to the respondent till 19.5.2010 when his order of eviction was recorded as period of three years had lapse in January, 2008 (fresh period of three years has also elapsed in January, 2011) where-after as per direction of the Rent Controller it has to be increased at the rate of 25 % and is to be paid to the respondent. According to the language used in Section 13-A of the Ordinance, on failure of the tenant to comply with the direction of the Rent Controller recorded under said section, the Court has to proceed forthwith and record the order immediately. In view of this legal position, the Court had rightly proceeded forthwith on noticing that the order dated 13.10.2006 was not complied with in its letter and spirit which order does not suffer from any illegality. Similarly, the learned first appellate Court did not commit any illegality by maintaining the order of the learned Rent Controller. The orders are accordingly maintained as such.

6. For the foregoing reasons, the appeal is dismissed having no merit with costs. The appellant is allowed two months time for handing over the vacant possession of the rented premises to the respondents.

(R.A.) Appeal dismissed.

PLJ 2011 Lahore 639 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

RASHEED AHMAD KHAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAYYAH and 2 others--Respondents

W.P. No. 760 of 2011, decided on 24.1.2011.

Limitation Act, 1908 (IX of 1908)--

----Art. 120--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintenance allowance can only be claimed for a period not more than three years--Maintenance allowance was allowed by trial Court for a period of last 4 years--Validity--No period of limitation is provided under Limitation Act, for filing of a suit for maintenance allowance and to that eventuality Art. 120 of Limitation Act, is applicable, which provides six years limitation for filing of any suit wherein for filing of any suit no limitation is provided--Petition was dismissed. [P. 642] A

PLD 1972 SC 302, 1990 CLC 934, 1993 Lah. 810, ref.

Syed Mumtaz Ahmad Gillani, Advocate for Petitioner.

Date of hearing: 24.1.2011.

Order

Respondent No. 3/Mst. Rashida d/o. Qadir Ahmad Khan filed suit for recovery of past and future maintenance allowance @ Rs. 8,000/- per month, recovery of dowry articles as well as recovery of dower on 21.8.2009 mentioning the facts that she was married with petitioner-defendant on 15.3.2001 and she resided with him; that subsequently petitioner-defendant went abroad and did not provide her maintenance allowance for the last about 4 years. Suit was resisted by the petitioner-defendant through his Attorney/brother Naeem Ahmad Khan/DW-2, who filed written statement controverting the factual as well as legal aspects of the suit filed by Respondent No. 3.

1. Learned trial Court framed issues. Issue No. 1 whether the plaintiff is entitled to recovery maintenance allowance, from the defendant, @ Rs. 8,000/- per month for the last four years and for future at the same rate, was framed in respect of the controversy about the maintenance allowance as sought by the respondent. This issue after recording the evidence was decided by learned trial Court vide judgment & decree dated 22.7.2010 in favour of Respondent No. 3 and a decree was passed for recovery of maintenance allowance @ Rs. 8,000/- w.e.f 21.7.2005 till the expiry of period of Iddat as immediately after filing the suit for dissolution of marriage petitioner-defendant divorced her. Petitioner-defendant filed an appeal and vide impugned judgment & decree dated 24.11.2010 learned appellate Court/Respondent No. 1 upheld the judgment & decree passed by learned trial Court on Issue No. 1 i.e. the provision of maintenance allowance to Respondent No. 3. Feeling aggrieved petitioner-defendant has preferred this writ petition only to challenge the controversy about the maintenance allowance.

2. Learned counsel for the petitioner argued that according to Muhammadan Law a wife only can claim maintenance allowance after divorce for the period of "Iddat"; that past maintenance allowance only can be granted for a period of three years; that petitioner produced overwhelming evidence including the bank account record showing that petitioner had been paying the maintenance allowance to Respondent No. 3. In this respect learned counsel referred Annexure-H a letter sent by the Deputy Superintendent, GPO, Layyah to Respondent No. 3 showing the status of her account maintained in the post office. On the basis of said letter it was argued that it shows that petitioner had been paying maintenance allowance to Respondent No. 3. However, it was pointed out by learned counsel for the petitioner that this letter/statement of account could not be brought on record during the trial as well as at appellate level. It was further argued that a disobedient wife like Respondent No. 3 is not entitled to recover maintenance allowance under Muhammadan Law; that there was no evidence available on record before the learned trial Court as well as Appellate Court to calculate for the fixation of Rs. 8,000/- per month as maintenance allowance for Respondent No. 3; that both the learned Courts below did not appreciate the evidence rather their findings are result of misreading and nonreading of evidence available on record. Prayed that this writ petition be admitted for regular hearing.

3. I have considered the arguments addressed by learned counsel for the petitioner at limine stage and have gone through the record.

4. Petitioner has challenged findings of learned trial as well as appellate Courts passed on Issue No. 1 relating to the provisions of maintenance allowance to Respondent No. 3. Respondent No. 3 Rashida herself appeared as PW-1 and she examined Pervaiz Ahmad son of Nazir Ahmad Khan as PW-2. On the other hand, mother of the petitioner-defendant Mst. Hameeda Khatoon appeared as DW-1 while his real brother Naeem Ahmad Khan appeared as DW-2 as his attorney. Learned trial Court as well as appellate Court has discussed evidence of both sides while deciding Issue No. 1 in favour of Respondent No. 3. If the statement of DW-1 is seen, she herself has admitted that petitioner-defendant was earning Rs. 80,000/- to Rs. 85,000/- per month while working at Portugal. Admittedly, through out the period of this marriage petitioner-defendant remained apart and it is admitted that he left behind Respondent No. 3 in the year 2005 and during that period only twice he visited Pakistan. Learned trial as well as appellate Court have thrashed out all these factual aspects and passed findings on Issue No. 1 against the petitioner whereby Respondent No. 3 was provided maintenance allowance @ Rs. 8,000/- for a period of past four years since filing the suit as well as future maintenance allowance till the expiry of Iddat period. There is no justification brought on record nor argued to unsettle these factual controversies while exercising extra ordinary writ jurisdiction by this Court at this stage. The document referred as Annexure-H with the writ petition was never produced before the learned trial Court nor appellate Court and even otherwise it is a letter sent to Respondent No. 3 by the Post Office concerned whereby her status of account was informed and this document itself is not sufficient to prove if any maintenance allowance was ever provided by the petitioner to Respondent No. 3 and what was the source of that account, therefore, this argument is also of no avail to the petitioner.

5. As far as the argument raised by learned counsel for the petitioner that as maintenance allowance in this case has been provided by the learned trial Court for a period of last 4 years and it can only be claimed for a period not more than three years, this arguments is also of no avail. Admittedly, no period of limitation is provided under the Limitation Act for filing of a suit for maintenance allowance and in that eventuality Article 120 of Limitation Act is applicable, which provides six years limitation for filing of any suit wherein for filing of any suit no limitation is provided. Reference can be seen 1990 CLC 934 (Muhammad Aslam Vs. Zainab Bibi and three others), PLD 1993 Lahore 810 (Syed Mudassar Altaf Vs. Deputy Commissioner/Collector Lahore) and PLD 1972 Supreme Court 302 (Muhammad Nawaz Vs. Khursheed Begum and three others). For what has been discussed above, this writ petition being without any merit is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 642 [Bahawalpur Bench Bahawalpur]

Present: Muhammad Qasim Khan, J.

Mst. YASMEEN BEGUM--Petitioner

versus

TECHNICAL EDUCATION & VOCATIONAL TRAINING AUTHORITY, GOVERNMENT OF PUNJAB, LAHORE through its Chairman and 3 others--Respondents

W.P. No. 510 of 2006, decided on 26.1.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Recruitment process--Principle of locus poenitentiae--Audi alteram partem--Treated discriminately--Removal from service--No show-cause notice--Validity--When some employee is removed from service even on the allegation that their recruitment was illegal and they did not possess the required criteria, would it not amount to imposing a stigma on his service career and in such circumstances whether such employee was not required to be served with show-cause notice before passing an adverse order--Impugned action had ben taken by respondent without issuing any show-cause notice, nor they had been given opportunity of hearing as such same being violative of principle of audi alteram partem--Petitions were allowed. [P. 644] A & B

M/s. Shamshair Iqbal Chughtai and Syed Masood Ahmad Gillani, Advocates for Petitioner.

Malik Muhammad Mumtaz Akhtar, Additional Advocate General with Zafar Hayat Assistant Manager (Legal) TEVTA, Bahawalpur for Respondents.

Date of hearing: 26.1.2011.

Order

This single order shall dispose of three matters i.e. W.P.No. 510/2006 "Mst. Yasmeen Begum vs. General Manager Tevta", W.P. No. 3125/2006 "Syeda Naurin Gilani vs. Tevta" and W.P. No. 1564/2006 "Asma Noureen vs. Tevta", as all these arise out of almost similar facts and circumstances.

1. Briefly the facts are that, pursuant to advertisement for recruitment against vacant seats of different categories the petitioners also submitted their candidatures and after going through the entire recruitment process, Mst. Yasmeen Begum (petitioner in W.P.No. 510/2006) was appointed as Junior Trade Instructor (Beautician), Mst. Syed Noureen Gillani (petitioner in W.P. No. 3125/2006) was appointed as Junior Trade Instructor (Sewing) and Mst. Asma Noureen (petitioner in W.P. No. 1564/2006) was issued appointment letter as Junior Trade Instructor (Tailoring). Pursuant to their respective appointment letters, all the three petitioners individually joined their places of postings against their specific posts. Subsequently anyhow the General Manager (Operations)/respondent issued a letter Bearing No. TEVTA/G.M(O)/ DM/13 dated 11th of February, 2006 with the subject "INDUCTION OF STAFF" and directed the District Manager, Bahawalpur/Lodhran as under:

"You are required to advertise the under mentioned posts forthwith. However, staff already working against these posts, will continue to work until the fresh injunction is made. They will also be allowed to allowed to compete provided they are eligible under the rules"

This letter has been impugned through these writ petitions on the ground that petitioners fulfilled the requisite criteria and after going through the entire recruitment process, they were validly issued appointment letters and they also joined their respective places of postings, whereas, by way of impugned letter the petitioners were intended to be thrown out of job without assigning any reasons whatsoever, whereas, the petitioners were protected by the principle of locus poenitentiae. Further it is argued that impugned action of the respondent is also violative of principle of audi alteram partem and further more the petitioners have also been treated discriminately as forty four appointments were made against different posts but only the posts of twenty five persons (including the petitioners) were sought to be re-advertised. It is next argued that petitioners have been victimized just for the reason that they had approached this Court in these writ petitions and were working on an injunctive order.

1. The learned Additional Advocate General on the other hand argued that petitioners were appointed on contract basis, as such, they could not file writ petitions. Further argued that one of the petitioners did not hold the diploma of three years, which was basic requirement for appointment. When this query was put to the official of the respondent present before the Court he remained unable to produce any documentary proof about requirement of such diploma. The learned Law Officer contended that there were numerous complaints about recruitment process by District Manager, Bahawalpur, a proper inquiry was held and Committee held that twenty nine appointments were illegal and irregular, therefore, action was taken for issuance of fresh recruitment process.

2. Heard. Record perused.

3. On Court query from the learned Additional Advocate General and the official of the respondents present before the Court that when some employee is removed from service even on the allegation that their recruitment was illegal and they did not posses the required criteria, would it not amount to imposing a stigma on his service career and in such circumstances whether such employee is not required to be served with show cause notice before passing an adverse order, they remained unable to come up with any rebuttal and Assistant Manager (Legal)/representative of the department in clear terms stated that respondent department would be ready to proceed against the petitioners afresh by adopting all the legal formalities. The learned Additional Advocate General also came forward with the stance that these matters may be disposed of in the light of above statement made on behalf of the official respondents. In any way, as the impugned action has been taken by the respondent without issuing any show cause notice to the petitioners, nor they have been given opportunity of hearing, as such, the same being violative of principle of audi alteram partem, these writ petitions are allowed and the impugned letter dated 11.02.2006 to the extent of these petitioners is set-aside. The respondents may however, if so advised, proceed against the petitioners afresh, of course strictly in accordance with law.

(R.A.) Petitions allowed.

PLJ 2011 Lahore 645

Present: Syed Mansoor Ali Shah, J.

RIAZ JAVAID--Petitioner

versus

SHERAZ AHMED and 4 others--Respondents

W.P. No. 49 of 2010, decided on 13.8.2010.

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

----S. 5--Muslim Family Law Ordinance, 1961--Scope of--Constitution of Pakistan, 1973--Art. 260(3)(b)--Muslim Family Laws Ordinance, 1961, is not applicable to non-muslims--Question of jurisdiction to entertain the matters of non-muslim--Preliminary objection of jurisdiction--Suit for maintenance, dower, dowry article, dissolution of marriage--Religion neutral--Fiqa Ahmadia--Conflict between two laws--Validity--In case of conflict between two laws one law would prevail over the other--In case of conflict between MFLO and the Act--MFLO will prevail--"Subject to" clause appearing in S. 5 of the "Act" is only operative when conflict arises between M.F.L.O. and the Act--Held: MFLO applies only to muslims as has been clearly provided in S. 2 (1) of the Muslim Family Law Ordinance which provides the MFLO extends to whole of Pakistan and applies to Muslim citizen--Family Courts established under the Act, 1964 embraces personal laws of all religions and can entertain causes relating to matters in Para 1 of Schedule to Act, 1964 which include matters pertaining to non-muslims (including (Ahmadies) as well as matters which arises out of non-codified personal law--Petition was dismissed. [Pp. 649 & 650] A, B, C & E

1976 1 SCC 468, 1991 SCMR 681, 1986 4 SCC 447, AIR 1964 SC 207 & PLD 1982 FSC 48, rel.

Personal Law--

----Ahmadies have been agitating their matters pertaining to their personal law before family Courts. [P. 650] D

1996 CLC 1963, 1998 SCMR 816, 1981 CLC 195, PLD 2005 Kar. 334, PLD 1985 Kar. 362, PLD 1998 Kar. 42, 1977 Lah. 836 & PLD 1971 Kar. 887 rel.

Mr. Aurangzeb Chaudhry, Advocate for Petitioner.

Rana Tariq Javaid, Mirza Mehmood Ahmed and Mr. Salman Akram Raja, Advocates amicus curiae for Respondents.

Date of hearing: 4.3.2010.

Judgment

Brief facts are that Respondents No. 1 to 4 filed a suit for maintenance, dower, dowry articles, dissolution of marriage and visitation before the Judge Family Court, Sialkot. The petitioner took a preliminary objection regarding jurisdiction before the said Court in his written statement. The precise preliminary objection is that the learned Family Court under Section 5 of the West Pakistan Family Courts Act, 1964 ("Act") has no jurisdiction to entertain the matters of non-Muslims.

1. On 19.1.2010 Mirza Adeel Ahmed, Advocate was invited as amicus curiae. He submitted that Muslim Family Laws Ordinance, 1961 ("MFLO") is not applicable to non-Muslims and reference was made to Article 260(3)(b) of the Constitution of Islamic Republic of Pakistan, 1973, wherein non-Muslim are defined which includes Ahmadies. For this he placed reliance on Mst. Farida Malik and others vs. Dr. Khalida Malik and others (1998 SCMR 816), Farah Chaudhry v. Shahid Mahmood Malik (2005 YLR 29), Muhammad Rasheed Ahmed vs. Nusrat Jehan Begum (1986 MLD 1010) and Amjad Khan Yousufzai and another vs. Arshad Khan and others (2009 CLC 1057).

2. On the question of jurisdiction under Section 5 of the "Act", he submitted that it extends to non-Muslims also and that the said provision is religion neutral. He placed reliance on Naeem Ahmed vs. Mst. Nuzhat Almas and 2 others (1981 CLC 195) and Mubbasher Ahmed vs. Talat Khurshid and others (1996 CLC 1963).

3. Counsel for the petitioner submitted that in the cases of Ahmdies they have an option to approach "Dar-ul-Qaza" under the Fiqa Ahmadia and submits that the respondents should have opted for the said procedure. He relied on Ahmed vs. Mehr Khan (PLD 1982 FSC 48) and Mubbasher Ahmed vs. Talat Khurshid (1996 CLC 1963).

4. After hearing the submissions of the petitioners as well as amicus curiae and after going through the case law cited, this Court found that two important questions of public important arise in the case:--

(i) The meaning and scope of "subject to the provisions of Muslim Family Law Ordinance, 1961" in Section 5 of the Family Courts Act, 1964. Does it, therefore, restrict jurisdiction to matters cover under the Muslim Family Law Ordinance, 1961 or does it allow matters belonging to other religions/personal laws to be entertained by the Family Court which is a Court of special jurisdiction.

(ii) If the personal law of the parties is not codified as in the case of Ahmadies (instant case), can the matter be heard by the Family Court?

1. For this purpose the Court appointed Mirza Mahmood Ahmed, Advocate and Salman Akram Raja, Advocate as amicus curiae.

2. Mirza Mahmood Ahmed, amicus curiae, submits that the "Act" is religion neutral and is open to all the faiths and this matter has already been resolved in the earlier judgments and referred to Mubbasher Ahmed vs. Talat Khurshid (1996 CLC 1963), Mst. Farida Malik and others vs. Dr. Khalida Malik and others (1998 SCMR 816), Naeem Ahmed vs. Mst. Nuzhat Almas and 2 others (1981 CLC 195), Jagsi vs. Shr. Marwan and another (PLD 2005 Karachi 334), Mulchand vs. Smt. INDRA and others (PLD 1985 Karachi 362), Ramdas vs. Mst. Bernadat (PLD 1998 Karachi 42), Safdar Bhatti vs. Mst. Rozi Jan (PLD 1977 Lahore 836) and Mrs. Daphne Joseph vs. Malik Eric Roshan Khan (PLD 1971 Karachi 887).

3. On the question of jurisdiction of the Family Court being "subject to" "MFLO" he submits that the jurisdiction of the Court only in cases of Muslims is subject to "MFLO" but not for non-Muslims and therefore, the jurisdiction of the Family Court is not affected by the subjection clause mentioned above.

4. Mr. Salman Akram Raja, Advocate, the learned amicus curiae, submitted that generically the statutes have three broad linkages between other statutes. The said categories are non-obstante clause, subjection clause or where the statutes are silent and the principle of special law versus general law applies. In the present case, the "Act" and "MFLO" are linked through a "subjection clause". He submitted that the subjection clause is in contradistinction to the non-obstante clause. The purpose of a "subjection clause" is that in case of conflict between the two laws, the law which is made subject to the other law will yield to the primary law. Therefore, "subjection clause" is only to resolve conflicts, if any, and in no manner abridges the jurisdiction of the Court unless there is conflict relating to jurisdiction between the two statues. He placed reliance on Kerala State Electricity Board vs. M/s. Midland Rubber & Produce Co. Ltd. And another (1976) 1 SCC 468), Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447), South India Corporation (P.) Ltd. V. Secretary, Board of Revenue, Trivandrum and another (AIR 1964 SC 207), C & J Clark Ltd. v. Inland Revenue Comrs (1973) 2 All ER 513 and Masood Ahmad Malik vs. Mst. Fouzia Farhana Quddus (1991 SCMR 681).

5. On the second question the learned amicus submits that absence of codification of law is not relevant. Even under Islamic Sharia certain areas have not been codified but the same have been enforced through the Family Court and he referred to Haji Nizam Khan v. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930) to reinforce this contention.

6. Counsel for Respondents No. 1 to 4 adopted the arguments of the learned amicus curiae.

7. Arguments heard. Record perused.

8. The first question is to determine the meaning of the term "subject to" employed in Section 5(1) of the Act. For ready reference, Section 5(1) is reproduced hereunder:--

"5. JURISDICTION.--(1) Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part of the Schedule."

1. The august Supreme Court of Pakistan in Masood Ahmad Malik vs. Mst. Fouzia Farhana Quddus (1991 SCMR 681) has held that in case of inconsistency between "MFLO" and the "Act", the provisions of "MFLO" will prevail and shall be given effect to. Nasim Hasan Shah, J. speaking for the Bench in the above precedent held:--

"The High Court, as stated already, has taken the view that the Family Court was precluded from exercising jurisdiction in the matter because even though it had the exclusive jurisdiction to entertain suits relating, inter alia, to jactitation of marriage under Section 5 of the Act, this jurisdiction was subject to the provisions of the Muslim Family Laws Ordinance, 1961. But since the provisions of this Ordinance were applicable only to all Muslim citizens of Pakistan and because this condition was not satisfied in the instant case (the parties not being citizens of Pakistan) the Family Court could not entertain the suit. The view taken by the High Court, therefore, seems to have been formed on account of the words "subject to the provisions of the Family Laws Ordinance, 1961" employed in Section 5 of the Family Courts Act, 1964 and it is these words that have led the High Court to think that jurisdiction under the said Act can be exercised only in a case where the parties are "Muslim citizens of Pakistan" and in no other case. This view does not appear to be correct.

A close examination of the provisions of the Family Courts Act, 1964 and those of the Muslim Family Laws Ordinance, 1961 shows that they do not operate exactly in the same field and that the scope of the Family Courts Act, 1964 is wider than that of the Muslim Family Laws Ordinance, 1961. In our view, the affect of the words in Section 5 that the Family Courts shall have the jurisdiction to entertain suits relating to dissolution of marriage, jactitation of marriage etc. but subject to the provisions of the Muslim Family Laws Ordinance, 1961 imply only that where there is an inconsistency between Muslim Family Laws Ordinance, 1961 and the Family Courts Act, 1964, the provisions of the Muslim Family Laws Ordinance will prevail and shall be given effect to in their pristine form and no more. They do not have any other effect and the provisions of other laws are not affected thereby. Accordingly, suits of this nature filed by the parties other than Muslim citizens of Pakistan if otherwise competent under any other law can be entertained but will be heard and tried not in accordance with the provisions of the Muslim Family Laws Ordinance but by the proper law applicable to them."

1. "Subject to" clause simply means that in case of conflict between the two laws, one law would prevail over the other. In the present case, in case of conflict between "MFLO" and the "Act", "MFLO" will prevail. Reliance is placed on Kerala State Electricity Board vs. M/s. Midland Rubber & Produce Co. Ltd. and another (1976) 1 SCC 468), Masood Ahmed Malik vs. Mst. Fouzia Farhana Quddus (1991 SCMR 681), Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447, South India Corporation (P.) Ltd. V. Secretary, Board of Revenue, Trivandrum and another (AIR 1964 SC 207). In C & J Clark Ltd v. Inland Revenue Comrs [1973] 2 All ER 513, Megarry, J held:--

"In my judgment, the phrase "subject to" is a simple provision which merely subjects the provisions of the subject sub-sections to the provisions of the master sub-sections. Where there is no clash, the phrase does nothing: if there is collusion, the phrase shows what is to prevail."

Therefore, it is clear that the "subject to" clause appearing in Section 5 of the "Act" is only operative when conflict arises between "MFLO" and the "Act".

1. It is settled position that "MFLO" applies only to Muslims as has been clearly provided in Section 1 Sub-section (2) of the said Ordinance which provides that the said Ordinance extends to the whole of Pakistan and applies to Muslim citizens of Pakistan. Reliance is placed on Ahmed vs. Mehr Khan (PLD 1982 FSC 48).

2. Therefore, for cases pertaining to non-Muslims, the "subject to" clause in Section 5 has no relevance whatsoever because "MFLO" does not apply to non-Muslims and, therefore, there can be no possible conflict between "MFLO" and the "Act" in the cases of non-Muslims. Section 5 can, therefore, be read in the following manner for the non-Muslims:--

"Section 5(1)......., the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule."

1. It has been the settled position that Ahmadies have been agitating their matters pertaining to their Personal Law before the Family Courts. Reliance is placed on Mubbasher Ahmed vs. Talat Khurshid (1996 CLC 1963), Mst. Farida Malik and others vs. Dr. Khalida Malik and others (1998 SCMR 816), Naeem Ahmed vs. Mst. Nuzhat Almas and 2 others (1981 CLC 195), Jagsi vs. Shr. Marwan and another (PLD 2005 Karachi 334), Mulchand vs. Smt. Indra and others (PLD 1985 Karachi 362), Ramdas vs. Mst. Bernadat (PLD 1998 Karachi 42), Safdar Bhatti vs. Mst. Rozi Jan (PLD 1977 Lahore 836) and Mrs. Daphne Joseph vs. Malik Eric Roshan Khan (PLD 1971 Karachi 887).

2. In addition to Ahmadies, cases pertaining to other non-Muslims have been brought before the Family Courts under various Personal Laws, namely, Special Marriage Act 1872, Divorce Act, 1869, Christian Marriages Act, 1872, Parsi Marriages and Divorce Act, 1936, Native Converts Marriage Dissolution Act, 1866 and Anand Marriage Act, 1909. Reliance is placed on Mubbasher Ahmed vs. Talat Khurshid (1996 CLS 1963), Farah Chaudhry v. Shahid Mahmood Malik (2005 YLR 29), Muhammad Rasheed Ahmed vs. Nusrat Jehan Begum (1986 MLD 1010) and Naeem Ahmed vs. Mst. Nuzhat Almas and 2 others (1981 CLC 195).

3. Even in matters of non-codified Personal Law, matters pertaining to Part I of the Schedule have been taken up by the Family Courts. In case of Hindu Personal Law, reliance is placed on Jagsi vs. Shr. Marwan and another (PLD 2005 Karachi 334), Mulchand vs. Smt. Indra and others (PLD 1985 Karachi 362). In case of Christian Personal Law, reliance is placed on Masood Sadiq vs. Mst. Shazia (PLD 2008 Lahore 398), Ramdas vs. Mst. Bernadat (PLD 1998 Karachi 42) and Mst. Noreen Iqbal vs. Sohail Iqbal (2005 CLC 1472).

4. From the above, it is abundantly clear that the Family Courts established under the Act, 1964 embraces personal laws of all religions and can entertain causes relating to matters mentioned in Para-I of the Schedule to the said Act which include matters pertaining to non-Muslims (including Ahmadies) as well as matters which arise out of non-codified Personal Law.

5. For the above reasons, the suit will proceed before Judge Family Court, Sialkot. Impugned order dated 19.12.2009 of the/learned Judge Family Court, Sialkot is, therefore, maintained, and the instant petition is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 651

Present: Iqbal Hameed-ur-Rehman, J.

Rai IMTIAZ HASSAN (GOLD MEDALIST), TOWN OFFICER, (P&C) (LCS), LAHORE and another--Petitioners

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT & COMMUNITY DEVELOPMENT DEPARTMENT, CHAIRMAN, PUNJAB LOCAL GOVERNMENT BAORD, LAHORE--Respondent

W.P. No. 4804 of 2010, decided on 19.4.2010.

Punjab Employees Efficiency and Discipline Accountability Act, 2010--

----S. 6--Constitution of Pakistan, 1973, Arts. 4, 8 & 25--Fundamental rights--Not a civil servant--No concealment was made by petitioner--Applied for permission/NOC for further advancement of educational qualification for joining Ph.D Programme--After permission petitioner appeared in GRE test and secured highest marks--Being annoyed of filing of writ petition petitioner was transferred--Challenge to--Validity--At such stage of their studies, by transferring the petitioner to far off places, depriving the petitioners of their right of getting higher studies when their proposals had been accepted and supervisors had been appointed would amount to deprive the petitioners of their fundamental rights guaranteed under Constitution--Impugned order was unjustified and arbitrary and is to be illegal and void--Even if any inquiry was pending against the petitioner, respondent could suspend the petitioner u/S. 6 of PEEDA Act, instead of transferring the petitioner. [Pp. 654 & 655] A & B

M/s. Agha Abu-ul-Hassan Arif, Advocate and Ashfaq Ahmad Malik, Advocate for Petitioners.

Mr. Muhammad Azeem Malik, Addl. Advocate General for Respondent.

Date of hearing: 19.4.2010.

Order

The petitioners have filed the instant writ petition with the following prayer:--

"In view of the above, it is most respectfully prayed that this writ petition may kindly be accepted and the impugned order dated 08.03.2010 may be declared illegal, void, arbitrary, without lawful authority, without jurisdiction, of no legal effect and the same may be set aside and the petitioners may be allowed to work in TMA Samanabad Town and TMA Nishtar Town from where the petitioners were permitted to join their Ph.D Programme.

It is also prayed that the respondent may be directed to correct the order of reinstatement dated 19.01.2010 and treat the petitioners reinstated in service w.e.f. 7.1.2010 as the operation of the impugned order dated 7.1.2010 has been suspended by this Honourable Court.

It is also prayed that till the final decision of the writ petition the operation of the impugned order dated 08.03.2010 may be suspended and the petitioners may be allowed to work at TMA Samanabad and TMA Nishtar Town respectively."

1. The brief facts succinctly required for determination of this writ petition as stated by the petitioners are that the petitioners are not civil servants but they are servants of the Punjab Local Government Board Lahore and are governed under the Punjab Local Council Service (Appointment and Conditions of Service) Rule, 1983, thus, do not fall within the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It is further stated that the petitioners had earlier filed Writ Petition No. 448/2010, which has been admitted by this Court and through order dated 13.01.2010, the suspension order of the petitioners was suspended. It is stated that Petitioner No. 1 is M.Sc. (Gold Medalist) from University of Engineering & Technology, Lahore whereas Petitioner No. 2 is also M.Sc. Engineering from University of Engineering & Technology, Lahore, and on the basis of which both the petitioners had been granted permission/NOC by the respondent after due consideration to take admission in Ph.D Programme (Evening Classes) in the Department of City and Regional Planning at University of Engineering & Technology, Lahore. The said NOC certificates have been granted to the petitioners vide letter No. LCS (Engg-TP)-1/93-P DATED 11.02.2010 and letter No. LCS (Engg-TP)-S(9)/93 dated 24.02.2010. It is further stated that after the grant of permission/ NOC the petitioners after hard work appeared in GRE Test in the University of Engineering & Technology, Lahore and Petitioner No. 1 secured highest marks in GRE Test, which had been duly acknowledged as is apparent from the press clipping Annexures-D to D/3, whereafter, the petitioners joined the Ph.D Programme at the University of Engineering & Technology, Lahore and are proceeding with their higher studies. In this regard the petitioners have already submitted their Ph.D. Research Proposals. It is also submitted that the respondent had earlier suspended the petitioners and other officers which order had been duly challenged before this Court and vide order dated 07.01.2010, this Court suspended the said order vide order dated 13.01.2010 and in view of the same, the respondent had passed another order of reinstatement of the petitioners on 19.01.2010 with immediate effect and directed the petitioners to report to the Punjab Local Government Board. It is further stated that being annoyed of the filing of Writ Petition No. 448/2010 the respondent transferred the petitioners to TMA Bahawalpur and TMA Sadiqabad respectively vide order dated 08.03.2010 instead of recalling his order dated 07.01.2010 and reinstating the petitioners into service.

2. Learned counsel for the petitioners submit that the petitioners are being victimized and denied of their fundamental right of getting higher education even if any inquiry is pending against the petitioners, the respondent in those circumstances, under Section 6 of the PEEDA Act could put the petitioners under suspension but he could not have transferred the petitioners after the grant of permission/ NOC for their Ph.D Progamme; as such, the impugned order dated 08.03.2010 be struck down and this petition be allowed and the respondent be restrained from spoiling the education advancement of the petitioners in violation of the fundamental rights guaranteed under Articles 15,18 and 25 of the Constitution.

3. On the other hand, the learned Addl. Advocate General has vehemently opposed this petition and at the very outset states that the petitioners have not approached this Court with clean hands as in Para No. 2 of the petition, they have stated that they are not civil servants and are employees of the Punjab Local Government Board, Lahore adopted the contentions of the learned counsel for the respondent/Board. He further submits that the petitioners are not entitled to any discretionary relief; that the petitioners are governed by the PEEDA Act and as per the provisions of the PEEDA Act, this petition is maintainable before the Punjab Service Tribunal, hence; the petitioners have the alternate remedy of approaching the Service Tribunal. It is further stated that the impugned order dated 08.03.2010 is with regard to 12 persons; as such, the petitioners cannot claim that the same has been malafidely issued in a discriminatory manner against the petitioners. He further submitted that there is no proof with regard to the petitioners' joining the Ph.D Programme. It is the vested right of the respondents to transfer the petitioners.

4. In rebuttal, learned counsel for the petitioners submits that in para 2 of the petition, the petitioners have clearly stated that the petitioners are not civil servant, they are servant of the Punjab Local Government Board, Lahore and are governed under the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983; as such, no concealment has been made by the petitioners; as such, the bar under Article 212 of the Constitution would not deter this Court in striking down the illegal act on behalf of the respondent. The contention of the learned Addl. Advocate General, Punjab has no basis at all.

5. Arguments from the learned counsel for the petitioners as well as of the learned Addl. Advocate General, Punjab, pro and contra have been heard and the material made available on the record has been taken into consideration.

6. It is an admitted fact that both the petitioners had applied for permission/ NOC for further advancement of their educational qualification for joining the Ph.D Programme (Evening Classes) in the University of Engineering & Technology, Lahore, and on the making of applications to the respondent, both the petitioners have been duly accorded permission/NOC vide letter No. LCS(Engg-TP)-1/93-P DATED 11.02.2010 and Letter No. LCS (Engg-TP)-S(9)/93 dated 24.02.2010; thereafter, the petitioners appeared in GRE Test and secured highest marks in the said test. The petitioners have joined the Ph.D Programme and they have also submitted their Ph.D Research Proposals and not only the petitioners have incurred expenses in taking admission in the said programme after obtaining due permission/ NOC from the respondent; therefore, at this stage of their studies, by transferring the petitioners vide impugned order dated 08.03.2010 to far off places, i.e. Bahawalpur and Sadiqabad, depriving the petitioners of their right of getting higher studies when their proposals have been accepted and the supervisors have been appointed, would amount to deprive the petitioners of their fundamental rights guaranteed under the Constitution, therefore, the impugned order dated 08.03.2010 is unjustified and arbitrary and is to be considered to be illegal and void. In the case of Mrs. Abida Parveen Channar Vs. High Court of Sindh at Karachi (2009 SCMR 605), it has been held that "all the public powers must be exercised reasonably and honestly for the purpose for which the same are conferred".

7. In view of the above, this writ petition is accepted and the impugned order dated 08.03.2010 is declared illegal, void, arbitrary and has been issued without lawful authority and of no legal effect; therefore, the impugned order dated 08.03.2010 to the extent of the petitioners is set aside as the same amounts to deprive the petitioners of their fundamental rights provided under Articles 4, 8 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Even if any inquiry is pending against the petitioners, in those circumstances, the respondent could suspend the petitioners under Section 6 of the PEEDA Act instead of transferring the petitioners.

(R.A.) Petition accepted.

PLJ 2011 Lahore 655 [Multan Bench Multan]

Present: Mian Shahid Iqbal, J.

GHULAM HUSSAIN and 3 others--Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others--Respondents

W.P. No. 11798 of 2010, decided on 2.11.2010.

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

----O. VIII, R. 1--Constitution of Pakistan, 1973, Art. 199--Striking off defence qua written statement--Period of 30 days for submitting written statement--Written statement was not filed--Number of dates were granted--Court passed a conscious order directing the party that a final opportunity was being given for filing the written statement--Defence was struck off to file written statement--Validity--Court in given circumstances, if feels even after expiry of 30 days that there are reasonable justifiable and condonable circumstances exist which did not allow in spite of best efforts on behalf of defendants to file written statement, the Court might give some reasonable time--Otherwise, they would not be entitled to if the delay on the part of defendant is conscious one--As to how delay on the part of petitioners does not amount to contumacious default while not complying with the orders of the Court when they were directed specifically to do so--Enough period had been consumed by petitioners but without any justification or reason as to why written statement was not filed--No illegality had been shown to be committed while striking off the defence of the petitioners--Civil revision was dismissed. [P. 658] B, C & D

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

----O. VIII, R. 1--Use of word "Ordinarily"--Period of 30 days for filing written statement--Dilute the effect of mandatory approach--Use of word ordinarily would dilute the effect of mandatory approach of Rule 1 of CPC but nevertheless mere use of word "ordinarily" would not dilute the effect of the period provided under the provisions i.e. 30 days. [P. 657] A

Malik Javed Akhtar Wains, Advocate for Petitioners.

Date of hearing: 2.11.2010.

Order

Learned counsel submits that both the Courts below while passing orders dated 21.7.2010 and 2.8.2010 have fallen in error while striking off defence of the petitioners qua their written statement. Learned counsel further submits that as there was no plaint before the Court, hence order for filing written statement could not have been passed. Further submits that under Order VIII, Rule 1 CPC period of 30 days is not mandatory for the reason that the word "ordinarily" is used, as such it does not attract the penal clause; further submits that no direction or warning was issued by the learned trial Court before applying the said provisions.

1. I have heard the learned counsel for the petitioners and have gone through the record.

2. Instant suit was filed by Respondent No. 3 on 6.9.2008. After service of present petitioners one Amir Nadeem Malik, Advocate filed power of attorney on 17.2.2009 and then subsequently on 2.3.2009 another Advocate namely Waseem Khalid Hashmi filed his power of attorney on their behalf, thereafter vide order dated 3.4.2009 defendants were directed to file written statement and the case was adjourned for 7.4.2009. On 7.4.2009 no written statement was filed, rather reply to application was filed by the present petitioners and the case was adjourned for arguments, to be held on 6.5.2009. From this date the case was adjourned for at least 38 dates on different grounds in respect of filing miscellaneous applications. Later on, on 1.7.2010 again the learned Court passed an order directing the petitioners to file written statement and fixed the case for 13.7.2010 but the order was not complied with. On 13.7.2010 last opportunity was granted to the petitioners with a direction to file written statement but unluckily this written statement was again not ready, thus on the faithful day the defence was struck down.

3. Feeling aggrieved by this order petitioner filed civil revision on 29.7.2010 which was dismissed on 2.8.2010.

4. The contention of learned counsel that in Order VIII, Rule 1 CPC though period of 30 days have been provided but the same cannot be construed to be mandatory in the light of construction of word used in the rule "ordinarily". According to the interpretation of the learned counsel the use of the word "ordinarily" would dilute the effect of mandatory approach of the provision, thus negating its penal affect.

5. I might have agreed with the learned counsel for the petitioner that use of the word "ordinarily" would dilute the effect of the mandatory approach of Rule 1 CPC but nevertheless mere use of the word "ordinarily" would not dilute the effect of the period provided under the said provisions i.e. 30 days. The legislature was conscious of the fact while determining a certain period for filing of written statement. The word "ordinarily" when seen in the light of the days fixed in the said provision would mean that in case of certain difficulties or eventualities if a reasonable explanation is extended by the parties to whom the time was given by the Court, the time could be extended which was done in the present case, but even then they failed to comply with the order. The Court can allow some space to those persons who have shown circumstances beyond their control and as such could not comply with the orders.

6. In the instant case the petitioner has availed earlier two dates for filing written statement i.e. from 18.3.2009 case was adjourned for 3.4.2009 for filing written statement which was not filed, case was then adjourned for 7.4.2009, even on the said date written statement was not filed but reply to application was filed thus order dated 7.4.2009 was not complied with. Thereafter in spite of the knowledge of the directions of the Court for filing of the written statement they kept on pursuing applications which were filed in the Court and as a result of that a number of dates were granted to them, though for a different purpose. Later on, on 1.7.2010 the Court being conscious of the fact regarding constructions of words in the said rule and liberally construing it, directed the respondents vide order dated 13.7.2010 to file written statement thereby giving the petitioners a last and final opportunity. Order dated 13.7.2010 was passed keeping in mind the conduct and the period already consumed in the proceedings, the Court passed a conscious order directing the party that a final opportunity is being given to them for filing the written statement. This order was specific in nature showing that a last opportunity has been given to them and in case they failed to avail even this opportunity the only way left with the Court would be to apply the penal effects, thus in absence of noncompliance of order of the Court, through an order dated 21.7.2010 their defence was struck off to file written statement.

7. The other aspect of the matter is that in Order VIII, Rule 1 CPC though in the proviso the word used is "ordinarily" but before the said word the rule contains the word "if so required by the Court". In this contest of the matter the only interpretation given to the word "ordinarily" would mean that no infinite time can be allowed on the basis of the said word rather it is for the Court to see and require as to what time is to be provided after the fall of the period of 30 days. The use of the word "required" makes it abundantly clear that the Court in the given circumstances if feels even after expiry of 30 days that there are reasonable, justifiable and condonable circumstances exist which did not allow in spite of best efforts on behalf of the defendants to file written statement, the Court may give some reasonable time. Otherwise they would not be entitled to if the delay on the part of the defendant is conscious one.

8. Learned counsel has not been able to convince me as to how the delay on the part of petitioners does not amount to contumacious/contemptuous default while not complying with the orders of the Court when they were directed specifically to do so. Moreover, since initially the case was fixed for 7.4.2009 for written statement and the defence was stuck down on 21.7.2009, enough period has been consumed by the petitioners but without any justification or reason as to why written statement was not filed.

9. No illegality or jurisdictional error has been pointed out by the petitioners in the impugned order. This being so, I am not inclined to interfere in the orders passed by both the Courts below as no illegality has been shown to be committed while striking off the defence of the petitioners.

10. In this view of the matter, the civil revision fails and is dismissed in-limine.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 658 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

MUHAMMAD RAMZAN--Petitioner

versus

ADDL. DISTRICT JUDGE, MIAN CHANNU, DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 6081 of 2010, decided on 4.4.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of maintenance allowance--Maintence allowance was fixed @ Rs. 3000/- p.m. till attained the age of majority--High rising prices in country was not exorbitant rather insufficient to meet daily requirements of minor--During dispute, father agreed to pay Rs. 3000/- p.m. as maintenance allowance as he was earning Rs. 15,000/- to Rs. 20,000/- An agreement was executed--Failed to bring any pay slip on record--Validity--Agreement if seen execution of which is not denied by father wherein it is mentioned that father undertook to pay Rs. 3000/- p.m. for minor in case his wife reconcile with him--Petitioner had not brought on record any positive evidence to prove his financial status--Fixed maintenance allowance was not an excessive amount in present scenario when the prices of daily commodities are going high day by day--Petition was dismissed. [P. 660] A

Ch. Khalid Mehmood Arain, Advocate for Petitioner.

Mr. Zulifqar Ahmed Qureshi, Advocate for Respondent No. 3.

Date of hearing: 4.4.2011.

Order

Petitioner Muhammad Ramzan S/o Muhammad Ishaq defendant in a suit for recovery of maintenance allowance filed by Usman Ali minor through his mother Mst. Kausar Bibi has challenged the findings of the learned Judge, Family Court whereby suit filed by Respondent No. 3 was decreed and while deciding Issue No. 1 in favour of Respondent No. 3 fixed the maintenance allowance at the rate of Rs. 3000/- per month till he attained the age of majority vide judgment and decree dated 3.12.2009. The appeal filed by the petitioner-defendant was also dismissed by the learned Additional District Judge vide impugned judgment and decree dated 23.4.2010. Feeling aggrieved by the judgments and decrees of both the Courts below now the petitioner has approached this Court through the writ petition in hand.

1. Pre-admission notice was issued to Respondent No. 3 who is represented by Mr. Zulifqar Ahmed Qureshi, Advocate.

2. Learned counsel for the petitioner contends that the petitioner is employed in Pakistan Army and is earning only Rs. 5500/- per month but the learned trial Court without any lawful justification although financial status of the petitioner was not proved by Respondent No. 3 fixed the maintenance allowance at the rate of Rs. 3000/- per month on the basis of an agreement which was entered between the petitioner and his wife Mst. Kausar Bibi prior to the birth of Respondent No. 3. Learned counsel referred the statement of Kausar Bibi wherein she only stated that she came into knowledge about the monthly earning of the petitioner as this fact was disclosed by him. It is argued that as no independent evidence was led/brought on record by Respondent No. 3 about the financial status and petitioner himself agitated that he was earning Rs. 5500/- per month, therefore, the maintenance allowance fixed by the learned trial Court upheld by the learned appellate Court is excessive and harsh as both the Courts below while deciding this question has mis-read the evidence on record. Prayed (sic) No. 1 be set aside or the maintenance allowance be reduced to a considerable extent.

3. On the other hand, learned counsel representing the minor-Respondent No. 3 has vehemently opposed this petition on the ground that both the Courts below after having thrashed out all factual and legal aspects rightly fixed the maintenance allowance of the minor at the rate of Rs. 3000/- per month which even otherwise in view of the present high rising prices in the country is not exorbitant rather insufficient to meet the daily requirements of the minor-Respondent No. 3. Prayed that this writ petition being not maintainable be dismissed.

4. I have head the learned counsel for the petitioner and perused the record.

5. Mst. Kausar Bibi mother of Respondent No. 3 appeared as PW-1 and stated that earlier during a dispute between herself and the petitioner, he agreed to reconcile with her and also undertook to pay Rs. 3000/- per month as maintenance allowance for the minor as he was earning Rs. 15000/- to Rs. 20000/- per and in this respect he executed an agreement Exh. P1 available on record. The petitioner although appeared as DW-1 but he remain contended by oral he was employed in Pakistan Army as Carpenter. He did not bring on record any pay slip whatsoever to prove his assertion. The agreement (Exh. P1) if seen execution of which is not denied by the petitioner wherein it is mentioned that the petitioner undertook to pay Rs. 3000/- per month for the minor Usman Ali in case his wife Mst. Kausar Bibi reconcile with him. As the petitioner himself has not brought on record any positive evidence to prove his financial status both the learned Courts below thus according to the peculiar facts and circumstances of the case rightly granted maintenance allowance to the minor Usman Ali Respondent No. 3 at the rate of Rs. 3000/- per month which amount even otherwise is not an excessive amount in the present scenario when the prices of daily commodities are going high day by day. Resultantly, this writ petition, being devoid of any merits, is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 661 [Multan Bench Multan]

Present: Tariq Javaid, J.

ABDUL GHANI--Petitioner

versus

SUB-DIVSIONAL OFFICER (E) MEPCO S/TOWN SUB-DIVISION, BUREWALA, DISTRICT VEHARI and 2 others--Respondents

W.P. No. 3259 of 2010, decided on 27.4.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Disconnection the supply of electricity--Supply of electricity was basic necessities--Allegation of--Not paying for consumption of electricity--Request for electricity connection was refused--Validity--Under rule Reference No. 24 of Commercial Procedure no electricity connection could be provided to any person who was not owner of the property or in alternative who could not procure "NOC" from landlord as in the instant case, the petitioner was not owner of the property wherein connection was sought to be provided--No entitled to the same--Petition was allowed. [P. 662] A

Constitution of Pakistan, 1973--

----Art. 38--Basic necessity--Electricity--State is under obligatory to provide basic necessities of life to the citizens--Basic necessities of life had not been defined--Various basic necessities are enumerated in Art. 38(d) of Constitution which includes housing--It cannot be said that framers of Constitution envisaged housing without electricity, therefore, electricity supply is also a basic necessity--Petition was allowed. [P. 664] B

Ch. Pervaiz Akhtar Gujjar, Advocate for Petitioner.

Mr. Zia Ullah Khan, Advocate along with Fayyaz Hussain, S.D.O WAPDA for Respondents.

Date of hearing: 27.4.2010.

Order

It is maintained that the petitioner is worker in Burewala Textile Mills and there is dispute going on between the Mill Management and labourers, due to that dispute electricity supply of the petitioner has been disconnected. In the previous round of litigation the respondents were directed to supply the electricity to the petitioner and charge him to the extent of his consumption but allegedly the respondents did not comply with the order and electricity of the petitioner has been disconnected.

1. On the other hand, it is alleged that the petitioner is trespasser; that he has no right to be on the premises; he is in illegal occupation and is not entitled to the facility of electricity.

2. Case has been heard at length and it is admitted to regular hearing and fixed for hearing for today.

3. This case involves supply of electricity which is the basic necessity and the controversy between the petitioner and employer is subjudice before the appropriate forum. Allegedly the petitioner is trespasser and he has no right to remain on the premises but this does not authorize the respondents to disconnect electricity being supplied to the petitioner. However, taking lenient view the petitioner was advised in the previous round of litigation to seek his independent electricity connection for the reasons being that Mill Management/Respondent No. 3 was likely to raise objection that the petitioner was not paying for the consumption of electricity; therefore, the petitioner applied for electricity connection which has been refused by Respondents No. 1 & 2 on the pretext that under rule/Reference No. 24 of, the Commercial Procedure no electricity connection could be provided to any person who was not owner of the property or in the alternative who could not procure "No Objection Certificate" from the land lord as in the present case the petitioner is not owner of the property wherein connection is sought to be provided; therefore he is not entitled to the same. Reference No. 24 of the Commercial Procedure is re produced below:--

(i) Ownership proof from the applicant

(ii) An affidavit from the owner that no connection existed previously at the premises on which connection is applied and that he would pay Wapda dues in respect of the connection which already existed at the premises in question, if noticed here-after.

(iii) "No Objection Certificate" from the land lord (if the applicant is a tenant along with land lord's proof of ownership, and affidavit mentioned above.

(iv) Attested copies of National Identify Cards of the applicant and the witness.

(v) The power of attorney (in case of a limited company), in favour of the applicant to the effect that the applicant is authorized to sign the application and execute agreement.

(vi) In case of a Limited Company, the list of Managers, Directors etc. with complete addresses and attested photo copies of all documents regarding registration of the limited Company.

(vii) In case of change of name/reconnection, a certificate from the Revenue Officer Wapda to the effect that no arrears are outstanding against the premises.

(viii) In case of reconnection, affidavit from the applicant to the effect that he will be liable top pay all dues which would appear/come to light after issue of the certificate referred above.

1. It appears that the interpretation given to Reference No. 24 by the respondents is violative of Article 38 of the Constitution of Islamic Republic of Pakistan, 1973, which is re-produced herein below, for facility of reference :--

38. The State shall

(a) secure the well-being of the people, irrespective of sex, caste, creed, or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants;

(b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure;

(c) provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means;

(d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment;

(e) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan; and

(f) eliminate riba as early as possible.

1. It is apparent from clause (d) of the above Article that the State is under obligatory to provide basic necessities of life to the citizens. The basic necessities of life have not been defined. Various basic necessities are enumerated in Article 38(d) which includes Housing. It cannot be said that the framers of the constitution envisaged housing without electricity; therefore, electricity supply is also a basic necessity. This appears to be a term of act. It had different meanings at different times. Facilities which were not basic necessities twenty years ago may very well in these days be basic necessities. Undoubtedly electricity is one of those. It could very safely be termed as basic necessity; therefore, Reference No. 24 of the Commercial Procedure merits to be struck down as it has been given an interpretation whereby a citizen is being denied the basic necessity. It is repugnant to the constitution. If a landlord or employer wants to eject any person from the property, under the law he is obliged to adopt legal procedure. If he is allowed to disconnect electricity then certainly he shall disconnect other facilities like water supply and natural gas and thus illegally evict the tenants from the rented premises. In other words whenever, a landlord or owner of premises wants to illegally evict the occupant he shall disconnect the supply of necessities and then refuse to issue "No Objection Certificate". By reason whereof the Respondents No. 1 & 2 shall also not supply the electricity to him. This cannot be allowed. No illegal interpretation can be placed on any instrument nor could any rule be allowed to remain operative which is open to malafide interpretation. This would tantamount to arming the landlord with a weapon which could easily be used against the tenant by disconnecting the electricity and forcing his illegal eviction without adopting proper procedure provided under the law. Even in this case Respondent No. 3 appears to have disconnected the supply of electricity to coerce the petitioner by denying the basic necessity and thus, force his eviction otherwise than the due process of law.

2. For what has been discussed above, this petition is allowed, respondents are directed to install electricity meter at the residence of the petitioner, restore his connection forthwith and consequently the Reference No. 24 of Commercial Procedure is struck down with no order as to costs.

(R.A.) Petition allowed.

PLJ 2011 Lahore 665 (DB) [Multan Bench Multan]

Present: Tariq Javed and Shaukat Umer Pirzada, JJ.

LAND ACQUISITION COLLECTOR, PARCO, PUNJAB, LAHORE and another--Appellants

versus

Syed TABEY HUSSAIN SHAH--Respondent

RFA No. 86 of 2008, heard on 1.7.2010.

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 18 & 54--Civil Procedure Code, (V of 1908), S. 96--Regular Second Appeal--Enhancement of award--Entitlement to receive commercial rates and compensation was not assessed properly--Objections by affecties--Maintainability of appeal--Question of--Whether there were any fruit trees and superstructures needed proof through evidence--Whether High Court can grant any relief to respondent, who had not assailed the judgment by filing any appeal or revision--Right to filing of cross-objections by provincial govt. local authority or company--Appellants who were entitled to file cross-objections were neither invited to file the same or as alleged by appellant an opportunity to file the cross-objections was not afforded--Neither proper issues were framed nor evidence with regard to actual objections had been produced--Both parties felt aggrieved of the judgment--Case was remanded to trial Court to allow appellant to file cross-objections, reframe the issues and allow to produce his evidence in support of his claim. [P. 671] B, E, F & G

Land Acquisition Act, 1894 (I of 1894)--

----S. 22-A--Cross objections--Being a company had a right u/S. 22-A of Land Acquisition Act, to file the cross objection. [P. 670] A

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

----S. 115--Civil revision--Jurisdiction--High Court has jurisdiction to grant a relief where the judgment passed by trial Court is not otherwise sustainable u/S. 115, CPC. [P. 671] C

Revisional Jurisdiction--

----Suo motu revisional jurisdiction--Question of--Whether High Court could exercise suo motu revisional jurisdiction while an appeal was competent--Revisional jurisdiction exercised by High Court in absence of any appeal was upheld. [P. 671] D

Mr. Muhammad Ramzan Khalid Joyya, Advocate for Appellants.

Syed Mumtaz Ahmad Gillani, Advocate for Respondent.

Date of hearing: 1.7.2010.

Judgment

Tariq Javaid, J.--This Regular First Appeal is directed against judgment and decree dated 23.2.2008 passed by learned Senior Civil Judge, Muzaffargarh whereby the trial Court has enhanced the award made by the appellant No. 1 on 24.6.1996.

1. The lands owned by the respondent along with other land owners were acquired in the year 1996 for installation of an oil refinery by the Appellant No. 2. The compensation was assessed and paid to the affectees. Objections by some of the affectees were filed under Section 18 of the Land Acquisition Act, 1894 herein after to be referred as the Act. The present respondent, who associated with some other affectees filed objections in reference titled "Mst. Rafiqan and others Vs. PARCO", which was pending adjudication before the learned Senior Civil Judge, Muzaffargarh, wherein an application for separation of his reference was filed, which was allowed and reference to the extent of present respondent has been decided vide impugned judgment.

2. The respondent in his objections claimed that he owned the lands which were commercial, fruit trees and residential houses were also constructed over the acquired lands and value whereof has not been properly assessed. It was further alleged that the respondent was entitled to receive the commercial rates and the compensation paid to him was not assessed according to the schedule notified/issued by the Government. Allegedly the respondent received compensation in the sum of Rs. 80,54,900/- under protest and for the enhancement of amount has filed the separate reference before the learned trial Court. Allegedly the learned trial Court without inviting cross objections framed the issues viz:

(i) Whether the assessment regarding the price of superstructure and the land mentioned in the award is incorrect and the award dated 24.6.1996 is liable to be rejected, if so what is its correct evaluation? OPA

(ii) Relief.

1. Both the parties led their evidence and the learned trial Court after hearing arguments of both the parties enhanced the award to the extent of further compensation in the sum of Rs. 46,52,765/-; along with profit of 11 years @ 8%, which comes to Rs. 1,08,48,568/-.

2. The learned counsel for the appellant has argued that the respondent had already filed a reference through Collector, which is still pending in the Court of competent jurisdiction. The present proceedings, which were in fact a reference and has been treated as a suit was not competent. It was argued that after separation of respondent's objections, the same should have been routed through the collector. It was also argued that if the reference was to be treated as a suit, to which the learned counsel for the appellant had serious reservations, then the Appellant No. 2 was a necessary party and the impugned judgment has been passed without notice to him. The learned counsel for the appellant also argued that the respondent has failed to prove that he was entitled to the enhanced amount of compensation. Neither any issue with regard to the compensation for fruit trees was framed nor any evidence was produced to prove the same as well as that the respondent was entitled for compensation of his lands at commercial rates.

3. Conversely, the learned counsel for the respondent has vehemently opposed the appeal and it is argued that the appeal is not maintainable under Section 18 of the Act. However, at the same time the judgment of the learned trial Court was also not supported in as much as that according to the learned counsel for the respondent the compensation awarded by the learned trial Court is far too below the actual value of the property acquired from him. According to the learned counsel for the respondent the entire land acquired by the Appellant No. 1 from the respondent was commercial. It was further argued that the compensation for the superstructure and the fruit trees was also too low and whimsical.

4. Regarding the preliminary objection with regard to the maintainability of the appeal, the learned counsel for the respondent placed reliance on Pir Khan through legal heirs Vs. Military Estate Officer and others (PLD 1987 S.C. 485), Behram Khan and 54 others Vs. Military Estate Officer and two others (1988 SCMR 1160), Multan Improvement Trust and others Vs. Sultan Mahmood and others (1989 MLD 441), ICI Pakistan Ltd. Vs. Salahud Din & others (NLR 1990 S.CJ 693) and WAPDA Vs. Ghulam Shabbir (2009 SCMR 1051) and argued that the present appeal is not maintainable.

5. In Pir Khan through legal heirs Vs. Military Estate Officer and others (PLD 1987 SC 485), it was held as under:--

"We agree and would add that the order of the civil Court on reference made to it by the Land Acquisition Collector is not an independent order but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the civil Court, which order then becomes the award. Since, by virtue of sub-section (2) of Section 50 of the Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal, hence Respondents 1 and 2 who did not have any such right expressly conferred on them, did not have any locus standi to file an appeal. As already observed, no such right is to be assumed on any a priori ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute."

1. The above rule was stretched further by the Hon'ble Supreme Court when Abdul Shakurul Salam, J rendered judgment in the case of ICI Pakistan Limited Vs. Salah-ud-Din of others (NLR 1990 SCJ 693). It was observed, "4. A word may be added that under the occurrence of eminent domain, the State acquires citizen's property. It does so for a public purpose. Land Acquisition Act allows acquisition for a company if it feels that the utilization of the acquired land by a company would be for the benefit of the citizens. Whether the State does so for its own purposes i.e. public or, for a company, on acquisition the land vests in the State. The relationship or transaction is between the citizen and the State. No third party has any right. Even if it is permitted that a company for whose benefit the property is sought to be acquired may appear in a reference for determination of the compensation payable to the citizen, that does not mean that it is also conferred a right to appeal against the decision on reference. It is trite law that right of appeal is a creation of statute. If it does not confer, none has it. Invasive provisions over the rights of citizens have to be construed strictly. This is axiomatic.

2. It is to be kept in view and not overlooked that under the Land Acquisition Act, a citizen is being deprived of his land which in most case may be the only means of his livelihood keeping him busy in tilling it and living on it, having no education or other trade. And this too without any fault of his. Compensation is paid on determination by an officer of the acquiring Authority-with a hope of its being equitably done on reference by a Court. As soon as that is determined, he is entitled to be paid and left alone. If he were to be dragged in litigation by a company, who has got his land acquired for setting up a business-to which he is no match in power, resources or otherwise, by sophistry or ingenuity, the citizen having lost his property may have no means to carry on the litigation and find himself at dead end. No interpretation of law can be just which puts a citizen in such like quandary. When people are deprived of their rights, dragged into unnecessary litigation and driven to the wall, they are likely to lose heart-resulting in withdrawal or aggression, neither of which is conducive to either administration of justice or sustenance of the State. The petitioner company should be content to take the respondents' land for setting up its business for making money and not try to deprive them further of the compensation allowed to them by a competent Court."

3. The dictum laid down in the above cases was followed in Multan Improvement Trust and others Vs. Sultan Muhammad and others (1989 MLD 441) and WAPDA Vs. Ghulam Shabbir (2009 SCMR 105).

4. The rule of law enunciated in the above said judgment does not call for any further elaboration. However, the learned counsel for the respondent appears to have lost sight of the provisions of Section 22-A of the Act which allows for filing of the cross objections by the Provincial Government, local authority or a company.

5. In Behram Khan and 54 others Vs. Military Estate Officer and two others (1988 SCMR 1160) the Hon'ble Supreme Court came to the conclusion that according to Section 22-A of the Act a Provincial Government, local authority or a company had a right to file the cross objections. While considering the effect of Section 22-A Nasim Hassan Shah, J observed as under:--

"We have, therefore, examined the provisions of this Ordinance with the assistance of the learned counsel but are of the opinion that none of its provisions affect the reasons given in the judgment in Pir Khan's Case PLD 1987 SC 485 in reaching the conclusion that neither the Pakistan Ordnance Factory nor the Central Government had the right to file any appeal before the High Court. The only provision of the amending Ordinance, which could conceivably be invoked is contained in Section 15 of the amending Ordinance. By this provision Section 22-A has been inserted in the Act after Section 22 of the Land Acquisition Act. This provision is in the following words:--

"22-A. Cross-objection.--The Provincial Government, or a local authority or a Company for which land is being acquired, may interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."

According to this provision, a Provincial Government or a Local authority or a Company for which the land is being acquired can lodge a cross-objection to the objection raise by any person interested (whose land or interest therein has been acquired) and on such cross-objection the Court may reduce the amount awarded by the Collector to the land-owner, in proper cases. If such a cross-objection is not decided to the satisfaction of the Provincial Government or Local Authority or a Company it could file an appeal before the High Court; but in the instant case the land was being acquired for Pakistan Ordnance Factory (which is a project of the Central Government) and it is the Central Government which is dissatisfied with the order of the Civil Court as it has raised the amount of the compensation assessed by the Land Acquisition Collector by accepting the objections against the amount assessed by him. The Central Government, however, is not included amongst those who have been given the right to file a cross-objection against the award of the Collector. Accordingly, the question of filing an appeal against the rejection of its cross-objection does not arise. The Pakistan Ordnance Factory, which also filed an appeal before the High Court through the Military Estate Officer, is admittedly neither a Local Authority nor a Company. Hence it cannot also avail the provisions of Section 22-A."

1. After hearing both the parties and perusal of the above said judgments we are of the considered opinion that the appellant being a Company had a right under Section 22-A of the Act to file the cross-objections. While exercising jurisdiction under the Act, the learned trial Court, as held in Pir Khan through legal heirs Vs. Military Estate Officer and others, supra, merely to substitute the order of the Land Acquisition Collector. Therefore, under Section 22-A, the Company had a right to file cross objections. It was imperative for the learned trial Court to invite the cross-objections and thereafter to frame the issues. The issues framed by the learned trial Court were also not proper as specific objections with regard to the nature of property, whether it was commercial or not, the fact that whether there were any fruit trees and superstructures needed proof through evidence. The Mark-"A" relied by the learned trial Court is also a disputed document. The conclusions arrived at by the learned trial Court are also not supported by the evidence on record. Although the learned counsel for the respondent has raised objections to the maintainability of the appeal yet he has not supported the judgment of the learned trial Court and instead demurred that the enhancement allowed by the learned trial Court is not sufficient, that too without filing cross-objections to the appeal and assailing the judgment impugned herein.

2. The question arises whether we can grant any relief to the respondent, who has not assailed the judgment by filing any appeal or revision and yet has shown his grievance during the arguments and prayed for enhancement of the amount awarded to him by the learned trial Court.

3. In Manager Jammu & Kashmir State property in Pakistan Vs. Khuda Yar (PLD 1975 Supreme Court 678) the Hon'ble Supreme Court held that this Court has the jurisdiction to grant a relief where the judgment passed by the learned trial Court is not otherwise sustainable under Section 115 of the CPC. It was observed at page 697 that, "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the Court "may make such order in the case as it thinks fit."

4. Similarly in Mst. Gumbad Vs. Member Board of Revenue (1996 SCMR 1755) the revisional jurisdiction exercised by this Court in absence of any appeal was upheld. The precise question was whether this Court could exercise suo motu revisional jurisdiction while an appeal was competent but it was not filed? The Hon'ble Supreme Court held as follows:--

"14. In such view of the fact we are inclined to hold that the learned Single Judge of the High Court was competent to take suo motu action in its revisional jurisdiction under Section 115, C.P.C."

1. In present case the appellants, who were entitled to file cross-objections were not either invited to file the same or as alleged by the appellant an opportunity to file the cross-objections was not afforded. This fact has not been disputed by the respondent. Neither the proper issues were framed nor evidence with regard to the actual objections has, been produced. Both of the parties feel aggrieved of the judgment. Therefore, we feel that in the interest of justice as well as following the dictum laid down in 1988 SCMR 1160, PLD 1975 SC 678 and 1996 SCMR 1755 reproduced above the impugned judgment merits to be set aside. The case is remanded to the learned trial Court to allow the appellant to file cross-objections, reframe the issues and allow the respondent to produce his evidence in support of his claims. Since it is an old case the learned trial Court shall decide the same expeditiously, preferably within a period of four months.

(R.A.) Case remanded.

PLJ 2011 Lahore 672 [Bahawalpur Bench Bahawalpur]

Present: Ch. Shahid Saeed, J.

KHADIM HUSSAIN--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 3 others--Respondents

W.P. No. 2877 of 2010/BWP, heard on 7.2.2011.

Constitution of Pakistan, 1973--

----Art. 199--Joint seniority list of employees--Changed his cadre during his service--Cannot claim his seniority--Rule of seniority--When an employee leaves his own department and joins the other one the rule of seniority was that he will be at the tail and of seniority list of new department--Petitioner joined the water works department a few months earlier than the respondent but the petitioner changed the department and joined disposal works department--When the petitioners leaves his mother department with his own whims and wishes then he cannot claim his seniority of the earlier department--Petition was dismissed. [P. 673] A

Mian Muhammad Yaseen Ataal, Advocate for Petitioner.

Mr. Shamshair Iqbal Chughtai and Farooq Ahmed Bhatti, Advocates for Respondents.

Date of hearing: 7.2.2011.

Judgment

Through the instant writ petition petitioner has called in question the validity of the impugned judgments passed by the Respondents No 1 & 2 by way of which promotion of the petitioner as Supervisor in the Disposal Works department was declared illegal and without lawful authority.

1. Brief facts of the case are that Respondent No. 3 was appointed as Driver in the Disposal Works department on 30.1.1991 whereas the petitioner was also employed as Driver in the Water Works Department under the Respondent No. 4. The Disposal Works department declared a facility of payment of "overtime charges" to their employees. Allured by its additional benefit in the Disposal department petitioner requested for change of department from Water to Disposal Works which was allowed. Later on Respondent No. 4 issued a joint seniority list of employees of both the departments i.e. Water and Disposal Works. All the employees of both the departments objected to this joint seniority list and requested that since the employees of both the departments belonged to different cadres as such their separate seniority list may be prepared. However petitioner filed a civil suit before the trial Court which was dismissed on 09.08.2004. After failing to get relief from the Civil Court, the petitioner clandestinely procured his promotion as Supervisor in the Disposal Works department. Respondent No. 3 having come to know about the said promotion filed a grievance petition before the Presiding Officer Punjab Labour Court No. 8 Bahawalpur which was accepted on 17.11.2006 and the promotion of the petitioner was declared illegal and without lawful authority. Petitioner preferred an appeal before the Punjab Labour appellate Tribunal which was dismissed vide judgment dated 19.05.2010. Having dissatisfied with the said judgments petitioner has filed the instant writ petition.

2. Learned counsel for the petitioner contends that both the judgments passed by Respondents No. 1 & 2 are against law and facts and also not sustainable in the eyes of law; that promotion committee was a necessary party but he was not made as a party in the grievance petition; that according to law the promotion cannot be claimed as a right, therefore the Respondent No. 3 cannot be promoted; further submits that although the nomenclature of the employees of Disposal Works and water works is different however, their status is same which is regulated by a common seniority list, therefore, the transfer of the petitioner from one department to another will not effect the seniority of the petitioner.

3. Learned counsel for the respondents states that the judgments passed by the Respondents No. l & 2 are in accordance with law and there is no illegality or irregularity in the impugned judgments. Further submits that the petitioner himself has changed his cadre during his service, therefore, he cannot claim his seniority and have also supported the impugned judgments of both the Courts below.

4. Arguments heard. Record perused.

5. It is stark reality that when an employee leaves his own department and joins the other one the rule of seniority is that he will be at the tail end of the seniority list of the new department. Undisputedly, petitioner joined the Water Works department a few months earlier than the Respondent No. 3 but thereafter the petitioner changed the said department and joined the Disposal works department, therefore, when the petitioner leaves his mother department with his own whims and wishes then he cannot claim his seniority of the earlier department. Further-more, there is concurrent findings of facts in the matter and the Courts below while passing the impugned judgments have taken into consideration all the material aspects of the case. The findings of the Courts below based on material on record would not be amenable to interfere with in writ jurisdiction.

6. For the foregoing reasons, there is no force in the instant writ petition and the same is dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 674

Present: Ijaz-ul-Ahsan, J.

Syed QARAR HYDER--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, PAKPATTAN and 2 others--Respondents

W.P. No. 13755 of 2008, heard on 23.10.2009.

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

----S. 7(2)--Scope of--Second proviso--Enabling and facilitating--Effect of exclusion jurisdiction of family Court--No bar on legislature to include language to that effect in the statute--Scheme of Act suggests a clear intention to avoid multiplicity of suits arising out of a failed marriages and save the woman from, hassle and inconvenience of running from Court to Court in order to get her rights. [P. 677] A

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

----S. 7(2)--Joinder of causes of action--Suit for recovery of dowry articles could not have been filed together through one plaint--Suit filed by respondent for recovery of dowry articles and maintenance through one plaint had no legal or procedural defect--Objection in that regard was misconceived. [P. 677] B

Constitution of Pakistan, 1973--

----Art. 199--Punjab Family Courts Act, 1964, S. 7--Constitutional petition--Suit for recovery of dowry articles--Joinder of causes of action--Suit was not for dissolution of marriage multiple causes of action cannot be joined and separate suits--List of articles of dowry--Return of dowry articles was not awarded in its entirety--Credibility of receipts--Rules of evidence were not stricto sensu applicable to proceedings before Family Courts--Marriage lasted only two years there were perishable items in dowry, financial status of respondent and absence of any evidence to show that respondent did not belong to a reasonably well off family which could not afford to give dowry articles to respondent in plaint--Petition was dismissed. [P. 677] C

Ch. Manzoor Ahmed, Advocate for Petitioner.

Ch. Tanvir Ahmad Hanjra, Advocate for Respondent No. 3.

Date of hearing: 23.10.2009.

Judgment

This matter is at the pre-admission stage. Both the learned counsels representing the parties are present. I have heard them at length. The petition is admitted to regular hearing. Since a short question of law is involved, with the consent of the learned counsel for both sides, I propose to decide the main petition, today.

1. Through this petition, the judgment and decree dated 17.4.2008 passed by the learned Family Judge, Pakpattan Sharif, which was affirmed in appeal, has been challenged.

2. The learned counsel for the petitioner has raised a preliminary legal issue, that a suit for maintenance and a suit for recovery of dowry articles could not have been filed together through one plaint. He submits that such joinder of causes of action could only be undertaken under special circumstances visualized in the second proviso to Section 7(2) of the Family Court Act, 1964. He, therefore, submits that where the suit is not for dissolution of marriage multiple causes of action cannot be joined and separate suits should have been filed. Submits that although this objection was not taken at the trial stage, the same was taken before the appellate Court. However, the appellate Court did not advert to this objection nor a finding was given in this regard.

3. On merits, the learned counsel submits that the assertion in the plaint by the respondent that the petitioner's monthly income was Rs. 20,000/- per month was not supported by any cogent or credible evidence. On the contrary, the claim of the petitioner that he was earning Rs. 3000/- per month was supported by DW.2 and DW.3. Further points out that the onus to prove the petitioner's income was on the respondent. She failed to discharge the said onus. Both the lower Courts ignored the evidence produced by the petitioner and arrived at findings, which are not supported by the record.

4. The learned counsel for the petitioner further submits that the decree of the Family Court which was affirmed by the appellate Court, inasmuch as a sum of Rs. 2,50,000/- was awarded by way of price of dowry articles is untenable. While admitting that a detailed list of dowry articles was provided in the plaint and was repeated in the evidence of the respondent, which could not be shaken in cross examination, he submits that the receipts relied upon by both the lower Courts were not worthy of reliance. These, according to him, were not proved according to the provisions of the Qanoon-e-Shahadat Order, 1984. Adds that the perfection with which detail of each item and its price were given by the respondent in her evidence goes to establish that the list was not genuine and had been prepared specifically for the purposes of filing the suit and recovering a substantial amount in terms of return of dowry articles.

5. The learned counsel also points out that most of the receipts submitted by the respondent had been issued in the name of Ayyaz Ahmad brother of the respondent who was not produced as a witness. Also that the list of articles of dowry relied upon by both the Courts below contained perishable items and the learned lower Courts did not adequately account for depreciation on account of use of such articles.

6. The learned counsel appearing on behalf of the respondent refutes the aforesaid assertion and has supported the judgments and decrees of the lower Courts. He has relied upon PLD 1980 Karachi 477 and PLD 2005 SC 22 to assert that there is no prohibition in law that a suit for maintenance and return of dowry articles cannot be a part of suit of dissolution of marriage. He submits that even before promulgation of the amendment in Section 7 of the Family Courts Act, 1964 the Superior Courts had held that suits relating to dower, maintenance and dowry articles could be filed in the same Court through one plaint. Therefore even if the suit is not for dissolution of marriage, suit for maintenance and recovery of dowry articles can still be filed through one plaint.

7. The learned counsel for the respondent submits that the learned counsel for the petitioner has not pointed out any portion of the impugned judgment and decree to show that the learned lower Courts have ignored or misread any evidence available on record. He further points out that the respondent was subjected to lengthy cross-examination in terms of dowry articles. However, despite such exercise, the evidence of the respondent and its credibility could not be shaken. It is further pointed out that the claim for delivery expenses was nowhere challenged. As a matter of fact, the petitioner in his own statement admitted that he was neither intimated about the birth of child nor his death. Therefore, an inference can safely be drawn that he did not pay any expenses to the respondent in this regard.

8. As far as the financial status of the respondent's family is concerned, the learned counsel has pointed out that the respondent belongs to well off family. Material is available on record to show that one of the brothers of the respondent is a cashier in a bank, another is a Major in the Pakistan Army and yet another is an Electrical Engineer. There is no evidence in rebuttal of the said fact, which goes to prove the good financial standing of the respondent's family. The learned counsel further pointed out that the gifts given by the petitioner to the respondent are mentioned in the Nikah Nama and it is settled law that such gifts or their value cannot be recovered from the wife. Reliance in this regard is placed on 2005 MLD 1069.

9. The provisions of the second proviso to Section 7 of West Pakistan Family Court Act, 1964 ("the Act") are in my opinion enabling and facilitating rather then having the effect of exclusion of jurisdiction of the Family Court. In case such exclusion was intended there was no bar on the legislature to include language to that effect in the statute. Further, the scheme of the Act suggests a clear intention to avoid multiplicity of suits arising out of a failed marriages and to save the woman from, the hassle and inconvenience of running from Court to Court in order to get her rights.

10. I am, therefore, of the opinion that the suit filed by the respondent for recovery of dowry articles and maintenance through one plaint had no legal or procedural defect. The objection in this regard is misconceived.

11. On perusal of the evidence produced by the parties and the judgments and decrees of the learned lower Courts, I find that the conclusions arrived at in relation to award of maintenance do not suffer from any illegality or infirmity. It is noticed that the claim for a sum of Rs. 3,69,000/- in terms of return of dowry articles was not awarded in its entirety. The respondent gave a detailed list of dowry articles in her plaint and repeated the same in her statement before the Court. She was subjected to lengthy cross-examination. Her credibility could not be shaken and the learned lower Courts were justified in relying upon the said statement. As far as credibility of receipts is concerned, these substantiated the oral evidence. Further, rules of evidence are not stricto sensu applicable to proceedings before Family Courts. However, the learned Family Court as well as the Appellate Court acted carefully and with circumspection in allowing the claim of the respondent only to the extent of Rs. 2,50,000/-. In arriving at their findings, I have noted the learned Courts below, kept in mind, the fact that the marriage lasted only two years there were perishable items in the dowry, the financial status of the respondent and absence of any evidence to show that the respondent did not belong to a reasonably well off family which could not afford to give dowry articles to the respondent as mentioned in the plaint.

12. The learned Courts below have acted in accordance with law and have exercised jurisdiction vested in them fairly and within the parameters prescribed by law. The learned counsel for the petitioner has not been able to persuade me to substitute my own findings with concurrent findings of fact arrived at by the learned lower Courts.

13. In this view of the matter, I do not find any merit in this petition. The same is accordingly dismissed.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 678 [Bahawalpur Bench, Bahawalpur]

Present: Muhammad Naseem Akhtar Khan, J.

FAZAL ELLAHI--Petitioner

versus

SECRETARY AUQAF PUNJAB, LAHORE and 6 others--Respondents

W.P. No. 136 of 2006 (BWP), heard on 2.12.2010.

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

----S. 92--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Breach of express--Public purpose of charitable--Obtained consent in writing of advocate general--Original jurisdiction--Maintainability of petition--Sought restrain to construct the shops in front of Jamia Masjid--Being constructed on auqaf land by auqaf department--Validity--According to S. 92 of CPC, if there is any alleged breach of any express or constructive trust created for public purpose of charitable or religious nature, Advocate General or two or more persons having an interest in trust and having obtained consent in writing of Advocate General can institute a suit against the principal in Civil Court of original jurisdiction--An adequate and officious remedy is available and according to Art. 199 of constitution--Remedy the constitutional petition was not maintainable--Petition was dismissed. [P. 679] A

Petitioner in person.

Mr. Shamsheer Iqbal Chughtai, Advocate for Respondents No. 1 to 3.

Date of hearing: 2.12.2010.

Judgment

The petitioner has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking a direction to the respondents that they be restrained to construct the shops in front of "Jamia Masjid Al-Sadiq, Bahawalpur consisting of land measuring 24 kanals 6 marlas because the said construction will result in de-valuing the importance, sanctity and beauty of the mosque.

1. Today, the petitioner was directed to produce his counsel for arguments but he has stated that he has lost the confidence in his counsel namely Mr. Shabbir Ahmed Bhutta, Advocate and he will not produce any counsel and the Court may decide the petition.

2. Learned counsel appearing on behalf of Auqaf Department has vehemently contested this writ petition particularly on the basis of maintainability keeping in view the Section 92 of CPC and relied on City Council v. Chief Administrator Auqaf (2007 CLJ 839). On merits, it is contended by the Auqaf Department that the shops have been constructed on the land owned by the Auqaf Department. It is note worthy that previously the main gate of the "Jamia Masjid" was towards Bazar which was changed and constructed at the present place, some 16 years before according to the "will" of late Nawab of Bahawalpur by the deceased ruler of Dubai. The Auqaf market is not a nuisance for the "Shahi Mosque" because the same are being constructed at a reasonable distance from the mosque.

3. Arguments heard. Record perused.

4. After considering the respective contentions of the parties and perusal of the record, it comes out that the disputed shops are being constructed on the Auqaf land by the Auqaf Department. According to Section 92 of CPC, if there is any alleged breach of any express or constructive trust created for public purpose of a Charitable or religious nature, the Advocate-General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General may institute a suit against the Principal in the Civil Court of original jurisdiction. So an adequate and officious remedy is available and according to Article 199 of the Constitution, in the presence of such a remedy the Constitutional petition is not maintainable. Hence, the same is, hereby, dismissed being not maintainable.

(R.A.) Petition dismissed.

PLJ 2011 Lahore 680 [Bahawalpur Bench Bahawalpur]

Present: Ch. Shahid Saeed, J.

MUHAMMAD HUSSAIN--Petitioner

versus

Major General (Rtd.) ABDUL RAZZAQ, (EX-MANAGING DIRECTOR) VICE-CHAIRMAN, CHOLISTAN DEVELOPMENT AUTHORITY BAHAWALPUR--Respondent

C.R. No. 645 of 2010/BWP, decided on 1.11.2010.

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

----O. XXXVIII, Rr. 5 & 6--Attachment of property--Not a punitive action--Principle of law--Suit for recovery as damages--In plaint the petitioner had alleged serious allegations against the petitioner and same have to be proved through oral as well as documentary evidence--In application u/Order 38, Rules 5 & 6 of CPC, petitioner has not shown any apprehension of abscondance of the petitioner in near future--Suit was at initial stage and huge amount was involved in the matter--At such stage property of respondent cannot be attached because he is contesting the case with whole heartedly--Revision was dismissed. [P. 681] A

Mr. M. Shamshir Iqbal Chughtai, Advocate for Petitioner.

Date of hearing: 1.11.2010.

Order

The instant civil revision is directed against the order dated 14.10.2010 passed by the learned trial Court Bahawalpur by way of which application U/O XXXVIII, Rule 5 and 6 filed by the petitioner was dismissed. Hence this civil revision.

1. Brief facts of the case are that petitioner filed a suit for recovery of Rs. 2,00,000,00/-(two crore) as damages as well as interest/mark up against the respondent. The said suit is pending before the learned trial Court. Respondent appeared in the said suit and filed an application U/O VII, Rule 11 CPC for rejection of plaint which was dismissed by the learned trial Court on 05.10.2010. Thereafter the respondent submitted his written statement. The learned trial Court out of the divergent pleadings of the parties framed the necessary issues including relief. Thereafter the learned trial Court has filed the application U/O XXXVIII, Rule 5 & 6 CPC for attachment of the property of the respondent.

2. Learned counsel for the petitioner argued that the order passed by the learned trial Court is against law and facts and also not sustainable in the eyes of law; that the attachment of property before the judgment is a preventive measure and not a punitive action which is a settled principle of law.

3. Heard.

4. Admittedly the petitioner has filed a suit recovery of damages. In the plaint the petitioner has levelled serious allegations against the petitioner and the same have to be proved by the petitioner through his oral as well as documentary evidence. In the application U/O XXXVIII Rules 5 & 6 CPC petitioner has not shown any apprehension of the abscondance of the petitioner in near future. Suit of the petitioner is at initial stage and huge amount is involved in the matter. Therefore, at this stage property of the respondent cannot be attached because he is contesting the case with whole heartedly. There is no force in the instant civil revision and the same is dismissed in limine.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 681

Present: Sh. Azmat Saeed, J.

DR. SHAHID MEHBOOB RANA--Petitioner

versus

PROVINCE OF PUNJAB--Respondent

W.P. No. 15425 of 2009, decided on 26.4.2010.

Government College University Faisalabad Ordinance, 2002--

----S. 12(2)--Constitution of Pakistan, 1973--Arts. 105 & 199--Scope of--Constitutional petition--Appointment as vice chancellor till the appointment of a regular incumbent--Soliciting applications for the office of V.C of the university--Question of--Absence of advice of C.M and his cabinet would denude the action of Governor of validity and legality--High Court has no hesitation in holding that notification pertaining to appointment as V.C. having been passed and issued by chancellor in performance of his functions u/S. 12(2) of the Ordinance--In the absence of advice of Chief Minister was without any legal effect a consequence on account of S. 9(7), hence cannot in law operate as an impediment for the appointment of a regular V.C. in accordance with law--Notifications were not a legal impediment in process of the selection of a permanent V.C. for GCU, nor was the advertisement issued per se in violation of any law or any binding guidelines of HEC--Petitions were dismissed. [Pp. 686 & 687] A & B

Mr. Muhammad Shahzad Shaukat, Advocate for Petitioner.

Kh. Haris Ahmad, Learned Advocate General Punjab assisted by Shujat Ali Khan, AAG for Respondents.

Date of hearing: 17.3.2010.

Judgment

Through this Order it is proposed to decide Writ Petition No. 15425-2009 Writ Petitions No. 1411, 673 and 5356 of 2010 pertaining to the process of the appointment of a Vice-Chancellor of Government College University Faisalabad.

1. Brief facts necessary for the adjudication of the lis at hand are that one Dr.Arif Ali Zaidi, was appointed as the Vice-Chancellor of the said University vide notification dated 21.11.2006. The said doctor Zaidi resigned, as a consequence whereof, the office of the Vice-Chancellor of the University fell vacant. Whereafter, the Chancellor of the University who is the Governor of the Province of the Punjab vide order dated 5.3.2009 appointed Dr.Shahid Mehboob Rana as the Vice-Chancellor till further orders or till the appointment of a regular incumbent. Subsequently, the Chancellor in purported partial modification of his earlier order dated 5.3.2009, referred to above, appointed Dr.Rana as the Vice-Chancellor for the unexpired period of tenure of Dr.Zaidi. The said term of office was to expired on 22.11.2010.

2. That an advertisement was published in the national press on behalf of the Secretary Higher Education Department, Government of the Punjab soliciting applications for the office of the Vice-Chancellor of the University in question, the last date for submission of such applications was 8.8.2009. In the above context, the said Dr.Shahid Mehboob Rana filed a Writ Petition 15425-2009 and writ Petition No. 5356-2010 calling in question the process of the appointment of Vice-Chancellor of the Government College University Faisalabad. Dr. Zulifiqar Ali Chughtai who is apparently the Chairman of the Department of Political Science filed Writ Petition 1411-2010, agitating his grievances regarding the process of selection and appointment of the Vice-Chancellor of GCU Faisalabad.

3. It is contended on behalf of the petitioners that in view of the order/notification passed and issued by the Chancellor of the University dated 5.3.2009 as modified vide order/notification dated 4.5.2009 Dr.Shahid Mehboob Rana is the validly appointed Vice-Chancellor of the University till 22.11.2010 hence, there is no vacancy of the said office necessitating the appointment of the commencement of the process of a Vice-Chancellor. It is further contended in the alternative that the advertisement soliciting applications for the selection of the office of the Vice-Chancellor is illegal, flawed and smacked of mala fides inasmuch as, the eligibility criteria as mentioned in the advertisement, did not conform to the instructions issued in this behalf by the Higher Education Commission (HEC), more particularly, the quality assurance criteria. Furthermore, Pakistani qualified. Ph.Ds are being discriminated against. The learned counsel for the petitioner further contended that the legal infirmities and absence of bona fides have been pointed out to the Government of the Punjab by the Chancellor of the University through various formal communications, which are being ignored.

4. The learned Advocate General Punjab has controverted the contentions raised on behalf of the petitioners. It is contended that by virtue of Section 9 sub-section (7) of the GCU Faisalabad Ordinance, 2002, the Chancellor in the performance of his functions under the Ordinance is required to act and is bound in the same manner as the Governor the Punjab acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan, 1973, and therefore, the orders/notification for the appointment of Dr.Rana for the unexpired term of the former Vice-Chancellor Dr.Zaidi could only have been passed on the advice of the Chief Minster of the Punjab, and no such advice was solicited by the Chancellor, nor given by the Chief Minister hence, orders of appointment of Dr.Rana are non est in the eye of law. Therefore, there is no legal impediment in the appointment of a regular Vice-Chancellor of the University for which purpose the process as envisaged by law has been undertaken. In the alternative, it is contended that on a fair and logical interpretation of the provisions of the Ordinance, 2002, the Chancellor could only pass orders for a stop gap arrangement till a regular incumbent to the office of the Vice-Chancellor is appointed, hence, even otherwise there is no legal restraint upon the respondents for the appointment of a Vice-Chancellor. The learned Advocate General has further contended that the process is transparent, fair and above board. No instructions, decisions or advice of the HEC has been violated. In fact, the process is being conducted in accordance with the letter and spirit of the quality assurance criteria in question. It is specifically denied that locally qualified Ph.Ds have been excluded from the process. Only preference is being given to foreign qualified persons in accordance with and in letter and spirit of the decisions of the HEC. In support of his contentions, learned Advocate General relies on PLD 1997 SC 84 Al-Jehad Trust through Raees-ul-Nujahidin Habib Al-Wahabul Khairi and another Vs Federation of Pakistan and others and PLD 2009 SC 879 Sindh High Court Bar Association through its Secretary and another Vs Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and others.

5. The learned counsel for the petitioners in rebuttal contends that the order passed by the Chancellor for temporary arrangements regarding the incidental vacancy in the office of the Vice-Chancellor are in view of Section 12(2) of the Ordinance ibid at the sole discretion of the Chancellor, and in this behalf, no advice was required from the Chief Minister or the Cabinet. Furthermore, there is no provision for soliciting or obtaining such advice under the Rules of Business applicable to the Province of Punjab. It is further contended that actions of the respondents more particularly the Government of the Punjab suffers from totally lack of credibility and bona fides, inasmuch as, Acting Vice-Chancellor are functioning in various other Universities in the Province of the Punjab without the Government making any arrangement or initiating any process for the recruitment and appointment of a regular Vice-Chancellor. In this behalf reference has been made to the state of affairs existing in KEMC University Lahore, and the University of Engineering & Technology Lahore. It is further added that the criteria as mentioned in the advertisement is not only mala fide but also discriminatory without any valid classification. In support of his contentions has placed reliance on the judgments reported as PLD 1989 SC 166 Federation of Pakistan and others Vs Haji Muhammad Saif Ullah Khan and others, 1999 SCMR 2189 Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad Vs Muhammad Tariq Pirzada and others, PLD 1989 Quetta 25 Muhammad Anwar Durrani Vs Province of Balochistan through Chief Secretary and 10 others, PLD 2005 SC 873 Reference # 2 of 2005 by the President of Pakistan and PLD 1992 SC 723 Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others Vs Aftab Ahmed Khan Sherpao and others.

6. Heard. Record perused. The University in question has been established under the GCU Faisalabad Ordinance, 2002. Section 8 of the said Ordinance enumerates the officers of the University which include inter alia the Chancellor and a Vice-Chancellor. By virtue of Section 9, the Governor of the Punjab is the Chancellor of the University. Section 12 of the Ordinance prescribes that the Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determines, and shall hold the office during the pleasure of the Chancellor. Temporary or incidental vacancy in the office of the Vice-Chancellor is dealt with under sub-section (2) of Section 12 of the Ordinance, which reads as follows:

"Any time when the office of Vice-Chancellor is vacant, or he is absent or is unable to perform the functions of the office due to illness or some other cause, the Chancellor shall make such, arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit."

1. In the instant case, upon the resignation of the then incumbent Vice-Chancellor Dr.Zaidi, the office of the Vice-Chancellor fell vacant, whereupon, the Chancellor vide order dated 5.3.2009, subsequently modified on 4.5.2009 appointed Dr.Rana one of the present petitioners as a Vice-Chancellor purportedly for the remaining tenure of Dr.Zaidi. Such orders were passed in purported exercise of powers vested in him under Section 12(2) of the Ordinance reproduced above. This is not only self evident from the record, but also is the common ground between the parties.

2. Section 9 of the Ordinance deals with the office of the Chancellor. After the promulgation of the Ordinance a subsequent amendment has been introduced in Section 9 by adding sub-section (7) thereto. Section 9 sub-section (7) reads as under:

"In the performance of his functions under this Ordinance, the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of Islamic Republic of Pakistan."

1. There can be no escape from the fact that the notification/orders dated 5.3.2009 and 4.5.2009 appointing Dr.Rana as the Vice-Chancellor on account of the temporary vacancy in the said office was passed and issued by the Chancellor in purported performance of the functions of the Chancellor under Section 12(2) of the Ordinance, as a consequence whereof, the provisions of Section 9 sub-section (7) of the Ordinance were squarely applicable.

2. It is the case of the respondents as canvassed by the learned Advocate General that prior to passing of the order and issuance of the notification dated 5.3.2009 and 4.5.2009, no advice was solicited from the Chief Minster or the Cabinet, nor any such advice was given. It is not the case of the petitioners as stated in the Constitutional Petitions nor has it been urged at the Bar on their behalf that any such advice was solicited from or given by the Chief Minister or the Cabinet prior to the passing of the said orders or the issuance of the notification in question dated 5.3.2009 and 4.5.2009.

3. The aforesaid state of affairs needs to be examined in the context of Article 105 of the Constitution of Islamic Republic of Pakistan 1973 as interpreted and applied by this Court, and the Honorable Supreme Court of Pakistan in the case reported as PLD 2009 SC 879 Sindh High Court Bar Association through its Secretary and others Vs Federation of Pakistan through Secretary Ministry of Law and Justice Islamabad and others conclusively settled the issue, whereby it has been held in unequivocal terms that where the provisions of Article 105 of the Constitution of Islamic Republic of are attracted, the absence of advice of the Chief Minster and his Cabinet would denude the action of the Governor of the validity and legality. In view of the above, this Court has no hesitation in holding that the notification/orders dated 5.3.2009 and 4.5.2009 pertaining to the appointment of Dr.Rana as the Vice-Chancellor having been passed and issued by the Chancellor in performance of his functions under Section 12(2) of the Ordinance in the absence of advice of the Chief Minster is without any legal effect or consequence on account of Section 9 sub-section (7) of the Ordinance, hence, cannot in law operate as an impediment for the appointment of a regular Vice-Chancellor in accordance with law.

4. Adverting now to the contentions of the learned counsel for the petitioners that the advertisement soliciting applications for the appointment of Vice-Chancellor of the University in question is not in consonance with the instructions and the criteria laid down by the HEC with reference to the appointment of Vice-Chancellor in public sector University. It is common ground between the parties that guidelines for the selection of Vice-Chancellor of public sector university has been issued by the HEC a copy whereof has been placed on record. The relevant guidelines which are the bone of contentions inter se the parties are reproduced as under:

1 "Should preferably have earned doctor's degree in an academic discipline and an outstanding academician of international stature.

1. Should have attained a distinguished leadership preferably in education and academic administration and financial management with proven track record of extensive experience and skills in initiating and managing change, strategic planning and overseeing the implementation of plans through to outcome."

2. The eligibility criteria as mentioned in the advertisement in dispute reads as follows:

Should have Ph.D degree preferably in management sciences from a reputed foreign university

Should not be more than 65 years of age on 19.1.2010.

Both male and female candidates are eligible to apply

Should have vast experience in postgraduate reaching including experience in administrative and financial management

Should have to his/her credit quality research publications in journals of international repute."

1. The eligibility criteria as mentioned in the disputed advertisement needs to be examined in juxtaposition with the guidelines issued by the HEC, both of which have reproduced hereinabove. Close examination thereof would reveal that the local Ph.Ds have not been excluded from consideration by way of the advertisement in dispute. Only a preference has been shown to those holding such a degree from a reputable foreign university. Such preference appears to be in accordance with the letter and spirit of guidelines issued by the HEC. The learned counsel for the petitioner has been unable to point out any contradiction between the eligibility criteria as motioned in the advertisement and the guidelines issued by the HEC. Grammatical and idiomatic differences are not necessarily contradictions or deviations. In these circumstances this Court is not persuaded that the eligibility as advertised is in violation of the guidelines of the HEC.

2. The learned Advocate General Punjab has stated that the process for the appointment of the Vice-Chancellor is more or less complete and has been conducted strictly in accordance with the law, the provisions of the Ordinance of 2002 and the guidelines of the HEC in a transparent and a bona fide manner. The learned counsel for the petitioners has expressed his reservations in this behalf. The person selected has not been disclosed nor the details of the entire process and supporting documents, if any, in this behalf are before this Court, therefore, it would not be safe for this Court to express any opinion in this behalf especially as the actual process of selection is not really the lis before this Court.

3. The upshot of the above is that the notifications/orders dated 5.3.2009 and 4.5.2009 are not a legal impediment in the process of the selection of a permanent Vice-Chancellor for the GCU Faisalabad, nor is the advertisement issued by the respondents per se in violation of any law or any binding guidelines of the HEC. When a formal selection is made for the Vice-Chancellor any person aggrieved thereby, may raise any objections thereto, the same shall be adjudicated upon, if and when the occasion arises.

4. In view of above this petition along with the connected Writ Petitions are dismissed accordingly.

(R.A.) Petitions dismissed.

PLJ 2011 Lahore 688

Present: Iqbal Hameed-ur-Rehman, J.

ABDUL RAUF ZAHID--Petitioner

versus

PUNJAB TEXT BOOK BOARD through its Chairman, Lahore and 2 others--Respondents

W.P. No. 13843 of 2009, heard on 7.4.2010.

Punjab Textbook Board Ordinance, 1962 (Amended 1971)--

----S. 24(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Cadre of subject specialist--Sough to consider for promotion to posts of S.S.S. on principle of seniority-cum fitness and for restraining from making promotion on the basis of any promotion policy--Promotion formula was not approved by Government of Punjab as required u/S. 24 (2) of Punjab Textbook Board Ordinance, 1962--Validity--Changing of the policy had been done in violation to S. 24(2) of Punjab Text Book Board Ordinance, which cannot, be considered to have been declared as lawful--It was an illegal act on the post of respondent, as such the same be declared null and void--Illegalities committed in clear violation of their own rules and regulations--Same cannot be allowed and it was a fit case where extraordinary constitutional jurisdiction of High Court can be exercised--Bar under Art. 212 of Constitution would not deter High Court in striking down the illegal act on behalf of Punjab Text Book Board Ordinance. [P. 692] A & B

2003 SCMR 291 & 2009 SCMR 605, ref.

Agha Abul Hassan Arif, Advocate for Petitioner assisted Mr. Mahmood Ahmad Qazi, Advocate.

Khalifa Shujat Hussain, for Respondents No. 1 & 2.

Mr. Muhammad Azeem Malik, Addl. A.G., Mr. Liaqat Ali Chaman, Legal assit. P.T.B., Rana Farman Ali Sabir, Advocate for Aisha Waheed.

Date of hearing: 7.4.2010.

Judgment

By this single judgment, I would like to decide the following writ petitions having similar question of law and facts:--

(1) W.P. No. 13843/2009

(2) W.P. No. 13844/2009

(3) W.P. No. 13845/2009

(4) W.P. No. 14861/2009

1. The petitioners have filed the instant writ petitions seeking a direction to Respondents No. 1 to 3 to consider the petitioners' case for promotion to the posts of Senior Subject Specialist (BS-18) on the principle of Seniority-cum-fitness and for restraining them from making promotion to the post of Senior Subject Specialist (BS-18) on the basis of any promotion policy/ promotion formula which is not approved by the Government of the Punjab as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971.

2. The brief facts as stated by the petitioners are that the petitioners were appointed as Assistant Subject Specialist by the respondents and they have been working as Subject Specialist in BS-17 in the Punjab Textbook Board, Lahore, and a combined seniority list of the Subject Specialist (BS-17) of the Punjab Textbook Board was duly notified vide Notification dated 14.09.2004 and 14.05.2007 respectively. It is further stated that the petitioners are now entitled to be promoted as Senior Subject Specialist in BS-18 but are being denied the same on account of the respondents adopting an illegal method of preparing seniority list of the Subject Specialist other than the combined seniority list already prepared in accordance with the Punjab Textbook Board Employees Service Regulations, 1980.

3. It is contended by the learned counsel for the petitioners that through Notification dated 25.07.1981, the method of appointment to the posts of Senior Subject Specialist (BS-18) is as follows:--

Sr. Functional Name of Existing Appointing Min. Method of Age for No. Unit Post pay scale Authority qualification recruitment initial Max recruitment Min.

38 Academic Senior NPS-18 Board By promotion 25 years. 45 Wing Subject from amongst years. Specialist subject specialists or if no such person is available by direct

recruitment

It is further contended that since the establishment of the Punjab Textbook Board till 2004, the posts of Senior Subject Specialist BS-18 used to be filled by promotion on seniority-cum-fitness basis strictly in accordance with the provisions of the above said rules, however, in the year 2005, Respondent No. 1 had framed some policy relating to the promotion to the post of Senior Subject Specialist whereby instead of making appointments by promotion to the posts of Senior Subject Specialist on seniority-cum-fitness basis, it was decided by Respondent No. 1 to fill in the posts of Senior Subject Specialist on the basis of specific subjects only, keeping aside the general principle of seniority-cum-fitness whereas neither the said policy has so far been delivered to the petitioners nor the said policy has been notified after the approval of the Government of the Punjab as required under the specific provisions of sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962 as amended in 1971.

1. It is further contended that in the year 2006 Respondents No. 1 to 3 held departmental promotion committee for filling in the posts of Senior Subject Specialist by adopting policy of making promotion on the basis of specific subjects, keeping aside the well recognized principle of seniority-cum-fitness; as such, the petitioners submitted their representations before Respondent No. 2 wherein the petitioners specifically requested that the promotion to the post of Senior Subject Specialist may be made on the basis of the seniority-cum-fitness basis as provided under the relevant regulations of the Board but unfortunately the petitioners genuine request was kept aside and Respondents No. 1 & 2 promoted certain colleagues of the petitioners vide order dated 04.07.2007 to the post of Senior Subject Specialist by way of applying illegal policy of making promotion on the basis of specific subjects instead of general principle of seniority-cum-fitness; as such, through the said order dated 04.07.2007 two colleagues of the petitioners were promoted, who were juniors to the petitioners whereas the petitioners have been duly ignored. It is submitted that the petitioners agitated the matter before the Chairman Punjab Textbook Board in the year 2006 but due to immense political pressure, Respondents No. 2 & 3 ignored the petitioners in violation of the regulations of the Board by way adopting an illegal promotion criteria of promotion to the posts of Senior Subject Specialist.

2. It is further stated that the petitioner Sarfraz Ahmad is fully qualified being MA in Urdu and is eligible for promotion as Senior Subject Specialist and in spite of a vacancy in the said department, he is not being promoted as Senior Subject Specialist. It is further contended that the petitioner Abdul Rauf Zahid, who is a Assistant Subject Specialist in Physics is also being not promoted as Senior Subject Specialist in spite of vacancy existing in the Physics Department on the vacancy of the said post by a lady namely Nazma Sheikh. It is also contended that the petitioner Muhammad Akhtar Sherani, who has been working as Assistant Subject Specialist in the Math, he has been deputed to work in the manuscript department of the respondents and is not being promoted in spite of the vacancies existing in the Statistics and Computer Science Departments; as such, it is a violation of Article 4 of the Constitution. Reliance in this regard is placed on Muhammad Vs. Pakistan Railways and others (2004 YLR 521). It is vehemently contended by the learned counsel for the petitioners that the amendment being made in the service rules and regulations, is illegal as the same has been made in violation to sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1971; as such, the bifurcation of the subject specialist cannot be made without the approval of the Government. Reliance in this regard has been placed on Muhammad Ilyas Khokhar and 24 others Vs. Federation of Pakistan and others (2006 SCMR 1240).

3. On the other hand, learned counsel appearing on behalf of the Punjab Textbook Board, when confronted with the violation of sub-section (2) of Section 24 of the Ordinance, could not controvert the same and the departmental representative present in Court stated that in pursuance of the same a summary has been sent for seeking the approval from the Government/ competent authority, which is in process. Learned counsel for the respondents, however, vehemently opposed the grounds taken by the learned counsel for the petitioners stating that these writ petitions are not maintainable since the matter pertains to the terms and conditions of the service of the petitioners; there is a bar of Article 212 of the Constitution and that prior to these arrangements, promotions were made on the basis of the seniority, which resulted into erratic posting and promotion in the main subjects and to overcome this problem, category of bracketed subjects specific policy was made and the same has been approved by the Board of Directors and no change is required to be brought in the Punjab Textbook Board Employees Service Regulations, 1980, only the criteria for promotion which is to be changed on the basis of the seniority of specific subjects and the same has been approved by the Advisory Council/ Board of Directors; as such, the respondents have committed no violation; therefore, these writ petitions have no merits and be dismissed.

4. Learned counsel for respondent Aisha Waheed states that in the year 2005-2006, the Board of Directors changed its policy of promotion on subject-wise basis in order to promote specialization which was lacking previously and was creating a hurdle and hampering the progress of the department and the same has been done in order to promote specialization, which is the need of the hour in the world.

5. The learned Addl. Advocate General adopted the contentions of the learned counsel for the respondent/Board.

6. Arguments from the learned counsel for the petitioners as well as of respondents pro and contra have been heard and the material made available on the record has been taken into consideration.

7. It is an admitted position that before the respondents have shifted to the specific subjects policy of the cadre of subject specialist, the same had been made without seeking any amendment as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971. Section 24 (2) of the Ordinance, which reads as under:--

"The regulations approved by the Board shall be submitted to Government and shall not take effect until they are approved by Government, Government may approve or disallow or remit them to the Board with its recommendations for further consideration."

In the instant case as admitted by the departmental representative, the approval of the same has yet not been made by the Government. In view of the same, the changing of the policy has been done in violation to Section 24(2) of the Punjab Textbook Board Ordinance, 1971, which cannot, in any circumstances, be considered to have been declared as lawful. In view of the same, it is an illegal act on the part of the respondents; as such, the same be declared null and void. In this regard, reliance is placed on Government of the Punjab, Food Department through Secretary Food and another Vs. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1148) wherein the Apex Court has held that "Where law provided for doing of a particular act in a particular manner, then same would be done in such particular manner or not at all." Further it has been held by the Apex Court in Muhammad Ilyas Khokhar and 24 others Vs. Federation of Pakistan and others (2006 SCMR 1240) that "Departmental circular varying the terms and conditions of service was in violation of and in conflict with Ss.3(ii) & 9(b), Civil Servants Act, 1973 as department had no lawful authority to lay down policy, unless the same was approved by the Establishment Division in accordance with the Rules of Business as well as the relevant law on the subject. Ex-post facto approval to such circular by the Establishment Division would not make the circular valid and legal which had no legal backing." In these circumstances, illegalities committed by Respondents No. 1 to 3 in clear violation of their own rules and regulations, the same cannot be allowed and it is a fit case where extraordinary constitutional jurisdiction of this Court can be exercised; as such, the bar under Article 212 of the Constitution would not deter this Court in striking down the illegal act on behalf of the respondents. In the case of Dr. Naveeda Tufail and 72 others Vs. Government of Punjab and others (2003 SCMR 291), it has been held that such appointment is a trust in the hands of the public authority and it is their legal and moral duty to discharge their functions as trustees with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service. In the case of Mrs. Abida Parveen Channar Vs. High Court of Sindh at Karachi (2009 SCMR 605), it has been held that "all the public powers must be exercised reasonably and honestly for the purpose for which the same are conferred".

1. In view of the above perspective, these writ petitions are accepted. The departmental specified policy is struck down and respondents are directed to consider the petitioners for promotion to the posts of Senior Subject Specialist (BS-18) on the basis of the combined seniority list as previously had been done by the respondents, strictly in accordance with the provisions of Serial No. 38 of the Schedule annexed with the Punjab Textbook Board Employees Services Regulations, 1980, which were duly notified vide Notification dated 25.07.1981 with the approval of the Government of the Punjab as required under sub-section (2) of Section 24 of the Punjab Textbook Board Ordinance, 1962/1971.

(R.A.) Petitions accepted.

PLJ 2011 Lahore 693 [Multan Bench Multan]

Present: Hafiz Abdul Rehman Ansari, J.

SIKANDAR HAYAT--Petitioner

versus

FALAK SHER--Respondent

C.R. No. 46-D of 2010, decided on 12.4.2010.

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

----O. XXIII, R. 3--Earlier suit of the petitioner on the same subject was withdrawn unconditionally without permission to file fresh suit--Validity--Where it is proved to satisfaction of the Court that a suit had been adjusted wholly or in part by way of lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit. [P. 696] A

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

----O. XXIII, R. 3--Not mention in plaint or prosecution witnesses in evidence the date, time and place where compromise or oath was effected--Held: There was no compromise effected between the parties in accordance with Order XXIII, Rule 3 of CPC. [P. 696] B

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

----S. 115--Civil revision--Tamleek of suit property come to knowledge of the petitioner--Tamleek was fictitious, fabricated and liable to be cancelled--Suit was dismissed for non-submission of process fee--Not mention any detail of fraud and forgery in the plaint or in oral evidence--Validity--Earlier suit for declaration had been dismissed because of non-submission of process fee--To prove issue regarding entitlement of plaintiff to get a decree for declaration, could not prove the issue through evidence--When there are concurrent findings with regard to fact and law, unless there is jurisdictional defect in orders passed by Courts below--High Court cannot interfere in the concurrent findings in exercise of power u/S. 115, CPC--Revision was dismissed. [Pp. 696 & 697] C & D

2007 SCMR 926, 2007 SCMR 870, PLD 2005 SC 418 & 2003 SCMR 83, rel.

Rana A.D. Kamran, Advocate for Petitioner.

Mr. Javed Ahmad Khan, Advocate for Respondent.

Date of hearing: 29.3.2010.

Order

Through the instant civil revision under Section 115, CPC, petitioner Sikandar Hayat son of Sardara assails the judgments and decrees dated 18.10.2008 and 15.12.2009. Through the former judgment and decree the learned Civil Judge, Sahiwal dismissed the suit of the petitioner for declaration and permanent injunction, whereas through the latter judgment and decree the learned Additional District Judge, Sahiwal, dismissed the appeal of the petitioner filed against the said judgment of the Civil Judge.

1. Facts in brief leading to the filing of the instant civil revision petition are that the petitioner, who is real brother of the respondent-defendant Falaksher, filed a suit for declaration along with perpetual and mandatory injunction against the respondent alleging therein that he is in possession of the suit property consisting of Khata No. 15/15, Khatoni Number 24 to 76 measuring 46 Kanals 04-Marlas, Khata No. 719/728, Khatoni Numbers 2168 to 2169 measuring 0-Kanal 12 Marlas according to the record of rights for the years 1996-1997, total land measuring 46-Kanals 16 Marlas situated in Mouza Harrapa Tehsil and District Sahiwal, fully described in Para No. 2 of the plaint. It is alleged that when Tamleek of suit property came to the knowledge of the petitioner he filed a suit for declaration along with injunction against the respondent in the civil Court, Sahiwal and the same was withdrawn on the oath of the respondent that he would get the property transferred in the name of the petitioner; subsequently the respondent applied to the Revenue Officer that the property in possession of the petitioner be delivered at Supurdari and share of produce be given to him which was against the term of the said oath; that the Tamleeq is fictitious, fabricated and liable to be cancelled. The suit was contested by the respondent by filing written statement contending therein that the earlier suit of the petitioner was dismissed for non-submission of process fee; that the suit is based on malafide and possession of the plaintiff is illegal and against law.

2. From the divergent pleadings of the parties, the learned trial Court framed the following issues:--

3. Whether the plaintiff is entitled to get the decree for declaration and injunction as prayed for? OPP

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

5. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD

6. Whether the suit is false, baseless and frivolous and the same is liable to be dismissed with special cost? OPD

7. Relief.

8. In support of his claim, petitioner-plaintiff appeared as PW-1 and produced one Nota as PW-2. The petitioner also produced in documentary evidence copy of record of rights Exh.P. 1, copy of Khasra Gardawari Exh.P.2, copy of order dated 16.6.1997 as Exh.P.3, copy of order dated 16.06.1997 as Exh.P-4 in contempt of Court application, copy of Mutation No. 1351 dated 30.01.1978 as Exh.P.5, copy of suit for declaration as Exh. P.6 titled as Sikandar Hayat vs. Falaksher. To rebut the claim of the plaintiff-petitioner, the respondent-defendant Falaksher appeared as DW-1 and also produced Malik Muhammad Razzaq as DW-2. In documentary evidence, the defendant-respondent produced copy of statement of Muhammad Afzal as Exh.D-1, copy of statement of Falik Sher as Exh.D-2, copy of order dated 16.08.2000 as Exh.D-3, copy of statements of plaintiff and his counsel dated 16.6.1997 as Exh.D-4, copy- of statement of Falak Sher dated 16.6.1997 as Exh.D-5, copy of order and suit for declaration titled Sikandar Hayat vs. Falak Sher dated 03.10.2000 as Exh.D-6, copy of record of rights of the suit property for the year 1996-97 as Exh.D-7, certified copy of Rept Qanungo dated 06.05.2000 as Exh.D-8, copy of incharge Monitoring Cell Sahiwal dated 11.5.2000 as Exh.D-9

9. I have heard the learned counsel for the parties and perused the material available on the file. Earlier suit of the petitioner on the same subject was withdrawn by him unconditionally without permission to file a fresh suit vide order dated 16.06.1997. The said order of the learned Civil Judge dated 16.6.1997 is reproduced hereunder:--

"Keeping in view the statement made by the learned counsel for the plaintiffs, the parties have come up to a compromise. They have no objection if the suit is dismissed. Therefore, the suit of the plaintiff is hereby dismissed as having been withdrawn. No order as to costs. The file be consigned to record room after its due completion.

Announced Sd/- Muhammad Zafar Iqbal

16.06.1997 Civil. Judge, Sahiwal"

It is provided in Rule (3) of Order XXIII of CPC that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by way of lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. The plaintiff did not mention in the plaint or the PWs in evidence the date, time and place where compromise or oath was effected. There is also no evidence brought on the file to show that the defendant agreed to alienate the suit property in the name of the plaintiff-petitioner. Therefore, it is held that A there was no compromise effected between the parties in accordance with Rule 3 of Order XXIII, CPC. Further, petitioner's earlier suit was dismissed for non-deposit of process fee which was filed on 25.07.2007. Petitioner's claim for ownership of the disputed land has not been proved through evidence. He did not mention any details of fraud and forgery in the plaint or in oral evidence. He suppressed the fact that his earlier suit for declaration had been dismissed because of non-submission of process fee. Further, to prove Issue No. 1 regarding entitlement of the plaintiff-petitioner to get a decree for declaration, plaintiff himself appeared as PW-1 and also produced one Nota as PW-2, but they could not prove the issue through evidence. Issue No. 2 regarding cause of action to file the suit by the plaintiff was also decided against him and in favour of the defendant by the trial Court. As regards Issue No. 3, the plaintiff admitted in evidence that prior to the instant suit he had filed a suit of same nature and on the same cause of action in respect of the same property. Copy of the said suit was produced in evidence as Exh.P.6. The plaintiff and his son Afzal further admitted that they cultivate the land of defendant-respondent. The plaintiff in Para 3 of the said previous suit Exh.D-6 admitted that he filed the suit in respect of the same land which was dismissed being time barred. Therefore, the defendant-respondent has been able to prove this Issue No. 3 against the plaintiff and it is held that the plaintiff was estopped to bring the instant suit. As for Issue No. 4, the defendant has failed to prove by evidence that he is entitled to receive special costs under Section 35-A, CPC, therefore, the said issue was rightly decided against the defendant-respondent.

1. The suit of the petitioner has rightly been dismissed by the learned Civil Judge with cogent reasons. His appeal has also rightly been dismissed by the learned Additional District Judge. No misreading or non-reading of any record has been committed by both the Courts below. When there are concurrent findings with regard to facts and law, unless there is jurisdictional defect in the orders passed by the two Courts below, the High Court cannot interfere in the said concurrent findings in exercise of power under Section 115, CPC. Reliance is placed on the cases reported as Rashid Ahmad vs. Said Ahmad (2007 SCMR 926), Hakim-ud-Din through L.Rs. and others vs. Faiz Bakhsh and others (2007 SCMR 870), Imam Din and 4 others vs. Bashir Ahmed and 10 others (PLD 2005 SC 418) and Muhammad Bashir and another vs. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83). There is no jurisdictional defect also in the orders of both the Courts below.

2. For the reasons discussed above, I find no force in the civil revision, which is dismissed with no order as to costs.

(R.A.) Revision dismissed.

PLJ 2011 Lahore 697